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JURISDICTION

G.R. No. 173990

October 27, 2009

EDGARDO V. ESTARIJA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, and EDWARD RANADA, Respondents.

DECISION

CHICO-NAZARIO, J.:

This Petition for Review under Rule 45 of the Rules of Court seeks to reverse and set aside the 25 November 2005 Decision1 and the 11 July 2006 Resolution2 of the Court of Appeals, which affirmed with modifications the Decision and Resolution of the Regional Trial Court (RTC) of Davao City, Branch 8, finding petitioner, Captain Edgardo V. Estarija (Estarija), then Harbor Master of the Philippine Ports Authority, Davao City, guilty beyond reasonable doubt of violating Section 3, paragraph b of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

On 7 August 1998, an Information was filed before the RTC of Davao City against Estarija for violating Section 3, paragraph b of Republic Act No. 3019. The accusatory portion of the Information reads:

That on or about August 6, 1998, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, EDGARDO ESTARIJA, a public officer, being then the Harbor Master of the Philippine Ports Authority at Sasa, Davao City, while in the performance of his official function as such, did then and there, willfully, unlawfully and feloniously request and consequently receive the amount of

FIVE THOUSAND PESOS (P5,000.00) from Davao Pilot Association in consideration of accuseds issuance of berthing permits.3

Upon his arraignment on 26 August 1998, Estarija, assisted by a counsel de parte, pleaded not guilty to the charge.4 Thereafter, trial on the merits ensued.

On 15 March 2000, the RTC rendered a decision convicting Estarija of the crime charged and imposing upon him a straight penalty of seven years. The decretal portion of the RTC decision reads:

For the foregoing, this Court finds accused Capt. Edgardo Estarija GUILTY beyond reasonable doubt of violating Par. B, Sec. 3 of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Accordingly, he is hereby sentenced to suffer a penalty of imprisonment of SEVEN (7) YEARS.5

Estarija filed a motion for reconsideration, which was denied by the RTC.

On 10 August 2000, Estarija filed a notice of appeal.

On appeal, the Court of Appeals affirmed the conviction of Estarija. The Court of Appeals, however, modified the penalty to an indeterminate sentence ranging from 6 years and 1 day to 9 years, with the accessory penalty of perpetual disqualification from public office, thus:

WHEREFORE, this Court x x x hereby AFFIRMS the finding of guilt of the accusedappellant but ORDERS the modification of the sentence imposed upon the accusedappellant. Conformably, accused-appellant is hereby sentenced to an Indeterminate

penalty of Six (6) Years and One (1) Month to Nine (9) Years of imprisonment, with the accessory penalty of perpetual disqualification from public office.6

Hence, the instant petition.

In the main, the issue for resolution is whether or not error attended the RTCs findings, as affirmed by the Court of Appeals, that Estarija is guilty beyond reasonable doubt of violating Section 3, paragraph b of Republic Act No. 3019.

Quite apart from the foregoing issue raised by Estarija, the question that comes to the fore, as made evident by the proceedings below, is whether or not Estarija correctly filed his appeal with the Court of Appeals; or put differently, whether the Court of Appeals had appellate jurisdiction over the RTC decision convicting Estarija of the charge. Although not assigned as an error, said issue can be entertained by the Court, since, in a criminal proceeding, an appeal throws the whole case open for review, and it becomes the duty of the Court to correct any error in the appealed judgment, whether it is made the subject of an assignment of error or not.7

Republic Act No. 8249 entitled, "An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefor, and for Other Purposes," which further defined the jurisdiction of the Sandiganbayan, took effect on 23 February 1997. Paragraph 3, Section 4(c) of Republic Act No. 8249 reads:

In cases where none of the accused are occupying positions corresponding to salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.1avvphi1

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. (Emphasis supplied.)

It is manifest from the above provision that the decisions of the Regional Trial Court -convicting an accused who occupies a position lower than that with salary grade 27 or those not otherwise covered by the enumeration of certain public officers in Section 4 of Presidential Decree No. 1606 as amended by Republic Act No. 8249 -- are to be appealed exclusively to the Sandiganbayan.

Time and again, it has been held that the right to appeal is not a natural right or a part of due process, but merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail himself of the same must comply with the requirements of the rules, failing in which the right to appeal is lost.1avvphi1

Having failed to comply with the requirements set forth in the rules, Estarijas appeal should have been dismissed by the Court of Appeals.

In the instant case, instead of appealing his conviction to the Sandiganbayan, Estarija erroneously filed an appeal with the Court of Appeals, in utter disregard of paragraph 3, Section 4(c) of Republic Act No. 8249. The Court of Appeals did not notice this conspicuous misstep, since it entertained the appeal. This fatal flaw committed by Estarija did not toll the running of the period for him to perfect his appeal to the Sandiganbayan. Because of Estarijas failure to perfect his appeal to the Sandiganbayan within the period granted therefor, the Decision of the RTC convicting him of violating Section 3(a) of Republic Act No. 3019 has thus become final and executory.

Inasmuch as the decision of the RTC has long been final and executory, it can no longer be altered or modified.8 Nothing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable.9 The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether or not made by the

highest court of the land. The reason is grounded on the fundamental considerations of public policy and sound practice that, at the risk of occasional error, the judgments or orders of courts must be final at some definite date fixed by law.

The RTC imposed upon Estarija the straight penalty of seven (7) years. This is erroneous. The penalty for violation of Section 3(b) of Republic Act No. 3019 is imprisonment for not less than six years and one month nor more than fifteen years, and perpetual disqualification from public office. Under the Indeterminate Sentence Law, if the offense is punished by a special law, the Court shall sentence the accused to an indeterminate penalty, the maximum term of which shall not exceed the maximum fixed by said law, and the minimum term shall not be less than the minimum prescribed by the same. Thus, the correct penalty should have been imprisonment ranging from six (6) years and one (1) month, as minimum, to nine (9) years as maximum, with perpetual disqualification from public office. However, since the decision of the RTC has long become final and executory, this Court cannot modify the same.10

WHEREFORE, premises considered, the instant petition is DENIED. The Decision of the Regional Trial Court of Davao City, Branch 8, dated 15 March 2000, finding Edgardo V. Estarija GUILTY beyond reasonable doubt of violating Section 3(b) of Republic Act No. 3019 is declared FINAL and EXECUTORY.

SO ORDERED.

G.R. No. 167304

August 25, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN (third division) and VICTORIA AMANTE, Respondents.

DECISION

PERALTA, J.:

Before this Court is a petition1 under Rule 45 of the Rules of Court seeking to reverse and set aside the Resolution2 of the Sandiganbayan (Third Division) dated February 28, 2005 dismissing Criminal Case No. 27991, entitled People of the Philippines v. Victoria Amante for lack of jurisdiction.

The facts, as culled from the records, are the following:

Victoria Amante was a member of the Sangguniang Panlungsod of Toledo City, Province of Cebu at the time pertinent to this case. On January 14, 1994, she was able to get hold of a cash advance in the amount of P71,095.00 under a disbursement voucher in order to defray seminar expenses of the Committee on Health and Environmental Protection, which she headed. As of December 19, 1995, or after almost two years since she obtained the said cash advance, no liquidation was made. As such, on December 22, 1995, Toledo City Auditor Manolo V. Tulibao issued a demand letter to respondent Amante asking the latter to settle her unliquidated cash advance within seventy-two hours from receipt of the same demand letter. The Commission on Audit, on May 17, 1996, submitted an investigation report to the Office of the Deputy Ombudsman for Visayas (OMB-Visayas), with the recommendation that respondent Amante be further investigated to ascertain whether appropriate charges could be filed against her under Presidential Decree (P.D.) No. 1445, otherwise known as The Auditing Code of the Philippines. Thereafter, the OMB-Visayas, on September 30, 1999, issued a Resolution recommending the filing of an Information for Malversation of Public Funds against respondent Amante. The Office of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, on April 6, 2001, prepared a memorandum finding probable cause to indict respondent Amante.

On May 21, 2004, the OSP filed an Information3 with the Sandiganbayan accusing Victoria Amante of violating Section 89 of P.D. No. 1445, which reads as follows:

That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused VICTORIA AMANTE, a high-ranking public officer,

being a member of the Sangguniang Panlungsod of Toledo City, and committing the offense in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of SEVENTY-ONE THOUSAND NINETY-FIVE PESOS (P71,095.00), Philippine Currency, which she received by reason of her office, for which she is duty-bound to liquidate the same within the period required by law, with deliberate intent and intent to gain, did then and there, wilfully, unlawfully and criminally fail to liquidate said cash advances of P71,095.00, Philippine Currency, despite demands to the damage and prejudice of the government in aforesaid amount.

CONTRARY TO LAW.

The case was raffled to the Third Division of the Sandiganbayan. Thereafter, Amante filed with the said court a MOTION TO DEFER ARRAIGNMENT AND MOTION FOR REINVESTIGATION4 dated November 18, 2004 stating that the Decision of the Office of the Ombudsman (Visayas) dated September 14, 1999 at Cebu City from of an incomplete proceeding in so far that respondent Amante had already liquidated and/or refunded the unexpected balance of her cash advance, which at the time of the investigation was not included as the same liquidation papers were still in the process of evaluation by the Accounting Department of Toledo City and that the Sandiganbayan had no jurisdiction over the said criminal case because respondent Amante was then a local official who was occupying a position of salary grade 26, whereas Section 4 of Republic Act (R.A.) No. 8249 provides that the Sandiganbayan shall have original jurisdiction only in cases where the accused holds a position otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989, R.A. No. 6758.

The OSP filed its Opposition5 dated December 8, 2004 arguing that respondent Amante's claim of settlement of the cash advance dwelt on matters of defense and the same should be established during the trial of the case and not in a motion for reinvestigation. As to the assailed jurisdiction of the Sandiganbayan, the OSP contended that the said court has jurisdiction over respondent Amante since at the time relevant to the case, she was a member of the Sangguniang Panlungsod of Toledo City, therefore, falling under those enumerated under Section 4 of R.A. No. 8249. According to the OSP, the language of the law is too plain and unambiguous that it did not make any distinction as to the salary grade of city local officials/heads.

The Sandiganbayan, in its Resolution6 dated February 28, 2005, dismissed the case against Amante, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed for lack of jurisdiction. The dismissal, however, is without prejudice to the filing of this case to the proper court.

The Motion for Reinvestigation filed by the movant is hereby considered moot and academic.

SO ORDERED.

Hence, the present petition.

Petitioner raises this lone issue:

WHETHER OR NOT THE SANDIGANBAYAN HAS JURISDICTION OVER A CASE INVOLVING A SANGGUNIANG PANLUNGSOD MEMBER WHERE THE CRIME CHARGED IS ONE COMMITTED IN RELATION TO OFFICE, BUT NOT FOR VIOLATION OF RA 3019, RA 1379 OR ANY OF THE FELONIES MENTIONED IN CHAPTER II, SECTION 2, TITLE VII OF THE REVISED PENAL CODE.

In claiming that the Sandiganbayan has jurisdiction over the case in question, petitioner disputes the former's appreciation of this Court's decision in Inding v. Sandiganbayan.7 According to petitioner, Inding did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. Petitioner adds that the enumeration in Section (a)(1) of P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249, which was made applicable to cases concerning violations of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code, equally applies to offenses committed in relation to public office.

Respondent Amante, in her Comment8 dated January 16, 2006, averred that, with the way the law was phrased in Section 4 of P.D. No. 1606, as amended, it is obvious that the jurisdiction of the Sandiganbayan was defined first, enumerating the several exceptions to the general rule, while the exceptions to the general rule are provided in the rest of the paragraph and sub-paragraphs of Section 4. Therefore, according to respondent Amante, the Sandiganbayan was correct in ruling that the latter has original jurisdiction only over cases where the accused is a public official with salary grade 27 and higher; and in cases where the accused is public official below grade 27 but his position is one of those mentioned in the enumeration in Section 4(a)(1)(a) to (g) of P.D. No. 1606, as amended and his offense involves a violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code; and if the indictment involves offenses or felonies other than the three aforementioned statutes, the general rule that a public official must occupy a position with salary grade 27 and higher in order that the Sandiganbayan could exercise jurisdiction over him must apply. The same respondent proceeded to cite a decision9 of this Court where it was held that jurisdiction over the subject matter is conferred only by the Constitution or law; it cannot be fixed by the will of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties, neither is it conferred by acquiescence of the court.1avvphi1

In its Reply10 dated March 23, 2006, the OSP reiterated that the enumeration of public officials in Section 4(a)(1) to (a) to (g) of P.D. No. 1606 as falling within the original jurisdiction of the Sandiganbayan should include their commission of other offenses in relation to office under Section 4(b) of the same P.D. No. 1606. It cited the case of Esteban v. Sandiganbayan, et al.11 wherein this Court ruled that an offense is said to have been committed in relation to the office if the offense is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions.

The petition is meritorious.

The focal issue raised in the petition is the jurisdiction of the Sandiganbayan. As a background, this Court had thoroughly discussed the history of the conferment of jurisdiction of the Sandiganbayan in Serana v. Sandiganbayan, et al.,12 thus:

x x x The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.13

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.14

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. x x x

Specifically, the question that needs to be resolved is whether or not a member of the Sangguniang Panlungsod under Salary Grade 26 who was charged with violation of The Auditing Code of the Philippines falls within the jurisdiction of the Sandiganbayan.

This Court rules in the affirmative.

The applicable law in this case is Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. No. 8249. The alleged commission of the offense, as shown in the Information was on or about December 19, 1995 and the filing of the Information was on May 21, 2004. The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense.15 The exception contained in R.A. 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as

the offense involved herein is a violation of The Auditing Code of the Philippines. The last clause of the opening sentence of paragraph (a) of the said two provisions states:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

The present case falls under Section 4(b) where other offenses and felonies committed by public officials or employees in relation to their office are involved. Under the said provision, no exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense applies in this present case. Since the present case was instituted on May 21, 2004, the provisions of R.A. No. 8249 shall govern. Verily, the pertinent provisions of P.D. No. 1606 as amended by R.A. No. 8249 are the following:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers, and other city department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and Special Prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies, whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

The above law is clear as to the composition of the original jurisdiction of the Sandiganbayan. Under Section 4(a), the following offenses are specifically enumerated: violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code. In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter must be committed by, among others, officials of the executive branch occupying positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law. Particularly and exclusively enumerated are provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; city mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers , and other city department heads; officials of the diplomatic service occupying the position as consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP officers of higher rank; City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations. In connection therewith, Section 4(b) of the same law provides that other offenses or felonies committed by public officials and employees mentioned in subsection (a) in relation to their office also fall under the jurisdiction of the Sandiganbayan.

By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in relation to her office, falls within the original jurisdiction of the Sandiganbayan.

However, the Sandiganbayan, in its Resolution, dismissed the case with the following ratiocination:

x x x the ruling of the Supreme Court in the Inding case, stating that the Congress' act of specifically including the public officials therein mentioned, "obviously intended cases mentioned in Section 4 (a) of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, when committed by the officials enumerated in (1)(a) to (g) thereof, regardless of their salary grades, to be tried by the Sandiganbayan." Obviously, the Court was referring to cases involving violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code only because they are the specific cases mentioned in Section 4 (a) of P.D. No. 1606 as amended, so that when they are committed even by public officials below salary grade '27', provided they belong to the enumeration, jurisdiction would fall under the Sandiganbayan. When the offense committed however, falls under Section 4(b) or 4(c) of P.D. No. 1606 as amended, it should be emphasized that the general qualification that the public official must belong to grade '27' is a requirement so that the Sandiganbayan could exercise original jurisdiction over him. Otherwise, jurisdiction would fall to the proper regional or municipal trial court.

In the case at bar, the accused is a Sangguniang Panlungsod member, a position with salary grade '26'. Her office is included in the enumerated public officials in Section 4(a) (1) (a) to (g) of P.D. No. 1606 as amended by Section 2 of R.A. No. 7975. However, she is charged with violation of Section 89 of The Auditing Code of the Philippines which is not a case falling under Section 4(a) but under Section 4(b) of P.D. No. 1606 as amended. This being the case, the principle declared in Inding is not applicable in the case at bar because as stated, the charge must involve a violation of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code. Therefore, in the instant case, even if the position of the accused is one of those enumerated public officials under Section 4(a)(1)(a) to (g), since she is being prosecuted of an offense not mentioned in the aforesaid section, the general qualification that accused must be a public official occupying a position with salary grade '27' is a requirement before this Court could exercise jurisdiction over her. And since the accused occupied a

public office with salary grade 26, then she is not covered by the jurisdiction of the Sandiganbayan.1avvphi1

Petitioner is correct in disputing the above ruling of the Sandiganbayan. Central to the discussion of the Sandiganbayan is the case of Inding v. Sandiganbayan16 where this Court ruled that the officials enumerated in (a) to (g) of Section 4(a)(1) of P. D. No. 1606, as amended are included within the original jurisdiction of the Sandiganbayan regardless of salary grade. According to petitioner, the Inding case did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. This observation is true in light of the facts contained in the said case. In the Inding case, the public official involved was a member of the Sangguniang Panlungsod with Salary Grade 25 and was charged with violation of R.A. No. 3019. In ruling that the Sandiganbayan had jurisdiction over the said public official, this Court concentrated its disquisition on the provisions contained in Section 4(a)(1) of P.D. No. 1606, as amended, where the offenses involved are specifically enumerated and not on Section 4(b) where offenses or felonies involved are those that are in relation to the public officials' office. Section 4(b) of P.D. No. 1606, as amended, provides that:

b. Other offenses or felonies committed by public officials and employees mentioned in subsection (a) of this section in relation to their office.

A simple analysis after a plain reading of the above provision shows that those public officials enumerated in Section 4(a) of P.D. No. 1606, as amended, may not only be charged in the Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code, but also with other offenses or felonies in relation to their office. The said other offenses and felonies are broad in scope but are limited only to those that are committed in relation to the public official or employee's office. This Court had ruled that as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance, though improper or irregular, of his official functions, there being no personal motive to commit the crime and had the accused not have committed it had he not held the aforesaid office, the accused is held to have been indicted for "an offense committed in relation" to his office.17 Thus, in the

case of Lacson v. Executive Secretary,18 where the crime involved was murder, this Court held that:

The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accuseds official functions. Thus, under said paragraph b, what determines the Sandiganbayans jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. x x x.

Also, in the case Alarilla v. Sandiganbayan,19 where the public official was charged with grave threats, this Court ruled:

x x x In the case at bar, the amended information contained allegations that the accused, petitioner herein, took advantage of his official functions as municipal mayor of Meycauayan, Bulacan when he committed the crime of grave threats as defined in Article 282 of the Revised Penal Code against complainant Simeon G. Legaspi, a municipal councilor. The Office of the Special Prosecutor charged petitioner with aiming a gun at and threatening to kill Legaspi during a public hearing, after the latter had rendered a privilege speech critical of petitioners administration. Clearly, based on such allegations, the crime charged is intimately connected with the discharge of petitioners official functions. This was elaborated upon by public respondent in its April 25, 1997 resolution wherein it held that the "accused was performing his official duty as municipal mayor when he attended said public hearing" and that "accuseds violent act was precipitated by complainants criticism of his administration as the mayor or chief executive of the municipality, during the latters privilege speech. It was his response to private complainants attack to his office. If he was not the mayor, he would not have been irritated or angered by whatever private complainant might have said during said privilege speech." Thus, based on the allegations in the information, the Sandiganbayan correctly assumed jurisdiction over the case.

Proceeding from the above rulings of this Court, a close reading of the Information filed against respondent Amante for violation of The Auditing Code of the Philippines reveals that the said offense was committed in relation to her office, making her fall under Section 4(b) of P.D. No. 1606, as amended.

According to the assailed Resolution of the Sandiganbayan, if the intention of the law had been to extend the application of the exceptions to the other cases over which the Sandiganbayan could assert jurisdiction, then there would have been no need to distinguish between violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code on the one hand, and other offenses or felonies committed by public officials and employees in relation to their office on the other. The said reasoning is misleading because a distinction apparently exists. In the offenses involved in Section 4(a), it is not disputed that public office is essential as an element of the said offenses themselves, while in those offenses and felonies involved in Section 4(b), it is enough that the said offenses and felonies were committed in relation to the public officials or employees' office. In expounding the meaning of offenses deemed to have been committed in relation to office, this Court held:

In Sanchez v. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the term "offense committed in relation to [an accuseds] office" by referring to the principle laid down in Montilla v. Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People v. Montejo [108 Phil 613 (1960)]. The principle set out in Montilla v. Hilario is that an offense may be considered as committed in relation to the accuseds office if "the offense cannot exist without the office" such that "the office [is] a constituent element of the crime x x x." In People v. Montejo, the Court, through Chief Justice Concepcion, said that "although public office is not an element of the crime of murder in [the] abstract," the facts in a particular case may show that

x x x the offense therein charged is intimately connected with [the accuseds] respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed, [the accused] had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. x x x20

Moreover, it is beyond clarity that the same provision of Section 4(b) does not mention any qualification as to the public officials involved. It simply stated, public officials and employees mentioned in subsection (a) of the same section. Therefore, it refers to those public officials with Salary Grade 27 and above, except those specifically enumerated. It is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,21 unless it is evident that the legislature intended a technical or special legal meaning to those words.22 The

WHEREFORE, the Petition dated April 20, 2005 is hereby GRANTED and the Resolution of the Sandiganbayan (Third Division) dated February 28, 2005 is NULLIFIED and SET ASIDE. Consequently, let the case be REMANDED to the Sandiganbayan for further proceedings.

SO ORDERED.

G.R. No. 172357

March 19, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. MARCELO BUSTAMANTE y ZAPANTA, NEIL BALUYOT y TABISORA, RICHARD DELOS TRINO y SARCILLA, HERMINIO JOSE y MONSON, EDWIN SORIANO y DELA CRUZ and ELMER SALVADOR y JAVALE, Appellants.

DECISION

DEL CASTILLO, J.:

The police authorities are the ones tasked to promote and maintain peace and order in our country. Thus, it becomes doubly deplorable when they themselves commit the criminal act. In this case, appellants insist on their innocence; they deny that they killed the victim Romeleo Quintos on June 1, 1997 inside the detention cell of the Ninoy Aquino International Airport (NAIA). But we are not persuaded. We took a second hard look at the evidence presented and we hold that both the trial court and the appellate court correctly found that the prosecution proved beyond reasonable doubt that the appellants are guilty of murder.

This is an appeal from the July 19, 2005 Decision1 of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 00665 which affirmed in toto the March 17, 2000 Decision2 of the Regional Trial Court (RTC) of Pasay City, Branch 109, finding the appellants guilty beyond reasonable doubt of the crime of murder. Also assailed is the March 6, 2006 Resolution3 of the CA denying the separate motions for reconsideration filed by the appellants.

Factual Antecedents

On May 22, 1998, two Informations were filed against the herein appellants, together with Carlito Lingat and Mutalib Abdulajid, charging them with the crimes of Murder and Arbitrary Detention. The Informations read:

Crim. Case No. 98-0547 (for Murder):

The undersigned Ombudsman Investigator, Office of the Deputy Ombudsman for the Military, hereby accuses NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO BUSTAMANTE, CARLITO LINGAT, MUTALIB ABDULAJID, AND ELMER SALVADOR of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code, committed as follows:

That in the early morning of June 01, 1997, between 2:00 to 3:00 oclock [in the morning], or sometime prior or subsequent thereto, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the accused NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO BUSTAMANTE, and CARLITO LINGAT, all public officers, being then members of the Philippine National Police (PNP) Force, assigned [at] the Ninoy Aquino International Airport (NAIA), and accused ELMER SALVADOR and MUTALIB ABDULAJID, security guards, also assigned at the NAIA, conspiring and confederating with one another, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously tie a plastic nylon cord around the neck of one Romeleo A. Quintos, and hang him at the end portion of the detention cell, which caused the instantaneous death of said Romeleo A. Quintos to the damage and prejudice of the heirs of said victim.

CONTRARY TO LAW.4

Criminal Case No. 98-0548 (for Arbitrary Detention)

The undersigned Ombudsman Investigator, Office of the Ombudsman for the Military, hereby accuses EDWIN D. SORIANO, MARCELO Z. BUSTAMANTE, HERMINIO M. JOSE, CARLITO D. LINGAT and NEIL T. BALUYOT of the crime of ARBITRARY DETENTION, defined and penalized under Article 124 of the Revised Penal Code, committed as follows:

That on or about June 01, 1997, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, all public officers, being then members of the Philippine National Police Force assigned at the Ninoy Aquino International Airport, conspiring and confederating with each other, committing the offense in relation to their office, and without any legal ground, did then and there willfully, unlawfully, and feloniously detain and restrain Romeleo A. Quintos of his personal liberty, without his consent and against his will since midnight of May 31, 1997 until around 3:15 a.m. of June 01, 1997 when said Romeleo A. Quintos was found dead inside the detention cell.

CONTRARY TO LAW.5

Neil Baluyot (Baluyot), Richard Delos Trino (Delos Trino), Herminio Jose (Jose), Edwin Soriano (Soriano), Marcelo Bustamante (Bustamante), Carlito Lingat (Lingat) and Elmer Salvador (Salvador), were arraigned on July 14, 1998 where they all entered a plea of not guilty.6 Mutalib Abdulajid (Abdulajid) remains at large.

The records show that at around midnight of May 31, 1997, Romeleo Quintos (Romeleo) and his friend, Ancirell Sales (Ancirell), went to the NAIA to fetch Rolando Quintos (Rolando), brother of Romeleo, who was arriving from the United States. At the arrival extension area of the NAIA, Ancirell alighted from the car driven by Romeleo to

check whether Rolando had already arrived. Upon his return, he was surprised to see Romeleo arguing with a man in uniform later identified as Soriano who arrested Romeleo for expired license.

Romeleo vehemently denied the charge causing a heated altercation. Outraged, Romeleo challenged Soriano to a gun duel. Thinking that Romeleo was a military man, Soriano called for reinforcement. In a few minutes, Lingat and Bustamante arrived followed by Jose. They asked Romeleo to hand over his license but the request went unheeded. Thus, Jose seized the ignition key of the vehicle and ordered Romeleo to alight from the vehicle but the latter refused. Thereupon, Soriano, Lingat, Bustamante and Jose pulled Romeleo out of the vehicle and brought him to the Intelligence and Investigation Division of the NAIA (IID-NAIA) supposedly for questioning. At the IIDNAIA, it was decided that Romeleo be brought to the Pasay General Hospital for examination where he was found positive for alcoholic breath. Thereafter, Romeleo was brought back to the IID-NAIA for further investigation.

Romeleo was shoved into a cell already occupied by prosecution witness Noel Gabornes (Gabornes), who had earlier been arrested for being an unauthorized porter. Professing his innocence, Romeleo cursed and shouted at Baluyot, Delos Trino, Jose, Soriano, Bustamante, Lingat, Salvador and Abdulajid to release him as he was only at the airport to fetch his brother. Jose ordered him to stop but Romeleo persisted. Infuriated, Jose entered the cell and kicked the victim hard on the stomach. Salvador also entered the cell followed by Baluyot while Delos Trino stayed near the door. Romeleo was still reeling from the blow delivered by Jose when Baluyot boxed him in the abdomen. Salvador also punched him at the solar plexus causing the victim to writhe in pain at a corner of the cubicle. To avoid being hit, Gabornes went outside the cell.

Gasping for breath, Romeleo sought succor from Gabornes but the latter declined, afraid to get involved. After a while, Gabornes asked Jose if he could go home but the latter did not answer. Instead, Jose directed Salvador to transfer Gabornes to an adjacent cell. Thereafter, Gabornes overheard Jose saying "tapusin na natin ito". Intrigued, Gabornes peered through the iron grill to see what was happening. From his vantage point, he saw Baluyot handing a piece of grayish plastic cord to Salvador. Thereafter, he heard Romeleo coughing and gasping for breath as if he was being strangled. Peering closely, the witness saw Salvador and Abdulajid twisting the cord with a piece of wood, "garrote" style. Romeleos hand could be seen trying to reach for

the piece of wood in a backward angle in a vain effort to stop the twisting. After a couple of minutes, Gabornes saw a body being carried out of the cell. Delos Trino then approached Gabornes and said: "Kung anong nakita mo, nakita mo lang. Kung anong narinig mo, narinig mo lang. Sana huwag mo ng ikalat ito." Fearing for his life, Gabornes promised not to tell anybody about the incident. Thereafter, he was released.

At about that time, the victims brother, Rolando, had already arrived from the United States. Informed by Ancirell of the detention of his brother Romeleo, Rolando set out for home to deposit his luggage but immediately went back to the airport with Ancirell and a cousin, Rabadon Gavino (Gavino), to check on Romeleo. At around 3:00 a.m. of the same day, they arrived at the IID-NAIA office and were met in the hallway by Bustamante who told them that Romeleo was in the detention cell. Asking for directions, the group was ushered towards a dark cell. When the lights were turned on, they were horrified to see the lifeless body of Romeleo hanging with a cord around his neck with the other end tied around the iron grills of the cell window.

Rolando, Ancirell and Gavino, along with Soriano and Lingat, immediately brought the victim to the San Juan De Dios Hospital aboard a police car. Rolando and his companions carried the victim to the emergency room. Soriano and Lingat remained in the vehicle but returned to the NAIA after a while. Romeleo was declared dead on arrival by the attending physician. Gabornes later learned of the victims identity through the newspapers.

Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all members of the Philippine National Police (PNP) assigned with the IID-NAIA, while Salvador and Abdulajid were security guards of the Lanting Security Agency assigned at NAIA.

Ruling of the Regional Trial Court

After due proceedings, the trial court promulgated its Decision dated March 17, 2000, the decretal portion reads:

In view of all the foregoing, the Court finds the accused Neil Baluyot y Tabisora, Richard delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz, Marcelo Bustamante y Zapanta, Carlito Lingat y Salvador, Elmer Salvador y Javale, and Mutalib Abdulajid guilty beyond reasonable doubt of MURDER in Criminal Case No. 98-0457. It appearing on evidence that the accused voluntarily surrendered at the Criminal Investigation and Detection Group as evidenced by Exh. 21, the Court credits them with the mitigating circumstances of voluntary surrender and hereby sentences each of them to RECLUSION PERPETUA and for each accused to pay the heirs of the victim indemnity in the amount of P50,000.00.

In Criminal Case No. 98-0548 for Arbitrary Detention, it appearing from the evidence that the victim Romeleo Quintos was detained at the IID for three (3) hours and fifteen (15) minutes, the same is punished or penalized under Art. 124, paragraph 1 of the Revised Penal Code which is herein below reproduced:

ART. 124. Arbitrary Detention. Any public officer or employee who, without legal grounds, detains a person, shall suffer:

1. The penalty of arresto mayor in its maximum period to prision correctional in its minimum period if the detention has not exceeded three days;

xxxx

hence the case is not within the jurisdiction of this Court.

The OIC of this Court is hereby ordered to transmit the records of Criminal Case No. 980548 for Arbitrary detention to the Metropolitan Trial Court.

The Petition for Bail filed by all the accused is hereby considered moot and academic.

Let an Alias Warrant of arrest be issued in so far as accused Mutalib Abdulajid is concerned who remains at large.

SO ORDERED.7

Ruling of the Court of Appeals

The CA affirmed the Decision of the RTC in a Decision dated July 19, 2005, thus:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED in toto. Costs de officio.

SO ORDERED.8

Aggrieved, appellants filed their respective Motions for Reconsideration. In the meantime, Lingat died. On March 6, 2006, the CA denied the motions for reconsideration.9

All the appellants, except Bustamante, filed notices of appeal. Bustamante filed an Urgent Motion for Leave to Admit Second Motion for Reconsideration10 but it was denied by the CA in its Resolution11 dated April 28, 2006. Thereafter, Bustamante filed a Petition for Review on Certiorari but the same was treated as an appeal in the Resolution12 dated January 15, 2007.

Issues

The issues raised are: (1) whether the uncorroborated testimony of the lone eyewitness, Gabornes, is sufficient to produce a judgment of conviction; (2) whether conspiracy was

proven beyond reasonable doubt; and (3) whether appellants should be held liable only for homicide, and not for murder.

Our Ruling

Upon careful consideration of the evidence presented by both the prosecution and the defense, we are unable to consider the appellants appeal with favor.

The uncorroborated testimony of a single witness, if credible, is enough to warrant conviction.

We find that the CA did not err in affirming the Decision of the trial court convicting the appellants of murder based on the testimony of Gabornes, the lone eyewitness. It is settled jurisprudence that the testimony of a single witness, if credible, is enough to warrant conviction. Both the trial court and the CA found Gabornes to be credible and whose testimony is entitled to full faith. We find no cogent reason to depart from said findings.

As borne out by the records, Gabornes positively identified and categorically pointed to appellants as the ones who conspired with one another to kill Romeleo on June 1, 1997. He narrated the incident in a clear and convincing manner. He testified on the degree of participation of each of the accused with regard to the killing of Romeleo inside the IIDNAIA detention cell in such a manner that only an unbiased eyewitness could narrate. Gabornes was not shown to have had any ill motives to testify falsely against the appellants. As correctly observed by both the trial court and the CA, the fact that Gabornes was previously arrested for being an unauthorized porter is not enough reason for him to falsely accuse appellants of a very grave offense.

We also hold that the CA correctly disregarded the affidavit of recantation of Gabornes dated February 21, 2005. In the said affidavit, Gabornes denied that he was inside the detention cell of the NAIA on June 1, 1997. Instead, he claimed that he was under the fly-over near the NAIA playing a card game. Consequently, he averred that there is no

truth to his testimony given before the trial court pointing to the appellants as the perpetrators of the crime. We are not persuaded.

Our ruling in People v. Ballabare13 is instructive:

It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to crossexamine the recanting witness. x x x

In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. x x x 14

As we have already discussed, Gabornes testimony given before the National Bureau of Investigation (NBI) and the trial court was replete with details that only a person who witnessed such gruesome crime could narrate. Even during cross-examination, he remained steadfast in his account that the appellants were the ones who killed Romeleo. Also, both the trial court and the appellate court had several opportunities of taking a hard look at the records of the case considering the motions for reconsideration filed by the appellants. Both the CA and the RTC found beyond reasonable doubt that the appellants were indeed the authors of the crime.

The prosecution satisfactorily established that appellants conspired with each other in killing Romeleo.

We are not persuaded by the contention of the appellants that there was no conspiracy considering that they were in different areas of the NAIA premises when the crime took place. As correctly held by the CA:

At bar, appellants claimed that they were either at the NAIA parking lot or were at the adjacent IID-NAIA office when the crime took place. These places, however, are but a short distance away from the scene of the crime and one could travel to and from these points in a little over a few seconds or minutes of leisure walking, as readily admitted by appellants in their own version of the event. Verily, the possibility of appellants to be at the scene of the crime at the time of its commission, is thus not farfetched.15

Besides, it is not required for conspiracy to exist that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused had the same purpose and were united in its execution. Direct proof of such agreement is not necessary. It may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused which point to a joint purpose and design, concerted action and community of interest.16

This community of design is present among the appellants as deduced from their individual acts. The RTC observed thus:

The act of the accused Elmer Salvador, Neil Baluyot y Tabisora, and Richard Delos Trino y Sarcilla of boxing the victim on the stomach and the act of accused Herminio Jose who said tapusin na natin ito together with the act of accused Neil Baluyot of handing a tale or cord to Elmer Salvador who thereafter twisted the cord which was around the neck of the victim with a piece of wood with the help of accused Mutalib Abdulajid who up to the present remained at large, all acts of which were done in the presence of all the accused namely: Neil Baluyot y Tabisora, Richard Delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz, Marcelo Bustamante y Zapanta, Carlito Lingat y Damaso and Elmer Salvador (including the accused who is at large) clearly show that all accused conspired, confederated and helped one another in murdering the victim with abuse of superior strength by strangling and hanging the

victim Romeleo Quintos causing him to die of asphyxia. In conspiracy, the act of one is the act of all.

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Likewise, the act of accused Carlito Lingat y Damaso and Edwin Soriano y Dela Cruz of not coming to the hospital to give the medical clerk the name and circumstances of the victim including the facts surrounding the victims death is very suspicious indeed and is contrary to the SOP of officers who bring victims to the hospital. Also the failure of all the accused to immediately report to the police investigator of Pasay City is quite unusual. In the same manner the acts of accused Neil Baluyot y Tabisora, Herminio Jose y Mozon and Richard Delos Trino y Sarcilla of leaving the IID office and cell which is the scene of the crime and then going to Bian and to Atty. Augusto Jimenez is quite unusual for persons who professed innocence.17

Moreover, the doctrine is well settled that conspiracy need not be proved by direct evidence but may be proven through the series of acts done by each of the accused in pursuance of their common unlawful purpose. For collective responsibility among the accused to be established, it is sufficient that at the time of the aggression, all of them acted in concert, each doing his part to fulfill their common design to kill the victim.18

The CA correctly observed that:

A fortiori, appellants should be held liable for the death of Romeleo Quintos. Their sequential attack, one after another, revealed their unlawful intent to kill the victim. Herminio Joses utterances of "tapusin na natin ito" only strengthens the link that binds the acts of the appellants in their coordinated effort to kill Romeleo. x x x19

The circumstance of abuse of superior strength qualified the killing to murder.

There is likewise no merit to appellants contention that they should only be held liable for homicide, and not for murder, because the qualifying circumstance of abuse of superior strength was not specifically alleged in the Information.

Contrary to the assertion of the appellants, the Information specifically alleged that the appellants were

x x x conspiring and confederating with one another, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously tie a plastic nylon cord around the neck of one Romeleo A. Quintos, and hang him at the end portion of the detention cell, which caused the instantaneous death of said Romeleo A. Quintos to the damage and prejudice of the heirs of said victim.

It has been satisfactorily established that Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all members of the PNP assigned with the IID-NAIA, while Salvador and Mutalib were security guards of the Lanting Security Agency assigned at NAIA. The eight of them acted in concert and definitely took advantage of their superior strength in subduing and killing their lone victim who was unarmed. Thus, all the appellants must be held liable for the crime of murder.

All told, appellants miserably failed to show convincing reasons to overturn the Decision of both the trial court and the CA. In this case, the CA ascertained the factual findings of the trial court to be supported by proof beyond reasonable doubt which led to the conclusion that appellants acted in unison in killing Romeleo. It is worthy to stress that findings of fact of the CA, especially if they affirm factual findings of the trial court, will not be disturbed by this Court, unless these findings are not supported by evidence.20

The liabilities of Carlito Lingat and Mutalib Abdulajid

It has not escaped our notice that Abdulajid was not arraigned and remains at large up to this time. However, in the Decision of the trial court which was affirmed by the CA, Abdulajid was likewise found guilty as charged. This is erroneous considering that

without his having been arraigned, the trial court did not acquire jurisdiction over his person.

As regards Lingat, his death pending appeal and prior to the finality of conviction extinguished his criminal and civil liabilities.21 Moreover, the death of Lingat would result in the dismissal of the criminal case against him.22

Damages

We note that both the trial court and the CA awarded the heirs of the victim only the amount of P50,000.00 as civil indemnity. In line with prevailing jurisprudence,23 we also award the amount of P50,000.00 as moral damages. Further, we also award the amount of P25,000.00 as exemplary damages pursuant to our ruling in People v. Angeles24 where we held that "under Article 2230 of the Civil Code, exemplary damages may be awarded in criminal cases when the crime was committed with one or more aggravating circumstances, (in this case, abuse of superior strength). This is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct. The imposition of exemplary damages is also justified under Article 2229 of the Civil Code in order to set an example for the public good." In addition, and in lieu of actual damages, we also award temperate damages in the amount of P25,000.00.25

Likewise, we note that both the trial court and the CA overlooked the fact that during the testimony of Clementina Quintos, the mother of the victim, sufficient evidence was presented to show that the victim before his untimely death, was gainfully employed in a private company with a monthly salary of P15,000.00.

Fiscal Barrera:

Q Would you describe Romeleo Quintos prior to his death?

A He was gainfully employed. He is an executive at IPC (International product Corporation), Makati as operation officer.

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Q How much was your son Romeleo Quintos receiving as operation officer at IPC?

A P15,000.00, sir, monthly.

Q Do you have any evidence to show that he earn Five Thousand pesos [sic] (P15,000.00) a month as project engineer?

A Yes, sir.

Fiscal Barrera:

May I request that the Certification dated January 22, 1999 issued by IPC be marked as Exh. "EEE"; the name appearing thereat that Romeleo Quintos has been an employee of IPC from January 8, 1997 up to June 1, 1997 with the position of operation officer with monthly salary of P15,000.00 x x x be marked as Exh. "EEE-1" and the signature of a person who issued the certification be marked as Exh. "EEE-2".26

The formula27 for unearned income is as follows:

Life Expectancy x [Gross Annual Income (GAI) less Living Expenses (50% GAI)]

Where Life Expectancy= 2/3 x (80 age of the deceased)

Article 2206 of the Civil Code provides:

Art. 2206. That amount of damages for death caused by a crime or quasi-delict shall be at least Three Thousand Pesos, even though there may have been mitigating circumstances. In addition:

(1) the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter, such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the accused, had no earning capacity at the time of his death;

xxxx

Hence, the testimony of the victims mother that Romeleo was earning P15,000.00 per month is sufficient basis for an award of damages for loss of earning capacity.1avvphi1

It is well settled that the factors that should be taken into account in determining the compensable amount of lost earnings are: (1) the number of years for which the victim would otherwise have lived; (2) the rate of loss sustained by the heirs of the deceased.

The unearned income of Romeleo is computed as follows: Unearned Income = = = = = 2/3 (80 3028) [(P15,000.00 x 12) (P15,000.00 x 12)]

2/3 (50) (P180,000.00 P90,000.00)

2/3 (50) (P90,000.00) 9,000,000.00/3 P 3,000,000.00

WHEREFORE, the July 19, 2005 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00665 is MODIFIED. Appellants Neil Baluyot, Richard Delos Trino, Herminio Jose, Edwin Soriano, Marcelo Bustamante, and Elmer Salvador, are hereby found guilty beyond reasonable doubt of the crime of Murder and are sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Romeleo Quintos the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages, P25,000.00 as exemplary damages, and P3,000,000.00 as lost income. In view of the death of Carlito Lingat pending appeal and prior to the finality of his conviction, Criminal Case No. 98-0547 is DISMISSED and the appealed Decision is SET ASIDE insofar as Carlito Lingat is concerned. Insofar as Mutalib Abdulajid is concerned, the March 17, 2000 Decision of the Regional Trial Court of Pasay City, Branch 109 in Criminal Case No. 98-0547 is NULLIFIED for failure of the trial court to acquire jurisdiction over his person. Consequently, the appealed July 19, 2005 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00665 is likewise SET ASIDE insofar as Mutalib Abdulajid is concerned.

SO ORDERED.

G. R. No. 156747. February 23, 2005

ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., and ALFIE LORENZO, Petitioners, vs. THE PEOPLE OF THE PHILIPPINES and JOSELITO TRINIDAD, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the Decision[1] dated 22 March 2002 and Resolution dated 6 January 2003 of

the Court of Appeals in CA-G.R. CR No. 22067 entitled, 'People of the Philippines v. Alfie Lorenzo, et al.

The factual antecedents are as follows:

In an Information dated 10 July 1997, Alfie Lorenzo, Allen Macasaet, Nicolas Quijano, Jr., and Roger Parajes, columnist, publisher, managing editor, and editor, respectively of the newspaper 'Abante were charged before the Regional Trial Court (RTC) of Quezon City, with the crime of libel. The information, which was raffled off to Branch 93 of said court, reads:

The undersigned accuses ALFIE LORENZO, ALLEN MACASAET, NICOLAS QUIJANO JR., ROGER B. PARAJES and JORDAN CASTILLO, of the crime of LIBEL, committed as follows:

That on or about the 13th day of July, 1996 in Quezon City, Philippines, the said accused ALFIE LORENZO, columnist, ALLEN MACASAET, publisher, NICOLAS QUIJANO JR., managing editor, ROGER B. PARAJES, editor, respectively of 'Abante a newspaper of general circulation in the Philippines, and JORDAN CASTILLO, conspiring, confederating together and mutually helping one another, with evident intent of exposing JOSELITO MAGALLANES TRINIDAD, a.k.a. JOEY TRINIDAD a.k.a. TOTO TRINIDAD to public hatred, dishonor, discredit and contempt and ridicule, did, then and there willfully, unlawfully and feloniously and maliciously write, publish, exhibit and circulate and/or cause to be written, published, exhibited and circulated in the aforesaid newspaper, in its issue of July 13, 1996 an article which reads as follows:

Humarap sa ilang reporters si Jordan Castillo hindi para magkaroon ng writeups kundi para ituwid lang ang ilang bagay na baluktot at binaluktot pang lalo ng isang Toto Trinidad.

Hindi namin naging barkada si Joey Trinidad. Bah, Toto na pala siya ngayon. Anong palagay niya sa sarili niya, si Direk Toto Natividad siya? Nakikibuhat lang talaga yang taong 'yan sa amin sa Liberty Ave. noon. Ni hindi nga pinapansin ni Tito Alfie 'yan dahil

nga sa amoy-pawis siya pagkatapos mag-barbell. Kami naka-shower na, si Joey punas lang nang punas sa katawan niya ng T-shirt niyang siya ring isusuot niya pagkatapos na gawing pamunas!

Madalas ngang makikain sa amin yan noon. Galit na galit nga ang mayordoma naming si Manang Hilda noon dahil nagkukulang ang rasyon namin dahil dagdag pakainin nga yang si Joey. Tamang-tama nga lang sa amin ang kanin at ulam, pero sinusugod pa niya ang kaldero para magkayod ng natitirang tutong sa kaldero. Naaawa nga ako madalas diyan kaya sineshare ko na lang ang pagkain ko sa kanya.

Ewan ko kung anong naisipan ng taong 'yan at pagsasalitaan pa niya ng masama si Tito Alfie. Hindi man lang siya tumanaw ng utang na loob na kahit konti at kahit na sandali ay naitawid ng gutom niya. Hindi ko alam kung may kunsenya pa ang gangyang klaseng tao, pero sana naman ay makunsensya ka, Pare!

Madalas nga itinatago ka na nga namin ni Tito Alfie para hindi mahighblood sa iyo, ganyan pa ang gagawin mo. Napupuyat nga si Manang Hilda sa pagbabantay sa iyo at hindi makatulog ang matanda hanggat hindi ka pa umuuwi, magsasalita ka pa ng mga inimbento mo. Pati nga si Eruel ay madalas mabanas sa iyo, natatandaan mo pa ba, dahil sa kakulitan mo! Pilit mo kaming binubuyo na sabihin kay Tito Alfie na tulungan ka rin tulad ng tulong na ibinibigay ni Tito Alfie na pag-aalaga sa amin. Pero hate na hate ka nga ni Tito Alfie dahil sa masamang ugali, natatandaan mo pa ba yun? Kaya tiyak ko na imbento mo lang ang lahat ng pinagsasabi mo para makaganti ka kay Tito Alfie, ani Jordan sa mga nag-interbyu sa kanyang legitimate writers.

Hindi na siguro namin kailangan pang dagdagan ang mga sinabi ng sinasabi ni Toto Trinidad na mga barkada niya at kapwa niya kuno Liberty Boys!

thereby publicly imputing a crime, vice or defect, real or imaginary or an act, omission, condition, status or circumstance and causing in view of their publication, discredit and contempt upon the person of said JOSELITO MAGALLANES TRINIDAD a.k.a. JOEY TRINIDAD a.k.a. TOTO TRINIDAD, to his damage and prejudice.[2]

In an Order dated 16 July 1997, Judge Apolinario D. Bruselas, Jr., presiding judge of RTC, Branch 93, Quezon City, set the arraignment of the petitioners on 27 August 1997.[3]

On 22 August 1997, petitioners filed before the court a quo an Urgent Motion to Suspend Arraignment and/or Defer Proceedings dated 21 August 1997 claiming that they intended to elevate the adverse Resolution of the Office of the City Prosecutor of Quezon City to the Department of Justice (DOJ) for review. Despite this motion, the scheduled arraignment of petitioners pushed through on 27 August 1997. During said proceeding, petitioners Lorenzo and Quijano, Jr., together with their co-accused Parajes and Castillo, refused to enter any plea and so the trial court ordered that a plea of not guilty be entered into the records on their behalf.[4] As for petitioner Macasaet, his arraignment was rescheduled to 20 October 1997 due to his failure to attend the previously calendared arraignment.

On 12 September 1997, petitioners filed a Motion to Dismiss the libel case on the ground that the trial court did not have jurisdiction over the offense charged. According to petitioners, as the information discloses that the residence of private respondent was in Marikina, the RTC of Quezon City did not have jurisdiction over the case pursuant to Article 360 of the Revised Penal Code, to wit:

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense [5] (Emphasis supplied.)

Subsequently, on 23 September 1997, the trial court received by way of registered mail, petitioners' Motion for Reconsideration and to Withdraw Plea dated 3 September 1997.[6] Petitioners argued therein that the trial court committed grave error when it denied the petitioners' Urgent Motion to Suspend Arraignment and/or Defer Proceedings and continued with the scheduled arraignment on 27 August 1997. According to petitioners and their co-accused, by the trial judge's denial of their Urgent Motion to Defer Arraignment and/or Defer Proceedings, he had effectively denied them their right to obtain relief from the Department of Justice. Moreover, banking on the case

of Roberts, et al. v. Court of Appeals, [7] the petitioners and their fellow accused contended that since they had already manifested their intention to file a petition for review of the Resolution of the city prosecutor of Quezon City before the DOJ, it was premature for the trial court to deny their urgent motion of 21 August 1997. Finally, petitioners and their co-accused claimed that regardless of the outcome of their petition for review before the DOJ, the withdrawal of their 'not guilty pleas is in order as they planned to move for the quashal of the information against them.

In an Order dated 26 September 1997,[8] Judge Bruselas, Jr., ruled that 'with the filing of the 'Motion to Dismiss, the court considers the accused to have abandoned their 'Motion for Reconsideration and to Withdraw Plea and sees no further need to act on the same.

In his Opposition to the Motion to Dismiss dated 23 September 1997,[9] the public prosecutor argued that the RTC, Quezon City, had jurisdiction over the case. He maintained that during the time material to this case, private respondent (private complainant below) was a resident of both 28-D Matino St. corner Malumanay St., Sikatuna Village, Quezon City and Karen St., Paliparan, Sto. Nio, Marikina, Metro , as shown in his Reply-Affidavit of 11 October 1996 filed during the preliminary investigation of the case.

For their part, the petitioners and their co-accused countered that it was incorrect for the public prosecutor to refer to the affidavit purportedly executed by private respondent as it is 'axiomatic that the resolution of a motion to quash is limited to a consideration of the information as filed with the court, and no other. Further, as both the complaint-affidavit executed by private respondent and the information filed before the court state that private respondent's residence is in Marikina City, the dismissal of the case is warranted for the rule is that jurisdiction is determined solely by the allegations contained in the complaint or information.[10]

On 16 October 1997, petitioners and their fellow accused filed a Supplemental Reply[11] attaching thereto certifications issued by Jimmy Ong and Pablito C. Antonio, barangay captains of Barangay Malaya, Quezon City and Barangay Sto. Nio, Marikina City, respectively. The pertinent portion of the barangay certification[12] issued by Barangay Captain Ong states:

This is to certify that this office has no record on file nor with the list of registered voters of this barangay regarding a certain person by the name of one MR. JOSELITO TRINIDAD.

This further certifies that our BSDO's (have) been looking for said person seeking information regarding his whereabouts but to no avail.

On the other hand, the certification[13] issued by Barangay Captain Antonio, reads in part:

This is to certify that JOSELITO TRINIDAD of legal age, single/married/separate/widow/widower, a resident of Karen Street, Sto. Nio, Marikina City is a bonafide member of this barangay.

...

This is being issued upon request of the above-named person for 'IDENTIFICATION.

During the hearing on 20 October 1997, the trial court received and marked in evidence the two barangay certifications. Also marked for evidence were page 4 of the information stating the address of private respondent to be in Marikina City and the editorial box appearing in page 18 of Abante indicating that the tabloid maintains its editorial and business offices at Rm. 301/305, 3/F BF Condominium Bldg., Solana cor. A. Soriano Sts., Intramuros, . The prosecution was then given five (5) days within which to submit its comment to the evidence submitted by the petitioners and their fellow accused.

In his Rejoinder to Supplemental Reply,[14] private respondent contended that the certification issued by the barangay captain of Barangay Malaya was issued after he had already moved out of the apartment unit he was renting in Sikatuna Village, Quezon

City; that owners of residential houses do not usually declare they rent out rooms to boarders in order to avoid payment of local taxes; and that there is no showing that a census was conducted among the residents of Barangay Malaya during the time he resided therein.

As regards the certification issued by the barangay chairman of Sto. Nio, Marikina City, private respondent argued that it is of judicial notice that barangay and city records are not regularly updated to reflect the transfer of residence of their constituents and that a perusal of said certification reveals that the barangay captain did not personally know him (private respondent). Finally, private respondent claimed that his receipt of the copy of petitioners' Appeal to the DOJ, which was sent to his alleged address in Sikatuna Village, Quezon City, proved that he did, in fact, reside at said place.

On 24 November 1997, the trial court rendered an Order dismissing the case due to lack of jurisdiction.[15] The court a quo noted that although the information alleged the venue of this case falls within the jurisdiction of Quezon City, the evidence submitted for its consideration indicated otherwise. First, the editorial box of Abante clearly indicated that the purported libelous article was printed and first published in the City of . In addition, the trial court relied on the following matters to support its conclusion that, indeed, jurisdiction was improperly laid in this case: a) on page 4 of the information, the address of private respondent appeared to be the one in Marikina City although right below it was a handwritten notation stating '131 Sct. Lozano St., Barangay Sacred Heart, QC; b) the two barangay certifications submitted by the petitioners; and c) the Memorandum for Preliminary Investigation and Affidavit-Complaint attached to the information wherein the given address of private respondent was Marikina City.

On 03 December 1997, private respondent filed a motion for reconsideration[16] insisting that at the time the alleged libelous article was published, he was actually residing in Quezon City. According to him, he mistakenly stated that he was a resident of Marikina City at the time of publication of the claimed defamatory article because he understood the term 'address' to mean the place where he originally came from. Nevertheless, the error was rectified by his supplemental affidavit which indicated Quezon City as his actual residence at the time of publication of the 13 July 1996 issue of Abante.

On 22 January 1998, private respondent filed a supplemental motion for reconsideration to which he attached an affidavit executed by a certain Cristina B. Del Rosario, allegedly the owner of the house and lot in Sikatuna Village, Quezon City, where private respondent supposedly lived from July 1996 until May 1997. She also stated in her affidavit that she was not aware of any inquiry conducted by the barangay officials of Barangay Malaya regarding the residency of private respondent in their locality.

Through an Order dated 12 February 1998, the trial court denied private respondent's motion for reconsideration, ruling thus:

[Del Rosario's ] affidavit appears to have been executed only on 19 January 1998 to which fact the court can only chuckle and observe that evidently said affidavit is in the nature of a curative evidence, the weight and sufficiency of which is highly suspect.[17]

Undaunted, the public and the private prosecutors filed a notice of appeal before the court a quo. [18] In the Decision now assailed before us, the Court of Appeals reversed and set aside the trial court's conclusion and ordered the remand of the case to the court a quo for further proceedings. The dispositive portion of the appellate court's decision reads:

WHEREFORE, in view of the foregoing, the Order dated November 24, 1997 of the Regional Trial Court, Branch 93, Quezon City, in Criminal Case No. Q-97-71903, dismissing the case filed against herein accused-appellees on the ground of lack of jurisdiction, is hereby RE VERS ED and SET ASIDE, and a new one entered remanding the case to the court a quo for further proceedings.[19]

The Court of Appeals held that jurisprudentially, it is settled that the 'residence of a person must be his personal, actual or physical habitation or his actual residence or abode and for the purpose of determining venue, actual residence is a person's place of abode and not necessarily his legal residence or domicile.[20] In this case, the defect appearing on the original complaint wherein the residence of private respondent was indicated to be Marikina City was subsequently cured by his supplemental-affidavit submitted during the preliminary investigation of the case. Moreover, as the amendment

was made during the preliminary investigation phase of this case, the same could be done as a matter of right pursuant to the Revised Rules of Court.[21]

As for the barangay certifications issued by the barangay chairmen of Barangay Malaya and Barangay Sto. Nio, the Court of Appeals ruled that they had no probative value ratiocinating in the following manner:

. . . With respect to the requirement of residence in the place where one is to vote, residence can mean either domicile or temporary residence (Bernas, The 1987 Constitution A Primer, 3rd Ed., p. 209). Therefore, one who is a resident of Quezon City can be a voter of Marikina if the latter is his domicile. Conversely, a person domiciled in Marikina can vote in Quezon City if he resides in the latter. It is just a matter of choice on the part of the voter. Thus, logic does not support the supposition that one who is not a registered voter of a place is also not a resident theref. Furthermore, the right to vote has the corollary right of not exercising it. Therefore, one need not even be a registered voter at all. The same principle applies to the certification issued by the barangay in Marikina.[22]

The appellate court likewise gave weight to the affidavit executed by Del Rosario and observed that petitioners failed to controvert the same.

The petitioners thereafter filed a motion for reconsideration which was denied by the Court of Appeals in a Resolution promulgated on 6 January 2003.[23]

Hence, this petition raising the following issues:

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE REGIONAL TRIAL COURT OF QUEZON CITY HAS TERRITORIAL JURISDICTION OVER THE CRIME CHARGED.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ADMITTING THE AFFIDAVIT OF CRISTINA B. DEL ROSARIO.

III

THE COURT OF APPEALS ERRED IN SUSTAINING RESPONDENT TRINIDAD'S PERSONALITY TO APPEAL A CRIMINAL CASE.[24]

Petitioners insist that the evidence presented before the trial court irrefutably established the fact that private respondent was not a resident of Quezon City at the time the alleged libelous publication saw print. According to them, the information dated 10 July 1997 filed before the RTC of Quezon City indicated private respondent's address to be in Karen St., Paliparan, Sto. Nio, Marikina City. Further supporting this claim were the affidavit-complaint[25] and the memorandum for preliminary investigation[26] where references were explicitly made to said address. Thus, petitioners are of the view that the Court of Appeals erred in relying on the supplemental affidavit executed by private respondent claiming that its execution amounted to nothing more than a mere afterthought.

In addition, petitioners argue that the appellate court erred when it took into account the affidavit executed by Del Rosario. They insist that its belated submission before the trial court and the prosecution's failure to present the affiant to testify as regards the veracity of her statements undermined the evidentiary value of her affidavit. More, as the affidavit was not formally offered as evidence, it was only proper that the trial court disregarded the same in dismissing the case.

Finally, petitioners contend that private respondent did not have the requisite personality to appeal from the decision of the trial court as it is only the Office of the Solicitor

General (OSG) which is authorized by law to institute appeal of criminal cases. Thus, the Court of Appeals made a mistake in holding that -

While it is true that only the OSG can file an appeal representing the government in a criminal proceeding, the private complainant nevertheless may appeal the civil aspect of the criminal case. The case at bar was dismissed due to the alleged improper laying of venue resulting in the alleged lack of jurisdiction of the trial court and not based on the merits of the case. It cannot therefore be argued that private complainant's appeal pertains to the merits of the criminal case as what happened in accused-appellees' cited case in the motion to strike, VicentePalu-ay vs. Court of Appeals (GR No. 112995, July 30, 1998). Needless to say, the private complainant has an interest in the civil aspect of the dismissed criminal case which he had the right to protect. In the interest of justice and fair play, therefore, the Brief filed by private complainant in the present case should be treated as pertaining only to the civil aspect of the case.[27]

In his Comment/Opposition dated 25 April 2003,[28] private respondent reiterated his position that the RTC of Quezon City had jurisdiction over this libel case. According to him, the affidavit executed by Del Rosario, the alleged owner of the house he leased in Sikatuna Village, Quezon City, established, beyond doubt, that he resided in said place during the time the claimed defamatory article appeared on the pages of Abante. In addition, he draws attention to the fact that petitioners and their co-accused furnished him a copy of the petition for review, filed before the DOJ, at the aforementioned address in Quezon City.

Anent the affidavit of Del Rosario, private respondent maintains that the prosecution exerted efforts to present the affiant before the trial court. Unfortunately, Del Rosario was out of town when she was supposed to be presented and so the public and the private prosecutors decided to submit for resolution their motion for reconsideration sans the affiant's testimony. Citing the case of Joseph Helmuth, Jr. v. People of the Philippines, et al.,[29] private respondent avers that this Court had previously admitted the affidavits of witnesses who were not presented during the trial phase of a case.

As regards the petitioners' contention that he (private respondent) did not have the personality to bring this case to the appellate level, private respondent contends that the

proper party to file the Notice of Appeal before the trial court is the public prosecutor as what happened in this case.

On its part, the OSG filed its Comment dated 07 July 2003[30] wherein it prayed for the dismissal of this petition based on the following: First, as the petition is concerned with the determination of the residence of private respondent at the time of the publication of the alleged libelous article, Rule 45 should be unavailing to the petitioners because this remedy only deals with questions of law.

Second, venue was properly laid in this case as private respondent's residency in Quezon City during the time material to this case was sufficiently established. The OSG claims that the errors appearing in the memorandum for preliminary investigation and in the affidavit complaint with regard to private respondent's residence were corrected through the supplemental affidavit private respondent executed during the preliminary investigation before the Quezon City prosecutor's office.

Third, the OSG takes the view that the public prosecutor was the proper party to file the notice of appeal before the trial court since its (OSG's ) office is only 'authorized to bring or defend actions on appeal on behalf of the People or the Republic of the Philippines once the case is brought before this Honorable Court of the Court of Appeals.

We find merit in the petition and therefore grant the same.

Jurisdiction has been defined as 'the power conferred by law upon a judge or court to try a case the cognizance of which belongs to them exclusively[31] and it constitutes the basic foundation of judicial proceedings.[32] The term derives its origin from two Latin words ' 'jus' meaning law and the other, 'dicere meaning to declare.[33] The term has also been variably explained to be 'the power of a court to hear and determine a cause of action presented to it, the power of a court to adjudicate the kind of case before it, the power of a court to adjudicate a case when the proper parties are before it, and the power of a court to make the particular decision it is asked to render.[34]

In criminal actions, it is a fundamental rule that venue is jurisdictional. Thus, the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.[35] In the case of Uy v. Court of Appeals and People of the Philippines, [36] this Court had the occasion to expound on this principle, thus:

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.[37]

The law, however, is more particular in libel cases. The possible venues for the institution of the criminal and the civil aspects of said case are concisely outlined in Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363. It provides:

Art. 360. Persons responsible. - . . .

The criminal action and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of , the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one

of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published.

In Agbayani v. Sayo, [38] we summarized the foregoing rule in the following manner:

1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published.

2. If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense.

3. If the offended party is a public officer whose office is in at the time of the commission of the offense, the action may be filed in the Court of First Instance of .

4. If the offended party is a public officer holding office outside of , the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.[39]

In the case at bar, private respondent was a private citizen at the time of the publication of the alleged libelous article, hence, he could only file his libel suit in the City of where Abante was first published or in the province or city where he actually resided at the time the purported libelous article was printed.

A perusal, however, of the information involved in this case easily reveals that the allegations contained therein are utterly insufficient to vest jurisdiction on the RTC of Quezon City. Other than perfunctorily stating 'Quezon City at the beginning of the information, the assistant city prosecutor who prepared the information did not bother to indicate whether the jurisdiction of RTC Quezon City was invoked either because Abante was printed in that place or private respondent was a resident of said city at the

time the claimed libelous article came out. As these matters deal with the fundamental issue of the court's jurisdiction, Article 360 of the Revised Penal Code, as amended, mandates that either one of these statements must be alleged in the information itself and the absence of both from the very face of the information renders the latter fatally defective. Sadly for private respondent, the information filed before the trial court falls way short of this requirement. The assistant city prosecutor's failure to properly lay the basis for invoking the jurisdiction of the RTC, Quezon City, effectively denied said court of the power to take cognizance of this case.

For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit:

In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action.[40]

Anent private respondent and OSG's contention that the supplemental affidavit submitted during the preliminary investigation of this libel suit cured the defect of the information, we find the same to be without merit. It is jurisprudentially settled that jurisdiction of a court over a criminal case is determined by the allegations of the complaint or information.[41] In resolving a motion to dismiss based on lack of jurisdiction, the general rule is that the facts contained in the complaint or information should be taken as they are.[42] The exception to this rule is where the Rules of Court allow the investigation of facts alleged in a motion to quash[43] such as when the ground invoked is the extinction of criminal liability, prescriptions, double jeopardy, or insanity of the accused.[44] In these instances, it is incumbent upon the trial court to conduct a preliminary trial to determine the merit of the motion to dismiss. As the present case obviously does not fall within any of the recognized exceptions, the trial court correctly dismissed this action.

In the assailed decision, the Court of Appeals likewise put premium on the affidavit executed by Del Rosario which was attached to private respondent's supplemental motion for reconsideration. According to the appellate court, said document 'supports private (respondent's ) claim that indeed, he was a resident of Quezon City at the time the alleged libelous article was published.[45] The pertinent provision of the Rules of Court, under Rule 10, Section 6 thereof, states:

Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.

By the very nature of a supplemental pleading, it only seeks to reinforce and augment the allegations contained in the principal pleading. It does not serve to supplant that which it merely supplements; rather, it ought to co-exist with the latter. Further, the admission of a supplemental pleading is not something that parties may impose upon the court for we have consistently held that its admittance is something which is addressed to the discretion of the court.[46]

Explicit in the aforequoted provision of the Rules of Court is the requirement that the contents of a supplemental pleading should deal with transactions, occurrences or events which took place after the date of the pleading it seeks to supplement. A reading of the supplemental motion for reconsideration filed by private respondent discloses no additional or new matters which transpired after he filed his original motion for reconsideration. The fact that he attached thereto the affidavit of his alleged lessor fails to persuade us into giving to said supplemental motion the same evidentiary value as did the Court of Appeals. For one, private respondent did not even bother to explain the reason behind the belated submission of Del Rosario's affidavit nor did he claim that he exerted earnest efforts to file it much earlier in the proceedings. He must, therefore, bear the consequences of his own lethargy.

Finally, we come to the issue of whether the private prosecutor and the public prosecutor had the personality to file the notice of appeal before the trial court.

Petitioners insist that the OSG should have been the one to file said notice in its capacity as the 'sole representative of the [g]overnment in the Court of Appeals in criminal cases.[47]

Under Presidential Decree No. 478, among the specific powers and functions of the OSG was to 'represent the government in the Supreme Court and the Court of Appeals in all criminal proceedings. This provision has been carried over to the Revised Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of the Philippines in all criminal cases. In such capacity, it only takes over a criminal case after the same has reached the appellate courts.[48]

The next question should then be: when does the jurisdiction of the trial court end and that of the Court of Appeals commence? Happily, the Revised Rules of Court is clear on this point. Rule 41, Section 9 of the Rules states that '(i)n appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.[49] When a party files a notice of appeal, the trial court's jurisdiction over the case does not cease as a matter of course; its only effect is that the appeal is deemed perfected as to him.[50] As explained by our former colleague, Justice Florenz Regalado '

. . . [I]n the meantime, the trial court still retains jurisdiction over the case. However, where all the parties have either thus perfected their appeals, by filing their notices of appeal in due time and the period to file such notice of appeal has lapsed for those who did not do so, then the trial court loses jurisdiction over the case as of the filing of the last notice of appeal or the expiration of the period to do so for all the parties. [51]

Applied to the case at bar, we deem it proper that the notice of appeal was filed by the private and the public prosecutors before the trial court. The Rules cannot be any clearer: until the filing of the last notice of appeal and the expiration of the period to perfect an appeal by all the parties, the lower court still has jurisdiction over the case. It is only after the occurrence of these two incidents when the jurisdiction of the Court of Appeals begins and at which time the OSG is supposed to take charge of the case on behalf of the government.

WHEREFORE, the petition is GRANTED. The Decision dated 22 March 2002 and Resolution dated 6 January 2003 of the Court of Appeals are hereby REVERSED and SET ASIDE and the 24 November 1997 Decision of the Regional Trial Court, Branch 93, Quezon City, dismissing Criminal Case No. Q-97-71903 is hereby REINSTATED. No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[G.R. No. 145498. January 17, 2005]

BENJAMIN LEE, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Petitioner is now before us on a petition for review under Rule 45 of the Rules of Court seeking the reversal of the Decision[1] of the Court of Appeals dated July 30, 1999, which affirmed the judgment of the Regional Trial Court, Branch 79, Quezon City (RTC) convicting him of violating Batas Pambansa Blg. 22 in Criminal Case No. Q-93-50094; and the Resolution[2] dated October 11, 2000, denying his motion for reconsideration.

The facts are as follows:

On October 4, 1993, an Information was filed against petitioner Dr. Benjamin F. Lee and a certain Cesar Al. Bautista, for violation of B.P. Blg. 22, which reads:

That on or about the 24th day of July 1993, in Quezon City, Philippines, the said accused, conspiring together, confederating with, and mutually helping each other, did then and there willfully, unlawfully and feloniously make or draw and issue to Rogelio G. Bergado to apply on account or for value United Coconut Planters Bank Check No. 168341 dated July 24, 1993 payable to the order of Rogelio G. Bergado in the amount of P980,000.00, Philippine Currency, said accused well knowing that at the time of issue they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Rogelio G. Bergado the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice.

CONTRARY TO LAW.[3]

Petitioner pleaded not guilty in his arraignment on February 1, 1995.[4] Presiding Judge Godofredo L. Legaspi noted in the assailed judgment that trial proceeded insofar only as petitioner is concerned, since accused Cesar Bautista is presently detained at Municipal Jail at Calapan, Mindoro where he has a pending case before the Metropolitan Trial Court (MTC), Calapan, Mindoro and despite several notices to the jail warden of Calapan, Mindoro, the latter failed to bring the person of said accused to this Court for arraignment.[5]

For the prosecution, private complainant Rogelio Bergado testified that: on July 19, 1992, he loaned Unlad Commercial Enterprises (Unlad for brevity), through its agent Norma Ilagan, the amount of P500,000.00 with an interest of 4% a month; on September 10, 1992, he loaned another P400,000.00 through Ilagan for the same interest rate; in exchange, he received a total of twenty-six checks, four of which were dishonored for the reason drawn against insufficient funds; he went to Calapan, Mindoro and talked to Bautista and the latter replaced the dishonored checks with United Coconut Planters Bank (UCPB) Check No. ARA 168341, signed by Bautista and herein petitioner dated July 24, 1993, in the amount of P980,000.00 representing the total amount loaned plus interests; when Bergado deposited the check at UCPB, the same was dishonored due to account closed; through his lawyer, he sent demand letters to Bautista and petitioner, who, despite having received the same still failed and

refused to make any payment. Upon cross-examination, Bergado admitted that he did not see or meet petitioner prior to July 24, 1993 nor did he go to Calapan, Mindoro to check the existence of Unlad prior to lending it the amount of P900,000.00.[6]

The prosecution also presented Zenaida[7] Katigbak, Branch Operations Officer of UCPB Araneta Avenue, Quezon City, who testified that Bautista and petitioner are the authorized signatories of Current Account No. 130-000406-2, against which the check subject of the present criminal case was issued; and that the account was opened on August 22, 1988 and closed on January 31, 1992 due to mishandling of the account, i.e., a check was previously issued against it without sufficient funds.[8]

The prosecution presented UCPB Check No. ARA 168341,[9] UCPB Check Return Slip dated August 5, 1993 stating that Check No. ARA 168341 was returned unpaid due to account closed;[10] a demand letter addressed to petitioner dated August 9, 1993;[11] registry return slip;[12] a copy of the complaint affidavit of private complainant;[13] signature card of the current account of petitioner and Bautista at UCPB;[14] and the bank statement of the current account of petitioner and Bautista dated January 31, 1992 reflecting that said account has been closed on said date.[15]

For the defense, petitioner testified that: it is Bautista who is the sole owner of Unlad; he knew Bautista and became his compadre because of Bautistas wife who was his employee; he does not know anything about the check issued by Bautista in favor of Bergado nor did he receive any amount from Bergado or any other person; he agreed to open an account with Bautista in 1988 because Bautista promised to give him 5% interest from the proceeds of loans that will be made in favor of other people from said account; before July of 1989, Bautista also asked him to sign several checks in exchange for 2.5% interest a month from the proceeds of loan to be made in favor of other people; after July 1989, he terminated his accommodation arrangement with Bautista after learning that Bautista was also giving 5% interest to other investors without any accommodation agreement; he asked for the checks he previously signed but Bautista refused to return them saying that he did not have them anymore; and inspite of these, he continued investing in Bautistas business in the amount of more than P500,000.00.[16]

On cross-examination, petitioner admitted that he signed several checks in blank on different occasions; that he was the one who asked and insisted that Bautista execute Exhs. 1 and 2, affidavits of Bautista stating that Unlad shall be Bautistas sole responsibility; and that despite having severed his relationship with Bautista in July of 1989, he did not inform UCPB Araneta, Quezon City branch of such fact and he continued investing in Unlad, from July 1989 to April 1994.[17]

To bolster his claim, petitioner presented: an affidavit executed by Bautista dated May 31, 1993 stating that Bautista is the sole proprietor of Unlad and that any business transaction entered into by Unlad shall be Bautistas personal responsibility;[18] an affidavit executed by Bautista on June 4, 1990, stating that petitioner is no longer connected with Unlad and that petitioner should not be held liable regarding any transaction entered into by Unlad after July 1989 since petitioner is no longer a signatory;[19] a business permit issued by the Municipality of Calapan certifying that Bautista has been granted a permit to operate a general merchandise;[20] a certification from the Department of Trade and Industry, Oriental Mindoro Provincial Office stating that Unlad is registered in the name of Cesar Bautista and/or Placer Bautista;[21] orders of attachment issued by the Regional Trial Court of Oriental Mindoro on the properties of Bautista and petitioner;[22] and checks issued by Bautista in favor of petitioner and his wife Amelia Lee.[23]

On July 22, 1997, the RTC promulgated its decision, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered in this case finding accused Benjamin Lee guilty beyond reasonable doubt of Violation of Batas Pambansa Blg. 22 and accordingly sentences him to suffer an imprisonment of one (1) year of prision correccional, and to pay the offended party P980,000.00 and to pay a fine of P200,000.00 with subsidiary imprisonment in case of insolvency and non-payment of the fine by the accused.

SO ORDERED.[24]

Petitioner went to the Court of Appeals which modified the trial courts judgment, thus:

WHEREFORE, the Decision is hereby MODIFIED by imposing a penalty of one (1) year and for the accused to pay the private party the sum of Nine Hundred Eighty Thousand Pesos (P980,000.00) as civil indemnity.

With cost against the accused.

SO ORDERED.[25]

Petitioners motion for reconsideration was denied on October 11, 2000.

