JOSE ANTONIO C.

LEVISTE,
Petitioner,

G.R. No. 182677

Present:

- versus -

HON. ELMO M. ALAMEDA, HON.

RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO,
HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Respondents.

CARPIO MORALES, Chairperson,

NACHURA,*
BERSAMIN,
ABAD,** and
VILLARAMA, JR., JJ.
Promulgated:
August 3, 2010

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DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision[1] and the April 18,
2008 Resolution[2]of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.
Petitioner was, by Information[3] of January 16, 2007, charged
with homicide for the death of Rafael de las Alas on January 12, 2007 before the
Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was
raffled, presided by Judge Elmo Alameda, forthwith issued a commitment
order[4] against petitioner who was placed under police custody while confined at
the Makati Medical Center.[5]

After petitioner posted a P40,000 cash bond which the trial court approved,
he was released from detention, and his arraignment was set on January 24,
2007.
[6]

The private complainants-heirs of De las Alas filed, with the conformity of

the public prosecutor, an Urgent Omnibus Motion [7] praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring
petitioners arraignment and allowing the prosecution to conduct a reinvestigation
to determine the proper offense and submit a recommendation within 30 days from
its inception, inter alia; and (2) Order of January 31, 2007[9] denying
reconsideration of the first order. Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion

before the trial court to defer acting on the public prosecutors recommendation on
the proper offense until after the appellate court resolves his application for
injunctive reliefs, or alternatively, to grant him time to comment on the
prosecutors recommendation and thereafter set a hearing for the judicial
determination of probable cause.[10] Petitioner also separately moved for the
inhibition of Judge Alameda with prayer to defer action on the admission of the
Amended Information.[11]
The trial court nonetheless issued the other assailed orders, viz: (1) Order
of February 7, 2007[12] that admitted the Amended Information[13] for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
2007[14] which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE

THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE
BEING
ADDUCED
DURING
THE
REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.[15] (emphasis in the
original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to enter a
plea of not guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application
for Admission to Bail Ex Abundanti Cautela[16] which the trial court, after hearings
thereon, granted by Order of May 21, 2007,[17] it finding that the evidence of guilt
for the crime of murder is not strong. It accordingly allowed petitioner to post bail
in the amount ofP300,000 for his provisional liberty.

The trial court, absent any writ of preliminary injunction from the appellate
court, went on to try petitioner under the Amended Information. By Decision of
January 14, 2009, the trial court found petitioner guilty of homicide, sentencing him
to suffer an indeterminate penalty of six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. From the
Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR
No. 32159, during the pendency of which he filed an urgent application for
admission to bail pending appeal. The appellate court denied petitioners
application which this Court, in G.R. No. 189122, affirmed by Decision of March
17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.[18]
Waiver on the part of the accused must be distinguished from mootness
of the petition, for in the present case, petitioner did not, by his active participation
in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve the matter as early as
practicable but not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment.
During the arraignment on March 21, 2007, petitioner refused to enter his plea
since the issues he raised were still pending resolution by the appellate court, thus
prompting the trial court to enter a plea of not guilty for him.

The principle that the accused is precluded after arraignment from

questioning the illegal arrest or the lack of or irregular preliminary investigation applies only if
hevoluntarily enters his plea and participates during trial, without previously
invoking his objections thereto.[19] There must be clear and convincing proof that
petitioner had anactual intention to relinquish his right to question the existence of
probable cause. When the only proof of intention rests on what a party does, his
act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.[20]
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite resolution
of the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioners
participation in the trial was unconditional with the intent to voluntarily and
unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still
moved for the early resolution of the present petition.[21]
Whatever delay arising from petitioners availment of remedies against the
trial courts Orders cannot be imputed to petitioner to operate as a valid waiver on
his part. Neither can the non-issuance of a writ of preliminary injunction be
deemed as a voluntary relinquishment of petitioners principal prayer. The nonissuance of such injunctive relief only means that the appellate court did not
preliminarily find any exception[22] to the long-standing doctrine that injunction
will not lie to enjoin a criminal prosecution.[23] Consequently, the trial of the case
took its course.
The petition is now moot, however, in view of the trial courts rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be
of no practical use or value.[24]
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the present