Hence, the present petition with the following assignment of errors:

1. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF LAW IN DISREGARDING PETITIONERS DEFENSE THAT HE HAD ALREADY SEVERED, SINCE JULY 1989, HIS ACCOMODATION ARRANGEMENT WITH HIS CO-ACCUSED BAUTISTA WHO WAS SOLELY RESPONSIBLE FOR ALL THE TRANSACTIONS ENTERED INTO BY UNLAD COMMERCIAL ENTERPRISES AND THEREFORE PETITIONER HAD NO KNOWLEDGE OF THE SUFFICIENCY OR INSUFFICIENCY OF FUNDS OF UNLADS BANK ACCOUNT.

2. THE COURT A QUO HAS DECIDED IN (A) WAY NOT IN ACCORD WITH LAW IN FAILING TO RULE THAT THE SUBJECT CHECK, UCPB CHECK NO. ARA 168341, WAS NOT ISSUED BY PETITIONER TO PRIVATE COMPLAINANT ON ACCOUNT OR FOR VALUE.

3. THE COURT A QUO COMMITTED AN ERROR OF LAW WHEN IT FAILED TO CONSIDER THAT AT THE TIME THE SUBJECT CHECK WAS ISSUED BY BAUTISTA IN FAVOR OF PRIVATE COMPLAINANT, THE LATTER WAS ALREADY AWARE THAT THE RESPECTIVE ESTATES OF THE ACCUSED WERE ALREADY ATTACHED BY THE REGIONAL TRIAL COURT OF CALAPAN, ORIENTAL MINDORO.

4. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF FACT AND LAW IN NOT ACQUITTING PETITIONER ON GROUND OF REASONABLE DOUBT.

5. THE COURT A QUO AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW WHEN THEY FAILED TO DISMISS THE INFORMATION FOR VIOLATION OF B.P. 22 AGAINST THE ACCUSED FOR LACK OF JURISDICTION.[26]

In support of his first assigned error, petitioner claims that: he had no actual knowledge of the sufficiency or insufficiency of the funds handled by his co-accused Bautista; while it is true that he opened a joint account with Bautista at UCPB Araneta Avenue, Quezon City and that he signed several UCPB checks in blank to accommodate Bautista, he already severed his accommodation arrangement with Bautista as early as July of 1989; this is evidenced by the affidavits executed by Bautista dated June 4, 1990 and May 31, 1993 which the court a quo ignored; the Court of Appeals erroneously held that the affidavits of Bautista are self-serving since there was no showing that Bautista was lying when he made the statements therein; also, the declarant in this case is Bautista and not petitioner, thus the principle of self-serving statements cannot apply; the affidavits of Bautista are declarations against the interest of the person making it, which are admissible notwithstanding their hearsay character, since such declarations are relevant to the case and the declarant is not available as a witness despite efforts of petitioner to present Bautista in court; the true test of the reliability of the declaration is not whether it was made ante litem motam as in this case but whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify; also, the affidavits of Bautista, having been acknowledged before a notary public, should be given evidentiary weight.[27]

Petitioner also points out that in Lao vs. Court of Appeals[28] the Court held that if knowledge of the insufficiency of funds is proven to be actually absent or non-existent, the accused should not be held liable for the offense defined under Sec. 1 of B.P. Blg. 22; in said case, petitioner was acquitted, even though she was still connected with the corporation at the time of the issuance of the check, since she was not expected or obliged to possess under the organizational structure of the corporation, knowledge of the insufficiency of funds; and that in the case at bar, the court a quo affirmed the conviction of petitioner even though it was established that he had ceased to be connected with co-accused Bautistas business for more than three years prior to the

issuance of the subject check and even though it was clear from the testimony of private complainant himself that he had dealt with Bautista and Ilagan only.[29]

Anent the second and third assigned errors, petitioner argues that: in the case at bar, there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 since petitioner was no longer connected with Unlad or Bautista starting July of 1989; when Bautista issued the subject check to Bergado on July 24, 1993, Bautista had no more authority to use petitioners pre-signed checks thus there was no consideration to speak of; petitioner was deceived by Bautista into believing that all the pre-signed checks were already used or issued as of 1989; the court a quo should not have presumed that when petitioner signed the checks and handed the same to Bautista, petitioner had knowledge that their account had no funds; in all criminal cases, suspicion, no matter how strong cannot sway judgment; even assuming that petitioner had issued the subject check when he signed the same sometime before July 1989 and that he had an undertaking to whoever would be the payee, still petitioner should be exempted from criminal liability since petitioner could not comply with the said undertaking due to an insuperable cause, i.e., as early as June 18, 1993, all the properties of petitioner had already been attached/garnished by the Regional Trial Court of Oriental Mindoro.[30]

Petitioner further argues that: private complainant is not a holder in due course because he knew that the account of Bautista and petitioner with UCPB Araneta branch had been closed at the time that he deposited UCPB Check No. ARA 168341 on August 5, 1993; Check No. ARA 374058 in the amount of P500,000.00, which bounced earlier, was drawn from the same UCPB account of Bautista and petitioner which had already been closed by the UCPB on January 31, 1992;[31] private complainant also had knowledge that the respective estates of both accused were already attached by the RTC at the time the subject check was given to him by Bautista since the first order of attachment was issued on June 18, 1993 and was recorded with the Registry of Deeds of Oriental Mindoro on the same date; applying the principle that registration of instrument is notice to the world, Bergado is presumed to know the various orders of attachment/garnishment issued by the court.[32]

As to his fourth assigned error, petitioner argues that: the prosecution failed to prove his guilt beyond reasonable doubt; the prosecution failed to rebut the allegation of petitioner that he was not anymore connected with the business of Bautista and therefore he had

no knowledge of the insufficiency of the funds handled by Bautista; and the prosecution and the trial court relied solely on the authenticity of petitioners signature on the subject check which fact is not enough to convict petitioner of the offense charged.[33]

Finally, anent his fifth assigned error, petitioner claims that the Regional Trial Court which tried and convicted petitioner had no jurisdiction over violations of B.P. Blg. 22 considering that the penalty therefor is imprisonment of thirty days to one year and/or a fine not less than, and not more than double, the amount, but not to exceed P200,000.00; and that at the time the Information was filed on October 4, 1993, violations of B.P. Blg. 22 fell under the jurisdiction of the MTC in view of Sec. 32 (2) of B.P. Blg. 129 which provides that the MTC has exclusive original jurisdiction over all offenses punishable with imprisonment of not more than four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment, regardless of other imposable accessory or other penalties including the civil liability arising from such offenses or predicated thereon, irrespective of kin, nature, value or amount thereof.[34]

In his Comment, the Solicitor General contends that: the mere fact that petitioner was a signatory to the check makes him solidarily liable with his co-signatory; if it is true that petitioner severed his accommodation arrangement with Bautista as early as July of 1989, he should have informed the UCPB Araneta Avenue, Quezon City branch that any check that would be issued bearing his signature and that of Bautista and drawn against their joint account after July of 1989 should no longer be honored; the affidavit of Bautista to the effect that petitioner should not be held answerable for any liability of Unlad after July 1989 is not admissible as Bautista was not presented in court nor the prosecution afforded any opportunity to test the veracity of his allegations; having failed to convincingly establish that petitioner has severed his accommodation arrangement with his co-accused Bautista, the presumption stands that he was aware that they no longer had sufficient funds at the time the check was issued; the presumption also stands that the check was issued on account or for value; petitioner also cannot claim that private complainant was aware that petitioner and Bautistas joint account was already closed at the time the subject check was issued and delivered to complainant since there is nothing on record to show that the reason for the non-payment of the checks earlier issued to complainant was due to account closed; Bergado claims that the earlier checks were dishonored due to lack of sufficient funds; there is also no merit to the argument of petitioner that private complainant was already aware that petitioner together with Bautista could no longer make good the subject check in view of the various writs of attachment issued by the court against their properties, which writs of attachment were duly recorded with the Register of Deeds; the registration of the

various writs of attachment affected only the real properties of petitioner and such registration served as warning to those who may have or intend to have dealings affecting such lands covered by the attachments; with regard to the attachment of their bank accounts, there was no showing that private complainant was aware of the same; there is also no merit to the claim of petitioner that his guilt was not proven beyond reasonable doubt; the prosecution was able to establish that petitioner, together with Bautista, issued the subject check to the complainant in payment of the money loaned by the latter to Unlad; the check bounced for the reason account closed and despite demand to make good the check, petitioner and his co-accused failed and refused to pay the complainant; and there is no merit to the claim of petitioner that the RTC had no jurisdiction over the present case following Sec. 32 (2) of B.P. Blg. 129 where it is provided that in order that the offense under the jurisdiction of Municipal Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts, the imposable penalty must not exceed four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment; in the case at bar, the imposable fine is way beyond the limit of P4,000.00 as the amount of the check is P980,000.00 thus the RTC had jurisdiction over the case.[35]

Simply stated, the issues that need to be resolved are as follows: (1) whether the RTC, which tried and convicted petitioner, has jurisdiction over the case; (2) whether petitioner had actual knowledge of the sufficiency or insufficiency of funds handled by his co-accused; (3) whether the check was issued on account or for value; (4) whether the private complainant, at the time of issuance, had knowledge that the check had no sufficient funds; and (5) whether the guilt of the accused was proven beyond reasonable doubt.

First issue. Whether the RTC, which tried and convicted petitioner, had jurisdiction over the case.

Petitioner claims that the RTC which tried and convicted him had no jurisdiction over violations of B.P. Blg. 22 since such jurisdiction is vested on the MTC in view of Sec. 32 (2) of B.P. Blg. 129.

We do not agree.

As clearly provided by Sec. 32 (2) of B.P. Blg. 129, to wit:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases.---Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

.....

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. (Emphasis supplied)

the MTC has exclusive jurisdiction over offenses punishable with imprisonment of not exceeding four years and two months, OR, a fine of not more than four thousand pesos or both such fine and imprisonment.

The Information in this case was filed on October 4, 1993.

On March 25, 1994, Republic Act No. 7691 took effect and amended Sec. 32 (2) of B.P. Blg. 129 to read as follows:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. --- Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:

.....

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. (Emphasis supplied)

Since the Information in the present case was filed prior to the amendment of R.A. No. 7691, the old rule governs and therefore, considering that the imposable penalty for violation of B.P. Blg. 22 per Section 1, thereof is imprisonment of not less than thirty days but not more than one year OR by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed P200,000.00, or both fine and imprisonment; and inasmuch as the fine imposable in the present case is more than P4,000.00 as the subject amount of the check is P980,000.00, it is the Regional Trial Court that has jurisdiction over the present case. As we held in People vs. Velasco:[36]

as a general rulethe jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of the institution of the action. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of a statute.

A perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivityAt the time the case against the appellant was commenced by the filing of the information on July 3, 1991, the Regional Trial Court had jurisdiction over the offense charged.

.....

In fine, the jurisdiction of the trial court (RTC) over the case of the appellant was conferred by the aforecited law then in force (R.A. No. 6425 before amendment) when the information was filed. Jurisdiction attached upon the commencement of the action and could not be ousted by the passage of R.A. No. 7691 reapportioning the jurisdiction of inferior courts, the application of which to criminal cases is, to stress, prospective in nature.[37]

Second issue. Whether petitioner had actual knowledge of the insufficiency of funds.

We have held that knowledge involves a state of mind difficult to establish, thus the statute itself creates a prima facie presumption that the drawer had knowledge of the insufficiency of his funds in or credit with the bank at the time of the issuance and on the checks presentment for payment if he fails to pay the amount of the check within five banking days from notice of dishonor.[38]

Sec. 2 of B.P. Blg. 22, provides:

Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

As a rule, the prosecution has a duty to prove all the elements of the crime, including the acts that give rise to the prima facie presumption. Petitioner, on the other hand, has a right to rebut such presumption. Thus, if such knowledge of insufficiency of funds is

proven to be actually absent or inexistent, the accused should not be held liable for the offense defined under the first paragraph of Sec. 1 of B.P. Blg. 22,[39] thus:

SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit or to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

....

In the present case, the prosecution has established the prima facie presumption of knowledge of petitioner of insufficient funds through the demand letter sent to petitioner, Exhibit C[40] which was duly received by petitioner as shown by the registry return receipt, Exhibit D.[41]

Petitioner tried to rebut the prima facie presumption by insisting that he is not an owner of Unlad and he has already severed his accommodation arrangement with Bautista as early as 1989. He argues that the affidavits of Bautista exonerating him from any responsibility as well as the private complainants own testimony that he never dealt with petitioner, should be given weight.

We are not persuaded.

It is a hornbook doctrine that unless the affiant himself takes the witness stand to affirm the averments in his affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.[42] The trial court and the Court of Appeals were correct in considering the same as hearsay evidence and in not giving probative weight to such affidavits.

Moreover, petitioner had admitted that he continued investing in Unlad until April 1994. Hence, he now cannot claim that he has completely severed his ties with Bautista as of 1989. With nothing but his bare assertions, which are ambiguous at best, petitioner has failed to rebut the prima facie presumption laid down by the statute and established by the prosecution.

Petitioners insistence that since he is not an owner of Unlad, he could not have had any knowledge as to the insufficiency of funds is devoid of merit. As clarified in Lao vs. Court of Appeals,[43] the very case petitioner is invoking, the doctrine that a mere employee tasked to sign checks in blanks may not be deemed to have knowledge of the insufficiency of funds applies only to corporate checks and not to personal checks.[44] In this case, what is involved is a personal and not a corporate check.

Worth mentioning also is the fact that in the Lao case, the notice of dishonor was never personally received by petitioner, thus the prima facie presumption of knowledge of insufficiency of funds never arose. Here, as correctly found by the RTC, petitioner was duly notified of the dishonor of the subject check as shown by Exh. C,[45] a letter, specifically mentioning that the subject check was dishonored for reason Account Closed, with the corresponding registry return receipt showing that petitioner received the notice on August 16, 1993 which petitioner did not impugn.[46]

Third issue. Whether or not the check was issued on account or for value.

Petitioners claim is not feasible. We have held that upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for

valuable consideration.[47] Valuable consideration, in turn, may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. It is an obligation to do, or not to do in favor of the party who makes the contract, such as the maker or indorser.[48]

In this case, petitioner himself testified that he signed several checks in blank, the subject check included, in exchange for 2.5% interest from the proceeds of loans that will be made from said account. This is a valuable consideration for which the check was issued. That there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 because petitioner was no longer connected with Unlad or Bautista starting July 1989, cannot be given merit since, as earlier discussed, petitioner failed to adequately prove that he has severed his relationship with Bautista or Unlad.

At any rate, we have held that what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. This is because the thrust of the law is to prohibit the making of worthless checks and putting them into circulation.[49]

Fourth issue. Whether the private complainant, at the time of issuance, had knowledge that the checks had no sufficient funds.

We have held that knowledge of the payee that the drawer did not have sufficient funds with the drawee bank at the time the check was issued is immaterial as deceit is not an essential element of the offense under B.P. Blg. 22.[50] This is because the gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof are inconsequential.[51]

In Yu Oh vs. Court of Appeals[52] the Court held that there is no violation of B.P. Blg. 22, if complainant was actually told by the drawer that he has no sufficient funds in the bank.[53] In the present case, since there is no evidence that a categorical statement was given to private complainant when the subject check was issued to him, the above ruling cannot apply.

Fifth issue. Whether the guilt of the accused was proved beyond reasonable doubt.

Petitioner maintains that the prosecution has failed to prove his guilt beyond reasonable doubt since the prosecution failed to rebut his allegation that he was not anymore connected with the business of Bautista and the trial court relied solely on the authenticity of petitioners signature on the subject check to convict him of the offense charged. We are not convinced.

Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law requires only moral certainty or that degree of proof which produces conviction in a prejudiced mind.[54]

After reviewing the entire records of this case, we find that there is no reason to depart from the trial courts judgment of conviction. The weight and quantum of evidence needed to prove the guilt of petitioner beyond reasonable doubt were met and established by the prosecution and correctly affirmed by the Court of Appeals.

However, in view of Supreme Court Administrative Circular No. 12-2000, as clarified by Administrative Circular No. 13-2001, establishing a rule of preference in the application of the penalties provided for in B.P. Blg. 22; and the recommendation of the Solicitor General in its Comment that the policy laid down in Vaca vs. Court of Appeals,[55] and Lim vs. People,[56] of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, be considered in favor of petitioner who is not shown to be a habitual delinquent or a recidivist,[57] we find that the penalty imposed by the Court of Appeals should be modified by deleting the penalty of imprisonment and imposing only a fine of P200,000.00.

An appeal in a criminal case throws the entire case for review and it becomes our duty to correct any error, as may be found in the appealed judgment, whether assigned as an error or not.[58] Considering that the civil aspect of the case is deemed instituted with the criminal case and considering that the trial court and the Court of Appeals failed to award, in their respective judgments, the interest on the amount due to private complainant, it is incumbent upon us to correct the patent error of the lower courts.

Private complainant is entitled to a 12% legal interest per annum from the date of finality of judgment.[59]

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the following MODIFICATIONS: The sentence of imprisonment is deleted. Instead, petitioner is ordered to pay a fine of P200,000.00, subject to subsidiary imprisonment in case of insolvency pursuant to Article 39 of the Revised Penal Code; and petitioner is ordered to pay the private complainant the amount of P980,000.00 with 12% legal interest per annum from the date of finality of herein judgment.

SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

G.R. No. 167304

August 25, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN (third division) and VICTORIA AMANTE, Respondents.

DECISION

PERALTA, J.:

Before this Court is a petition1 under Rule 45 of the Rules of Court seeking to reverse and set aside the Resolution2 of the Sandiganbayan (Third Division) dated February 28,

2005 dismissing Criminal Case No. 27991, entitled People of the Philippines v. Victoria Amante for lack of jurisdiction.

The facts, as culled from the records, are the following:

Victoria Amante was a member of the Sangguniang Panlungsod of Toledo City, Province of Cebu at the time pertinent to this case. On January 14, 1994, she was able to get hold of a cash advance in the amount of P71,095.00 under a disbursement voucher in order to defray seminar expenses of the Committee on Health and Environmental Protection, which she headed. As of December 19, 1995, or after almost two years since she obtained the said cash advance, no liquidation was made. As such, on December 22, 1995, Toledo City Auditor Manolo V. Tulibao issued a demand letter to respondent Amante asking the latter to settle her unliquidated cash advance within seventy-two hours from receipt of the same demand letter. The Commission on Audit, on May 17, 1996, submitted an investigation report to the Office of the Deputy Ombudsman for Visayas (OMB-Visayas), with the recommendation that respondent Amante be further investigated to ascertain whether appropriate charges could be filed against her under Presidential Decree (P.D.) No. 1445, otherwise known as The Auditing Code of the Philippines. Thereafter, the OMB-Visayas, on September 30, 1999, issued a Resolution recommending the filing of an Information for Malversation of Public Funds against respondent Amante. The Office of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, on April 6, 2001, prepared a memorandum finding probable cause to indict respondent Amante.

On May 21, 2004, the OSP filed an Information3 with the Sandiganbayan accusing Victoria Amante of violating Section 89 of P.D. No. 1445, which reads as follows:

That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused VICTORIA AMANTE, a high-ranking public officer, being a member of the Sangguniang Panlungsod of Toledo City, and committing the offense in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of SEVENTY-ONE THOUSAND NINETY-FIVE PESOS (P71,095.00), Philippine Currency, which she received by reason of her office, for which she is duty-bound to liquidate the same within the period required by law, with

deliberate intent and intent to gain, did then and there, wilfully, unlawfully and criminally fail to liquidate said cash advances of P71,095.00, Philippine Currency, despite demands to the damage and prejudice of the government in aforesaid amount.

CONTRARY TO LAW.

The case was raffled to the Third Division of the Sandiganbayan. Thereafter, Amante filed with the said court a MOTION TO DEFER ARRAIGNMENT AND MOTION FOR REINVESTIGATION4 dated November 18, 2004 stating that the Decision of the Office of the Ombudsman (Visayas) dated September 14, 1999 at Cebu City from of an incomplete proceeding in so far that respondent Amante had already liquidated and/or refunded the unexpected balance of her cash advance, which at the time of the investigation was not included as the same liquidation papers were still in the process of evaluation by the Accounting Department of Toledo City and that the Sandiganbayan had no jurisdiction over the said criminal case because respondent Amante was then a local official who was occupying a position of salary grade 26, whereas Section 4 of Republic Act (R.A.) No. 8249 provides that the Sandiganbayan shall have original jurisdiction only in cases where the accused holds a position otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989, R.A. No. 6758.

The OSP filed its Opposition5 dated December 8, 2004 arguing that respondent Amante's claim of settlement of the cash advance dwelt on matters of defense and the same should be established during the trial of the case and not in a motion for reinvestigation. As to the assailed jurisdiction of the Sandiganbayan, the OSP contended that the said court has jurisdiction over respondent Amante since at the time relevant to the case, she was a member of the Sangguniang Panlungsod of Toledo City, therefore, falling under those enumerated under Section 4 of R.A. No. 8249. According to the OSP, the language of the law is too plain and unambiguous that it did not make any distinction as to the salary grade of city local officials/heads.

The Sandiganbayan, in its Resolution6 dated February 28, 2005, dismissed the case against Amante, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed for lack of jurisdiction. The dismissal, however, is without prejudice to the filing of this case to the proper court.

The Motion for Reinvestigation filed by the movant is hereby considered moot and academic.

SO ORDERED.

Hence, the present petition.

Petitioner raises this lone issue:

WHETHER OR NOT THE SANDIGANBAYAN HAS JURISDICTION OVER A CASE INVOLVING A SANGGUNIANG PANLUNGSOD MEMBER WHERE THE CRIME CHARGED IS ONE COMMITTED IN RELATION TO OFFICE, BUT NOT FOR VIOLATION OF RA 3019, RA 1379 OR ANY OF THE FELONIES MENTIONED IN CHAPTER II, SECTION 2, TITLE VII OF THE REVISED PENAL CODE.

In claiming that the Sandiganbayan has jurisdiction over the case in question, petitioner disputes the former's appreciation of this Court's decision in Inding v. Sandiganbayan.7 According to petitioner, Inding did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. Petitioner adds that the enumeration in Section (a)(1) of P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249, which was made applicable to cases concerning violations of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code, equally applies to offenses committed in relation to public office.

Respondent Amante, in her Comment8 dated January 16, 2006, averred that, with the way the law was phrased in Section 4 of P.D. No. 1606, as amended, it is obvious that

the jurisdiction of the Sandiganbayan was defined first, enumerating the several exceptions to the general rule, while the exceptions to the general rule are provided in the rest of the paragraph and sub-paragraphs of Section 4. Therefore, according to respondent Amante, the Sandiganbayan was correct in ruling that the latter has original jurisdiction only over cases where the accused is a public official with salary grade 27 and higher; and in cases where the accused is public official below grade 27 but his position is one of those mentioned in the enumeration in Section 4(a)(1)(a) to (g) of P.D. No. 1606, as amended and his offense involves a violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code; and if the indictment involves offenses or felonies other than the three aforementioned statutes, the general rule that a public official must occupy a position with salary grade 27 and higher in order that the Sandiganbayan could exercise jurisdiction over him must apply. The same respondent proceeded to cite a decision9 of this Court where it was held that jurisdiction over the subject matter is conferred only by the Constitution or law; it cannot be fixed by the will of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties, neither is it conferred by acquiescence of the court.1avvphi1

In its Reply10 dated March 23, 2006, the OSP reiterated that the enumeration of public officials in Section 4(a)(1) to (a) to (g) of P.D. No. 1606 as falling within the original jurisdiction of the Sandiganbayan should include their commission of other offenses in relation to office under Section 4(b) of the same P.D. No. 1606. It cited the case of Esteban v. Sandiganbayan, et al.11 wherein this Court ruled that an offense is said to have been committed in relation to the office if the offense is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions.

The petition is meritorious.

The focal issue raised in the petition is the jurisdiction of the Sandiganbayan. As a background, this Court had thoroughly discussed the history of the conferment of jurisdiction of the Sandiganbayan in Serana v. Sandiganbayan, et al.,12 thus:

x x x The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the

highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.13

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.14

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. x x x

Specifically, the question that needs to be resolved is whether or not a member of the Sangguniang Panlungsod under Salary Grade 26 who was charged with violation of The Auditing Code of the Philippines falls within the jurisdiction of the Sandiganbayan.

This Court rules in the affirmative.

The applicable law in this case is Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. No. 8249. The alleged commission of the offense, as shown in the Information was on or about December 19, 1995 and the filing of the Information was on May 21, 2004. The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense.15 The exception contained in R.A. 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines. The last clause of the opening sentence of paragraph (a) of the said two provisions states:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

The present case falls under Section 4(b) where other offenses and felonies committed by public officials or employees in relation to their office are involved. Under the said provision, no exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense applies in this present case. Since the present case was instituted on May 21, 2004, the provisions of R.A. No. 8249 shall govern. Verily, the pertinent provisions of P.D. No. 1606 as amended by R.A. No. 8249 are the following:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers, and other city department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and Special Prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies, whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

The above law is clear as to the composition of the original jurisdiction of the Sandiganbayan. Under Section 4(a), the following offenses are specifically enumerated: violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code. In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter must be committed by, among others, officials of the executive branch occupying positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law. Particularly and exclusively enumerated are provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; city mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers , and other city department heads; officials of the diplomatic service occupying the position as consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP officers of higher rank; City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations. In connection therewith, Section 4(b) of the same law provides that other offenses or felonies committed by public officials and employees mentioned in subsection (a) in relation to their office also fall under the jurisdiction of the Sandiganbayan.

By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in relation to her office, falls within the original jurisdiction of the Sandiganbayan.

However, the Sandiganbayan, in its Resolution, dismissed the case with the following ratiocination:

x x x the ruling of the Supreme Court in the Inding case, stating that the Congress' act of specifically including the public officials therein mentioned, "obviously intended cases mentioned in Section 4 (a) of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, when committed by the officials enumerated in (1)(a) to (g) thereof, regardless of their salary grades, to be tried by the Sandiganbayan." Obviously, the Court was referring to cases involving violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code only because they are the specific cases mentioned in Section 4 (a) of P.D. No. 1606 as amended, so that when they are committed even by public officials below salary grade '27', provided they belong to the enumeration, jurisdiction would fall under the Sandiganbayan. When the offense committed however, falls under Section 4(b) or 4(c) of P.D. No. 1606 as amended, it should be emphasized that the general qualification that the public official must belong to grade '27' is a requirement so that the Sandiganbayan could exercise original jurisdiction over him. Otherwise, jurisdiction would fall to the proper regional or municipal trial court.

In the case at bar, the accused is a Sangguniang Panlungsod member, a position with salary grade '26'. Her office is included in the enumerated public officials in Section 4(a) (1) (a) to (g) of P.D. No. 1606 as amended by Section 2 of R.A. No. 7975. However, she is charged with violation of Section 89 of The Auditing Code of the Philippines which is not a case falling under Section 4(a) but under Section 4(b) of P.D. No. 1606 as amended. This being the case, the principle declared in Inding is not applicable in the case at bar because as stated, the charge must involve a violation of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code. Therefore, in the instant case, even if the position of the accused is one of those enumerated public officials under Section 4(a)(1)(a) to (g), since she is being prosecuted of an offense not mentioned in the aforesaid section, the general qualification that accused must be a public official occupying a position with salary grade '27' is a requirement before this Court could exercise jurisdiction over her. And since the accused occupied a public office with salary grade 26, then she is not covered by the jurisdiction of the Sandiganbayan.1avvphi1

Petitioner is correct in disputing the above ruling of the Sandiganbayan. Central to the discussion of the Sandiganbayan is the case of Inding v. Sandiganbayan16 where this Court ruled that the officials enumerated in (a) to (g) of Section 4(a)(1) of P. D. No. 1606, as amended are included within the original jurisdiction of the Sandiganbayan regardless of salary grade. According to petitioner, the Inding case did not categorically nor implicitly constrict or confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. This observation is true in light of the facts contained in the said case. In the Inding case, the public official involved was a member of the Sangguniang Panlungsod with Salary Grade 25 and was charged with violation of R.A. No. 3019. In ruling that the Sandiganbayan had jurisdiction over the said public official, this Court concentrated its disquisition on the provisions contained in Section 4(a)(1) of P.D. No. 1606, as amended, where the offenses involved are specifically enumerated and not on Section 4(b) where offenses or felonies involved are those that are in relation to the public officials' office. Section 4(b) of P.D. No. 1606, as amended, provides that:

b. Other offenses or felonies committed by public officials and employees mentioned in subsection (a) of this section in relation to their office.

A simple analysis after a plain reading of the above provision shows that those public officials enumerated in Section 4(a) of P.D. No. 1606, as amended, may not only be charged in the Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code, but also with other offenses or felonies in relation to their office. The said other offenses and felonies are broad in scope but are limited only to those that are committed in relation to the public official or employee's office. This Court had ruled that as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance, though improper or irregular, of his official functions, there being no personal motive to commit the crime and had the accused not have committed it had he not held the aforesaid office, the accused is held to have been indicted for "an offense committed in relation" to his office.17 Thus, in the case of Lacson v. Executive Secretary,18 where the crime involved was murder, this Court held that:

The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accuseds official functions. Thus, under said paragraph b, what determines the Sandiganbayans jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. x x x.

Also, in the case Alarilla v. Sandiganbayan,19 where the public official was charged with grave threats, this Court ruled:

x x x In the case at bar, the amended information contained allegations that the accused, petitioner herein, took advantage of his official functions as municipal mayor of Meycauayan, Bulacan when he committed the crime of grave threats as defined in Article 282 of the Revised Penal Code against complainant Simeon G. Legaspi, a municipal councilor. The Office of the Special Prosecutor charged petitioner with aiming a gun at and threatening to kill Legaspi during a public hearing, after the latter had rendered a privilege speech critical of petitioners administration. Clearly, based on such allegations, the crime charged is intimately connected with the discharge of petitioners official functions. This was elaborated upon by public respondent in its April 25, 1997 resolution wherein it held that the "accused was performing his official duty as municipal mayor when he attended said public hearing" and that "accuseds violent act was precipitated by complainants criticism of his administration as the mayor or chief executive of the municipality, during the latters privilege speech. It was his response to private complainants attack to his office. If he was not the mayor, he would n ot have been irritated or angered by whatever private complainant might have said during said privilege speech." Thus, based on the allegations in the information, the Sandiganbayan correctly assumed jurisdiction over the case.

Proceeding from the above rulings of this Court, a close reading of the Information filed against respondent Amante for violation of The Auditing Code of the Philippines reveals that the said offense was committed in relation to her office, making her fall under Section 4(b) of P.D. No. 1606, as amended.

According to the assailed Resolution of the Sandiganbayan, if the intention of the law had been to extend the application of the exceptions to the other cases over which the Sandiganbayan could assert jurisdiction, then there would have been no need to

distinguish between violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code on the one hand, and other offenses or felonies committed by public officials and employees in relation to their office on the other. The said reasoning is misleading because a distinction apparently exists. In the offenses involved in Section 4(a), it is not disputed that public office is essential as an element of the said offenses themselves, while in those offenses and felonies involved in Section 4(b), it is enough that the said offenses and felonies were committed in relation to the public officials or employees' office. In expounding the meaning of offenses deemed to have been committed in relation to office, this Court held:

In Sanchez v. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the term "offense committed in relation to [an accuseds] office" by referring to the principle laid down in Montilla v. Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People v. Montejo [108 Phil 613 (1960)]. The principle set out in Montilla v. Hilario is that an offense may be considered as committed in relation to the accuseds office if "the offense cannot exist without the office" such that "the office [is] a constituent element of the crime x x x." In People v. Montejo, the Court, through Chief Justice Concepcion, said that "although public office is not an element of the crime of murder in [the] abstract," the facts in a particular case may show that

x x x the offense therein charged is intimately connected with [the accuseds] respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed, [the accused] had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. x x x20

Moreover, it is beyond clarity that the same provision of Section 4(b) does not mention any qualification as to the public officials involved. It simply stated, public officials and employees mentioned in subsection (a) of the same section. Therefore, it refers to those public officials with Salary Grade 27 and above, except those specifically enumerated. It is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,21 unless it is evident that the legislature intended a technical or special legal meaning to those words.22 The

WHEREFORE, the Petition dated April 20, 2005 is hereby GRANTED and the Resolution of the Sandiganbayan (Third Division) dated February 28, 2005 is NULLIFIED and SET ASIDE. Consequently, let the case be REMANDED to the Sandiganbayan for further proceedings.

SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. PEPITO NEVERIO G.R. No. 182792 August 25, 2009

VELASCO, JR., J.:

The Case

This is an appeal from the November 23, 2007 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01374 entitled People of the Philippines v. Pepito Neverio, which held accused-appellant Pepito Neverio guilty of two counts of rape. The CA Decision affirmed the September 30, 2004 Decision[2] in Criminal Cases Nos. P-3182 and P-3183 of the Regional Trial Court (RTC), Branch 32 in Pili, Camarines Sur.

The Facts

AAA[3] is a mentally deficient lass, who resides with her family in Barangay Sagurong, Pili, Camarines Sur. Because of her mental condition, she was not able to go to school for most part of her life. Nonetheless, she learned to cook for the family and clean their house.[4]

In the morning of June 29, 2001, AAA, then 20 years old, was alone in their home cooking. Her father was farming, while her mother was at the poblacion[5] of Pili. Her siblings, too, were somewhere elsesomewhere in school and others were tending a neighborhood store away from their residence.[6]

Suddenly, Pepito, AAAs cousin, entered the kitchen by lifting the bamboo barrier with a bolo. Pepito then poked a fan knife to AAAs neck, placed the bolo on the table, and dragged AAA to her brothers room. He pushed AAA on the bed and went on top of her. Still poking the knife against AAAs neck, he removed her shorts and panty; then he also removed his pants. He then began to insert his penis inside AAAs vagina. AAA shouted in pain, but Pepito covered her mouth and continued removing and inserting his penis inside her vagina. When Pepito was done, he put on his pants and threatened to kill AAA should she share with anyone what had happened. Fearing for her life, AAA kept mum about the incident.[7]

On July 27, 2001, Pepito committed the same abuse against AAA. At around five oclock in the afternoon, while AAA was alone in their home, Pepito again entered AAAs house through the kitchen. He poked his knife against AAAs neck, dragged her to the nearby room, and pushed her on the bed. AAA fought back but did not succeed in getting out of the room. Pepito then brought AAA back to the bed. Still pointing the knife against AAA, Pepito removed her lower garments, and thereafter removed his shorts and brief. He then proceeded to insert his penis inside AAAs vagina. Satiated, he stood up and got dressed. Before he left, he again warned AAA not to tell anyone what had happened; otherwise, he would kill her.[8]

On August 1, 2001, AAAs mother arrived from Naga City. She saw AAA crying under the bamboo grove. She asked why AAA was crying and AAA finally revealed what Pepito had done to her. She then sought the assistance of law enforcement authorities in investigating and in filing the appropriate charge against Pepito.[9]

On August 28, 2001, the National Bureau of Investigation medico-legal expert Jane Perpetua-Fajardo conducted a physical examination on AAA. She noted that her hymen had one healed laceration. She further stated that AAAs injury was probably caused by sexual intercourse and that the healed laceration was compatible with the time that the alleged incidents of rape happened.[10]

On October 17, 2001, two Informations were filed against Pepito. Except for the date and time of the commission of the crime, both Informations contained the same allegations, thus:

That on or about 10:00 A.M. on June 29, 2001 in Barangay Sagurong, Municipality of Pili, Province of Camarines Sur, Philippines and within the jurisdiction of the Honorable Court, the above named accused, with lewd designs and grave abuse of confidence being a cousin of the private complainant, did then and there willfully, unlawfully and feloniously, with the use of force and intimidation succeed in having carnal knowledge, with [AAA], a 20 years old mental retardate against her will and without her consent, to her damage and prejudice in such amount as may be awarded by the Honorable Court.[11]

The other information averred the commission of the crime of rape against AAA on July 27, 2001 at 5:00 p.m.[12]

During trial, Pepito did not present any evidence but instead filed a Demurrer to Evidence with Leave of Court. On February 24, 2004, the trial court denied the Demurrer to Evidence. Despite the said denial, the defense still chose not to present any evidence. Thereafter, instead of filing a memorandum, the defense adopted its Demurrer to Evidence as its memorandum.[13]

On September 30, 2004, the RTC rendered a Decision, the dispositive part of which reads:

Wherefore, in view of the foregoing considerations, judgment is hereby rendered in Crim. Cases No. P-3182 and P-3183, finding the accused, Pepito Neverio, a.k.a. Totoy, GUILTY in both cases, of the crime of rape, defined and penalized under Art. 266-A, R.A. 8353, and accordingly sentences him [to suffer] the penalty of RECLUSION PERPETUA for each RAPE, to indemnify the offended party, [AAA], the sum of [PhP] 50,000.00 as indemnity for each rape, plus the sum of [PhP] 50,000.00 for each rape, as moral damages, and to pay the costs, with all the accessories of the penalty; he is

credited in full for his preventive detention had he agreed to abide with the rules for convicted prisoners, otherwise, for 4/5 of the same.

SO ORDERED.[14]

The case was appealed to the CA.

The Ruling of the CA

Aware that Pepito did not present any evidence to support his cause, the CA, in its November 23, 2007 Decision, carefully reviewed the evidence of the prosecution. It reassessed the testimony of AAA and was convinced of its credibility. It found that despite AAAs mental retardation, her testimony was direct, natural and unvarnished.[15] It noted further that the physical evidence fully supports the allegations of AAA.

Finding that the prosecution successfully proved its charges against Pepito, the CA affirmed the September 30, 2004 Decision of the RTC.

Hence, we have this appeal.

The Issues

In a Resolution dated July 30, 2008, this Court required the parties to submit supplemental briefs if they so desired. On September 30, 2008, Pepito, through counsel, signified that he was no longer filing a supplemental brief. Thus, the following issues raised in Pepitos Brief dated August 30, 2006 are now deemed adopted in this present appeal:

I.

The Court a quo, gravely erred in finding the accused-appellant guilty beyond reasonable doubt of the crime of rape.

II.

The Court a quo, gravely erred in failing to appreciate the arguments of the defense in the Motion to Dismiss with Demurrer to Evidence.[16]

The Ruling of the Court

The appeal is without merit.

In his Brief, Pepito argues that the prosecution failed to prove two elements of the crime as alleged in the InformationAAAs mental retardation and the use of force and intimidation in committing the sexual act. He claims that medical findings confirming AAAs mental retardation should have been presented; however, none was given in this case. Also, he maintains that it was incredible for him to have managed to hold a knife against AAA with one hand, while at the same time undressing and later having sex with her with only one hand free. We, however, hold that his arguments deserve scant consideration.

Under Article 266-A of the Revised Penal Code, as amended, if the victim is demented, the element of force becomes immaterial and absence of consent is presumed. Thus, only sexual intercourse must be proved in order to convict an accused. For this reason, if the mental age of a woman above 12 years old is that of a child below 12 years old, even if she voluntarily submits herself to the bestial desires of the accused, or even if the circumstances of force or intimidation are absent, the accused would still be liable for rape.[17] If the victim, however, is above 12 years old and has normal psychological faculty at the time of the crime, sexual intercourse and the attendant circumstance of force, violence, intimidation, or threat must be proved.

In this case, the Information alleged that AAA is mentally retarded. It, however, contained also an allegation that sexual intercourse was committed against AAA through force and intimidation and without her consent. The trial court convicted Pepito after finding that sexual congress through force and intimidation had been sufficiently established. It did not consider the mental condition of AAA because it was no longer necessary. As correctly ruled by the CA, AAAs mental retardation was inconsequential because the conviction of the accused was based on the use of force and intimidation. The CA held:

In reality, the absence of competent evidence on the victims mental retardation is inconsequential because it did not negate the finding of guilt. Contrary to the accuseds argument, her mental retardation had no bearing on the worthiness of the evidence of rape. We find to be correct the [Office of the Solicitor General]s submission that the mental retardation was a non-issue, for the conviction of the accused was based on the use of force and intimidation. Indeed, threatening the victim with a knife is sufficient to coerce the victim and constitutes an element of rape.[18]

We also affirm the findings of the RTC and the CA that the sexual molestation was committed through force and intimidation. The fact of sexual congress was established by the testimony of AAA and corroborated by the medico-legal findings of lacerations on her hymen. When the victims straightforward testimony is consistent with the physical finding of penetration, there is sufficient basis for concluding that sexual intercourse did take place.[19]

As to the attendant circumstance of force, this was likewise sufficiently established. Force or intimidation necessary in rape is relative, for it largely depends on the circumstances of the rape as well as the size, age, strength, and relation of the parties.[20] Notably, however, the act of holding a knife by itself is strongly suggestive of force or at least intimidation, and threatening the victim with a knife is sufficient to bring a woman to submission.[21] And the victim does not even need to prove resistance.[22] To appreciate force or intimidation, it is enough to show that such force or intimidation was sufficient to consummate the bestial desires of the malefactor against the victim. Such was determined in this case.

In Pepitos Motion to Dismiss with Demurrer to Evidence, he faults AAA for her failure to state the place where the alleged crime happened. He maintains that the identification of the place where the crime was committed was necessary for vesting the court with jurisdiction over the case. This argument is without merit.

For the court to acquire jurisdiction over a criminal case, the offense or any of its essential elements should have taken place within the territorial jurisdiction of the court.[23] This territorial jurisdiction of the court is determined by the facts alleged in the complaint or information.[24] In this case, the October 17, 2001 Informations clearly indicated that the acts of rape were committed in Barangay Sagurong, Pili, Camarines Sur. During trial, prosecution evidence showed that the molestations happened in AAAs house. And as testified by AAAs mother, their house was situated in Sagurong, Pili, Camarines Sur. Thus, AAAs inability to state her address in her testimony was trivial. Understandably, this failure was due only to her mental deficiency.

As to the damages, we find that an award of exemplary damages in the amount of PhP 30,000 is warranted, following People v. Sia.[25] Exemplary damages are awarded when the crime is attended by an aggravating circumstance;[26] or as in this case, as a public example,[27] in order to protect hapless individuals from molestation.

WHEREFORE, the Court AFFIRMS the CAs November 23, 2007 Decision in CA -G.R. CR-H.C. No. 01374 with MODIFICATION. As modified, the dispositive portion of the affirmed September 30, 2004 RTC Decision shall read:

Wherefore, in view of the foregoing considerations, judgment is hereby rendered in Crim. Case Nos. P-3182 and P-3183, finding the accused, Pepito Neverio, a.k.a. Totoy, GUILTY in both cases, of the crime of rape, defined and penalized under Art. 266-A, RA 8353, and accordingly sentences him to suffer the penalty of RECLUSION PERPETUA for each RAPE. He is likewise ordered to pay the offended party, for each rape, the sum of PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, PhP 30,000 as exemplary damages, and to pay the costs, with all the accessories of the penalty; he is credited in full for his preventive detention had he agreed to abide with the rules for convicted prisoners, otherwise, for 4/5 of the same.

SO ORDERED.

G.R. No. 73875 May 18, 1993

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO AGBULOS alias LITO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Rolando S. Bala for accused-appellant.

CRUZ, J.:

Upon complaint filed by Angelita P. Bangit, accused-appellant Joselito Agbulos was charged with the offense of forcible abduction with rape. On January 23, 1981, Agbulos arraigned and pleaded not guilty. 1

On April 25, 1984, the prosecution rested its case. On August 13, 1984, a warrant for the arrest of Agbulos was issued for his failure to appear at the scheduled hearing. On September 24, 1984, the order of arrest was recalled and set aside because notice had been sent to the wrong bonding company. Hearing was reset on November 5, 1984, and the accused was notified at his home address. 2

On November 5, 1984, the accused failed to appear and his arrest was again ordered. 3 The bonding company was given 30 days to produce the person of the accused and show cause why judgment should not be rendered against its undertaking.

On December 18, 1984, the trial court issued an order reading as follows:

Upon motion of the Fiscal, it appearing that the bonding company of the herein accused failed to produce the person of the latter within the specified period, let judgment issue against the full amount of his bond.

Upon motion of the defense counsel, over the vigorous objection of the Fiscal, the continuation of the trial of this case today for presentation of evidence for the defense is hereby cancelled and reset to January 30, 1985, at 8:30 o'clock in the morning.

It is understood that should the accused still fail to appear and present evidence at the next setting, it shall be deemed that he has waived his right to present evidence and the case shall be considered submitted for decision based on the evidence on record.

As requested by the defense counsel, let an Order of Arrest issue against the herein accused at his address at 119 Dionisio St., Doa Adela Subdivision, Cabanatuan City, to be coursed through the INP Station at Cabanatuan City.

SO ORDERED.

On January 30, 1985, the accused still failed to appear. 4 His counsel manifested in court that he was adopting the prosecution witness Ernesto Tamayo as evidence for the accused. Thereafter, the defense rested its case.

On July 11, 1985, judgment was rendered against the bonding company for failure to produce the accused and to explain why the amount of its undertaking should not be forfeited.

On June 15, 1985, the trial court rendered its decision finding accused Joselito Agbulos guilty of forcible abduction with rape and sentencing him to suffer the penalty of reclusion perpetua. He was also ordered to indemnify the victim Angelita Bangit in the amount of P20,000.00 and to pay the costs. 5

On August 16, 1985, the counsel for the accused filed a notice of appeal.

The trial in absentia was perfectly valid, having been held in accordance with Article IV, Section 19, of the 1973 Constitution, then in force, which has been reproduced verbatim in Article III, Section 14 (2) of the 1987 Constitution, providing in part as follows:

However, after arraignment, trial may proceed not withstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

The purpose of this rule is to speed up the disposition of criminal cases, trial of which could in the past be indefinitely deferred, and many times completely abandoned, because of the defendant's escape. The old case of People v. Avancea 6 required his presence at certain stages of the trial which as a result, had to be discontinued as long as the defendant had not reappeared or remained at large. As his right to be present at these stages was then held not waivable even by his escape, such escape thus operated to the fugitive's advantage, and in mockery of the authorities, insofar as the trial could not proceed as long as he has not been recaptured.

The doctrine laid down in that case has been modified by the Bill of Rights, which now allows trial in absentia. Now the prisoner cannot by simply escaping thwart his continued prosecution and possibly eventual conviction provided only that: a) he has been arraigned; b) he has been duly notified of the trial; and c) his failure to appear is unjustified.

Under the old doctrine, trial in absentia of the escapee could not be held because he could not be duly notified thereof. Under the present rule, the fugitive is deemed to have waived such notice precisely because he has escaped, and it is also this escape that makes his failure to appear at his trial unjustified. Escape can never be a legal justification.

In the past, his escape "rewarded" him by postponing all further proceedings against him and in effect ultimately absolving him of the charge he was facing. Under the present rule, his escape will, legally speaking, operate to his disadvantage as he will be unable to attend his trial, which will continue even in his absence and most likely result in his conviction.

The right to be present at one's trial may now be waived except only at that stage where the prosecution intends to present witnesses who will identify the accused. 7 The defendant's escape will be considered a waiver of this right and the inability of the court to notify him of the subsequent hearings will not prevent it from continuing with his trial. He will be deemed to have received due notice. The same fact of his escape will make his failure to appear unjustified because he has, by escaping, placed himself beyond the pale, and protection, of the law.

By the same token, the accused has forfeited the right to appeal. The record shows that after arraignment and during the trial, Agbulos jumped bail and has not been apprehended to date. The last time he appeared in court was on April 25, 1984, when the prosecution rested its case. The rest of the trial was held in absentia, resulting in the judgment of conviction.

Rule 124, Section 8, of the 1985 Rules of Criminal Procedure provides that the court may, "upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of the appeal." We have held that once an accused escapes from prison or confinement or jumps bail or flees to a foreign country, he loses his standing in court and unless he surrenders or submits to its jurisdiction is deemed to have waived any right to seek relief from the court. 8

In the case at bar, the appellant has remained at large even as he hopes that his appeal will succeed and he can then appear before the Court to claim his victory. He hopes in vain.

WHEREFORE, the appeal is DISMISSED. Let the records of this case be remanded to the trial court for issuance of the mittimus.

SO ORDERED.

Grio-Aquino, Bellosillo and Quiason, JJ., concur.

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson

and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified

that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate

release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had

allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while

his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as

provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this

fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later

apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably

imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was

entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights

and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for reasons why an experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary investigation inspite of the vigorous and continued objection and reservation of rights of the accused and notwithstanding the recommendations of the Prosecutor that those rights must be respected. If the Court had faithfully followed the Rules, trial would have proceeded smoothly and if the accused is really guilty, then he may have been convicted by now. As it is, the case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete objectivity in its handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary investigation because he freely participated in his trial and his counsel even cross-examined the prosecution witnesses. A closer study of the record, however, particularly of the transcript of the proceedings footnoted in the ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did not. Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that is not the petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly observed. The delay entailed by the procedural lapse and the attendant expense imposed on the Government and the defendant must be laid at the door of the trial judge for his precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering instead that its only guide was the mandate of the law.

GRIO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4) prosecution witnesses have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon Maguan inside his car in cold blood, and a security guard who identified the plate number of the gunman's car, I do not believe that there is still need to conduct a preliminary investigation the sole purpose of which would be to ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him, presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be supererogatory.

This case did not suffer from a lack of previous investigation. Diligent police work, with ample media coverage, led to the identification of the suspect who, seven (7) days after the shooting, appeared at the San Juan police station to verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and details about the crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly filed with the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day, July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder on July 11, 1991 in the Regional Trial Court, with no bail recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of P100,000 for his release, and submitted the omnibus motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued: (a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary investigation, for he motu propio issued on July 17, 1991 another

order rescinding his previous orders and setting for hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be suspended and that the prosecutor should now conduct a preliminary investigation, are not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because motions to quash the information were filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary investigations had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for release on bail, just as the conduct of such preliminary investigation is not more important than the hearing of the application for bail. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double purpose. The parties will have an opportunity to show not only: (1) whether or not there is probable cause to believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64

SCRA 378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be afforded full opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in this case was deprived of the right to present its evidence against the bail petition, or that the order granting such petition was issued upon incomplete evidence, then the issuance of the order would really constitute abuse of discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is the taking of the person into the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a petition to be released on bail was a waiver of any

irregularity attending his arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for reasons why an experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary investigation inspite of the vigorous and continued objection and reservation of rights of the accused and notwithstanding the recommendations of the Prosecutor that those rights must be respected. If the Court had faithfully followed the Rules, trial would have proceeded smoothly and if the accused is really guilty, then he may have been convicted by now. As it is, the case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete objectivity in its handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary investigation because he freely participated in his trial and his counsel even cross-examined the prosecution witnesses. A closer study of the record, however, particularly of the transcript of the proceedings footnoted in the ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did not. Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that is not the petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly observed. The delay entailed by the procedural lapse and the attendant expense imposed on the Government and the defendant must be laid at the door of the trial judge for his precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering instead that its only guide was the mandate of the law.

GRIO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4) prosecution witnesses have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon Maguan inside his car in cold blood, and a security guard who identified the plate number of the gunman's car, I do not believe that there is still need to conduct a preliminary investigation the sole purpose of which would be to ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him, presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be supererogatory.

This case did not suffer from a lack of previous investigation. Diligent police work, with ample media coverage, led to the identification of the suspect who, seven (7) days after the shooting, appeared at the San Juan police station to verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and details about the crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly filed with the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day, July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of

filing an information for frustrated homicide, filed an information for murder on July 11, 1991 in the Regional Trial Court, with no bail recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of P100,000 for his release, and submitted the omnibus motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued: (a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary investigation, for he motu propio issued on July 17, 1991 another order rescinding his previous orders and setting for hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be suspended and that the prosecutor should now conduct a preliminary investigation, are not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because motions to quash the information were filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary investigations had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for release on bail, just as the conduct of such preliminary investigation is

not more important than the hearing of the application for bail. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double purpose. The parties will have an opportunity to show not only: (1) whether or not there is probable cause to believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be afforded full opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in this case was deprived of the right to present its evidence against the bail petition, or that the order granting such petition was issued upon incomplete evidence, then the issuance of the order would really constitute abuse of discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is the taking of the person into the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

PROSECUTION OF CRIMINAL OFFENSES

G.R. No. 78492 May 29, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DICK OCAPAN accused-appellant.

GUTIERREZ, JR., J.:

Accused-appellant Dick Ocapan and Joselyn Ocapan, the woman who lived with him in an ostensible marital relationship, were charged on March 11, 1985 before the Regional Trial Court of Lanao del Norte at Iligan City with the complex crime of rape with serious illegal detention.

The case against Joselyn Ocapan was dismissed while Dick Ocapan was convicted and sentenced accordingly for the crime of serious illegal detention. The decision of the trial court was appealed to the Court of Appeals which elevated its decision to this Court for final determination in accordance with Section 13 of Rule 124 of the Rules of Court which provides:

Whenever a Criminal Cases Division should be of the opinion that the penalty of death or life imprisonment should be imposed in a case, the said Division after discussion of the evidence and the law involved, shall render judgment imposing the penalty of either death or reclusion perpetua as the circumstances warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review.

and with the ruling in People v. Daniel (86 SCRA 511).

The decision of the Court of Appeals penned by Associate Justice Vicente Mendoza and concurred in by Associate Justices Josue N. Bellosillo and Hector C. Fule reads as follows:

The accused-appellant, Dick Ocapan and his common-law wife, Joselyn Ocapan were accused of rape with serious illegal detention in the Regional Trial Court of Lanao Del Norte. The information, dated March 11, 1985, alleged:

That on or about January 17, 1985, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, accused Dick Ocapan conspiring and confederating with his common-law wife, Joselyn O. Ocapan did then and there willfully, unlawfully and feloniously and by means of force and intimidation have carnal knowledge with one Arlene Yupo, a minor and who was working as house helper, of the said accused; that thereafter, in order to prevent the said Arlene Yupo from reporting to the proper authorities, detained and deprived her of her liberty for more than five (5) days.

Later, on motion of the City Fiscal, the trial court dismissed the case against Joselyn Ocapan on May 23, 1985 on the ground that there was no prima facie case against her. The case proceeded with respect to Dick Ocapan who pleaded not guilty to the charge. Trial was thereafter held. The prosecution versions is as follows:

The offended party, Arlene Yupo, was house helper of the accused-appellant, Dick Ocapan and the latter's common-law wife, Joselyn Ocapan In the evening of January 17, 1985, Joselyn Ocapan made Arlene drink half a glass of Tanduay Rhum, as a result of which she felt drowsy. She therefore went to bed, but as she was about to fall asleep, somebody knocked on the door. When she opened it, she saw the accused-appellant Dick Ocapan. Dick Ocapan had a knife and threatened to kill her if she shouted. He pushed her to the floor, placed himself on top of her, tore her blouse and fondled her breasts. He then pulled up her skirt, kissed her, and pulled down her underwear and inserted his finger into her vagina. Arlene said she lost consciousness and when she came to, she felt some pain and found her blanket stained with blood. The accused, who was still in the room, gave her money and warned her not to tell anybody about the incident, or he would kill her.

The next day, Arlene told Joselyn about the incident. Joselyn told her not to tell anybody and asked her to stay, but as she insisted on going home, Joselyn slapped her. Joselyn locked her inside a room whose only window was closed. According to Arlene, the ground below was muddy and there were many broken glasses, making it dangerous for her to jump to the ground. Besides, the accused and Joselyn guarded her. Arlene said she was not allowed to go out, except to go to the toilet. However, as she refused to eat, she became weak and so, on January 23, 1985, after five days of detention, the accused-appellant finally released her. According to Arlene, she stayed at the Cristan Commercial until January 29, 1985, when she saw her aunt, Saturnina Dagting, passing by and called her to tell her what had happened to her. At 7:00 in the evening of that day, she was taken by her mother and her aunt to the police station where she reported

the incident. Later she was examined by Dr. Carmina Barte who found that the hymen had healed lacerations at 1.4 and 6 o'clock positions, and that such lacerations could have been caused from one week to one year before.

On the other hand, the defense presented evidence to show that Arlene Yupo and the accused-appellant were lovers and that Arlene complained to the police only because her relationship with the accused-appellant had been discovered by the latter's common-law wife, Joselyn Ocapan and that it is not true that Arlene Yupo had been detained. According to the accused-appellant, Arlene and he became lovers in September, 1984 and that they first had sexual intercourse on September 20, 1984, after which he said he found that Arlene was no longer a virgin. The accused-appellant said he wanted to go to bed with Arlene on January 17, 1986 but it was Arlene's menstrual period. According to him, in the evening of January 19, 1985, as they were about to have sex, his common-law wife, Joselyn suddenly came home from the Molave Disco House, where she was an entertainer and noticed that Dick was perspiring. This prompted her to go to the room of Arlene, where she found her completely naked under the blanket.

Arlene denied having an affair with the accused-appellant but the latter admitted that he and Arlene were lovers. On January 20, 1985, Joselyn drove the accused-appellant out of the house, but kept Arlene because she needed her to look after their children. Joselyn finally dismissed Arlene on January 23, 1985.

The defense also presented Juliet Pasco, who said that twice, on January 19, 1985 and January 20, 1985, she and Arlene and a certain Caloy went to a place called Abuno to gather young coconuts and, on January 21, they went to the Big Dipper Restaurant where they had beer, with Arlene paying the bill. Obviously, the purpose of her testimony was to show that Arlene was under no restraint at a time when she claimed she was detained. This witness said that on January 22, 1985 she accompanied Arlene to Kanaway to see a herb doctor who found her to be pregnant and prescribed a drink ('camias') which made Arlene menstruate. On January 23, 1985 she said, Arlene transferred to the Cristan Commercial.

On October 7, 1985 the trial court rendered judgment dismissing the rape charge on the ground that the offended party had not filed a complaint, but finding the accused-

appellant guilty of serious illegal detention. The dispositive portion of the trial court's decision states:

In view of the foregoing, considering that the prosecution failed to present a signed complaint of the offended party the case of rape against the accused is hereby dismissed. However, with regards to the crime of serious illegal detention, the accused is hereby sentenced after considering the indetermine sentence law and there being no mitigating nor aggravating circumstance, to suffer a penalty of from 12 years and 1 day of reclusion temporal as minimum to reclusion perpetua as maximum and to indemnify the offended party the sum of P 20,000.00 in moral and exemplary damages.

Hence, this appeal. The accused-appellant Contends:

(1) That the information against him was filed by the City Fiscal without giving him the right to be heard in a preliminary investigation and that his motion for reinvestigation was summarily denied by the trial court.

(2) That the evidence does not support the finding that he detained the offended party Arlene Yupo from January 17 to January 23, 1985,

(3) That since the information was for the complex crime of rape with serious illegal detention, it was error for the trial court to split the crime into two separate offenses of rape and serious illegal detention.

We shall deal with these contentions in their order.

First. The record shows that on March 6, 1985 the accused appellant, with the assistance of counsel, filed a written waiver of the "right to the Second Stage of Preliminary Investigation" with the Municipal Trial Court. Accordingly, the case was remanded to the Fiscal's Office for the filing of the corresponding information in the Regional Trial Court. Rec. pp. 11-12) Nonetheless, a reinvestigation was conducted by the City Fiscal which on April 25, 1985 recommended the dismissal of the case with

respect to Joselyn Ocapan. On the basis of this recommendation, the trial court ordered the case against Joselyn Ocapan ,dismissed There is, therefore, no basis for the accused-appellant's claim that he was denied the right to a preliminary investigation.

Moreover, it appears that on May 24, 1985, the accused-appellant pleaded to the charge and took no further step to raise the question of denial of the right to preliminary investigation either to this Court or to the Supreme Court. Instead, he entered into trial. He thus waived whatever right he might have to preliminary investigation. (People v. Lambino, 103 Phil. 504 (1958); People v. Magpalo, 70 Phil. 176 (1940); People v. Oliveria, 67 Phil. 427 (1939).

Second. The accused-appellant cites the testimony of the offended party, Arlene Yupo, to the effect that "(she) was detained by her (Joselyn Ocapan inside the room" (TSN, p. 10, Aug. 15, 1985). The accused- appellant argues that, therefore, it was not he who detained Arlene. The accused-appellant also cites the testimony of Arlene that "He (the accused- appellant) usually went out during the evening" (Id. p. 13) to show that he could not have kept watch over her during her detention.

The testimony of Arlene Yupo is taken out of context. What Arlene said was this:

COURT

When you insisted that you will go home, what was the reply of Joselyn Ocapan?

A She refused.

COURT

What did she do to you, if any ?

A She slapped me.

COURT

After slapping you, what else did she do to you ?

A I was detained by her inside the room.

COURT

How many days were you locked inside the room?

A Five days.

RECORD:

Witness is on the brink of tears.

COURT

From Jan. 18 when you were locked inside the room, did you notice the accused Dick Ocapan?

A He was there.

COURT

What was Dick Ocapan doing, if any?

A They were watching outside.

(TSN, p. 10, Aug. 15, 1985)

On the other hand, when Arlene said that Dick Ocapan the accused- appellant, "usually went out during the evening," she was answering the question of the trial court as to the work of the accused-appellant. She was not referring to the period of her detention. (TSN, p. 13, Aug. 15, 1985)

The accused-appellant also contends: 'Since the accused was no longer at his residence where Arlene Yupo claimed to have been detained, how could he be held liable for illegal detention?' That the accused-appellant was allegedly driven out of his house on January 20, 1985 was his own testimony (TSN, p. 6, September 19, 1985) and that of his wife, Joselyn (TSN, p. 21), Aug. 16, 1985). As far as the prosecution is concerned, Dick Ocapan was not driven out of their house. On the contrary, the offended party testified that she could not leave the house of the accused- appellant because the latter and his wife were guarding her.

Nor is there merit in the claim of the accused-appellant that the trial court relied on the weakness and supposed inconsistencies of the defense evidence rather than the strength of the prosecution evidence. In finding the accused-appellant guilty, the trial court stated:

The prosecution presented sufficient proof showing that Arlene Yupo was raped by the accused Dick Ocapan on January 17, 1985 and detained up to January 23, 1985 but had to allow her to leave the house because by then Arlene Yupo was not eating anymore and was becoming weak presumably because of shock suffered by her. The accused denied having raped Arlene Yupo and claimed that he did not even have

sexual intercourse with her on January 17, 1985 because Arlene Yupo was menstruating and had sexual intercourse only on January 19, 1985 and that was the date when they were discovered by his common law wife. He also claims that Arlene Yupo had been his sweetheart since September 15, 1984 and they had sexual intercourse for several times. However, the court finds that the testimonies of the witnesses for the accused to be incredible and contradictory. The accused claims that he did not have sexual intercourse with Arlene Yupo on January 17, 1985 because the latter was menstruating but the witness for the accused Juliet Pasco testified that on January 22, 1985 they went to see a quack doctor because of the delayed menstruation of Arlene Yupo and it was only after Arlene Yupo drank 'camias' on January 22, 1985 that her menstruation came. According to Joselyn Ocapan the common-law wife of Dick Ocapan she discovered Arlene Yupo and the accused had sexual intercourse on January 19, 1985 when she went home from her work as a hostess in the Molave Disco House and she confronted Arlene Yupo at 9:00 o'clock in the morning and that she did not dismiss Arlene Yupo until January 23, 1985 because there was no one who could take care of her children in the house if she would drive her away. Yet the witness Juliet Pasco testified that on January 19, 1985 they went on an excursion to Abuno to eat young coconuts, going back there again on January 20 to get coconuts which were eaten by Dick Ocapan that on January 21, 1985 they went drinking beer at the Big Dipper at 7:00 o'clock in the evening and stayed for two hours; that on January 22, 1985 they went to Kanaway to consult a quack doctor about the condition of Arlene Yupo. Certainly this is in conflict with the testimony of Joselyn Ocapan who claimed that she confronted Arlene Yupo regarding her relationship with Dick Ocapan on January 20, 1985 and would not dismiss Arlene Yupo because she needed her to watch her children. If it is true that Arlene Yupo was confronted regarding her illicit relationship with Dick Ocapan on January 19, 1985 she would not have gone gallivanting to Abuno with the witness Juliet Pasco going back there again on January 20, 1985 and then on January 21, going out to drink. If the claim of Joselyn Ocapan that she did not dismiss immediately Arlene Yupo because she needed her to watch her children were true, then Arlene Yupo could not have gone to Abuno on January 19 and 20 and go out again in the evening of January 21 and 22 with Juliet Pasco as she would be watching the children. Not only did the testimonies of Juliet Pasco and Joselyn Ocapan contradict each other but their testimonies were so full of inconsistencies that it could not merit credence. Juliet Pasco even admitted that she had made several mistakes during the questioning by the court, mistakes that could not have been made by a truthful witness. The same thing can be said of Joselyn Ocapan She stated that she testified because she loves Dick Ocapan (p. 19, TSN August 16, 1985) but later she also testified that she does not love him anymore (p. 21, TSN, August 16, 1985).

The accused himself also admitted that there was no motive at all for Arlene Yupo to charge him for rape because according to him he never had any quarrel with Arlene Yupo at the time he last saw her up to the firing of this case against him is so flimsy that it could not merit credence. According to him Arlene Yupo filed this case against him in order to save her honor and in order that she would not be put to shame and embarassment because their relationship was already known. A woman would not file a case for rape in order to just save her honor if she was not really raped because by doing so she would be further exposed to public ridicule.

Third. The accused-appellant argues that the crime charged in the information is the complex crime of rape with serious illegal detention and that since the offended party did not file a complaint for this crime, the trial court did not acquire jurisdiction. He further claims that, in holding that the information charged two separate offenses, the trial court violated his constitutional right to be informed of the nature and cause of the accusation against him.

On the other hand, the prosecution argues that the trial court erred in dismissing the charge for rape because the requirement in Art. 344 of the Revised Penal Code that the crime of rape must be prosecuted by complaint of the offended party is not a jurisdictional requirement as held in Valdepanas v. People, 16 SCRA 871 (1966).

Neither contention, we believe, is correct. While the information is indeed entitled "For Rape with Serious Illegal Detention," it clearly charges two separate offenses, namely, rape and serious illegal detention. The accused-appellant could have objected on the ground of duplicity (Rule 110, sec. 13), but since he did not file a motion to quash on this ground in accordance with Rule 11 7, sec. 3(e), he must be deemed to have waived the objection. (People v. Policher, 60 Phil. 770 [1934])

On the other hand, we do not think that the Supreme Court intended to reverse a uniform course of decisions holding that, with respect to crimes against chastity, the filing of a complaint by the offended party is jurisdictional. Valdepenas v. People, supra, which the prosecution cites in support of its contention that such complaint is not jurisdictional simply holds that if the offended party files a com plaint for forcible abduction, the accused can be found guilty under such complaint of abduction with consent. The fact is that, in that case, both the offended party and her mother gave their

assent to the complaint. Indeed, as the prosecution acknowledges, in People v. Zurbano, 37 SCRA 565 (1971), decided after Valdepenas v. People, the Court reiterated the rule that 'The filing of a complaint for rape or for any other offense enumerated in Art. 344 of the Revised Penal Code by the person or persons mentioned therein is jurisdictional.

We hold that the trial court correctly dismissed the rape charge for lack of complaint by the offended party. (3 Aquino, The Revised Penal Code 1771 [1976])

Fourth. The trial court sentenced the accused-appellant to an indeterminate sentence of 12 years and 1 day of reclusion temporal, as minimum, to reclusion perpetua, as maximum. Because of this and contending that the evidence against him is insufficient, the accused-appellant petitions to be released on bail.

The Solicitor General opposes the bail petition and points out that this case falls under Art. 267, par. 4, of the Revised Penal Code, which prescribes the penalty of reclusion perpetua to death. "If the person kidnapped or detained shall be a minor, female, or a public officer." Accordingly, the Indeterminate Sentence Law does not apply. In accordance with Art. 63, par. 2, as there are neither mitigating nor aggravating circumstances, the penalty to be imposed must be reclusion perpetua as the lesser penalty.

This contention is well taken. Since there is no question that Arlene Yupo was at the time of her illegal detention 18 years old and the guilt of the accused-appellant has been established beyond reasonable doubt, the accused-appellant is not entitled to bail.

WHEREFORE, the decision appealed from is MODIFIED by sentencing the accusedappellant to reclusion perpetua. In all other respects the decision is AFFIRMED. Costs against the accused-appellant.

The petition for bail of the accused-appellant is DENIED.

In accordance with the ruling in People v. Daniel 86 SCRA 511 (1979), let this case be forthwith elevated to the Supreme Court for final determination. (Rollo, pp. 70-78).

A careful review of the original records of this case and of the briefs and various pleadings submitted on appeal shows that the findings of facts and conclusions of law of the Court of Appeals are correct. We adopt its decision as our own.

Considering the foregoing, the accused-appellant is sentenced to reclusion perpetua. The decision of the trial court is affirmed in all other respects with costs against the accused-appellant.

SO ORDERED.

Fernan (Chairman), Paras, Padilla, Bidin and Cortes , JJ., concur.

G.R. No. L-21475

September 30, 1966

AMANCIO BALITE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent

C. Sevilla and R. Daza for petitioner. Office of the Solicitor General Alafriz for respondent.

SANCHEZ, J.:

Called to trial for grave oral defamation by the Municipal Court [now City Court] 1 of Cebu City, petitioner was found guilty thereof and sentenced to 4 months and 1 day of arresto mayor, to indemnify Delfin Mercader in the sum of P5,000.00, with the corresponding subsidiary imprisonment, and to pay the costs. On appeal, the Court of Appeals 2 voted to modify the judgment by elevating the corporal penalty to one ranging from 4 months and 1 day of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum, also with costs.

The case is now before us on review by certiorari.

The facts are not disputed. They are:

In December, 1958, the Democratic Labor Association declared a strike against the Cebu Stevedoring Company. Delfin Mercader, union president, was offered by Richard Corominas & Co., a copra exporter affected by the strike, P10,000.00 as aid to the union and presumably to pave the way for the amicable settlement of the labor dispute. Petitioner was with Mercader when that offer was made. The disposition of this sum and the pleasure of the union in the premises were referred to the union officers and members, including the strikers. At a meeting called for the purpose, it was decided that the amount be accepted and spread amongst all the members. However, at a subsequent meeting attended by Mercader and petitioner, the latter proposed that the amount thus offered be given solely to the officers of the union, leaving out the members thereof. Petitioner's proposal met with vigorous opposition. Passions seemed to have run so high that petitioner walked out of the meeting, threatened to destroy the union and to expose president Mercader. Petitioner then pursued a smear campaign against Mercader. Petitioner's activities caught the attention of the union board of directors. A general meeting was called also in December, 1958. It was then that a resolution was unanimously adopted expelling petitioner from the union.

Came May 21, 1959. Petitioner met at the Cebu City waterfront members of the Marine Officers Guild, namely, Marine Officer Quentin Canlas, Captain Ramirez, First Mates Filemon Go and Alipio Paderanga, Nahum Rada, a certain Banaag, Second Mate Pablito Dael, Fourth Engineer Vivencio Casal, Carlos Cantanas, and Third Mate Divino de la Cruz. The group was on its way to the guild's office. Petitioner then

engaged Canlas in conversation whilst the latter's companions gathered around and within hearing distance of the two. Petitioner then uttered the following words in the Cebu Visayan dialect, which, translated into English, means: "Mr. Mercader sold the Union . . . the money of the Union was swindled in the strike staged by the Democratic Labor Association against the Cebu Stevedoring Company. Atty. Mercader received bribe money in the sum of P10,000.00 from the copra exporter Richard Corominas & Co. and another P6,000.00 from the Cebu Stevedoring Company . . . Atty. Mercader is engaged in racketeering and that he is enriching himself with the capitalists. The money of the Union was spent by him to his own personal benefit".

At the time of the incident just related, Delfin Mercader was legal counsel of the Marine Officers Guild. The quoted imputation apparently affected the guild's feeling and attitude towards Atty. Mercader. For, subsequently, he was eased out as the guild's legal counsel.

Offshoot is the criminal complaint for grave oral defamation lodged by Mercader with the City Fiscal's Office. In pursuance thereof, the City Fiscal's Office filed in the City Court a formal criminal complaint. This complaint the recital of the factual averments omitted winds up with the following:

IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of August, 1959, in the City of Cebu, Philippines.

(SGD.) DELFIN MERCADER Complainant

SUBSCRIBED AND SWORN to before me this 28th day of August, 1959, in the City of Cebu, Philippines.

(SGD.) JOAQUIN T. MAAMBONG

Municipal Judge

xxx

xxx

xxx

BAIL RECOMMENDED:

P500.00.

ATTESTED BY:

(SGD.) CIPRIANO VILLORDON Asst. Fiscal, Cebu City

CERTIFICATION

THIS IS TO CERTIFY that I have conducted preliminary investigation of the above-entitled case, [and there], having taken the testimonies of the witnesses under oath, and there is ground to believe that the crime of grave oral defamation has been committed and that the herein accused is probably guilty thereof.

City of Cebu, Philippines, August 28, 1959.

(SGD.) CIPRIANO VILLORDON Asst. Fiscal, Cebu City

1. Petitioner challenges the Cebu City court's jurisdiction to hear the case. His reasoning runs thus: The defamation imputes upon Mercader the crime of estafa; estafa can only be prosecuted de oficio; therefore, the criminal prosecution may only be started upon an information lodged in court by the fiscal.

Now, to the law. Criminal actions, the general rule states, must be commenced either by complaint or information.3 But petitioner thrusts upon us the view that his case is to be taken out of the operation of this precept. He props up his argument with a citation of the last paragraph of Article 360, Revised Penal Code, viz; "No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offensed party."4

Read as it should be, the plain import of the statute just reproduced is that where defamation imputes a crime which cannot be prosecuted de oficio,5 the general rule must give way, the criminal action must have to be brought solely "at the instance of and upon complaint expressly filed by the offended party". The converse proposition, however, cannot be true. Reasonable construction will not permit a deduction which would constrict criminal prosecution of defamation which can be prosecuted de oficio by means of information. We do not propose to undertake the impermissible task of writing into the statute an alien concept: that which would exclude criminal action started by complaint. Nor should we attribute to the law an occult content.

As unavailing to petitioner is his reliance on the Cebu City Charter which provides that the city prosecuting attorney "shall also have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the Court of First Instance of Cebu and the Municipal Court of the city, and shall discharge all the duties in respect to criminal prosecutions enjoined by law upon provincial fiscals."6 Because, this citation is incomplete. Petitioner only quotes the second part of the first paragraph of Section 37 of the Cebu City Charter. He omits the first part of the second paragraph thereof which reads: "The fiscal of the city shall cause to be investigated all charges of crimes, misdemeanors and violations of ordinances, and have the necessary informations or complaints prepared or made against the person accused."

Taken in context, an unembroidered version of the Cebu City Charter on this point simply is this: A criminal charge is first to be lodged with the fiscal who shall investigate the same; if warranted, he shall have the necessary information or complaint prepared or made against the accused; thereafter, he shall have charge of the prosecution of the crime in court.