petition. Assuming that there is ground[25] to annul the finding of probable cause
for murder, there is no practical use or value in abrogating the concluded
proceedings and retrying the case under the original Information for homicide just
to arrive, more likely or even definitely, at the same conviction of
homicide. Mootness would have also set in had petitioner been convicted of
murder, for proof beyond reasonable doubt, which is much higher than probable
cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. [26] In the present case,
there is compelling reason to clarify the remedies available before and after the
filing of an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances,
the Court finds no reversible error on the part of the appellate court in finding no
grave abuse of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has
no right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a
warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.
The contention lacks merit.
Section 6,[27] Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer

directly with the proper court on the basis of the affidavit of the offended
party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)

A preliminary investigation is required before the filing of a complaint or

information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. [28] As an exception, the rules
provide that there is no need for a preliminary investigation in cases of a lawful
arrest without a warrant[29]involving such type of offense, so long as an inquest,
where available, has been conducted.[30]
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained without
the benefit of a warrant of arrest issued by the court for the purpose of determining
whether said persons should remain under custody and correspondingly be charged
in court.[31]
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of inquest, to
grasp the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN
COURT, the private complainant may proceed in coordinating with the arresting
officer and the inquest officer during the latters conduct of inquest. Meanwhile,

the arrested person has the option to avail of a 15-day preliminary investigation,
provided he duly signs a waiver of any objection against delay in his delivery to
the proper judicial authorities under Article 125 of the Revised Penal Code. For
obvious reasons, this remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the provisions of Article 125,
which requires the filing of a complaint or information with the proper judicial
authorities within the applicable period,[32] belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of
an information in court or the immediate release of the arrested person. [33] Notably,
the rules on inquest do not provide for a motion for reconsideration.[34]
Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in cases
subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by
petition by a proper party under such rules as the Department of Justice may
prescribe.[35] The rule referred to is the 2000 National Prosecution Service Rule
on Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals
from resolutions x x x in cases subject of preliminary investigation/
reinvestigation. In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating
the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the
rules yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case,
a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor.[37] The private
complainant in a criminal case is merely a witness and not a party to the case and
cannot, by himself, ask for the reinvestigation of the case after the information had
been filed in court, the proper party for that being the public prosecutor who has
the control of the prosecution of the case.[38] Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal action, [39] and is
granted the authority to prosecute,[40] the private complainant, by counsel and with
the conformity of the public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions and
to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error

would appear or be discoverable from a review of the records of the
preliminary investigation. Of course, that fact may be perceived by the
trial judge himself but, again, realistically it will be the prosecutor who
can initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses
includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute
remedial measures[.][42] (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the

government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion the discretion of what and whom to charge, the

exercise of which depends on a smorgasbord of factors which are best appreciated

by prosecutors.[43]
The prosecutions discretion is not boundless or infinite, however.[44] The
standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound discretion of the
court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one
case that:
The rule is now well settled that once a complaint or information is
filed in court, any disposition of the case, whether as to its dismissal or
the conviction or the acquittal of the accused, rests in the sound discretion
of the court. Although the prosecutor retains the direction and control of
the prosecution of criminal cases even when the case is already in court,
he cannot impose his opinion upon the tribunal. For while it is true that
the prosecutor has the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court, once the case had already
been brought therein any disposition the prosecutor may deem proper
thereafter

should be addressed to the court for its consideration and approval. 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.
xxxx
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution finds
a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the court.
[46]
(underscoring supplied)

While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to
be preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation of
a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion wide and far reaching regarding the disposition
thereof,[48]subject to the trial courts approval of the resulting proposed course of
action.
Since a reinvestigation may entail a modification of the criminal information
as what happened in the present case, the Courts holding is bolstered by the rule
on amendment of an information under Section 14, Rule 110 of the Rules of Court:
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.
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. (emphasis
supplied)

In fine, before the accused enters a plea, a formal or substantial amendment

of the complaint or information may be made without leave of court. [49] After the
entry of a plea, only a formal amendment may be made but with leave of court and
only 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.
[50]

It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal.[51] An amendment which
operates to vest jurisdiction upon the trial court is likewise impermissible.[52]

Considering the general rule that an information may be amended even in

substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.

Any remedial measure springing from the reinvestigation be it a complete

disposition or an intermediate modification [53] of the charge is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial
court would ultimately make the determination on the proposed course of action, it
is for the prosecution to consider whether a reinvestigation is necessary to adduce
and review the evidence for purposes of buttressing the appropriate motion to be
filed in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a
new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,[54] the Court ruled that a substantial amendment in an information
entitles an accused to another preliminary investigation, unless the amended
information contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information
from homicide to murder is considered a substantial amendment, which
would make it not just a right but a duty of the prosecution to ask for a
preliminary investigation.
The Court answers in the affirmative.
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. The following have
been held to be mere 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; and (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.
The test as to whether a defendant is prejudiced by the
amendment is whether a defense under the information as it originally
stood would be available after the amendment is made, andwhether 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. [55] (emphasis and underscoring
supplied)

Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the
amended Information in Matalam were similarly charging the accused with
violation of Section 3(e) of theAnti-Graft and Corrupt Practices Act.
In one case,[56] it was squarely held that the amendment of the Information
from homicide to murder is one of substance with very serious
consequences.[57] The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident premeditation, and
cruelty, which qualify the offense charged from homicide to murder. It being a
new and material element of the offense, petitioner should be given the chance to
adduce evidence on the matter. Not being merely clarificatory, the amendment
essentially varies the prosecutions original theory of the case and certainly affects
not just the form but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v.
Cajigal,[59] wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the body
of the Information, as the allegations of qualifying circumstances were already
clearly embedded in the original Information. Buhat pointed out that the original
Information for homicide already alleged the use of superior strength,

while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the
fact that what was conducted in the present case was a reinvestigation does not
invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both are
conducted in the same manner and for the same objective of determining whether
there exists sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof and should be held
for trial.[60] What is essential is that petitioner was placed on guard to defend
himself from the charge of murder[61] after the claimed circumstances were made
known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v.
Court of Appeals states that the rules do not even require, as a condition sine qua
non to the validity of a preliminary investigation, the presence of the respondent as
long as efforts to reach him were made and an opportunity to controvert the
complainants evidence was accorded him.[62]
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.[63] The appellate court, by Resolutionof February 15,
2007,[64] denied petitioners application for a temporary restraining order and writ
of preliminary injunction. Supplementary efforts to seek injunctive reliefs proved
futile.[65] The appellate court thus did not err in finding no grave abuse of
discretion on the part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.[66]
Regarding petitioners protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In Santos-Concio
v. Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance
of functions. For ones prompt dispatch may be anothers undue
haste. The orderly administration of justice remains as the paramount
and constant consideration, with particular regard of the circumstances
peculiar to each case.
The presumption of regularity includes the public officers official
actuations in all phases of work. Consistent with such presumption, it
was incumbent upon petitioners to present contradictory evidence other
than a mere tallying of days or numerical calculation. This, petitioners
failed to discharge. The swift completion of the Investigating Panels
initial task cannot be relegated as shoddy or shady without discounting
the presumably regular performance of not just one but five state
prosecutors.[68]