Here, the complaint was first lodged with the fiscal. He conducted a preliminary investigation. He found probable cause. He attested to the complaint verified by the complainant. He recommended bail. He caused the complaint to be filed in the city court. In short, he adopted the complaint as his own. These actuations of the fiscal in the case under review pass the statutory requirement. And, in a literal sense. Because, with the verified complaint, he instituted the criminal proceeding.7

Persuasive is the pronouncement of this Court in a 1918 case.8 There, the complaint for libel was signed by the offended party but was presented in court by the prosecuting attorney. This court was called upon to construe Section 14 of Act 277 (the Libel Law) which contains the mandate that all criminal actions for the crime of libel "shall be begun and prosecuted under the sole direction and control of the ordinary prosecuting officers, anything in the existing laws to the contrary notwithstanding." The language we there employed is: The prosecuting officers "may begin such action by the presentation of either a complaint or information"; and, "if the complaint or information is presented by the ordinary prosecuting officers, even though the complaint is signed by a private person, we are of the opinion that the `criminal action for libel' is `begun' in conformity with the requirements of section 14 (Act No. 277)." The evident purpose of the law, this Court there said, "is that no person shall be annoyed with a prosecution for libel without the consent and intervention of the ordinary prosecuting officers." We do not intend to retreat from this wise pronouncement. For, it should be as valid in oral defamation as it is in libel.1awphl.nt

The criminal proceeding herein was properly commenced. The trial court acquired jurisdiction.

2. Petitioner's next line of defense is that the city court of Cebu has no jurisdiction over the crime of serious oral defamation. Again, he falls back on the Cebu City Charter, Section 40 thereof gives the city court authority to try criminal cases where the maximum punishment is by imprisonment for not more than 6 months or a fine of not more than P200.00 or both. Grave oral defamation is penalized with arresto mayor in its maximum period to prision correccional in its medium period.9 Converted into time, this means a prison term from 4 months and 1 day to 2 years and 4 months. Of course, if gauged merely by the charter limitation, the city court would not have jurisdiction.

But the city charter is not controlling. The criminal complaint here was not registered until August 29, 1959. On August 1, 1959, Congress expanded the jurisdictional boundaries of city courts, 10 this time in concurrence with the courts of first instance. By the applicable statute on August 29, 1959, city courts were already empowered to hear and determine criminal offenses where the penalty involved did not exceed six years imprisonment or three thousand pesos fine or both such imprisonment and fine.

The jurisdictional question is therefore resolved in the affirmative.

3. Petitioner pleads prescription. The complaint, he insists, is merely one for slight oral defamation punishable by arresto minor or a fine not exceeding P200.00. This offense lapses in two months.11 The incident took place on May 21, 1959; the complaint was filed on August 29, 1959. Three months and eight days having elapsed, petitioner submits that the crime is time-barred.

But is there substance to the pose that the oral defamation here is slight? Article 358, Revised Penal Code, spells out the demarcation line, between serious and slight oral defamations in this wise: "Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos."

A rule which has long since ripened into dogma is that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried. 12

To differentiate between grave and light slander, we are to be guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending upon, as Viada puts it, ". . . no solo al sentido o significacion gramatical de las palabras pronunciadas, juzgandolasa aisladamente, sino a las circunstancias especiales del caso, antecedentes y relacion que medie entre las personas del

injuriante e injuriado, particulares todos que contribuyen eficazmente a demonstrar la intension del culpable en el momento de delinquir: . . .". 13

With these lampposts to guide us, we proceed to analyze the factual recitals in the complaint. The scurrilous words impute to the offended party the crime of estafa. The language of the indictment strikes deep into the character of the victim: He "has sold the union"; he "has swindled the money of the members"; he "received bribe money in the amount of P10,000.00 . . . and another P6,000.00"; he "is engaged in racketeering and enriching himself with the capitalists"; he "has spent the funds of the union for his personal use."

No amount of sophistry will take these statements out of the compass of grave oral defamation. They are serious and insulting. No circumstances need be shown to upgrade the slander. And, no circumstances were alleged in the complaint. Of course, petitioner's disclaimer is that his words were intended "to correct a procedure which was degrading to the affairs of the union". 14 Both of the lower courts rejected his explanation. And, appreciation of testimony is beyond our zone of action.

If more were needed, let us dig deep into the backdrop. Petitioner wanted the union officers to pocket the sum of P10,000.00 offered to them by Richard Corominas & Co. He eschewed the idea of spreading the benefits to all the union members. He was frustrated in his wish. Then he conducted a smear campaign against the union president. For these, he was expelled from the union. Long after, came the meeting with the officers of the Marine Officers Guild. There, in cool and forceful deliberation, he let go the slanderous statements here charged in the absence of Mercader. This time, he had his way. Mercader was eased out as legal counsel of the Marine Officers Guild. The People has thus clinched a case for grave oral defamation.

4. On March 24, 1966, after the briefs have been filed and this case submitted for decision, the offended party, Delfin Mercader, submitted to this Court an affidavit dated March 22, 1966. He there stated that the prosecution of petitioner, his former classmate and former co-worker in the Cebu labor movement, "was brought about by a misunderstanding in good faith among friends," that petitioner's remarks "were provoked" by Quintin Canlas and were uttered "out of heat and passion engendered by a heated interchange between the two; that he and petitioner had `made up and

reconciled.'" He swore therein to the following: "That in conscience I hereby withdraw, condone, dismiss and waive any and all claims, civil, criminal or administrative, that I may have against Amancio Balite due to or by reason of the misunderstanding which brought about the filing of the said criminal case."

At this stage of the action, this change of heart erects no shield against punishment; it will not insulate petitioner from the effects of his criminal act. And this, notwithstanding the stultified apostasy of the victim.

Temporizing with crime, courts of justice are not to countenance. Because, pardon by the offended party except as provided in Article 344 of the Revised Penal Code does not extinguish the criminal act. 15 And even in the excepted cases, pardon must come before the institution of the criminal proceedings.16

However, express condonation by the offended party has the effect of waiving civil liability with regard to the interest of the injured party. 17 For, civil liability arising from an offense is extinguished in the same manner as other obligations, in accordance with the provisions of the civil law.18 Mercader's affidavit necessarily wipes out the civil indemnity of P5,000.00 granted by the lower courts.

5. For a slight correction of the penalty imposed by the Court of Appeals. The sentence there is for an indeterminate period ranging from 4 months and 1 day of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum. The penalty for grave oral defamation is arresto mayor, maximum, to prision correccional, minimum. 19 No modifying circumstance is attendant. The minimum of the penalty under the indeterminate sentence law must be within the range next lower in degree, that is, arresto mayor in its minimum and medium periods.20

Conformably to the foregoing, the judgment under review is hereby modified. Petitioner, guilty beyond reasonable doubt of the crime of grave oral defamation, is hereby sentenced to serve a prison term ranging from 4 months of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum. The civil indemnity of P5,000.00 is deleted from the judgment under review. Costs against petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur. Barrera and Bengzon, J.P., JJ., took no part.

G.R. No. 78911-25 December 11, 1987

CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudia respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in the aforestated criminal cases.

It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to Branch 84.

The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition for recuse dated May 19,1986.

The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then presided over by Judge Johnico G. Serquina

During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.

In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105.

On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order."

The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March 10, 1987.

Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.

In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration.

Hence, this petition questioning the orders of the respondent Court.

The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor.

The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing worthless checks as an offense against public order. As such, it is argued that it is the State and the public that are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor may intervene.

On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas Pambansa Blg. 22 so provides.

A careful study of the concept of civil liability allows a solution to the issue in the case at bar.

Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man criminally liable is also civilly liable" (Art. 100, The Revised Penal Code). Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused

to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247).

Article 20 of the New Civil Code provides:

Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses. (United States v. Bernardo, 19 Phil. 265).

Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money, property or services. She suffered with the State when the checks bounced.

In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that "The effects of a worthless check transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the private party

defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to the public."

Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive the payment of money for which the worthless check was issued. Having been caused the damage, she is entitled to recompense.

Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended private party defrauded and empty- handed by excluding the civil liability of the offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so, may leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore, be brought to naught.

The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the protection of her interests but also in the interest of the speedy and inexpensive administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability is clearly unwarranted.

WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further proceedings. This decision is immediately executory.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. 171643

August 8, 2010

FILEMON A. VERZANO, JR., Petitioner, vs. FRANCIS VICTOR D. PARO, JANET A FLORENCIO, HON. REGIONAL STATE PROSECUTOR, and HON. CITY PROSECUTOR OF BACOLOD, Respondents.

DECISION

PERALTA, J.:

Before this Court is a petition for review on certiorari,1 under Rule 45 of the Rules of Court, seeking to set aside the July 28, 2005 Decision2 and the February 7, 2006 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 86521.

The facts of the case are as follows:

On March 14, 2002, petitioner Filemon A. Verzano, Jr., former District Manager of Wyeth Philippines, Inc. (Wyeth) for the islands of Panay and Negros, was dismissed from service upon an administrative complaint filed against him. Among the individuals who filed the complaint against petitioner were respondents Francis Victor D. Paro (Paro) and Janet A. Florencio (Florencio) who were territory managers under the supervision of petitioner.

The complaint was founded on petitioners alleged violation of company policy on prohibited sale of drug samples given for free to doctors and for the unauthorized act of "channeling," or the transfer of stocks within the same area falsely creating an impression that there was a sale. After conducting its own investigation and giving

petitioner an opportunity to explain his side, Wyeth resolved to dismiss petitioner tendering him a Notice of Termination.4

Aggrieved by his termination, petitioner filed a Complaint5 for illegal dismissal with the Regional Labor Arbitration Board, National Labor Relations Commission (NLRC), Bacolod City against Wyeth. For its part, Wyeth filed its Position Paper to rebut the charges of petitioner. Attached to the position paper of Wyeth were the affidavits6 of respondents Paro and Florencio.

It was on account of the said affidavits that petitioner filed a criminal complaint7 against respondents for perjury, false testimony and incriminatory machination. In said complaint, petitioner argued that the affidavits of respondents contained falsehoods against him, particularly on the material date of the alleged sale and the fact that he sold products which are to be given free to doctors. He also argued that the alleged acts of "channeling" by him are false and unfounded.

Subpoenas were issued by the City Prosecutor against respondents for the submission of their respective counter-affidavits; however, the return of the subpoenas showed that respondents could not be located at their given addresses.

In a Resolution8 dated March 3, 2004, notwithstanding that no counter-affidavits were submitted by respondents, the City Prosecutor resolved to dismiss petitioners complaint, the dispositive portion of which reads:

WHEREFORE, finding no probable cause, all the charges are hereby recommended dismissed for insufficiency of evidence.9

Petitioner then filed a motion for reconsideration,10 which was, however, denied by the City Prosecutor in a Resolution11 dated June 11, 2004.

Petitioner appealed the Resolution of the City Prosecutor to the Office of Regional State Prosecutor via a petition for review.12 On July 30, 2004, the Regional State Prosecutor

issued a Resolution13 finding merit in petitioners appeal, the dispositive portion of which reads:

WHEREFORE, your Resolution dated March 3, 2004 is hereby reversed and you are hereby directed to file the appropriate information for Perjury against Francis Victor D. [Paro] and Janet A. Florencio within (5) days from receipt hereof, furnishing this Office with proof of compliance within the same period.14

Aggrieved, respondents filed a motion for reconsideration.15 In a Resolution16 dated August 25, 2004, the Regional State Prosecutor denied respondents motion.

On September 20, 2004 two Informations for perjury were filed against respondents in the Municipal Trial Court in the Cities (MTCC), Bacolod City. The Information against respondent Florencio was docketed as Criminal Case No. 049-8479, whereas, the Information against respondent Paro was docketed as Criminal Case No. 049-8480.

On the same day, September 20, 2004, respondents filed a petition for certiorari before the CA assailing the Resolutions of the Regional State Prosecutor which reversed the earlier Resolution of the City Prosecutor. Respondents likewise prayed for the issuance of a temporary restraining order (TRO) from the CA.

On October 7, 2004, the MTCC issued Warrants of Arrest against respondents. On the same day, respondent Florencio posted bail. Respondent Paro followed suit on October 8, 2004.

In a Resolution dated October 14, 2004, a TRO was issued by the CA, the pertinent portion of which reads:

xxxx

In order not to render moot and academic the instant petition, a temporary restraining order (TRO) is hereby issued temporarily enjoining the public respondent Chief Prosecutor from acting on the assailed Order issued by the public respondent Regional State Prosecutor for a period of sixty (60) days from receipt hereof.17

In light of the issuance of a TRO by the CA, respondents filed with the MTCC a Manifestation and Urgent Motion to Suspend Proceedings18 on November 2, 2004.

On November 10, 2004, the MTCC issued an Order,19 granting respondents motion to suspend the proceedings.

On July 28, 2005, the CA rendered a Decision,20 ruling in favor of respondents, the dispositive portion of which reads:

WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the assailed Resolutions dated July 30, 2004 and August 25, 2004 are REVERSED and SET ASIDE.

SO ORDERED.21

In ruling against petitioner, the CA ruled, among others, that the Regional State Prosecutor committed grave abuse of discretion when he directed the filing of the Informations for perjury on the simple reason that no counter-affidavits were submitted by respondents. In addition, the CA held that even though the Informations had already been filed in the MTCC, the same did not bar the CA from reviewing and correcting acts tainted with grave abuse of discretion.

Aggrieved, petitioner filed a motion for reconsideration, which was, however, denied by the CA in a Resolution22 dated February 7, 2006.

Hence, herein petition, with petitioner raising the following issues for this Courts consideration, to wit:

I.

THE PETITION FILED BY PRIVATE RESPONDENTS WITH THE COURT OF APPEALS HAD BEEN RENDERED MOOT AND ACADEMIC BY THE FILING OF THE CASES IN COURT.

II.

THE REGIONAL STATE PROSECUTOR DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN REVERSING THE RESOLUTION OF THE CITY PROSECUTOR.

III.

THE PETITION FOR CERTIORARI FILED BY HEREIN PRIVATE RESPONDENTS WITH THE HONORABLE COURT OF APPEALS IS NOT THE PROPER REMEDY.23

The petition has no merit.

Anent the first issue, petitioner argues that the filing of the informations in the MTCC had already removed the cases from the power and authority of the prosecution to dismiss the same in accordance with the doctrine laid down in Crespo v. Mogul24 (Crespo), to wit:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the

direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.25

In addition, petitioner points out that warrants of arrest were already issued by the MTCC and that respondents had already individually posted bail. Petitioner thus concludes, that the issue of whether or not the Regional State Prosecutor committed grave abuse of discretion when he directed the filing of Informations for perjury against respondents had already become moot and academic.

Petitioner is not entirely correct. As discussed in Ledesma v. Court of Appeals26 (Ledesma), Crespo does not foreclose an appeal made to the resolution of a prosecutor in the determination of probable cause notwithstanding that informations had already been filed in court, to wit:

In Marcelo vs. Court of Appeals, the Court clarified that Crespo did not foreclose the power or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice.

The justice secretary's power of review may still be availed of despite the filing of an information in court. x x x27

In the case at bar, while it is generally the Secretary of Justice who has the authority to review the decisions of the prosecutors, this Court agrees with the CA that the same precedential principles apply in full force and effect to the authority of the CA to correct the acts tainted with grave abuse of discretion by the prosecutorial officers

notwithstanding the filing of the informations before the MTCC.28 The authority of the CA is bolstered by the fact that the petition filed before it was one under Rule 65, therefore it has the jurisdiction to determine whether or not the Regional State Prosecutor acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

Ledesma29 adds that where the secretary of justice exercises his power of review only after an Information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. On this note, the MTCC was thus correct when it suspended the proceedings in view of the appeal taken by respondents to the resolution of the Regional State Prosecutor. As observed by the CA, the suspension of the proceedings by the MTCC was done in the exercise of its jurisdiction, to wit:

To a certain extent, the respondents asseverations are correct when they say by the operative act of filing of the informations before it, the MTCC has acquired jurisdiction over the criminal proceedings against petitioners. Indeed, the suspension of said proceedings is one such exercise of jurisdiction, and therefore, respondents worries of the MTCC being divested of jurisdiction or competence over the proceedings are at best, speculative and illusory.30

Anent the second issue raised by petitioner, the same is without merit. Petitioner argues that the Regional State Prosecutor did not commit grave abuse of discretion when it reversed the finding of the city prosecutor that no probable cause existed to warrant the filing of the Informations against respondents.

In finding grave abuse of discretion, the CA opined that the Regional State Prosecutor reversed the finding of the City Prosecutor on the simple reason that respondents failed to submit counter-affidavits. The CA ruled that it would have been different had the Regional State Prosecutor reversed the resolutions of his subordinate upon a positive finding of probable cause.

The pertinent portions of the July 30, 2004 Resolution of the Regional State Prosecutor is hereunder reproduced, to wit:

Perusal of the affidavits executed by Francis Victor D. [Paro] and Janet A. Florencio reveals the following:

a) The material matter contained in these affidavits refer to the act of selling by Filemon Verzano, Jr. of Tazocin products intended to be distributed as free samples in violation of company policy. The date when the sale was made is not a material issue.

b) The affidavits of the respondent were executed before a Labor Arbiter and a Notary Public who are persons authorized to administer oaths.

c) There is also no question that these affidavits are required by law as they were attached as part of the position paper submitted with the Labor Arbiter handling the labor case.

d) Although there is yet no clear evidence that there was an apparent willful and deliberate assertion of falsehood on their part, the respondents by their failure to file or submit their respective counter-affidavit for their defense, are deemed to have waived the same and in effect, the allegations in the complaint remain uncontroverted.

The case record will show that your Office, in the determination of probable cause vis-vis the attending set of facts and circumstances, failed to consider the application of the procedure laid down under Section 3 paragraph (d) of Rule 112 of the Revised Rules of Procedure which provides:

If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10)-day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Only a counter-affidavit subscribed and sworn to by the respondent before the Public Prosecutor can dispute or put at issue the allegations in the complaint thus, a

respondent who fails to submit his counter-affidavit within the required period is deemed not to have controverted the complainants evidence.31

Contrary to the claim of petitioner that the Regional State Prosecutor found probable cause, the July 30, 2004 Resolution does not show that the latter actually made an independent assessment of the evidence presented in the investigation. As a matter of fact, the clear import of the July 30, 2004 Resolution is that the mere failure of respondents to submit counter-affidavits automatically warrants a finding of probable cause against them.ten.lihpwal The fallacy in such theory is very apparent and the CA is thus correct when it observed that:

To follow the public respondent Regional State Prosecutors skewed premise that only counter-affidavits can dispute or controvert allegations in the Complaint, would be to perpetuate an absurdity wherein a criminal complaint should automatically be resolved in favor of the complainant in the absence of counter-affidavits. x x x32

It is not disputed that the Regional State Prosecutor has the authority to reverse the findings of the existence of probable cause on review. However, a perusal of the July 30, 2004 Resolution would show that little attempt was made by the Regional State Prosecutor to discuss the existence or non-existence of probable cause and that much reliance was made on a flawed interpretation of Section 3, paragraph (d) of the Revised Rules of Procedure.1avvphi1

What makes matters worse is that in his August 25, 2004 Resolution which dealt with respondents Motion for Reconsideration, the Regional State Prosecutor stuck with his theory and even relied on another flawed interpretation of Section 3, paragraph (b) of Rule 112, to wit:

x x x It would have been a different scenario if it falls within the scope of Rule 112, Section 3, paragraph (b) which provides:

b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a

subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

In the instant case, the Investigating Prosecutor found ground to continue with the inquiry which is why he issued subpoenas to the respondents to submit their counter affidavit within the 10-day period, since he could have dismissed it initially if indeed there was really no evidence to serve as a ground for continuing with the inquiry. For failure of the respondents to file their respective counter-affidavits, they are deemed to have forfeited their right to preliminary investigation as due process only requires that the respondent be given the opportunity to submit counter-affidavit, if he is so minded. x x x33

The clear import of Section 3, paragraph (b), of Rule 112 is that the Investigating Prosecutor may issue subpoenas if he finds grounds to continue with the investigation. However, the continuance of the investigation does not necessarily mean that the result will be an automatic conclusion of a finding of probable cause. To subscribe to such a theory would defeat the very purpose of a counter-affidavit which is to honor due process and to provide respondents an opportunity to refute the allegations made against them. Again, the conclusion reached by the Regional State Prosecutor is manifestly wrong as the CA was correct when it observed that the issuance of a subpoena would become unceremoniously clothed with the untoward implication that probable cause is necessarily extant.34

Based on the foregoing, because of the manner by which the Regional State Prosecutor resolved the case, this Court finds that the same constitutes grave abuse of discretion, as his interpretation and appreciation of the Rules of Court have no legal bases.

Lastly, petitioner argues that the petition for certiorari filed by respondents with the CA was the wrong remedy, considering that the proper procedure was to appeal to the Secretary of Justice under Department Circular No. 70,35 otherwise known as the "2000 NPS Rule on Appeal."

The same deserves scant consideration.

Time and again, this Court has held that the principle of exhaustion of administrative remedies is not without exception. Based on the previous discussion, the actions of the Regional State Prosecutor, being patently illegal amounting to lack or excess of jurisdiction, the same constitutes an exception to the rule on administrative remedies.36

Finally, what is damning to petitioners cause is the fact that the MTCC had already withdrawn the two Informations filed against respondents. As previously stated, the MTCC suspended the proceedings before it in view of the petition filed by the respondents with the CA. In Ledesma,37 this Court stated that such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case.38 Since the Informations for perjury had already been filed in the MTCC, any subsequent action must be addressed to the said courts discretion.

In the case at bar, the CA found that the Regional State Prosecutor acted with grave abuse of discretion when he ordered the City Prosecutor to file the Informations for perjury against respondents. It was because of the CA Decision that the City Prosecutor eventually filed two Motions for Leave to Withdraw Informations39 with the MTCC. On August 30, 2005, the MTCC issued an Order40 granting the motion, to wit:

Acting on the Motion for Leave to Withdraw Informations filed by the prosecution, through 2nd Asst. City Prosecutor Arlene Catherine A. Dato, and finding it to be impressed with merit, the same is hereby Granted.

Accordingly, the information against accused Janet Florencio in the above-entitled case is hereby Withdrawn.

SO ORDERED.41

The court is the best and sole judge of what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. Thus, the court may deny or grant a motion to withdraw an information, not out of subservience to

the (Special) Prosecutor, but in faithful exercise of judicial discretion and prerogative.42 The dismissal of the two informations against respondents were subject to the MTCCs jurisdiction and discretion in view of the circumstances of the case at bar. Such dismissal ultimately renders the case moot and academic.

WHEREFORE, premises considered, the petition is DENIED. The July 28, 2005 Decision and the February 7, 2006 Resolution of the Court of Appeals, in CA-G.R. SP No. 86521, are AFFIRMED.

SO ORDERED.

G.R. No. 102955. March 22, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADRIAN ENRIQUEZ y GARCES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Escasinas Partners & Company for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; REGULAR PERFORMANCE OF OFFICIAL DUTIES; STANDS IN THE ABSENCE OF STRONGER PROOF TO OVERCOME THEREOF. A reading of the testimony of the accused reveals that there was no improper or ill-motive that may be attributed to Narcom Agents, Sgt. Inding and Sgt. Misa, to frame him up. Neither was there any allegation that said Narcom Agents made any extortion attempt on him. On the contrary, the accused testified that he is in good terms with Sgt. Inding. On the part of Sgt. Misa, accused knew him only at the Narcom office. As We have held in the case of People v. Como, (202 SCRA 200)

the defense that accused was framed up by the police officers requires stronger proof because of the presumption that public officers acted in the regular performance of their official duties. There is nothing in the record to suggest that the Narcom Agents were compelled by any motive other than to accomplish their mission to capture a drug pusher in the execution of the crime. Hence, We find the claim of the accused that he was framed by the prosecution witnesses or there was extortion on their part as unbelievable.

2. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY MINOR DISCREPANCY IN THEIR TESTIMONIES. The questions as to who frisked the accused's pocket is a minor detail that does not destroy the credibility of the prosecution witnesses. Total recall or perfect symmetry is not required. As long as the witnesses concur on material points, slight differences in their remembrance of the details do not reflect on the essential veracity of their testimony.

3. ID.; CRIMINAL PROCEDURE; PROSECUTION OF ACTION; ALL PERSON WHO APPEAR RESPONSIBLE SHALL BE CHARGED IN THE INFORMATION. Going to the contention of the Solicitor General that it is highly suspect for the prosecution to charge only the accused in the information and not include a certain Bienvenido Genonsalao whom the members of the buy-bust operation team identified in their joint affidavit as the person who handed the accused some sticks of marijuana and who had escaped. Section 1, Rule 110 of the Rules on Criminal Procedure provides that "(a)ll criminal actions must be commenced either by complaint or information in the name of the People of the Philippines against all persons who appear to be responsible therefore." The law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for an offense. This does not mean, however, that they shall have no discretion at all; their discretion lies in determining whether the evidence submitted justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies that those against whom no sufficient evidence of guilt exists are not required to be included. Hence, it is discretionary on the part of the fiscal whether to include Bienvenido Genonsalao depending on the evidence available to him.

4. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. NO. 6425); SALE OF PROHIBITED DRUGS; REQUIRES MERELY THE CONSUMMATION OF THE SELLING TRANSACTION. The offense of illegal sale of marijuana requires merely

the consummation of the selling transaction whereby the accused hands over the sticks of marijuana upon the agreement of the poseur buyer to exchange it for money. In the case at bar, prosecution witness Sgt. Inding positively and categorically identified the accused Adrian Enriquez as the person who sold the marijuana cigarettes to him.

DECISION

CAMPOS, JR., J p:

Accused Adrian Enriquez y Garces seeks a reversal of the decision * dated September 16, 1991 in Criminal Case No. 21734 of the Regional Trial Court of Cebu, 7th Judicial Region, Branch 8, finding him guilty of having violated Article II, Section 4 of Republic Act No. 6425 otherwise known as the Dangerous Drugs Act of 1972.

On April 23, 1991, the Assistant Provincial Prosecutor filed an information charging the accused with violation of Article II, Section 4 of the Dangerous Drugs Act committed as follows:

"That on or about the 19th day of April, 1991 at around 7:00 o'clock in the evening, more or less, in Barangay Perrelos, Municipality of Carcar, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court the above-named accused with deliberate intent and without any permit or license issued by any government agency, did then and there willfully, unlawfully and feloniously sell, deliver, distribute and give away ten (10) sticks of handrolled Indian hemp cigarette, commonly known as "Marijuana" to an informant, and the latter gave to the accused the buy money of TWENTY PESOS (P20.00) with Serial No. LU716642 and likewise recovered were 47 sticks of Marijuana cigarette and 59 stick (sic) surrendered by the accused, classified and in violation of the Dangerous Drugs Act of 1972.

CONTRARY TO LAW." 1

On May 21, 1991, the accused, assisted by his counsel, pleaded not guilty to the information. 2

After due trial, the trial court rendered its decision finding the accused guilty beyond reasonable doubt of the crime charged, the dispositive portion of which reads:

"The Foregoing Considered, this Court finds the accused ADRIAN ENRIQUEZ Y GARCES, guilty beyond reasonable doubt of the crime of selling marijuana cigarettes as defined and penalized in accordance with Sec. 4 Art. II RA 6425 as amended by BP Blg. 179, and hereby imposes upon him the penalty of LIFE IMPRISONMENT, and a fine of P20,000.00 with costs against him. The 10, 47, and 59 sticks of marijuana cigarettes are hereby FORFEITED in favor of the government.

So Ordered." 3

From the judgment of conviction, the accused appealed, assigning the following as the errors 4 allegedly committed by the trial court:

THE COURT A QUO ERRED IN NOT CONSIDERING THE TOTALITY OF EVIDENCE PRESENTED BY MERELY RELYING ON THE TESTIMONIES OF RICARDO INDING.

II

THE GUILT OF THE ACCUSED-APPELLANT HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT, HENCE IS ENTITLED TO AN ACQUITTAL.

As gathered from the evidence presented by the prosecution, a surveillance on the person of the accused was conducted on April 17 and 18, 1991 by Sgt. Inding, a member of the 7th Narcotics Unit of the Philippine National Police (PNP) in Lahug, Cebu City 5 based on a report received from a concerned citizen that there are drug pushers in the area. 6 During his surveillance, Sgt. Inding stayed in the store at the corner going to the residence of the accused 7 . He was able to identify the person of the accused, and to observe the activity of the accused in the illegal business dealing in drugs. He saw many teenagers coming in and out of the residence of the accused and he personally noticed that these teenagers handed over some money to the accused and the latter in turn gave them thinly rolled cigarette to each of the former. 8

On April 19, 1991 at about 7:00 o'clock in the evening, Lt. Ughoc, Staff Sgt. Eduardo Misa, Sgt. Inding and some other narcotics agents, all of the 7th Narcotics Regional Unit 9 went to Perrelos, Carcar, Cebu to conduct a buy-bust operation. 10 After being briefed by their team leader, Lt. Ughoc, for more or less 45 minutes, 11 they proceeded to their target area. They stopped more or less 200 meters from the house and walked towards the residence of the accused. 12

Sgt. Inding, who was disguised as an addict or a drug user (wearing black sunglasses and short pants), proceeded directly to the accused's residence while his back-up stayed at a distance of more or less 10 meters from his position. 13 At the entrance of the accused's residence, he was seen by the accused, who immediately approached him. Sgt. Inding offered to buy 10 sticks of marijuana cigarettes. Immediately, the accused handed him the 10 sticks and got the money. 14

After having received the 10 sticks of marijuana, Sgt. Inding's companions immediately effected the arrest. 15 A body search on the accused yielded 47 sticks of marijuana cigarettes hidden in his back pocket while 59 sticks of marijuana cigarettes were voluntarily surrendered by the accused. 16

A Chemistry Report submitted by Lt. Myrna Ariola, Chief of the Chemistry and Physical Identification Section, PNP, Crime Laboratory, Region 7, Cebu City states that the 10, 47 and 59 sticks are positive for marijuana. 17

Accused presented a different version of what transpired. He testified that for the last 20 years, he has been engaged in poultry raising, piggery and so forth, and during market days he goes to Sibonga, San Fernando, Carcar proper, Montalongon to sell dog chains, tawas, hair puller, hammer, saw, chisel, carborundum (grinding stone) etcetera in these places. 18 In the evening of April 19, 1991 he was in his house. Wilfredo Da-an and Franco Garces were also there. Da-an introduced Garces to him because the latter wanted to borrow money. That was the only occasion that Garces was there. 19 While talking with Garces, somebody arrived with a plastic bag and said he wanted to buy "tawas" or alum. He invited him inside the house. As soon as the visitor entered, accused suddenly heard a loud banging of the door from outside. Thereafter, persons with drawn guns rushed inside the house and he heard the cocking of firearms. 20 He protested. As a matter of fact, he called the attention of an elder brother, but a gun was pointed at his mouth. He was told to accompany them otherwise he will be killed. He was then brought to the Narcom Headquarters in Lahug. On the jeep was the person who went up the house carrying the plastic bag. At the Narcom Office he inquired about the identity of the person who was carrying the plastic bag but no answer was given him. 21

Accused insisted that the 10 sticks of marijuana cigarettes were planted and that he saw the 47 and 59 sticks for the first time in court during the trial. 22 On the other hand, the Solicitor General recommended the acquittal of the accused because of the existence of alleged major contradictions in the testimonies of the prosecution witnesses, Sgt. Inding and Sgt. Misa.

We do not agree with the recommendation of the Solicitor General.

It is a matter of fact that opium, marijuana or any other prohibited drug can easily be planted by some corrupt law enforcement agents on innocent victims as a convenient vehicle of extortion. Many such persons would rather buy peace than risk a prosecution however false it may be. In any case, the courts must be vigilant. A handy defense in such cases is that it is a frame-up and that the police attempted to extort from the accused. Extreme caution must be exercised in appreciating such defense. It is just as easy to concoct as it is to make a frame-up. At all time, the police, the prosecution, and the courts must always be on guard against these hazards in the administration of criminal justice. 23

In the case at bar, the defense tried to prove the alleged "planted evidence" and extortion attempt through the testimony of prosecution witness, Sgt. Misa. A careful reading of the transcript of stenographic notes of Sgt. Misa's testimony does not impress upon Us any doubt or suspicion which the defense would want this Court to believe. At most, the testimony of Sgt. Misa shows that he is not accustomed to the rudiments of trial. His failure to promptly answer the questions propounded on him was not due to any intent to conceal but may be said to be due to the injection of statements made by the defense counsel after each question. The atmosphere of the court room during the trial coupled with interruptions by counsel can affect the accuracy and manner of a witness in answering questions. 24

Another evidence which the defense wants this Court to look into is the testimony of defense witness Elpidio Escano which according to the defense "materially corroborated in material points the oral testimony of the accused". 25 Unfortunately, the transcript of stenographic notes of his testimony was not submitted to this Court hence We cannot go over the same. 26 However, a reading of the summarized testimony of said witness by the trial court shows that his testimony materially contradicted that of the accused. Accused testified that at around 7:00 o'clock in the evening of April 19, 1991, Wilfredo Da-an and Franco Garces were in his house. While he was talking with Franco Garces, a person whom he cannot identify and who brought with him a plastic bag also arrived at his house. 27 If the testimony of witness Elpidio Escano is to be believed, he would have seen Franco Garces inside the house together with Wilfredo Da-an since according to him his house is only 5 meters away from the house of the accused. 28

Neither is the testimony of Wilfredo Da-an of any help to the accused. Wilfredo Da-an testified that after the accused was arrested, he ran out of the house of the accused and there he met Franco Garces who was asking him if accused has money to loan him 29 which testimony again materially contradicted that of the accused.

The testimony of the accused imputing extortion and planted evidence or frame-up against the members of the buy-bust operation team is reproduced as follows:

"Court

Q The Information says a total of 10 sticks of marijuana, planted or not?

A Planted.

Q Where?

A I don't have any knowledge about that.

Q When did you see these 10 sticks of marijuana the first time?

A Here in court.

Q What about the 47 sticks of marijuana cigarettes in a (sic) separate 59 sticks surrendered by you, where did you see these sticks of marijuana cigarettes?

A Here in court.

Q What happened at the Narcom?

A I was placed inside the cell.

Q No interrogation?

A No investigation.

Q You mean after you were brought to the Narcom headquarters, no interrogation method? You were just placed inside?

A Nothing, but there was somebody who called by telephone.

Q Who was that fellow?

A Somebody called me while I was in the cell and in the telephone he told me if I have P10 thousand I will be freed. I was even wondering who was that fellow.

Q You were at the Narcom. You were fetched by the military that there was somebody who tries (sic) to call you by phone?

A Yes, sir.

Q Did you not ask him who was he?

A No, sir.

Q Did you mention willingness to do payment or what?

A No, sir.

Q What did you tell him?

A I told him to come and we will talk.

Q Did you use the telephone of Major Hasan?

A The telephone of (sic) his office.

Q The telephone in (sic) his table?

A Yes, sir.

Q Where was Major Hasan when somebody made the call?

A He was not in his office.

Q Who was the official on duty?

A Inding and Misa.

Q Do you know this Misa?

A Yes, Narcom Agent.

Q How did you happen to know him?

A I only knew him at the office.

Q What was your dealing with him?

A He only said, Enriquez you have a telephone call.

Q How did you know he was Misa?

A I inquired from other prisoners.

Q Do you know Inding?

A Yes, sir, also at the Narcom office.

Q That was the first time you met him?

A Yes, sir.

Q Was he not making arrangement with you?

A No, sir.

Q Are you sure?

A Yes, sir.

Q You are in good terms with him as of today?

A Yes, sir?.

Q Are you in good term with him as of today?

A Yes, sir, he is good Inding.

Q This Misa you are in good term with him as of today?

A I have not talked with Misa.

Q You know (sic) Inding and Misa both of them only after your arrest?

A Yes, sir." 30

A reading of the aforequoted testimony of the accused reveals that there was no improper or ill-motive that may be attributed to Narcom Agents, Sgt. Inding and Sgt. Misa, to frame him up. Neither was there any allegation that said Narcom Agents made any extortion attempt on him. On the contrary, the accused testified that he is in good terms with Sgt. Inding. On the part of Sgt. Misa, accused knew him only at the Narcom office.

As We have held in the case of People v. Como, 31 the defense that accused was framed up by the police officers requires stronger proof because of the presumption that public officers acted in the regular performance of their official duties. There is nothing in the record to suggest that the Narcom Agents were compelled by any motive other than to accomplish their mission to capture a drug pusher in the execution of the crime. Hence, We find the claim of the accused that he was framed by the prosecution witnesses or there was extortion on their part as unbelievable.

Going now to the contention of the Solicitor General that it is highly suspect for the prosecution to charge only the accused in the information and not include a certain Bienvenido Genonsalao whom the members of the buy-bust operation team identified in their joint affidavit (Exhibit 2) as the person who handed the accused some sticks of marijuana and who had escaped.

Section 1, Rule 110 of the Rules on Criminal Procedure provides that "(a)ll criminal actions must be commenced either by complaint or information in the name of the People of the Philippines against all persons who appear to be responsible therefore." (Emphasis supplied.) The law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for an offense. This does not mean, however, that they shall have no discretion at all; their discretion lies in determining whether the evidence submitted justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies that those against whom no sufficient evidence of guilt exists are not required to be included. 32 Hence, it is discretionary on the part of the fiscal whether to include Bienvenido Genonsalao depending on the evidence available to him.

The offense of illegal sale of marijuana requires merely the consummation of the selling transaction whereby the accused hands over the sticks of marijuana upon the agreement of the poseur buyer to exchange it for money. In the case at bar, prosecution witness Sgt. Inding positively and categorically identified the accused Adrian Enriquez as the person who sold the marijuana cigarettes to him. The only instance linking Genonsalao to the offense is that the accused ordered him to get the 10 sticks of marijuana cigarettes. Hence his participation was not sufficiently established which may be the reason why the fiscal did not include him in the information.

The Solicitor General also finds "it highly incredible for accused to be still calling out to Genonsalao to give him some sticks of marijuana when he has in his back pocket 47 sticks of marijuana cigarettes." 33

The foregoing does not strike Us as highly incredible because the 47 sticks of marijuana found in the possession of the accused were "probably intended for a different purpose like another sale or its direct use by the possessor." 34

The Solicitor General also finds it incredible that Sgt. Misa who was a member of the entrapment team would not be apprised of the details of their operation, i.e. the marked money which constitutes the next if not equally most important piece of evidence as the prohibited merchandise. 35

It will be noted that Sgt. Misa was designated as the back-up of poseur-buyer Sgt. Inding. He was not the poseur-buyer hence it is understandable that he was not apprised of the facts about the marked money. Besides, evidence on record shows that it was Sgt. Inding who recovered the marked money from the accused. He also identified the same during the trial.

Lastly, the questions as to who frisked the accused's pocket is a minor detail that does not destroy the credibility of the prosecution witnesses. Total recall or perfect symmetry is not required. As long as the witnesses concur on material points, slight differences in their remembrance of the details do not reflect on the essential veracity of their testimony. 36

WHEREFORE, in the light of the foregoing findings, We hold that the evidence was sufficient to sustain the verdict, finding the accused guilty beyond reasonable doubt of the crime as charged. The findings of the trial Court are hereby AFFIRMED.

SO ORDERED.

Narvasa C . J ., Padilla, Regalado and Nocon, JJ ., concur.

[ G.R. No. L-11641, November 29, 1962 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. VIVENCIO CATLI, DEFENDANT AND APPELLANT.

DECISION

BENGZON, C.J.:

This case began with an information against Vivencio Catli charging that sometime in May 1948, in Tiaong, Quezon Province, he inflicted mortal injuries upon Vidal Saludo, assisted by two others still at large. Aggravating circumstances of treachery, superior strength and means to weaken the defense were cited.

After trial, the court of first instance of Quezon adjudged him guilty of murder, and sentenced him to suffer life imprisonment with the accessories, to indemnify Saludo's heirs in the sum of P6,000.00 sans subsidiary imprisonment, and to defray the costs.

Insisting on his innocence, the accused seasonably appealed, raising here these material points: (a) substantial variance between the allegations and the proof, because while the information indicated three persons as authors of the crime, the prosecution's evidence showed there were more; (b) delay of seven years in the prosecution of the crime; (c) the testimonies of the State witnesses are evidently fabricated.

The people's evidence discloses that on May 6, 1943, Vidal Saludo, then barrio lieutenant of Bucal, Tiaong, was living with his wife, Fausta Mercado, their children and a 14-year old godson Francisco Lopez, in a house located in said barrio. At about 7:00 a.m. of said day, several armed men headed by appellant Vivencio Catli inquired from Fausta Mercado the whereabouts of her husband, and upon being informed that the latter was upstairs, Catli went up and requested Vidal Saludo to accompany him to look for Benito Tenorio who had strayed from the appellant's group; yielding to this request, Saludo joined the appellant's band iwhich proceeded westward; Saludo was then wearing rubber shoes, white polo shirt and fatigue pants. And that was the last time his family saw him.

At around 11:00 o'clock of that same morning, Marcelo Verano, who was pasturing his carabao in the northern part of barrio Bucal, heard someone groaning; out of curiosity, he proceeded to the place whence the sounds had come, cautiously peered through some bushes and espied appellant beating Vidal Saludo with a rice pestle, in the presence of armed companions, one of whom remarked: "That is enough Babing, he is already dead;" seized With fear, Verano left the place but refrained from disclosing to others what he had observed, because he surmised that appellant and his men were Huks.

At about 2:00 p.m. of the same day, Diego Martija, then a member of the rural council of Bucal, met Maria Saludo who sobbingly told him that her brother Vidal had been taken by the Huks led by appellant; she begged his help to locate Vidal, and after some hesitation, Martija responded by asking a neighbor, Leoncio Manimtim to accompany him to search for Vidal. The pair followed the trail Vidal was last seen to have taken, making inquiries from people who may have seen Saludo's group; the search ended near the Capanglao river; en route, the two, Martija and Manimtim discovered some drops of blood. As they approached the river, the two found a newly dug grave covered with coconut leaves; they brushed off the leaves only to find a castorillo hat which they recognized as one Vidal Saludo was wont to wear. Replacing the coconut leaves, the two left for their respective homes, but refrained from revealing their findings to the authorities, for fear of the Huks.

Years after or in 1951, Diego Martija was appointed barrio lieutenant of Bucal but he was not provided with firearms; then on March 22, 1955, he was named chief of the civilian commando unit of the same barrio and was given a gun. Emboldened by the possession of such weapon and encouraged by the government campaign against the dissidents, Martija sometime in December, 1955, reported to the police chief of Tiaong what he knew about Vidal Saludo's killing. On December 5, 1955, the police chief with some PC soldiers exhumed the remains of Vidal Saludo; inside the grave, which he pointed out, they found bones of a human skeleton and a pair of soles of rubber shoes. The bones were gathered in an army sack, shipped to the NBI in Manila for medicolegal examination, and following such examination, Dr. Jesus D. Crisostomo, medicolegal officer submitted an osteological report with the conclusion that:

"1.

Those bony remains are human in origin.

2.

They belong to only one individual.

3.

That the set of bones belongs to a male individual.

4.

That this individual has a stature of approximately 165.812 cms. (5 feet-5 inches) plus or minus.

5.

That the probable age of time of death of this individual may lie between 35 and 45 years.

6.

That no cause of death can be assigned or given in this particular individual, as the submitted and assorted bones as a set does not show any sign of antemortem injury.

7.

That considering the moderately advanced postmortem disintegration of the bones submitted (sorted and non-sorted), the probable length of time that may have already elapsed after burial may be placed between five (5) and ten (10) years."

Appellants defense revolyes around an alibi. He testified that in 1946, he lived in the house of Arcadio Exconde in barrio Quipot, Tiaong; that in March 1948, he moved to barrio "Sta. Clara, Sto, Tomas, Batangas, residing in the house of Elena Jaurigue, sister of Gorgonia, the girl he was courting; that following an old native custom, he stayed in Sta. Clara performing such chores as drawing water and clearing the coffee farm in the service of the woman, object of his affections; that he never left Sta. Clara until July 1948 when, having ostensively won the girl's favor, he and his bride-to-be departed for barrio Quipot, Tiaong, where they resided in peace arid contentment. He recounts that on April 6, 1951, five men lured him from his house at wight and after leading him some five meters away, they stabbed him repeatedly and then left" him for dead; that fifteen days after, he recovered from his wounds at the government hospital of San Pablo City and then he moved to Unisan, Quezon for fear of his assailants; that on April 11, 1955, he executed an affidavit before Agent No. 43 of the National Bureau of Investigation regarding the attempt on his life, naming as his assailants Tomas Magwari, Hilarion Gutierrez, Pedro Mangubat, Eusebio Orense and another person whom he failed to recognize and especially pointing to Mayor Punzalan of Tiaong as the instigator of the crime; that on July 1, 1955, he executed another affidavit concerning the same incident before Jose B. Tuason, deputy clerk of the CFI of Quezon and on the basis of the two affidavits, a complaint for frustrated murder filed by appellant before the assistant fiscal of Quezon was investigated. Appellant also averred that while his complaint was pending investigation, Mayor Punzalan sent an emissary, Avelino by name, requesting

him (appellant) to withdraw his complaint in exchange for P3,000.00 and an appointment as a caminero; that appellant spurned the offer and instead, on September 1, 1955, he executed another affidavit before the same NBI Agent No. 43 elaborating on his first affidavit; that on December 5, 1955, the police chief of Tiaong directed the exhumation of Saludo's remains; that on Decemeber 13, 1955, the same officer fetched Fausta Mercado from barrio Bangcalat, Tanauan, Batangas and took her to Tiaong where she subscribed to a statement naming the appellant as the murderer of her husband Vidal Saludo; and that the complaint against him was trumped up at the instigation of Mayor Punzalan because of his refusal to withdraw his complaint against the mayor and the latter's henchmen.

Appellant's alibi, besides being inherently weak, sounds unconvincing and ineffectual. His claim that he resided in his sister-in-law's (Elena Jaurigue) house at barrio Sta. Elena, Sto. Tomas, Batangas between March and July 1948, by no means erases the possibility that he was in barrio Bucal, Tiaong on May 6, 1948, when the victim, Vidal Saludo was murdered. Elena Jaurigue herself declared that the distance between the two barrios was short and could be negotiated by bus in half an hour. Although she tried hard to corroborate appellant's alibi by insisting that the latter did not leave barrio Sta. Elena even once during the five months of his stay thereat, her testimony does not ring true. She said it was impossible for appellant to leave her house without her knowledge; because her home was a one-room affair where appellant kept his clothes and that this room was under Jock, the key to which she always kept. But this situation does not rule out appellant's chance to slip out of the premises unnoticed by Elena, because precisely he was locked out; and since he was purportedly rendering manual chores, he perforce had to be dressed and leave the house once in a while, such as appellant would stay confined in only one place Withal, it is hard to believe that an able-bodied laborer for a prolonged and continuous period.

As against appellant's alibi, there is the positive identification made of him by Marcelo Verano who peered through the bushes and saw him clubbing Vidal Saludo with a rice pestle; and the testimony of the victim's wife pointing to appellant as the leader of the band that took her husband away. All these render appellant's alibi, unavailing.[1]

In connection with the variance between the number of persons alleged in the information and the number of persons cited by the witnesses as having participated in the crime, it is enough to state that such variance is not material. Appellant was properly identified in both the information and in the testimonial evidence of the witnesses; he

was fully aware of the nature and cause of the accusation; and he failed to object seasonably in the trial to the testimonial allegation that there were some other persons involved in the crime. And it is the rule in this jurisdiction that a "variance between the allegations of the information and the evidence offered by the prosecution in support thereof, does not of itself entitle the accused to an acquittal."[2] More, it is within the prosecution officer's discretion to determine what persons appear to be responsible for the commission of an offense; and if for lack of knowledge or mistake or any other reason, he fails to include the names of one or more criminals in an information, such persons will not be relieved of penal liability; nor will the acctised who have been charged with the offense, be permitted to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime.[3]

Appellant ascribes unreasonableness in the delay between the supposed commission of the offense in 1948 to its prosecution in 1956. It appears, however, that the silence of the witnesses, particularly of Martija, Verano and Fausta Mercado was satisfactorily explained: they feared Huk reprisals. Indeed before these witnesses disclosed the facts to the authorities, dissident bands asking for "binalut" or wrappers with food had been foraging in the barrios and intimidating the residents. The insecurity of the life in the barrio is illustrated by appellant's claim that he was stabbed and left for dead on April 6, 1951 when he refused to give his firearm to six persons.

Appellant lastly asserts that the charge against him was trumped up and the witness's testimonies fabricated. He claims that he was stabbed on April 6, 1951 upon orders of Mayor Punzalan; that as a consequence, he filed a complaint for frustrated murder against the Mayor and his five henchmen; and for his refusal to withdraw the charge, the mayor caused the instant case to be filed against him.

Appellant's claim lacks merit. His written statement (Exh. H, p. 190 record) of April 7, 1951, when he still had no opportunity to contrive, reveals that he failed to recognize his assailants. This statement entitled "Ante-Mortem" bears the appellant's thumbmark and is witnessed by his own brother-in-law, Simon Jaurigue. Subsequently, on April 11, 1951, five days after he was stabbed, appellant executed an affidavit before Agent No. 43 of the NBI and this time, he named Hilarion Gutierrez, Tomas Magwari, Pedro Mangubat and Eustaquio Orense as his attackers; he also claimed having overheard Gutierrez mutter: "Ang sabi ni Mayor (PUNZALAN) ay huag ng barilin at saksakin na lamang" (Exh. 6, pp. 178-179, Record). In the same statement, however, appellant

stated that one Brigido Balmes aided him shortly after he was wounded; but in the trial, Balmes testifying as a rebuttal witness for the State declared that appellant had told him that five persons had attacked and stabbed him near a mango tree but that he (appellant) was unable to recognize his attackers.

In fine, we feel that the evidence on hand sufficiently establishes appellant's guilt beyond reasonable doubt.

Wherefore, the judgment of conviction must be upheld; and there being no question as to the penalty imposed upon this appellant, the appealed decision is affirmed in toto with costs. So ordered. Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.

[ G.R. No. L-11641, November 29, 1962 ] THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. VIVENCIO CATLI, DEFENDANT AND APPELLANT.

DECISION

BENGZON, C.J.:

This case began with an information against Vivencio Catli charging that sometime in May 1948, in Tiaong, Quezon Province, he inflicted mortal injuries upon Vidal Saludo, assisted by two others still at large. Aggravating circumstances of treachery, superior strength and means to weaken the defense were cited.

After trial, the court of first instance of Quezon adjudged him guilty of murder, and sentenced him to suffer life imprisonment with the accessories, to indemnify Saludo's heirs in the sum of P6,000.00 sans subsidiary imprisonment, and to defray the costs.

Insisting on his innocence, the accused seasonably appealed, raising here these material points: (a) substantial variance between the allegations and the proof, because while the information indicated three persons as authors of the crime, the prosecution's evidence showed there were more; (b) delay of seven years in the prosecution of the crime; (c) the testimonies of the State witnesses are evidently fabricated.

The people's evidence discloses that on May 6, 1943, Vidal Saludo, then barrio lieutenant of Bucal, Tiaong, was living with his wife, Fausta Mercado, their children and a 14-year old godson Francisco Lopez, in a house located in said barrio. At about 7:00 a.m. of said day, several armed men headed by appellant Vivencio Catli inquired from Fausta Mercado the whereabouts of her husband, and upon being informed that the latter was upstairs, Catli went up and requested Vidal Saludo to accompany him to look for Benito Tenorio who had strayed from the appellant's group; yielding to this request, Saludo joined the appellant's band iwhich proceeded westward; Saludo was then wearing rubber shoes, white polo shirt and fatigue pants. And that was the last time his family saw him.

At around 11:00 o'clock of that same morning, Marcelo Verano, who was pasturing his carabao in the northern part of barrio Bucal, heard someone groaning; out of curiosity, he proceeded to the place whence the sounds had come, cautiously peered through some bushes and espied appellant beating Vidal Saludo with a rice pestle, in the presence of armed companions, one of whom remarked: "That is enough Babing, he is already dead;" seized With fear, Verano left the place but refrained from disclosing to others what he had observed, because he surmised that appellant and his men were Huks.

At about 2:00 p.m. of the same day, Diego Martija, then a member of the rural council of Bucal, met Maria Saludo who sobbingly told him that her brother Vidal had been taken by the Huks led by appellant; she begged his help to locate Vidal, and after some hesitation, Martija responded by asking a neighbor, Leoncio Manimtim to accompany him to search for Vidal. The pair followed the trail Vidal was last seen to have taken,

making inquiries from people who may have seen Saludo's group; the search ended near the Capanglao river; en route, the two, Martija and Manimtim discovered some drops of blood. As they approached the river, the two found a newly dug grave covered with coconut leaves; they brushed off the leaves only to find a castorillo hat which they recognized as one Vidal Saludo was wont to wear. Replacing the coconut leaves, the two left for their respective homes, but refrained from revealing their findings to the authorities, for fear of the Huks.

Years after or in 1951, Diego Martija was appointed barrio lieutenant of Bucal but he was not provided with firearms; then on March 22, 1955, he was named chief of the civilian commando unit of the same barrio and was given a gun. Emboldened by the possession of such weapon and encouraged by the government campaign against the dissidents, Martija sometime in December, 1955, reported to the police chief of Tiaong what he knew about Vidal Saludo's killing. On December 5, 1955, the police chief with some PC soldiers exhumed the remains of Vidal Saludo; inside the grave, which he pointed out, they found bones of a human skeleton and a pair of soles of rubber shoes. The bones were gathered in an army sack, shipped to the NBI in Manila for medicolegal examination, and following such examination, Dr. Jesus D. Crisostomo, medicolegal officer submitted an osteological report with the conclusion that:

"1.

Those bony remains are human in origin.

2.

They belong to only one individual.

3.

That the set of bones belongs to a male individual.

4.

That this individual has a stature of approximately 165.812 cms. (5 feet-5 inches) plus or minus.

5.

That the probable age of time of death of this individual may lie between 35 and 45 years.

6.

That no cause of death can be assigned or given in this particular individual, as the submitted and assorted bones as a set does not show any sign of antemortem injury.

7.

That considering the moderately advanced postmortem disintegration of the bones submitted (sorted and non-sorted), the probable length of time that may have already elapsed after burial may be placed between five (5) and ten (10) years."

Appellants defense revolyes around an alibi. He testified that in 1946, he lived in the house of Arcadio Exconde in barrio Quipot, Tiaong; that in March 1948, he moved to barrio "Sta. Clara, Sto, Tomas, Batangas, residing in the house of Elena Jaurigue, sister of Gorgonia, the girl he was courting; that following an old native custom, he stayed in Sta. Clara performing such chores as drawing water and clearing the coffee farm in the service of the woman, object of his affections; that he never left Sta. Clara until July 1948 when, having ostensively won the girl's favor, he and his bride-to-be departed for barrio Quipot, Tiaong, where they resided in peace arid contentment. He recounts that on April 6, 1951, five men lured him from his house at wight and after leading him some five meters away, they stabbed him repeatedly and then left" him for dead; that fifteen days after, he recovered from his wounds at the government hospital of San Pablo City and then he moved to Unisan, Quezon for fear of his assailants; that on April 11, 1955, he executed an affidavit before Agent No. 43 of the National Bureau of Investigation regarding the attempt on his life, naming as his assailants Tomas Magwari, Hilarion Gutierrez, Pedro Mangubat, Eusebio Orense and another person whom he failed to recognize and especially pointing to Mayor Punzalan of Tiaong as the instigator of the crime; that on July 1, 1955, he executed another affidavit concerning the same incident before Jose B. Tuason, deputy clerk of the CFI of Quezon and on the basis of the two affidavits, a complaint for frustrated murder filed by appellant before the assistant fiscal of Quezon was investigated. Appellant also averred that while his complaint was pending investigation, Mayor Punzalan sent an emissary, Avelino by name, requesting him (appellant) to withdraw his complaint in exchange for P3,000.00 and an appointment as a caminero; that appellant spurned the offer and instead, on September 1, 1955, he executed another affidavit before the same NBI Agent No. 43 elaborating on his first affidavit; that on December 5, 1955, the police chief of Tiaong directed the exhumation of Saludo's remains; that on Decemeber 13, 1955, the same officer fetched Fausta Mercado from barrio Bangcalat, Tanauan, Batangas and took her to Tiaong where she subscribed to a statement naming the appellant as the murderer of her husband Vidal Saludo; and that the complaint against him was trumped up at the instigation of Mayor Punzalan because of his refusal to withdraw his complaint against the mayor and the latter's henchmen.

Appellant's alibi, besides being inherently weak, sounds unconvincing and ineffectual. His claim that he resided in his sister-in-law's (Elena Jaurigue) house at barrio Sta. Elena, Sto. Tomas, Batangas between March and July 1948, by no means erases the possibility that he was in barrio Bucal, Tiaong on May 6, 1948, when the victim, Vidal

Saludo was murdered. Elena Jaurigue herself declared that the distance between the two barrios was short and could be negotiated by bus in half an hour. Although she tried hard to corroborate appellant's alibi by insisting that the latter did not leave barrio Sta. Elena even once during the five months of his stay thereat, her testimony does not ring true. She said it was impossible for appellant to leave her house without her knowledge; because her home was a one-room affair where appellant kept his clothes and that this room was under Jock, the key to which she always kept. But this situation does not rule out appellant's chance to slip out of the premises unnoticed by Elena, because precisely he was locked out; and since he was purportedly rendering manual chores, he perforce had to be dressed and leave the house once in a while, such as appellant would stay confined in only one place Withal, it is hard to believe that an able-bodied laborer for a prolonged and continuous period.

As against appellant's alibi, there is the positive identification made of him by Marcelo Verano who peered through the bushes and saw him clubbing Vidal Saludo with a rice pestle; and the testimony of the victim's wife pointing to appellant as the leader of the band that took her husband away. All these render appellant's alibi, unavailing.[1]

In connection with the variance between the number of persons alleged in the information and the number of persons cited by the witnesses as having participated in the crime, it is enough to state that such variance is not material. Appellant was properly identified in both the information and in the testimonial evidence of the witnesses; he was fully aware of the nature and cause of the accusation; and he failed to object seasonably in the trial to the testimonial allegation that there were some other persons involved in the crime. And it is the rule in this jurisdiction that a "variance between the allegations of the information and the evidence offered by the prosecution in support thereof, does not of itself entitle the accused to an acquittal."[2] More, it is within the prosecution officer's discretion to determine what persons appear to be responsible for the commission of an offense; and if for lack of knowledge or mistake or any other reason, he fails to include the names of one or more criminals in an information, such persons will not be relieved of penal liability; nor will the acctised who have been charged with the offense, be permitted to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime.[3]

Appellant ascribes unreasonableness in the delay between the supposed commission of the offense in 1948 to its prosecution in 1956. It appears, however, that the silence of

the witnesses, particularly of Martija, Verano and Fausta Mercado was satisfactorily explained: they feared Huk reprisals. Indeed before these witnesses disclosed the facts to the authorities, dissident bands asking for "binalut" or wrappers with food had been foraging in the barrios and intimidating the residents. The insecurity of the life in the barrio is illustrated by appellant's claim that he was stabbed and left for dead on April 6, 1951 when he refused to give his firearm to six persons.

Appellant lastly asserts that the charge against him was trumped up and the witness's testimonies fabricated. He claims that he was stabbed on April 6, 1951 upon orders of Mayor Punzalan; that as a consequence, he filed a complaint for frustrated murder against the Mayor and his five henchmen; and for his refusal to withdraw the charge, the mayor caused the instant case to be filed against him.

Appellant's claim lacks merit. His written statement (Exh. H, p. 190 record) of April 7, 1951, when he still had no opportunity to contrive, reveals that he failed to recognize his assailants. This statement entitled "Ante-Mortem" bears the appellant's thumbmark and is witnessed by his own brother-in-law, Simon Jaurigue. Subsequently, on April 11, 1951, five days after he was stabbed, appellant executed an affidavit before Agent No. 43 of the NBI and this time, he named Hilarion Gutierrez, Tomas Magwari, Pedro Mangubat and Eustaquio Orense as his attackers; he also claimed having overheard Gutierrez mutter: "Ang sabi ni Mayor (PUNZALAN) ay huag ng barilin at saksakin na lamang" (Exh. 6, pp. 178-179, Record). In the same statement, however, appellant stated that one Brigido Balmes aided him shortly after he was wounded; but in the trial, Balmes testifying as a rebuttal witness for the State declared that appellant had told him that five persons had attacked and stabbed him near a mango tree but that he (appellant) was unable to recognize his attackers.

In fine, we feel that the evidence on hand sufficiently establishes appellant's guilt beyond reasonable doubt.

Wherefore, the judgment of conviction must be upheld; and there being no question as to the penalty imposed upon this appellant, the appealed decision is affirmed in toto with costs. So ordered. Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.

G.R. No. 140762

September 10, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. PO3 ROGER ROXAS Y CABASAG, appellant.

VITUG, J.:

The Regional Trial Court of Quezon City, Branch 103, in Criminal Case No. Q-9665242, found appellant Roger Roxas y Cabasag guilty beyond reasonable doubt of the crime of murder and imposed on him the penalty of death for the killing of Lorna Maceda Puno. The information under which he was arraigned, tried and convicted, read:

"That on or about the 8th day of March, 1996, in Quezon City, Philippines, the abovenamed accused did then and there willfully, unlawfully and feloniously with intent to kill, qualified by treachery and by taking advantage of superior strength, attack, assault and employ personal violence upon the person of LORNA PUNO nee MACEDA, by then and there shooting her with the use of a hand gun, hitting her on her left forehead, thereby inflicting upon her serious and grave wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of said Lorna Puno nee Maceda."1

Following appellants plea of "not guilty" to the crime charged, the prosecution and the defense presented their respective versions of the case.

Joelyn B. Maceda, a security guard at the First Unity Textile Mills in Novaliches, Quezon City, stayed with her sister, Lorna Maceda Puno, in San Roque, Bagong Pag-asa, Quezon City, in a one-storey structure with the front door leading to the kitchen and with two steps leading to the sala. Joelyn shared the house with Lorna and her husband, the

couples five-year-old son, Jonas, and a niece. Lorna, like Joelyn, was a security guard at the Citibank in Makati City. When on duty, the sisters were issued caliber .38 service firearms that they were not, however, allowed to bring home and, instead, had to entrust each time to a reliever. Although the sisters were trained to handle firearms, they, upon the other hand, only had minimal instruction on self-defense.

Between nine oclock and nine-thirty on the evening of 8 March 1996, Joelyn was washing clothes in front of the door of their house, lighted by a fluorescent lamp, when she saw Lorna coming home from work in her type B uniform and carrying a brown bag. From a distance of barely four to five meters, Joelyn could see Lorna running away from appellant. Appellant, apparently drunk, had no clothes from waist up, was wearing shorts and carrying a gun. When Joelyn asked the pale and trembling Lorna why she was running, the latter replied, "Lyn, Lyn, enter, close the door, a man (is) following me!" (Lyn, Lyn, pasok, sarado ang pinto, may sumusunod sa akin lalaki). Joelyn promptly closed the door but appellant was able to kick it open. Joelyn, her forehead hit by the door, was pushed aside. Appellant grabbed Lornas bag, opened it and, apparently not finding what he could have been looking for, hurled the bag to the floor (binalibag po niya ang bag sa sahig). Appellant asked Lorna, "Why did you run? Why did you not mind me?" (Bakit ka tumakbo? Bakit di mo ko pinansin?). Lorna answered, "I did not hear you." Joelyn tried to hold the hand of appellant but he pushed her hand away. Appellant then shot Lorna with a caliber .45 gun with its muzzle just two feet away from Lornas face. Lorna fell on the floor with half of her body outside the door and the other half inside the house. Joelyn held her sister. Lorna was still alive. A neighbor responded to Joelyns cries for help. Lorna was brought to the hospital. At six oclo ck the following morning of 9 March 1996, Joelyn went to Camp Karingal to report the incident. Later, Joelyn, accompanied by Randy who took down her statement at the camp, went to the East Avenue Hospital where Lorna had been taken.

Melinda Talio was fetching water from a nearby artesian well (poso) on the evening of 8 March 1996. She proceeded to the house of Lorna from where a gunshot rang out. She saw the bloodied Lorna on the floor just as appellant, holding a gun, was about to run out of the house (patakbo). Melinda shouted for help. Nobody dared to immediately respond because appellant was still at the corner of an alley, a short distance away, pointing and swaying a gun. Appellants wife and a certain Jun were seen trying to pacify him. Jun tapped appellants hand that caused the gun to fall. Appellants wife picked up the gun and hid it behind her. Appellants wife and Jun then pulled appellant away.

Lornas husband, Joseph Puno, a security guard at the Broadway Centrum in Quezon City, learned of the incident at five oclock on the morning of 9 March 1996 when he returned home from work. There were bloodstains around the house. Appellant, who lived near the basketball court around a hundred meters away, was Josephs kumpare. Joseph had known appellant, who, along with the latters wife, usually managed the "BSDO" seminar that Joseph attended. Joseph Puno surrendered a caliber .45 empty shell which he had found at his house to PO1 Florencio Escobido. The Chief of the PNP Criminal Investigation Division in Camp Karingal forwarded the empty shell to the Director of the PNP Crime Laboratory Service in Camp Crame. In Firearms Identification Report No. FAID-143-96, P/Inspector Reynaldo Dimalanta de Guzman stated that the empty caliber .45 shell marked "JAP" "was fired from a caliber .45 pistol having six (6) lands and six (6) grooves twisted to the left."2 De Guzman could only conclude that the empty shell was fired from a .45 caliber pistol. The pistol was not recovered.

Lorna, only 27 years old, died three days after she was shot. Dr. Ma. Cristina B. Freyra, Police Senior Inspector and Medico-Legal Officer at the PNP Central Crime Laboratory of the Northern Police District Command in Kamuning, Quezon City, confirmed that Lorna had suffered from a gunshot wound at the left temporal region with tattooing evident and a contusion on the left peri-orbital region and multiple abrasions on the left arm. She opined that the tattooing around the wound would attest to the fact that the distance between the muzzle of the gun and the "point of contact" could have barely been about two feet.

Appellant, a member of the Special Weapons and Tactics (SWAT) team of the Philippine National Police, did not deny his presence in the vicinity of the crime scene but he presented a different version of the incident. On the late afternoon of 8 March 1996, about six oclock, he was playing basketball in Barangay Bagong Pag-asa, San Roque II, up until an hour later. Shortly thereafter, he had dinner. He and his wife then visited their comadre, Yolanda Daraman, whose husband, a seaman, was expected to return home. At Yolandas house, that evening, the couple was told that Yolandas husband had not yet arrived. On their way home, appellant noticed a suspicious-looking person who was high on drugs. The bulge on the mans waist appeared to him to be a tucked gun. Appellant approached the man, who was not from the place, to verify and to conduct a body search but just as he drew near, the man ran away. Appellant chased the man and as he did so, he passed by two barangay tanods, Inocencio Datu and

Rudy Limbaga, who were asked by his wife to extend help by meeting the man at the other side of the area (salubungin ninyo sa kabila). Appellant saw the man enter a house by kicking open its door. Appellant fired his service .38 caliber gun. He pushed the door, already half-open, but Lorna Puno sprayed tear gas on him, hitting both his eyes and momentarily losing his sight. Appellant soon heard a gunshot from inside the house. Appellant dove face down to seek cover. In the process, he lost control of his firearm. He shouted for help and heard the voices of his wife and the two barangay tanods. The barangay tanods brought him back to his house where he was informed that Lorna Puno had been shot. His wife administered first aid to his eyes but, because his eyes were not healed, he was brought the following morning by his wife to the Quezon City General Hospital.

From the hospital, appellant proceeded to Camp Karingal to clear his name after having heard that he was being implicated in the shooting incident. Appellant was disarmed by his commanding officer and instructed to subject himself to an investigation. The next day, as so directed, he came back and restricted himself to camp. His commanding officer later brought him to the Investigation Division to surrender him for investigation. Asked to give a statement, appellant told the investigator that he would wait for his lawyer. From the 10th to the 14th of March, no case was filed against appellant. On the 15th of the same month, he was presented to the inquest fiscal.

The trial court, convinced of the "lack of probity and credibility of the defense path taken by the accused,"3 found appellant guilty of the crime of murder. It ruled that the commission of the crime was qualified by "abuse of superiority" because "Lorna was unarmed when shot on the head by the accused which single shot caused her instantaneous death."4 It appreciated against appellant the aggravating circumstance of dwelling since both the prosecution and the defense evidence showed that Lorna was fatally shot inside her house. The trial court disposed of Criminal Case No. Q-96-65242 thusly:

"ACCORDINGLY, judgment is hereby rendered finding the accused PO3 ROGER ROXAS y Cabasag GUILTY beyond reasonable doubt as Principal of the crime of MURDER, as charged herein, as defined and penalized in the Revised Penal Code, qualified by taking advantage of superior strength and, with the aggravating circumstance of dwelling, he is hereby sentenced to suffer the penalty of DEATH.

"On the civil aspect, accused Roger Roxas y Cabasag is ordered to pay the heirs of Lorna Puno y Maceda the sum of P50,000.00 as indemnity damages and P100,000.00 as exemplary damages.

"The ARMSCOR caliber .38 revolver with serial number PO7161 (Exhibit M) shall be forwarded to the PNP Firearms and Explosives Division, Camp Crame, Quezon City for safekeeping in accordance with law.

"Pursuant to law and the Rules of Court, let the entire records of this case be forwarded forthwith to the Honorable Supreme Court for automatic review."5

Appellant assails the credibility of prosecution witnesses Joelyn B. Maceda and Melinda Talio. But, as it has so often been stated by this Court, the issue of credibility of witnesses is a question for the trial court basically to resolve. The rule is logical and well founded. It is the trial judge which has all the opportunity to observe witnesses when they testify before him and for him to then draw the line between fact and falsehood. An appellate court thus would find itself relying mostly on the assessment of the trial court in this respect. The records of this case do not disclose any reason for this Court to now deviate from this long-settled doctrine.

Appellant contends that the prosecution has suppressed evidence in failing to present the affidavit of Melinda calling attention to the presumption that "evidence willfully suppressed would be adversed (sic) if produced." The contention is a futile attempt to invoke exoneration. Ex-parte affidavits, which are often incomplete and inaccurate, are scarcely depended on and will certainly not prevail over credible statements of a witness on the stand,6 particularly when the defense has had the full opportunity to cross-examine such a witness.

Appellants argument that the trial court disregarded "the law on ballistics" when it ignored the fact that the slug found was that of a caliber .45 gun, not that of a .38 caliber handgun, like the service revolver of appellant, hardly could be material. It would only show that it was not appellants service revolver which was used in the commission of the crime. With the positive identification by eyewitness Joelyn of appellant as being the perpetrator of the crime, the non-presentation by the prosecution of the weapon used in

committing the crime would not at all be fatal.7 Joelyn witnessed at close range the killing of her sister. Her testimony, an eyewitness account, was found credible by the trial court.

The relationship of Joelyn to the victim would not be a reason to either discredit her or disbelieve her testimony; in fact, it should be unnatural for an aggrieved relative to falsely accuse someone else other than the actual culprit himself.8 Nothing was shown to indicate in any way that Joelyn was impelled by improper motive in testifying against appellant that should thus add to her credibility.9

In asseverating that the qualifying circumstance of abuse of superior strength was not proven at the trial, appellant would premise his argument on the contention that the victim used teargas to immobilize him. There was, however, no convincing proof that the victim had indeed used teargas on appellant. The hospital record presented in court by Pastora Barte, the records officer of the Quezon City General Hospital, that appellant was treated for eye irritation and for abrasions on his right hand,10 was not attested to by any supposed attending physician. All that Pastora could testify on was that a certain Dr. Fernandez and one Dr. Osial, who allegedly attended to appellant, were no longer connected with the hospital. Pastora admitted that she had no personal knowledge about the contents of the record; neither could she attest to the truth and veracity of its contents. A medical certificate would be hearsay and inadmissible in evidence without the affirmation or confirmation on the witness stand of the physician who prepared it11 and corroborated by the testimony of the physician who had examined the patient.12

The trial court described appellant as being a "big hulk of a man," 57" in height, and "muscularly bulky." At the witness stand, when Joelyn stood to identify appellant, the prosecutor noted for the record that appellant was "very much taller than the witness" who stood at 53" in height. According to Joelyn, Lorna was only about 55" in height, a fact that the defense did not dispute. The case could bring to mind People v. Quesada.13 In that case, the Court, noting that the appellant was a "robust, middleaged man" while the deceased was a woman of about 22 years of age, appreciated the aggravating circumstance of taking advantage of superior strength when the malefactor stabbed the deceased "while she was trying to escape from his grasp, and unable to repel the attack." In this instance, Lorna was 27 years old trying to escape from appellant, an armed "hulk of a man," 57" in height, and around 33 years of age,14 when she was senselessly shot at close range. Still in another case, this Court said: "In several cases, we have held that an attack made by a man with a deadly weapon upon

an unarmed and defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. This is the exact scenario in this case."15

In imposing the death penalty, the trial court appreciated the aggravating circumstance of dwelling that was not alleged in the information.

The Solicitor General, supporting the stand taken by the trial court, would invite a revisit of the Mauricio16 rule; he urges:

"We respectfully pray that this Honorable Court take a second look at its ruling in Mauricio and other cases retroactively applying Rule 110, Section 9. The rule prevailing before the effectivity of the new Rules of Criminal Procedure was that generic aggravating circumstances, even if not alleged in the information, may be appreciated if proven at the trial. Prosecutors and trial judges relied on this former rule. With all due respect, the retroactive application of the new rule is manifestly unfair to the prosecutors and trial judges who relied in utmost good faith on the old rule.

"On March 27, 2000, a mere nine (9) months before the new Rules of Criminal Procedure took effect on December 1, 2000, this Honorable Court in People v. Mitra, 328 SCRA 774, 792-793 rejected the contention that generic aggravating circumstances should be alleged in the information."17 (Emphasis supplied)

With all due respect to the Solicitor General, the Court finds it difficult to reconsider its pronouncement in Mauricio, which has since been reiterated in several cases. Section 9, Rule 110, of the new Rules on Criminal Procedure, provides:

"SEC. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment."

In Mauricio,18 the Court has explained the reason for the retroactive application of the rule.

"The use of the word `must indicates that the requirement is mandatory, therefore failure to comply with Sec. 9, Rule 110, means that generic aggravating circumstances, although proven at the trial, cannot be appreciated against the accused if such circumstances are not stated in the information. It is a cardinal rule that rules of criminal procedure are given retroactive application insofar as they benefit the accused." (Italics supplied.)

Even beyond that, as so expressed above, is the overriding principle that an accused has the unfettered right "to be informed of the nature and cause of the accusation against him."19 The Court has no reason to doubt the fact that the prosecutor and trial judge must have relied in "utmost good faith" on the old rule (that a generic aggravating circumstance may be appreciated against the accused even if it is not alleged in the information), but it is not enough for this Court to now take that belief into account against appellant and to abandon a standing tenet that the law, as well as rules of procedure favorable to the accused, must be given retroactive effect. The Court realizes that neither the Solicitor General and the prosecutor nor the trial judge, are out of line; indeed, in People v. Mitra20 the Court has virtually agreed to consider aggravating circumstances not alleged in the information but proved during the trial and appreciated in imposing the sentence, without necessarily impinging the constitutional right of the accused to be informed of the nature and cause of the accusation against him. Nevertheless, in subsequent cases, starting with People v. Salalima,21 the Court, taking a hard look on the issue has concluded that the new rules must be given retroactive effect "in the light of the well settled rule that statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage."22

Article 248(1) of the Revised Penal Code, as amended, penalizes a person who commits the crime of murder, attended by the qualifying circumstance of, among other circumstances, taking advantage of superior strength, with reclusion perpetua to death. No generic aggravating penalty being attendant, the lesser penalty of reclusion perpetua should be imposed.23

The trial court awarded "indemnity damages" of P50,000.00 and exemplary damages of P100,000.00. Civil indemnity is automatically imposed upon the accused without need of proof other than the fact of the commission of murder or homicide.24 The award should thus be affirmed. The award of exemplary damages is justified considering the attendance of the aggravating circumstance of abuse of superior strength that qualified the killing to murder but, considering prevailing jurisprudence, that amount should be reduced to P25,000.00.25 Consistently likewise with recent decisions of the Court, an award of only temperate damages of P25,000.00, no adequate proof of actual damages having been shown, is warranted.26

WHEREFORE, the decision of the court a quo finding appellant PO3 Roger Roxas y Cabasag guilty beyond reasonable doubt of the crime of murder for the killing of Lorna Maceda Puno is AFFIRMED subject to the MODIFICATIONS that appellant shall suffer, instead of death, the penalty of reclusion perpetua and that he shall pay the heirs of the victim civil indemnity of P50,000.00, exemplary damages of P25,000.00, and temperate damages of P25,000.00. Costs against appellant.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur. Puno, and Azcuna, JJ., abroad, on official business.

[G.R. No. 127128. August 15, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ROEL MENDIGURIN Y CANLAS, appellant.

DECISION

AZCUNA, J.:

Appellant Roel Mendigurin challenges the decision[1] of the Regional Trial Court of Malabon, Metro Manila, Branch 74, convicting him of rape and sentencing him to suffer the penalty of reclusion perpetua and to pay P30,000 as moral damages.

The information under which appellant was charged states, as follows:

That on or about the 15th day of June 1992, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously, with lewd design, have sexual intercourse with ELENA SEBASTIAN and successfully did so by employing force, threat and intimidation on her person.

Contrary to law.[2]

In his arraignment on March 1, 1993, appellant, assisted by his counsel, pleaded not guilty[3] and trial thereafter ensued.

Appellants conviction was principally based on the testimonies of complainant Elena Sebastian, her nephew Mark Figueroa who allegedly witnessed the incident, and Dr. Louella Nario of the National Bureau of Investigation (NBI). Also testifying for the prosecution on peripheral matters were the elder sister of complainant, Edna Figueroa, and Dr. Remedios Puentespina.

Complainant Elena Sebastian, who was 19 years old on the date of the alleged rape, is a native of Pampanga. After her elementary education, she moved in with her elder sister Edna Figueroa to the latters residence in 217 Gov. Pascual, Sipac, Navotas, Metro Manila. Edna Figueroa is married to Salvador Figueroa, who happens to be the

brother of Daisy Mendigurin, wife of appellant herein. Appellants house is adjacent to the Figueroas. In fact the two houses are separated only by a concrete wall.

In her testimony,[4] complainant narrated that on June 15, 1992, she woke up at 5:00 a.m. to prepare breakfast for her brother-in-law and his two children, who were then sleeping upstairs. As she unlocked the kitchen door leading outside to throw out water from the rice pot, appellant suddenly pushed the door and barged in. To her surprise, appellant locked the door, and embraced and kissed her. Startled by appellants sudden attack, she fell unconscious. When she regained consciousness, she felt pain in her abdomen and noticed blood in her private part. At that moment, she saw appellant putting on his shorts with a smirk on his face. He threatened her not to report the incident to anyone, or else he would kill her sister. He then left and complainant was unable to do anything but weep. She went to the bathroom with a knife and attempted to commit suicide. Her fear, however, prevented her from doing so.

Complainant kept the incident to herself until September 26, 1992, when she was rushed to the hospital for slashing her wrist. It was then that she divulged to her relatives the ordeal she suffered at the hands of appellant. On October 22, 1992, she filed a complaint against appellant before the police authorities of Navotas, where she gave a written statement[5] relating the June 15, 1992 incident. She was thereafter brought to the NBI for physical examination.

She further testified that due to her heart ailment, it was usual for her to lose consciousness whenever she felt frightened, as in the past when her elder sister scolded her. On cross-examination, she said that at the time of the assault, she was unable to cry for help to her relatives upstairs because she was so surprised. She also stated that it took her a long time to report the matter to the authorities because of appellants threat to her and her fear that everybody would know about it.

To buttress complainants testimony, the prosecution also presented the testimony[6] of Mark Figueroa (Mark), complainants nephew who also happens to be the godchild of appellant. He was then eleven years old at the time of the incident. He declared that at around 5:30 a.m. of June 15, 1992, while descending the stairs, he saw appellant barebuttocked on top of complainant on the kitchen floor. Appellant immediately stood up, approached him and told him not to tell anybody what he just witnessed. At that

instance, Mark also saw complainant get up to dress up. Out of fear, he ran back upstairs and thereafter kept silent about the incident. It was only after complainants confinement in the hospital that he volunteered to take the witness stand because he pitied his aunt. On cross-examination, he recounted that before going down the stairs, he heard a soft outcry and an angry voice, which prompted him to go down. He added that his aunt, upon getting up, went into the bathroom where he heard her crying.

Dr. Louella Nario, the NBI Medico-Legal Officer who examined complainant, confirmed in her testimony[7] her findings as stated in Living Case Report No. MG-92-858[8] which showed a healed deep laceration in complainants hymen. She further opined that the laceration could have been effected three to four months before October 4, 1992, the date of the examination.

The prosecution also presented testimonial evidence to support complainants claim that it was common for her to lose consciousness whenever she feels afraid. Edna Figueroa testified[9] that sometime in 1991, complainant fell unconscious when she scolded the latter. In corroboration, Dr. Remedios Puentespina testified[10] on the medical history of complainant, who had consulted her on three occasions since 1991. She stated that complainants frequent complaint since the first consultation was the latters tendency to lose consciousness whenever she felt emotional stress. She testified, however, that based on the results of the examinations previously conducted on complainant, she found nothing wrong with the latters heart.

Appellant Roel Mendigurin and his wife, Daisy Mendigurin, testified for the defense.

Roel Mendigurin took the witness stand and admitted engaging in sexual intercourse with complainant on June 15, 1992. He, however, denied the rape charge and interposed the defense that he and complainant were lovers. In his testimony,[11] he stated that his work as a batilyo[12] required him to leave the house before 7:00 p.m., and come home at past 3:00 a.m. He testified that from March until sometime in September, 1992, he secretly maintained a sexual affair with complainant, who lived just next door. He recalled that his first sexual intercourse with complainant was in the afternoon of March 1992 in the room of complainants elder sister. He testified that it was on this occasion that he discovered that complainant was no longer a virgin. They

had their sexual escapades usually in the mornings, either in his house or in complainants house, whenever his wife was at work.

He narrated a different version of the incident. He stated that in the early morning of June 15, 1992, he arrived home from work and was allowed entry by complainant into her sisters house. He walked into the kitchen, where they voluntarily engaged in sex. Complainants nephew, Mark Figueroa, later came down from upstairs and saw them in the act of intercourse. At this instance, appellant and complainant stood up. He went to the door, while complainant approached her nephew. He, thereafter, went home. He said that contrary to complainants claim, she never lost consciousness while they were having sex. He also denied threatening Mark, asserting instead that it was complainant who talked to the child.

To bolster his defense, he further testified that even after the date of the alleged rape, he and complainant continued with their illicit sexual affair. In fact he recounted that on June 28, 1992, they again engaged in sex in the house of complainants parents in Apalit, Pampanga, where appellant stayed overnight on the occasion of the town fiesta. He alleged that complainants shame for having been caught by her nephew, who later spread the word about their sexual relations, must have moved her to accuse him of rape.

Daisy Mendigurin also testified[13] in defense of her husband, appellant herein. As a fish vendor, her usual routine was to leave for work at 9:00 p.m., and to come home at 9:00 or 10:00 a.m. Most of the time, she was also away in the afternoon to sell more fish in the market. Whenever she arrives home from work, she would often see her husband and complainant talking and teasing each other, which caused her to suspect that they were having an affair. However, because she treated complainant as her sister, she kept silent and waited for proof to confirm her suspicion. Eventually, in September, as complainant was rushed to the hospital for having slashed her wrist, her husband talked to her and admitted the affair. As a natural reaction, she got mad and lost control of herself in rage.

In rebuttal, the prosecution recalled complainant to the witness stand, and also presented a new witness, complainants father, Federico Sebastian.

Complainant Elena Sebastian in her testimony[14] on rebuttal denied appellants claim that she and appellant had an affair and that what occurred on June 15, 1992 was consensual. She admitted that on June 28, 1992, appellant did stay overnight in her parents house in Pampanga, but denied that they had any sexual contact. She clarified that although they both slept on the same floor of the house, they were about ten feet apart from each other, in different rooms. At the time, she did not have the strength to report the rape incident to her family because she was afraid of appellants threat.

Federico Sebastian testified[15] that on the night of June 28, 1992, while his daughter, his grandchildren and appellant were asleep on the second floor of their house in Pampanga, he went up to check on them and noticed nothing unusual.

The trial court lent credence to the prosecutions version of the incident. Observing that complainant appeared to be the Maria Clara type, it rejected appellants claim that the sexual intercourse that occurred on June 15, 1992 was out of an illicit affair. It concluded that the medico-legal finding that the hymenal laceration of the complainant was about four months old strongly negated appellants claim that they had had sexual contact as early as March of 1992. It further found that appellants act of sudden entry into the house and pushing the victim to the door sufficed to be considered as an employment of force, threat, and intimidation to consummate the rape.[16]

Hence, this appeal.

Appellant alleges the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND CREDENCE TO THE TESTIMONY OF ELENA SEBASTIAN.

II

THE TRIAL COURT LIKEWISE ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE.

III

ASSUMING FOR THE SAKE OF ARGUMENT THAT ACCUSED WAS INDEED GUILTY, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE ALLEGATION FOUND IN THE INFORMATION THAT RAPE WAS COMMITTED BY MEANS OF FORCE AND INTIMIDATION WHICH IS NOT FOUND ON THE EVIDENCE PRESENTED BY THE PROSECUTION.[17]

It is constitutionally mandated that the accused be accorded the presumption of innocence. The burden of proof rests on the State to establish every circumstance which proves his guilt beyond reasonable doubt.[18] This exacting standard of proof acquires more relevance in rape charges which are easy to make but hard to prove and harder still to defend by the party accused who may be innocent.[19] Thus, we have exhorted courts to keep in mind settled principles in the decision-making process: (1) to accuse a man of rape is easy but to disprove it is difficult although the accused may be innocent; (2) considering the nature of things, and that only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; (3) the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the weakness of the evidence of the defense.[20]

On the other hand, it is the general rule that factual findings by the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could alter the result of the case. [21]

In the present case, however, a careful review of the evidence compels us to take exception to the aforesaid rule.

We have repeatedly stressed that the resolution of a rape case often hinges on the credibility of the victim. If her testimony does not meet the test of credibility, the acquittal of the accused is inevitable.[22]

After thoroughly examining complainants testimony, along with the other evidence at hand, we find glaring inconsistencies therein which constrain us to entertain a reasonable doubt as to the guilt of appellant. As principal evidence, the prosecution proffered the testimony of complainant, who attested that she was raped while she was unconscious and that the only thing she could remember upon regaining consciousness was seeing appellant putting on his shorts. Of equal significance is Mark Figueroas testimony, which the prosecution presented as an eyewitness account of the incident, and which, upon a closer scrutiny, fails to corroborate complainants testimony. Marks narration of what he saw that fateful morning of June 15, 1992 belies complainants claim that she was unconscious:

Q. You testified that sometime on June 15, 1992 between the hours of 5:00 to 6:00 a.m., when you woke up and while descending the stairs you saw your uncle, who happens to be your godfather, on top of your Ate Lena is that correct?

A.

Yes sir.

Q. Now, before you descended the stairs did you hear any outcry from downstairs coming from your Ate Lena?

A.

Yes sir.

Q. You mean to say you heard your Ate Lena making a loud outcry?

A.

Little bit soft, sir.

Q. But why did you descend from your upper house?

A.

Because it[]s as if I heard something, sir.

Q. You heard murmur?

A.

No sir.

Q. You heard what, what more did you hear?

A.

I heard an angry voice, sir.

Q. Do you hear the words being uttered by someone whom you heard?

A.

None sir.

Q. When you saw your uncle atop your Ate Lena, did you hear any outcry from your Ate Lena?

A.

Yes sir.

Q. Was the cry loud?

A.

No sir.

Q. And you testified that immediately your Ninong stood up[,] is that correct?

A.

Yes sir.

Q. What if any did your Ate Lena do after your Ninong stood up?

A.

She dressed up, sir.[23]

xxx xxx

xxx

COURT:

When you saw your godfather, the accused herein, on top of your Ate Lena, will you please tell the Honorable Court whether at that time your Ate Lena was moving?

A.

Yes sir.[24]

It is worth noting that Mark is related to both appellant and complainant. Considering this and the fact that he was only eleven years old at the time he witnessed the incident, we give full weight to his testimony.

Moreover, we cannot help but notice that complainants testimony and affidavit failed to mention the presence of Mark during the incident. When asked, she even denied knowledge as to when her nephew woke up that morning.[25] In comparison, except as to who approached and talked to the child, appellants account on this point conforms with Marks testimony.[26]

In addition, complainants claim that she has a heart ailment which caused her to faint under extreme emotional condition was unsupported by any medical finding. The prosecution only presented the testimony of Dr. Puentespina, who stated that the results of the two examinations conducted on complainant both proved negative for any heart disorder. She testified that she only prescribed medicines to calm her, as she observed complainant to be frequently emotional each time she consulted her.[27]

Complainants failure promptly to report her agonizing experience to the authorities, or at the very least to her family, despite all the opportunities to do so, also seriously affects the veracity of her narration.[28] She stated that it took her four months before divulging the incident because she feared appellants threat to kill her elder sister.[29] However, she admitted that she had many relatives living in the same neighborhood where she resided.[30] She also admitted that just a week after the date of the alleged rape, she spent one week in her familys home in Pampanga, away from the watchful eyes of appellant.[31] Considering that appellant was many kilometers away in Manila and the protection afforded by her household, her life cannot be said to have been in danger then. Furthermore, she kept silent and did not protest when appellant slept overnight in their house on the same floor where she slept, while her parents slept downstairs.[32]

In view of the foregoing, we find the prosecutions evidence insufficient to prove appellants guilt beyond reasonable doubt.

And even assuming, for arguments sake, that the evidence at hand suffices to prove the alleged rape, still, conviction of appellant under the information filed herein cannot stand.

Article 355 of the Revised Penal Code, the governing law in this case, provides that the crime of rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1.

By using force or intimidation;

2.

When the woman is deprived of reason or otherwise unconscious; and

3.

When the woman is under twelve years of age or is demented.

The information herein specifically alleged that appellant succeeded in having sexual intercourse with the complainant by employing force, threat, and intimidation, thus invoking paragraph 1 of Article 355. It was also on this ground that appellant was convicted by the trial court. After painstakingly searching through the records, however, we find no evidence of force, threat, or intimidation used by appellant to consummate the alleged rape. On the contrary, what we found were complainants admissions that no such means attended the sexual act:

Q. Now, it states here, that the accused did, then and there will fully, unlawfully and feloniously, with lewd design, have sexual intercourse with Elena Sebastian and [successfully] did so by employing force, threat and intimidation with you, my question to you Miss Sebastian [is], what kind of force was made to you by the accused?

A.

None, Sir, he only pushed the door.

Q. And what kind of threat [or] intimidation [was] perpetrated or done to you by the accused?

A.

After he raped me, [he] told me that he would kill me if I complain to anybody.

Q. But that threat or intimidation happened, according to you, after you have been abused by the accused?

A.

Yes, Sir.[33]

xxx xxx

xxx

Q. You also testified on rebuttal that what happened to you on June 15, 1992 was no[t] voluntary but by means of force and intimidation, my question is, how were you forced and intimidated by the accused?

A.

He told me that if I tell what happened to anybody, he will kill my sister, sir.

Q. Is it not a fact that [those] utterances, according to you, [were] made by the accused after you woke up and found yourself to have been molested by the accused in this case?

A.

Yes sir.

Q. So the intimidation happened after you found and discovered yourself to have been abused by the accused in this case?

A.

Yes sir.[34]

As clearly shown from the foregoing, complainant herself attested that no force was employed on her by appellant. The threat and intimidation, on the other hand, were claimed to have been used by appellant only after consummating the sexual act. This is not what is contemplated by Article 355 (1) of the Revised Penal Code. To convict under this mode, the accused must have used force or intimidation to compel complainant into having sexual relations with him.[35]

As the prosecution failed to present evidence to substantiate the charge of rape through force, threat and intimidation, we are duty-bound to uphold appellants innocence. It is an elementary rule in criminal procedure that an accused cannot be convicted of an

offense unless it is clearly charged in the complaint or information.[36] If the prosecution in this case sought to convict appellant by proving that complainant was violated while in a state of unconsciousness, as provided under the 2nd paragraph of Article 355, the information should have stated so. We find, however, that the element of unconsciousness was not alleged much less specified in the information, which charged appellant for rape under the first circumstance. Hence, it cannot be made the basis of conviction without violating appellants right to due process, in particular to be informed of the nature of the accusation against him.[37] We have ruled that this right is accorded by the Constitution so that the accused can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded.[38]

The trial court, in holding for conviction, relied on the praesumptio hominis that no young Filipina would cry rape if it were not true. However, its decision totally disregarded the paramount constitutional presumption that an accused is deemed innocent until proven otherwise.[39] Where the evidence gives rise to two possibilities, one consistent with the accused's innocence and the other indicative of his guilt, that which favors the accused should be properly considered.[40]

WHEREFORE, the decision of the trial court in Criminal Case No. 12501-MN is REVERSED and SET ASIDE, and appellant Roel Mendigurin y Canlas is hereby ACQUITTED on the ground of reasonable doubt. He is ordered RELEASED forthwith from confinement, unless held for another cause. The Director of the Bureau of Corrections is further ordered to report to us, within five days from notice, his compliance with this decision.

Cost de oficio.

SO ORDERED.

Davide, Jr., C.J., Vitug, Ynares-Santiago, and Carpio, JJ., concur.

G.R. No. L-25176

February 27, 1968

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. AGAPITO YAP, JR., defendant-appellee.

Rufino J. Abadies and Francis J. Militante for defendant-appellee. Office of the Solicitor General for plaintiff-appellant.

REYES, J.B.L., Actg. C.J.:

Appeal on a pure question of law, from the order of the Court of First Instance of Misamis Occidental directing the amendment of the information in Criminal Case No. 763 of said court.

There is no dispute as to the facts of this case:

Convicted by the Municipal Court of Baliangao (Misamis Occidental) of the crime of simple seduction, upon complaint of Catalina Babol, and sentenced to imprisonment for two months and one day of arresto mayor, accused Agapito Yap, Jr. brought the case on appeal to the Court of First Instance of Misamis Occidental, 1 where the following information was filed:

The undersigned (Provincial Fiscal), accuses Agapito Yap, Jr. of the crime of Simple Seduction, committed as follows:

That on or about May 15, 1959, and for sometime subsequently thereto, in the town of Baliangao, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the said accused by means of deceit and false promise of marriage, did then and there willfully, unlawfully and feloniously seduce and

have sexual intercourse several times with Catalina Babol a virgin over 12 but under 18 years of age, resulting in pregnancy with abortion thereafter.

Contrary to Art. 338 of the Revised Penal Code.

The accused moved to quash the aforequoted information, claiming that it alleged multiple acts of simple seduction, in addition to the offense of criminal abortion. The motion was duly heard, during which the prosecuting fiscal signified willingness to eliminate the word abortion from the information.

On August 31, 1965, the court, sustaining the stand of the accused, directed its amendment, as follows:

WHEREFORE, the information is hereby ordered AMENDED such that there must not be an opportunity for the prosecution to put the accused in danger more than once, or that because of lack of objection and because of allegation in the complaint that there is an after effect, in the form of abortion, which might be a criminal abortion, and for which the same accused might be held criminally responsible and duly sentenced therefor, the said information must be amended immediately such that the accused will not be placed in useless danger of being convicted more than once, or for two crimes in an information; OTHERWISE, the case is ordered DISMISSED.

The prosecution interposed the present appeal.

The only issue to be resolved here is, whether or not the above-quoted information violates the prohibition against duplicity of offenses as provided in Section 12 of Revised Rule 110 of the Rules of Court.

It is claimed for the defense that under the averment of the information that, "on or about May 15, 1959, and for sometime subsequent thereto . . . said accused by means of deceit and false promise of marriage, did then and there willfully, unlawfully and feloniously seduce and have sexual intercourse several times with Catalina Babol a

virgin over 12 but under 18 years of age," the accused may be convicted of as many instances of seduction as may be proved during the trial. In short, it is their theory that there is a complete and consummated offense of seduction for every sexual intercourse the accused may have had with the offended party, so that under the disputed information the former runs the risk of being found guilty of as many seduction as the number of sexual contacts between the parties that the prosecution would be able to establish. In opposing the motion, the prosecution advances the argument that there is no continuing offense of seduction; that the criminal act is consumated on the first violation of the chastity of the offended girl and any subsequent coition would already be beyond the reach of the penal provision on seduction.

These views, both extreme, may be rejected. On contention of the prosecution, it may be pointed out that in simple seduction, unlike that in a qualified case, the matter of virginity of the offended party, is not essential; it is only necessary that the complainant be an unmarried woman and of chaste life and good reputation. 2 Under the law, simple seduction is synonymous with loss of virginity; a widow can be the victim of seduction. 3 Upon the other hand, the fact that there should be different acts of intercourse, consented by the woman in reliance upon the same promise of marriage would not mean separate offenses of seduction, (cf. U.S. vs. Salud, 10 Phil. 208). Nowhere in the information does it appear that every act of intercourse was the result of a separate act of deceit.

It is, therefore, incorrect to conclude that the information in this case charged the accused of more than one offense. A reading thereof would show that he was there being charged for the seduction of Catalina Babol, with the clause "May 15, 1959 and for sometime subsequent thereto" serving as the point of time against which the allegation that she was over 12 years, but under 18 when the alleged criminal offense was committed, may be checked or reckoned. Such recital of fact, forming the basis of the statement that the accused had sexual relations with the offended party "several times", together with the allegations of the subsequent pregnancy of the offended girl and the expulsion of the foetus, constitute no more than the details of the entire incident upon which the seduction charge was based. They partake of the nature of particulars, with which the prosecution intends to inform the accused of the matter it will prove at the trial; and this does not come within the prohibition of the rules. Thus, in one case, 4 an information that charge the defendant with a specific crime set forth in various counts, each of which may constitute a distinct offense, was allowed. The narration in the information of the specific acts was considered a bill of particulars of facts upon which the inference of the guilt of the accused of the crime charged may be based and,

consequently, was held not objectionable. The same thing may be said of the information in the present case.

WHEREFORE, the order appealed from is hereby set aside and the case is ordered remanded to the court below for proceedings on the merits. It appearing that the prosecution had expressed willingness to delete from the information the averment of abortion, an amendment to this effect would be in order. No costs.

Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.1wph1.t

[G.R. No. 83696 : December 21, 1990.]

192 SCRA 621

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE BARTULAY Accused-Appellant.

DECISION

MEDIALDEA, J.:

Subject of this appeal is the decision of the Regional Trial Court, Branch 49, Puerto Princesa City, in Criminal Case No. 3042 entitled "People vs. Dante Bartulay" convicting appellant Dante Bartulay of the crime of robbery with homicide under an amended information which reads:

"The undersigned accuses ROSALIO LAGUARDIA alias "ROLLY", DANTE BARTULAY alias "TOTOY", BALTAZAR BERAN alias "BOY BUNGAL", as principals, and RAYMUNDO BARTULAY alias "MANDING", as accessory, of the crime of "ILLEGAL POSSESSION OF FIREARM WITH ROBBERY WITH HOMICIDE," committed as follows:

'That on or about the 6th day of September, 1979, and for sometime prior thereto, in Puerto Princesa City, Philippines, and within the jurisdiction of this Honorable Court, accused Rosalio Laguardia, Dante Bartulay and Baltazar Beran, conspiring and confederating together and mutually, helping one another, did then and there wilfully, unlawfully and feloniously have in their possession, custody and control the following firearm(s), to wit: One (1) .380 cal., automatic pistol and One (1) 22 cal. revolver with Serial No. 64618, without having the necessary license and/or permit from the proper authorities; that while in possession of aforedescribed firearms at the aforementioned place and date, the said accused conspiring and confederating together and mutually helping one another, with intent of gain and without the consent and against the will of the owners, by means of force, violence and intimidation and with the use of aforementioned firearms and motor vehicle, did then and there wilfully, unlawfully and feloniously take, steal and carry away from one MIGUEL 'MIKE' CHUA the amount of P50,000.00 cash, more or less, and P37,000.00 in checks, more or less and a panel truck worth P100,000.00 in the total value of P187,000.00 more or less, belonging to said MIGUEL 'MIKE' CHUA and the FORTUNE TOBACCO CORPORATION, to the damage and prejudice of the latters (sic) in the aforesaid amount; that on the occasion of said robbery and for the purpose of enabling them to take said amount and panel truck the said accused, in pursuance of their conspiracy, with treachery, evident premeditation, taking advantage of nighttime, with the use of a motor vehicle and with intent to kill, did then and there wilfully, unlawfully, and feloniously assault, attack and shoot one MIGUEL 'MIKE' CHUA, thereby inflicting upon the latter mortal gunshot wounds which were the direct and immediate cause of his death; that accused Raymundo Bartulay, having full knowledge of the commission of the aforementioned robbery with homicide and without having participated therein either as principal or

accomplice, take part subsequent to its commission by then and there profiting himself and/or assisting the abovenamed principal accused to profit by the effects of the crime and also by concealing and hiding the cash money and checks taken from said Miguel 'Mike' Chua in order to prevent its discovery by the authorities.'

"CONTRARY TO LAW with the aggravating circumstances of evident premeditation, treachery, use of a motor vehicle and nighttime." (pp. 1-2, Original Records)

Since appellant evaded arrest, his co-conspirators Rosalio Laguardia and Baltazar Beran, were convicted ahead of him and are now serving sentence at the National Penitentiary Muntinlupa, Metro Manila. On April 28, 1985, appellant was arrested at Agno St., Tatalon, Quezon City by elements of the Manila Police Force (pp. 6-7; 293, Ibid).

At the arraignment, appellant with the assistance of Attys. Gregorio Austria and Ma. Buen Consejo, pleaded GUILTY to the crime of robbery; NOT GUILTY to homicide; hence, a conditional plea of NOT GUILTY was entered into the records (p. 28, Ibid).

The facts as gleaned from the records are as follows:

Benjamin Caca, driver of Fortune Tobacco Corporation and principal witness for the prosecution, testified that: On September 6, 1979, at about 10:00 in the evening, the victim, Miguel `Mike' Chua, salesman of the Fortune Tobacco Corporation, was driving a panel truck, together with him, helper Edgardo Aniar and friend Frank Morante, passing along kilometer 36 southroad, a zigzag road inside the Iwahig Penal Colony, on their way to Puerto Princesa City. The group had come from Brooke's Point, Palawan where they delivered cigarettes and collected payments for previous sales amounting to more or less P100,000.00. At a distance of five (5) meters, from the approaching truck, appellant Dante Bartulay and Baltazar Beran, co-accused, motioned to Mike Chua to stop. When the truck stopped at the middle of the road, co-accused Beran approached the victim at the pretext of borrowing a screw driver. The victim told Beran to wait as he will park the truck on the side of the road. At this point, appellant and Beran pulled out their guns and announced a holdup. They ordered the four persons to alight from the truck. Beran directed him, Edgardo Aniar and Frank Morante to stay at the right side of

the road some five (5) meters away from the truck while appellant separately led the victim about two meters away from them on the same side of the road. The four of them were ordered to lie down facing the ground. Appellant with one foot, stepped on the shoulder of the victim while pointing a gun at him. Beran then divested him and Frank Morante of their watches and wallets while appellant took Chua's watch and wallet. Appellant asked the victim where his collection was. The latter told appellant that the money is placed at the back of the driver's seat. Appellant then ordered Beran to get the money. The latter did and gave the money contained in a paper bag to appellant. Thereafter, Beran demanded the keys of the truck from the victim, who gave them to appellant, who in turn gave them to Beran. Beran then ordered the companions of the victim to go inside the panel truck. Some twenty five (25) seconds after they were locked up inside the truck, two successive shots were fired. The truck then started to move and while in motion, he opened the secret exit door of the panel and was able to jump out, rolling on the ground until he reached the canal. He was able to hitch a ride up to Narra, Palawan where he reported the incident to the police authorities (Hearing of Sept. 13, 1985; T.S.N., pp. 5-20). The next day, September 7, 1979, the cadaver of Miguel Chua was examined by Dr. Rufino Ynzon, the City Health Officer of Puerto Princesa City. His findings were contained in a necropsy report as follows::-cralaw

"POSTMORTEM-FINDINGS

"1. Wound, gunshot, (entrance) roughly circular hole, 8-9 mm. in diameter, surrounded by a contuso-abraded collar, located at the occipital region, 3 inches above from the occipital protroberance.

"2. (a) Wound, gunshot (exit) hole which is irregular in shape, about 1 inch long, located at the left frontal bone, 2 1/2 inches above left superior orbital ridge.

(b) Wound, gunshot (exit) hole which is irregular in shape, about 3/4 inch, long, 1 1/2 inches above wound of exit-(a).

"3. Wound, punctured-lacerated, about 1/3 inch in diameter, located at the left inferior orbital ridge.

"4. Contusion with hematoma, located at the left superior orbital portion.

"5. Contusion with hematoma, located at the right superior orbital portion.

"6. Abrasions, located at the left arm, medial third, anterior portion.

"7. Abrasions, located at the left elbow, posterior portion.

CAUSE OF DEATH:

HEMORRHAGE, MASSIVE, INTRA-EXTRA CRANIAL, SECONDARY TO GUNSHOT WOUND." (Exhibit "B", Folder of Exhibits).

Appellant took the PAL second flight in Puerto Princesa to Manila in the morning of September 7, 1979 (T.S.N., p. 127; Hearing of July 21, 1986; Ibid., p. 198, Hearing of October 30, 1987).

M/Sgt. Eugenio Enriquez, head of the Intelligence and Operations of the Palawan Constabulary Command, stated that the police authorities were able to investigate Anthony Pediapco who informed them of the presence of one "Boy Bungal" at the scene of the crime as he even borrowed some tools from him that night. After ascertaining that "Boy Bungal" was Baltazar Beran, police authorities traced his whereabouts and arrested him on September 8, 1979. Recovered from him was P4,500.00 which he admitted was part of his share from the booty (Exhibits "F" and "F-1", "G" and "G-1" and "H" and "H-1" Folder of Exhibits). Beran executed a confession before the police authorities on the day he was arrested (Exhibits "P" and "Q", Ibid.) and another statement on September 9, 1979 (Exhibit "Q", Ibid). Based on said confessions, the police authorities were able to recover from the roof of the kitchen of one Rosalio Laguardia, the revolver he used during the holdup, the motorcycle owned by Laguardia, which was used as a getaway vehicle, and some part of the share of appellant from the loot entrusted by him to his brother Raymundo Bartulay who, upon investigation by the police, voluntarily informed them of the place where it was hidden (Exhibits "I"-"N", Ibid.;

T.S.N., pp. 55-76, Hearing of Sept. 24, 1985; Ibid., pp. 86-98, Hearing of Feb. 14, 1985).chanrobles virtual law library

At the trial, appellant admitted that he and Beran only agreed to stage a holdup. He portrayed himself as the one who guarded the companions of Miguel Chua and that he was instructed by Beran to get the money from behind the driver's seat. He stated that upon finding the bag containing the money, he heard two successive shots; he even resented why Baltazar Beran had to kill Miguel Chua as they merely planned to rob him; he was responsible in saving the lives of the three passengers by pleading to Baltazar Beran to spare them (T.S.N., pp. 178, 184, Hearing of Oct. 29, 1987).

On March 8, 1988, the trial court rendered its decision convicting appellant of the crime of robbery with homicide, the dispositive portion of which states:

"WHEREFORE, the Court find (sic) and so founds (sic) Dante Bartulay guilty beyond reasonable doubt of the crime of Robbery with Homicide defined and penalized under Article 294 (1) of the Revised Penal Code, as principal by direct participation, hereby sentences him to suffer the penalty of RECLUSION PERPETUA, with all accessories provided for by law, to indemnify the heirs of Miguel Chua the amount of Seven Hundred Twenty Thousand (P720,000.00) Pesos for the expected earnings, Ten Thousand (P10,000) Pesos for moral damages and Ten Thousand (P10,000.00) Pesos for exemplary damages and to pay the costs." (p. 55, Rollo).

In seeking the reversal of his conviction, appellant claims that the trial court erred: (1) in its findings that he was the one who shot Miguel Chua; (2) in finding him guilty of the complex crime of robbery with homicide despite lack of evidence; and (3) in failing to appreciate that he endeavored and in fact was successful in preventing Baltazar Beran from killing the three companions of Miguel Chua. Appellant admits participation in the commission of robbery but vehemently and specifically denies any participation in the killing of Miguel Chua (pp. 63-64, Rollo).

The evidence indubitably shows that appellant and co-accused Beran agreed to commit robbery at Km. 36, Zigzag Road, Iwahig Penal Colony, Puerto Princesa City, two (2) weeks prior to the incident. On September 6, 1979, both appellant and Beran

succeeded in robbing Miguel Chua of P87,000.00 and the victim was shot to death 25 seconds subsequent to his three companions' entry into the van. There was no eyewitness to the killing of the said victim. Neither was there a showing that appellant endeavored to prevent the killing of Chua. A conspiracy in the statutory language exists when two or more persons avow to an agreement concerning the commission of a felony and decide to commit it (People v. Taaca, G.R. No. 35652, September 29, 1989).

Appellant tries to exculpate himself of criminal liability by pointing to co-accused Beran as the one who fired the shots and killed Chua. When the conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused and homicide was committed as a consequence thereof, all those who participated are liable as principals in the robbery with homicide, although they did not actually take part in the homicide, unless it appears that they attempted to prevent the killing. The question as to who actually robbed or who actually killed is of no moment since all of them would be held accountable for the crime of robbery with homicide (People v. Salvador, G.R. No. 77964, July 26, 1988, 163 SCRA 574 [1988]). (Emphasis supplied).:- nad

Moreover, the following actuations of appellant after the shots were fired clearly show that he is a co-conspirator: (a) immediately after the firing of the shots, he followed the truck driven by Baltazar Beran in the motorcycle; (b) when they reached Montible, Baltazar Beran abandoned the truck, rode in the motorcycle with appellant and proceeded to the house of appellant's brother in Puerto Princesa City where they divided the loot (T.S.N., pp. 184, 196-199, Hearing of Oct. 30, 1987). Where conspiracy has been established, a showing as to who inflicted the fatal blow is not required. (People v. Alvarez, G.R. No. 70446, January 31, 1989, 169 SCRA 730).

Finally, appellant admitted that when he heard the news that he was being hunted by police authorities in connection with the crime, he immediately bought a plane ticket at the PAL office in Puerto Princesa City and took the second flight to Manila in the morning of September 7, 1979. His sudden departure is indicative of guilt. The guilty flee when no man pursueth but the innocent are as bold as a lion (People v. Espinosa, G.R. No. 72883, December 20, 1989).

As correctly found by the trial court, the use of motor vehicle by the appellant and his co-conspirator aggravated the commission of the offense since the vehicle was used to facilitate their escape from the scene of the crime.

The penalty of robbery with homicide prescribed in Article 294 of the Revised Penal Code is reclusion perpetua to death. Since only one aggravating circumstance attended the commission of the offense, the greater penalty that is death shall be applied pursuant to Article 63 of the Revised Penal Code. However, this penalty cannot be imposed presently in view of the 1987 Constitution. Hence, the penalty of reclusion perpetua was correctly imposed by the trial court upon the appellant.

The trial court correctly convicted accused of robbery with homicide only despite the fact that the amended information charged all the four accused namely, Rosalio Laguardia, Dante Bartulay and Baltazar Beran of the crime of illegal possession of firearm with robbery with homicide. The information alleges that the four accused by conspiring and confederating together, unlawfully have in their possession one .380 cal. automatic pistol and one 22 cal. revolver with Serial No. 64618 without the necessary license or permit from the proper authorities and that while in the possession of said firearms, the four accused, by conspiring together, committed robbery with homicide.

The information herein is violative of Section 13 Rule 110 of the Rules on Criminal Procedure which states that a complaint or information must charge but one offense except in certain cases. The four accused are charged with two separate offenses of illegal possession of firearms and robbery with homicide. When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned.

In the case at bar, the accused was not formally arraigned as to the offense of illegal possession of firearm. The information wrongly complexed the robbery with homicide with the special offense of illegal possession of firearm. In effect, the accused is charged with two distinct offenses. He should therefore be arraigned and required to plead to the two offenses. Records show that during the arraignment, the accused pleaded guilty to robbery and not guilty to homicide. Hence, the trial court entered a conditional plea of not guilty for him to the offense of robbery with homicide, without requiring the accused to enter his plea to the illegal possession of firearms (p. 28, Records). And in the rendition of judgment, the trial court convicted him only of robbery with homicide as there was no proper arraignment of the accused concerning the other offense. In one case, this Court held that where the defendant is charged with three separate offenses, and he pleaded guilty to the two offenses without pleading to the third offense charged, the court cannot render judgment of conviction on the third offense without requiring him to plead (US v. Sobrevias 35 Phil. 32). This is based on the principle that a defendant is legally placed on trial only when issue upon the information which charges such an offense has been joined after arraignment by his plea of not guilty thereto (People v. Ylagan 58 Phil. 851).

We shall sustain the monetary award, consisting of loss of earnings, made by the trial court in favor of the heirs of the victim as this matter was not raised in issue in this appeal. Further, this Court grants the amount of P50,000.00 as death indemnity to be paid by the appellant to the heirs of the victim, in accordance with the new policy of this Court laid down in the Resolution of this Court en banc dated August 30, 1990 and in People v. Daniel Sison, G.R. 86455, September 14, 1990, in addition to the moral and exemplary damages awarded by the trial court.:-cralaw

ACCORDINGLY, except for the above mentioned modification, the decision appealed from convicting the accused appellant of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua with all the accessories provided for by law is AFFIRMED.

SO ORDERED.

Cruz, Gancayco and Grio-Aquino, JJ., concur.

Separate Opinions

NARVASA, J., concurring:

I agree entirely with the findings and basic conclusions of the ponencia of Mr. Justice Medialdea. I write this separate opinion merely with reference to the disquisition therein (actually obiter dictum since it has no bearing on the affirmance, with modification, of the petitioner's conviction) relative to the duplicitous character of the information filed by the fiscal against the appellant, which charged him not only with robbery with homicide for which he was properly convicted by the Trial Court but also with illegal possession of firearm. I want to prevent the discussion on the point from engendering the belief that this Court is here laying down the proposition that where an indictment is indeed duplicitous because charging more than one crime, it is the Trial Court's affirmative obligation to inform the accused of this defect and require him to plead separately to each of said offenses.

The provisions of the Rules of Court in force at the time material to this inquiry 1 required that an accused must be arraigned before the court where the complaint or information has been filed or assigned for trial (unless the cause shall have been transferred elsewhere for trial). The arraignment is made in open court by the judge or clerk by

1) reading the complaint or information to the defendant, 2

2) delivering to him a copy thereof, including a list of witnesses, and

3) asking him whether he pleads guilty or not guilty as charged.

At the arraignment, the accused must be personally present if the charge is for an offense within the jurisdiction of the Court of First instance (now Regional Trial Court) and if for a light offense triable by the justice of the peace or any other inferior courts of similar jurisdiction, he may appear by attorney. 3

Now, at any time before being arraigned, or entering his plea on arraignment, the accused may move to quash the complaint or information on any of several specified grounds, 4 one of which is, "That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses." 5 If the accused does not move to quash on this ground, he shall be deemed to have waived it. 6

It is the Court's duty to assure that the accused is fully informed of the charges against him. This is why the information is read to him, and he is also given a copy of the complaint or information. His knowledge of all the facts set out in the indictment, as well as of the circumstance that those facts constitute several offenses, is thus made reasonably certain, specially since the law requires that he be assisted by counsel on arraignment. 7 No obligation is expressly or implicitly imposed on the judge to point out the duplicitousness (or other defect) of an indictment on which an accused is being arraigned. In truth, that function appears to be ruled out as far as the judge is concerned, since it is on the accused that the law reposes the obligation to move to quash on the ground of duplicity (or otherwise), under sanction of waiver and loss of said ground of objection.

These principles should not be deemed to have been altered by the Court's Decision in this case.

In the case at bar, there are positive indications that the accused did not completely understand the charges against him; and these justified a finding that his arraignment was not adequate. When arraigned, "the accused pleaded guilty to robbery and not guilty to homicide," as the decision states; but he made no reference whatever to the

offense of illegal possession of firearm, also set out in the information. It thus appears that the accused understood that he was being accused only of robbery and homicide, and had no inkling that another offense was being ascribed to him, too. These circumstances, in the ponente's view, warranted a conclusion similar to that reached in the early case of U.S. v. Sobrevias, 35 Phil. 32, where the proceedings were declared by this Court to be fatally defective and irregular upon the following facts set out in the syllabus, viz:

"The accused, while on the witness stand testifying in his own behalf, broke down and admitted his guilt of the offense with which he was charged in the information upon which he had been brought to trial (Case No. 1290). At the same time he admitted his guilt of . . . (two) offenses charged in . . . (another information [Case No. 1290]) upon which, however, he had not been brought to trial. The trial court entered judgments convicting and sentencing the accused of the offenses charged in each of these informations, without further proceedings, without bringing the accused to trial, without formal arraignment and without giving the accused an opportunity to enter any of the pleas authorized in General Orders No. 58."

Upon said facts, this Court disposed as follows:

"The judgments entered in the court below convicting and sentencing the defendant and appellant in the cases now under consideration, Nos. 11544 and 11545 of the general register of this court, should, for the reasons stated, be reversed, with the costs in both instances de oficio, and the records should be remanded to the court wherein they originated, reserving to the officers of that court the right to bring these cases on again for trial or to dismiss the informations as in their discretion the interests of justice may require. So ordered."

[G.R. No. 144785. September 11, 2003]

YOLANDA GARCIA, petitioner, vs. PEOPLE OF THE PHILIPPINES respondent.

DECISION

YNARES-SANTIAGO, J.:

This is an appeal from the decision[1] dated August 30, 2000 of the Court of Appeals in CA-G.R. CR No. 22771 affirming in toto the decision of the Regional Trial Court, Branch 43 of Manila which found petitioner Yolanda Garcia guilty beyond reasonable doubt of the crime of estafa, and sentenced her to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to ten (10) years and one (1) day of prision mayor, to indemnify the complainant in the amount of P87,000.00, and to pay the costs.

Petitioner Yolanda Garcia was charged with estafa in an information which reads:

That on or about and during the period comprised between June 20, 1995, and August 15, 1995, inclusive, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud one DOLORES S. APOLONIO in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which she made to said DOLORES S. APOLONIO to the effect that accused has three (3) checks which according to her have sufficient funds and if encashed, the same will not be dishonored; and by means of other deceits of similar import, induced and succeeded in inducing the said DOLORES S. APOLONIO to accept the following checks:

Name of Bank

Check No.

Amount

Date

Payable to

Phil Natl Bank

046884

P28,000.00

6 -20-95

Cash

-do-

047416

34,000.00

8-15-95

-do-

Pilipinas Bank

60042087

25,000.00

7-25-95

Garcia

Vegetable Dealer

as payments of assorted vegetables which accused purchased and received from said DOLORES S. APOLONIO in the total amount of P87,000.00, said accused knowing fully well that the said manifestations and representations were all false and untrue as said checks when presented to the bank for payment were all dishonored for the reason Drawn Against Insufficient Funds, and were made solely for the purpose of obtaining, as in fact she did obtain assorted vegetables in the amount of P87,000.00; which once in her possession and with intent to defraud, she willfully, unlawfully and feloniously misappropriated, misapplied and converted the said assorted vegetables or the value thereof to her own personal use and benefit, to the damage and prejudice of the said owner in the aforesaid amount of P87,000.00, Philippine Currency.

CONTRARY TO LAW.[2]

Petitioner pleaded not guilty when arraigned. Trial on the merits then ensued.

For more than a year, petitioner had been buying assorted vegetables from Dolores Apolonio in Divisoria, Manila. Petitioner always paid in cash. However, in May 1995, petitioner thrice bought vegetables from Apolonio using three checks: one postdated June 20, 1995 for P28,000.00, drawn by her husband, Manuel Garcia; the second postdated July 25, 1995 for P34,000.00, drawn by her daughter Gigi Garcia; and the third postdated August 15, 1995 for P25,000.00, drawn by her nephew Jose Nadongga Jr. When the three checks were presented for payment, they were all dishonored for insufficiency of funds.

Hence, Apolonio instituted the aforesaid criminal case against petitioner.

In her defense, petitioner claimed that the amounts of the checks were already paid and that the same did not belong to her as they were only paid to her by her customers. She also maintained she did not have any transaction with the complainant in May 1995.

On December 29, 1998, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing considerations, the Court finds the accused guilty beyond reasonable doubt of the crime of Estafa under Art. 315, Sec. 2(2) (sic) of the Revised Penal Code, as amended and there being no mitigating or aggravating circumstances and taking into account the provisions of the Indeterminate Sentence Law, the Court hereby sentences the accused Yolanda Garcia to suffer the indeterminate penalty of SIX (6) YEARS and ONE (1) DAY to TEN YEARS and ONE (1) DAY of prision mayor as maximum.

She should also indemnify the complainant in the amount of P87,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.[3]

Petitioner appealed her conviction to the Court of Appeals, which, on August 30, 2000, rendered the assailed decision affirming the judgment of conviction rendered by the trial court.

In this petition for review, petitioner alleges that the Court of Appeals erred:

1. In affirming the trial courts decision finding her guilty of the crime of estafa under Article 315, Section 2[d] of the Revised Penal Code as amended for issuing postdated checks, when she was charged in the information for the crime of estafa through false pretenses punishable under Art. 315, Section 2[a] of the Revised Penal Code.

2. In convicting her of estafa under Article 315, Section 2[d] of the Revised Penal Code which penalizes those who issue postdated checks when petitioner did not issue or draw the postdated checks.

3. In convicting her of estafa under Article 315, Section 2[d] of the Revised Penal Code when there is no evidence that she had knowledge that the postdated checks she allegedly delivered to complainant were without sufficient funds.

4. In not considering that she delivered said checks to complainant in payment of a pre-existing obligation so that her liability if at all is civil in nature.

5. In not reversing and setting aside the trial courts decision and in not acquitting her instead.[4]

Petitioner basically claims that her constitutional right to be informed of the nature and cause of the accusation against her was violated because, although she was charged with estafa under Article 315, Section 2[a], as amended, which penalizes false manifestations or fraudulent representations in defraudation of another, she was instead convicted of estafa under Article 315, Section 2[d] which penalizes the issuance of postdated checks that were not funded or were insufficiently funded.

Petitioner further claims she was not the issuer or the drawer of said checks, and had no knowledge that they were unfunded or underfunded. In any case, assuming that she indeed issued or drew the checks, they were in payment of a pre-existing obligation. Consequently, she could not be held liable for estafa and her liability is only civil in nature.

Section 14(2) of Article III of the 1987 Constitution provides that an accused has the right to be informed of the nature and cause of the accusation against him. Indeed, Section 6, Rule 110 of the Revised Rules of Criminal Procedure requires that the acts and omissions complained of as constituting the offense must be alleged in the Information. Section 8 thereof provides that the Information shall state the designation of the offense given by the statute and aver the acts or omissions constituting the offense. The real nature of the crime charged is determined by the facts alleged in the Information and not by the title or designation of the offense contained in the caption of the Information. It is fundamental that every element of which the offense is comprised must be alleged in the Information. What facts and circumstances are necessary to be

alleged in the Information must be determined by reference to the definition and essential elements of the specific crimes.[5]

Article 315, paragraph 2(a) of the Revised Penal Code provides that swindling or estafa by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud is committed by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by other similar deceits. The elements of estafa under this penal provision are: (1) the accused defrauded another by means of deceit; and (2) damage or prejudice capable of pecuniary estimation is caused to the offended party or third party.[6]

A careful reading of the Information clearly shows that petitioner was charged with estafa under Article 315, paragraph 2 (a) of the Revised Penal Code. The Information alleged that petitioner by means of false manifestations and fraudulent representations x x x to the effect that accused has three checks which according to her have sufficient funds and if encashed the same will not be dishonored; x x x induced x x x Dolores S. Apolonio to accept the following checks x x x as payment of assorted vegetables x x x in the total amount of P87,000.00.[7]

There is, however, no basis for petitioner to conclude that she was convicted for estafa under Article 315, paragraph 2(d) of the Revised Penal Code which penalizes any person who shall defraud another by postdating or issuing a check or issuing a check in payment of an obligation when the offender has no funds in the bank or his funds deposited therein are not sufficient to cover the amount of check. The elements of this form of estafa are: (1) postdating or issuing a check in payment of an obligation contracted at the time the check was issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof.[8]

While the typographical error in the dispositive portion of the trial courts decision did not help in clearing this matter by saying that, x x x the Court finds the accused guilty beyond reasonable doubt of the crime of Estafa under Art. 315, Sec. 2(2) of the Revised Penal Code, x x x,[9] the body of the trial courts decision clearly discusses the elements of estafa under Article 315, paragraph 2(a), thus:

The elements of estafa are (1) that the accused defrauded another by abuse of confidence or by means of deceit; and (2) that the damage or prejudice capable of pecuniary estimation is caused to the offended party.

In the instant case when accused convinced the complainant assuring her that the postdated checks she was giving as payment of the vegetables of the same amount that she got, are funded as they belong to her relatives, when actually they are bad checks, she employed deceit. In so doing, the complainant is damaged to the tune of P87,000.00 which is the value of the vegetables.

Another element to be proven in estafa is knowledge that at the time she negotiated the checks, the drawer has no sufficient funds in the bank. The fact that the checks were postdated at some future date is evidence enough to show that at the time of negotiation the drawer did not have sufficient funds in the bank or his funds deposited therein were not sufficient to cover the amount of the checks.[10]

Even supposing that the trial court apparently discussed estafa under Article 315, paragraph 2(d), it was only pointing out the absurdity of petitioners argument, thus:

When accused testified that she does not use the checks of other persons, what did she mean during the pre-trial that the checks subject of this case belong to her customers and given to her in payment? Is she not in effect saying that she gave to the complainant the three checks of her customers to pay her own purchases? This again is an admission that she really used the checks of other persons to pay her obligation.

Maybe she has in mind that since she is not the maker of the checks she cannot be guilty of estafa. But she is wrong. In the case of People v. Isleta, et.al., 61 Phil. 332 and reiterated in the case of Zalgado v. CA, 178 SCRA 146, it was held that the appellant who only negotiated directly and personally the check drawn by another is guilty of estafa because he had guilty knowledge that at the time he negotiated the check, the drawer has no sufficient funds.[11]

In other words, whether petitioner was charged under either paragraph 2(a) or 2(d) of Article 315 of the Revised Penal Code, she would still be guilty of estafa because damage and deceit, which are essential elements of the offense, have been established with satisfactory proof. The fraudulent act was committed prior to or simultaneous with the issuance of the bad check. The guarantee and the simultaneous delivery of the checks by petitioner were the enticement and the efficient cause of the defraudation committed against Apolonio who suffered damage amounting to P87,000.00 as a result of the fraud committed by petitioner in paying him underfunded checks drawn by three different persons.

Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidences justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. Deceit is a specie of fraud.[12]

In fact, the Court of Appeals saw through petitioners deceit when it observed, thus:

Appellants scheme is obvious. She wanted to get vegetables from Apolonio for free. In order to escape from any criminal liability, she asked her husband, daughter and nephew to issue the bouncing checks. And certainly, the scheme was deceitful. The appellant could not have been unaware of the insufficient funds of her relatives to support the checks they issued but she tendered the checks to Apolonio with the assurance that they were funded. Appellant could have exerted efforts to settle her account upon notice of the dishonored checks if she were in good faith.[13]

In view of the foregoing, we see no need to discuss the other assigned errors.

Petitioner was charged with estafa under Article 315, paragraph 2[a] of the Revised Penal Code. The proper imposable penalty is prision correccional in its maximum period to prision mayor in its minimum period, if the amount of fraud is over P12,000.00

but does not exceed P22,000.00; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P10,000.00; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.[14]

Under the Indeterminate Sentence Law, if the offense is punished by the Revised Penal Code, such as estafa, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code, and the minimum term of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.[15]

In this case, petitioner defrauded Apolonio in the amount of P87,000.00. The fact that the amount exceeds P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This accords with the rule that penal laws are construed in favor of the accused.[16]

Hence, the maximum penalty to be imposed on petitioner should be taken from the maximum period of the basic penalty, i.e., prision mayor in its minimum period, which ranges from four (4) years, two (2) months and one (1) day to eight (8) years.

The minimum penalty, applying the Indeterminate Sentence Law, shall be taken from the penalty next lower in degree than the basic penalty which is prision correccional in its minimum and medium period, in any of its periods, the range of which is from six (6) months and one (1) day to four (4) years and two (2) months.

Thus, the trial court erred in imposing the penalty which ranges from six (6) years and one (1) day to ten (10) years and one (1) day. The proper penalty should be four (4) years and two (2) months of prision correccional, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

WHEREFORE, in light of the foregoing, the Court hereby AFFIRMS with MODIFICATION the decision of the trial court finding Yolanda Garcia guilty of estafa under Article 315, paragraph 2[a] of the Revised Penal Code, and sentencing her to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to fourteen (14) years of reclusion temporal, as maximum, and to indemnify the complainant in the amount of P87,000.00. With costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.

Azcuna, J., on official leave.

G.R. No. L-36936 August 5, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARSENIO ARBOIS, LEONARDO ROLLO, PEDRO LAUDERES, and BLARITO ARBOIS, defendant ARSENIO ARBOIS, defendant-appellant.

CONCEPCION, JR., J.:

Arsenio Arbois, Leonardo Rollo, Pedro Lauderes and Blarito Arbois were charged with the crime of Murder before the Court of First Instance of Samar, committed as follows:

That on or about the 27th day of February, 1971, at nighttime, in the Municipality of Gandara, Province of Samar, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with intent to kill, and with abuse of superior strength, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, stab and hack one Castor Borden, with sharp-pointed instruments, with which the accused had conveniently provided themselves for the purpose, thereby inflicting several wounds on the different parts of the body of said Castor Borden, which wounds caused the instantaneous death of said Castor Borden.

After due trial, judgment was rendered as follows:

WHEREFORE, considering the foregoing facts and circumstances, the Court finds the evidence of the defense unavailing in the face of the overwhelming proofs sufficiently and convincingly established by the prosecution. Therefore, the Court finds each of the four accused, namely: BLARITO ARBOIS, PEDRO LAUDERES, LEONARDO ROLLO and ARSENIO ARBOIS guilty of the crime of Murder qualified by treachery and attended by two generic aggravating circumstances, dwelling and band, beyond a reasonable doubt. Consequently, they are hereby sentenced to each suffer the penalty of reclusion perpetua to pay the costs of the proceedings and to indemnify the heirs of the deceased Castor Borden jointly and severally, the sum of Twelve Thousand Pesos (Pl2,000.00) and the additional sum of Ten Thousand Pesos (P10,000.00) as moral and exemplary damages. Accused Pedro Lauderes alleged in his testimony in Court that he surrendered to the proper authorities here in Calbayog City. That mitigating circumstance is offset by one aggravating circumstance present in the commission of the crime. There being one remaining aggravating circumstance, the penalty of reclusion perpetua imposed upon him is proper and legal.

The accused are entitled to the full benefits of the preventive imprisonment they may have undergone in connection with this case in accordance with Republic Act No. 6127. The penalty of reclusion perpetua is computed at thirty (30) years according to Article

27 of the Revised Penal Code. Article 29 of the same Code as amended by R.A. 6127 makes no distinctions between temporary and perpetual penalties. In all penalties consisting of deprivation of liberty the accused is entitled to credit of one-half (1/2) (now full) of the time during which he underwent preventive imprisonment. Even in the case of reclution perpetua, such credit should be allowed because it is more favorable to the convict (U.S. v. Ortencio, 38 Phil. 341; People v. Jose Gabriel, L-13756, October 30, 1959).

From this judgment, all four accused appealed. On May 12 1980, however, Pedro Lauderes and Blarito Arbois withdrew their appeal; 1 and on March 2, 1981, Leonardo Rollo als withdrew his appeal. 2 For consideration is the appeal of Arsenio Arbois.

The record shows that on February 27, 1971, Blarito Arbois gave a party in his house at Sambulawan, La Paz, Gandara, Samar, on the occasion of the first post natal bath of his wife Imelda. Among those invited was his compadre, Castro Borden who went to the party after lunch. At about 5:00 o'clock in the afternoon, Rosita Borden went to the house of Blarito Arbois to fetch her husband, Castor Borden. There, saw Arsenio Arbois, Pedro Lauderes, Blarito Arbois and Leonardo Rollo drinking with her husband Castor. She tried to bring her husband home with her since Castor was already drunk, but Castor was restrained by Blarito and Arsenio Arbois who promised to take Castor home later. So Rosita went home alone with her infant child. 3

At about 7:00 o'clock in the evening of the same day, while Rosita was sitting on the stairs of their house, waiting for her husband, Castor arrived and immediately went to the back of the house to defecate. A few moments later, Arsenio Arbois, Blarito Arbois, Pedro Lauderes and Leonardo Rollo arrived. Arsenio Arbois then called Castor to join them in singing. Castor, however, answered that he was defecating. But after he was through, Castor joined the group. While they were singing, Pedro Lauderes suddenly extinguished the torch he was holding and Rosita heard "thudding sounds" as Blarito Arbois hacked her husband at the nape with a bolo, locally known as itak. Castor ran towards their house but he was chased by Blarito Arbois, Arsenio Arbois, Pedro Lauderes and Leonardo Rollo and while Castor was climbing the stairs, Blarito Arbois again hit Castor on the right leg, causing him to fan. Castor crawled under their house, but the four men followed him and then took turns in stabbing him. Rosita pleaded with them not to kill Castor, but she was not heeded. Thereafter, the four men dragged Castor from under the house and brought him to a nearby stream. Rosita tried to take

her husband from them but she was pushed aside. After dumping the body of Castor in the stream, the four men left. Rosita then went to her husband and found him submerged in knee-deep water. She returned home and informed her father who pulled Castor's head from the water. 4

Dr. Victorino Feral, the Rural Health Physician of Gandara, Samar, who performed an autopsy on the body of Castor Borden found eleven (11) incised wounds and six (6) stab wounds of different sizes in various parts of the body, and abrasions on the chest, which may have resulted when Castor Borden was dragged on the ground. 5

The testimony of Rosita Borden is corroborated by the testimonies of her father, Demetrio Sanico, with whom they were living at the time; 6 Arsenio Bocabo, a neighbor with whom they shared a common yard; 7 and Paquito Beduya a member of the Gandara Police Department, who investigated the case and found blood stains under the house of Castor Borden and signs indicating that Castor was dragged to the nearby brook where he found the body of Castor half-submerged in water. 8

The appellant, Arsenio Arbois, for his part, while admitting that he was present at the party given by his son, Blarito, on February 27, 1971, denied participation in the killing of Castor Borden. He claimed that he went home at about 3:00 o'clock in the afternoon and was at home until about 7:00 o'clock in the evening when he went to the house of his son, Norberto, upon being informed that Blarito lay wounded there and was in a critical condition. He fetched Blarito from the house of Norberto and brought him to the Calbayog City Hospital for treatment. He was accompanied by Pedro Lauderes who told him that he (Pedro Lauderes) had killed Castor Borden. 9

We find, however, that the appellant Arsenio Arbois was a active participant in the killing of Castor Borden since he was positively and clearly Identified by the witnesses for the prosecution as one of the persons who assaulted Castor Borden. Said the court:

The alibi of Leonardo Rollo can not prosper as his participation in the commission of the offense has been duly established. The same is true with Arsenio Arbois. His alibi cannot merit serious consideration for like Leonardo Rollo's he was an active participant in the inhuman killing of Castor Borden. Leonardo Rollo and Arsenio Arbois were

positively and clearly Identified by the eyewitnesses of the prosecution in a manner that leaves no room to doubt their active participation in the crime at bar. There were lights from the house of Arsenio Bocabo and their Identities could not be mistaken, especially so because Bocabo, Sanico and Rosita Borden have known them for quite a time. The testimonies left no doubt as to the Identities of the killers of Castor Borden because they were made in a forthright, clear and explicit manner. It must be remembered that the record of the trial discloses the fact that there were lights from the houses of Arsenio Bocabo and Castor Borden and these two houses are so close to each other that they enjoy a common yard. The Identities, therefore, of the accused were clear and positive because the eyewitnesses to the commission of the offense were not only familiar with their faces but particularly because of the light that emanated from the improvised torches in the house of Arsenio Bocabo and the house of Castor Borden. The Court entertains no doubt and it is satisfied that the four accused, namely Leonardo Rollo, Blarito Arbois, Pedro Lauderes and Arsenio Arbois were conclusively and sufficiently Identified as the persons who helped and cooperated with each other in brutally killing a defenseless Castor Borden, by eyewitnesses whose credibility as observed by the Court cannot be impugned. The Court remembers that Rosita Borden, widow of the deceased Castor Borden suddenly cried while testifying on the part of the incident at bar when her late husband was stabbed by the four accused herein. The Court noted that Rosita Borden was not shedding crocodile tears but was simply moved to tears presumably because of the recollection as to how her husband was ruthlessly and brutally killed.

Indeed, alibi is unavailing once the accused is positively Identified by one without motive to charge falsely the accused, especially with a grave offense that could bring death by execution to the culprit. 10 In the instant case, the alibi of the appellant Arsenio Arbois is negated by the testimonies of Rosita Borden, Arsenio Bocabo and Demetrio Sanico who all categorically declared that the said appellant had actively participated in the killing of Castor Borden.

The appellant claims, however, that the testimonies of the witnesses for the prosecution are unworthy of belief in view of certain errors, inconsistencies and improbabilities in their declarations. But, the discrepancies and inconsistencies pointed out by the appellant in the testimonies of the witnesses for the prosecution are not of a nature and magnitude that would impair the credibility of said witnesses, They refer to minor details which are naturally to be expected from uncoached witnesses.

The appellant also claims that Arsenio Bocabo testified against him because at one time, on Christmas Day of December, 1970, Bocabo became drunk and disorderly prompting him, as barrio captain of the locality, to order Bocabo to be tied up and imprisoned at the barrio hall. The appellant further said that Rosita Borden testified against him in obedience to the wishes of her brother-in-law, Antonio Borden, who bore him a grudge. 11 However, these are mere conjectures and are not sufficient to motivate the said witnesses to testify falsely against the appellant. Besides, Castor Borden was a compadre and close to Blarito Arbois so that his widow, Rosita Borden, would not have testified against Blarito and his companions unless impelled to tell the truth and see justice done.

Counsel for the appellant contends that the trial court had allowed the introduction of evidence showing the gory details of the killing which were not alleged in the information. Obviously, counsel for the appellant is questioning the sufficiency of the information in that the details of the killing should have been averred in the information. The rule, however, is that matters of evidence, as distinguished from the facts essential to the description of the offense, need not be averred. All that is required is that the charge be set forth with particularity as will reasonably indicate the exact offense which the accused is alleged to have committed and will enable him to intelligently prepare his defense. 12

Counsel for the appellant also contends that for lack of certification under oath in the information that a preliminary investigation was conducted, the accused should be acquitted.

Suffice it to state in this connection that the certification by the fiscal that a preliminary investigation had been conducted in accordance with law is not an essential part of the information and its absence cannot vitiate it as such. 13 Besides, the failure to make a preliminary investigation of a criminal charge to which no objection was raised in the court below, may not be questioned for the first time on appeal. 14 Furthermore, the accused in a criminal case has a right to waive preliminary investigation and the appellant herein had in fact waived preliminary investigation. 15

Counsel for the appellant further contends that there was no conspiracy in the killing of Castor Borden. Counsel argues that if there was a conspiracy or confederation to kill

Castor Borden, the slaying could have been done while they were traversing a dark mountain trail and not in the house of Castor Borden. But, Castor Borden may not have been killed along the mountain trail since the accused Blarito Arbois and Pedro Lauderes both declared that Castor Borden ran ahead of them when they were about 100 meters away from the house of Castor Borden. Castor Borden must have run so fast that the accused lost the opportunity to kin him along the way. However, conspiracy could be implied since all the four accused took part in the deed and cooperated with unity of purpose and criminal intent when they took turns in stabbing the deceased Castor Borden.

All things considered, We find no tenable reason to justify a reversal of the judgment appealed from. The positive testimonies of the witnesses for the prosecution deserve more weight than the bare denial of the appellant.

The crime committed is murder characterized by alevosia as the attack on Castor Borden was sudden and unexpected and he was totally unprepared to make a defense, attended by the aggravating circumstances of dwelling and that the crime was committed by a band. The generic aggravating circumstance that the crime was committed by a band, however, cannot be appreciated since it is absorbed by treachery. 16 There being one aggravating circumstance present with no mitigating circumstance to offset it, the penalty to be imposed upon the appellant should be the maximum thereof, or death. However, for lack of the required number of votes, the death penalty cannot be imposed upon him.

WHEREFORE, with the modification that the indemnity to be paid to the heirs of the victim should be increased to P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With proportionate costs against the appellant,

SO ORDERED.

Makasiar, C.J., Teehankee, Aquino, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

Abad Santos, J., is on leave.

G.R. No. L-57841 July 30, 1982

BERNARDO GALLEGO and FELIX AGOCILLO, petitioner, vs. SANDIGABAYAN, respondent.

Antonio R. Bautista for petitioners.

Solicitor General Estelito P. Mendoza, Asst. Solicitor General Romeo C.De la Cruz and Solicitor Antonio L. Villamor for respondent.

RELOVA, J.:

In this petition for certiorari, prohibition and mandamus, petitioners seek to set aside in toto the Sandiganbayan's resolution promulgated on August 27, 1981 in Criminal Case No. 2940, entitled: People of the Philippines vs. Ramon Deseo, et al.; to restrain the Sandiganbayan from further proceeding with said Criminal Case No. 2940; and to quash the information in said case. The antecedent facts are as follows:

An information was filed in the Sandiganbayan by Tanodbayan Special Prosecutor Mariflor Punzalan-Castillo against Ramon Deseo, Bernardo Gallego, Herminio Erorita and Felix Agoncillo, for violation of Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, which reads:

That on or about the period from May to September, 1979, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the following accused. RAMON DESEO, Chairman of the Board for Marine Engine Officers in the May 28-30,1979 examinations, in checking Test Paper No. 839 in the subject Steam Boiler, Engines, Turbines, Internal Combustion and Machine Shop, gave a rating of 18% out of a total of 20% to Test II thereof, the answer of the examinee being a recital of the prayer 'Hail Mary' and in Test III of the same Test Paper, gave a rating of 18% out of 20%, the answer of the examinee being the prayer 'Our Father', BERNARDO GALLEGO, Member of the Board for Marine Engine Officers, acting as Second Corrector to Ramon Deseo affirmed the ratings given by the latter to Test Paper No. 839; FELIX AGONCILLO, Member of the Board for Marine Deck Officers in the May 28-30, 1979 examinations, in checking Test Paper No. 144, in the subject Meteorology and Electronics, gave a rating of 19% out of 20% to Test I A and B thereof, the answer of the examinee to Test I A being a long love letter; and HERMINIO ERORITA, Member of the Board for Marine Deck Offices acting as Second Corrector to Felix Agoncillo, affirmed the ratings given by the latter to Test Paper No. 144, the above acts of all the accused resulting in the passing of Examinee No. 839 in the Board for Marine Engine Officers and Examinee No. 144 in the Board for Marine Deck Officers, thereby giving unwarranted benefits to the said examinees in the discharge of their official and/or administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence.

Petitioners Bernardo Gallego and Felix Agoncillo filed a motion to quash the information against them on the following grounds:

1. the facts alleged do not constitute an offense; or, in the alternative,

2. The information charges more than one offense.

Petitioners claim that the information concludes that the ratings given by the accused to particular examinees constituted the giving to them of "unwarranted benefits"; that the statutory provision defines as a corrupt practice of the public officer "the giving to any private party any unwarranted benefits in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence"; that Section 3(e) of the Anti-Graft and Corrupt Practices Act is null and void

because it is unconstitutionally vague and therefore cannot be a basis of any criminal prosecution; that even if said Section 3(e) of the Anti-Graft and Corrupt Practices Act were to be sustained as definite, "still the allegations of the information are not sufficiently definite to charge an offense to which the accused may be required to plead." Further, petitioners allege that the term "unwarranted" is a "highly imprecise and elastic term which has no common law meaning or settled definition by prior judicial or administrative precedents"; that for its vagueness, said Section 3(e) violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.

Finally, petitioners claim that the information charges the accused with three (3) distinct offenses, to wit: "(a) the giving of 'unwarranted' benefits through manifest partiality; (b) the giving of 'unwarranted' benefits through evident bad faith; and (c) the giving of 'unwarranted' benefits through gross inexcusable negligence" while in the discharge of their official and/or administrative functions; that the right of the accused to be informed of the nature and cause of the accusation against them is violated because they are left to guess which of the three, if not all, offenses they are being prosecuted.

The motion to quash was opposed by the prosecution alleging that the term "unwarranted" in Section 3(e) of Republic Act 3019 is clear, unambiguous and unequivocal and is presumed to have been used in its primary arid general acceptation; that the objection by petitioners on the clarity of the term "unwarranted" does not suffice for the courts to declare said section unconstitutional; that said Section 3(e) of Republic Act 3019 is valid unless otherwise held by final judgment of a competent court.

With respect to petitioners' allegation that the information charge more than one offense, the prosecution avers that what is charged in the information "is the giving of unwarranted benefits to the owners of Test Booklets Nos. 839 and 144, while manifest partiality, evident bad faith or gross inexcusable negligence are only the means of commission."

Respondent Sandiganbayan sustained the prosecution and denied the motion to quash.

We hold that Section 3(e) of the Anti-graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence merely describe the different modes by which the offense penalized in Section 3(e) of the statute may be committed, and the use of all these phrases in the same information does not mean that the indictment charges three distinct offenses.

The information definitely states the names of the parties, the tune, place, manner of commission and designation of the offense. The argument that failure in the information to state the reasons why the benefits bestowed are unwarranted renders it defective is without merit informations need only state the ultimate facts; the reasons therefor could be proved during the trial. As aptly observed by respondent Sandiganbayan in its resolution dated August 27, 1981:

The word unwarranted is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized Webster, Third New International Dictionary, p. 2514); or without justification or adequate reason. (Philadelphia Newspapers, Inc. vs. U.S. Dept. of justice, C. D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 3-A 1978, Cumulative Annual Pocket Part, P. 19.)

The assailed provisions of the Anti-Graft and Corrupt Practices Act considers a corrupt practice and makes unlawful the act of a public officer in:

... or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, ... (Section 3[e], Rep. Act 3019, as amended.)

It is not all difficult to comprehend that what the afore-quoted penal provisions penalizes is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which are unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence.

Neither is the information defective. As held in the case of People vs. Buenviaje, 47 Phil.536, where the defendant was charged with violation of the Medical Law and the information charged both illegal practice of medicine and illegally advertising oneself as a doctor, it was held that "the information was not bad for duplicity inasmuch as the acts charged were merely different means of committing the same offense, notwithstanding the fact that they are prohibited by separate sections of the statute."

ACCORDINGLY, for lack of merit, instant petition is hereby dismissed.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr., concur.

MARK SOLEDAD y CRISTOBAL, Petitioner,

G.R. No. 184274

Present:

CARPIO, J., Chairperson, - versus VELASCO, JR.,* NACHURA, ABAD, and

MENDOZA, JJ.

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. February 23, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision[1] dated June 18, 2008 and Resolution[2] dated August 22, 2008 in CA-G.R. CR. No. 30603. The assailed Decision affirmed with modification the September 27, 2006 decision[3] of the Regional Trial Court (RTC), Branch 202, Las Pias City, finding petitioner Mark C. Soledad guilty beyond reasonable doubt of Violation of Section 9(e), Republic Act (R.A.) No. 8484, or the Access Devices Regulations Act of 1998; while the assailed Resolution denied petitioners motion for reconsideration.

The facts of the case, as narrated by the CA, are as follows:

Sometime in June 2004, private complainant Henry C. Yu received a call on his mobile phone from a certain Tess or Juliet Villar (later identified as Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan assistance at a low interest rate. Enticed by the offer, private complainant invited Rochelle Bagaporo to go to his office in Quezon City. While in his office, Rochelle Bagaporo indorsed private complainant to her immediate boss, a certain Arthur [later identified as petitioner]. In their telephone conversation, [petitioner] told private complainant to submit documents to a certain Carlo (later identified as Ronald Gobenchiong). Private complainant submitted various documents, such as his Globe handyphone original platinum gold card, identification cards and statements of accounts. Subsequently, private complainant followed up his loan status but he failed to get in touch with either [petitioner] or Ronald Gobenchiong.

During the first week of August 2004, private complainant received his Globe handyphone statement of account wherein he was charged for two (2) mobile phone numbers which were not his. Upon verification with the phone company, private complainant learned that he had additional five (5) mobile numbers in his name, and the application for said cellular phone lines bore the picture of [petitioner] and his forged signature. Private complainant also checked with credit card companies and learned that his Citibank Credit Card database information was altered and he had a credit card application with Metrobank Card Corporation (Metrobank).

Thereafter, private complainant and Metrobanks junior assistant manager Jefferson Devilleres lodged a complaint with the National Bureau of Investigation (NBI) which conducted an entrapment operation.

During the entrapment operation, NBIs Special Investigator (SI) Salvador Arteche [Arteche], together with some other NBI operatives, arrived in Las Pias around 5:00 P.M. [Arteche] posed as the delivery boy of the Metrobank credit card. Upon reaching the address written on the delivery receipt, [Arteche] asked for Henry Yu. [Petitioner] responded that he was Henry Yu and presented to [Arteche] two (2) identification cards which bore the name and signature of private complainant, while the picture showed the face of [petitioner]. [Petitioner] signed the delivery receipt. Thereupon, [Arteche] introduced himself as an NBI operative and apprehended [petitioner]. [Arteche] recovered from [petitioner] the two (2) identification cards he presented to [Arteche] earlier.[4]

Petitioner was thus charged with Violation of Section 9(e), R.A. No. 8484 for possessing a counterfeit access device or access device fraudulently applied for. The accusatory portion of the Information reads:

That on or about the 13th day of August 2004, or prior thereto, in the City of Las Pias, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with certain Rochelle Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a. Carlo and all of them mutually helping and aiding each other, did then and there willfully, unlawfully and feloniously defraud

complainant HENRY YU by applying a credit card, an access device defined under R.A. 8484, from METROBANK CARD CORPORATION, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu.