There is no ground for petitioners protestations against the DOJ Secretarys

sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case[69] and the latters conformity to the
motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public

prosecutor who will conduct the reinvestigation or preliminary investigation.
[70]
There is a hierarchy of officials in the prosecutory arm of the executive branch
headed by the Secretary of Justice[71] who is vested with the prerogative to appoint
a special prosecutor or designate an acting prosecutor to handle a particular case,
which broad power of control has been recognized by jurisprudence.[72]
As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to maim
and not to kill the victim, one bullet would have sufficed the DOJ Secretary
reportedly uttered that the filing of the case of homicide against ano against
Leviste lintek naman eh I told you to watch over that case there should be a
report about the ballistics, about the paraffin, etc., then thats not a complete
investigation, thats why you should use that as a ground no abuse of
discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a determination to file
the Information even in the absence of probable cause.[73] On the contrary, the
remarks merely underscored the importance of securing basic investigative reports
to support a finding of probable cause. The original Resolution even recognized
that probable cause for the crime of murder cannot be determined based on the
evidence obtained [u]nless and until a more thorough investigation is
conducted and eyewitness/es [is/]are presented in evidence[.][74]
The trial court concluded that the wound sustained by the victim at the back
of his head, the absence of paraffin test and ballistic examination, and the handling
of physical evidence,[75] as rationalized by the prosecution in its motion, are
sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of
judicial probable cause which is sufficient to initiate a criminal case.[76]

In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must be
filed in court. Whether that function has been correctly discharged by the public
prosecutor, i.e., whether he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may not
be compelled to pass upon.[77]
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of
justice. If the judge finds no probable cause, the judge cannot be forced to issue
the arrest warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court
outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with
the court is first andforemost to determine the existence or non-existence of
probable cause for the arrest of the accused.[80]

What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But the judge is not required to personally examine
the complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutors
report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.
[81]
(emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine probable
cause for the issuance of a warrant of arrest of the accused before any warrant may
be issued.[82] Petitioner thus cannot, as a matter of right, insist on a hearing for
judicial determination of probable cause. Certainly, petitioner cannot determine
beforehand how cursory or exhaustive the [judge's] examination of the records
should be [since t]he extent of the judges examination depends on the exercise of
his sound discretion as the circumstances of the case require. [83] In one case, the
Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure
are mandatory, and as such, the judge must determine the presence or
absence of probable cause within such periods. The Sandiganbayans
determination of probable cause is made ex parte and is summary in
nature, not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause by needless
motions for determination of probable cause filed by the accused.
[84]
(emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no

circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct

of
reinvestigation. It
is
not
material
that
no
new
matter
or evidence was presented during the reinvestigation of the case. It should

be stressed that reinvestigation, as the word itself implies, is merely a repeat

investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted.[85]
Moreover, under Rule 45 of the Rules of Court, only questions of law may
be raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.[86]
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment. [87] The courts duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.[88]

WHEREFORE, the petition is DENIED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 189818

Present:
CORONA, CJ., Chairperson,
VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

- versus -

MICHAEL LINDO y VERGARA,

Accused-Appellant.

Promulgated:

August 9, 2010
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
Before this Court on appeal is the Decision of the Court of Appeals [1] (CA) in
CA-G.R. CR-H.C. No. 00283 dated April 25, 2008, which upheld the conviction of
accused-appellant Michael Lindo y Vergara (Lindo) of the crime of rape, in
Criminal Case No. 01-191273, decided by the Regional Trial Court (RTC), Branch
38 in Manila on June 28, 2004.
The facts of the case are as follows: AAA,[2] the private complainant, born
on May 6, 1989, was 11 years old at the time, residing in San Andres Bukid,
Malate, Manila, and accused-appellant Lindo was her neighbor.
On April 3, 2001, AAA attended a pabasa at a neighbors place, during
which she fell asleep under a platform that served as a stage. While AAA was
sleeping, Lindo took her away to a place near a creek where clothes are placed to