CONTRARY TO LAW.[5]

Upon arraignment, petitioner pleaded not guilty. Trial on the merits ensued. After the presentation of the evidence for the prosecution, petitioner filed a Demurrer to Evidence, alleging that he was not in physical and legal possession of the credit card presented and marked in evidence by the prosecution. In an Order dated May 2, 2006, the RTC denied the Demurrer to Evidence as it preferred to rule on the merits of the case.[6]

On September 27, 2006, the RTC rendered a decision finding petitioner guilty as charged, the dispositive portion of which reads:

In the light of the foregoing, the Court finds accused Mark Soledad y Cristobal a.k.a. Henry Yu, Arthur GUILTY beyond reasonable doubt of violation of Section 9(e), Republic Act 8484 (Access Device Regulation Act of 1998). Accordingly, pursuant to

Section 10 of Republic Act 8484 and applying the Indeterminate Sentence Law, said accused is hereby sentenced to suffer an imprisonment penalty of six (6) years of prision correccional, as minimum, to not more than ten (10) years of prision mayor, as maximum. Further, accused is also ordered to pay a fine of Ten Thousand Pesos (P10,000.00) for the offense committed.

SO ORDERED.[7]

On appeal, the CA affirmed petitioners conviction, but modified the penalty imposed by the RTC by deleting the terms prision correccional and prision mayor.

Hence, this petition raising the following issues:

(1)

Whether or not the Information is valid;

(2) Whether or not the Information charges an offense, or the offense petitioner was found guilty of;

(3) Whether or not petitioner was sufficiently informed of the nature of the accusations against him;

(4) Whether or not petitioner was legally in possession of the credit card subject of the case.[8]

The petition is without merit.

Petitioner was charged with Violation of R.A. No. 8484, specifically Section 9(e), which reads as follows:

Section 9. Prohibited Acts. The following acts shall constitute access device fraud and are hereby declared to be unlawful:

xxxx

(e) possessing one or more counterfeit access devices or access devices fraudulently applied for.

Petitioner assails the validity of the Information and claims that he was not informed of the accusation against him. He explains that though he was charged with possession of an access device fraudulently applied for, the act of possession, which is the gravamen of the offense, was not alleged in the Information.

We do not agree.

Section 6, Rule 110 of the Rules of Criminal Procedure lays down the guidelines in determining the sufficiency of a complaint or information. It states:

SEC. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

In the Information filed before the RTC, it was clearly stated that the accused is petitioner Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur. It was also specified in the preamble of the Information that he was being charged with Violation of R.A. No. 8484, Section 9(e) for possessing a counterfeit access device or access device fraudulently applied for. In the accusatory portion thereof, the acts constituting the offense were clearly narrated in that [petitioner], together with other persons[,] willfully, unlawfully and feloniously defrauded private complainant by applying [for] a credit card, an access device defined under R.A. [No.] 8484, from Metrobank Card Corporation, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu. Moreover, it was identified that the offended party was private complainant Henry Yu and the crime was committed on or about the 13th day of August 2004 in the City of Las Pias. Undoubtedly, the Information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him. As aptly argued by respondent People of the Philippines, through the Office of the Solicitor General, although the word possession was not used in the accusatory portion of the Information, the word possessing appeared in its preamble or the first paragraph thereof. Thus, contrary to petitioners contention, he was apprised that he was being charged with violation of R.A. No. 8484, specifically section 9(e) thereof, for possession of the credit card fraudulently applied for.

The Courts discussion in People v. Villanueva[9] on the relationship between the preamble and the accusatory portion of the Information is noteworthy, and we quote:

The preamble or opening paragraph should not be treated as a mere aggroupment of descriptive words and phrases. It is as much an essential part [of] the Information as the accusatory paragraph itself. The preamble in fact complements the accusatory paragraph which draws its strength from the preamble. It lays down the predicate for the charge in general terms; while the accusatory portion only provides the necessary details. The preamble and the accusatory paragraph, together, form a complete whole that gives sense and meaning to the indictment. x x x.

xxxx

Moreover, the opening paragraph bears the operative word accuses, which sets in motion the constitutional process of notification, and formally makes the person being charged with the commission of the offense an accused. Verily, without the opening paragraph, the accusatory portion would be nothing but a useless and miserably incomplete narration of facts, and the entire Information would be a functionally sterile charge sheet; thus making it impossible for the state to prove its case.

The Information sheet must be considered, not by sections or parts, but as one whole document serving one purpose, i.e., to inform the accused why the full panoply of state

authority is being marshaled against him. Our task is not to determine whether allegations in an indictment could have been more artfully and exactly written, but solely to ensure that the constitutional requirement of notice has been fulfilled x x x.[10]

Besides, even if the word possession was not repeated in the accusatory portion of the Information, the acts constituting it were clearly described in the statement [that the] credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu. Without a doubt, petitioner was given the necessary data as to why he was being prosecuted.

Now on the sufficiency of evidence leading to his conviction.

Petitioner avers that he was never in possession of the subject credit card because he was arrested immediately after signing the acknowledgement receipt. Thus, he did not yet know the contents of the envelope delivered and had no control over the subject credit card.[11]

Again, we find no value in petitioners argument.

The trial court convicted petitioner of possession of the credit card fraudulently applied for, penalized by R.A. No. 8484. The law, however, does not define the word possession. Thus, we use the term as defined in Article 523 of the Civil Code, that is, possession is the holding of a thing or the enjoyment of a right. The acquisition of possession involves two elements: the corpus or the material holding of the thing, and the animus possidendi or the intent to possess it.[12] Animus possidendi is a state of mind, the presence or determination of which is largely dependent on attendant events in each case. It may be inferred from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.[13]

In this case, prior to the commission of the crime, petitioner fraudulently obtained from private complainant various documents showing the latters identity. He, thereafter, obtained cellular phones using private complainants identity. Undaunted, he fraudulently applied for a credit card under the name and personal circumstances of private complainant. Upon the delivery of the credit card applied for, the messenger (an NBI agent) required two valid identification cards. Petitioner thus showed two identification cards with his picture on them, but bearing the name and forged signature of private complainant. As evidence of the receipt of the envelope delivered, petitioner signed the acknowledgment receipt shown by the messenger, indicating therein that the content of the envelope was the Metrobank credit card.

Petitioner materially held the envelope containing the credit card with the intent to possess. Contrary to petitioners contention that the credit card never came into his possession because it was only delivered to him, the above narration shows that he, in fact, did an active part in acquiring possession by presenting the identification cards purportedly showing his identity as Henry Yu. Certainly, he had the intention to possess the same. Had he not actively participated, the envelope would not have been given to him. Moreover, his signature on the acknowledgment receipt indicates that there was delivery and that possession was transferred to him as the recipient. Undoubtedly, petitioner knew that the envelope contained the Metrobank credit card, as clearly

indicated in the acknowledgment receipt, coupled with the fact that he applied for it using the identity of private complainant.

Lastly, we find no reason to alter the penalty imposed by the RTC as modified by the CA. Section 10 of R.A. No. 8484 prescribes the penalty of imprisonment for not less than six (6) years and not more than ten (10) years, and a fine of P10,000.00 or twice the value of the access device obtained, whichever is greater. Thus, the CA aptly affirmed the imposition of the indeterminate penalty of six years to not more than ten years imprisonment, and a fine of P10,000.00.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated June 18, 2008 and Resolution dated August 22, 2008 in CAG.R. CR. No. 30603 are AFFIRMED.

SO ORDERED.

G.R. No. L-29129 May 8, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO MABUYO, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Hector C. Fule for plaintiff-appellee.

Domingo M. Angeles for defendant-appellant.

MAKALINTAL, C.J.:+.wph!1

This is an appeal from the decision of the Court of First Instance of Batangas in its Criminal Case No. 2486 finding the accused Domingo Mabuyo guilty beyond reasonable doubt of the crime of murder, with treachery as the qualifying circumstance, and sentencing him to reclusion perpetua, with all the accessory penalties provided by law; to indemnify the heirs of the deceased Norberto Anillo in the sum of P6,000.00; and to pay the costs.

On June 18, 1966, at about midnight, Norberto Anillo was shot dead at the doorstep of his house in Bo. Ambulong, Tanauan, Batangas. Immediately thereafter a police team headed by Lt. Roque Garcia, Deputy Chief of Police of Tanauan, went to the scene of the incident and conducted an investigation. Fifteen empty carbine shells were recovered from the premises. Agaton Anillo, the father of the deceased, and Adelaida Mirania, the widow, when interviewed by Lt. Garcia, declined to name the assailants but promised to go to his office after the interment to disclose to him their identities.

Dr. Francisco M. Garcia, the Municipal Health Officer of Tanauan who performed the post mortem examination of the deceased in the early morning of June 19, 1966, found eleven (11) gunshot wounds on his body.

As promised, Agaton Anillo and Adelaida Mirania went to the Office of the Chief of Police of Tanauan on June 20 and submitted themselves to a formal investigation. In

their respective statements they named Domingo Mabuyo as the triggerman and alluded to a certain Juan Mendoza as the instigator of the crime. The following day, June 21, a complaint for murder was filed in the Municipal Court of Tanauan against both Mendoza and Mabuyo. Upon a finding of a probable cause, the municipal judge ordered the issuance of the corresponding warrants of arrest, but Domingo Mabuyo was nowhere to be found.

Juan Mendoza waived his right to the second stage of the preliminary investigation and the municipal court forwarded the record of the case to the Court of First Instance of Batangas, where an information for murder was filed against him alone as principal by inducement. Upon a plea of "not guilty" the accused went to trial, after which he was acquitted "on ground of reasonable doubt" in a decision promulgated on January 7, 1967..

On March 27, 1967, Domingo Mabuyo presented himself at the Office of the Chief of Police of Tanauan, but only to be fingerprinted since he had with him an order of release issued by the Municipal Court. It appears that Mabuyo had previously prepared a bail bond in the sum of P30,000.00, which was approved by the Municipal Judge. Through counsel Mabuyo waived his right to the second stage of the preliminary investigation. Accordingly the municipal court in its order dated March 27, 1967 elevated the case to the Court of First Instance of Batangas for further proceedings. On April 5, 1967 the Provincial Fiscal filed the corresponding information for murder against Mabuyo, alleging the circumstances of treachery and evident premeditation. The case went to trial upon a "not guilty" plea. The widow of the deceased, who appeared to be the lone eyewitness to the commission of crime, testified that at about midnight Of June 18, 1966, while she was reading in bed, she heard her husband asking her to open the door. She stood up, and taking with her a lighted kerosene lamp, went downstairs. Suddenly there were two successive gun shots. She heard her husband cry out "aray," followed by a sound of a falling object. As she came near the door there were other successive shots. Undaunted, she opened the door to see what was happening outside. With the aid of the light of the kerosene lamp, which she was holding over her head, she saw Domingo Mabuyo firing at her prostrate husband with what appeared to her to be a carbine. Mabuyo aimed it at her, so she immediately closed the door and shouted for help. Shortly thereafter her father-in-law, whose house was nearby, arrived. She told him that it was Domingo Mabuyo whom she saw shooting her husband.

Another witness for the prosecution, Aniceto Sumarraga of Bo. Ambulong, narrated that on June 16, 1966, at about 10:00 o'clock in the evening, while he was at home reading, Domingo Mabuyo arrived with a carbine. They talked briefly inside the house. Domingo Mabuyo inquired if he (the witness) would go with him to kill Norberto Anillo. Aniceto refused, saying that he did not want to be involved in any such undertaking. Domingo Mabuyo then told him that if that was his decision, then he alone would go. After his visitor had left, Aniceto went to the store of a certain Alejandro Perez, also in Bo. Ambulong, and played mahjong. He noticed that Norberto Anillo was also there watching the game. As he was engrossed in the game Aniceto did not warn Norberto about Mabuyo's criminal design against him. At about midnight Anillo left the store. A few minutes later the mahjong players heard gun reports coming from the direction of Norberto Anillo's place. They stopped the game and went to Anillo's house and there saw the lifeless body of Norberto Anillo lying on its face on the ground.

Testifying also for the prosecution, Agaton Anillo said that in the evening of June 18, 1966 he was at his home. At about midnight he heard gun reports coming from the house of his son Norberto. At first there were two shots, followed shortly by several more in rapid succession. When he was about to go downstairs he heard the shouts of his daughter-in-law that her husband had been fired upon. He ran to her house, where he saw his son already dead. His daughter-in-law met him and told him that she had seen Domingo Mabuyo do the shooting.

Agaton Anillo further testified that on June 16, or two days before the fatal incident, his son told him that there was a plot for his liquidation and that it was Domingo Mabuyo who would carry it out; that on June 18 he (Agaton) saw Domingo passing in front of his house; and that after Norberto was killed Domingo disappeared and went into hiding.

Domingo Mabuyo's defense was alibi. He claimed that early in the morning of June 3, 1966 he left Bo. Ambulong, Tanauan, Batangas for Gabaldon, Nueva Ecija, arriving there at about 7:00 o'clock in the evening, and did not return to Tanauan until March 27, 1967, when he surrendered to the authorities. While away from home he worked in the logging concession of Gabaldon Vice-Mayor Isabelo Aquino in Ibuna Estate, Dingalan, Quezon. In the evening of June 18, 1966, the date when Norberto Anillo was killed, he was detained in the municipal jail of Gabaldon for drunkenness and was released at about 8:00 o'clock the next morning. On March 23, 1967 he went to Dolores, Quezon, with some members of the family of Vice-Mayor Aquino, and attended the annual Holy Week rites of his religious sect known as "Iglesia dela Ciudad Mistica." While there

somebody informed him that he was being charged in court. At first he did not mind the information, but when he happened to meet Atty. Juan Mendoza, who told him the same thing, he decided to surrender to the authorities, On March 27, 1967 he and Atty. Mendoza went to Calamba, Laguna, and asked a certain Patrolman Dionisio Samiano to accompany them to the Tanauan Police Department. While he was at the Tanauan Police Department somebody fetched him and took him to the office of the municipal judge, where he was asked to sign certain papers which turned out to be his bail bond. After said bond was approved by the municipal judge he was ordered released temporarily from the custody of the police authorities. He further claimed that he had no motive to kill the deceased because the latter was not only his friend but also a nephew of his wife. He added that he was Norberto's confidant even in connection with the latter's extra-marital affairs.

Corroborating the alibi of the accused, Vice-Mayor Isabelo Aquino of Gabaldon, Nueva Ecija, testified that on June 2, 1966 he sent Antonio Berganos to Ambulong, Tanauan, Batangas to fetch Domingo Mabuyo; that the following day, June 3, 1966, both Antonio Berganos and Domingo Mabuyo arrived in Gabaldon, Nueva Ecija; that from June 6, 1966 to March 22, 1967, Domingo Mabuyo worked under him as a laborer first as a log cutter in his concession in Dingalan, Quezon and then as a rattan gatherer; that Domingo Mabuyo stopped working on March 22, 1967 because he went to Dolores, Quezon, to attend a religious ceremony of his sect; and that the distance from Gabaldon, Nueva Ecija to Tanauan, Batangas could be negotiated by means of a bus in about ten (10) hours. In the course of his testimony Aquino identified a time book he was keeping, wherein it was shown that Domingo Mabuyo rendered services as one of his laborers from June 1966 to November l966. Also identified by him were the payrolls from April 1966 to November 1966, showing the amounts paid to Domingo Mabuyo from June 1966 to November 1966, and his signatures as payee.

Gabaldon Police Chief Francisco Gamit testified on the entries in the police blotter of his department, showing that Domingo Mabuyo was detained for drunkenness in the municipal jail on June 18, 1966 at 9:00 o'clock in the evening and released at 8:00 o'clock the next morning.

Another corroborating witness, Atty. Juan Mendoza, testified that in the first week of June 1966 Domingo Mabuyo was fetched from barrio Ambulong by Antonio Berganos, one of the laborers of Vice-Mayor Aquino, to work in the logging concession of the latter in Dingalan, Quezon; that from the time of Domingo Mabuyo's departure, it was only on

March 23, 1967, in Dolores, Quezon, that they met again; that upon meeting Domingo Mabuyo, he informed the latter that he was facing a court charge for having allegedly killed Norberto Anillo and advised him to surrender immediately after the festivities of their sect; that early in the morning of March 27, 1967 he and Mabuyo went to Calamba, Laguna and asked Patrolman Samio of the Calamba Police to accompany them to the Tanauan Police Department; and that from the time, they met each other in Dolores, he had Domingo Mabuyo under his surveillance until he surrendered on March 27, 1967..

Upon the evidence presented the trial court rendered its judgment of conviction as aforestated; hence, this appeal.

The appellant alleges that the trial court erred in convicting him of a crime not properly charged in the information since he was charged with murder allegedly committed in Bo. Bagumbayan, Tanauan, Batangas, but was found guilty of said crime committed in Bo. Ambulong, some 12 kilometers away in the same municipality and province. The alleged irregularity does not constitute a reversible error. It is a settled rule that unless the particular place of commission is an essential element of the offense charged, conviction may be had even if it appears that the crime was committed not at the place alleged in the information, provided the place of actual commission was within the jurisdiction of the court. 1 In the instant case the place of commission does not constitute an essential element of the offense charged and the evidence discloses that said offense was in fact committed within the territorial jurisdiction of the trial court. Moreover, there is no reason to believe that the appellant was misled or surprised by the variance between the proof and the allegation in the information as to the place where the offense was committed.

With respect to the appellant's claim that he was denied the right to preliminary investigation, We find the same to be without factual basis, it appearing from the order dated March 27, 1967 of the Municipal Court of Tanauan that he "had renounced his right to the second stage of the preliminary investigation." Furthermore, the record does not show that he raised the question of lack of preliminary investigation at any stage of the trial in the court of first instance. It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 2

We now take up the merits of the case. In asking for his acquittal the appellant vigorously assails the credibility of the prosecution witnesses, particularly the widow who identified him as the murderer of her husband. He urges that since the testimonies of said witnesses as regards the guilt of Juan Mendoza were not given credence, the same should likewise be rejected in his case in order to be consistent. We cannot sustain the appellant. It is to be noted that in Criminal Case No. 2388 Juan Mendoza was prosecuted on the theory that he directly induced the herein appellant, who was then at large during the pendency of said case, to kill Norberto Anillo. In the case under review, the appellant himself was charged as the sole author of the crime after the acquittal of his supposed inducer. Under the foregoing factual setting, the trial, court aptly observed that the incredibility of the witnesses for the prosecution against Juan Mendoza as principal by inducement did not necessarily mean that said witnesses were also incredible when they testified against the very person who allegedly shot to death the victim. In fact, it found that the testimonies of prosecution witnesses Adelaida Mirania, Agaton Anillo and Aniceto Sumarraga against the appellant "were in accord to what they disclosed in their written statements executed less than two days after the commission of the imputed crime," but such was not the case when they testified against Juan Mendoza. In People vs. Malillos, 3 this Court had occasion to state that: t.hqw

It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. And it has been aptly said that even when witnesses are found to have deliberately falsified in sonic material particulars, it is not required that the whole of their uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. Suffice it to say, in this connection, that a trial court by reason of its proximate contact with witnesses, are in a more competent position to discriminate between the true and the false, and We really find no cogent reason to disturb the above-quoted conclusion of the court below in the decision appealed from.

Adelaida Mirania could not possibly have been mistaken as to the identity of the appellant. She knew him very well, he being from the same barrio where his house was not far away from hers. At the time of the incident she was carrying a lighted kerosene lamp. Although the lamp was not presented in evidence it was adequately described as a bottle of beer with the wick held in place at its mouth by means of a tin plate. It is a common enough source of illumination in our barrios. Undoubtedly it was sufficient to light an area within a radius of five meters.

While it is true that Adelaida Mirania did not report immediately to the Deputy Chief of Police the identity of the assailant, it is to be noted that she promised to identify him after her husband was interred, which she readily did by going to the police department where she executed a sworn statement.

In a further attempt to discredit the identification made by Adelaida Mirania, the appellant insists that she could not have possibly seen the assailant because, as testified to by Mateo Simbahan, she was not at home at the time of the incident but in the house of her father-in-law, watching a game of "bingo." However, the testimony of said witness contains flaws which render it unworthy of belief. He went to Agaton Anillo's house, he said, in order to ask the latter to help him find a job. Yet he did not talk to Agaton Anillo immediately upon his arrival but waited until midnight on the lame excuse that he got interested watching the bingo game. Furthermore, considering that Adelaida Mirania had nine (9) children and was then again pregnant, it is hardly believable that she would leave her house just to watch the bingo game, remaining on her feet until midnight.

The appellant also insists that the widow pointed to him as the assailant because she was angry with him because he refused to stop helping her late husband in his extramarital affairs. We find this motive insufficient for her to accuse him falsely of so grave a crime as murder. Besides, it is unthinkable that she would fabricate evidence to send an innocent man to jail and let the real murderer of her husband go free.

The appellant having been clearly and positively identified by the widow, his alibi cannot be sustained. Moreover, after examining the evidence in support of his defense We find that his alibi has the aspect of fabrication. Firstly, the police blotter of Gabaldon, Nueva Ecija, was not properly accomplished. While the Chief of Police testified that the appellant was brought to the municipal jail by his two policemen at about two o'clock in the afternoon of June 18, 1966, it appears in the blotter that the appellant was detained at 9:00 o'clock in the evening. Also, while the appellant was supposedly released on June 19, 1966 at 8:00 o'clock in the morning, the release was entered on the page for June 18, 1966. It is a fair conclusion that the fact of release was entered on said page because it could no longer be accommodated on the page for June 19, 1966, there being already legitimate entries thereon and the blank spaces having been crossed out. The Chief of Police was even surprised why the questioned entry appeared as it did.

Secondly, as correctly observed by the trial court, from all appearances the payrolls from April 1966 to November 1966 were all prepared at the same time. Thirdly, the protestation of the appellant that he never knew that he was being implicated in the killing of Norberto Anillo or that he was being charged in court therefor until he was so informed by Juan Mendoza on March 23, 1967 is belied by the fact that even before that date he had already taken steps to prepare his bail bond. It appears from the record that his bondsmen secured the necessary papers in connection with their respective properties to be offered as security on February 28, 1967 and that the bail bond itself was prepared on March 4, 1967. Lastly, if it were true that he was working from June 1966 to March 1967 under Gabaldon Vice-Mayor Aquino and not hiding from the authorities as alleged by the prosecution, he would at least have returned home to visit his family during that long period. He never did, not even on Christmas day, which is traditionally a day for family reunion. If anything, his long absence from his barrio supports the theory of the prosecution that his flight immediately after the commission of the crime was not for any innocent reason.

The trial court correctly appreciated the qualifying circumstance of treachery against the appellant. The attack was sudden: the victim was knocking at the door and asking his wife to open it when he was shot. Although he was apparently aware of the plot to liquidate him, the circumstances, including the use by the appellant of a high power firearm, rendered the victim defenseless. The mitigating circumstance of voluntary surrender cannot be considered in favor of the appellant. The fact that it took him almost nine months after the issuance of the warrant of arrest against him before he presented himself to the police authorities negates the spontaneity of his surrender.

The crime committed was murder, and there being neither mitigating nor aggravating circumstance, the appellant was correctly sentenced to reclusion perpetua.

WHEREFORE, with the only modification that the indemnity payable to the heirs of the deceased Norberto Anillo is increased from P6,000.00 to P12,000,00, the decision appealed from is affirmed with costs.

Fernando, Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

G.R. No. L-56158-64 March 17, 1981

PEOPLE OF THE PHILIPPINES, petitioner, vs. MAYOR PABLO SOLA, SANGGUNIANG BAYAN MEMBER FRANCISCO (ECOT) GARCIA, RICARDO (CADOY) GARCIA, JOSE BETHOVEN (ATSONG) CABRAL, CAPTAIN FLORENDO BALISCAO, JOHN, PETER, OSCAR, OMAR, JACK, RICHARD, JAMES, DONALD, WILLIAM, ROBERT, HOMER, JESSIE, ANDY, PAUL, all surnamed DOES respondents.

FERNANDO, C.J.:

The power of this Tribunal, constitutionally mandated, 1 to order a change of venue to avoid any miscarriage of justice as well as the procedure ordained in the implementation of the right to bail 2 are involved in this petition which, even if not so denominated, partakes of the nature of a certiorari. It must have been the zeal of private prosecutors Francisco Cruz and Renecio Espiritu, 3 no doubt under the conviction that there was no time to lose, that must have led them to devote less than that full measure of attention to certain fundamentals. They ignored the principle that the responsibility for the conduct of the prosecution is with the public officials concerned. Nonetheless, the importance of the questions raised, the need for a change of venue and the cancellation of the bail bonds, necessitated that further action be taken. Accordingly, in a resolution dated February 12, 1981, one day after the filing of the petition, the Court required the comment of the Solicitor General as well as of the private respondents, 4 the accused in six pending criminal cases before the Court of First Instance of Negros Occidental.

On March 4, 1981, the Comment was submitted by Solicitor General Estelito P. Mendoza. 5 It opened with this preliminary statement: "The present petition was filed by the private prosecutors in Criminal Cases Nos. 1700-1706, People v. Pablo Sola, et al., pending trial before the Court of First Instance of Negros Occidental. Rightly, any petition before this Honorable Court on behalf of the People of the Philippines can,

under the law, be instituted only by the Solicitor General. The assertion of the petitioner private prosecutors that they are instituting the action 'subject to the control and supervision of the Fiscal' will not, therefore, improve their legal standing." 6 Nonetheless, it did not press the legal point but instead adopted "the two-pronged trusts of the petition: 1. the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by Judge Rafael Gasataya, granting bail to the accused in the criminal cases mentioned above, and 2. the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of justice. 7

The facts were therein narrated thus: "On September 15, 1980, acting on the evidence presented by the Philippine Constabulary commander at Hinigaran, Negros Occidental, the Court of First Instance of that province issued a search warrant for the search and seizure of tile deceased bodies of seven persons believed in the possession of the accused Pablo Sola in his hacienda at Sta. Isabel, Kabankalan, Negros Occidental. * * * On September 16, 1980 armed with the above warrant, elements of the of the 332nd PC/INP Company proceeded to the place of Sola. Diggings made in a canefield yielded two common graves containing the bodies of Fernando Fernandez, Mateo Olimpos, Alfredo Perez, Custodio Juanica, Arsolo Juanica, Rollie Callet and Bienvenido Emperado. On September 23 and October 1, 1980, the PC provincial commander of Negros Occidental filed seven (7) separate complaints for murder against the accused Pablo Sola, Francisco Garcia, Ricardo Garcia, Jose Bethoven Cabral, Florendo Baliscao and fourteen (14) other persons of unknown names. The cases were docketed as Criminal Cases No. 4129, 4130, 4131, 4137, 4138, 4139 and 4140 of the Municipal Court of Kabankalan. After due preliminary examination of the complainant's witnesses and his other evidence, the municipal court found probable cause against the accused. It thus issued an order for their a. rest. However, without giving the prosecution the opportunity to prove that the evidence of guilt of the accused is strong, the court granted them the right to post bail for their temporary release. The accused Pablo Sola, Francisco Garcia, and Jose Bethoven Cabral availed themselves of this right and have since been released from detention. In a parallel development. the witnesses in the murder cases informed the prosecution of their fears that if the trial is held at the Court of First Instance branch in Himamaylan which is but 10 kilometers from Kabankalan, their safety could be jeopardized. At least two of the accused are officials with power and influence in Kabankalan and they have been released on bail. In addition, most of the accused remained at large. Indeed, there have been reports made to police authorities of threats made on the families of the witnesses." 8 The facts alleged argue strongly for the remedies sought, namely a change of venue and the cancellation of the bail bonds.

On the very next day, March 15, 1981, this Court issued the following resolution: "The Court Resolved to: (a) [Note] the comment of the Solicitor General on the urgent petition for change of venue and cancellation of bail bonds, adopting the plea of the petition, namely, (1) the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by Judge Rafael Gasataya, granting bail to the accused in Criminal Cases Nos. 4129, 4130, 4131, 4137, 4138, 4139 and 4140, all entitled "People of the Philippines v. Mayor Pablo Sola. et al."; (2) the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of Justice; (b) [Transfer] the venue of the aforesaid criminal cases to Branch V of the Court of First Instance of Negros Occidental at Bacolod City, presided by Executive Judge Alfonso Baguio, considering that District Judge Ostervaldo Emilia of the Court of First Instance, Negros Occidental, Branch VI at Himamaylan has an approved leave of absence covering the period from January 12 to March 12, 1981 due to a mild attack of cerebral thrombosis and that the said Branch V is the nearest court station to Himamaylan: and (c) [Await] the comment of respondents on the petition to cancel bail, without prejudice to the public officials concerned taking the necessary measures to assure the safety of the witnesses of the prosecution." 9 Thus, the issue of a change of venue has become moot and academic. The comments respectively submitted by respondent Florendo Baliscao on March 5, 1981, respondent Francisco Garcia on March 11, 1981 and respondent Pablo Sola on March 16, 1981, dealt solely with the question of the cancellation of the bail bonds. Such comments were considered as answers, with the case thereafter deemed submitted for decision.

The sole remaining issue of the cancellation of the bail bonds of respondents, there being a failure to abide by the basic requirement that the prosecution be heard in a case where the accused is charged with a capital offense, prior to bail being granted, must be decided in favor of petitioner. The bail bonds must be cancelled and the case remanded to the sala of Executive Judge Alfonso Baguio for such hearing. So we rule.

1. It may not be amiss to say a few words on the question of transferring the place of trial, in this case, from Himamaylan to Bacolod City. The Constitution is quite explicit. The Supreme Court could order "a change of venue or place of trial to avoid a miscarriage of justice." 10 The Constitutional Convention of 1971 wisely incorporated the ruling in the landmark decision of People v. Gutierrez, 11 where Justice J. B. L. Reyes as ponente vigorously and categorically affirmed: "In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established." 12 Why a change of

venue is imperative was made clear in the Comment of the Solicitor General. Thus: "The exercise by this Honorable Court of its above constitutional power in this case will be appropriate. The witnesses in the case are fearful for their lives. They are afraid they would be killed on their way to or from Himamaylan during any of the days of trial. Because of qqqts fear, they may either refuse to testify or testimony falsely to save their lives. 13 Respondent Florendo Baliscao was not averse to such transfer, but his preference is for a court anywhere in Metro Manila. 14 Respondent Francisco Garcia confined his comment to the question of the cancellation of the bail bonds. Respondent Pablo Sola made clear that he had "no objection to the transfer. 15 It may be added that there may be cases where the fear, objectively viewed, may, to some individuals, be less than terrifying, but the question must always be the effect it has on the witnesses who will testify. The primordial aim and intent of the Constitution must ever be kept in mind. In case of doubt, it should be resolved in favor of a change of venue. As a matter of fact, there need not be a petition of this character filed before this Court. Such a plea could have been done administratively. In this particular case, however, there is justification for the procedure followed in view of the fact that along with the change of venue, the cancellation of the bail bonds was also sought.

2. Equally so the cancellation of the bail bonds is more than justified. Bail was granted to the accused in the Order of the Municipal Court without hearing the prosecution That is to disregard the authoritative doctrine enunciated in People v. San Diego. 16 As pointed out by Justice Capistrano, speaking for the Court: "The question presented before us is, whether the prosecution was deprived of procedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground." 17 These words of Justice Cardozo come to mind: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 18 This norm which is of the very essence of due process as the embodiment of

justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt. It does not suffice, as asserted herein, that the questions asked by the municipal judge before bail was granted could be characterized as searching. That fact did not cure an infirmity of a jurisdictional character. 19

WHEREFORE, the assailed order of Judge Rafael Gasataya granting bail to private respondents is nullified, set aside, and declared to be without force and effect. Executive Judge Alfonso Baguio of the Court of First Instance of Negros Occidental, to whose sala the cases had been transferred by virtue of the resolution of this Court of March 5, 1981, is directed forthwith to hear the petitions for bail of private respondents, with the prosecution being duly heard on the question of whether or not the evidence of guilt against the respondents is strong. This decision is immediately executory. No costs.

Teehankee, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera JJ., concur.

Barredo and Abad Santos, JJ., are on leave.

G.R. No. L-35377-78 July 31, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CAMILO PILOTIN, VINCENT CRISOLOGO, ISIDRO PUGAL and ERNING ABANO, defendants-appellants.

RESOLUTION

AQUINO, J.:

Vincent Crisologo through counsel filed a verified motion praying for the transfer to the New Bilibid Prisons or, alternatively, to Camps Crame, Aguinaldo or Olivas, of the place of trial of Criminal Case No. 3949 of the municipal court of Vigan, Ilocos Sur, wherein he, as sole defendant, is charged with illegal possession of firearms and ammunitions.

As justificatory ground, he alleged that his life would be in jeopardy if he were to be confined in the Vigan municipal jail during the trial because there are many political enemies of the Crisologo family in that vicinity; some of the adherents of the Crisologos had in fact been murdered in Ilocos Sur, and his father, Congressman Floro Crisologo, was shot to death while hearing mass at the Vigan cathedral.

Bluntly, he affirmed that inside that jail he would be a sitting duck for a gunwielder or grenade-thrower who wants to assassinate him. He could even be lynched or shot to death on the specious pretext that he was trying to escape.

Asked to comment on the motion, the Provincial Fiscal of Ilocos Sur signified his conformity to the transfer of the venue of the trial to the New Bilibid Prisons.

Section 5(4), Article X of the Constitution expressly empowers this Court to "order a change of venue or place of trial to avoid a miscarriage of justice". Here, what is involved is not merely a miscarriage of justice but the personal safety of movant Crisologo, the accused. It would be absurd to compel him to undergo trial in a place where his life would be imperilled.

Present hostile sentiment against the accused at the place of trial is a justification for transfer of venue (See State vs. Siers, 136 S. E. 503, 103, W. Va. 30; 22 C.J.S. 310).1wph1.t

We find Crisologo's motion to be meritorious. The change of venue involves not merely the change of the place of hearing but also the transfer of the expediente of Criminal

Case No. 3949 to another court. According to Crisologo's motion, the alleged evidence against him is in the custody of the authorities at Camp Crame, Quezon City. The transfer of Criminal Case No. 3949 to the City Court of Quezon City and the holding of the trial at Camp Crame appear to be the most convenient arrangement.

WHEREFORE, the municipal court of Vigan is directed to transfer the record of Criminal Case No. 3949 to the City Court of Quezon City where it should be re-docketed and raffled to any Judge thereof. The case may be tried at Camp Crame. The usual precautions and security measures should be adopted in bringing defendant Crisologo to Camp Crame on the occasion of the hearing.

SO ORDERED.

Makalintal, C.J., Fernando, Barredo and Concepcion Jr., JJ., concur.

Antonio, J, took no part.

G.R. No. 126025

July 6, 2004

PEOPLE OF THE PHILIPPINES, plaintiff-Appellee, vs. JOSELITO ALMENDRAL y ALCASABAS, accused-Appellant.

DECISION

TINGA, J.:

In this case of incestuous rape, the victim claims she was defiled by her own father about forty (40) times. Moral justice demands that the father be punished for each and every despicable act on his minor daughter, but the law, restricted by the requirements of procedure, allows his conviction only for two counts of simple rape.

This is an appeal from the Decision1 in Criminal Case No. 9116-B of the Regional Trial Court of San Pedro, Laguna, Branch 31, finding appellant Joselito Almendral y Alcasabas guilty beyond reasonable doubt of the crime of Rape and imposing upon him the penalty of reclusion perpetua and the payment to the complainant, his daughter Ma. Jessica Almendral, of the amounts of fifty thousand pesos (P50,000.00) as civil indemnity and one hundred thousand pesos (P100,000.00) as moral damages.

The Information that spawned the Decision states:

That on or about sometime (sic) 1987, prior and subsequent thereto, in the Municipality of Bian, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, accused Joselito Almendral y Alcasabas, with lewd design and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of said Maria Jessica Estrada y Almendral against her will and consent, to her damage and prejudice.

CONTRARY TO LAW.2

Appellant pleaded not guilty to the charge.3 Trial proceeded in accordance with the Rules. The prosecution presented two (2) witnesses, namely: Ma. Jessica Almendral, the complaining witness, and Diosalinda Alcaraz, sister-in-law of the appellant.

Maria Jessica Estrada was born on December 27, 1976 to appellant and his wife, Emelinda. The other children born to the couple were Richelle (or Rachel), Michael, Joselito and Sarah Jane. They lived in Barrio Tubigan, Bian, Laguna.

Sometime in 1987 when Jessica was eleven (11) years old and there were no other persons in the house, appellant summoned her to the room. He made her sit on the papag and touched her breast and her "private organ." As she was seated, he undressed her. Not knowing what was going on, Jessica allowed appellant to undress her completely. Then he made her lie down and placed himself on top of her. He forcibly inserted his penis into her "private organ." At first, he failed to penetrate her but he tried to do it again and succeeded. Later, appellant dressed, told Jessica not to tell her mother about what happened, and left the house. It was then that Jessica noticed that her private part was bloody. Afraid that appellant might harm her should she tell her mother, she kept mum about the incident.4

Appellant did the same sex act to her around twenty (20) more times before she reached the age of thirteen (13) and twenty (20) more times after that, all in their house in Tubigan.5

The last time appellant sexually violated her was in 1992 when she was fifteen (15) years old and in third year high school. He was lying down on the bed in the room that she shared with her sister Richelle when appellant called her, "Jessica, halika." Jessica was not surprised to find her father in that room because that was the only bedroom in the house; her parents slept in the sala. They were alone then and when Jessica approached appellant, he held her breast, made her lie down, and placed himself on top of her. Jessica did not resist. She was afraid that should she reveal to anyone what happened, it would be communicated to other people and should he hear of it, appellant would pinpoint her as the source of "bad talks" about him.6

After her marriage on June 30, 1994, her husband, Analito Estrada (Anton), asked her "who was ahead of him" in deflowering her. Jessica told her husband about the sexual incidents with her father. Later, she revealed the same incidents to her aunt, her cousins and some friends. Her mother learned that she and her sister Richelle had been raped by their father only through a subpoena. Jessica and her mother had a confrontation and her mother told Jessica to withdraw the complaint.7

Sometime in October 1994, Jessica and Richelle accompanied by their aunt Diosalinda Alcaraz filed their respective complaints for rape against appellant before the CIS at Camp Vicente Lim. Richelle had narrated to Jessica that she was asleep when their

father raped her under threat of a firearm he carried. Richelle later withdrew her complaint and asked Jessica to do likewise through a letter she sent Jessica through their mother.8

Diosalinda Alcaraz, elder sister of appellant's wife Emelinda, was in her house on June 1, 1994 when Richelle and Jessica asked for help in reporting to the authorities the rapes committed against them by their father. Diosalinda told Jessica to think first before filing a complaint against appellant. It took four months before the two decided to report the crimes to the authorities and when they did, Diosalinda accompanied them to Camp Vicente Lim because Jessica and Richelle asked that their complaints be filed with the CIS. They did not want to report to the barangay captain because appellant was then the barangay secretary. Because she helped Jessica and Richelle in lodging the complaints, Emelinda stopped talking to Diosalinda.9

After the prosecution had rested its case, the defense presented evidence consisting of the testimonies of appellant's wife Emelinda, his daughter Richelle, Rene Maravillas, and appellant himself.

Emelinda denied that her husband ever raped their daughters. She believed that the charges of rape were prompted by her sister Diosalinda Alcaraz. According to Emelinda, Diosalinda was mad at her and they did not talk to each other because Diosalinda believed that she (Emelinda) caused the demolition of Diosalinda's house, which was erected on Emelinda and appellant's lot.10 Emelinda testified that appellant could not have committed the offenses because in 1987, appellant had left Bian, Laguna to work as the private driver of Mayor Feliciano Bautista of Sta. Barbara, Pangasinan. In fact, because he was employed by the mayor for two years, appellant maintained a savings account with the Rural Bank of Sta. Barbara with the last entry therein being dated September 9, 1988. Because of his job, appellant seldom went home. He would only do so once a month although there were times when Emelinda herself would go to Sta. Barbara to get money.11

Emelinda also believed that Jessica's husband, Anton Estrada, had encouraged Jessica to file the complaint. Anton was allegedly mad at her and appellant because appellant confronted him about the story Anton banded around that he was forced to marry

Jessica. Emelinda even claims that Jessica admitted to her that the filing of the case was her husband's decision and she would do whatever her husband would tell her.12

Richelle, testifying in favor of appellant, admitted that she filed a complaint for rape against her father but she did so only because she was mad at him. When Richelle saw him detained at Camp Vicente Lim, her conscience bothered her. She did not tell the authorities that there was no basis for her complaint; neither did she do anything while her father languished at the detention center for a year. It was only when she testified in the case filed by Jessica that Richelle claimed that there was no truth to her complaint against her father.13

Eventually, on February 14, 1995, Richelle filed an affidavit of desistance with respect to her own case, stating that she filed the complaint for rape because she had a grudge against her father and after thinking deeply, realized that filing the complaint was a mistake. Richelle claimed that since childhood, appellant had been cruel to them and Richelle resented him for this. When she found out that Jessica had filed the complaint against their father, she also filed the same charge against him.14

Rene Maravillas testified that he recommended appellant to his brother-in-law, Mayor Bautista, as the latter's personal driver. As the "personal agent" of Mayor Bautista, Rene was with appellant from 1986 to 1988 and they would go home to Bian, Laguna once a month.15

Testifying in his own defense, appellant denied Jessica's allegations of rape. Appellant claimed that as a father he loved and took care of his children. He tried his best to discipline them. However, when Jessica was about thirteen years old, she left the house and got hooked on vices such as taking drugs. To discipline her, appellant would hit and tie her down. He would discipline all his children but he scolded, hit and tied down only Jessica and Richelle who, like Jessica, also learned to take drugs.16

Appellant validated his wife Emelinda's testimony as to his whereabouts during the years that the crimes were committed, and his wife's theory that the rape charge was instigated by Emelinda's sister and Jessica's husband.

Appellant testified that he was employed as the "personal security aid" of Mayor Feliciano Bautista of Sta. Barbara, Pangasinan from 1986 to 1988. He would go home to Bian, Laguna once a month, and sometimes he would not go home at all.17

Appellant avers that there is no truth to Jessica's claim that appellant raped her around forty (40) times. If that were true, then Jessica should have filed the case against him as early as 1987. Jessica and Richelle filed the complaints only because they were influenced by other people like Diosalinda and Anton. Diosalinda had a grudge against him because his wife asked her and her family to vacate the place they were residing. There was bad blood between appellant and Anton. Appellant objected to Jessica and Anton's marriage because the latter was a drug addict but ultimately gave his consent because the two had eloped and were living together for three days when they asked to be wed. Whenever Anton was drunk, he would utter slanderous remarks against appellant and his wife. Anton was disrespectful towards appellant and his wife, to the point that Anton even boxed Emelinda. 18

As stated at the outset, the trial court found appellant guilty of the charge filed against him. Through his counsel, Atty. Jose B. Alvarez, appellant appealed to this Court. For failure to comply with his duty as counsel for appellant, Atty. Alvarez was suspended from the practice of law for five months in the Resolution of December 4, 2000.19 The Court then appointed the Public Attorneys' Office (PAO) as counsel de officio of appellant and required the PAO to file appellant's brief.

In this appeal, appellant imputes error to the trial court in convicting him based on the "improbable and incredible testimony of the private complainant." Jessica's testimony allegedly shows an inherent lack of credibility on crucial points, and disturbing improbabilities which cast doubt on the veracity of her story. Considering the implausible narration, the appellant believes that his guilt was not proven beyond reasonable doubt.20

The issue of credibility of the victim-witness is best addressed to the reasonable discretion of the trial court. As held by the Court a countless number of times, it is the trial court which has the unique opportunity to observe the witness firsthand and note her demeanor, conduct, and attitude under grueling examination. Hence, on the issue of credibility of witnesses, findings of the trial court will not be disturbed on appeal unless

the lower court overlooked, ignored, misapprehended, or misinterpreted certain facts or circumstances so material such as to affect the outcome of the case.21 In this instance, the trial court said:

x x x In addition thereto, Ma. Jessica related in a clear, straightforward and natural manner how she was raped by accused since she was 11 years old. x x x Ma. Jessica went through all the shame and humiliation of appearing in court in a public trial in order to exact justice for the sexual abuse she suffered at the hands of her own father, the herein accused. In this regard, her testimony is entitled to full faith and credit x x x.22

There is thus no reason to deviate from the findings of the trial court on the issue of credibility of the victim as a witness.

Appellant contends that the victim's testimony that she was raped about forty (40) times is incredible because she could not even remember the approximate dates thereof. He alleges that the victim divulged her ordeal only after her husband discovered that he was not the first man in his wife's life and charging appellant with rape was "an easy way out indeed to appease the ire of her husband who ha(d) violent tendencies."23

The victim's failure to recall the exact dates of the sexual assault she experienced in the hands of appellant, a failure she frankly admitted in court,24 does not necessarily puncture her credibility. Forcible sexual invasion committed by no less than one's own father is an agonizing and distressful experience that, by human nature, is better left buried in the deepest recesses of one's memory. Repeated forty (40) times, the experience may only result in the victim's subconscious effort to erase and blot out any details thereof. Thus, in People v. Villar, where the child victim claimed that the accused raped her more than a hundred times, the Court said:

Furthermore, the Court cannot impose the burden of exactness in the victim's recollection of her harrowing experience more so in the present case where the victim was an innocent and tender 9-year old lass when she was first raped. It is all the more understandable that the victim in the present case may have been confused as to the exact details of each and every rape incident, considering that she claimed she had been sexually ravished for more than 100 times in a span of one whole year. It is in fact

expected that such a victim would rather wish and even purposely forget the abhorrent memories of every single occasion. This being the case, it would be exacting too much should the Court demand a very accurate, detailed, and flawless account of the two occasions now subject of her charges out of the 100 occasions of forcible intercourse. In People vs. Sagucio (277 SCRA 183 [1997], where this Court faced the same issue of alleged inconsistencies in the victim's narration, we held that errorless testimony cannot be expected especially when a witness is recounting details of a harrowing experience. A court cannot expect a rape victim to remember every detail of the appalling outrage.25

Under the circumstances, it is enough that the victim was able to recount the first and last of the around forty (40) bestial sexual attacks against her.

The candid admission of the victim that her husband inquired about the "first man" in her sexual life attests to her credibility. It could have indeed been a factor that led her to divulge her ordeal to other people. However, the victim's refusal to divulge her harrowing sexual experience to anyone until her husband inquired about the man who took her virginity is explained by the victim's testimony that appellant, who exercised "ascendancy" over her, was a cruel man who maltreated her. The claim of maltreatment was in fact corroborated by defense witness Richelle.26 Clearly, after her marriage, the victim found freedom from such "ascendancy" and an ally in her husband.

Hence, assuming that it was her husband who instigated the filing of the rape charge against appellant, it certainly strains credulity why the victim would fabricate a story against her own father even granting that he was cruel to her, and agree to expose her ordeal to the public if she really did not want the truth to come out and justice to prevail. Incestuous sexual affairs are generally treated with disdain and stigma, a taboo in this family-oriented society that may haunt any family for generations. If it was not her father who took her virginity, human nature would dictate that she pinpoint the real culprit as the author of her defilement. Not even the most ungrateful and resentful of daughters would even push her own father to the wall as the fall guy in any crime, unless the accusation against him was true. In this case, the victim stood by her story notwithstanding the arduous cross-examination that she underwent.

Jessica was likewise able to sufficiently explain the long delay in the filing of the rape charge. Among the reasons considered sufficient to explain delay are fear of reprisal, social humiliation, familial considerations, and economic reasons.27 Fear of maltreatment in the hands of appellant, who admitted to hitting and tying down the victim for the least of offenses, was a compelling reason that deterred her from revealing the sexual assaults. Only her marriage cut short her inaction. Even after her husband had inquired about the man who took her virginity, she could not immediately file the charge. Taking heed of her aunt's advice, the victim gave the matter deep thought. But once she decided to pursue the case, not even her mother and her sister could dissuade her from going through with prosecuting the case against her father.

Appellant interposed the defenses of denial and alibi, claiming that he could not have committed the crime because he was employed in Sta. Barbara, Pangasinan between 1986 and 1988. His alibi is supported by a certification28 issued by Mayor Bautista that appellant was in his employ as his official driver from May 16, 1986 until its issuance on July 18, 1988. However, assuming the alibi to be true, the defense itself offered evidence that such alibi was not impregnable. Appellant admitted that he would go home to Bian at least once a month during the two-year period. Noticeably, for the crimes committed between 1988 and 1992, there was no defense offered whatsoever; appellant did not lift a finger to rebut the prosecution evidence that subsequent to the victim's having reached the age of thirteen (13) in 1989, he still used her as a sex object.

It is noteworthy that appellant's claim that Jessica was a drug dependent is unsupported by evidence other than his own self-serving testimony. Neither his wife nor daughter Richelle testified on the alleged drug dependency of Jessica to warrant giving credence to appellant's claim thereon.

In this appeal, appellant further raises for the first time the issue of the sufficiency of the Information filed against him. He argues that the trial court erred in convicting him under a defective information. He contends that he should not be convicted on the basis of the Information simply alleging "that on or about sometime (sic) 1987, prior and subsequent thereto" because it does not specify the circumstances under which the crime was committed. The vague Information purportedly left the appellant unable to defend himself properly, as he had no opportunity to explain his whereabouts from 1989 to 1992.29 He adds that the lack of an allegation of an approximate date or month or even

a single specific date when the rapes were committed sorely affected the credibility of the alleged victim.30

The information filed against an accused is intended to inform him of the accusations against him in order that he could adequately prepare his defense. It is thus textbook doctrine that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information.31 To ensure that the constitutional right of the accused to be informed of the nature and cause of the accusation against him is not violated, the information must state the name of the accused, the designation given to the offense by the statute, a statement of the acts or omissions so complained of as constituting the offense; the name of the offended party; the approximate time and date of the commission of the offense, and the place where the

offense has been committed.32 It must embody the essential elements of the crime charged by setting forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that he can properly prepare for and undertake his defense.33

However, it is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless time is an essential ingredient of the offense.34 Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The date or time of the commission of the rape is not a material ingredient of the said crime35 because the gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes places has no substantial bearing on its commission.36 As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. 37

Moreover, appellant failed to raise the issue of the defective information before the trial court through a motion for bill of particulars or motion to quash the information. Such failure to object to the allegation in the information as to the time of commission of the rapes before appellant pleaded not guilty thereto amounted to a waiver of the defect in the information. Objections as to matters of form or substance in the information cannot be made for the first time on appeal. 38

Appellant likewise never objected to the presentation of evidence by the prosecution to prove that the offenses were committed "on or about sometime (sic) 1987, prior and subsequent thereto." He cannot now pretend that he was unable to defend himself in view of the vagueness of the allegation in the Information as to when the crimes were committed, as it was shown to the contrary that he participated in the trial and was even able to give an alibi in his defense.

The failure to allege in the same Information the relationship between appellant and Jessica is clearly the trial court's reason in finding him guilty of simple rape and imposing on him the penalty of reclusion perpetua. While Jessica's minority at the time of the commission of the offenses and her relationship to the offender were established by the prosecution beyond doubt, these qualifying circumstances were not specified in the Information. It would certainly be a denial of appellant's right to be informed of the charges against him and to due process if he is charged with simple rape but convicted of its qualified form even if the attendant qualifying circumstances are not set forth in the Information.

However, the failure to plead these circumstances in the Information does not affect its sufficiency and validity as to the charge of simple rape, since the Information alleges facts which would warrant a conclusion that appellant sexually violated Jessica with its imputation therein of "carnal knowledge" "by means of force, violence and intimidation," the gravamen of the crime of rape. Carnal knowledge has a definite meaning in law; it is synonymous with sexual intercourse.39 There could not have been any mistaking the charge for any other offense and hence, the appellant was not deprived of due process by the manner by which the Information was crafted. An accused may be convicted of a crime and sentenced to a penalty prescribed therefor so long as the facts alleged in the information and proved at the trial shall constitute the crime for which he is convicted even though different from the crime designated and charted in the said information.40

The court can also convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them, especially where the accused has waived his objection to the defects in the information.41 In People v. Ramon,42 the trial court found therein guilty of three counts of simple rape based on the imputation in the criminal complaint the commission of the offenses "on or about the month of May, 1995, and prior thereto." This Court affirmed the conviction of

the accused for three counts of rape despite its finding that the complaint was indeed flawed, as it charged the accused with more than one count of rape by the bare added phrase "and prior thereto." For the accused's failure to timely question the defect through a motion to quash or a bill of particulars, he was deemed to have waived his objection to the multiplicity of charges.

Similarly, in People v. Gianan,43 accused contended that the information alleging execution of the crime "sometime in November 1995, and some occasions prior and/or subsequent thereto" was defective because it charged more than one offense. The trial court convicted accused of multiple rape without stating the number of counts of rape involved. This Court however maintained that the failure of the accused to question the validity of the information is deemed a waiver of his objection and convicted accused of four counts of rape and one count of acts of lasciviousness proven by the prosecution.

In this case, the trial court found appellant guilty of a single count of simple rape, penalized with the single indivisible penalty of reclusion perpetua under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. However, the Information charges the appellant with more than one count of rape, with its allegation that the acts were committed "on or about sometime (sic) 1987, prior and subsequent thereto," which the prosecution was able to prove by presenting evidence of the first and the last incidents of rape committed by appellant against Jessica.

Appellant therefore should have been found guilty for two counts, each act of rape being considered separate and distinct from one another. The penalty to be imposed on appellant should thus be reclusion perpetua for each of the two (2) counts of rape.

The indemnity to be paid by appellant to the offended party should likewise be modified to fifty thousand pesos (P50,000.00) for each count. Moral damages of fifty thousand pesos (P50,000.00) for each count should be awarded without need of showing that the rape victim suffered the trauma of mental, physical, and psychological suffering constituting the basis thereof, most especially where the prosecution was able to prove two counts of rape. Exemplary damages of twenty-five thousand pesos (P25,000.00) for each count of rape should similarly be awarded to deter fathers with perverse tendencies and aberrant sexual behaviors from sexually abusing their daughters.44

WHEREFORE, the Decision of the Regional Trial Court of San Pedro, Laguna, Branch 31 is MODIFIED. Appellant Joselito Almendral is found guilty beyond reasonable doubt of two counts of simple rape and is sentenced to suffer the penalty of reclusion perpetua and to pay Ma. Jessica Almendral civil indemnity of fifty thousand pesos (P50,000.00), moral damages of fifty thousand pesos (P50,000.00), and exemplary damages of twenty-five thousand pesos (P25,000.00), for each count of rape.

SO ORDERED.

Puno, J.,(Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

G.R. No. L-67842 September 24, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO MOLERO, defendant-appellant.

GUTIERREZ, JR., J.:

Appellant Pablo Molero was charged with the crime of rape by his own daughter Pacita Molero in a complaint filed in the Court of First Instance of Negros Oriental. The criminal complaint dated March 30, 1978 alleged:

That on or about the 5th day of February, 1976, on the banks of the river Siaton at Sitio Balogo, Barangay Tamlang, Municipality of Santa Catalina, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with grave abuse of confidence being the father of the herein complainant,

with force and intimidation by brandishing a bolo in threatening the undersigned that if the latter would not submit to his carnal desires he would kill the undersigned and all the members of the family, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant against the will of the latter.

The facts established by the prosecution and accepted by the trial court as basis for the judgment of conviction are summarized by the court as follows:

It appears from the evidence particularly in the testimony of complainant Pacita Molero that on February 5, 1976 at about 9:00 o'clock in the morning, her father, Pablo Moler, told her to go with him to the Siaton River at Tamlang, Sta. Catalina, Negros Oriental, about a kilometer away from their house ostensibly to catch shrimps and perhaps fish presumably for viand for the family that day. Pacita was the third among the seven children of Pablo. On February 5, 1976, she was barely 17 years young having been born on November 11, 1958. Obeying the command of her father, she went with him to the Siaton River which evidently was a secluded area in the mountain barrio of Tamlang. As they reached the river and while walking along its bank, with Pacita ahead and followed by her father, all so suddenly Pacita was hugged from behind by her father, and she staggered and fell to the ground face up. He fell too as he was holding her left hand placing it on her back while he knelt on her right arm. She tried to struggle but he unsheathed his harp bolo (locally known as PINUTI) and placed it along her side. He then proceeded to pull up her dress and remove her short pants and panty. She cried saying 'why are you doing this to me' and he only answered 'you shut up.' (TsnGertrudes Tangon, Dec. 7, 1978, page 12 of her transcript and page 247 of record). Then he unbuttoned his pants, let out his penis and lay on top of her and did the push and pull movement in sexual intercourse. She tried to kick him but he again held the unsheathed bolo which was placed on her side. Afraid that he might do her harm with the bolo if she continued to put up resistance, and obviously because of his moral ascendancy over her, the accused succeeded in having sexual intercourse with his daughter and the latter again cried.

After he satisfied his carnal lust, he stood up and the complainant likewise stood up and put on her panties and pants and proceeded home. Before she walked home, the accused warned her not to tell her mother of what happened otherwise he would kill all of them . As she walked home, she noticed that her father followed her and did not proceed anymore in catching fish or shrimps. She surmissed that he followed her, so

she would not have the opportunity to tell her mother of what happened until three days later or on February 8, 1976. Among others, Pacita Molero said:

I just decided to report the matter to my mother whether he will kill all of us because I could no longer endure what he had been doing to me.' (Tsn-Gertrudes Tangon, page 14 of transcript and page 249 of record)

Upon being informed of the incident her mother told her to just keep quiet for the moment as they would report the matter to the police authorities soon. They were secretive about their plan to report to the police because the mother and the daughter and the whole family knew that the accused was quite a fierce man, a cruel husband and a merciless father.

On February 11, 1976, Pacita Molero and her mother went to the office of the Station Commander of Pamplona, Negros Oriental, to report the incident. The accused was also called to the office and the accused and his daughter had a confrontation before the Station Commander. The accused asked 'what is this all about, Pacita' and she answered saying 'this could not have happened if you did not abuse me.' (Tsn-Nena S. Saad, Dec. 5, 1978, page 15 of her transcript, page 219 of record). It would seem that the case was too serious for the station Commander of Pamplona to handle, so the complainants were advised to report to the PC Headquarters at barrio Palanas.

At the PC Headquarters the complaint was investigated by Patrolman Arturo Adriatico Sr. who took down the statement of Pacita Molero and her mother. The accused was likewise investigated by Adriatico on February 25, 1976, but the accused did not want the investigation to be continued beacuse according to him this was just their 'own problem.' Asked to elaborate what he meant by 'own problem' the accused said 'kaugalingon ra nakong sala sa akong pagpuyo' which in English , means 'it is my own fault in my family life.' Asked to elaborate further on his last statement, the accused said:

Nga akong nahapanglapasan ang salingsing sa sacramento sa among pagpuyo nga ang akong anak babaye akong gibuongan sa iyang dumgog

which in English means:

I have commited a wrong against my own daughter wherein I destroyed her virtue as a woman.

These statement above quoted are found in the sworn statement of the accused (Exhibit "B" ) which was testified to by Pat. Arturo Adriatico, Sr.

In connection with the investigation of the complaint of Pacita Molero, Dr. Enofreda Abordo-Sebul testified that she conducted an internal and external examination of Pacita Molero and she found that her vaginal opening admitted two fingers freely and easily and there were old lacerations of the hymen at two o'clock , three o'clock, five o'clock , six o'clock , seven o'clock, nine o'clock, ten o'clock and twelve o'clock, thus showing that Pacita Molero had several previous sexual intercourses, although the cervical smear showed no signs of spermatozoa.

The appellant denied the charge. According to him, he could not have committed the crime because on February 5, 1976, he was already confined in the provincial jail and that he had been in jail since December 7, 1975.

The appellant also denied any knowledge of the sworn statement he made "because I am an illiterate" (TSN, March 8, 1982, p. 11). He, however, admitted that he was investigated by PC soldiers before he was placed in the stockade.

During the investigation, he denied the rape charge filed against him by his own daughter "because as a man, I have been earning my living for I have masters to serve like my stomach and my children. So, I have to work in my own humble way." (TSN, March 8, 1982, p. 12) Moreover, he stated that before the investigation started he was not informed of his constitutional rights to remain silent and to counsel; that he was not assisted by counsel during the investigation and that the first time he had a lawyer was at the trial of the instant case.

The appellant's defense of alibi was readily refuted by Benjamin Alcorcon, Supervising Prison Guard of the Negros Oriental Provincial Jail who informed the court that according to the records of the Provincial Jail, the appellant was committed to the Jail only on December 2, 1976 and that definitely on February 5, 1976, he was not yet confined there.

The trial court found the appellant guilty beyond reasonable doubt of the crime of Rape as defined and penalized under Art. 335 of the Revised Penal Code. He was sentenced to suffer the penalty of Reclusion Perpetua and to indemnify Pacita Molero the sum of P10,000.00 and to pay the costs of this action.

The appellant submits that the issues involved in the instant case are as follows:

a) Whether or not, under the facts obtaining in the case at bar, accused- appellant, Pablo Molero was placed under double jeopardy; and

b) Whether or not the accused-appellant committed the crime of rape.

The double jeopardy issue stems from the following antecedent facts:

The original complaint of Pacita Molero, dated March 22, 1977, charged her father with the crime of rape allegedly committed "on or about the 13th day f February, 1976." Except for the date which is "on or about the 5th day of February, 1976" in the March 30, 1978 complaint, the facts alleged in the two complaints were exactly the same.

The appellant was originally arraigned under the March 22, 1977 criminal complaint. He pleaded "Not Guilty."

During the trial, Pacita Molero, the complaining witness testified that she was raped by her father on February 5, 1976.

In view of Pacita's testimony, the assistant provincial fiscal filed a motion for leave to amend the complaint.

The motion was granted. However, upon a motion for reconsideration filed by the appellant, the trial court issued an Order the dispositive portion of which reads:

WHEREFORE, the motion for reconsideration filed by the accused dated February 22, 1978 in relation to the Reply to Opposition to Motion for Reconsideration dated March 6, 1978 is hereby granted and the Order of this Court dated February 17, 1978 admitting the amended criminal complaint dated February 2, 1978 is hereby set aside, and the said amended criminal complaint is hereby denied admission. Accordingly, this case is hereby dismissed with costs de oficio, but the accused shall not be discharged as there appears a good cause to detain him in custody to answer for the proper offense pursuant to Sec. 12, Rule 119 of the Rules of Court. the Provincial Fiscal and/or the prosecuting fiscal is hereby ordered to cause the filing of a new complaint and/or information charging the accused of the proper offense of rape committed on or before February 5, 1976 within thirty (30) days from receipt of this Order. (People v. de la Cruz, 59 Phil. 529, cited by Padilla, Criminal Procedure, 1971 ed., p. 763.)

Accordingly, the corrected criminal complaint dated March 30, 1978 was filed.

The appellant filed a motion to quash the criminal complaint on the ground that the appellant had been previously in jeopardy of being convicted of the offense charged citing Section 1(h) Rule 112 of the Revised Rules of Court. The motion was denied. Arraignment followed. The appellant pleaded "Not Guilty." Thereafter, hearings were conducted resulting in the conviction of the appellant.

The appellant now contends that he was placed in double jeopardy when the instant case was filed and he was brought to trial to answer for the crime of rape allegedly committed on February 5, 1976. He argues that the dismissal of Criminal Case No. 2148 on ground of variance between allegation and proof amounted to his acquittal, citing People v. Opemia (98 Phil. 698). He points to the fact that the criminal complaint alleged that he committed the crime of rape on February 13, 1976 and yet the

prosecution's evidence shows that the alleged crime was committed on February 5, 1976.

Section 22, Article IV of the 1973 Constitution states that no person shag be put twice in j jeopardy of punishment for the same offense." Section 9, Rule 117 of the Revised Rules of Court, now substantially reproduced as Section 7, Rule 117 in the 1985 Rules on Criminal Procedure, lays down the necessary requisites in order that defense of double jeopardy may prosper, to wit:

Former conviction or acquittal double jeopardy. -When defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Dismissal of the first case contemplated by this rule presupposes a definite or unconditional dismissal which terminates the case. (Jaca v. Blanco, 86 Phil. 452; People v. Manlapas, 5 SCRA 883; Republic v. Agoncillo, 40 SCRA 579; People v. Hon. Surtida, 43 SCRA 29; People v. Mogol, 131 SCRA 296). And "for dismissal to be a bar under the jeopardy clause of the Constitution, it must have the effect of acquittal." (People v. Agoncillo, supra)

It is quite clear that the order of the trial court dismissing the Criminal Case No. 2148 was without prejudice to the filing of a new complaint and/or information charging the appellant with the proper offense. The case was not terminated because the dispositive portion of the order expressly directed the Provincial Fiscal and/or the prosecuting fiscal to file a new complaint and/or information charging the accused with the proper offense of rape committed on or before February 5, 1976. The case was dismissed for no other reason except to correct the date of the crime from "on or about the 13th day of February" to "on or about the 5th day of February." Hence, the provisional dismissal of

Criminal Case No. 2148 could not have barred the prosecution of the case against the appellant.

Contrary to the claim of the appellant, the dismissal of Criminal Case No. 2148 did not amount to his acquittal.

There was no need for the trial court to have used such a cumbersome procedure. What the trial court should have done was simply to deny the motion for reconsideration of the order granting the prosecution's motion for leave to amend the complaint as to the date of the commission of the crime from February 13, 1976 to February 5, 1976. There was no need to dismiss the case without prejudice to the filing of a new complaint. Section 12, Rule 119, Revised Rules of Court applies when there is a mistake in charging the proper offense but not when an honest error of a few days is sought to be corrected and the change does not affect the rights of the accused. The prosecution in Criminal Case No. 2148 had already moved for the amendment of the date of the commission of the crime. The dismissal of the case pursuant to Section 12, Rule 119 of the Revised Rules of Court was made only for that precise purpose.

After arraignment and where the appellant has pleaded "not guilty," it is still proper to amend the date of the commission of the crime? The applicable rules are Sections 10 and 13, Rule 110 of the Revised Rules of Court. These rules provide:

Time of the commission of the offense.-It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committee as the information or complaint will permit.

xxx xxx xxx

Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and

during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

Applying the rules, the amendment sought by the prosecution should have been granted.

The precise time of the commission of the crime is not an essential element of the offense of rape. The amendment of the complaint changing the date of the commission of the crime of rape from February 13, 1976 to February 5, 1976, a difference of eight (8) days was only a matter of form under the facts of this case and did not prejudice the rights of the appellant. This Court has ruled:

In the case of People v. Rivera (1970, 33 SCRA 746), We ruled that the amendment of the information as to the date of the commission of the offense from March 2, 1964 to March 2, 1965, a difference of one (1) year or twelve (I 2) months, was merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos, (1912, 23 Phil. 300) where the Fiscal was permitted to amend the date of the commission of the offense from June 16, 1910 to June, 1911.

The phrase 'on or about' employed in the information does not require the prosecution 'to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise, the Court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment' (U.S. v. Dichao, 27 Phil. 420, 423 [1914]).

In the case of People v. Reyes, (supra) on which the respondent judge relies, the change sought was from 1964 to 1969, a difference of five (5) years, which gap of five years 'is so great as to defy approximation in the commission of one and the same offense.'

This is not so in the case at bar where the difference is only, as aforestated, two months and five days, which disparity allows approximation as to the date of the commission of the offense of grave coercion." (People v. Borromeo, 123 SCRA 253).

The appellant's reliance on the case of People v. Opemia supra, is not well- taken. The amendment proposed in that case was the changing of the date of the commission of the crime from June 18, 1952 to July, 1947, or a difference of five years. We disallowed the amendment and adopted the lower court's ruling that "the amendment that would change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form.... It is apparent that the proposed amendment concerns with material facts constituting the offense, and consequently, it would be prejudicial to the constitutional rights of the defendants."

The dismissal of Criminal Case No. 2148 did not amount to the appellant's acquittal. In effect, the order of dismissal does not constitute a proper basis for a claim of double jeopardy: (See People v. Bocar, 138 SCRA 166)

The constitutional mandate against putting a person twice in jeopardy of punishment for the same offense is to protect the accused from going through a trial a second time. But, since the first proceedings has not yet been terminated, there is no second proceeding to speak of, and, therefore, no double jeopardy (Flores, Jr. v. Enrile, 115 SCRA 236).

Under the second issue, the appellant insists that the evidence failed to establish the presence of force and intimidation in the commission of the sexual act. He mentions Pacita's testimony that she had a series of sexual intercourses with the appellant since she was thirteen years old and yet did not report the incident to her mother. He argues that if a crime was committed by him at all, it was one of qualified seduction.

The appellant's arguments deserve no merit. Pacita's narration of the incident clearly shows that the appellant employed force and intimidation against her, to wit:

FISCAL:

Q Now,on what part of the river did this incident happen??

A At Balogo while we were walking on the edge of the river.

Q You mean, you were following the river?

A Yes, I was ahead.

Q Now, while you were ahead, there was that incident that happened. What was that incident?

A Because he made me go ahead and suddenly he wrestled me.

COURT:

Q Is that the correct translation?

FISCAL:

No, Your Honor. She was hugged from behind.

COURT:

'I was ahead and suddenly he hugged me from behind.'

That is the correct translation.

FISCAL:

Now, when you were hugged by your father suddenly from behind, what happened?

A I fell down.

Q On the very place where you were then hugged by your father?

A Yes.

Q When you fell to the ground, what was your position?

A My left hand was placed in my back because he held my left hand.

Q When did your father hold your left hand placing it at your back?

COURT:

After you fell or before you fell?

A I had already my hand at my back when I fell down because he immediately embraced me but then I tried to free myself. After which, I fell down.

FISCAL:

When your father was hugging you and you told this Court that you struggled to free yourself and you also told the Court that you fell to the ground, when you fell to the ground, did you fall to the ground together with your father or you were the only one who fell to the ground?

A He also fell down following me because he was holding my hand.

Q And your father at that time was holding which of your hand or arm?

A Left.

Q And when you were already on the ground, win you please tell the Court what was your position?

A I was lying on my back.

Q And how about your left arm, which you said was being held by your father while you were already lying flat on the ground?

A He pulled up my dress and put off my panties." (TSN, November 20, 1978, pp. 8-10)

xxx xxx xxx

FISCAL:

According to you, you fell to the ground followed by your father and your father was still holding your left arm which was placed at your back. While you were already flat on the ground, was your father still holding your left arm at the back?

A He was still holding my left arm and then when we fell down he knelt on my other arm.

Q And you are referring to your right hand?

A Yes.

Q When your father, the accused therein, was doing that, where was he in relation to you?

COURT:

What was the position of your father when he was kneeling on your right arm and holding your left arm on the back?

A He was on a kneeling but bending position.

FISCAL:

Was he directly on top of you or he was on either side of your body?

A On my side.

Q Which side of your body was your father when he was kneeling or bending?

A My right.

Q Then, while your father was doing that, what did he do to you?

A He was removing his buttons and he took off my panties.

Q All right, now, how about your dress, what kind of dress were you wearing at that time?

A I was wearing a thick clothing because I was sure that I will be wet and I was also wearing a short pants.

COURT:

What is this thick clothes you were wearing? You mean, dress, pants or blouse?

A What I mean is that, the dress I was wearing was not like this one I am wearing now but it was for a daily use.

Q It is a one-piece dress?

A Yes.

Q And you were wearing also short pants, according to you?

A Yes.

Q And you were wearing panties under the short pants?

A Yes.

ATTY. REYES:

Your Honor please, may we add for the records that she refers to a dress made of cotton or silk but relatively of light material.

COURT:

Make that of record.

COURT:

Go ahead, Fiscal.

FISCAL:

All right, now, according to you, your father, the accused therein, removed your panty. Now, which was removed first, your panty or the short pant you were wearing because according to you, you were wearing short pant?

COURT:

How can you remove the panty first when you are wearing the short pant? Well, witness may answer the question.

A Both were removed at the same time.

FISCAL:

And which took first, the simultaneous removal of your shorts and panty or the unbottoning of the pants of your father?

A He took off my panty and shorts first.

COURT:

How was he able to remove your panty and shorts, were you not struggling to free yourself?

A I was not able to struggle because he unsheathe a bolo.

Q What did he do with the bolo

A That if I continue to struggle, he would kill me.

Q When he was holding that bolo, with what hand was he holding that?

A Right.

Q How about his left hand, what was it doing at that time?

A His left hand was also holding my other hand and so when he unsheathe his bolo, I did not continue to struggle because I know he would kill me.

FISCAL:

And which took place first, the simultaneous removal of your shorts and panty or the unsheathing of the bolo by your father?

A The simultaneous taking of the panty and short pant took place first because I kept on struggling so he unsheathe his bolo.

COURT:

Actually, the Court gets it from you that he was able to remove your panty and short pant before he unsheathe his bolo?

A Yes, after he took off my panty and short pant that was the time he threatened me.

Q He was able to remove your panty and short pant completely out before he threatened you with the use of a bolo?

A Yes.

COURT:

Go ahead.

FISCAL:

Now, after your panty and short pant were already removed and according to you, your father unsheathe his bolo and threatened you. When did your father remove or unbutton his pants, while he was still holding that bolo?

A He put down the bolo on his side and after which, he unbuttoned his pants.

Q At that time, what was the kind of pants your father was wearing?

A He was only wearing an improvised short pant and with buttons in front.

Q Was your father actually able to unbutton his improvised short pants?

A Yes.

Q After he was able to unbutton his improvised short pants what did he do?

A He lay down on top of me.

Q And how about your legs at that time, was it already spread out?

A I tried to hold my both thighs together but then he opened them.

Q And your father, according to you, placed himself on top of you while your legs were already spread out?

A When he was able to lie on top of me, I tried to close both legs but then he held them open and he lay on top of me.

Q So that when your father was lying on top of you, your both legs were already spread

A Yes.

Q How about your dress at that time your father was on top of you, what was the position of your dress?

A He rasised it up to my stomach.

Q Now, what happened while he was already on top of you?

A He was doing the push and pull movement of his buttocks.

Q And at that time, did you not struggle to free yourself?

A When he was doing that act, I kicked him but then he again got hold of the bolo placed on his side.

Q Then, what did you do after he got hold of the bolo?

A I cried because he made sexual intercourse with me.

Moreover, there is no doubt that the appellant had a moral ascendancy and influence over Pacita such that he could easily intimidate and force her to submit to his lustful desires considering that the appellant was her father and she was only seventeen(17) years old at that time. The complainant is obviously illiterate and unschooled. Her complaint is signed with a thumbmark. These, plus the fact that the appellant at the time of the commission of the crime threatened her with a bolo had practically rendered complainant helpless against the lustful demands of the appellant. (See People v. Alcid, 135 SCRA 280). The records also show that the appellant was a fierce man, a cruel husband, and a merciless father such that mother and daughter had to cower in secretive fear before reporting the rape to the authorities.

The fact that Pacita did not report the previous incidents involving her and the appellant to her mother has no bearing on the prosecution of the instant case. This case refers to the commission of the crime of rape on February 5, 1976 by the appellant against Pacita which is a distinct and separate crime from whatever crimes the appellant might have committed when he had sexual intercourse with his own daughter Pacita ever since she was thirteen years old. An intimidated person cowed into submitting to a series of repulsive acts may acquire some courage as she grows older and finally state that enough is enough, the depraved malefactor must be punished. The tragedy in this case is that the criminal happens to be her own father.

Indeed, we find no reason to depart from the trial court's finding that the appellant is guilty beyond reasonable doubt of the crime of rape against his own daughter. We agree with the findings of the trial court that:

As against the vivid and clear testimony of Pacita Molero, the accused had nothing to offer except his short testimony denying having committed in any way the crime of Rape against his very own daughter, He denied having brought his daughter to the Siaton River on February 5, 1976 because he insisted that he was already confined in the PC

Stockade on February 13, 1975, and that he was already incarcerated in the Provincial Jail since December 5, 1975. However, defense witness Benjamin Alcorcon, Supervising Prison Guard of the Negros Oriental Provincial Jail clearly told the Court that the record of the Provincial Jail shows that the accused was committed to the Provincial Jail only on December 2, 1976 and definitely on February 5, 1976 he was not yet confined in the Provincial Jail. . . . Pressed by the Court if he could have any satisfactory explanation why his daughter would file such a serious charge against him if in truth he had not committed the act, the accused just matter-of-factly said that 'my daughter Pacita and her mother agreed to file this case.' (Tsn-Liberata Balasbas March 10, 1982, page 11 of transcript, page 434 of record).

The defense placed Pacita Molero as its own witness and her testimony as witness for the defense, that her father had sexual intercourse with her on February 5, 1976 when he brought her to the Siaton River, has only served to reinforce her testimony on 'this aspect of the case, when she testified as a witness for the prosecution. Undoubtedly, the accused is bound by the testimony of his own witness.

All told, the Court finds that the guilt of the accused was established beyond reasonable doubt by the clear and convincing testimony of the complainant, Pacita Molero. Although at times during her testimony she got confused as to dates, this is understandable considering that she is illiterate and this did not in any way affect the vivid portrayal of the heinous act committed on her by her father.

WHEREFORE, except for the MODIFICATION that the indemnity of P10,000.00 is increased to TWENTY THOUSAND PESOS (P20,000.00), the decision appealed from is AFFIRMED in all respects.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

G.R. No. L-32557 October 23, 1981

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO C. REYES as Presiding Judge of the Circuit Criminal Court, Fourth Judicial District, and FRANCISCO ESTRELLA, respondents.

CONCEPCION, JR., J.:

Petitioner, by way of certiorari, with prayer for preliminary injunction, questions as alleged grave abuse of discretion, the order 1 dated July 10, 1970, of the respondent Judge, (Hon. Alfredo C. Reyes of the Circuit Criminal Court, 4th Judicial District, Cabanatuan City) in Criminal Case No. CCC-IV-170-NE, entitled "The People of the Philippines versus Francisco Estrella," which denied petitioner's verbal motion for the amendment of the information in said case, by deleting the year "1969" as alleged therein, and in lieu thereof to put the year "1964 ". Respondent Judge anchored his denial of the verbal motion on, to wit:

After a careful study of both memoranda in support and against the said motion, this Court finds and so hold that the amendment to the information cannot be made without prejudice to the substantial rights of the accused in the above-entitled case.

WHEREFORE, the motion to amend the information is hereby denied in accordance with the decision of the Supreme Court in the case of People vs. Placido Opemia et al., 98 Phil. 698. ...

SO ORDERED. 2

Petitioner also assails the order of respondent Court, dated September 14, 1970, 3 denying its motion for reconsideration 4 of the July 10, 1970 order.

This court issued a preliminary injunction on September 24, 1970. 5

Pertinent facts of record are:

Sometime in October, an information for qualified theft was filed against private respondent Francisco Estrella and three others, as Criminal Case No. 6799, in the Municipal Court of San Jose, Nueva Ecija, pertinent portion as follows:

The undersigned Asst. Provincial Fiscal accuses Narciso Mananing, Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That in the month of August, 1964, in the municipality of San Jose, province of Nueva Ecija, Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being the driver of complainant Maria Ignacio- Francisco, Florentino Alcantara, repair shop owner where the truck hereinafter described was found and recovered, Francisco Estrella, a Philippine Constabulary soldier stationed at Bulacan, and Melecio Guevarra, all conspiring together, without the knowledge and consent of the owner thereof, take, steal and carry away one (1) Bedford truck with Chassis No. 153559, with Motor No. 2/54/5/6, with Plate No. T-35049, Series of 1964, to the damage and prejudice of the owner, Maria Ignacio-Francisco in the amount of P23,000.00, value of said vehicle. 6

On November 15, 1969, the Acting City Fiscal of San Jose City, (converted into city) Nueva Ecija, filed an information (Crim. Case No. CCC-IV-170) with the respondent Court, charging private respondent Francisco Estrella and three others, with qualified theft, as follows:

The undersigned Acting City Fiscal accuses Narciso Mananing Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That on or about the month of August, 1969 in the City of San Jose, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being then the driver of Bedford truck bearing Plate No. T35049, Series of 1964, with Chassis No. 153559, and with a Motor No. 2/54/5/6 owned by Maria Ignacio-Francisco, conspiring and confederating together with his co-accused namely: Florentino Alcantara, Francisco Estrella, and Melecio Guevarra, and with intent to gain, with grave abuse of confidence, did then and there wilfully, unlawfully and feloniously take, steal and carry away the said Bedford truck valued at Twenty Three Thousand Pesos ( P23,000.00) Philippine Currency and dismantled the same without the consent of the said owner and to her damage and prejudice of the said sum of P23,000.00. 7

On January 28, 1970, private respondent Francisco Estrella was arraigned, and he pleaded not guilty During the arraignment, respondent-Judge required his clerk to read the information to Francisco Estrella. The court interpreter was directed to translate the information into Tagalog for the benefit of the accused. The prosecution, although represented, made no move to amend the information, if indeed it was really erroneous. From January 28, 1970, up to May 21, 1970, the latter date being the scheduled trial of the case, the prosecution never moved to amend the information. 8

On May 21, 1970 when the prosecution was scheduled to present its evidence, it verbally moved that it be allowed to amend the information 9 so as to change the date of the commission of the offense from "August 1969" to "August 1964." 10 Private respondent Francisco Estrella, having come to the trial court ready to defend himself from an offense allegedly committed in "August 1969", vigorously objected to the verbal motion. 11

Respondent Judge withheld his ruling on the prosecution's motion to amend, and instead, required the prosecution to present its first witness, to determine whether the sought amendment in the information would constitute a change of substance affecting the rights of the accused or merely of form. 12

Florentino Alcantara, originally a co-accused but discharged as a prosecution witness, testified that the offense was committed in 1964. The defense refused to cross-examine witness Alcantara, asked respondent Court to strike off the testimony of Alcantara because it referred to an offense not mentioned in the information, and asked for a ruling by respondent Court on the prosecution's verbal motion to amend the information. 13

Respondent Judge required the prosecution and the defense to submit memoranda. The contested order of July 22, 1970, denying the prosecution's verbal motion to amend information on the ground that said amendment would prejudice the substantial rights of the accused was issued by respondent Court. 14

Petitioner's motion for reconsideration of the aforementioned contested order alleged that time was not material ingredient of the offense of qualified theft and claimed that the case of Placido Opemia, et al., 98 Phil. 698, relied upon by the trial court for its denial of the motion to amend information, was not applicable to the case. 15

The respondent Court, denied the petitioner's motion for reconsideration, in its order of September 14, 1970, 16 stating that the prosecution's honest mistake in the information filed cannot prevail over the substantial rights of the accused based on constitutional provisions. Hence this petition.

The principal issue before this Court is whether or not the respondent Court abused its discretion when it refused an amendment to the information filed in Criminal Case No. CCC-IV 170-NE, to change the date of the alleged commission of the offense from "August 1969" to "August 1964", on the ground it would constitute an impairment of the substantial rights of the accused as guaranteed by the Constitution.

Under Section 13, Rule 110, Rules of Court, the complaint or information in a criminal case where the accused had been arraigned and had pleaded, as in this case, may be amended only as to all matters of form when the same can be done without prejudice to the substantial rights of the accused.

As to whether or not a sought for amendment of an information to change the time of the alleged commission of crime from 1969 to 1964 (period of five years) would prejudice the substantial rights of the accused after his arraignment and plea, this Court ruled in the case of People vs. Placido Opemia, et al., 98 Phil. 698, that:

In the case at bar, the proof shows that the carabao was lost on July 25, 1947, and not on June 18, 1952, as alleged in the information. The period of almost five years between 1947 and 1952 covers such a long stretch of time that one cannot help but be led to believe that another theft different from that committed by the co-defendants in 1952 was also perpetrated by them in 1947. Under this impression the accused, who came to Court prepared to face a charge of theft of large cattle allegedly committed by them in 1952, were certainly caught by sudden surprise upon being confronted by evidence tending to prove a similar offense committed in 1947. The variance is certainly unfair to them, for it violates their constitutional rights to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. Moreover, they cannot be convicted of an offense of which they were not charged.

In the present case, private respondent Francisco Estrella was investigated for an offense allegedly committed in August of 1964. Then, he was charged for an offense allegedly committed in August of 1969. He pleaded not guilty to the latter charge. Now petitioner desires to put him on trial for the alleged 1964 offense. This cannot legally be done.

The petitioner's argument that the time or date of the commission of the offense is not a material ingredient of the crime of qualified theft cannot be given much weight in this case because the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same offense. While it has been held that except when time is a material ingredient of an offense, the precise time of commission need not be stated in the information, this Court stated that this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. 17 The prosecution is given the chance to allege an approximation of time of the commission of the offense and the precise date

need not be stated but it does not mean that it can prove any date remote or far removed from the given approximate date so as to surprise and prejudice the accused.

What happened in this case is that the petitioner committed a mistake in the placing of the date of the alleged crime in the information filed. During the arraignment and plea of private respondent Francisco Estrella on January 28, 1970, the prosecution had all the chances to realize and rectify its mistake. It did not do so. The trial of the accused was set for May 21, 1970. Petitioner therefore, had more than three months to take steps. Again, it failed to do so. Finally, petitioner verbally moved to amend the information only at the start of the trial. To permit petitioner to do so would surprise the accused and prejudice his substantial rights.

WHEREFORE, the questioned orders dated July 10, 1970 and September 14, 1970, by respondent Judge are hereby AFFIRMED, the preliminary injunction issued on September 24, 1970 dissolved, and this petition DISMISSED for lack of merit. Without costs.

SO ORDERED.

Fernandez,* Abad Santos and De Castro, JJ., concur.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

G.R. No. L-51745 October 28, 1988

RAMON F. SAYSON, petitioner, vs. PEOPLE OF THE PHILIPPINES and the HON. COURT OF APPEALS, respondents.

Federico P. Roy for petitioner.

The Solicitor General for respondents.

CORTES, J.:

Petitioner seeks the reversal of the Court of Appeals decision finding him guilty of attempted estafa.

On March 25, 1972, an information for the crime of Estafa through Falsification of a Commercial Document was filed against the herein petitioner, Ramon F. Sayson before the Court of First Instance of Manila, the pertinent portion of which reads:

... the said accused having come in possession of a blank US dollar check #605908142, with intent to defraud Ernesto Rufino, Sr. and/or Bank of America, did then and there wilfully, unlawfully and feloniously forge and falsify or cause to be forged and falsified the said check, by then and there writing or filling or causing to be written or filled up the following words and figures: "March 10, 1972," "Atty. Norberto S. Perez," "2,250.00" and forging the signature of the Asst. Cashier, Manager of the Bank of America, Dania Branch, making it appear, as it did appear, that the said check was duly issued by the Bank of America, when in truth and in fact, as the accused well knew, the said check was never issued nor authorized by the said bank; that thereafter, said accused wrote or affixed the signature "Norberto Perez" on the back of said check as indorser; that once the said cheek had been forged and falsified in the manner above described, the said accused by means of false manifestations and fraudulent representations which he made to Ernesto Rufino, Sr. that he is "Atty. Norberto Perez" who is the payee of the said Check, and by means of other similar deceits, induced and succeeded in inducing the said Ernesto Rufino, Sr. to change said dollar cheek, as in fact, said Ernesto Rufino, Sr. issued Manufacturer's Bank Check No. 87586 dated March 22, 1972 payable to "Norberto Perez" in the amount of "Pl 4,850.00" in exchange for said dollar check; ... [Rollo, pp. 23-24.]

Arraigned on December 8, 1972, petitioner pleaded not guilty. On October 9, 1974, after several postponements, the prosecution rested its case. At the hearing of December 9, 1974, when the defense was scheduled to present its evidence, only the petitioner appeared. He said that his counsel had another case in a different court. In the morning of the said day, his lawyer also sent a telegram to the court requesting cancellation of

the hearing because he was sick. The court denied the motion for postponement and the case was considered submitted for decision without petitioner's evidence.

The trial court rendered judgment on January 30, 1975, finding the accused guilty of the crime charged and sentencing him to an indeterminate penalty of 2 years, 4 months and 1 day to 6 years of prison correccional to pay a fine of P2,000.00, with subsidiary imprisonment and to pay the costs. The Court of Appeals affirmed but modified the penalty by imposing six months of arresto mayor and eliminating the fine. Hence, this petition for review on certiorari.

The background facts as found by the appellate court as well as its conclusions thereon follow:

On March 22, 1972, appellant Ramon Sayson y Fernandez was introduced by Vicente Jaucian a former employee of the Luzon Theatres, Inc. to Anselmo Aquiling, private secretary to Ernesto Rufino, Sr., General Manager of the corporation. Vicente Jaucian had known appellant as "Fiscal Perez" who wanted to exchange dollars for pesos, having been introduced to him in that capacity by his (Jaucian's) cousin. Thinking that Rufino might be interested in dollars, Jaucian accompanied appellant to the offices of the Luzon Theatres, Inc. and Mever Films, Inc. at the Avenue Hotel on Rizal Avenue, Manila. Upon being introduced to Anselmo Aquiling, appellant showed the latter an Identification card indicating that he was Norberto S. Perez, a Prosecuting Attorney from Angeles City. After making the introduction, Jaucian left. Mr. Rufino said that he was not personally interested in dollars but suggested to his secretary to inquire if Mever Films, Inc. needed dollars.

Mr. Rufino was also Chairman of the Board of the aforesaid corporation; and when told that Mever Films needed dollars, he authorized the transaction. Appellant then presented to Edgar Mangona, the assistant accountant of Mever Films, a Bank of America check in the amount of $2,250,00 payable to the order of Atty. Norberto S. Perez, a xerox copy of which was introduced in evidence as Exhibit E. Actually, Exhibit E appears to be a bill of exchange or draft drawn by the Dania, Florida Branch of the Bank of America on its San Francisco Branch in favor of said payee and bears serial number 605908142. Edgar Mangona prepared a check of the Manufacturer's Bank and Trust Company in the amount of P14,850.00 at the exchange rate of P6.60 to a dollar

(Exh. B). He then walked over to the office of Mrs. Teresita Rufino Litton whom he asked to sign the check and thereafter Mangona asked Mr. Rufino to countersign it. Finally, the check was exchanged with appellant's Bank of America draft and the latter signed the voucher for the peso check.

On the same day, March 22, 1972, appellant repaired to the Tayuman Branch of the Banco Filipino and informed its Branch Manager, Mrs. Maria Fe Relova that he wanted to open a savings account. He was given an application form which he filled up with the name Norberto S. Perez as the applicant, among other things. Appellant then presented the Manufacturer 's Bank check Exhibit B, payable to the order of Norberto S. Perez, and after endorsing the same, it was posted in the passbook issued to him. Unknown to appellant, however, Mrs. Relova, an astute woman had been auspicious of the former's actuations. So that after he left, she called up the office of the PLDT and inquired if the telephone number which appellant had unsolicitedly given her was listed in Perez' name. She was told that the number referred to had not yet been issued by PLDT. She then telephoned the office of Mever Films, Inc., the drawer of the check, and inquired if the check was in fact issued by it and she was answered in the affirmative. Despite this assurance, she tested her suspicions further by sending out a bank employee to deliver a brochure to the address given by appellant and the messenger returned without locating the place.

Within a short time, the officials of the Mever Films, Inc. became doubtful of the genuineness of the Bank of America draft. And on March 24, 1972, two days after the issuance of the Manufacturer's Bank check and one day after the check was cleared with the Central Bank, Mever Films which was convinced that the draft was spurious ordered its payment stopped (Exhibit D). On the same day, Vicente Jaucian who had introduced appellant to Anselmo Aquiling and the latter himself went to the office of the National Bureau of Investigation (NBI) and there gave written statements on what they knew about appellant (Exhibits F and G). Also on the same day, the Assistant Manager of the Bank of America, Manila Branch, who must have been informed of the transaction involving the draft, addressed a letter to the NBI authorities (Exh. B) which reads:

Gentlemen:

This is to certify that U.S. Dollar draft No. 605908142 drawn on the Bank of America NT & SA, San Francisco, in favor of Atty. Norberto S. Perez for $2,250.00 and dated March 10, 1972, is one of the blank drafts surreptitiously taken from a shipment sent to us by our San Francisco Headquarters sometime in the latter part of 1970.

Issuance of the above-mentioned draft was not authorized by this bank.

Jose R. Lopez, the abovementioned assistant manager who issued the aforestated certification, testified that the draft in question was one of the 900 blank drafts which were missing from a shipment received from their head office in the United States sometime in 1971. He declared that the words "Dania Branch" and "Dania, Florida" appearing on the face of the draft were superimposed so as to make it appear that the draft was drawn by the Dania, Florida Branch of the Bank of America on the San Francisco Branch, when in fact the blank draft was for the exclusive use of the Manila Branch, as revealed by the first four code figures of the draft's serial number.

We are satisfied with Lopez' testimony that the draft in question was a forgery. Since the same was a blank draft appertaining to the Manila Branch of the Bank of America, of which he was the Assistant Manager, Lopez was competent to state whether or not the draft was a forgery. And the fact that appellant had openly and falsely represented himself to be Atty. Norberto S. Perez indicated in the forged draft as the payee, is a strong circumstantial evidence that he was instrumental in its forgery. [Rollo, p. 25-30.]

xxx xxx xxx

The appellant has raised the issue of due process, alleging denial of his right to be heard and to present evidence. This requires inquiry into the extent of the rights accorded an accused in a criminal case and whether the accused-appellant has been denied the rights to which he is entitled.

The right to be heard by himself and counsel is one of the constitutional rights of the accused. But while the accused has the right to be heard by himself and counsel and to present evidence for his defense by direct constitutional grant, such right is not exempt

from the rule on waiver as long as the waiver is not controverted to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law [Article 6, Civil Code.] There is nothing in the Constitution nor in any law prohibiting such waiver. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made, as in this case.

Petitioner claims though that he was not waiving such right; on the contrary, he was vigorously asserting his right to be heard by counsel and to present evidence in his verbal motion for postponment due to absence of his counsel de parte. He thus assails the denial of his motion as it in effect deprived him of his day in court.

It is too well established to require citation of authorities that the grant or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court. Justice Malcolm, in a 1919 decision, expounded on such judicial discretion as follows:

Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial nor for fight causes jeopardize the rights and interests of the public. Where he consideration--that it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance.

The ruling of the court will not be disturbed on appeal in the absence of a clear abuse of discretion. When the discretion of the court is exercised with a reasonable degree of judicial acumen and fairness, it is one which the higher co is loathe to review or disturb. The trial judge must be to a certain extent free to secure speedy and expeditious trials when such speed and expedition are not inconsistent with fairness. Since the court trying the case is, from personal observation, familiar with all the attendant circumstances, and has the best opportunity of forming a correct opinion upon the case presented, the presumption will be in favor of its action. It would take an extreme case of abuse of discretion to make the action of the trial court a denial of due process. (Emphasis supplied; U.S. v. Ramirez, 39 Phil. 738 (1919).]

The factual background of the case penned by Justice Malcolm, which was quoted with approval in the case of People v. Mendez [G.R. No. L-27348, July 29, 1969, 28 SCRA 880], is very similar to that of the case at bar. In the instant case, the information was filed on March 25,1972 and arraignment was held on December 8,1973. The prosecution started presenting its evidence on March 12,1973 and after 1 year, 10 months and 1 day from the day of arraignment, it rested its case. During this time, petitioner had already secured seven postponements, which it admitted in its brief filed with the Court of Appeals [Rollo, p. 20] thus prompting the trial judge to remark that "this is a notoriously postponed case' and that "the defense had abused the rules" [TSN, December 12,1973, pp. 2-3.]. Since the judge's comments were home out by the record regarding the postponements which were admitted by petitioner himself in his brief filed before the Court of Appeals, petitioner cannot rightfully cast aspersion on the integrity of said judge by attributing to him a non-existent attitude of bias and hatred toward the petitioner-accused.

No grave abuse of discretion in denying the petitioner's motion for postponement can be imputed to the trial court. First, the petitioner's motion was not seasonably filed as the three-day notice required by the rules (Rule 15, Section 4 of the Revised Rules of Court) was not complied with. Moreover, it was not accompanied by an affidavit nor a medical certificate to support the alleged illness of counsel, controverted to what Rule 22, Section 5 of the Revised Rules of Court mandates:

Sec. 5. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his nonattendance excusable.

Besides, when petitioner himself sought postponement of the case during the December 9 hearing, he claimed that his counsel had another case in a different court. Certainly, the conflicting stories advanced by petitioner and his counsel only indicate the lack of a good cause for the postponement.

Petitioner's lament that 'at least, in the name of justice and fair play, the trial court should have warned accused that no further postponements shall be entertained by the court' [Rollo p. 97] is baseless. As he was aware that the case had already been postponed seven times at his initiative, he had no right to assume that his motion would be granted; rather, he should have foreseen that any further motions for postponement might not be met with approval by the trial court. Besides, the record of the case clearly shows that the accused had repeatedly appeared in court without his counsel, seeking postponements which were liberally granted by the court with an order directing his counsel to show cause why he should not be held in contempt for repeated failure to appear at the trial of the case. In fact, the court, in its Order dated August 1 2, 1974, categorically declared: "In the meantime, let the trial of this case be DEFINITELY POSTPONED FOR THE LAST TIME to August 14, 1974 at 8:30 a.m. as previously scheduled, with the warning to the accused to be ready with his present counsel or another counsel on said date as the court will not entertain any further delays in the proceedings in this case and shall proceed with the trial of this case with or without his counsel." [Original Records, p. 430]. This, certainly, was enough warning.

Finally, the motion for postponement was properly denied inasmuch as the defendant failed to present any meritorious defense. This Court's pronouncementthat in incidents of this nature before the trial court, two circumstances should be taken into account, namely, 1) the reasonableness of the postponement and 2) the merits of the case of the movant should not be lightly ignored [Udan v. Amon G.R. No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an accident, surprise or excusable neglect justifying postponement or reconsideration but if the movant does not present a meritorious claim or defense, denial of his motion for postponement may not be considered as an abuse of the discretion of the court.[De Cases v. Peyer G.R. No. L18564, August 31, 1962, 5 SCRA 11 65.]

Absent any meritorious case in defendant's favor, his motion for postponement was properly denied. His invocation of his right to counsel and to present evidence was an empty gesture revealing his dilatory scheme. Under the circumstances, the petitioner must be deemed to have waived his rights and to have been extended the protection of due process.

Moreover, the petitioner in negotiating the check presented himself as a lawyer; he was addressed in the Notice of the Order dated September 11, 1972 as "Atty. Ramon Sayson y Fernandez" [Original Records, p. 381 and he himself filed the Motion to

Quash [Original Records, p. 22] and a pleading captioned "Compliance" dated December 2, 1972 [Original Records, p. 41.] These facts indicate that he was capable of defending himself That he himself was allowed to file pleadings clearly negatives the alleged deprivation of his right to due process of law. Consequently, there being no abuse of discretion on the part of the trial court, its order will not be disturbed.

The Court finds the petitioner's plea that it was incumbent upon the trial judge to appoint a counsel de oficio who for him when he appeared without his counsel utterly without legal basis. The duty of the court to appoint a counsel de oficio when the accused has no counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Rule 116, Section 6, Revised Rules of Court This is no longer so where the accused has proceeded with the arraignment and the trial with a counsel of his choice but when the time for the presentation of the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable. This Court's holding in a previous case that there is no deprivation of the light to counsel in such a case is squarely applicable:

As the appellant was represented by counsel of his choice at the arraignment, trial and in the incidental motions to dismiss and to postpone the resumption of the trial of the case, the trial court was not in duty bound to appoint a counsel de oficio to assist him in his defense. His failure to appear with counsel of his choice at the hearing of the case, notwithstanding repeated postponements and warnings that failure to so appear would be deemed a waiver on the part of the appellant to present his evidence and the case would be deemed submitted for decision upon the evidence presented by the prosecution, was sufficient legal justification for the trial court to proceed and render judgment upon the evidence before it. Taking into consideration all the steps taken by the trial court to safeguard the rights of the appellant, the latter cannot pretend that he was deprived of his right to be assisted by counsel and to present evidence in his behalf. Moreover, the repeated failure of the appellant to appear with counsel at the resumptions of the trial of the case may be taken as a deliberate attempt on his part to delay the proceedings. [People vs. Angco, 103 Phil. 33, 39 (1958).]

At the most, the appointment of a counsel de oficio in situations like the present case is discretionary with the trial court, which discretion will not be interfered with in the absence of abuse. Here, the trial court had been liberal in granting the postponements secured by the petitioner himself, at the same time admonishing the latter to be ready with his present counsel or another counsel [Original Records, p. 430]. Notwithstanding

this admonition, the petitioner kept on attending the hearings without securing another lawyer to substitute his present counsel who was constantly absent during the hearings. Still, as admitted by petitioner in his memorandum, the trial court, at the December 9, 1974 hearing, allowed him to look for a lawyer but no one was available at the time (Rollo, p. 94). These steps undertaken by the trial court removes any doubt that its order was tainted with grave abuse of discretion.

The last issue to be resolved dwells on the effect of the alleged variance between the prosecution's allegation and proof.

The petitioner vigorously maintains that he cannot be justifiably convicted under the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the evidence presented by the prosecution show very clearly that the accused allegedly attempted to defraud Mever Films, Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr. He firmly asserts that his conviction was in gross violation of his right to be informed of the nature and cause of the accusation against him.

Petitioner's claim is unavailing. The rule in this jurisdiction is that "variance between the allegations of the information and the evidence offered by the prosecution in support thereof does not of itself entitle the accused to an acquittal." [People v. Catli G.R. No. L11641, November 29, 1962, 6 SCRA 642.]

The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of Identifying him, he must be described under a fictitious name (Rule 110, Section 11, Revised Rules of Court; now Rule 110, Section 12 of the 1985 Rules on Criminal Procedure.] In case of offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly Identified. Thus, Rule 110, Section 11 of the Rules of Court provides that:

Section 11. Name of the offended party-

xxx xxx xxx

(a) In cases of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly Identify the particular offense charged.

(b) If in the course of the trial, the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information or record.

xxx xxx xxx

In U.S. v. Kepner [1 Phil. 519 (1902)], this Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to Identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant. Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly Identify the particular offense charged. In the instant suit for estafa which is a crime against property under the Revised Penal Code, since the check, which was the subject-matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of convicting the accused, that it was established during the trial that the offended party was actually Mever Films and not Ernesto Rufino, Sr. nor Bank of America as alleged in the information.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is hereby DENIED and the decision of the Court of Appeals is AFFIRMED in toto with costs against the appellant.

SO ORDERED.

Fernan C.J., Feliciano and Bidin, JJ., concur.

Gutierrez, Jr., J., took no part.

G.R. No. L-51745 October 28, 1988

RAMON F. SAYSON, petitioner, vs. PEOPLE OF THE PHILIPPINES and the HON. COURT OF APPEALS, respondents.

Federico P. Roy for petitioner.

The Solicitor General for respondents.

CORTES, J.:

Petitioner seeks the reversal of the Court of Appeals decision finding him guilty of attempted estafa.

On March 25, 1972, an information for the crime of Estafa through Falsification of a Commercial Document was filed against the herein petitioner, Ramon F. Sayson before the Court of First Instance of Manila, the pertinent portion of which reads:

... the said accused having come in possession of a blank US dollar check #605908142, with intent to defraud Ernesto Rufino, Sr. and/or Bank of America, did then and there wilfully, unlawfully and feloniously forge and falsify or cause to be forged and falsified the said check, by then and there writing or filling or causing to be written or filled up the following words and figures: "March 10, 1972," "Atty. Norberto S. Perez," "2,250.00" and forging the signature of the Asst. Cashier, Manager of the Bank of America, Dania Branch, making it appear, as it did appear, that the said check was duly issued by the Bank of America, when in truth and in fact, as the accused well knew, the said check was never issued nor authorized by the said bank; that thereafter, said accused wrote or affixed the signature "Norberto Perez" on the back of said check as indorser; that once the said cheek had been forged and falsified in the manner above described, the said accused by means of false manifestations and fraudulent representations which he made to Ernesto Rufino, Sr. that he is "Atty. Norberto Perez" who is the payee of the said Check, and by means of other similar deceits, induced and succeeded in inducing the said Ernesto Rufino, Sr. to change said dollar cheek, as in fact, said Ernesto Rufino, Sr. issued Manufacturer's Bank Check No. 87586 dated March 22, 1972 payable to "Norberto Perez" in the amount of "Pl 4,850.00" in exchange for said dollar check; ... [Rollo, pp. 23-24.]

Arraigned on December 8, 1972, petitioner pleaded not guilty. On October 9, 1974, after several postponements, the prosecution rested its case. At the hearing of December 9, 1974, when the defense was scheduled to present its evidence, only the petitioner appeared. He said that his counsel had another case in a different court. In the morning of the said day, his lawyer also sent a telegram to the court requesting cancellation of the hearing because he was sick. The court denied the motion for postponement and the case was considered submitted for decision without petitioner's evidence.

The trial court rendered judgment on January 30, 1975, finding the accused guilty of the crime charged and sentencing him to an indeterminate penalty of 2 years, 4 months and 1 day to 6 years of prison correccional to pay a fine of P2,000.00, with subsidiary imprisonment and to pay the costs. The Court of Appeals affirmed but modified the penalty by imposing six months of arresto mayor and eliminating the fine. Hence, this petition for review on certiorari.

The background facts as found by the appellate court as well as its conclusions thereon follow:

On March 22, 1972, appellant Ramon Sayson y Fernandez was introduced by Vicente Jaucian a former employee of the Luzon Theatres, Inc. to Anselmo Aquiling, private secretary to Ernesto Rufino, Sr., General Manager of the corporation. Vicente Jaucian had known appellant as "Fiscal Perez" who wanted to exchange dollars for pesos, having been introduced to him in that capacity by his (Jaucian's) cousin. Thinking that Rufino might be interested in dollars, Jaucian accompanied appellant to the offices of the Luzon Theatres, Inc. and Mever Films, Inc. at the Avenue Hotel on Rizal Avenue, Manila. Upon being introduced to Anselmo Aquiling, appellant showed the latter an Identification card indicating that he was Norberto S. Perez, a Prosecuting Attorney from Angeles City. After making the introduction, Jaucian left. Mr. Rufino said that he was not personally interested in dollars but suggested to his secretary to inquire if Mever Films, Inc. needed dollars.

Mr. Rufino was also Chairman of the Board of the aforesaid corporation; and when told that Mever Films needed dollars, he authorized the transaction. Appellant then presented to Edgar Mangona, the assistant accountant of Mever Films, a Bank of America check in the amount of $2,250,00 payable to the order of Atty. Norberto S. Perez, a xerox copy of which was introduced in evidence as Exhibit E. Actually, Exhibit E appears to be a bill of exchange or draft drawn by the Dania, Florida Branch of the Bank of America on its San Francisco Branch in favor of said payee and bears serial number 605908142. Edgar Mangona prepared a check of the Manufacturer's Bank and Trust Company in the amount of P14,850.00 at the exchange rate of P6.60 to a dollar (Exh. B). He then walked over to the office of Mrs. Teresita Rufino Litton whom he asked to sign the check and thereafter Mangona asked Mr. Rufino to countersign it. Finally, the check was exchanged with appellant's Bank of America draft and the latter signed the voucher for the peso check.

On the same day, March 22, 1972, appellant repaired to the Tayuman Branch of the Banco Filipino and informed its Branch Manager, Mrs. Maria Fe Relova that he wanted to open a savings account. He was given an application form which he filled up with the name Norberto S. Perez as the applicant, among other things. Appellant then presented the Manufacturer 's Bank check Exhibit B, payable to the order of Norberto S. Perez, and after endorsing the same, it was posted in the passbook issued to him. Unknown to appellant, however, Mrs. Relova, an astute woman had been auspicious of the former's actuations. So that after he left, she called up the office of the PLDT and inquired if the telephone number which appellant had unsolicitedly given her was listed in Perez' name. She was told that the number referred to had not yet been issued by PLDT. She then telephoned the office of Mever Films, Inc., the drawer of the check, and inquired if the check was in fact issued by it and she was answered in the affirmative. Despite this assurance, she tested her suspicions further by sending out a bank employee to deliver a brochure to the address given by appellant and the messenger returned without locating the place.

Within a short time, the officials of the Mever Films, Inc. became doubtful of the genuineness of the Bank of America draft. And on March 24, 1972, two days after the issuance of the Manufacturer's Bank check and one day after the check was cleared with the Central Bank, Mever Films which was convinced that the draft was spurious ordered its payment stopped (Exhibit D). On the same day, Vicente Jaucian who had introduced appellant to Anselmo Aquiling and the latter himself went to the office of the National Bureau of Investigation (NBI) and there gave written statements on what they knew about appellant (Exhibits F and G). Also on the same day, the Assistant Manager of the Bank of America, Manila Branch, who must have been informed of the transaction involving the draft, addressed a letter to the NBI authorities (Exh. B) which reads:

Gentlemen:

This is to certify that U.S. Dollar draft No. 605908142 drawn on the Bank of America NT & SA, San Francisco, in favor of Atty. Norberto S. Perez for $2,250.00 and dated March 10, 1972, is one of the blank drafts surreptitiously taken from a shipment sent to us by our San Francisco Headquarters sometime in the latter part of 1970.

Issuance of the above-mentioned draft was not authorized by this bank.

Jose R. Lopez, the abovementioned assistant manager who issued the aforestated certification, testified that the draft in question was one of the 900 blank drafts which were missing from a shipment received from their head office in the United States sometime in 1971. He declared that the words "Dania Branch" and "Dania, Florida" appearing on the face of the draft were superimposed so as to make it appear that the draft was drawn by the Dania, Florida Branch of the Bank of America on the San Francisco Branch, when in fact the blank draft was for the exclusive use of the Manila Branch, as revealed by the first four code figures of the draft's serial number.

We are satisfied with Lopez' testimony that the draft in question was a forgery. Since the same was a blank draft appertaining to the Manila Branch of the Bank of America, of which he was the Assistant Manager, Lopez was competent to state whether or not the draft was a forgery. And the fact that appellant had openly and falsely represented himself to be Atty. Norberto S. Perez indicated in the forged draft as the payee, is a strong circumstantial evidence that he was instrumental in its forgery. [Rollo, p. 25-30.]

xxx xxx xxx

The appellant has raised the issue of due process, alleging denial of his right to be heard and to present evidence. This requires inquiry into the extent of the rights accorded an accused in a criminal case and whether the accused-appellant has been denied the rights to which he is entitled.

The right to be heard by himself and counsel is one of the constitutional rights of the accused. But while the accused has the right to be heard by himself and counsel and to present evidence for his defense by direct constitutional grant, such right is not exempt from the rule on waiver as long as the waiver is not controverted to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law [Article 6, Civil Code.] There is nothing in the Constitution nor in any law prohibiting such waiver. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made, as in this case.

Petitioner claims though that he was not waiving such right; on the contrary, he was vigorously asserting his right to be heard by counsel and to present evidence in his verbal motion for postponment due to absence of his counsel de parte. He thus assails the denial of his motion as it in effect deprived him of his day in court.

It is too well established to require citation of authorities that the grant or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court. Justice Malcolm, in a 1919 decision, expounded on such judicial discretion as follows:

Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial nor for fight causes jeopardize the rights and interests of the public. Where he consideration--that it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance.

The ruling of the court will not be disturbed on appeal in the absence of a clear abuse of discretion. When the discretion of the court is exercised with a reasonable degree of judicial acumen and fairness, it is one which the higher co is loathe to review or disturb. The trial judge must be to a certain extent free to secure speedy and expeditious trials when such speed and expedition are not inconsistent with fairness. Since the court trying the case is, from personal observation, familiar with all the attendant circumstances, and has the best opportunity of forming a correct opinion upon the case presented, the presumption will be in favor of its action. It would take an extreme case of abuse of discretion to make the action of the trial court a denial of due process. (Emphasis supplied; U.S. v. Ramirez, 39 Phil. 738 (1919).]

The factual background of the case penned by Justice Malcolm, which was quoted with approval in the case of People v. Mendez [G.R. No. L-27348, July 29, 1969, 28 SCRA 880], is very similar to that of the case at bar. In the instant case, the information was filed on March 25,1972 and arraignment was held on December 8,1973. The prosecution started presenting its evidence on March 12,1973 and after 1 year, 10

months and 1 day from the day of arraignment, it rested its case. During this time, petitioner had already secured seven postponements, which it admitted in its brief filed with the Court of Appeals [Rollo, p. 20] thus prompting the trial judge to remark that "this is a notoriously postponed case' and that "the defense had abused the rules" [TSN, December 12,1973, pp. 2-3.]. Since the judge's comments were home out by the record regarding the postponements which were admitted by petitioner himself in his brief filed before the Court of Appeals, petitioner cannot rightfully cast aspersion on the integrity of said judge by attributing to him a non-existent attitude of bias and hatred toward the petitioner-accused.

No grave abuse of discretion in denying the petitioner's motion for postponement can be imputed to the trial court. First, the petitioner's motion was not seasonably filed as the three-day notice required by the rules (Rule 15, Section 4 of the Revised Rules of Court) was not complied with. Moreover, it was not accompanied by an affidavit nor a medical certificate to support the alleged illness of counsel, controverted to what Rule 22, Section 5 of the Revised Rules of Court mandates:

Sec. 5. Requisites of motion to postpone trial for illness of party or counsel.A motion to postpone trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his nonattendance excusable.

Besides, when petitioner himself sought postponement of the case during the December 9 hearing, he claimed that his counsel had another case in a different court. Certainly, the conflicting stories advanced by petitioner and his counsel only indicate the lack of a good cause for the postponement.

Petitioner's lament that 'at least, in the name of justice and fair play, the trial court should have warned accused that no further postponements shall be entertained by the court' [Rollo p. 97] is baseless. As he was aware that the case had already been postponed seven times at his initiative, he had no right to assume that his motion would be granted; rather, he should have foreseen that any further motions for postponement might not be met with approval by the trial court. Besides, the record of the case clearly shows that the accused had repeatedly appeared in court without his counsel, seeking

postponements which were liberally granted by the court with an order directing his counsel to show cause why he should not be held in contempt for repeated failure to appear at the trial of the case. In fact, the court, in its Order dated August 1 2, 1974, categorically declared: "In the meantime, let the trial of this case be DEFINITELY POSTPONED FOR THE LAST TIME to August 14, 1974 at 8:30 a.m. as previously scheduled, with the warning to the accused to be ready with his present counsel or another counsel on said date as the court will not entertain any further delays in the proceedings in this case and shall proceed with the trial of this case with or without his counsel." [Original Records, p. 430]. This, certainly, was enough warning.

Finally, the motion for postponement was properly denied inasmuch as the defendant failed to present any meritorious defense. This Court's pronouncementthat in incidents of this nature before the trial court, two circumstances should be taken into account, namely, 1) the reasonableness of the postponement and 2) the merits of the case of the movant should not be lightly ignored [Udan v. Amon G.R. No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an accident, surprise or excusable neglect justifying postponement or reconsideration but if the movant does not present a meritorious claim or defense, denial of his motion for postponement may not be considered as an abuse of the discretion of the court.[De Cases v. Peyer G.R. No. L18564, August 31, 1962, 5 SCRA 11 65.]

Absent any meritorious case in defendant's favor, his motion for postponement was properly denied. His invocation of his right to counsel and to present evidence was an empty gesture revealing his dilatory scheme. Under the circumstances, the petitioner must be deemed to have waived his rights and to have been extended the protection of due process.

Moreover, the petitioner in negotiating the check presented himself as a lawyer; he was addressed in the Notice of the Order dated September 11, 1972 as "Atty. Ramon Sayson y Fernandez" [Original Records, p. 381 and he himself filed the Motion to Quash [Original Records, p. 22] and a pleading captioned "Compliance" dated December 2, 1972 [Original Records, p. 41.] These facts indicate that he was capable of defending himself That he himself was allowed to file pleadings clearly negatives the alleged deprivation of his right to due process of law. Consequently, there being no abuse of discretion on the part of the trial court, its order will not be disturbed.

The Court finds the petitioner's plea that it was incumbent upon the trial judge to appoint a counsel de oficio who for him when he appeared without his counsel utterly without legal basis. The duty of the court to appoint a counsel de oficio when the accused has no counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Rule 116, Section 6, Revised Rules of Court This is no longer so where the accused has proceeded with the arraignment and the trial with a counsel of his choice but when the time for the presentation of the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable. This Court's holding in a previous case that there is no deprivation of the light to counsel in such a case is squarely applicable:

As the appellant was represented by counsel of his choice at the arraignment, trial and in the incidental motions to dismiss and to postpone the resumption of the trial of the case, the trial court was not in duty bound to appoint a counsel de oficio to assist him in his defense. His failure to appear with counsel of his choice at the hearing of the case, notwithstanding repeated postponements and warnings that failure to so appear would be deemed a waiver on the part of the appellant to present his evidence and the case would be deemed submitted for decision upon the evidence presented by the prosecution, was sufficient legal justification for the trial court to proceed and render judgment upon the evidence before it. Taking into consideration all the steps taken by the trial court to safeguard the rights of the appellant, the latter cannot pretend that he was deprived of his right to be assisted by counsel and to present evidence in his behalf. Moreover, the repeated failure of the appellant to appear with counsel at the resumptions of the trial of the case may be taken as a deliberate attempt on his part to delay the proceedings. [People vs. Angco, 103 Phil. 33, 39 (1958).]

At the most, the appointment of a counsel de oficio in situations like the present case is discretionary with the trial court, which discretion will not be interfered with in the absence of abuse. Here, the trial court had been liberal in granting the postponements secured by the petitioner himself, at the same time admonishing the latter to be ready with his present counsel or another counsel [Original Records, p. 430]. Notwithstanding this admonition, the petitioner kept on attending the hearings without securing another lawyer to substitute his present counsel who was constantly absent during the hearings. Still, as admitted by petitioner in his memorandum, the trial court, at the December 9, 1974 hearing, allowed him to look for a lawyer but no one was available at the time (Rollo, p. 94). These steps undertaken by the trial court removes any doubt that its order was tainted with grave abuse of discretion.

The last issue to be resolved dwells on the effect of the alleged variance between the prosecution's allegation and proof.

The petitioner vigorously maintains that he cannot be justifiably convicted under the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the evidence presented by the prosecution show very clearly that the accused allegedly attempted to defraud Mever Films, Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr. He firmly asserts that his conviction was in gross violation of his right to be informed of the nature and cause of the accusation against him.

Petitioner's claim is unavailing. The rule in this jurisdiction is that "variance between the allegations of the information and the evidence offered by the prosecution in support thereof does not of itself entitle the accused to an acquittal." [People v. Catli G.R. No. L11641, November 29, 1962, 6 SCRA 642.]

The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of Identifying him, he must be described under a fictitious name (Rule 110, Section 11, Revised Rules of Court; now Rule 110, Section 12 of the 1985 Rules on Criminal Procedure.] In case of offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly Identified. Thus, Rule 110, Section 11 of the Rules of Court provides that:

Section 11. Name of the offended party-

xxx xxx xxx

(a) In cases of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly Identify the particular offense charged.

(b) If in the course of the trial, the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information or record.

xxx xxx xxx

In U.S. v. Kepner [1 Phil. 519 (1902)], this Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to Identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant. Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly Identify the particular offense charged. In the instant suit for estafa which is a crime against property under the Revised Penal Code, since the check, which was the subject-matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of convicting the accused, that it was established during the trial that the offended party was actually Mever Films and not Ernesto Rufino, Sr. nor Bank of America as alleged in the information.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is hereby DENIED and the decision of the Court of Appeals is AFFIRMED in toto with costs against the appellant.

SO ORDERED.

Fernan C.J., Feliciano and Bidin, JJ., concur.

Gutierrez, Jr., J., took no part.

[G.R. No. L-8596. May 18, 1956.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. JULIANA UBA and CALIXTA UBA, Defendants-Appellees.

DECISION

LABRADOR, J.:

Appeal by the People against a judgment of the Court of First Instance of Misamis Occidental, absolving Juliana Uba and Calixta Uba of the offense of oral defamation of which they are charged in an information filed by the provincial fiscal.

On August 1, 1952, Demetria Somod-ong filed a complaint in the justice of the peace court of Oroquieta, Misamis Occidental, charging above-named Juliana and Calixta Uba with having uttered in public against complainant certain defamatory words and expressions. The complaint was supported by the affidavits of Pastora Somod-ong, Marciano Calibog and Anacoreta Rocaldo. The court found the existence of probable cause and forwarded the case to the Court of First Instance, where the provincial fiscal filed the information charging the accused Juliana and Calixta Uba of serious oral

defamation. However, instead of mentioning the complainant Demetria Somod-ong as the offended party, the information named Pastora Somod-ong as the person offended.

When the case came for trial both Demetria and Pastora testified for the prosecution. Demetria is the daughter of Pastora and when the latter testified she declared that it was her daughter Demetria who was insulted by the accused. When Demetria testified she declared the accused insulted her corroborating her mothers testimony. Two other witnesses testified that the accused insulted Demetria Somod-ong calling her lascivious and a prostitute. When the prosecution had rested, counsel for the accused promptly moved for the dismissal of the case on the ground that all the defamatory statements supposed to have been uttered by the accused were against Demetria, not against the offended party, Pastora. The judge then ordered counsel for the parties to present the motion and the answer thereto in writing which they did. The judge sustained the motion to dismiss and entered decision acquitting the accused of the charge. Hence, this appeal.

The Solicitor General contends in this appeal that the trial court should have ordered the fiscal to amend the information by changing the name of the offended party so as to make it conform with the evidence. It is claimed that the change would merely be one of form, permitted by Section 13 of Rule 106, which provides:chanroblesvirtuallawlibrary

SEC. 13. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the Defendant pleads; chan roblesvirtualawlibraryand thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the Defendant.

If it appears at any time before judgment that mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the Defendant would not be place thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

While it is probably true that the fiscal or his clerk made a clerical error in putting in the information the name of Pastora Somod-ong instead of that of Demetria Somod-ong, as the offended party, the mistake thus committed was on a very material matter in the case, such that it necessarily affected the identification of the act charged. The act of insulting X is distinct from a similar act of insult against Y, even if the insult is preferred by the same person, in the same language and at about the same time. Note that the pleading that give the court jurisdiction to try the offense is not the complaint of the offended party, but the information by the fiscal, because the charge is the utterance of insulting or defamatory language, not the imputation of an offense which can be prosecuted only at the instance of the offended party. (People vs. Marquez, 68 Phil., 521; chan roblesvirtualawlibraryBlanco vs. People, 70 Phil., 735.)

The case of Lahoylahoy, 38 Phil., 330, appears to us to be in point and decisive of the case. The reasons for the decision in that case were, first, because, to convict a person of robbing X when the person robbed is Y is violative of the principles of pleading and, second, because then the plea of double jeopardy would be of no avail to an accused. To this same effect is our decision in People vs. Balboa, 90 Phil., 5.

We, therefore, find that the court a quo did not err in dismissing the case for variance between the allegations of the information and the proof. But the evidence showed that the accused were guilty of another act, that of insulting Demetria Somod-ong. The Court should have, therefore, ordered the fiscal to file another information with Demetria Somod-ong as the offended party and hold the accused in custody to answer the new charge.

The order of dismissal is hereby affirmed, but the provincial fiscal of Misamis Occidental is hereby ordered to file a new information charging the same accused with the offense of serious oral defamation against Demetria Somod-ong. Judgment modified.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

JOCELYN E. CABO, Petitioner,

G.R. No. 169509 Present:

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, - versus Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ. THE SANDIGANBAYAN, FOURTH DIVISION, THE SPECIAL PROSECUTOR OF THE OMBUDSMAN and THE

COMMISSION ON AUDIT, REGION XIII, Respondents.

Promulgated:

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x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This is a special civil action for certiorari filed by petitioner Jocelyn E. Cabo seeking to nullify the resolutions of the Sandiganbayan, Fourth Division, dated May 4 and July 20, 2005 in Criminal Case No. 27959.

The following are the antecedent facts:

On June 26, 2004, an information for violation of Section 3(b) of R.A. 3019 or the Anti-Graft and Corrupt Practices Act was filed against petitioner and her co-accused Bonifacio C. Balahay. The information alleged:

That on or about 08 August 2000 in the Municipality of Barobo, Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, BONIFACIO C. BALAHAY, then Mayor of the Municipality of Barobo, Surigao del Sur, a high ranking public official, with the use of his influence as such public official, committing the offense in relation to his office, together with JOCELYN CABO, did then and there, willfully, unlawfully and feloniously receive and accept the amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY TWO PESOS AND 31/100 (P104,162.31) from said JOCELYN CABO, Business Manager of Orient Integrated Development Consultancy, Inc. (OIDCI), a consultancy group charged with conducting a feasibility study for the Community-Based Resource Management Project of the Municipality of Barobo, with accused Cabo giving and granting the said amount to accused Balahay in consideration of the said accused having officially intervened in the undertaking by the OIDCI of such contract for consultancy services with the Municipality of Barobo.

CONTRARY TO LAW.1[1]

Claiming that she was deprived of her right to a preliminary investigation as she never received any notice to submit a counter-affidavit or countervailing evidence to prove her innocence, petitioner filed a motion for reinvestigation2[2] before the Fourth Division of the Sandiganbayan, where the case was raffled and docketed as Criminal Case No. 27959. The Sandiganbayan subsequently granted petitioners motion on

March 29, 2004 and directed the Office of the Special Prosecutor to conduct a reinvestigation insofar as petitioner is concerned.3[3]

Meanwhile, petitioner filed a motion seeking the courts permission to travel abroad for a family vacation.4[4] The Sandiganbayan granted the same in an order dated May 14, 2004 that reads:

Acting on the Motion With Leave Of Court To Travel Abroad dated May 11, 2004 filed by accused Jocelyn E. Cabo through counsel, Atty. Tomas N. Prado, and considering the well-taken reason therein stated, the same is hereby GRANTED.

However, considering that this case is still pending reinvestigation/review before the Office of the Special Prosecutor; considering further that the accused has not yet been arraigned by reason thereof; and considering finally that there is a need for the Court to preserve its authority to conduct trial in absentia should the accused fail to return to the Philippines, accused Jocelyn E. Cabo, with her express conformity, is hereby ordered arraigned conditionally. If upon such reinvestigation/review, it shall be found that there is no probable cause to proceed against said accused, the conditional arraignment this morning shall be with no force and effect. However, if it should be found that there is a need to amend the present indictment or to pave the way for the filing of some other indictment/s, then the accused shall waive her right to object under Section 14, Rule 110 of the 2000 Rules of Criminal Procedure and her constitutional right to be protected against double jeopardy.

When arraigned, the Information having been read in a language known and familiar to her, accused Jocelyn E. Cabo, duly assisted by her

counsel, Atty. Tomas N. Prado, pleaded not guilty to the offense charged in the Information.

Accused Jocelyn E. Cabo, duly assisted by her counsel, shall affix her signature in the minutes of the proceedings to signify her conformity to her acceptance of the conditional arraignment and the legal consequences thereof as herein explained.

SO ORDERED.5[5]

Petitioner returned from abroad on May 24, 2004.

Thereafter, the Special

Prosecutor concluded its reinvestigation and found probable cause to charge her with violation of Section 3(b) of R.A. No. 3019.6[6] Petitioner filed a motion for

reconsideration but the same was denied.7[7] Thus, the Sandiganbayan set anew the arraignment of petitioner and her co-accused on October 12, 2004.8[8]

On the day before the scheduled arraignment, petitioner filed an Urgent Manifestation With Motion9[9] praying that she be allowed to [re]iterate on her previous plea of not guilty x x x entered during her conditional arraignment held last May 14, 2004, so that she may be excused from attending the scheduled arraignment for October 12, 2004. It does not appear, however, that the Sandiganbaya n acted upon the said motion.

The following day, petitioners co-accused Balahay failed to appear for arraignment. This prompted the Sandiganbayan to order the arrest of Balahay as well the confiscation of his bail bond.10[10] Upon motion for reconsideration of Balahay, however, the Sandiganbayan recalled the warrant for his arrest and reinstated the bail bond.11[11] His arraignment was subsequently reset for November 30, 2004.12[12]

On November 24, 2004, Balahay, through counsel, filed a motion to quash the information on the ground that the same does not charge any offense.13[13] While

Section 3(b) of R.A. No. 3019 penalizes the act of (d)irectly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for another, from any person, in connection with any transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law, the information alleged only in general terms that Balahay intervened in the undertaking by the OIDCI of such contract for consultancy services with the Municipality of Barobo. In other words, the information failed to allege that Balahay had to

intervene in the said contract under the law, in his official capacity as municipal mayor.

On January 18, 2005, the Sandiganbayan issued a resolution14[14] sustaining Balahays contention that the facts charged in the information do not constitute the offense of violation of Section 3(b) of R.A. No. 3019. Apart from the failure to allege that Balahay had to officially intervene in the transaction pursuant to law, it also failed to allege that Balahay accepted and received the money for himself or for another. The information was thus defective in that it failed to allege every single fact necessary to constitute all the elements of the offense charged.

The Sandiganbayan, however, did not order the immediate quashal of the information. It held that under Section 4, Rule 117 of the Rule s of Court, if the motion to quash is based on the ground that the facts charged in the information do not constitute an offense x x x the (c)ourt should not quash the information outright, but should instead direct the prosecution to correct the defect therein by proper amendment. It is only when the prosecution fails or refuses to undertake such

amendment, or when despite such amendment the information still suffers from the

same vice or defect,15[15] that the court would be finally justified in granting the motion to quash. The Sandiganbayan thus gave the prosecution a period of 15 days from notice within which to file an amended information that is sufficient as to both form and substance.

On February 7, 2005, the prosecution filed an amended information which incorporated all the essential elements of the crime charged, to wit:

That on or about 08 August 2000, in the Municipality of Barobo, Surigao Del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused BONIFACIO C. BALAHAY, then Mayor of the Municipality of Barobo, Surigao Del Sur, a high ranking public official, in the performance of his official functions, taking advantage of his official position, with grave abuse of authority, and committing the offense in relation to his office, conspiring and confederating with JOCELYN CABO, did then and there, willfully, unlawfully and feloniously receive and accept the amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY TWO PESOS AND 31/100 (P104,162.31) for his own benefit or use from said JOCELYN CABO, Business Manager of Orient Integrated Development Consultancy, Inc. (OIDC), a consultancy group charged with conducting a feasibility study for the Community-Based Resource Management Project of the Municipality of Barobo, with accused Cabo giving and granting said amount to accused Balahay in consideration of the contract for said feasibility study, which contract accused Balahay in his official capacity has to intervene under the law.

CONTRARY TO LAW.16[16]

Consequently, Balahay was sent a notice for his arraignment on the amended information. Petitioner was likewise notified of her re-arraignment which was set on April 14, 2005.17[17] However, on April 11, 2005, petitioner filed a Motion to Cancel Second Arraignment18[18] on the ground that the amended information pertained to Balahay alone. Petitioner claimed that she could no longer be re-arraigned on the amended information since substantial amendment of an information is not allowed after a plea had already been made thereon.

On May 4, 2005, the Sandiganbayan issued the first assailed resolution denying petitioners motion for lack of merit, to wit:

[T]he arraignment of accused Cabo on the original information was only conditional in nature and that the same was resorted to as a mere accommodation in her favor to enable her to travel abroad without this Court losing its ability to conduct trial in absentia in the event she decides to abscond. However, as clearly stated in the Courts Order of May 14, 2004, accused Cabo agreed with the condition that should there be a need to amend the information, she would thereby waive, not only her right to object to the amended information, but also her constitutional protection against double jeopardy. Now that the original information has been superseded by an amended information, which was specifically filed by the prosecution, and thereafter admitted by this Court, on the basis of

Section 4, Rule 117 of the 2000 Rules of Criminal Procedure, accused Cabo is already estopped from raising any objection thereto.19[19]

Petitioner filed a motion for reconsideration20[20] from the foregoing resolution on the additional ground that double jeopardy had already set in. She asserted that her conditional arraignment under the original information had been validated or confirmed by her formal manifestation dated October 7, 2004, wherein she reiterated her plea of not guilty. Thus, her arraignment on the original information was no longer conditional in nature such that double jeopardy would attach.

The Sandiganbayan denied petitioners motion for reconsideration in the sec ond assailed resolution dated July 20, 2005.21[21] Consequently, petitioner filed the instant special civil action for certiorari under Rule 65 of the Rules of Court alleging that the Sandiganbayan gravely abused its discretion in holding that her arraignment on the original information was conditional in nature and that a re-arraignment on the amended information would not put her in double jeopardy.

The issue here boils down to whether double jeopardy would attach on the basis of the not guilty plea entered by petitioner on the original information. She argues that it would, considering that her arraignment, which was initially conditional in nature, was

ratified when she confirmed her not guilty plea by means of a written manifes tation. In other words, the trial court could no longer assert that she waived her right to the filing of an amended information under the terms of her conditional arraignment because she has, in effect, unconditionally affirmed the same.

Petitioners assertions must fail.

Initially, it must be pointed out that the Sandiganbayans practice of conditionally arraigning the accused pending reinvestigation of the case by the Ombudsman is not specifically provided in the regular rules of procedure.22[22] In People v. Espinosa,23[23] however, the Court tangentially recognized the practice of conditionally arraigning the accused, provided that the alleged conditions attached thereto should be unmistakable, express, informed and enlightened. T he Court

ventured further by requiring that said conditions be expressly stated in the order disposing of the arraignment. Otherwise, it was held that the arraignment should be deemed simple and unconditional.24[24]

In the case at bar, the Sandiganbayan Order dated May 14, 2004 unequivocally set forth the conditions for petitioners arraignment pending reinvestigation of the case

as well as her travel abroad. Among the conditions specified in said order is if it should be found that there is a need to amend the present indictment x x x, then the accused shall waive her right to object under Section 14, Rule 110 of the 2000 Rules of Criminal Procedure and her constitutional right to be protected against double jeopardy. Petitioner was duly assisted by counsel during the conditional arraignment and was presumably apprised of the legal consequences of such conditions. In fact, she signed the minutes of the proceedings which could only signify her informed acceptance of and conformity with the terms of the conditional arraignment.

Thus, petitioner cannot now be allowed to turn her back on such conditions on the pretext that she affirmed her conditional arraignment by means of a written manifestation. To begin with, there is no showing that the Sandiganbayan ruled on her written manifestation and motion that she be allowed to merely confirm her previous plea on the original information. It is likewise doubtful that petitioner may legally confirm her conditional arraignment by means of a mere written motion or manifestation. Section 1(b), Rule 116 of the Rules of Court explicitly requires that (t)he accused must be present at the arraignment and must personally enter his plea.

At any rate, with or without a valid plea, still petitioner cannot rely upon the principle of double jeopardy to avoid arraignment on the amended information. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid information sufficient in form and substance and the accused pleaded to the charge.25[25] In the instant case, the original information to which petitioner entered a plea of not guilty was neither valid nor suffi cient to sustain a

conviction, and the criminal case was also neither dismissed nor terminated. Double jeopardy could not, therefore, attach even if petitioner is assumed to have been unconditionally arraigned on the original charge.

It should be noted that the previous information in Criminal Case No. 27959 failed to allege all the essential elements of violation of Section 3(b), R.A. No. 3019. It, in fact, did not charge any offense and was, to all intents and purposes, void and defective. A valid conviction cannot be sustained on the basis of such information. Petitioner was resultantly not placed in danger of being convicted when she entered her plea of not guilty to the insufficient indictment.

Moreover, there was no dismissal or termination of the case against petitioner. What the Sandiganbayan ordered was for the amendment of the information pursuant to the express provision of Section 4, Rule 117, which states:

SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. (Emphasis supplied)

The Sandiganbayan correctly applied the foregoing provision when petitioners co-accused filed a motion to quash the original information on the ground that the same does not charge an offense. Contrary to petitioners submission, the original inf ormation can be cured by amendment even after she had pleaded thereto, since the amendments ordered by the court below were only as to matters of form and not of substance. The amendment ordered by the Sandiganbayan did not violate the first paragraph of Section 14, Rule 110, which provides:

SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

xxxx

In Poblete v. Sandoval,26[26] the Court explained that an amendment is only in form when it merely adds specifications to eliminate vagueness in the information and does not introduce new and material facts. Amendment of an information after the accused has pleaded thereto is allowed, if the amended information merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction for the crime charged.

In the case at bar, while certain elements of the crime charged were missing in the indictment, the amended information did not change the nature of the offense which

is for violation of Section 3(b), R.A. No. 3019. The amended information merely clarified the factual averments in the accusatory portion of the previous information, in order to reflect with definiteness the essential elements of the crime charged.

An examination of the two informations in this case would justify the preceding observation. While the first information alleged that Balahay committed the offense with the use of his influence as such public official together with petitioner, the amended information stated that he did so in the performance of his official functions, taking advantage of his official position, with grave abuse of authority while conspiring and confederating with petitioner. Then too, while it was averred previously that Balahay received and accepted the money from petitioner, with the latter giving and granting the said amount to accused Balahay in consideration of the said accused having officially intervened in the undertaking by the OIDCI of such contract for consultancy services, the amended information simply specified that Balahay received the money for his own benefit or use and that the contract mentioned in the first information was one that Balahay, in his official capacity has to intervene under the law.

Consequently, even if we treat petitioners arraignment on the original information as unconditional, the same would not bar the amendment of the original information under Section 14, Rule 110. Re-arraignment on the amended information will not prejudice petitioners rights since the alterations introduced therein did not change the nature of the crime. As held in People v. Casey:27[27]

The test as to whether a defendant is prejudiced by the amendment of an information has been said to be whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. A look into Our jurisprudence on the matter shows that an amendment to an information introduced after the accused has pleaded not guilty thereto, which does not change the nature of the crime alleged therein, does not expose the accused to a charge which could call for a higher penalty, does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance not prejudicial to the accused and, therefore, not prohibited by Section 13 (now Section 14), Rule 110 of the Revised Rules of Court.

Likewise, it is not necessary, as petitioner suggests, to dismiss the original complaint under the last paragraph of Section 14, Rule 110, which states:

xxxx

If it appears at any time before judgment 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 section 11, Rule 119, provided the accused would not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

The afore-cited rule is inapplicable to the case at bar for the simple reason that there was no mistake in charging the proper offense in the original information. As correctly observed by the Sandiganbayan:

[I]t is hardly necessary for this Court to order the dismissal of the original information and then direct the filing of a new one charging the proper offense. The reason for this is obvious. The prosecution did not commit a mistake in charging the proper offense; rather, it merely failed to file an information sufficient to charge the offense it intended to charge, namely, violation of Section 3(b) of R.A. No. 3019. Section 14, Rule 110 of the 2000 Rules of Criminal Procedure apparently relied upon by accused Cabo contemplates a situation where the accused will be charged with an offense different from or is otherwise not necessarily included in the offense charged in the information to be dismissed by the Court. In the case at bar, however, accused Cabo will not be charged with a different offense or with an offense that is not necessarily included in the offense charged in the original information, but with the very same offense that the prosecution intended to charge her in the first place, that is, violation of Section 3(b) of R.A. No. 3019.28[28]

All told, the Sandiganbayan did not commit grave abuse of discretion when it ordered the re-arraignment of petitioner on the amended information. Double jeopardy did not attach by virtue of petitioners conditional arraignment on the first information. It is well-settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.29[29] The first and fourth requisites are not present in the case at bar.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

[G.R. No. 165751. April 12, 2005]

DATU GUIMID P. MATALAM, petitioner, vs. THE SECOND DIVISION OF THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

RESOLUTION

CHICO-NAZARIO, J.:

Before Us is a Petition for Certiorari under Rule 65 of the 1997 Rules on Civil Procedure assailing the resolutions[1] of the Sandiganbayan in Criminal Case No. 26381, admitting the Amended Information[2] and denying petitioners Motion for Reconsideration,[3] dated 12 January 2004 and 03 November 2004, respectively.

An information dated 15 November 2004 was filed before the Sandiganbayan charging petitioner Datu Guimid Matalam, Habib A. Bajunaid, Ansari M. Lawi, Muslimin Unga and Naimah Unte with violation of Section 3(e) of Republic Act No. 3019, as amended, for their alleged illegal and unjustifiable refusal to pay the monetary claims of Kasan I. Ayunan, Abdul E. Zailon, Esmael A. Ebrahim, Annabelle Zailon, Pendatun Mambatawan, Hyria Mastura and Faizal I. Hadil. The accusatory portion of the information reads:

That from the period January 1998 to June 1999, in Cotabato City, and within the jurisdiction of this Honorable Court, the accused ARMM Vice-Governor and Regional Secretary, DAR, DATU GUIMID MATALAM, a high ranking public official, HABIB A. BAJUNAID, ANSARI M. LAWI, MUSLIMIN UNGA and NAIMAH UNTE, all low-ranking public officials, committing the offense while in the performance of their official duties and taking advantage of their public position, conspiring, confederating and mutually aiding one another, did there and then, willfully, unlawfully and criminally, cause undue injury to several employees of the Department of Agrarian Reform, cotabato City, thru evident bad faith in the performance of their official duties to wit: by illegally and unjustifiably refusing to pay the monetary claims of the complaining DAR employees namely: KASAN I. AYUNAN, ABDUL E. ZAILON, ESMAEL A. EBRAHIM, ANNABELLE ZAILON, PENDATUN MAMBATAWAN, HYRIA MASTURA and FAIZAL I. HADIL, for the period of January 1998 to June 1999 amounting to P1,606,788.50 as contained in Civil Service Resolutions Nos. 982027 and 990415 in the nature of unpaid salaries during the period when they have been illegally terminated, including salary differentials and other benefits.[4]

On 14 August 2002, petitioner filed a Motion for Reinvestigation.

Per order of the court, a reinvestigation of the case was conducted where petitioner filed his Counter-Affidavit.[5]

After the reinvestigation, the public prosecutor filed a Manifestation and Motion to Admit Amended Information Deleting the Names of Other Accused Except Datu Guimid Matalam[6] to which petitioner filed a Motion to Dismiss and Opposition to the Motion to Admit the Alleged Amended Information Against the Accused Guimid P. Matalam.[7] Thereafter, the public prosecutor filed his Reply[8] to which petitioner filed a Rejoinder.

The Amended Information reads:

That on December 16, 1997 and for sometime prior or subsequent thereto, in cotabato City, and within the jurisdiction of this Honorable Court, the above named accused a public officer being then the ARMM Vice-Governor and Regional Secretary DAR, committing the offense while in the performance of his official duties and thru evident

bad faith and manifest partiality did there and then, willfully, unlawfully and criminally, cause undue injury by illegally dismissing from the service complaining DARMaguindanao employees, cotabato City, namely: Kasan I. Ayunan, Abdul E. Zailon, Annabelle Zailon, Pendatum Mambatawan, Hyria Mastura and Faizal I. Hadil, to their damage and prejudice amounting to P1,606,788.50 by way of unpaid salaries during the period when they have been illegally terminated including salary differentials and other benefits.[9]

In his Motion to Dismiss, petitioner alleged that the amended information charges an entirely new cause of action. The corpus delicti of the amended information is no longer his alleged refusal to pay the backwages ordered by the Civil Service Commission, but the alleged willful, unlawful and illegal dismissal from the service of the complaining witnesses. He insists that the amended information charging a separate and entirely different offense cannot be admitted because there would be a serious violation of due process of law. He claims he is entitled to a preliminary investigation since he was not informed that he is being charged for the alleged dismissal of the complaining witnesses and that he was not given the opportunity to explain.

On 12 January 2004, the Sandiganbayan granted the Manifestation and Motion to Admit Amended Information Deleting the Names of Other Accused Except Datu Guimid P. Matalam. It admitted the Amended Information charging solely petitioner for Violation of Section 3(e) of Rep. Act No. 3019. The court a quo ruled:

What seems to be more crucial here is, whether the amendments made are not prejudicial to the rights of the accused and are considered as a matter of form only, so that, if the Amended Information is admitted, there would be no need to require the Public Prosecutor to conduct another preliminary investigation in the observance of the rights of the accused to due process. On the other hand, if the amendment would be substantial, necessarily, another preliminary investigation should be accorded to the accused. Distinction of the two is thus imperative.

...

The Amended Information charges essentially the same offense as that charged in the original Information which is a Violation of Sec. 3(e) of R.A. 3019. Theoretically, therefore, the amendment is a matter of form only.

Interestingly, however, the change in the recital of cause of action in the Amended Information is very much noticeable. As correctly pointed out by accused Matalam, the corpus delicti in the original Information was the alleged willful and confederated refusal of the accused to pay the backwages of the complaining witnesses. The corpus delicti in the Amended Information is now altered into the alleged illegal dismissal of the complainants from their service by accused Matalam. Certainly, the two causes of action differ differently from each other.

Following the aforementioned principles laid down by the Supreme Court, the amendments seem to be substantial considering that the main defense of all the accused in the original information the lack of a corresponding appropriation for the payment of the monetary claims of the complaining witnesses would not, in itself alone, stands [sic] as a defense for accused Matalam in the Amended Information anymore. In the same manner, the evidence that accused Matalam would have to present in the original Information, had it not been found to be without prima facie evidence, will not be equally available to bail him out in the Amended Information anymore. And further, although the nature of the offense charged has not changed, the theory of the case as against accused Matalam is now deemed to have been changed because the cause of action now varies and therefore, he would have to formulate another defense again.

However, after making a meticulous and independent assessment on the evidence obtaining on record, this Court agrees with the findings and recommendation of the Public Prosecutor that the real and exact issue in this case is actually the alleged illegal dismissal of the complaining witnesses. The issue of non-payment of their backwages is merely incidental because had it not been for the alleged illegal dismissal, their demand for monetary claims should have not arisen. Put in another perspective, the surrounding circumstances that brought about the issue of the alleged illegal dismissal were actually the ones that spewed the issue of unpaid backwages.

Furthermore, as correctly observed by the Public Prosecutor, the change in the recital of the cause of action does not conceivably come as a surprise to the accused. In fact, in his counter-affidavit submitted before the Public Prosecutor, accused Matalam already took the occasion to elaborate his version on the surrounding circumstances that brought about the alleged illegal dismissal of the complaining witnesses. And these chain of circumstances, actually, were the very preceding circumstances as to why the complaining witnesses had suffered their alleged injury. The need for another preliminary investigation is therefore not necessary.

Given the foregoing factual milieu, the rights of accused Matalam are not, after all, in any way prejudiced because an inquiry to the allegations in the original cause of action would certainly and necessarily elicit substantially the same facts to the inquiry of the allegations in the new cause of action contained in the Amended Information.

To remand this case again to the Public Prosecutor would certainly be a waste of time considering that accused, in his counter-affidavit, had already explained extensively his defense on the new allegations contained in the Amended Information sought to be admitted. And definitely, his projected defense would be the same assuming that another preliminary investigation be conducted and that he would be required to submit another counter-affidavit again.[10]

On 11 February 2004, petitioner filed a Motion for Reconsideration[11] which the prosecution opposed.[12] On 03 November 2004, the Sandiganbayan denied the Motion.[13] It explained:

While it is true that accused-movants defense in the original information could not by itself stand alone as his defense to the amended one, however, the same would still be available for the latter because although the two questioned causes of action literally varied, they are nonetheless interrelated with each other. The essential ingredients of the amended information are actually identical with those constituting the original, such that, the inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal. And since these two causes of action had emanated from the same set of factual settings, the evidence that accused-movant might have under the original information would still be available and applicable to the amended one.

Be it noted that the private complainants lodged their complaint due to the alleged injury they suffered as a consequence of the alleged refusal of the accused-movant to pay them of their backwages. And notably, based on the affidavit that the accused-movant had submitted, his defense to this was due to the lack of funds appropriated for the said purpose. But why was there no appropriation? Because, allegedly, the private complainants were illegally dismissed from their service and as a result thereof, their names were subsequently stricken off from the roster of employees in the government agency where they were connected.

Culled from these factual settings, the root cause of the alleged injury suffered by the private complainants would therefore be their alleged illegal dismissal from the service. Otherwise, their names would not have been stricken off from the roster of employees in the agency which they were connected with and the appropriation for the payment of their salaries would have been continuously made.

Thus, from the foregoing, although there was a change in the recital of the cause of action (from non-payment of backwages into illegal dismissal), the amendment of the information did not however affect or alter the nature of the offense that was originally charged. Neither did it change the basic theory of the prosecution since this remained to be a violation of Sec. 3(e) of R.A. 3019 on account of the alleged injury caused to the private complainants. And even if the prosecutions theory would now be premised on the new cause of action (illegal dismissal), this would not however cause surprise to the accused-movant nor would require him to undergo a material change or modification in his defense because in presenting his defense, he still has to commence from the very same set of factual settings that preceded the original cause of action. And evidently, this is the reason why in the affidavit he submitted during the reinvestigation, his discussions therein consisted not only of his defense to the original information but also included an extensive discussion regarding his defense to the amended one.

This being so, the outright admission of the amended information even without affording the accused-movant a new preliminary investigation did not amount to a violation of his rights. To afford him another process of preliminary investigation would no longer serve him and this court any better considering that he had already explained in the said affidavit his defense to the amended information. Otherwise, if he is allowed to submit another one, he is likely to elaborate again the very same arguments that he had already invoked in his previous affidavit.

Hence, this petition.

Petitioner argues that the resolutions of the Sandiganbayan dated 12 January 2004 and 03 November 2004 admitting the Amended Information charging a new offense without conducting a preliminary investigation were issued without jurisdiction and/or with grave abuse of jurisdiction amounting to lack of jurisdiction.