dry. It was there that AAA woke up, as Lindo removed her short pants and
underwear, and also undressed himself. He tried inserting his penis into her vagina,
whereupon his penis made contact with her sex organ but there was no complete
penetration. Not achieving full penile penetration, he then made her bend over,
and inserted his penis into her anus, causing her to cry out in pain. Lindo then
sensed the arrival of a friend of AAA, so he discontinued his act, and told AAA to
put on her clothes and go home. These AAA did, and related the incident to her
parents, who reported it to the barangay authorities. Lindo was arrested the
same day.
AAA was examined by Dr. Evelyn B. Ignacio, National Bureau of
Investigation (NBI) Medico-Legal Officer, on the same day, and was found to have
extragenital physical injuries as well as abrasions on her anal orifice. Dr. Ignacio
theorized that the anal injuries could have been caused by the insertion of a blunt
object, such as a penis, finger or pencil.
Lindo raised the defenses of denial and alibi, claiming that as a painter
working in Ayala, Makati, his usual work schedule was from 8:00 a.m. to 6:00
p.m. He claimed that on April 3, 2001, he reported for work at 8:00 p.m. until 5:00
a.m., and that when he came home from work at 6:00 a.m., he was arrested by
a barangay official and was brought to the police precinct, where he was
investigated for rape.
Lindo was charged in an Information dated April 6, 2001, which reads as
follows:
That on or about April 3, 2001, in the City of Manila, Philippines,
the said accused, did then and there wilfully, unlawfully and feloniously,
with lewd designs and by means of force and intimidation commit sexual
abuse to wit: by then and there carrying said [AAA], a minor, 11 years
old, and bringing her to a vacant lot, trying to insert his penis into her
vagina but said accused was not able to do so, thereafter inserting his
penis into her anus, thereby endangering her normal growth and
development.
CONTRARY TO LAW.[3]

The RTC found the testimony of AAA to be more credible, and rendered its
decision, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered finding the accused
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
Statutory Rape under Art. 335 of the Revised Penal Code in relation to
Republic Act No. 7610 and he is hereby sentenced to suffer reclusion
perpetua with all the necessary penalties provided by law and to pay the
victim the amount of P50,000.00 as and by way of moral damages.
No pronouncement as to costs.
SO ORDERED.[4]

Lindo appealed to the CA, assailing the credibility of AAA.

Lindo failed to persuade the CA, which affirmed his conviction, but
modified the award of damages to AAA. The CA found the award of civil
indemnity proper, in line with prevailing jurisprudence. Exemplary damages were
also found to be proper, for the purpose of being a deterrent to crime. The
dispositive portion of the CA decision reads as follows:
WHEREFORE, premises considered, the Decision appealed from,
being in accordance with law and the evidence, is hereby AFFIRMED
with the MODIFICATION that accused-appellant MICHAEL LINDO y
VERGARA is further ORDERED to pay private complainant indemnity
in the amount of P50,000.00 and exemplary damages in the amount of
P25,000.00.
SO ORDERED.[5]

Now before this Court, accused-appellant Lindo reiterates his defense

presented before the RTC and the CA, questioning the weight given to AAAs
testimony and its credibility.