From the arguments raised by petitioner, the issue boils down to whether or not petitioner was deprived of due process of law when the Sandiganbayan admitted the Amended Information without conducting another or new preliminary investigation. Firstly, petitioner maintains that a new preliminary investigation should have been ordered because the corpus delicti in the Amended Information is the termination of services of the complaining witnesses, while the corpus delicti in the Original Information is the alleged refusal to pay the backwages of the complaining witnesses. In other words, there being a new and distinct offense, he should be entitled to a new preliminary investigation. Secondly, he contends he was denied due process when the Sandiganbayan ruled that if he were allowed to submit another counter-affidavit, he is likely to elaborate again the very same argument that he had invoked in his previous affidavit considering that he would have pointed out certain facts not contained in his counter-affidavit. He added that despite the finding of the Sandiganbayan that the theory of the case against him changed because the cause of action varies, and that he would have to formulate another defense, the Sandiganbayan did not remand the case to the public prosecutor for preliminary investigation because it was a waste of time since he had already explained extensively in his counter-affidavit his defense on the new allegations contained in the Amended Information. Thirdly, he asserts he was not given the opportunity to show that he did not act with manifest partiality and evident bad faith in the dismissal of the seven employees inasmuch as there are other factors and circumstances that would support his posture.

In its Comment, respondent People of the Philippines, thru the Office of the Special Prosecutor, stated that the admission of the Amended Information without another preliminary investigation would not violate petitioners right to due process on the ground that the amendment is merely formal, and to require another preliminary investigation would not be in obedience to, but in disregard of, the prime purpose for which a preliminary investigation is ordained by law and jurisprudence. It maintains that

petitioner acted with evident bad faith and manifest partiality in illegally terminating the complainants from service.

On 10 March 2005, petitioner filed his Reply.[14]

The initial question to be resolved is what kind of amendment was made in the Information?

Section 14 of Rule 110 of the Revised Rules on Criminal Procedure provides:

SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

Before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court. After the entry of a plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.[15]

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form.[16]

The following have been held to be merely formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecutions theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused;[17] (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged.[18]

The test as to whether a defendant is prejudiced by the amendment has been said to be whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance.[19]

In the case at bar, the amendment was indeed substantial. The recital of facts constituting the offense charged was definitely altered. In the original information, the prohibited act allegedly committed by petitioner was the illegal and unjustifiable refusal to pay the monetary claims of the private complainants, while in the amended information, it is the illegal dismissal from the service of the private complainants. However, it cannot be denied that the alleged illegal and unjustifiable refusal to pay monetary claims is related to, and arose from, the alleged illegal dismissal from the service of the private complainants.

According to Retired Senior Associate Justice Florenz D. Regalado, before the plea is taken, the information may be amended in substance and/or form, without leave of court; but if amended in substance, the accused is entitled to another preliminary investigation, unless the amended charge is related to or is included in the original charge.[20]

Thus, the rule is: Before or after a plea, a substantial amendment in an information entitles an accused to another preliminary investigation. However, if the amended information contains a charge related to or is included in the original information, a new preliminary investigation is not required.

The Sandiganbayan and the public prosecutor maintain that petitioner is not entitled to a new preliminary investigation because the charges in the original information and amended information are related and the latter has already presented his defense on the amended charge. Further, remanding the case to the Public Prosecutor for another preliminary investigation would be a waste of time considering that petitioner had already explained extensively his defense on the new allegations contained in the Amended Information, that is, the accused already elaborated his version on the surrounding circumstances that brought about the alleged dismissal of the complaining witnesses. It added that the change in the recital of the cause of action will not come as a surprise to the accused because the causes of action, though different, are nonetheless interrelated, and that the rights of the accused will not be prejudiced since the inquiry to the allegations in the original information will certainly and necessarily elicit substantially the same facts to the inquiry of the allegations in the Amended Information.

On the other hand, petitioner insists he should be given a new preliminary investigation because he was not, among other things, given the opportunity to show that he did not act with manifest partiality and evident bad faith in the dismissal of the private complainants.

While it is true that the charges in the original and amended informations are related, i.e., an inquiry into one would have elicited substantially, if not precisely, the same facts that an inquiry into the other would have brought into light,[21] this fact should not necessarily deprive an accused to his right to a new preliminary investigation. As above-stated, the rule is that a new preliminary investigation is needed if there is a substantial amendment. The exception, i.e., charge is related or included in the original information, should not be applied automatically. The circumstances in every case must be taken into consideration before the accused is deprived of another preliminary investigation.

The following indispensable elements must be established to constitute a violation of Section 3(e) of Rep. Act No. 3019, as amended:

1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty in relation to his public position;

3. The public officer acted with manifest partiality, evident bad faith or gross inexcusable negligence; and

4. His action caused undue injury to the government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.[22]

The third element of the offense states that the public officer acted with manifest partiality, evident bad faith or gross inexcusable negligence in committing the prohibited act. Admittedly, the alleged illegal dismissal contained in the amended charge gave rise to the original charge of failure to pay the monetary claims of private complainants. It cannot be disputed that petitioner already discussed circumstances surrounding the termination of services of the private complainants in his counter-affidavit. However, we find nothing therein that would show that he had already touched the issue of evident bad faith or manifest partiality. As can be gathered from the counter-affidavit, there were arguments tending to counter the presence of evident bad faith, manifest partiality or gross inexcusable negligence, but the same refer to the allegation of failure to pay the monetary claims and not to the alleged illegal dismissal. Although one allegation stemmed from the other, the court a quo and the public prosecutor cannot say the element of evident bad faith, manifest partiality or gross inexcusable negligence is the same in both. This being an element of the offense charged, petitioner should be given the opportunity to thoroughly adduce evidence on the matter.

If petitioner is not to be given a new preliminary investigation for the amended charge, his right will definitely be prejudiced because he will be denied his right to present evidence to show or rebut evidence regarding the element of evident bad faith and manifest partiality on the alleged dismissal. He will be denied due process.

A component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process.[23]

Our rulings in the cases of People v. Magpale[24] and Lava v. Gonzales[25] where no new preliminary investigation was given because the charges in the amended informations were related to, or included in, the original charges cannot apply in the case at bar. The factual milieu in those cases is different from the case before us.

In Magpale, the accused was charged with violation of Article 176 of the Revised Penal Code for illegal possession of iron brand, and making or ordering the making thereof. In the notices sent to the accused in connection with the preliminary investigation of the complaint, the accused was informed not of one but of both. He was given the chance, and was placed on guard, to defend himself for both charges. Moreover, the right of the accused to have another preliminary investigation was waived when he went forward with the trial.

In Lava, the accused was charged with Complex Rebellion but the charge was later amended to Simple Rebellion. This court held that a new preliminary investigation was not necessary there being no change in the nature of the crime charged, and that accused failed to ask for a reinvestigation upon learning of the amended information.

In the case of petitioner herein, although the charge remained the same (Violation of Section 3(e), Rep. Act No. 3019, as amended), the prohibited act allegedly committed changed, that is, failure to pay monetary claims to illegal dismissal, and he was not given the opportunity to submit his evidence on the absence or presence of evident bad faith and manifest partiality as to the illegal dismissal. Petitioner has not waived his right to a new preliminary investigation and, instead, is asking for one.

It is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution.[26]

Our ruling in this case does not in any way divest the public prosecutor of its duty under the Rules. This Court is not determining if petitioner should or should not be brought to trial. What we are looking into is whether or not petitioner was given all the opportunity to present countervailing evidence on the amended charge. Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended information which contained a substantial amendment, a new preliminary investigation is in order.

As to statement of the court a quo that the conduct of another preliminary investigation would be merely a waste of time, it must be emphasized that though the conduct thereof will hold back the progress of the case, the same is necessary in order that the accused may be afforded his right to a preliminary investigation. The right of the accused to a preliminary investigation should never be compromised or sacrificed at the altar of expediency.

Finally, as to petitioners prayer that the Amended Information be quashed and dismissed, the same cannot be ordered. The absence[27] or incompleteness[28] of a preliminary investigation does not warrant the quashal or dismissal of the information. Neither does it affect the courts jurisdiction over the case or impair the validity of the information or otherwise render it defective. The court shall hold in abeyance the proceedings on such information and order the remand of the case for preliminary investigation or completion thereof.

WHEREFORE, the petition for certiorari is hereby GRANTED. Respondent courts resolutions dated 12 January 2004 and 03 November 2004 in Criminal Case No. 26381 are REVERSED AND SET ASIDE. Respondent court is directed to order the Office of the Ombudsman to forthwith conduct a preliminary investigation of the charge embodied in the Amended Information filed against petitioner. It is further directed to suspend the proceedings in the said case pending termination of the preliminary investigation, and

thereafter to take such action on petitioners case as may be warranted by the results of said preliminary investigation.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

G.R. No. 140311

March 30, 2001

DENNIS T. GABIONZA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

May an Information be amended to change the material dates of the commission of the offense after the accused had been arraigned?

DENNIS T. GABIONZA seeks a review of the Decision of the Court of Appeals in CAG.R. No. 49098-SP1 dismissing his petition for certiorari assailing the order of the Regional Trial Court in Crim. Case No. Q-93-505522 which allowed the amendment of the Information charging him with violation of RA 1161 (The Social Security Law) as amended.1wphi1.nt

On 9 November 1993 an Information was filed against petitioner accusing him of violating Sec. 22, pars. (a) and (d), in relation to Sec. 28, par. (e), of RA 1161. It alleged that "in and about or during the period from January 1991 to May 1993" petitioner,

President of the Manila City Bus Corporation, a compulsorily-covered employer under RA 1161, willfully and unlawfully failed, neglected and refused to remit to the Social Security System (SSS) contributions for SSS, Medicare and Employee Compensation (EC) amounting to P1,652,330.10 and the 3% penalty imposed thereon in the amount of P541,417.87.3

Petitioner was arraigned on 7 December 1993. On 10 February 1998 or about four (4) years after he was arraigned, the public prosecutor filed a Motion for Leave of Court to Amend Information, to change the material dates stated in the Information from "January 1991 to May 1993" to January 1991 to May 1992." Petitioner opposed the motion contending that the proposed amendment was substantial in nature, hence to allow the same would be a violation of his right to be informed of the cause and nature of the accusation against him, and would negate or prejudice defenses that were otherwise available to him.

On 31 March 1998 the trial court granted the motion and allowed amendment of the Information, ruling that the amendment pertained only to matters of form. It further ruled that the amendment would not prejudice the rights of the accused as the theory of the prosecution remained the same.4 On 2 September 1998 petitioner's motion to reconsider the order was denied.

Petitioner elevated the issue to the Court of Appeals in a petition for certiorari under Rule 65 seeking to annul the order of the trial court. On 9 June 1999 respondent Court of Appeals upheld the amendment and dismissed the petition. It held that the amendment "cannot be deemed an amendment in substance, as it will in no wise or manner impair whatever defense or defenses the accused could or might have interposed in the original information, even as it will not render unavailable or inapplicable in the amended information, whatever evidence the accused might or could have adduced or presented in the original information."5 Hence this petition for review under Rule 45 of the 1997 Rules of Civil Procedure.

The proper procedure for the amendment of an Information is governed by Sec. 14, Rule 110, of the Rules on Criminal Procedure -

Sec. 14. Amendment. - The information or complaint may be amended, in substance or form, without leave of court at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused x x x x

After the accused enters a plea, amendments to the Information may be allowed, as to matters of form, provided that no prejudice is caused to the rights of the accused. The test as to when the rights of an accused are prejudiced by the amendment of a Complaint or Information is when a defense under the Complaint or Information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the Complaint or the Information as amended.6

On the other hand, an amendment which merely states with additional precision something which is already contained in the original information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at any time.7 Jurisprudence allows amendments to information so long as: (a) it does not deprive the accused of the right to invoke prescription;8 (b) it does not affect or alter the nature of the offense originally charged;9 (c) it does not involve a change in the basic theory of the prosecution so as to require the accused to undergo any material change or modification in his defense;10 (d) it does not expose the accused to a charge which would call for a higher penalty;11 and, (5) it does not cause surprise nor deprive the accused of an opportunity to meet the new averment.12

In the case at bar, it is clear that the questioned amendment is one of form and not of substance. The allegation of time when an offense is committed is a matter of form, unless time is a material ingredient of the offense. It is not even necessary to state in the Information the precise time the offense was committed unless time is a material factor.13 It is sufficient that the act is alleged to have been committed at any time as near to the actual date at which the offense was committed as the Complaint or Information will permit.14

Thus, petitioner's argument that the amendment prejudiced his rights is untenable. We fail to see how his original defenses would be rendered inapplicable by the amendment, nor the prosecution's theory in anyway altered by the same. Petitioner failed to adduce

any evidence in support of his allegation that the amendment would adversely affect his rights.

Petitioner invokes Wong v. Yatco,15 People v. Opemia16 and People v. Reyes17 in support of his cause. However, we hold that the ratio decidendi of the three (3) cases does not apply in the present case.

In Wong the prosecution amended the Information of a violation of Commonwealth Act No. 104 to change the dates of the violation from "May 3, 1954 to October 11, 1954" to "between January 2, 1955 and March 17, 1955." The Court disallowed the amendment because in 1954, the law punishing the act had not been published yet, therefore there was no crime in legal contemplation, The Court said that since an amended Information retroacted to the time of the original one, the proper course would have been not to amend the previous Information but to file another one. This crucial fact is not involved here.

In Opemia the Court held, "the period of almost five years between 1947 and 1952 covers such a long stretch of time that one may be led to believe that another theft different from that committed by the defendants in 1952 was also perpetrated by them in 1947. The variance is certainly unfair to them, for it violates their constitutional rights to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend , themselves."

In Reyes, this Court held that "the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same offense."

The last two (2) cases involved changes in dates which were so far removed from each other that substituting one for the other would clearly work to the detriment of the right of the accused to be informed of the nature and cause of the charges against him. This is not so in the present case. For one, a comparison of the amended Information (January 1991 to May 1992) and the original one (January 1991 to May 1993) shows that the period stated in the former is even shorter than and is included within the latter. Also, the averment "in or about and during the period" gives a sufficient approximation of the date of the commission of the offense. Therefore, the first Information had adequately

informed petitioner of the period of time when the crime was committed. No surprise, ergo, no violation of rights, could spring from merely replacing the original period, more so with one that is shorter and included within the same.

Moreover, the imposable penalty will not increase as a result of the amendment. A reading of Sec. 28, par. (e), RA 1611, shows that it penalizes, among others, the failure or refusal of a compulsorily-covered employer from remitting compulsory contributions to the SSS. Neither time nor duration of the offense charged is a material ingredient of the offense. In fact, the penalty imposed for this violation is constant at six (6) years and one (1) day to twelve (12) years, regardless of the number of infractions.

Petitioner contends that because of the lapse of time between the filing of the Information and the amendment laches had set in.

We find no merit in this argument. "Laches" is defined as the failure or neglect, 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 a party entitled to assert it either has abandoned it or declined to assert it.18 As the Solicitor General correctly pointed out, the principle of laches is inapplicable in this case. The provision in Sec. 14, Rule 110, of the Rules on Criminal Procedure is explicit that amendments as to form may still be made after arraignment or during trial. Since the questioned amendment was made "during trial," the same was made seasonably notwithstanding the lapse of four (4) years.

It may also be noted that even before the prosecution had the chance to present its principal evidence petitioner moved for the suspension of trial because he filed a petition for certiorari with the Court of Appeals questioning the denial of his motion to dismiss. Pre-trial was held only on 11 November 1997. As can be seen from the records, the prosecution did not unnecessary waste time in filing the Motion for Leave of Court to Amend Information. Again, before the prosecution had the opportunity to present evidence, trial was suspended because of the filing of the instant case. This, coupled with the many postponements and resettings requested by petitioner, satisfactorily explains the reasonable delay in the amendment of the Information. Certainly, the prosecution cannot be faulted for not filing the amendment earlier since

trial was suspended during the pendency of petitioner's recourse to the Court of Appeals and to this Court. Petitioner should not then bewail the delay in the amendment because such delay was principally upon his own behest.

WHEREFORE, the petition is DENIED. The assailed DECISION of the Court of Appeals in CA-G.R. No. 49098-SP affirming that of the trial court which allowed the amendment of the Information charging petitioner with violation of RA No. 1161, as amended, is AFFIRMED.

Considering the delay already incurred in the process, the trial court should immediately act on this case with deliberate dispatch upon its remand, which this Court DIRECTS. Costs against petitioner.1wphi1.nt

SO ORDERED.

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

G.R. No. L-55357 October 30, 1981

ROLANDO DIONALDO, petitioner, vs. THE HONORABLE AUXENCIO DACUYCUY, Judge, Court of First Instance, Branch IV, Province of Leyte, respondent.

ABAD SANTOS, J.:

In this petition We are asked to rule whether an information for the crime of homicide can be amended so as to charge the crime of murder after the accused had entered a plea of not guilty.

Petitioner Rolando Dionaldo stands charged with the crime of homicide in Criminal Case No. 3835 of the Court of First Instance of Leyte, Branch IV, presided by the respondent judge. after the accused had entered a plea of not guilty, the prosecution filed a motion for leave to amend the information, attaching thereto an amended information charging the accused with murder qualified by treachery and evident premeditation a more serious offense. No explanation was given in the motion for alleging evident premeditation but as to the allegation of treachery it was explained that, "the affidavit of the complaining witness indicates that the attack was sudden and it was only after they sustained the wounds consequent to the treacherous attack that they were forced to fight back to repel further aggression." It can thus be seen that all along this claimed circumstance was known to the prosecution but it was not alleged.

Counsel for the accused opposed the motion to amend the information but the respondent judge granted the motion: hence the petition to nullify the action of the respondent.

The petition is impressed with merit.

It is admitted that the provision which is relevant to the problem is Rule 110, Sec. 13 of the Rules of Court which stipulates:

Section 13. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

If it appears at any nine before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

The petitioner invokes the first paragraph, whereas the respondent relies on the second.

To amend the information so as to change the crime charged for homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the above-quoted provision. For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequences.

But can the amendment be justified under the second paragraph? The answer is, No. For the provision speaks not of amendment but of dismissal of the information In other words the provision contemplates the filing of a substitute, not an amended information. But, it may be asked, can not the information for homicide against the petitioner be dismissed since no judgment has yet been rendered and another information for murder be filed? The answer, again, is No. For the petitioner having pleaded not guilty to homicide, to dismiss the charge against him so as to file another charge for murder win place him thereby in double jeopardy.

We have not overlooked the fact that People of the Philippines, thru the Solicitor General, should have been made a party to this case. But the participation of the People while necessary is not indispensable under the circumstances. Besides an early resolution of this case is necessary to provide affirmative justice to the petitioner.

WHEREFORE, the petition is granted and of the respondent admitting the amended information is hereby set aside. No costs.

SO ORDERED:

Barredo (Chairman), Concepcion Jr. and De Castro, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. Respondent judge relied on Dimalibot vs. Salcedo, 107 Phil. 843, where the amendment of the charge from homicide to murder, after the accused had pleaded guilty, was allowed.

The Dimalibot case is different from the instant case. The plea in the Dimalibot case was made during the preliminary investigation to a complaint for homicide filed in the justice of the peace court. That is not the plea contemplated in section 9, Rule 117 of the Rules of Court. The plea in the instant case was made to an information filed in the Court of First Instance.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. Respondent judge relied on Dimalibot vs. Salcedo, 107 Phil. 843, where the amendment of the charge from homicide to murder, after the accused had pleaded guilty, was allowed.

The Dimalibot case is different from the instant case. The plea in the Dimalibot case was made during the preliminary investigation to a complaint for homicide filed in the justice of the peace court. That is not the plea contemplated in section 9, Rule 117 of the Rules of Court. The plea in the instant case was made to an information filed in the Court of First Instance.

G.R. No. L-32557 October 23, 1981

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO C. REYES as Presiding Judge of the Circuit Criminal Court, Fourth Judicial District, and FRANCISCO ESTRELLA, respondents.

CONCEPCION, JR., J.:

Petitioner, by way of certiorari, with prayer for preliminary injunction, questions as alleged grave abuse of discretion, the order 1 dated July 10, 1970, of the respondent Judge, (Hon. Alfredo C. Reyes of the Circuit Criminal Court, 4th Judicial District, Cabanatuan City) in Criminal Case No. CCC-IV-170-NE, entitled "The People of the Philippines versus Francisco Estrella," which denied petitioner's verbal motion for the amendment of the information in said case, by deleting the year "1969" as alleged

therein, and in lieu thereof to put the year "1964 ". Respondent Judge anchored his denial of the verbal motion on, to wit:

After a careful study of both memoranda in support and against the said motion, this Court finds and so hold that the amendment to the information cannot be made without prejudice to the substantial rights of the accused in the above-entitled case.

WHEREFORE, the motion to amend the information is hereby denied in accordance with the decision of the Supreme Court in the case of People vs. Placido Opemia et al., 98 Phil. 698. ...

SO ORDERED. 2

Petitioner also assails the order of respondent Court, dated September 14, 1970, 3 denying its motion for reconsideration 4 of the July 10, 1970 order.

This court issued a preliminary injunction on September 24, 1970. 5

Pertinent facts of record are:

Sometime in October, an information for qualified theft was filed against private respondent Francisco Estrella and three others, as Criminal Case No. 6799, in the Municipal Court of San Jose, Nueva Ecija, pertinent portion as follows:

The undersigned Asst. Provincial Fiscal accuses Narciso Mananing, Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That in the month of August, 1964, in the municipality of San Jose, province of Nueva Ecija, Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being the driver of complainant Maria Ignacio- Francisco, Florentino Alcantara, repair shop owner where the truck hereinafter described was found and recovered, Francisco Estrella, a Philippine Constabulary soldier stationed at Bulacan, and Melecio Guevarra, all conspiring together, without the knowledge and consent of the owner thereof, take, steal and carry away one (1) Bedford truck with Chassis No. 153559, with Motor No. 2/54/5/6, with Plate No. T-35049, Series of 1964, to the damage and prejudice of the owner, Maria Ignacio-Francisco in the amount of P23,000.00, value of said vehicle. 6

On November 15, 1969, the Acting City Fiscal of San Jose City, (converted into city) Nueva Ecija, filed an information (Crim. Case No. CCC-IV-170) with the respondent Court, charging private respondent Francisco Estrella and three others, with qualified theft, as follows:

The undersigned Acting City Fiscal accuses Narciso Mananing Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That on or about the month of August, 1969 in the City of San Jose, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being then the driver of Bedford truck bearing Plate No. T35049, Series of 1964, with Chassis No. 153559, and with a Motor No. 2/54/5/6 owned by Maria Ignacio-Francisco, conspiring and confederating together with his co-accused namely: Florentino Alcantara, Francisco Estrella, and Melecio Guevarra, and with intent to gain, with grave abuse of confidence, did then and there wilfully, unlawfully and feloniously take, steal and carry away the said Bedford truck valued at Twenty Three Thousand Pesos ( P23,000.00) Philippine Currency and dismantled the same without the consent of the said owner and to her damage and prejudice of the said sum of P23,000.00. 7

On January 28, 1970, private respondent Francisco Estrella was arraigned, and he pleaded not guilty During the arraignment, respondent-Judge required his clerk to read the information to Francisco Estrella. The court interpreter was directed to translate the

information into Tagalog for the benefit of the accused. The prosecution, although represented, made no move to amend the information, if indeed it was really erroneous. From January 28, 1970, up to May 21, 1970, the latter date being the scheduled trial of the case, the prosecution never moved to amend the information. 8

On May 21, 1970 when the prosecution was scheduled to present its evidence, it verbally moved that it be allowed to amend the information 9 so as to change the date of the commission of the offense from "August 1969" to "August 1964." 10 Private respondent Francisco Estrella, having come to the trial court ready to defend himself from an offense allegedly committed in "August 1969", vigorously objected to the verbal motion. 11

Respondent Judge withheld his ruling on the prosecution's motion to amend, and instead, required the prosecution to present its first witness, to determine whether the sought amendment in the information would constitute a change of substance affecting the rights of the accused or merely of form. 12

Florentino Alcantara, originally a co-accused but discharged as a prosecution witness, testified that the offense was committed in 1964. The defense refused to cross-examine witness Alcantara, asked respondent Court to strike off the testimony of Alcantara because it referred to an offense not mentioned in the information, and asked for a ruling by respondent Court on the prosecution's verbal motion to amend the information. 13

Respondent Judge required the prosecution and the defense to submit memoranda. The contested order of July 22, 1970, denying the prosecution's verbal motion to amend information on the ground that said amendment would prejudice the substantial rights of the accused was issued by respondent Court. 14

Petitioner's motion for reconsideration of the aforementioned contested order alleged that time was not material ingredient of the offense of qualified theft and claimed that the case of Placido Opemia, et al., 98 Phil. 698, relied upon by the trial court for its denial of the motion to amend information, was not applicable to the case. 15

The respondent Court, denied the petitioner's motion for reconsideration, in its order of September 14, 1970, 16 stating that the prosecution's honest mistake in the information filed cannot prevail over the substantial rights of the accused based on constitutional provisions. Hence this petition.

The principal issue before this Court is whether or not the respondent Court abused its discretion when it refused an amendment to the information filed in Criminal Case No. CCC-IV 170-NE, to change the date of the alleged commission of the offense from "August 1969" to "August 1964", on the ground it would constitute an impairment of the substantial rights of the accused as guaranteed by the Constitution.

Under Section 13, Rule 110, Rules of Court, the complaint or information in a criminal case where the accused had been arraigned and had pleaded, as in this case, may be amended only as to all matters of form when the same can be done without prejudice to the substantial rights of the accused.

As to whether or not a sought for amendment of an information to change the time of the alleged commission of crime from 1969 to 1964 (period of five years) would prejudice the substantial rights of the accused after his arraignment and plea, this Court ruled in the case of People vs. Placido Opemia, et al., 98 Phil. 698, that:

In the case at bar, the proof shows that the carabao was lost on July 25, 1947, and not on June 18, 1952, as alleged in the information. The period of almost five years between 1947 and 1952 covers such a long stretch of time that one cannot help but be led to believe that another theft different from that committed by the co-defendants in 1952 was also perpetrated by them in 1947. Under this impression the accused, who came to Court prepared to face a charge of theft of large cattle allegedly committed by them in 1952, were certainly caught by sudden surprise upon being confronted by evidence tending to prove a similar offense committed in 1947. The variance is certainly unfair to them, for it violates their constitutional rights to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. Moreover, they cannot be convicted of an offense of which they were not charged.

In the present case, private respondent Francisco Estrella was investigated for an offense allegedly committed in August of 1964. Then, he was charged for an offense allegedly committed in August of 1969. He pleaded not guilty to the latter charge. Now petitioner desires to put him on trial for the alleged 1964 offense. This cannot legally be done.

The petitioner's argument that the time or date of the commission of the offense is not a material ingredient of the crime of qualified theft cannot be given much weight in this case because the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same offense. While it has been held that except when time is a material ingredient of an offense, the precise time of commission need not be stated in the information, this Court stated that this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. 17 The prosecution is given the chance to allege an approximation of time of the commission of the offense and the precise date need not be stated but it does not mean that it can prove any date remote or far removed from the given approximate date so as to surprise and prejudice the accused.

What happened in this case is that the petitioner committed a mistake in the placing of the date of the alleged crime in the information filed. During the arraignment and plea of private respondent Francisco Estrella on January 28, 1970, the prosecution had all the chances to realize and rectify its mistake. It did not do so. The trial of the accused was set for May 21, 1970. Petitioner therefore, had more than three months to take steps. Again, it failed to do so. Finally, petitioner verbally moved to amend the information only at the start of the trial. To permit petitioner to do so would surprise the accused and prejudice his substantial rights.

WHEREFORE, the questioned orders dated July 10, 1970 and September 14, 1970, by respondent Judge are hereby AFFIRMED, the preliminary injunction issued on September 24, 1970 dissolved, and this petition DISMISSED for lack of merit. Without costs.

SO ORDERED.

Fernandez,* Abad Santos and De Castro, JJ., concur.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

A.M. No. L-1294-MJ March 23, 1979

ROGELIO A. BAIS complainant, vs. HON. MARIANO C. TUGAOEN, of Zamboanguita, Negros Oriental, respondent.

DE CASTRO, J.:

Administrative complaint against Municipal Judge Mariano Tagaoen of the Municipal Court of Zamboanguita, now of the 5th Municipal Circuit Court of Dauin Zamboanguita, for ignorance of the law, abuse of power and authority and partiality in the administration of justice.

It appears that herein complainant, Rogelio A. Bais filed before the Municipal Court of Dauin a complaint against Fr. Roman Suelto for grave slander. Respondent judge, M. Tugaoen, conducted a pre investigation after which he amended motu proprio the complaint by making an official pronouncement, to wit:

Wherefore, by virtue of the above premises, the Court finds prima facie evidence that R. Suelto ... committed the crime of Slight Slander under Article 358 of the Revised Penal Code.

Motions for reconsideration were filed but denied A motion to disqualify respondent judge from trying the case in view of his glaringly apparent prejudgment of the case was also filed and denied.

On September 17, 1975, complainant filed a motion to dismiss the criminal case because his witnesses have signified their intention to desist from testifying. He would want also to refile his case in the Office of the Provincial Fiscal where he thought he could get true justice. The following day, September 18, 1975, a trial was held where respondent judge verbally ordered the denial of the motion to dismiss. Complainant asked for a written copy of the order. This was denied on the ground that the order was given openly. Complainant moved for a reconsideration of the order. This motion for reconsideration was however denied. Then, the respondent judge proceeded with the trial on the merits, after allowing the accused, through his counsel to enter a plea of "not guilty." (pp. 7677, Rollo).

On October 13, 1975, complainant filed motion to file petition for certiorari, injunction and prohibition and motion to defer trial on hearing. On October 16, 1975, the trial of the case was resumed. During said trial, respondent judge openly asked the complainant if he will stand by or pursue his motion to dismiss dated September 16, and complainant answered or replied "yes, your Honor" and right then, the motion to dismiss was granted, rifting the order of denial, thus dismissing the case. (pp. 5-6, Rollo).

The complainant then filed the same complaint with the Office of the Provincial Fiscal, but said filing was denied by the Provincial Fiscal in a resolution dated January 16, 1976, on the ground of double jeopardy.

Hence, complainant filed an administrative case against the respondent judge on the ground that the actuations of the latter were tainted with the following-.

I. Ignorance of the law, in that the respondent judge, after conducting the pre investigation of the case ordered the arrest of the accused, fixed the bail bond at P50.00 and amended motu proprio his complaint by canceling the phrase Grave Slander and replacing it with Slight Slander, in gross violation of Section 13, Rule 110 and Section 9, Rule 112 of the Rules of Court. Likewise, in ordering the arrest of the accused respondent judge went beyond Section 9, Rule 112 of the Rules of Court after considering the accused as having committed a light felony and by this act of the respondent judge, he either did not know the law or if he did, he knowingly violated it. (p. 2, Rollo).

II. Abuse of power and authority, in that respondent judge denied complainant's Motion for Reconsideration and the Motion to Disqualify him from trying the case filed before him and threatened to summarily y hold complainant in contempt of court, and that the respondent judge, notwithstanding the Motion to Dismiss filed with him by the complaint order the trial of the case based on the charge Of Slight Slander as amended by him motu proprio, and allowed the lawyers for the account to enter a "plea of not guilty obviously to prejudice his case against Roman Suelto for the crime of Grave Slander, because afterwards, the respondent judge dismissed the complaint on the basis of the motion for reconsideration which he had denied before the counsel for the accused could enter a plea of not guilty. (p. 4, Rollo).

III. Partiality in the administration of justice, in that the actuations of the respondent judge in handling the case was tainted with partiality in the administration of justice by:

(1) Amending his complaint motu proprio without authority of law, obviously to accommodate the accused who is a priest after learning that the evidence against him is strong.

(2) Allowing the lawyers for the accused to enter a plea of not guilty' to a charge as amended by him notwithstanding the fact that a Motion to Dismiss is still Pending before him apparently to accommodate the accused and prejudice the case knowing fully well that if it was dismissed before the accused could interpose a 'plea of not guilty', the case can still be revived in the office of the Fiscal '

(3) Dismissing the case only after the accused was able to enter a plea of not guilty thru his counsel manifestly to bar complaint from refiling the case in the office of the Fiscal as in fact he was barred from reviving it, on the ground that the principle of double jeopardy had already sit in. (p. 5, Rollo).

Asked to comment on the complaint respondent judge filed his comment dated July 25, 1976. (pp. 22-28, Rollo). Respondent judge averred that all the charges against him "are closely related with each other and records will disclose that there is no truth to the complaint of the complainant, further alleging that the letter-complaint is characterized

with inaccuracies and reckless choice of phrases and shot through with misinterpretations. "

Respondent judge took exception to the charge that he violated certain provisions of the Rules of Court which complainant branded as tantamount to ignorance of the laws. He maintained that it is within his power and as duly designated Municipal Judge to try Criminal Case No. 684 to issue the corresponding warrant of arrest against the accused therein, Fr. Roman Suelto, which he did only after conducting the preliminary investigation and finding that a prima facie case exists that said accused committed the crime of Slight Slander and not Grave Slander as insisted on by herein complainant; that he also maintained as within his power to change the designation of the crime from "Grave Slander" to "Slight Slander" as both crimes fall under the same provision of Article 358 of the Revised Penal Code and the allegations in the body of the complaint were left unchanged, that said change was done for the speedy administration of justice and cited as his authority in doing so the cases of People vs. Macalinao et al., CA-G.R. No. 52-R (L-247), January 5, 1947 and U.S. vs. Lim San 17 Phil. 273 where it was held that the "designation of the crimes in the caption of the information is a conclusion of law on the part of the fiscal and the court is the only person or institution authorized by law to say what crime has been committed." He further contends that in the pre exexamination replacing the nature of the crime can be done without affecting the substantial rights of the defendant, as from grave to slight slander where the allegations in the complaint support the lesser crime. It is different, he continues, when the proper offense has not been charged, in which case, the complaint should be dismissed.

To further bolster his foregoing contention, the respondent judge also averred:

Section 13, Rule 110, of the Revised Rules of Court refer to amendment of a complaint or information before the defendant pleads. The amendment either in substance or form may be made without leave of court at any time before the defendant pleads; after he had pleaded, no amendment may be made without leave of court. This means that the court has discretion to permit amendment or not. However, such discretion exists only as to an amendment on matters of form. With respect to matters of substance, the court has no such discretion. This contemplates a trial on the merits and certainly not on preliminary examination ... (p. 25, rollo)

Asked to submit a reply to the comment of respondent judge if he so desires, the complainant filed his reply dated September 18, 1976.

Thereafter, by resolution of this Court dated September 28, 1977, the complaint was referred to the Executive District Judge of Negros Oriental for investigation, report and recommendation.

Hon Segundino G. Chua, Executive District Judge of Negros Oriental, in obedience to the aforesaid directive of this Court, set on several dates the investigation of this administrative complaint, and thereafter, on April 12, 1978 issued the following order, to wit:

The investigation of this case, pursuant to the resolution of the Supreme Court dated September 28, 1977 and the communication dated October 18, 1977 of the acting Judicial Consultant, has been set twice, i.e., first, on February 8, 1978 and today, March 16, 1978. On February 8, 1978 only the complainant appeared. The respondent Municipal judge did not show up probably because he had earlier filed a motion for immediate resolution and/or decision of the case based an the records thereof. On said date, February 8, the undersigned investigator suggested to the complainant that for the benefit of an concerned this case ought to be settled amicably considering that he, the complainant, is the sub-station commander of Dauin, while the respondent judge is the circuit judge thereat and both officials are by law supposed to work hand in hand and in close cooperation with each other. The complaint manifested that he was open for negotiation to have the case settled amicably, if possible, and the case was reset for hearing on March 16, 1978, with direction that both parties appear personally before the undersigned investigator. (See Order, February 8, 1978).

On March 16, 1978 only the respondent judge appeared despite proper notice to the complainant and the former orally moved for the dismissal of the case. This motion was denied in order to afford the complainant a last chance to prosecute the case if at all he was still interested therein and the hearing was reset for the last time today, April 12, 1978. (See Order, March 16, 1978).

Both parties appeared today. The complainant forthwith made known his desire to desist from prosecuting his complaint and he executed an affidavit of desistance which is hereby made an integral part of the records. This affidavit of desistance which bears the conformity of the respondent judge reads in full:

I, Rogelio Bais, Filipino, of legal age, married and with residence at Poblacion, Dauin, Negros Oriental after having been duly sworn in accordance with law, hereby depose and say:

That I am the complainant in Administrative Case No. 1294-MJ against the Honorable Judge designate of Dauin who is permanently stationed as of now at Zamboanguita, Negros Oriental;

That the complaint which I have filed against the respondent judge charges him with the following; ignorance of the law, abuse of authority and partiality in the administration of justice;

That all these charges arose from a case of grave slander involving me as complainant which I filed against Roman Suelto, the parish priest of our town, before the municipal court presided over by the said respondent judge who found instead prima facie evidence against the defendant only for slight slander;

That I did not agree with the findings of the respondent judge with regard to the nature of the offense and so a misunderstanding developed between us which finally compelled me to file the present administrative case;

That as time passed, however, I finally realized my impulsive and precipitate action on the matter and after weighing all considerations and after meeting personally with the respondent judge, I have decided to withdraw the aforesaid administrative case;

That finally, I petition that this investigator and the Honorable Supreme Court to drop this case.

(Sgd.) ROGELIO BAIS

t/ ROGELIO BATS

Affiant

Subscribed and sworn to before me this 12th day of April, 1978, at the City of Dumaguete, Philippines.

(Sgd) SEGUNDINO G. CHUA

t/ SEGUNDINO G. CHUA

Executive Judge

With my conformity:

(Sgd.) MARIANO C. TUGAOEN

t/ MARIANO C. TUGAOEN

Respondent Municipal Judge

WHEREFORE, it is respectfully recommended that this administrative case against respondent municipal judge Mariano C. Tugaoen be dropped and considered closed and terminated. (p. 146, Rollo).

After a careful review and perusal of the entire records of this administrative complaint, this Court cannot give full concurrence with the above recommendation of the Investigating Judge to the effect that this case be dropped and considered closed and terminated. This Court looks with disfavor at the outright dismissal of this complaint upon mere affidavit of desistance executed by complainant where on the basis of the evidence presented and records of the case, herein respondent should at least be severely warned to be more discreet in the performance of his judicial function so as to keep inviolate the faith and confidence of the people in our judicial system.

It is not disputed that herein respondent after conducting a preliminary investigation in Criminal Case No. 684, motu proprio and over the objection of the prosecution changed the designation of the crime charged from Grave Slander to Slight Slander. Respondent judge justified his action by insisting that he is possessed with such power and that the same was done for the speedy administration of justice. This Court, however, is not prepared to sustain this view for Section 13, Rule 110, Rules of Court is clear that the matter of changing the designation of the appropriate crime in an information or complaint is vested in the prosecution and not in the trial judge, and in the instant case, the change may be done by the prosecution even without leave of court since the defendant or accused has not as yet entered his plea. The law providing that the information or complaint maybe amended in substance or form without leave of court any time before the defendant pleads lodges a discretionary power in the prosecuting officer. (Conde vs. CFI, No. 21236, October 1, 1923, 45 Phil. 173). So, the person authorized to amend the complaint or information is only the prosecuting officer and not the trial judge. The contention of the respondent judge that he had the right to amend the designation of the crime in a preliminary investigation which is not the trial proper is untenable. The purpose of preliminary investigation is primarily to determine whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest maybe issued and the accused held for trial. It is not within the purview of the preliminary investigation to give the judge the right to amend, motu proprio the designation of the crime. When the crime comes within his jurisdiction, he shall try the case, and only after trial may he convict for a lesser offense. In a case coming within the original jurisdiction of the Court of First Instance, he should elevate the case as it is, even if in his opinion, the crime is less than that charged.

The respondent judge's act of allowing the accused, through his counsel, to plead "not guilty" after an oral denial after hearing, of the complainant's motion to dismiss, and later lifting the order denying the motion to dismiss in order to dismiss, as he did, the complaint, is not within the proper bounds of law. The motion to dismiss was already denied, and with a plea of not guilty thereafter entered, trial on the merits was in order. For the respondent judge to have asked the complainant before proceeding to trial whether the latter was standing by or pursuing his already denied motion to dismiss, and on having been given an affirmative answer, respondent judge dismiss the case after the accused had already pleaded, suspicion is easily aroused that the move taken by him was deliberately designed to favor the accused against whom the case could no longer be refiled with the Provincial Fiscal, as was the motive for complainant's motion to dismiss, because double jeopardy has already set in.

This Court has also noted from respondent's answer that he issued a warrant of arrest, instead of a mere summons against the accused in said Criminal Case No. 684, as provided for in Section 9, Rule 112 of the Rules of Court. Respondent's justification that a warrant of arrest was issued by him and not merely a summons was because that was what the accused priest desired. This explanation is hardly believable to justify the error he committed, by reason of which, one of the grounds of the complaint, that of ignorance of the law, may seem not to be entirely wanting in factual basis. It is for having erred to the prejudice of the accused priest that respondent judge displayed suspicious partiality in favor of said accused to make up for his error in issuing a warrant of arrest instead of a mere summons as prescribed by the Rules, against the accused, a judicial norm obviously reprehensible.

WHEREFORE, in view of the foregoing, the respondent judge is hereby fined onemonth pay, with a stern warning that a similar act or omission in the future will be dealt with more severely.

Teehankee (Chairman), Makasiar, Fernandez, Guerrero, and Melencio Herrera, JJ., concur.

G.R. No. L-45674 May 30, 1983

EMILIANO A. FRANCISCO and HARRY B. BERNARDINO, petitioners, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Martiniano P. Vivo for petitioners.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for review on certiorari of the decision of the Court of Appeals dated August 25, 1976 which modified the decision of the lower court by finding petitioners guilty of the crime of simple slander instead of grave oral defamation as the former Court of First Instance has held, and imposed on him a fine of P200.00 with subsidiary imprisonment in case of insolvency and ordered them to pay complainant the amount of P1,000.00 as moral damages.

On February 6, 1966 complainant Dr. Patrocinio Angeles, who was then the Director of the Morong Emergency Hospital, filed a case for intriguing against honor allegedly committed on December 26, 1965 against Dr. Emiliano Francisco and Atty. Harry Bernardino with the Office of the Provincial Fiscal of Rizal. On May 3, 1966, the Provincial Fiscal filed an information in the former Court of First Instance of Rizal accusing Francisco and Bernardino of the crime of grave oral defamation. On October 8, 1966 the information upon order of the court, was amended by adding the particular statements uttered by each accused allegedly constituting the crime of slander to wit:

AMENDED INFORMATION

The undersigned Special Counsel accuses Harry Bernardino and Emiliano Francisco of the crime of Grave Oral Defamation, committed as follows:

That on or about the 26th day of December, 1965, in the municipality of Tanay, province of Rizal, Philippines and within the jurisdiction of this Honorable Court the abovenamed accused conspiring and confederating together, with the deliberate intent of bringing one Dr. Patrocinio Angeles into public discredit, disrepute and contempt, after having knowledge that the wife of one Romulo Cruz who was a former patient of the Morong Emergency Hospital was operated thereat by Dr. Patrocinio Angeles, did then and there wilfully, unlawfully and feloniously and publicly speak and utter the following insulting and defamatory words and expressions, to wit:

Dr. Francisco (To Romulo Cruz):

Your wife should not have been operated. If I were the doctor, all that I should have done was to do a curretage raspa on her.

Atty. Bernardino:

Those doctors are incompetent. They are not surgeons. They are just bold.

Dr. Francisco:

The operation was unusual.

Atty. Bernardino:

The doctors who operated on your wife could be charged for murder thru reckless imprudence. The doctors there are no good. They are not surgeons.

thereby imputing upon the offended party, Dr. Patrocinio Angeles, the attending physician of the wife of Romulo Cruz and one of the physicians at the Morong Emergency Hospital, professional incompetence, inefficiency, or negligence thus casting public contempt and ridicule upon the reputation of the said Dr. Patrocinio Angeles.

Contrary to law.

Pasig, Rizal, October 8, 1966,

(Sgd.) ZENAIDA S. BALTAZAR Special Counsel

On February 1, 1973 the trial court rendered its decision convicting the accused Harry Bernardino and Emiliano Francisco of the crime of grave oral defamation, sentenced each of them to suffer a penalty of four (4) months of arresto mayor as minimum to one (1) year and one (1) day of prision correccional as maximum and each of the accused was directed to pay complainant t the amount of ten thousand pesos (P10,000.00).

On appeal to the Court of Appeals the decision of the trial court as already stated was modified finding the accused guilty of simple slander.

As found out by the Court of Appeals, the facts of the case are as follows:

The evidence of the prosecution is that Mrs. Lourdes Cruz, wife of Romulo Cruz, had been suffering from a vaginal bleeding since November 24, 1965; that she consulted a Dr. Custodio about her ailment and the latter was able to stop the bleeding for two days; that thereafter her bleeding recurred that Mrs. Cruz then consulted a Dr. Floreza who advised her that if her bleeding continued she should go to a hospital; that her bleeding continued so on December 9, 1965 Lourdes Cruz entered the Morong Emergency Hospital that she was attended by Dr. Patrocinio Angeles, the complainant; that her ailment was tentatively diagnosed by Dr. Angeles as "H-Mole, abortion and pregnancy"; that an x-ray examination conducted on Mrs. Cruz, however, revealed that she was negative for pregnancy; that Mrs. Cruz continued to lose blood and had to be given a transfusion of fresh blood on December 11, 1965; that as the bleeding did not stop Mrs. Cruz was operated on by the complaint Dr. Patrocinio ; that her uterus which contained three (3) dead foetal triplets was removed that the operation was successful and her bleeding was arrested, that on December 26, 1965 at about 9:20 o'clock in the evening the two accused Dr. Emiliano Francisco and Atty. Harry Bernardino together with Dr. Crisologo Golla and Ernesto Ocampo went to the house of Mrs. Lourdes Cruz in Tanay, Rizal that the two accused interviewed Mrs. Cruz and her husband Romulo Cruz about her operation; that the couple informed the two that they are satisfied with the operation; that in the course of this interview the accused Dr. Emiliano Francisco said that the operation was not correctly done and Mrs. Cruz should not have been operated on and that if he were the one he would not conduct an operation but only curretage (raspahin); that on the same occasion the accused Atty. Harry Bernardino that the physicians in Morong Emergency Hospital were no good, are incompetent and they are not surgeons and said accused told Romulo Cruz that he could file charges for murder through reckless imprudence; that the accused Dr. Francisco was formerly a member of the Courtesy Medical Staff on the Morong Emergency Hospital and as such he could bring in his private patients who needed the facility of the hospital for proper management; that, however, on December 15, 1965 his membership in the said staff was cancelled by the Credential Committee of said hospital at a meeting called for that purpose by the complainant Dr. Angeles who was then the Director of the Morong Emergency Hospital; that the accused Harry Bernardino, as counsel of a Dr. Lerma, had earlier moved for the ouster of Dr. Angeles as Director of the Morong Emergency Hospital; that the case was bitterly contested that it even reached the Office of the President; that, furthermore, during the incumbency of the accused Atty. Bernardino as Mayor of Morong, Rizal he caused the passage of a resolution wherein he was given authority to recommend all charity cases for admission to the Morong Emergency Hospital and that this resolution, however, was ignored by the complaint Dr. Angeles in accordance with the policy of the Director of the Bureau of Medical Services.

The evidence of the defense is that as Chairman of the Ethics Committee of the Eastern District of Rizal Medical Society, the accused Dr. Francisco sought to find out what could be done with the reported wrong operation of Mrs. Lourdes Cruz by complainant Dr. Angeles which resulted in the removal of triplets; that so the accused Dr. Francisco consulted the other accused Atty. Bernardino on the proper steps to take; that upon the advice of accused Atty. Bernardino, the accused Dr. Francisco accompanied by Dr. Crisologo Golla who was a Committee member, and the accused, Atty. Bernardino went on December 26, 1965 to Tanay, Rizal the hometown of Mrs. Lourdes Cruz; that they interviewed the spouses Romulo Cruz and Lourdes Cruz regarding the operation performed on Mrs. Cruz on December 13, 1965; that in that interview the two accused sought the facts regarding the case pursuant to the Ethics Committee decision to conduct the fact finding investigation; and that after the interview with the Cruz spouses Dr. Golla and the accused Dr. Francisco went to Dr. Floreza, in coming president of the Rizal Medical Society on December 27, 1965, to take up the matter with him but they were advised to take it up with the Eastern District of Rizal Medical Society, which they did.

On the basis of the foregoing, the Court of Appeals concluded that while it is true that the statements were made on the occasion of the so-called fact finding interview pursuant to the Ethics Committee decision, the accused went out of bounds by imputing to the complainant acts which are not only derogatory but constitute a crime that can be prosecuted de oficio. It went on to rule however that the defamation committed by the accused cannot be considered as grave under the circumstances, and the worst that was said of the complainant was that he should not have performed the operation, and that he could be prosecuted for murder through reckless imprudence.

Not satisfied with the decision of the Court of Appeals, the present case was instituted. While the case was pending, Atty. Harry Bernardino one of the petitioners herein died, hence in the resolution of April 10, 1979 the case was dismissed insofar as he is concerned.

Petitioners' brief, prepared by their counsel with notable zeal raises several questions. In synthesis, they are:

1. Whether or not the crime of simple slander found by the Court of Appeals to be the offense committed by the petitioners has prescribed;

2. Whether or not the alleged defamatory remarks of petitioners may be considered libelous;

3. Whether or not there was conspiracy;

4. Whether or not the failure to allege in the information that petitioners acted with "malice" is fatal; and

5. Whether or not the Court erred in giving credence to the testimony of the witnesses for the prosecution.

As the case against the late Harry Bernardino has already been dismissed, We shall discuss only those matters as may be pertinent to petitioner Francisco.

Francisco argues that since the Court of Appeals had found that the offense committed was the lesser offense of simple slander, which prescribed in two months under Article 90 of the Revised Penal Code, the said court should have dismissed the case, and sustained the acquittal of the accused on the ground that said crime had already prescribed. He pointed out the alleged defamatory remarks were committed on December 26, 1965, and the information charging the accused of the greater offense of grave oral defamation was filed with the court more than four (4) months later on May 3, 1966.

Disputing the foregoing, the Solicitor General contends that for the purpose of determining the proper prescriptive period, what should be considered is the nature of the offense charged in the information which is grave oral defamation, not the crime committed by the accused, as said crime was found by the Court to constitute only simple slander. Hence, the period of prescription here should be six (6) months.

Moreover, according to the Solicitor General, the complaint was filed by the offended party before the Fiscal's office on February 3, 1966 or only thirty-nine (39) days after the incident in question which is still within the prescriptive period. He cited the case of People v. Olarte 1 which overruled the case of People v. del Rosario 2 and held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation should, and does, interrupt the period of prescription of criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. It makes no difference whether the case was filed in the Fiscal's Office and not in the Municipal Court as in the Olarte case, since Article 91 of the Revised Penal Code does not require that the complaint be one filed in court in order to toll the running of the period.

Where an accused has been found to have committed a lesser offense includible within the offense charged, he cannot be convicted of the lesser offense, if it has already prescribed. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. The principle has the support of overwhelming authorities in American jurisprudence:

The general rule, as stated in 22 CJS, Criminal Law, sec. 225b, is "as a general rule, one indicted for an offense not barred by limitation, but convicted of a lesser included offense which is so barred, is entitled to discharge", and in 15 Am. Jur., Criminal Law, Sec. 343; "It frequently happens that a change of felony includes an offense of a lower grade with a different period of limitation so that, while the felony is not barred, the statute has ran as to the lesser offense. In this situation, the rule is that if the statute has not run against the felony, while the lesser offense is barred. the bar cannot be evaded by the defendant for the felony and convicting him of the lesser offense." 3

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

Interpreting the foregoing provision, this Court in People vs. Tayco 4 held that the complaint or information referred to in Article 91 is that which is filed in the proper court and not the denuncia or accusation lodged by the offended party in the Fiscal's Office. This is so, according to the court, because under this rule it is so provided that the period shall commence to run again when the proceedings initiated by the filing of the complaint or information terminate without the accused being convicted or acquitted, adding that the proceedings in the Office of the Fiscal cannot end there in the acquittal or conviction of the accused.

The basis of the doctrine in the Tayco case, however, was disregarded by this Court in the Olarte case, cited by the Solicitor General. It should be recalled that before the Olarte case there was diversity of precedents on the issue of prescription. One view declares that the filing of the complaint with the justice of the (or municipal judge) does in the course of prescriptive term. This view is found in People v. Olarte, L-13027, June 30, 1960 and cases cited therein; People vs. Uba, L-13106, October 16, 1959; People v. Aquino, 68 Phil. 588, 590. The other pronouncement is that to produce interruption, the complainant or information must have been filed in the proper court that has jurisdiction to try the case on its merits, found in the cases of People v. del Rosario, L15140, December 29, 1960; People v. Coquia, L- 15456, June 29, 1963.

The Olarte case set at rest the conflict views, and enunciated the doctrine aforecited by the Solicitor General. The reasons for the doctrine which We find applicable to the case at bar reads:

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the

proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription "shall commence to run again when such p terminate without the accused being convicted or acquitted", thereby indicating that the court in which the complaint or information is filed must have power to acquit or convict the accused. Precisely, the trial on the merits usually terminates in conviction or acquittal not otherwise. But it is in the court conducting a preliminary investigation where the proceedings may terminate without conviction or acquittal if the court should discharge the accused because no prima facie case has been shown.

As is a well-known fact, like the proceedings in the court conducting a p investigation, a proceeding in the Fiscal's Office may terminate without conviction or acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons logically call with equal force, for the express overruling also of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or denuncia by the offended party with the City Fiscal's Office which is required by law to conduct the preliminary investigation does not interrupt the period of prescription. In chartered cities, criminal prosecution is generally initiated by the filing of the complaint or denuncia with the city fiscal for preliminary investigation. In the case of provincial fiscals, besides being empowered like municipal judges to conduct preliminary investigations, they may even reverse actions of municipal judges with respect to charges triable by Courts of First Instance. ... 5

Clearly, therefore, the firing of the denuncia or complaint for intriguing against honor by the offended party, later changed by the Fiscal to grave oral defamation, even if it were in the Fiscal's Office, 39 days after the alleged defamatory remarks were committed (or discovered) by the accused interrupts the period of prescription.

Nevertheless, petitioner Francisco cannot be held liable, for his statements

Your wife would not have been operated, If I were the doctor, all that I should have done was to do a curretage raspa on her.

xxx xxx xxx

The operation was unusual.

are clearly not libelous per se. Complainant Angeles had admitted that he committed a mistake in the management of the case of Mrs. Cruz. The remarks made by Francisco were but a harmless expression of his opinion on what should have been done in treating her, if he were the doctor managing her. His statements were nothing more than a comment that complainant committed a mistake in the diagnosis and management of the patient. An impartial observer would readily note that such remarks do not degrade the competency of a doctor, for the latter, because of human limitations cannot be expected to be accurate at all times in the diagnosis of patients. As noted in the case of Blende vs. Hearst Publications, 93 P 2d. 733, a "physician is only required to possess the ordinary knowledge and skill of his profession, and is not liable for mistakes if he uses the methods recognized and approved by those reasonably skilled in the profession. Clearly, a criticism in a physician's wrong management of the case, such as that of Francisco cannot be considered libelous. In the same American case, it was held:

It is clear that to charge a physician merely with the mismanagement of the making of a wrong diagnosis in a particular case is not of itself actionable. Such a charge implies nothing more, at most, than ignorance or unskillfulness in that case, and does not materially affect his reputation as respects his general competency to practice his profession.

To charge a professional man with negligence or unskillfulness in the management or treatment of an individual case is not more than to impute to him the mistakes and errors incident to fallible human nature. The most eminent and skillfull physician or

surgeon may make mistake on the symptoms of a particular case without detracting from his general professional skill or learning. To say of him, therefore, that he was mistaken in that case would not be calculated to impair the confidence of the community in his general professional competency.

We cannot see our way clear on how Francisco's questioned statements could be branded as libelous. To stigmatize them as libelous would be a dangerous precedent whereby a mere criticism on the actuation of another will generate criminal liability for slander. His alleged defamatory remarks may be likened to a criticism of a lawyer's or Judge's erroneous handling of the case.

It may be mentioned here that in the brief of the Solicitor General, the statements quoted and stigmatized as defamatory are those only of accused Bernardino. 6 That latter's statements are what the Solicitor General considered as "strong words that are evidently serious and damaging." Nothing has been said by the Solicitor General regarding the statements uttered by Francisco. Nonetheless, the Solicitor General would like to hold Francisco liable by the utterances of Bernardino on the ground of conspiracy. Assuming that Bernardino's statement is libelous, Francisco cannot be held liable for the same. Neither the lower court nor the Court of Appeals found that they conspired with each other to commit the alleged crane. This is so because no evidence was offered to show that there was prior consultation on what each would say. The fact alone that they were together when those words were uttered is not proof that there was conspiracy to utter those words. Clearly, each accused spoke spontaneously and individually.

Conspiracy being of a very far-reaching effect, the degree of proof required for establishing it must be the same as that required to support a finding of guilt for the crime itself 7 which must be upon proof beyond reasonable doubt. 8

The finding of the Court of Appeals that the "statements were made on the occasion of the so-called fact-finding interview pursuant to the Ethics Committee decision" is obviously incompatible with the notion that petitioners had gone to the residence of the Cruz pursuant to a conspiracy to defame or slander Dr. Angeles. The legitimate purpose of going to Tanay, Rizal, having been accepted as a fact by the Court of Appeals, it is

incongruous to allege, as respondents now do, that Atty. Bernardino and Dr. Francisco had conspired to slander Dr. Angeles.

From what has been said, there is no further need to discuss the other issues raised in this case.

WHEREFORE, in view of the foregoing, accused Emiliano Francisco is hereby acquitted, with cost de oficio.

SO ORDERED.

Makasiar, (Chairman), Concepcion Jr., Guerrero, Abad Santos and Escolin, JJ., concur.

Aquino, J., concur in the result.

G.R. No. L-56443 December 19, 1981

PEOPLE OF THE PHILIPPINES and City Fiscal NESTORIO M. PLACER and Assistant City Fiscal ERNESTO M. BROCOY of Butuan City, petitioners, vs. CITY JUDGE NAPOLEON D. VILLANUEVA of Butuan City and ROGELIM YEE, respondents.

AQUINO, J.:

The city fiscal and an assistant fiscal of Butuan City filed in the city court on September 15, 1980 an information charging Rogelim Yee with serious slander by deed. It was alleged therein that in the afternoon of July 14, 1980 Yee with the deliberate intent of bringing one Ofelia V. Torralba, a fourth year student, into discredit, disrepute and contempt, willfully attacked and assaulted her and inflicted a contusion in her left cheek in the presence of her visitors, teachers and classmates to her great embarrassment and inconvenience (Criminal Case No. 11500).

The fiscal certified that he conducted the corresponding preliminary investigation and that there was probable cause or reasonable ground to believe that serious slander by deed was committed by Yee. He recommended bail in the amount of P600.

The affidavits of the complainant and her witnesses were attached to the information. Respondent judge, instead of issuing a warrant of arrest, as has been the time- honored practice, conducted an ex parte preliminary examination by scanning the record to determine once more the existence of probable cause.

After a perusal of the affidavits, he concluded that the offense committed was either slight slander by deed committed in the heat of anger or slight physical injuries, a light felony. Because the information was filed sixty-four days after the offense was committed, respondent judge dismissed the case sua sponte on the ground of prescription. The dismissal order was issued on September 17, 1980 or two days after the filing of the information.

Respondent judge denied the fiscal's motion for reconsideration. The fiscal received a copy of the order of denial on January 6, 1981. The prosecution failed to appeal the order of dismissal to this Court, a procedure sanctioned by Republic Act No. 5440 in relation to section 5 of Republic Act No. 5967, a 1969 law which expanded the jurisdiction of city courts and which up to this time is not known to some lawyers and judges.

Long after the issuance of the order of dismissal, or on March 17, 1981, the city fiscal and his assistant filed in this Court the instant petition for certiorari and mandamus

wherein they assailed the order of dismissal on the ground of grave abuse of discretion amounting to lack of jurisdiction.

We hold that the fiscals' petition cannot be entertained because, as expressly indicated in sections 1 and 2, Rule 65 of the Rules of Court, generally, certiorari and mandamus are not proper when ordinary appeal is available as an adequate remedy. As a rule, certiorari is not a substitute for an appeal (3 Moran's Comments on the Rules of Court 176).

Where an appeal would have been an adequate remedy but it was lost through petitioner's inexcusable negligence, certiorari is not in order. Time and again, this Court discussed petitions for certiorari to annul decisions or final orders which could have, but were not, appealed. They were dismissed because certiorari cannot take the place of an appeal (3 Moran's Comments on the Rules of Court 178, citing Profeta vs. Gutierrez David, 71 Phil. 582; Republic vs. Maglanoc, 123 Phil. 508).

However, in the exercise of our supervisory jurisdiction and for the guidance of the parties in this case and in similar cases in the future involving the issuance of the warrant of arrest after the information is filed in court, we win resolve the issues raised herein (See Alfonso vs. Yatco, 80 Phil. 407).

To justify the dismissal order, respondent judge alleged that his practice has been that after an information is filed by the fiscal, he would conduct a preliminary examination to determine probable cause. That examination would be ex parte because the fiscal usually did not file with the information a motion for hearing. After such preliminary examination, he either motu proprio dismissed the information for lack of probable cause or he gave it due course (p. 54, Rollo).

In this case, he dismissed the information since he "was not satisfied of the existence of a probable cause because the crime committed by the accused had already been extinguished by prescription" and "it was his legal duty not only to refuse to issue the warrant of arrest but to discuss the case" (p. 55, Rollo).

Respondent judge's position is that the fiscal's preliminary investigation under Presidential Decree No. 911 does not preclude him from exercising his "legal duty" "to exercise his judicial power of determining before issuing the corresponding warrant of arrest" the existence of probable cause (p. 59, Rollo).

Undoubtedly, respondent judge, before issuing the warrant of arrest, is clothed with the prerogative of ascertaining probable cause. That power is granted to him by section 3, Article IV (Bill of Rights) of the Constitution which provides that "no 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".

The power is also granted to any judge authorized to conduct preliminary investigations and respondent judge is given that authority by section 6, Rule 112 of the Rules of Court and by the charter of Butuan City, Republic Act No. 523.

But that power does not include the authority to dismiss outright the information if the judge believes that there is no probable cause. The judge should require the fiscal to present additional evidence to show probable cause. If the fiscal refuses to do so, then the case may be dismissed for "lack of prosecution" (Amarga vs. Abbas, 98 Phil. 739, 743).

The fiscal is also authorized to determine probable cause not only by the Bill of Rights but also by the law or rule empowering him to conduct preliminary investigations (Secs. 2 and 14, Rule 112, Rules of Court: Sec. 1687 of the Revised Administrative Code as amended by Republic Acts Nos. 732 and 1799 and Republic Act No. 5180 as amended by Presidential Decrees Nos. 77 and 911).

The fiscal is a "responsible officer authorized by law" within the meaning of section 3 of the Bill of Rights. His determination of probable cause is a sufficient justification for the issuance of a warrant of arrest.

Thus, it was held that "in a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal's should normally prevail" (People vs. Pineda, 65 O.G. 2595, 20 SCRA 748, 756).

In fact, the settled practice is that after the fiscal has conducted a preliminary investigation and filed an information, the Court of First Instance issues the warrant of arrest.

Generally, the Court of First Instance does not conduct any preliminary examination to determine probable cause or to confirm the fiscal's determination thereof for that would be a time-wasting ritual or a duplicitous proceeding.

The time-saving practice has been for the judge (municipal, city or Court of First Instance) to rely on the preliminary investigation conducted by the fiscal as the basis for issuing the warrant of arrest. That practice is supported by the presumption that the fiscal performed his duties regularly and competently (Edillon vs. Narvios, Administrative Case No. 1753, August 21, 1980, 99 SCRA 174) And that practice existed even under the old Constitution when section 1(3) of the Bill of Rights did not contain the terms "warrant of arrest" and "such other responsible officer as may be authorized by law".

We hold that, as a rule, a trial judge should not hold another preliminary examination to determine probable cause in case the fiscal has filed an information and certified that he has conducted the requisite preliminary investigation. That certification means that there is a prima facie case against the accused and that the issuance of a warrant of arrest is justified.

Ordinarily, the fiscal's certification should be a sufficient compliance with the constitutional requirement of probable cause as a sine qua non for the issuance of a warrant of arrest. Thus, it was held that the filing of an information in the city court by the city fiscal implies that the fiscal had conducted the requisite preliminary investigation so that no further investigation would have to be made by the city court (Astero vs. Chief

of Police of Dagupan City, L-26741, July 31, 1969, 28 SCRA 1078, 1084; People vs. Villaraza, L-46228, January 17, 1978, 81 SCRA 95, 98).

This case illustrates the mischief or prejudice arising from the act of the city judge in duplicating the preliminary examination held by the fiscal. Here, respondent judge on the pretext of determining probable cause arrived at the conclusion (before arraignment) that the criminal liability of the accused was extinguished by prescription.

What respondent judge actually did was not to verify whether the fiscal's determination of probable cause was correct but to find out whether the criminal liability of the accused was already extinguished, which is a different matter. Extinction of criminal liability presupposes not merely probable cause but the guilt of the accused.

In the instant case, the investigating fiscal gave accused Yee a chance to be heard at the preliminary investigation. He did not submit any counter-affidavit. He was furnished by the fiscal with a copy of the latter's resolution wherein he found that there existed a prima facie case for grave slander by deed against the accused. Yee did not controvert that resolution.

The case against him was terminated because of the precipitate or premature order of dismissal issued by respondent judge on his own volition on the basis of his independent assessment of Yee's criminal liability. As already noted, that order was rendered two days after the filing of the information.

In People vs. Ocaya, L-47448, May 17, 1978, 83 SCRA 218, the fiscal, after holding a preliminary investigation, charged the three accused with lesiones graves in the Court of First Instance. Instead of issuing a warrant of arrest, the district judge dismissed the case because in his opinion the crime committed was only lesiones leves since it was stated in the medical certificate that the victim's injuries would require medical attendance from seven to ten days.

The certification contradicted the victim's affidavit that she was incapacitated from her customary labor for more than thirty days and the allegation in the information that she

suffered a disfigurement in the face. The trial court's order of dismissal was assailed in this Court by means of a petition for certiorari and mandamus.

It was held that the trial court prematurely dismiss the case. The dismissal order was set aside and the case was assigned to another trial judge who was directed to issue a warrant of arrest and thereafter to proceed with the arraignment and trial.

In the Ocaya case, the trial judge did not advance the contention put forward in this case by respondent city judge that the court where the information is filed should hold another preliminary examination before issuing the warrant of arrest.

Although in the instant case we find that the city court erred in dismissing the case on its own motion on the controversial ground of prescription, nevertheless, the petition has to be dismissed because no appeal was seasonably made from the dismissal order and certiorari and mandamus are not substitutes for an appeal that had lapsed.

WHEREFORE, the petition is dismissed. No costs.

SO ORDERED.

Concepcion Jr., and De Castro, JJ., concur.

Abad Santos, J., concur in the result.

Separate Opinions

BARREDO, J., concurring:

I concur in the judgment of dismissal and in the holding that certiorari, even in instances of lack of jurisdiction, or grave abuse of discretion, cannot as a rule be a substitute for appeal. I reserve my opinion on the other consideration set forth in the main opinion.

Separate Opinions

BARREDO, J., concurring:

I concur in the judgment of dismissal and in the holding that certiorari, even in instances of lack of jurisdiction, or grave abuse of discretion, cannot as a rule be a substitute for appeal. I reserve my opinion on the other consideration set forth in the main opinion.

G.R. No. L-32557 October 23, 1981

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO C. REYES as Presiding Judge of the Circuit Criminal Court, Fourth Judicial District, and FRANCISCO ESTRELLA, respondents.

CONCEPCION, JR., J.:

Petitioner, by way of certiorari, with prayer for preliminary injunction, questions as alleged grave abuse of discretion, the order 1 dated July 10, 1970, of the respondent Judge, (Hon. Alfredo C. Reyes of the Circuit Criminal Court, 4th Judicial District, Cabanatuan City) in Criminal Case No. CCC-IV-170-NE, entitled "The People of the Philippines versus Francisco Estrella," which denied petitioner's verbal motion for the amendment of the information in said case, by deleting the year "1969" as alleged therein, and in lieu thereof to put the year "1964 ". Respondent Judge anchored his denial of the verbal motion on, to wit:

After a careful study of both memoranda in support and against the said motion, this Court finds and so hold that the amendment to the information cannot be made without prejudice to the substantial rights of the accused in the above-entitled case.

WHEREFORE, the motion to amend the information is hereby denied in accordance with the decision of the Supreme Court in the case of People vs. Placido Opemia et al., 98 Phil. 698. ...

SO ORDERED. 2

Petitioner also assails the order of respondent Court, dated September 14, 1970, 3 denying its motion for reconsideration 4 of the July 10, 1970 order.

This court issued a preliminary injunction on September 24, 1970. 5

Pertinent facts of record are:

Sometime in October, an information for qualified theft was filed against private respondent Francisco Estrella and three others, as Criminal Case No. 6799, in the Municipal Court of San Jose, Nueva Ecija, pertinent portion as follows:

The undersigned Asst. Provincial Fiscal accuses Narciso Mananing, Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That in the month of August, 1964, in the municipality of San Jose, province of Nueva Ecija, Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being the driver of complainant Maria Ignacio- Francisco, Florentino Alcantara, repair shop owner where the truck hereinafter described was found and recovered, Francisco Estrella, a Philippine Constabulary soldier stationed at Bulacan, and Melecio Guevarra, all conspiring together, without the knowledge and consent of the owner thereof, take, steal and carry away one (1) Bedford truck with Chassis No. 153559, with Motor No. 2/54/5/6, with Plate No. T-35049, Series of 1964, to the damage and prejudice of the owner, Maria Ignacio-Francisco in the amount of P23,000.00, value of said vehicle. 6

On November 15, 1969, the Acting City Fiscal of San Jose City, (converted into city) Nueva Ecija, filed an information (Crim. Case No. CCC-IV-170) with the respondent Court, charging private respondent Francisco Estrella and three others, with qualified theft, as follows:

The undersigned Acting City Fiscal accuses Narciso Mananing Florentino Alcantara, Francisco Estrella, and Melecio Guevarra of the crime of Qualified Theft, committed as follows:

That on or about the month of August, 1969 in the City of San Jose, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused Narciso Mananing being then the driver of Bedford truck bearing Plate No. T35049, Series of 1964, with Chassis No. 153559, and with a Motor No. 2/54/5/6 owned by Maria Ignacio-Francisco, conspiring and confederating together with his co-accused

namely: Florentino Alcantara, Francisco Estrella, and Melecio Guevarra, and with intent to gain, with grave abuse of confidence, did then and there wilfully, unlawfully and feloniously take, steal and carry away the said Bedford truck valued at Twenty Three Thousand Pesos ( P23,000.00) Philippine Currency and dismantled the same without the consent of the said owner and to her damage and prejudice of the said sum of P23,000.00. 7

On January 28, 1970, private respondent Francisco Estrella was arraigned, and he pleaded not guilty During the arraignment, respondent-Judge required his clerk to read the information to Francisco Estrella. The court interpreter was directed to translate the information into Tagalog for the benefit of the accused. The prosecution, although represented, made no move to amend the information, if indeed it was really erroneous. From January 28, 1970, up to May 21, 1970, the latter date being the scheduled trial of the case, the prosecution never moved to amend the information. 8

On May 21, 1970 when the prosecution was scheduled to present its evidence, it verbally moved that it be allowed to amend the information 9 so as to change the date of the commission of the offense from "August 1969" to "August 1964." 10 Private respondent Francisco Estrella, having come to the trial court ready to defend himself from an offense allegedly committed in "August 1969", vigorously objected to the verbal motion. 11

Respondent Judge withheld his ruling on the prosecution's motion to amend, and instead, required the prosecution to present its first witness, to determine whether the sought amendment in the information would constitute a change of substance affecting the rights of the accused or merely of form. 12

Florentino Alcantara, originally a co-accused but discharged as a prosecution witness, testified that the offense was committed in 1964. The defense refused to cross-examine witness Alcantara, asked respondent Court to strike off the testimony of Alcantara because it referred to an offense not mentioned in the information, and asked for a ruling by respondent Court on the prosecution's verbal motion to amend the information. 13

Respondent Judge required the prosecution and the defense to submit memoranda. The contested order of July 22, 1970, denying the prosecution's verbal motion to amend information on the ground that said amendment would prejudice the substantial rights of the accused was issued by respondent Court. 14

Petitioner's motion for reconsideration of the aforementioned contested order alleged that time was not material ingredient of the offense of qualified theft and claimed that the case of Placido Opemia, et al., 98 Phil. 698, relied upon by the trial court for its denial of the motion to amend information, was not applicable to the case. 15

The respondent Court, denied the petitioner's motion for reconsideration, in its order of September 14, 1970, 16 stating that the prosecution's honest mistake in the information filed cannot prevail over the substantial rights of the accused based on constitutional provisions. Hence this petition.

The principal issue before this Court is whether or not the respondent Court abused its discretion when it refused an amendment to the information filed in Criminal Case No. CCC-IV 170-NE, to change the date of the alleged commission of the offense from "August 1969" to "August 1964", on the ground it would constitute an impairment of the substantial rights of the accused as guaranteed by the Constitution.

Under Section 13, Rule 110, Rules of Court, the complaint or information in a criminal case where the accused had been arraigned and had pleaded, as in this case, may be amended only as to all matters of form when the same can be done without prejudice to the substantial rights of the accused.

As to whether or not a sought for amendment of an information to change the time of the alleged commission of crime from 1969 to 1964 (period of five years) would prejudice the substantial rights of the accused after his arraignment and plea, this Court ruled in the case of People vs. Placido Opemia, et al., 98 Phil. 698, that:

In the case at bar, the proof shows that the carabao was lost on July 25, 1947, and not on June 18, 1952, as alleged in the information. The period of almost five years

between 1947 and 1952 covers such a long stretch of time that one cannot help but be led to believe that another theft different from that committed by the co-defendants in 1952 was also perpetrated by them in 1947. Under this impression the accused, who came to Court prepared to face a charge of theft of large cattle allegedly committed by them in 1952, were certainly caught by sudden surprise upon being confronted by evidence tending to prove a similar offense committed in 1947. The variance is certainly unfair to them, for it violates their constitutional rights to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. Moreover, they cannot be convicted of an offense of which they were not charged.

In the present case, private respondent Francisco Estrella was investigated for an offense allegedly committed in August of 1964. Then, he was charged for an offense allegedly committed in August of 1969. He pleaded not guilty to the latter charge. Now petitioner desires to put him on trial for the alleged 1964 offense. This cannot legally be done.

The petitioner's argument that the time or date of the commission of the offense is not a material ingredient of the crime of qualified theft cannot be given much weight in this case because the disparity of time between the years 1964 and 1969 is so great as to defy approximation in the commission of one and the same offense. While it has been held that except when time is a material ingredient of an offense, the precise time of commission need not be stated in the information, this Court stated that this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. 17 The prosecution is given the chance to allege an approximation of time of the commission of the offense and the precise date need not be stated but it does not mean that it can prove any date remote or far removed from the given approximate date so as to surprise and prejudice the accused.

What happened in this case is that the petitioner committed a mistake in the placing of the date of the alleged crime in the information filed. During the arraignment and plea of private respondent Francisco Estrella on January 28, 1970, the prosecution had all the chances to realize and rectify its mistake. It did not do so. The trial of the accused was set for May 21, 1970. Petitioner therefore, had more than three months to take steps. Again, it failed to do so. Finally, petitioner verbally moved to amend the information only

at the start of the trial. To permit petitioner to do so would surprise the accused and prejudice his substantial rights.

WHEREFORE, the questioned orders dated July 10, 1970 and September 14, 1970, by respondent Judge are hereby AFFIRMED, the preliminary injunction issued on September 24, 1970 dissolved, and this petition DISMISSED for lack of merit. Without costs.

SO ORDERED.

Fernandez,* Abad Santos and De Castro, JJ., concur.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

Separate Opinions

BARREDO (Chairman), J., concurring:

I concur, but I believe this decision cannot bar another prosecution of private respondent under another information charging theft committed in 1964.

G.R. No. L-42925 January 31, 1977

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. RICARDO D. GALANO, Presiding Judge, Court of First Instance of Manila, Branch XIII, and GREGORIO SANTOS, respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Hugo Nathanael P. de Pano, Jr. and Trial Attorney Blesila O. Quintillan for petitioner.

Juanito M. Romano for respondent.

TEEHANKEE, J:

The Court sets aside the respondent judge's orders dismissing the information for estafa against respondent accused, since the offense charged clearly has not prescribed. The complaint filed with the Batangas court which expressly alleged commission of the offense within the municipality and which pended for twelve years (the accused having jumped bail and evaded rearrest for nine years) and which was eventually dismissed by said court for lack of territorial jurisdiction as a result of the proof adduced before it properly interrupted and tolled the prescription period. Respondent judge failed, in ruling otherwise, to apply the settled rule that the jurisdiction of a court is determined in criminal cases by the allegations of the complaint or information and not by the result of proof. The case is ordered remanded for determination with the utmost dispatch, since this case has already been pending for fifteen years owing to respondent accused's deplorable tactics. The undisputed factual background of the case is succinctly stated by then Acting Solicitor General, now Associate Justice of the Court of Appeals, Hugo E. Gutierrez, Jr., thus:

1. On October 2,1962, a criminal complaint for estafa was filed in the municipal court of Batangas, Batangas (now City Court of Batangas City) against the accused-respondent Gregorio Santos by complainant, Juanito Limbo, ...

2. Gregorio Santos was arrested to answer for the above charge, and upon his arrest, posted a bail bond for his provisional liberty. The accused was thereafter arraigned and he pleaded not guilty to the charge. Then, the case was heard on its merits. However, on September 16, 1964, the accused jumped bail. As a result, his bail bond was forfeited and the case against him archived by the municipal court of Batangas, Batangas.

3. It was not until September 14, 1973, about nine years later, when the accused was re-arrested, and the trial of the said case resumed.

4. On October 21, 1974, while the said case was pending trial, private respondent Gregorio Santos filed a motion to dismiss the case on the ground that the Batangas court did not have territorial jurisdiction over the case, the evidence showing that the crime was committed in Manila.

5. Finding the motion meritorious, the Batangas City Court issued an order dated November 5, 1974, dismissing the case against Gregorio Santos for lack of territorial jurisdiction over the crime charged ...

6. On November 14, 1974, the complainant Juanito B. Limbo refiled the same case against Gregorio Santos in the Fiscal's Office of Manila. A preliminary investigation was conducted. On July 29, 1975, the corresponding information was filed with the Court of First Instance of Manila, docketed as Criminal Case No. 22397, ...

7. On November 12, 1975 the accused Gregorio Santos filed a motion to dismiss criminal Case No. 22397 on the grounds of prescription and double jeopardy.

8. The prosecuting fiscal filed his opposition to said motion on December 2, 1975, to which the accused filed a rejoinder on December 5, 1975.

9. On December 8, 1975, the Court of First Instance of Manila, Branch XIII, presided over by the Honorable Ricardo D. Galano, issued an order dismissing Criminal Case No. 22397 on the ground that the offense charged had already prescribed, ... The prosecution moved for the reconsideration of said order but this was denied by the lower court by order of January 7, 1976. ...

10. From the said Order of dismissal, the City Fiscal of Manila offenses provides: interposed an appeal by certiorari to this Honorable Court on January 24, 1976. On March 3, 1976, this honorable Court issued the Resolution of March 3, 1976 requiring the Solicitor General to file the petition for review within fifteen days from receipt thereof ...

The People avers in the petition 1 that respondent judge "dismissing criminal Case No. 22397 despite the provisions of Article l of the Revised Penal Code, which clearly indicate that the offense charged has not prescribed" and "in not considering the prevailing jurisprudence indicating non-prescription of the offense charged, and in holding that the case of People v. Olarte, 19 SCRA 494, does not apply to the case at bar."

The petition is patently meritorious and must be granted.

I. The offense of estafa for which respondent accused stands charged clearly has not prescribed.

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

The offense was committed on or about September 16, 1962 when respondent failed to account for and instead misappropriated to his own use the sum of P8,704.00 representing the net proceeds (minus his commission) of 272 booklets of sweepstakes tickets that had been entrusted to him be the complainant, who promptly filed on October 2, 1962 plainly within the ten-year prescriptive period the criminal complaint against respondent accused in the Municipal Court of Batangas, Batangas. The prescriptive period was thereupon interrupted.

After his plea of not guilty and during the trial, respondent accused jumped bail in September, 1964 and evaded rearrest for nine years until September, 1973 and the trial was resumed. When the Batangas court in its Order of November 5, 1974 upon respondent's motion dismissed the complaint "for lack of jurisdiction" since the evidence (of both prosecution and accused) showed that all elements of the crime were committed in Manila (and not in Batangas), 2 the proceedings therein terminated without conviction or acquittal of respondent accused and it was only then that the prescriptive period (which was interrupted during the pendency of the case in the Batangas court) commenced to run again.

When the City Fiscal of Manila upon complainant's instance refiled on July 29, 1975 the same case against respondent accused in the Manila court of first instance, (after

having conducted a preliminary investigation), it is clear that not even a year of the tenyear prescriptive period had been consumed.

Respondent accused intent on thwarting his prosecution filed anew a motion to dismiss the information on grounds of prescription and double jeopardy. There is manifestly no jeopardy, because he was not acquitted by the Batangas court which on the basis of the evidence could neither convict him because it was thereby shown to have no jurisdiction over the offense.

But respondent judge gravely erred in sustaining the ground of prescription, ruling that there was no interruption of the prescriptive period during the pendency of the case in the Batangas court because "(T)he proceedings contemplated by Article 91 are proceedings which are valid and before a competent court. If they are void from the beginning because the court has no territorial jurisdiction of the offense charged, it is as if no proceedings were held thereat. If this is so, then the warrant or order of arrest as well as the bail given by the accused for his provisional liberty is of no effect. Inevitably, there can be no jumping bail to speak of and there are no proceedings to be interrupted."

This is plain error for "Settled is the rule ... that the jurisdiction of a court is determined in criminal cases by the allegations of the complaint or information and not by the result of proof." 4

It follows clearly that the Batangas court was vested with lawful jurisdiction over the criminal complaint filed with it which expressly alleged that the offense was committed "in the Municipality of Batangas, province of Batangas" and that the proceedings therein were valid and before a competent court, (including the arrest warrant, the grant of bail and forfeiture thereof upon the accused's jumping of bail), until the same court issued its November. 1974 order dismissing the Case and declaring itself without territorial jurisdiction on the basis of the evidence presented to it by both prosecution and the accused.

It follows just as clearly that the prescriptive period was interrupted and tolled during the 12-year pendency of the proceedings before the Batangas Court (for nine years of which respondent accused had jumped bail and evaded re-arrest).

II. Respondent judge gravely erred in dismissing the information on the ground of prescription and disregarding the controlling case of People vs. Olarte. 5

In the second People vs. Olarte case, 6 the Court clarified precisely for the guidance of bench and bar that the true doctrine is that the filing of the compliant in the municipal court, even if it be merely for purposes of preliminary investigation (where the offense charged is beyond its jurisdiction to try the case on the merits) should, and does interrupt the period of prescription, as follows:

Analysis of the precedents on the issue of prescription discloses that there are two lines of decisions following differing criteria in determining whether prescription of crimes has been interrupted. One line of precedents holds that the filing of the complaint with the justice of the peace (or municipal judge) does interrupt the course of the prescriptive term: (People vs. Olarte, L-131027, June 30, 1960 and cases cited therein; People vs. Uba, L-13106, October 16, 1959; People vs. Aquino, 68 Phil. 588, 590.) Another series of decisions declares that to produce interruption the complaint or information must have been filed in the proper court that has jurisdiction to try the case on its merits: People vs. Del Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456, June 29, 1963.

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has reexamined the question and after mature consideration has arrived at the conclusion that the true doctrine is, and should be, the one established by the decision holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription 'shall be interrupted by the filing of the complaint or information' without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second,

even if the court where the complaint or information is filed may only proceed to investigate the case, its actuation already represents the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. 7

Respondent judge in his dismissal order correctly cited the rationale for statutory prescriptions, inter alia, that "the delay in instituting the proceedings not only causes expenses to the State, but exposes public justice to peril, for it weakens oral evidence due to the lapse of the natural period of duration of memory if not to anything, else. And it is the policy of the law that prosecutions should be prompt and that statutes enforcing that promptitude should be maintained, they being not merely acts of grace, but checks imposed by the State upon its subalterns, to exact vigilant activity and to secure for criminal trials the best evidence that can be obtained. 8

But respondent judge fell into grave error in not applying the controlling case of Olarte on his misconception that there had been no valid complaint filed with a competent court in Batangas contrary to what has already been held hereinabove that the express allegations of the complaint that the offense was committed in Batangas vested the Batangas court with lawful jurisdiction until its dismissal order twelve years later for lack of jurisdiction as a result of the proof presented before it during the tiral (and in not taking into account that the delay was not at all due to the State but to respondent accused himself who jumped bail and escaped tile law for nine [9] years and who apparently has made no effort all this time to make good the amount the to complainant or any part thereof).

Since the record with transcript of the testimonial evidence in the Batangas court is complete (and shows that the trial was continued on August 2, 1974 to September 10, 1974 while respondent accused was testifying on the witness stand but that he instead filed his motion to dismiss of October 14, 1974 which granted by the Batangas court for lack of territorial jurisdiction) and this case had already been pending for almost 15 years, all the evidence already taken by the Batangas court as recorded in the minutes and transcript shall be deemed reproduced upon remand of the case to the Manila court which is hereby ordered to receive only the remaining evidence of the respondent accused and such rebuttal evidence as the parties may have and thereafter resolve the case with the utmost dispatch.

ACCORDINGLY, respondent judge's dismissal orders of December 8, 1975 and January 7, 1976 are hereby set aside, and the case is remanded to respondent judge or whoever presides Branch XIII of the Manila court of first instance for continuation of the trial (with reproduction of the evidence in the Batangas city court in Criminal Case No. 532 thereof, entitled "People vs. Gregorio Santos") in line with the directives in the preceding paragraph. Respondent judge or the judge presiding his court is further ordered to report to this Court the action taken hereon within a period of ninety (90) days from promulgation of this decision. In view of the many years that the criminal case has been pending, this decision is declared immediately executory upon promulgation.

SO ORDERED.

Makasiar, Muoz Palma, Concepcion Jr.* and Martin, JJ., concur.

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA, petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, respondents.

Honorio Makalintal, Jr. for petitioner.

Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail.

Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court:

SEC. 14. Deposit of money as bail. At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant.

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond.

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored.

Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on

provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified."

With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or nonappearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9

It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction.

2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him.

Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense. 13 A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion.

Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. 15

It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information. 16

It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment.

ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

PROSECUTION OF CIVIL ACTIONS

G.R. No. L-53064

September 25, 1980

FELIX LANUZO, plaintiff-appellee, vs. SY BON PING and SALVADOR MENDOZA, defendants-appellants.

MELENCIO-HERRERA, J.:

Appeal certified to Us by the Court of Appeals 1 as it involves pure legal questions.

On November 25, 1969, a Complaint for damages was instituted in the Court of First Instance of Camarines Sur (Civil Case No. 6847) by plaintiff Felix Lanuzo against Sy Bon Ping, the owner and operator of a freight truck bearing Plate No. T-57266, and his driver, Salvador Mendoza. As alleged therein, at about five o'clock in the afternoon of July 24, 1969, while Salvador Mendoza was driving the truck along the national highway in the Barrio of San Ramon, Nabua, Camarines Sur, and because of his reckless negligence, we rammed into the residential house and store of plaintiff. As a result, the house and store were completely razed to the ground causing damage to plaintiff in the total amount of P13,000.00. Plaintiff averred that by reason thereof he became destitute as he lost his means of livelihood from the store which used to give him a monthly income of P300.00.

The defendants moved to dismiss on the ground that another action, Criminal Case No. 4250 for Damage to Property through Reckless Imprudence, was pending in the Municipal Court of Nabua, Camarines Sur, between the same parties for the same cause. Plaintiff opposed the dismissal stressing that he had made an express reservation in the criminal case to institute a civil action for damages separate and distinct from the criminal suit.

The lower Court denied the Motion to Dismiss for lack of merit.

On August 13, 1970, the trial Court rendered a default judgment in plaintiff's favor, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered (a) ordering the defendants to pay jointly and severally the amount of P13,000.00 as damages, resulting to the loss of the store including the merchandise for sale therein, the residential house of mixed materials, furnitures, clothing and households fixtures; (b) ordering the said defendants to pay jointly and severally P300.00 monthly from July 24, 1969 which represents plaintiff's monthly income from his store until the whole amount of P13,000.00 is fully paid; and (c) for attorney's fees an amount equivalent to 20% of the total amount claimed by the plaintiff, plus the costs of this suit.

Defendants' "Motion for Reconsideration and/or New Trial and To Set Aside Order of Default" was denied.

Upon elevation by the defendants of the case to the Court of Appeals (CA-G.R. No. 48399-R) they urged that the civil action was prematurely instituted in view of Rule 111, section 3, providing in part that "after the criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the criminal action." Additionally, they contended that even assuming their liability, the lower Court nevertheless committed an error in holding them jointly and severally liable.

On February 20, 1980, the Court of Appeals certified the case to this instance on pure questions of law.

We start from the fundamental premise, clearly enunciated as early as the case of Barredo vs. Garcia, et al., 2 that:

A distinction exists between the civil liability arising from a crime and the responsibility for cuasi-delitos or culpa-extracontractual. The same negligent act causing damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code. Plaintiffs were free to choose which remedy to enforce.

Plaintiff's reservation before the Municipal Court in the criminal case of his right to institute a civil action separately is quoted hereunder in full:

UNDERSIGNED offended party in the above-entitled case before this Honorable Court respectfully alleges:

1. That this action which was commenced by the Chief of Police included in the complaint the claim of the undersigned for civil liability;

2. That the undersigned is reserving his right to institute the civil action for damages, docketed as Civil Case No. 6847 of the Court of First Instance of Camarines Sur, against accused herein and his employer;

WHEREFORE, it is respectfully prayed that reservation be made of record therein and that the civil aspect of the above-entitled case be not included herein.

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The terms of plaintiff's reservation clearly and unmistakably make out a case for quasi-delict. This is also evident from the recitals in plaintiff's Complaint averring the employer-employee relationship between the appellants, alleging that damages to the house and store were caused by the fact that Salvador Mendoza had driven the truck "recklessly, with gross negligence and imprudence, without observance of traffic rules and regulations and without regard to the safety of persons and property", and praying that appellants be held jointly and solidarity liable for damages. These are, basically, what should be alleged in actions based on quasi-delict. 4

As it is quite apparent that plaintiff had predicated his present claim for damages on quasi-delict, he is not barred from proceeding with this independent civil suit. The institution of a criminal action cannot have the effect of interrupting the civil action based on quasi-delict. 5 And the separate civil action for quasi-delict may proceed independently and regardless of the result of the criminal case, 6 except that a plaintiff cannot recover damages twice for the same act or commission of the defendant. 7

The civil action referred to in Sections 3(a) and (b) of Rule 111 of the Rules of Court, which should be suspended after the institution of the criminal action, is that arising from delict, and not the civil action based on quasi-delict or culpa aquiliana.

We come now to the subject of liability of the appellants herein. For his own negligence in recklessly driving the truck owned and operated by his employer, the driver, Salvador Mendoza, is primarily liable under Article 2176 of the Civil Code. On the other hand, the liability of his employer, Sy Bon Ping, is also primary and direct under Article 2180 of the same Code, which explicitly provides:

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

For failure of the appellant Sy Bon Ping to rebut the legal presumption of his negligence in the selection and supervision of this employee, 8 he is likewise responsible for the damages caused by the negligent act of his employee (driver) Salvador Mendoza, and his liability is primary and solidary.

... What needs only to be alleged under the aforequoted provision (Article 2180, Civil Code) is that the employee (driver) has, by his negligence (quasi-delict) caused damage to make the employer, likewise, responsible for the tortious act of the employee, and his liability is, as earlier observed, primary and solidary 9

But although the employer is solidarity liable with the employee for damages, the employer may demand reimbursement from his employee (driver) for whatever amount the employer will have to pay the offended party to satisfy the latter's claim. 10

WHEREFORE, the appealed decision is hereby affirmed. Costs against defendants-appellants.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, and Guerrero, JJ., concur.

G.R. No. L-33171

May 31, 1979

PORFIRIO P. CINCO, petitioner-appellant, vs. HON. MATEO CANONOY, Presiding Judge of the Third Branch of the Court of First Instance of Cebu, HON. LORENZO B. BARRIA City Judge of Mandaue City,

Second Branch ROMEO HILOT, VALERIANA PEPITO and CARLOS PEPITO, respondents-appellees.

Eriberto Seno for appellant.

Jose M. Mesina for appellees.

MELENCIO-HERRERA, J.:

This is a Petition for Review on certiorari of the Decision of the Court of First Instance of Cebu rendered on November 5, 1970.

The background facts to the controversy may be set forth as follows:

Petitioner herein filed, on February 25, 1970, a Complaint in the City Court of Mandaue City, Cebu, Branch II, for the recovery of damages on account of a vehicular accident involving his automobile and a jeepney driven by Romeo Hilot and operated by Valeriana Pepito and Carlos Pepito, the last three being the private respondents in this suit. Subsequent thereto, a criminal case was filed against the driver, Romeo Hilot, arising from the same accident. At the pre-trial in the civil case, counsel for private respondents moved to suspend the civil action pending the final determination of the criminal suit, invoking Rule 111, Section 3 (b) of the Rules of Court, which provides:

(b) After a criminal action has been commenced. no civil action arising from the same offense can be prosecuted, and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered;

The City Court of Mandaue City in an Order dated August 11, 1970, ordered the suspension of the civil case. Petitioner's Motion for Reconsideration thereof, having been denied on August 25, 1970, 1 petitioner elevated the matter on certiorari to the Court of First Instance of Cebu, respondent Judge presiding, on September 11, 1970, alleging that the City Judge had acted with grave abuse of discretion in suspending the civil action for being contrary to law and jurisprudence. 2

On November 5, 1970, respondent Judge dismissed the Petition for certiorari on the ground that there was no grave abuse of discretion on the part of the City Court in suspending the civil action inasmuch as damage to property is not one of the instances when an independent civil action is proper; that petitioner has another plain, speedy, and adequate remedy under the law, which is to submit his claim for damages in the criminal case; that the resolution of the City Court is interlocutory and, therefore, certiorari is improper; and that the Petition is defective inasmuch as what petitioner actually desires is a Writ of mandamus (Annex "R"). Petitioner's Motion for Reconsideration was denied by respondent Judge in an Order dated November 14,1970 (Annex "S" and Annex "U").

Hence, this Petition for Review before this Tribunal, to which we gave due course on February 25, 1971. 3

Petitioner makes these:

ASSIGNMENTS OF ERROR

1. THE TRIAL COURT, RESPONDENT JUDGE MATEO CANONOY, ERRED IN HOLDING THAT THE TRIAL OF THE CIVIL CASE NO. 189 FILED IN THE CITY COURT OF MANDAUE SHOULD BE SUSPENDED UNTIL AFTER A FINAL JUDGMENT IS RENDERED IN THE CRIMINAL CASE.

2. THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO AVOID DELAY THE OFFENDED PARTY MAY SUBMIT HIS CLAIM FOR DAMAGES IN THE CRIMINAL CASE.

3. THAT THE COURT ERRED IN HOLDING THAT THE PETITION FOR certiorari IS NOT PROPER, BECAUSE THE RESOLUTION IN QUESTION IS INTERLOCUTORY.

4. THAT THE COURT ERRED IN HOLDING THAT THE PETITION IS DEFECTIVE. 4

all of which can be synthesized into one decisive issue: whether or not there can be an independent civil action for damage to property during the pendency of the criminal action.

From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu, it is evident that the nature and character of his action was quasi-delictual predicated principally on Articles 2176 and 2180 of the Civil Code, which provide:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is caned a quasi-delict and is governed by the provisions of this Chapter. (1902a)

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions but also for those of persons for whom one is responsible.

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Employers shall be liable for the damages cause by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

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xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)

Thus, plaintiff made the essential averments that it was the fault or negligence of the driver, Romeo Hilot, in the operation of the jeepney owned by the Pepitos which caused the collision between his automobile and said jeepney; that damages were sustained by petitioner because of the collision; that there was a direct causal connection between the damages he suffered and the fault and negligence of private respondents.

Similarly, in the Answer, private respondents contended, among others, that defendant, Valeriana Pepito, observed due diligence in the selection and supervision of her employees, particularly of her co-defendant Romeo Hilot, a defense peculiar to actions based on quasi-delict. 5

Liability being predicated on quasi-delict the civil case may proceed as a separate and independent civil action, as specifically provided for in Article 2177 of the Civil Code.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. (n)

The crucial distinction between criminal negligence and quasi-delict, which is readily discernible from the foregoing codal provision, has been expounded in Barredo vs. Garcia, et al., 73 Phil. 607, 620-621, 6 thus:

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple imprudence. if we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and damage to property through any degree of negligence even the slightest would have to be indemnified only through the principle of civil hability arising from crime. In such a state of affairs, what sphere would remain for quasidelito or culpa aquiliana We are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or quasi-delito, which is conserved and made enduring in articles 1902 to 11910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which cannot be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code, otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.

Thirdly, to hold that there is only one way to make defendants liability effective, and that is, to sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining a reliel True, there is such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs because the procedure indicated by the defendant is wasteful and productive of delay, it being a matter

of common knowledge that professional drivers of taxis and similar public conveyances usually do not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are principles calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who principally reap the profits resulting from the services of these servants and employees. It is but right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness, others for their poor selection and all for their negligence." And according to Manresa, "It is much more equitable and just that such responsibility should fail upon the principal or director who could have chosen a careful and prudent employee, and not upon the such employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the employer and employee vienen a ser como una sola personalidad, por refundicion de la del dependiente en la de quien la emplea y utihza (become as one personality by the merging of the person of the employee in that of him who employs and utilizes him.) All these observations acquire a peculiar force and significance when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpaaquiliana there has grown up a common practice to seek damages only by virtue of the Civil responsibility arising from crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-

contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harm done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we cause the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the bet ter safeguarding of private rights because it re-establishes an ancient and additional remedy, and for the further reason that an independent civil action, not depending on the issues, stations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel is more likely to secure adequate and efficacious redress. (Garcia vs. Florida 52 SCRA 420, 424-425, Aug. 31, 1973). (Emphasis supplied)

The separate and independent civil action for a quasi-delict is also clearly recognized in section 2, Rule 111 of the Rules of Court, reading:

Sec. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, Are independent civil action entirely separate and distinct from the c action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shag proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

Significant to note is the fact that the foregoing section categorically lists cases provided for in Article 2177 of the Civil Code, supra, as allowing of an "independent civil action."

Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court, in surrounding the civil action, erred in placing reliance on section 3 (b) of Rule 111 of the Rules of Court, supra which refers to "other civil actions arising from cases not included in the section just cited" (i.e., Section 2, Rule 111 above quoted), in which case 6 once the criminal action has being commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended in whatever stage it may be found, until final judgment in the criminal

proceeding has been rendered." Stated otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule 111 of the Rules of Court, which should be suspended after the criminal action has been instituted is that arising from the criminal offense not the civil action based on quasi-delict

Article 31 of the Civil Code then clearly assumes relevance when it provides:

Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

For obviously, the jural concept of a quasi-delict is that of an independent source of obligation "not arising from the act or omission complained of as a felony." Article 1157 of the Civil Code bolsters this conclusion when it specifically recognizes that:

Art. 1157.

Obligations arise from:

(1)

Law;

(2)

Contracts;

(3)

Quasi-contracts;

(4)

Acts or omissions punished by law; and

(5)

Quasi-delicts. (1089a)

(Emphasis supplied)

It bears emphasizing that petitioner's cause of action is based on quasi-delict. The concept of quasidelica as enunciated in Article 2176 of the Civil Code (supra), is so broad that it includes not only injuries to persons but also damage to property. 7 It makes no distinction between "damage to persons" on the one hand and "damage to property" on the other. Indeed, the word "damage" is used in two concepts: the "harm" done and "reparation" for the harm done. And with respect to harm it is plain that it includes both injuries to person and property since "harm" is not limited to personal but also to property injuries. In fact, examples of quasi-delict in the law itself include damage to property. An instance is Article 2191(2) of the Civil Code which holds proprietors responsible for damages caused by excessive smoke which may be harmful to persons or property."

In the light of the foregoing disquisition, we are constrained to hold that respondent Judge gravely abused his discretion in upholding the Decision of the City Court of Mandaue City, Cebu, suspending the civil action based on a quasidelict until after the criminal case is finally terminated. Having arrived at this conclusion, a discussion of the other errors assigned becomes unnecessary.

WHEREFORE, granting the Writ of certiorari prayed for, the Decision of the Court of First Instance of Cebu sought to be reviewed is hereby set aside, and the City Court of Mandaue City, Cebu, Branch 11, is hereby ordered to proceed with the hearing of Civil Case No. 189 of that Court.

Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, Guerrero and De Castro, JJ., concur.

[G.R. No. 122166. March 11, 1998]

CRESENTE Y. LLORENTE, JR., petitioner, vs. SANDIGANBAYAN and LETICIA G. FUERTES, respondents. DECISION PANGANIBAN, J.: In a prosecution for violation of Section 3[e] of the Anti-Graft Law, that is, causing undue injury to any party, the government prosecutors must prove actual injury to the offended party; speculative or incidental injury is not sufficient.
The Case

Before us is a petition for review of the Decision promulgated on June 23, 1995 and the Resolution promulgated on October 12, 1995 of the Sandiganbayan in Criminal Case No. 18343, finding Cresente Y. Llorente, Jr. guilty as charged. Llorente, then municipal mayor of Sindangan, Zamboanga del Norte, was charged with violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, under an Information dated October 22, 1992, textually reproduced as follows:[1] That in or about and during the period of July, 1990 to October, 1991, or for sometime subsequent thereto, in the Municipality of Sindangan, Province of Zamboanga del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Cresente Y. Llorente, Jr., a public officer, being then the Mayor of Sindangan, Zamboanga del Norte, in the exercise of his official and administrative functions, did then and there, wilfully, unlawfully and criminally with evident bad faith refuse to sign and approve the payrolls and vouchers representing the payments of the salaries and other emoluments of Leticia G. Fuertes, without just valid cause and without due process of law, thereby causing undue injury to the said Leticia G. Fuertes. CONTRARY TO LAW. Duly arraigned on March 29, 1993, petitioner, with the assistance of counsel, entered a plea of NOT GUILTY.[2] After trial in due course, the Sandiganbayan[3] rendered the assailed Decision, disposing as follows:[4]

WHEREFORE, judgment is hereby rendered finding accused Mayor Cresente Y. Llorente, Jr. GUILTY beyond reasonable doubt as principal of the crime of Violation of Section 3(e) of Republic Act 3019, as amended, and he is hereby sentenced to suffer imprisonment of SIX (6) YEARS and ONE (1) MONTH, as minimum to SEVEN (7) YEARS, as maximum; to further suffer perpetual disqualification from public office; and to pay the costs. Respondent Court denied the subsequent motion for reconsideration in the assailed Resolution, thus:[5] WHEREFORE, accuseds Motion for Reconsideration and/or New Trial is hereby DENIED for lack of merit. His Motion for Marking of Additional Exhibits Cum Offer of Documentary Exhibits in Support of Motion for Reconsideration and/or New Trial is now rendered moot and academic. Hence, this petition.[6]
The Facts Version of the Prosecution

As found by Respondent Court, the prosecutions version of the facts of this case is as follows:[7] After appreciating all the evidence on both sides, the following uncontroverted facts may be gleaned: 1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged act was committed, was the Municipal Mayor of Sindangan, Zamboanga del Norte. 2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed Assistant Municipal Treasurer in the same municipality since October 18, 1985. 3. Starting 1986, private complainant was detailed to different offices, as follows:

(a) Municipality of Katipunan, Zamboanga del Norte from April, 1986 to August, 1987 as OIC Municipal Treasurer. (b) Municipality of Roxas, Zamboanga del Norte from September, 1987 to March, 1988 as OIC Municipal Treasurer. (c) Office of the Provincial Treasurer of Zamboanga del Norte from April, 1988 to May, 1988. (d) Municipality of Pian, Zamboanga del Norte from June, 1988 to June, 1990 as OIC Municipal Treasurer.

4. In July, 1990, she was returned to her post as Assistant Municipal Treasurer in the town of Sindangan. She was not provided with office table and chair nor given any assignment; neither her daily time record and application for leave acted upon by the municipal treasurer per instruction of accused Mayor (Exh. G-2; G-3). 5. On July 23, 1990, the Sangguniang Bayan of Sindangan, Zamboanga del Norte, presided by accused Mayor, passed Resolution No. SB 214 (Exh. 3), vehemently objecting to the assignment of complainant as Assistant Municipal Treasurer of Sindangan. 6. On March 12, 1991, accused Municipal Mayor received a letter (SB Resolution No. 36) from the Sangguniang Bayan of the Municipality of Pian, demanding from the private complainant return of the amount overpaid to her as salaries (par. 9, p. 2 of Exh. 4 counter-affidavit of accused Mayor). 7. On May 22, 1991, private complainant filed a Petition for Mandamus with Damages (Exh. E) against the accused Mayor and the Municipality of Sindangan before Branch II, Regional Trial Court of Sindangan, Zamboanga del Norte docketed as Special Proceedings No. 45, for the alleged unjustified refusal of Mayor Llorente to sign and/or approve her payrolls and/or vouchers representing her salaries and other emoluments as follows: (a) salary for the month of June, 1990 in the amount of P5,452.00 under disbursement voucher dated September 5, 1990 (Exh. H). Although complainant rendered services at the municipality of Pian during this period, she could not collect her salary there considering that as of that month, Pian had already appointed an Assistant Municipal Treasurer. When she referred the matter to the Provincial Auditor, she was advised to claim her salary for that month with her mother agency, the Municipality of Sindangan, [(]p. 12, TSN of August 9, 1994; 10th paragraph of complainants Supplemental Affidavit marked Exh. G); (b) salary differential for the period from July 1, 1989 to April 30, 1990 in the total amount of P19,480.00 under disbursement voucher dated August, 1990 (Exh. I); (c) 13th month pay, cash gift and clothing allowance under Supplemental Budget No. 5, CY 1990 in the total amount of P7,275 per disbursement voucher dated December 4, 1990 (Exh. J); (d) vacation leave commutation for the period from October to December 31, 1990 in the total amount of P16,356.00 per disbursement voucher dated December 3, 1990 (Exh. K); (e) RATA for the months of July, August and September, 1990, January and February, 1991 in the total amount of P5,900.00 (par. 12 & 16 of Exh. E); and (f) salaries for January and February, 1991 in the total amount of P10,904.00 (par. 17 of Exh. E). 8. Accused Mayor did not file an answer; instead, he negotiated for an amicable settlement of the case (p. 24, TSN of August 10, 1994). Indeed, a Compromise Agreement (Exh. A) dated August 27, 1991, between the accused and private complainant was submitted to and approved by the court, hereto quoted as follows:

COMPROMISE AGREEMENT That the parties have agreed, as they hereby agree, to settle this case amicably on the basis of the following terms and conditions, to wit: (a) That the respondent Mayor Cresente Y. Llorente, Jr. binds himself to sign and/or approve all vouchers and/or payrolls for unpaid salaries, RATA, Cash-gifts, 13th month pay, clothing allowance, salary differentials and other emoluments which the petitioner is entitled is Assistant Municipal Treasurer of Sindangan, Zamboanga del Norte; (b) That the parties herein hereby waive, renounce and relinquish their other claims and counter-claims against each other; (c) That the respondent Mayor Cresente Y. Llorente Jr. binds himself to sign and/or approve all subsequent vouchers and payrolls of the herein petitioner. 9. On August 27, 1991, a Decision (Exh. B) was rendered by Judge Wilfredo Ochotorena on the basis of the aforesaid compromise agreement. 10. For his failure to comply with the terms of the compromise agreement, private complainant, thru counsel, filed a Motion for Execution on September 12, 1991. A Writ of Execution (Exh. C) was issued by the Court on September 17, 1991, and served [on] the accused on September 23, 1991. 11. As shown in the Sheriffs Return dated November 19, 1991 (Exh. D), private complainant was paid her salaries for the period from January, 1991 to August, 1991, while the rest of her salaries including the RATA and other emoluments were not paid considering the alleged need of a supplemental budget to be enacted by the Sangguniang Bayan of Sindangan per verbal allegation of the municipal treasurer. 12. Complainant was not also paid her salaries from July to December 1990; September and October, 1991; RATA for the period from July 1990 to June 1994 (admission of accused, pp. 8-9, TSN of June 27, 1994, a.m.; Exh. E; p. 17, TSN of June 27, 1994). 13. Sometime in 1993, accused municipal mayor received from the Municipality of Pian, Bill No. 93-08 (Exh. 1), demanding from the Municipality of Sindangan settlement of overpayment to complainant Fuertes in the amount of P50,643.93 per SB Resolution No. 6 sent on July 23, 1990. The bill was settled by the Municipality of Sindangan in December, 1993 per Disbursement Voucher No. 101-9312487 dated December 2, 1993 (Exh. 2). 14. Private complainant was able to receive complete payment of her claims only on January 4, 1993 in the form of checks all dated December 29, 1992 (as appearing on Exhs. H, I, J, K of the prosecution, Exhs. 6, 7, 8, of the defense) except her RATA which was given to her only on July 25, 1994, covering the period from July 1990 to December, 1993 amounting to

P55,104.00, as evidenced by Disbursement Voucher dated July 25, 1994 (Exh. 5).
Version of the Defense

While admitting some delays in the payment of the complainants claims, petitioner sought to prove the defense of good faith -- that the withholding of payment was due to her failure to submit the required money and property clearance, and to the Sangguniang Bayans delayed enactment of a supplemental budget to cover the claims. He adds that such delays did not result in undue injury to complainant. In his memorandum, petitioner restates the facts as follows:[8] 1. Complainant xxx was appointed assistant municipal treasurer of Sindangan, Zamboanga del Norte on October 18, 1985. However, starting 1986 until July 1990, or for a period of about four (4) and one half (1/2) years, she was detailed in other municipalities and in the Office of the Provincial Treasurer of Zamboanga del Norte. She returned as assistant treasurer of Sindangan in July 1990. (Decision, pp. 5-6). 2. As complainant had been working in municipallities and offices other than in Sindangan for more than four (4) years, her name was removed from the regular payroll of Sindangan, and payment of past salaries and other emoluments had to be done by vouchers. When complainant xxx presented her vouchers to petitioner, the latter required her to submit clearances from the different offices to which she was detailed, as well as a certificate of last payment as required by COA regulations (Tsn, p. 11, Aug. 10, 1994). Instead of submitting the required documents, Mrs. Fuertes said that what I did, I endorsed my voucher to the mayor through the municipal treasurer (Tsn, p. 13, June 27, 1994). The municipal treasurer could not, however, process the vouchers and certify as to the availability of funds until after the Sangguniang Bayan had passed a supplemental budget for the purpose (Exhs. D and 6-c Motion), which came only in December 1992. 3. Petitioner, in the meanwhile, received on March 12, 1991 SB Resolution No. 36 from the Municipality of Pinan, demanding from Mrs. xxx Fuertes the reimbursement of P105,915.00, and because of this demand, he needed time to verify the matter before acting on Mrs. Fuertes claims (Exh. 4). Mrs. Fuertes admitted that she had at the time problems of accountability with the Municipality of Pinan. She testified: Q. Counsel now is asking you, when you went back to Sindangan there was [sic] still problems of the claims either against you or against the Municipality of Sindangan by the municipalities had, [sic] in their minds, overpaid you? A. Yes, your Honor, that was evidence[d] by the bill of the Municipality of Pinan to the Municipality of Sindangan. (Tsn, p. 18, Aug. 3, 194).

4. Petitioner also stated that he could not act on complainants claims because she had not submitted the required money and property accountability clearance from Pinan (Tsn, 11, Aug. 10, 1994) and that at the time the Sangguniang Bayan had not appropriated funds for the purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994). Nonetheless, petitioner included Mrs. Fuertes name in the regular annual budget beginning 1991 (Exhs. 4-b, 4-d, 4-f), as a result of which she had been since then receiving her regular monthly salary. 5. On May 21, 1991, Mrs. Fuertes filed a complaint xxx. Petitioner filed his answer to the complaint, alleging as a defense, that plaintiff did not exhaust administrative remedies. (Annex B, p. 3, Petition; Exh. 1-Motion). On August 27, 1991, the parties entered into a compromise agreement, which the trial court approved (Exh. B). x x x. 6. Upon motion of counsel for Mrs. Fuertes, the trial court issued a writ of execution of the compromise judgment. However, the writ of execution was addressed only to petitioner; it was not served on the municipal Sangguniang Bayan. x x x. Thus, Mrs. Fuertes had been receiving her regular salary from January, 1991 because petitioner had included her name in the regular budget beginning 1991, which fact complainant did not dispute. With respect to her other claims for past services in other offices, Municipal Treasurer, Mrs. Narcisa Caber, informed that a supplemental budget for such purpose to be passed by the Sangguniang Bayan was necessary before she could be paid thereof. Being the municipal treasurer, Mrs. Caber knew that without such supplemental budget, payment of Mrs. Fuertes other claims could not be made because the law requires that disbursements shall be made in accordance with the ordinance authorizing the annual or supplemental appropriations (Sec. 346, RA 7160) and that no money shall be disbursed unless xxx the local treasurer certifies to the availability of funds for the purpose. (Sec. 344, RA 7160). 7. Petitioner had instructed the municipal budget officer to prepare the supplemental budget for payment of complainants unpaid claims for submission to the Sangguniang [Bayan] for enactment. (Tsn, pp. 32-33, Aug. 10, 1994). The budget officer, Mr. Narciso Siasico stated as follows: 1. I am the budget officer for the Municipality of Sindangan, Zamboanga del Norte, a position I have held since 1981. xxx xxx xxx

3. Immediately after said mandamus case was settled through a compromise agreement, Mayor Llorente instructed me to prepare the necessary budget proposals for the deliberation and approval of the Sangguniang Bayan; xxx xxx xxx.

8. Instead of waiting for the Sangguniang Bayan to enact the budget or of securing an alias writ of execution to compel the Sangguniang Bayan to pass

the same, Mrs. Fuertes filed a criminal complaint with the Office of the Ombudsman under date of October 28, 1991, admitting receipt of her salaries from January 1991 and saying she had not been paid her other claims in violation of the compromise judgment. (Exh. F). She had thus made the Office of the Ombudsman a collecting agency to compel payment of the judgment obligation. 9. While the budget proposal had been prepared and submitted to the Sangguniang Bayan for action, it took time for the Sangguniang Bayan to pass the supplemental budget and for the Provincial Board to approve the same. It was only on December 27, 1992 that the municipal treasurer and the municipal accountant issued a certification of availability of funds for the purpose. Petitioner approved the vouchers immediately, and in a period of one week, Mrs. Fuertes was paid all claims, as evidenced by the prosecutions Exhs. H, I, J and K, which were the four vouchers of Mrs. Fuertes, xxxx. xxx xxx xxx

11. Petitioner testified that he could not immediately sign or approve the vouchers of Mrs. Fuertes for the following reasons: a) The Sangguniang Bayan had not appropriated the amounts to pay Mrs. Fuertes. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994). b) Municipal Treasurer Caber, to whom Mrs. Fuertes endorsed her vouchers for processing, and the Municipal Accountant issued the certificate of availability of funds only on December 27, 1992 (Tsn, p. 42, Aug. 10, 1994; Exhs. H, I, J and K); and the delay in the issuance of the certificate of availability of funds was due to the delay by the Provincial Board to approve the supplemental budget. (Tsn, p. 43, Aug. 10, 1994). [c]) He received on March 12, 1991 a demand from the Municipality of Pinan, Zamboanga del Norte, where Mrs. Fuertes last worked, for the reimbursement of P105,915.00, and the matter had to be clarified first. (Exh. 4). Mrs. Fuertes admitted that she had some problem of accountability with the Municipality of Pinan. (Tsn, p. 18, 1994). It took time before this matter could be clarified by the Municipality of Pinan reducing its claim to P50,647.093 and the Municipality of Sindangan paying said claim. (Exh. 2; Decision, p. 9). [d]) Mrs. Fuertes had not submitted the required clearance from the Municipality of Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not insist on this requirement after the trial court issued the writ of execution to implement the compromise judgment. (Tsn, p. 23, Aug. 10, 1994). Nonetheless, in the post audit of Mrs. Fuertes accountability, the Commission on Audit issued a notice of suspension of the amount of P5,452.00 from Mrs. Fuertes for her failure to submit: 1. Clearance for money & property accountability from former office. 2. Certification as [sic] last day of service in former office. 3. Certification of last salary

received & issued by the disbursing officer in former office, certified by chief accountant and verified by resident auditor. (Exh. 2 -Motion). 12. The Information dated October 12, 1992 filed against petitioner alleged that petitioner as mayor did not sign and approve the vouchers of Mrs. Fuertes for payment of her salaries and other emoluments from July 1, 1990 to October 1991, which caused her undue injury. However, the prosecutions Exh. D, the sheriffs return dated November 19, 1991, stated that Mrs. Fuertes had received her salary from January 1, 1991 up to the present, which meant that even before the information was filed, she had been paid her regular salaries from January 1, 1991 to October 1991. The supplemental budget to cover payment of her other claims for past services was passed only in December 1992 and the municipal treasurer and accountant issued the certificate of availability of funds only on December 27, 1992, and Mrs. Fuertes got paid of [sic] all her other claims, including those not claimed in the Information, within one week therefrom. (Exhs. H, I, J, and K). xxx xxx
Ruling of the Sandiganbayan

xxx.

Respondent Court held that the delay or withholding of complainants salaries and emoluments was unreasonable and caused complainant undue injury. Being then the sole breadwinner in their family, the withholding of her salaries caused her difficulties in meeting her familys financial obligations like paying for the tuition fees of her four children. Petitioners defense that complainant failed to attach the required money and property clearance to her vouchers was held to be an afterthought that was brought about, in the first place, by his own failure to issue any memorandum requiring its submission. That the voucher form listed the clearance as one of the requirements for its approval had neither been brought to complainants attention, nor raised by petitioner as defense in his answer. In any event, the payment of complainants salary from January to November 1991, confirmed by the sheriffs return, showed that the clearance was not an indispensable requirement, because petitioner could have acted upon or approved the disbursement even without it. The alleged lack of a supplemental budget was also rejected, because it was petitioners duty as municipal mayor to prepare and submit the executive and supplemental budgets under Sections 318, 320, and 444 (3)(ii) of the Local Government Code,[9] and the complainants claims as assistant municipal treasurer, a permanent position included in the plantilla for calendar year 1990 and 1991, were classified as current operating expenditures for the same calendar years, which were chargeable against the general funds of the town of Sindangan. Except for the representation and transportation allowance, Fuertes claims for thirteenth month pay, cash gift and clothing allowance were already covered by Supplemental Budget No. 5 for calendar year 1990. Petitioners contention that funds covering complainants claims were made available on ly in December 1992 was unbelievable, considering that an ordinance enacting a supplemental budget takes

effect upon its approval or on the date fixed therein under Sec. 320 of the Local Government Code. The Sandiganbayan also ruled that the petitioners e vident bad faith was the direct and proximate cause of Fuertes undue injury. Complainants salaries and allowances were withheld for no valid or justifiable reasons. Such delay was intended to harass complainant, because petitioner wanted to replace her with his political protege whom he eventually designated as municipal treasurer, bypassing Fuertes who was next in seniority. Bad faith was further evidenced by petitioners instructions to the outgoing municipal treasurer not to give the complaining witness any work assignment, not to provide her with office table and chair, not to act on her daily time record and application for leave of absence, instructions which were confirmed in the municipal treasurers certification. (Exh. G-2).
The Issues

In his memorandum, petitioner submits the following issues:[10] 1. Could accused be held liable under Sec. 3(e) of R.A. 3019 in the discharge of his official administrative duties, a positive act, when what was imputed to him was failing and refusing to sign and/or approve the vouchers of Mr[s]. Fuertes on time or by inaction on his obligation under the compromise agreement (ibid., p. 19), a passive act? Did not the act come under Sec. 3(f) of R.A. 3019, of [sic] which accused was not charged with? 2. Assuming, arguendo, that his failure and refusal to immediately sign and approve the vouchers of Mrs. Fuertes comes [sic] under Sec. 3(e), the questions are: (a) Did not the duty to sign and approve the same arise only after the Sangguniang Bayan had passed an appropriations ordinance, and not before? In other words, was the non-passage of the appropriation ordinance a justifiable reason for not signing the vouchers? (b) Did Mrs. Fuertes suffer undue injury, as the term is understood in Sec. 3(e), she having been paid all her claims? (c) Did petitioner not act in good faith in refusing to immediately sign the vouchers and implement the compromise agreement until the Sangguniang Bayan had enacted the appropriation ordinance and until Mrs. Fuertes submitted the clearance from the Municipality of Pinan, Zamboanga del Norte? Restated, petitioner claims that the prosecution failed to establish the elements of undue injury and bad faith. Additionally, petitioner submits that a violation of Section 3[e] of RA 3019 cannot be committed through nonfeasance.

The Courts Ruling

The petition is meritorious. After careful review of the evidence on record and thorough deliberation on the applicable provision of the Anti-Graft Law, the Court agrees with the solicitor generals assessment that the prosecution failed to establish the elements of the crime charged.
First Issue: Undue Injury

Petitioner was charged with violation of Section 3[e] of R.A. 3019, which states: SEC. 3. Corrupt practices of public officers.In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. To hold a person liable under this section, the concurrence of the following elements must be established beyond reasonable doubt by the prosecution: (1) that the accused is a public officer or a private person charged in conspiracy with the former; (2) that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; (3) that he or she causes undue injury to any party, whether the government or a private party; and (4) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.[11] The solicitor general, in his manifestation,[12] points out that undue injury requires proof of actual injury or damage, citing our ruling in Alejandro vs. People[13] and Jacinto vs. Sandiganbayan.[14] Inasmuch as complainant was actually paid all her claims, there was thus no undue injury established. This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury, or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes

the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty. In jurisprudence, undue injury is consistently interpreted as actual damage. Undue has been defined as more than necessary, not proper, [or] illegal; and injury as any wrong or damage done to another, either in his person, rights, reputation or property[;] [that is, the] invasion of any legally protected interest of another. Actual damage, in the context of these definitions, is akin to that in civil law.[15] In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows: Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendants act. Actual pecuniary compensation is awarded as a general rule, except where the circumstances warrant the allowance of other kinds of damages. [16] Actual damages are primarily intended to simply make good or replace the loss caused by the wrong. [17] Furthermore, damages must not only be capable of proof, but must be actually proven with a reasonable degree of certainty. They cannot be based on flimsy and nonsubstantial evidence or upon speculation, conjecture or guesswork. [18] They cannot include speculative damages which are too remote to be included in an accurate estimate of the loss or injury. In this case, the complainant testified that her salary and allowance for the period beginning July 1990 were withheld, and that her family underwent financial difficulty which resulted from the delay in the satisfaction of her claims. [19] As regards her money claim, payment of her salaries from January 1991 until November 19, 1991 was evidenced by the Sheriffs Return dated November 19, 1991 (Exh. D). She also admitted having been issued a check on January 4, 1994 to cover her salary from June 1 to June 30, 1990; her salary differential from July 1, 1989 to April 30, 1990; her thirteenth-month pay; her cash gift; and her clothing allowances. Respondent Court found that all her monetary claims were satisfied. After she fully received her monetary claims, there is no longer any basis for compensatory damages or undue injury, there being nothing more to compensate. Complainants testimony regarding her familys financial stress was inadequate and largely speculative. Without giving specific details, she made only vague references to the fact that her four children were all going to school and that she was the breadwinner in the family. She, however, did not say that she was unable to pay their tuition fees and the specific damage brought by such nonpayment. The fact that the injury to her family was unspecified or unquantified does not satisfy the element of undue injury, as

akin to actual damages. As in civil cases, actual damages, if not supported by evidence on record, cannot be considered.[20] Other than the amount of the withheld salaries and allowances which were eventually received, the prosecution failed to specify and to prove any other loss or damage sustained by the complainant. Respondent Court insists that complainant suffered by reason of the long period of time that her emoluments were withheld. This inconvenience, however, is not constitutive of undue injury. In Jacinto, this Court held that the injury suffered by the complaining witness, whose salary was eventually released and whose position was restored in the plantilla, was negligible; undue injury entails damages that are more than necessary or are excessive, improper or illegal.[21] In Alejandro, the Court held that the hospital employees were not caused undue injury, as they were in fact paid their salaries.[22]
Second Issue: No Evident Bad Faith

In the challenged Decision, Respondent Court found evident bad faith on the part of the petitioner, holding that, without any valid or justifiable reason, accused withheld the payment of complainants salaries and other benefits for almost two (2) years, demonstrating a clear manifestation of bad faith.[23] It then brushed aside the petitioners defenses that complainant failed to submit money and property clearances for her vouchers, and that an appropriation by the Sangguniang Bayan was required before complainants vouchers could be approved. It said:[24] Secondly, his reliance on the failure of complainant to submit the clearances which were allegedly necessary for the approval of vouchers is futile in the light of the foregoing circumstances: xxx xxx xxx

b. The evidence on record shows that complainants salaries for the period from January to November 1991 (included as subject matter in the mandamus case) were duly paid, as confirmed in the Sheriffs Return dated November 19, 1991 (Exh. D). This means that accused, even without the necessary clearance, could have acted upon or approved complainants disbursement vouchers if he wanted to. c. It may be true that a clearance is an indispensable requirement before complainant will be paid of her claims, but accused could not just hide behind the cloak of the clearance requirement in order to exculpate himself from liability. As the approving officer, it was his duty to direct complainant to submit the same. Moreover, accused could not just set aside the obligation he voluntarily imposed upon himself when he entered into a compromise agreement binding himself to sign complainants vouchers without any qualification as to the clearance requirement. Perforce, he could have seen to it that complainant secured the same in order that he could comply with the said obligation.

xxx xxx

xxx

Fourthly, accuseds contention that the delay in the release of complainants claim could not be attributed to him because the vouchers were only submitted to him for his signature on December 24-27, 1992; that the approval of the budget appropriations/resolutions depends on the Sangguniang Bayan, Budget Officer and the Sangguniang Panlalawigan, is unavailing. As revealed in the alleged newly discovered evidence themselves, particularly x x x SB Res. No. 202 and Appropriation Ordinance No. 035, both dated May 21, 1990 (Exh. 5 a- Motion), the Sangguniang Bayan appropriated a budget of P5M in the General Fund for calendar year 1991 [the Budget Officer does not approve the budget but assists the Municipal Mayor and the Sangguniang Bayan in the preparation of the budget (Sec. 475, Local Government Code of 1991)]. Complainants claims consisted of her salaries and other benefits for 1990 and 1991 which were classified as Current Operating Expenditures chargeable against the General Fund. It is undisputed that she was holding her position as Assistant Municipal Treasurer in a permanent capacity (her position was also designated Assistant Department Head), which was included in the plantilla for calender years 1990 and 1991 (Exhs. 4-a & '4-b', Motion). In Program Appropriation and Obligation by Object (Exhs. 4-c & 4-c, Motion), appropriations were made for current operating expenditures to which complainants claims properly appertained. xxx. Verily, complainants claims were covered by appropriations duly approved by the officials concerned, signifying that adequate funds were available for the purpose. In fact, even complainants claims for her 13th month pay, cash gift and clothing allowance, subject matter of Disbursement Voucher marked Exhibit J which would need a supplemental budget was covered by Supplemen tal Budget No. 5 for CY 1990 duly approved by the authorities concerned as shown in the voucher itself. This means that the said claim was already obligated (funds were already reserved for it) as of calendar year 1990. xxxx. It is clear, then, that as regards availability of funds, there was no obstacle for the release of all the complainants claims. The Court disagrees. Respondent Court cannot shift the blame on the petitioner, when it was the complainant who failed to submit the required clearance. This requirement, which the complainant disregarded, was even printed at the back of the very vouchers sought to be approved. As assistant municipal treasurer, she ought to know that this is a condition for the payment of her claims. This clearance is required by Article 443 of the Implementing Rules and Regulations of the Local Government Code of 1991: Art. 443. Property Clearances When an employee transfers to another government office, retires, resigns, is dismissed, or is separated from the service, he shall be required to secure supplies or property clearance from the supply officer concerned, the provincial or city general services officer concerned, the municipal mayor and the municipal treasurer, or the punong barangay and the barangay treasurer, as the case may be. The local chief executive shall prescribe the property clearance form for this purpose.

For her own failure to submit the required clearance, complainant is not entirely blameless for the delay in the approval of her claims. Also, given the lack of corresponding appropriation ordinance and certification of availability of funds for such purpose, petitioner had the duty not to sign the vouchers. As chief executive of the municipality Llorente could not have approved the voucher for the payment of complainants salaries under Sec. 344, Local Government Code of 1991.[25] Also, Appropriation Ordinance No. 020[26] adding a supplemental budget for calendar year 1990 was approved on April 10, 1989, or almost a year before complainant was transferred back to Sindangan. Hence, she could not have been included therein. SB Resolution No. 202 and Appropriation Ordinance No. 035,[27] which fixed the municipal budget for calendar year 1991, was passed only on May 21, 1990, or almost another year after the transfer took effect. The petitioners failure to approve the complainants vouchers was therefore due to some legal obstacles,[28] and not entirely without reason. Thus, evident bad faith cannot be completely imputed to him. Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. [29] In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason; he refused to release the complainants salary because the latter failed to submit her daily time record; he refused to approve her sick-leave application because he found out that she did not suffer any illness; and he removed her name from the plantilla because she was moonlighting during office hours. Such actions were measures taken by a superior against an erring employee who studiously ignored, if not defied, his authority.[30] In Alejandro, evident bad faith was ruled out, because the accused gave his approval to the questioned disbursement after relying on the certification of the bookkeeper on the availability of funds for such disbursement.[31]
Third Issue: Interpretation of Causing

The Court does not completely agree with petitioners assertion that the imputed act does not fall under Sec. 3[e] which, according to him, requires a positive act -- a malfeasance or misfeasance. Causing means to be the cause or occasion of, to effect as an agent, to bring into existence, to make or to induce, to compel. [32] Causing is, therefore, not limited to positive acts only. Even passive acts or inaction may cause

undue injury. What is essential is that undue injury, which is quantifiable and demonstrable, results from the questioned official act or inaction. In this case, the prosecution accused petitioner of failing or refusing to pay complainants salaries on time, while Respondent Court convicted him of unduly delaying the payment of complainants claims. As already explained, both acts did not, however, legally result in undue injury or in giving any unwarranted benefits, advantage or preference in the discharge of his official, [or] administrative x x x functions. Thus, these acts are not punishable under Sec. 3[e]. It would appear that petitioners failure or refusal to act on the complainants vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]: (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue injury. Thus, its elements are: 1) The offender is a public officer;

2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him; 3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and 4) Such failure to so act is for the purpose of obtaining, directly or indire ctly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another. [33] However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due process. WHEREFORE, the petition is hereby GRANTED. Petitioner is ACQUITTED of violating Section 3[e] of R.A. 3019, as amended. No costs. SO ORDERED. Davide, Jr. (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.

G.R. No. 80194

March 21, 1989

EDGAR JARANTILLA, petitioner, vs. COURT OF APPEALS and JOSE KUAN SING, respondents.

Corazon Miraflores and Vicente P. Billena for petitioner.

Manuel S. Gemarino for private respondent.

REGALADO, J.:

The records show that private respondent Jose Kuan Sing was "side-swiped by a vehicle in the evening of July 7, 1971 in lznart Street, Iloilo City" 1 The respondent Court of Appeals concurred in the findings of the court a quo that the said vehicle which figured in the mishap, a Volkswagen (Beetle type) car, was then driven by petitioner Edgar Jarantilla along said street toward the direction of the provincial capitol, and that private respondent sustained physical injuries as a consequence. 2

Petitioner was accordingly charged before the then City Court of Iloilo for serious physical injuries thru reckless imprudence in Criminal Case No. 47207 thereof. 3 Private respondent, as the complaining witness therein, did not reserve his right to institute a separate civil action and he intervened in the prosecution of said criminal case through a private prosecutor. 4 Petitioner was acquitted in said criminal case "on reasonable doubt".5

On October 30, 1974, private respondent filed a complaint against the petitioner in the former Court of First Instance of Iloilo, Branch IV, 6 docketed therein as Civil Case No. 9976, and which civil action involved the same subject matter and act complained of in Criminal Case No. 47027. 7 In his answer filed therein, the petitioner alleged as special

and affirmative detenses that the private respondent had no cause of action and, additionally, that the latter's cause of action, if any, is barred by the prior judgment in Criminal Case No. 47207 inasmuch as when said criminal case was instituted the civil liability was also deemed instituted since therein plaintiff failed to reserve the civil aspect and actively participated in the criminal case. 8

Thereafter, acting on a motion to dismiss of therein defendant, the trial court issued on April 3, 1975 an order of denial, with the suggestion that "(t)o enrich our jurisprudence, it is suggested that the defendant brings (sic) this ruling to the Supreme Court by certiorari or other appropriate remedy, to review the ruling of the court". 9

On June 17, 1975, petitioner filed in this Court a petition for certiorari, prohibition and mandamus, which was docketed as G.R. No. L-40992, 10 assailing the aforesaid order of the trial court. Said petition was dismissed for lack of merit in the Court's resolution of July 23, 1975, and a motion for reconsideration thereof was denied for the same reason in a resolution of October 28, 1975. 11

After trial, the court below rendered judgment on May 23, 1977 in favor of the herein private respondent and ordering herein petitioner to pay the former the sum of P 6,920.00 for hospitalization, medicines and so forth, P2,000.00 for other actual expenses, P25,000.00 for moral damages, P5,000.00 for attorney's fees, and costs. 12

On July 29, 1987, the respondent Court of Appeals 13 affirmed the decision of the lower court except as to the award for moral damages which it reduced from P25,000.00 to P18,000.00. A motion for reconsideration was denied by respondent court on September 18, 1987. 14

The main issue for resolution by Us in the present recourse is whether the private respondent, who was the complainant in the criminal action for physical injuries thru reckless imprudence and who participated in the prosecution thereof without reserving the civil action arising from the act or omission complained of, can file a separate action for civil liability arising from the same act or omission where the herein petitioner was acquitted in the criminal action on reasonable doubt and no civil liability was adjudicated or awarded in the judgment of acquittal.

Prefatorily, We note that petitioner raises a collateral issue by faulting the respondent court for refusing to resolve an assignment of error in his appeal therein, said respondent court holding that the main issue had been passed upon by this Court in G.R. No. L-40992 hereinbefore mentioned. It is petitioner's position that the aforesaid two resolutions of the Court in said case, the first dismissing the petition and the second denying the motion for reconsideration, do not constitute the "law of the case' which would control the subsequent proceed ings in this controversy.

1.

We incline favorably to petitioner's submission on this score.

The "doctrine of the law of the case" has no application at the aforesaid posture of the proceedings when the two resolutions were handed down. While it may be true that G.R. No. L-40992 may have involved some of the issues which were thereafter submitted for resolution on the merits by the two lower courts, the proceedings involved there was one for certiorari, prohibition and mandamus assailing an interlocutory order of the court a quo, specifically, its order denying therein defendants motion to dismiss. This Court, without rendering a specific opinion or explanation as to the legal and factual bases on which its two resolutions were predicated, simply dismissed the special civil action on that incident for lack of merit. It may very well be that such resolution was premised on the fact that the Court, at that stage and on the basis of the facts then presented, did not consider that the denial order of the court a quo was tainted with grave abuse of discretion. 15 To repeat, no rationale for such resolutions having been expounded on the merits of that action, no law of the case may be said to have been laid down in G.R. No. L-40992 to justify the respondent court's refusal to consider petitioner's claim that his former acquittal barred the separate action.

'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established, as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court (21 C.J.S. 330). (Emphasis supplied). 16

It need not be stated that the Supreme Court being the court of last resort, is the final arbiter of all legal questions properly brought before it and that its decision in any given case constitutes the law of that particular case . . . (Emphasis supplied). 17

It is a rule of general application that the decision of an appellate court in a case is the law of the case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first question rested and, according to some authorities, provided the decision is on the merits . . . 18

2. With the foregoing ancillary issue out of the way, We now consider the principal plaint of petitioner.

Apropos to such resolution is the settled rule that the same act or omission (in this case, the negligent sideswiping of private respondent) can create two kinds of liability on the part of the offender, that is, civil liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability. 19

We also note the reminder of petitioner that in Roa vs. De la Cruz, et al., 20 it was held that where the offended party elected to claim damages arising from the offense charged in the criminal case through her intervention as a private prosecutor, the final judgment rendered therein constituted a bar to the subsequent civil action based upon the same cause. It is meet, however, not to lose sight of the fact that the criminal action involved therein was for serious oral defamation which, while within the contemplation of an independent civil action under Article 33 of the Civil Code, constitutes only a penal omen and cannot otherwise be considered as a quasi-delict or culpa aquiliana under Articles 2176 and 2177 of the Civil Code. And while petitioner draws attention to the supposed reiteration of the Roa doctrine in the later case of Azucena vs. Potenciano, et al., 21 this time involving damage to property through negligence as to make out a case of quasi-delict under Articles 2176 and 2180 of the Civil Code, such secondary reliance

is misplaced since the therein plaintiff Azucena did not intervene in the criminal action against defendant Potenciano. The citation of Roa in the later case of Azucena was, therefore, clearly obiter and affords no comfort to petitioner.

These are aside from the fact that there have been doctrinal, and even statutory, 22 changes on the matter of civil actions arising from criminal offenses and quasi-delicts. We will reserve our discussion on the statutory aspects for another case and time and, for the nonce, We will consider the doctrinal developments on this issue.

In the case under consideration, private respondent participated and intervened in the prosecution of the criminal suit against petitioner. Under the present jurisprudential milieu, where the trial court acquits the accused on reasonable doubt, it could very well make a pronounce ment on the civil liability of the accused 23 and the complainant could file a petition for mandamus to compel the trial court to include such civil liability in the judgment of acquittal. 24

Private respondent, as already stated, filed a separate civil aciton after such acquittal. This is allowed under Article 29 of the Civil Code. We have ruled in the relatively recent case of Lontoc vs. MD Transit & Taxi Co., Inc., et al. 25 that:

In view of the fact that the defendant-appellee de la Cruz was acquitted on the ground that 'his guilt was not proven beyond reasonable doubt' the plaintiff-appellant has the right to institute a separate civil action to recover damages from the defendantsappellants (See Mendoza vs. Arrieta, 91 SCRA 113). The well-settled doctrine is that a person, while not criminally liable may still be civilly liable. 'The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist'. (Padilla vs. Court of Appeals, 129 SCRA 558 cited in People vs. Rogelio Ligon y Tria, et al., G.R. No. 74041, July 29, 1987; Filomeno Urbano vs. Intermediate Appellate Court, G.R. No. 72964, January 7, 1988). The ruling is based on Article 29 of the Civil Code which provides:

When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act

or omission may be instituted. Such action requires only a preponderance of evidence ... 26

Another consideration in favor of private respondent is the doctrine that the failure of the court to make any pronouncement, favorable or unfavorable, as to the civil liability of the accused amounts to a reservation of the right to have the civil liability litigated and determined in a separate action. The rules nowhere provide that if the court fails to determine the civil liability it becomes no longer enforceable. 27

Furthermore, in the present case the civil liability sought to be recovered through the application of Article 29 is no longer that based on or arising from the criminal offense. There is persuasive logic in the view that, under such circumstances, the acquittal of the accused foreclosed the civil liability based on Article 100 of the Revised Penal Code which presupposes the existence of criminal liability or requires a conviction of the offense charged. Divested of its penal element by such acquittal, the causative act or omission becomes in effect a quasi-delict, hence only a civil action based thereon may be instituted or prosecuted thereafter, which action can be proved by mere preponderance of evidence. 28 Complementary to such considerations, Article 29 enunciates the rule, as already stated, that a civil action for damages is not precluded by an acquittal on reasonable doubt for the same criminal act or omission.

The allegations of the complaint filed by the private respondent supports and is constitutive of a case for a quasi-delict committed by the petitioner, thus:

3. That in the evening of July 7, 197l at about 7:00 o'clock, the plaintiff crossed Iznart Street from his restaurant situated at 220 lznart St., Iloilo City, Philippines, on his way to a meeting of the Cantonese Club at Aldeguer Street, Iloilo City and while he was standing on the middle of the street as there were vehicles coming from the Provincial Building towards Plazoleta Gay, Iloilo City, he was bumped and sideswiped by Volkswagen car with plate No. B-2508 W which was on its way from Plazoleta Gay towards the Provincial Capitol, Iloilo City, which car was being driven by the defendant in a reckless and negligent manner, at an excessive rate of speed and in violation of the provisions of the Revised Motor Vehicle (sic) as amended, in relation to the Land Transportation and Traffic Code as well as in violation of existing city ordinances, and by reason of his inexcusable lack of precaution and failure to act with due negligence

and by failing to take into consideration (sic) his degree of intelligence, the atmospheric conditions of the place as well as the width, traffic, visibility and other conditions of lznart Street; 29

Since this action is based on a quasi-delict, the failure of the respondent to reserve his right to file a separate civil case and his intervention in the criminal case did not bar him from filing such separate civil action for damages. 30 The Court has also heretofore ruled in Elcano vs. Hill 31 that

... a separate civil action lies against the offender in a criminal act whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is also actually charged criminally, to recover damages on both scores; and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (c) of Sec. 3 Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code; whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused . . .

The aforecited case of Lontoc vs. MD Transit & Taxi Co., Inc., et al. involved virtually the same factual situation. The Court, in arriving at the conclusion hereinbefore quoted, expressly declared that the failure of the therein plaintiff to reserve his right to file a separate civil case is not fatal; that his intervention in the criminal case did not bar him from filing a separate civil action for damages, especially considering that the accused therein was acquitted because his guilt was not proved beyond reasonable doubt; that the two cases were anchored on two different causes of action, the criminal case being on a violation of Article 365 of the Revised Penal Code while the subsequent complaint for damages was based on a quasi-delict; and that in the judgment in the criminal case the aspect of civil liability was not passed upon and resolved. Consequently, said civil case may proceed as authorized by Article 29 of the Civil Code.

Our initial adverse observation on a portion of the decision of respondent court aside, We hold that on the issues decisive of this case it did not err in sustaining the decision a quo.

WHEREFORE, the writ prayed for is hereby DENIED and the decision of the respondent Court of Appeals is AFFIRMED, without costs.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

G.R. No. L-34906

January 27, 1983

THE REPUBLIC OF THE PHILIPPINES (CAPIZ AGRICULTURAL AND FISHERY SCHOOL), petitioner, vs. HON. SILVESTRE BR. BELLO, Presiding Judge of Branch II, Court of First Instance of Capiz and ROMEO A. ARCEO, respondents.

The Solicitor General for petitioner.

Rolindo Beldia, Jr., for private respondent Arceo.

VASQUEZ, J.:

The Republic of the Philippines, in behalf of the Capiz Agricultural and Fishery School, takes his appeal from an order of the respondent Court of First Instance of Capiz dismissing Civil Case No. V-3339 which it filed against private respondent Romeo A.

Arceo for the recovery of the amount representing his alleged liability to the government in connection with his employment as Cashier and Disbursing Officer of the said school.

Private respondent Arceo in his aforementioned capacity, was charged in Criminal Case No. CCC-XI-39 for malversation of public funds in the amount of P6,619.34 which he supposedly failed to produce or to make proper accounting thereof after repeated demands. After due trial, the respondent court rendered a decision acquitting Arceo a portion of which reads as follows:

To briefly summarizethe undisputed facts spread before the court clearly and unmistakably show lack of criminal intent on accused's part in not issuing official receipts for his collections and disbursements; absence of proof that the accused benefited personally from his disbursements nor has it been shown that he was inexcusably negligent in the administration of public funds and properties entrusted to his care; nor has it been shown and proven that the government suffered damage or prejudice as the accused's disbursements were for the benefit of the Capiz Agricultural and Fishery School; that the funds claimed to be missing in the amount of P6,619.34 is not really missing for the accused demonstrated that said amounts were spent for and in the interest of the Capiz Agricultural and Fishery School as shown by the numerous chits, vouchers, vales, etc., presented in Court.

WHEREFORE, finding the evidence of the prosecution not sufficient to establish the guilt of the accused beyond reasonable doubt, the court hereby acquits Romeo Arceo from the charge of malversation on grounds of Reasonable Doubt, with costs de officio and the cancellation of the bail bond posted by him for his provisional liberty.

SO ORDERED. (pp. 119-120, Rollo; pp. 2-3, Appellant's Brief, p. 239, Rollo.)

After the acquittal of Arceo the Provincial Fiscal filed Civil Case No. V-3339 for the recovery of the total sum of P13,790.71 which represented the accountability of Arceo due to his failure to issue official receipts and to immediately deposit said funds with the National Treasury, and instead spent the said funds or disbursed them without complying with the requirements applicable to disbursements of public funds, with intent

to defraud the government. Arceo through counsel, filed a motion to dismiss the complaint in the said civil case alleging, among others, that the petitioner, as plaintiff therein, had no cause of action against him inasmuch as "the cause of action had been decided in a prior judgment." a The opposition filed by the Provincial Fiscal to the motion to dismiss was not adhered to by the respondent court which issued an order dated June 10, 1971 dismissing the complaint in Civil Case No. V-3339. A motion for reconsideration from the dismissal was denied. Hence, this appeal.

The only issue raised in this appeal is whether or not the acquittal of Arceo in the criminal case bars the filing of the civil action against him. Arceo relies on the provision of Section 3(c) of Rule 111 of the Rules of Court, which reads as follows:

(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered. (Emphasis supplied)

The petitioner, on the other hand, disputes the contention of Arceo and maintains that the decision in the criminal case does not contain any declaration that the facts from which the civil liability might arise did not exist.

We uphold the stand of the petitioner. An examination of the decision in the criminal case reveals these findings of the respondent court:

All the foregoing expenses and disbursements were never overthrown by the prosecution. All that the government prosecutor tried to show was this the whole of what the accused did in disbursing the funds covered by the vales, chits, cash invoices, etc., etc., were not in accordance with auditing rules and regulations. There is no doubt about this. The accused practically brushed aside and ignored all guidelines enunciated by the General Auditing Office regarding disbursement of government funds. In Exhibit 'Q' (prosecution) Regional Supervising Auditor Brodit in a report to the Director of the Bureau of Vocational Education, Manila, mentioned the illegality of the accused's

disbursements as contrary to section 17 of Republic Act 992. This Republic Act, Exhibit 'S' was presented by the prosecuting Provincial Fiscal, perhaps to bolster Exhibit-'Q'.

The Court, as it has already intimated anteriorly, believes that the accused's acts offended the Republic Act above-mentioned and every other auditing rule or regulation in the country, ... (pp. 104-105, Rollo.)

From what has been shown by the accused, his failure to record his collections, was for a good purpose and not to defraud the government. He kept the cash collections in his possession in order that he may have the ready amount to spend for emergency needs of the school This might be against the instructions to him or offensive to rules and regulations of the General Auditing Office but it is patent that criminal intent cannot be inferred from such actuation. (pp. 110-111, Rollo.)

... As the prosecution evidence stands, same considered void all the acts of the accused but the vales, chits, cash slips, vouchers, travel expenses showing that funds represented by them have been expended for the use, operation,' improvement, maintenance of the school's projects, like the fishpond, piggery, sugar cane plantation, school construction materials, spare parts for the school's machines, representation expenses for visiting bureau officials, etc., etc., makes open to doubt the contention that simply because they were not covered with official receipts they are illegal and cannot be validated. The Court doubts that that contention closes all avenues to validate and legalize the questioned private documents presented by the accused. As the Court looks at the matter before it, the evidence of the prosecution is not enough to establish the guilt of the accused as it opens an avenue leading to a belief that the accused might be innocent. The evidence presented by the State did not remove the possibility that Romeo Arceo might not be guilty of the offense charged. ... (pp. 117-118, Rollo; pp. 911, Appellant's Brief, p. 239, Rollo.)

According to the respondent court itself, it was admitted by Arceo that he did not post his collections in his books of account nor deposited them with the National Treasury as required by the rules and regulations. Worse, he disbursed them without prior approval of the Auditor. The decision did not absolve Arceo or free him from responsibility insofar as his accountability as Cashier and Disbursing Officer is concerned. The acquittal, in the words of the trial court, was because "The evidence of the prosecution

is not enough to establish the guilt of the accused as it opens an avenue leading to a belief that the accused might be innocent." Indeed, the dispositive portion of the decision in the criminal case did not state that the facts upon which his responsibility as an accountable officer is based were non-existent. Instead it expressly and categorically declares that his acquittal was upon the finding that "the evidence of the prosecution was not sufficient to establish the guilt of the accused beyond reasonable doubt.

It is also to be noted that while the subject-matter of the malversation case was the amount of P6,619.34, the sum sought to be recovered in the civil action totalled P13,790.70.

The latter amount included the five items involved in the criminal action, as well as the additional sum of P7,170.31 representing the income of the school from its various projects for which the accused failed to issue official receipts, (pp. 4647, Rollo.) At least insofar as the recovery of the aforesaid amount is concerned, therefore, the private respondent cannot place in defense his acquittal in the criminal action which did not involve said amount.

Even insofar as the amount of P6,619.34 which constituted the subject-matter of the criminal charge of malversation is concerned, the acquittal of the private respondent in the criminal case would not constitute an obstacle to the filing of Civil Case No.