The Courts Ruling

The conviction of accused-appellant Lindo must be affirmed.
At the outset, it must be noted that the RTC and the CA made reference to
Article 335 of the Revised Penal Code. The RTC cited Art. 335 in the dispositive
portion of its decision, while the CA referred to Art. 335, paragraph 3, as
amended. Both courts were in error to do so. The crime of rape is no longer to be
found under Title Eleven of the Revised Penal Code, or crimes against chastity. As
per Republic Act No. 8353, or the Anti-Rape Law of 1997, the crime of rape has
been reclassified as a crime against persons. As of October 22, 1997, the date of
effectivity of the Anti-Rape Law, the crime of rape is now defined under Art. 266A of the Revised Penal Code, with the penalties for rape laid out in Art. 266-B. As
the incident happened on April 3, 2001, it is no longer covered by Art. 335 of the
Revised Penal Code, but Art. 266-A.
That matter aside, the defense raised by accused-appellant is a reiteration of
his questioning of AAAs credibility. He claims that her testimony is unworthy of
belief as it runs counter to the course of human experience. Specifically, he argues
that no rape could have taken place as the area was in public view. He also argues
that the testimony of AAA, that she was lifted while asleep, is incredible as his
alleged lifting of her failed to wake her up.
The arguments raised by accused-appellant fail to discredit the victim and
cast doubt upon her testimony.
That the act was carried out in a public place does not make it
unbelievable. The evil in man has no consciencethe beast in him bears no
respect for time and place, driving him to commit rape anywhere, even in places
where people congregate such as in parks, along the roadside, within school
premises, and inside a house where there are other occupants. [6] There is no rule
that rape can only be committed in seclusion. [7] The commission of rape is not
hindered by time or place as in fact it can be committed even in the most public of
places.[8] Clearly, the argument of accused-appellant that there could be no rape as
the place was in full view of the public does not have a legal leg to stand on. The

fact that the area was in the public eye would not prevent a potential rapist from
carrying out his criminal intent.
The RTC found the witness to be credible, and it had the best opportunity to
observe her testimony. She testified in a straightforward and clear manner,
detailing how accused-appellant had carnal knowledge of her.[9] The RTC, as
affirmed by the CA, categorically found thus:
In the case at bar, the story of the complaining witness even finds
support in the medical findings of Dr. Ignacio who examined her
immediately after the incident. The physician saw multiple abrasions on
the victims neck supporting the latters testimony that she was strangled
by the accused. Additionally, [wreckage] was seen in her anal area
which could have been caused by insertion of a blunt object like a male
penis buttressing the victims claim that accused inserted his private
organ into her anus.
While the victim testified that the accused did not succeed in
inserting his penis into her vagina, time and again [the Supreme Court]
held that the slight penetration of the labia by the male organ still
constitutes rape (People vs. Borja, 267 SCRA 370). The lack of
lacerated wound does not negate sexual intercourse (People vs. San Juan,
270 SCRA 693). x x x
xxxx
It is clear from the complainants narration that the accused
did not only penetrate her anus but also her vagina only that in the
latter case, the accused was not able to insert his penis into the
cervical area or the vaginal opening.[10] x x x (Emphasis supplied.)

Accused-appellant failed to show any inconsistencies or discrepancies in

AAAs testimony, and failed to put the lie to her words. We have held, time and
again, that testimonies of rape victims who are young and immature, as in this
case, deserve full credence, considering that no young woman, especially one of
tender age, would concoct a story of defloration, allow an examination of her
private parts, and thereafter testify about her ordeal in a public trial, if she had not

been motivated by a desire to obtain justice for the wrong committed against her.
[11]

Against AAAs straightforward testimony, accused-appellant raises the

defense of alibi, stating that he was at work from 8:00 p.m. to 5:00 a.m. To
successfully invoke alibi, however, an accused must establish with clear and
convincing evidence not only that he was somewhere else when the crime was
committed, but also that it was physically impossible for him to have been at the
scene of the crime at the time of its commission. [12] Accused-appellant offers
nothing but his bare word that he was elsewhere, and his word must fail against
AAAs testimony and positive identification of him as the perpetrator. He could
not present any corroborating witness or evidence to prove his presence elsewhere
than at the scene of the crime. It is well-settled that positive identification, where
categorical, consistent, and not attended by any showing of ill motive on the part of
the eyewitness testifying on the matter, prevails over alibi and denial, which, if not
substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving weight in law.[13]
Notable as well, as the trial and appellate courts aptly pointed out, is the
presentation of Dr. Ignacio, the NBI Medico-Legal Officer, and the fact that she
made a physical examination of AAA, which supports AAAs testimony. AAA
testified that accused-appellant tried to insert his penis into her vagina, and inserted
it as well in her anus. This jibes with the findings of Dr. Ignacio from her physical
examination of AAA. When a rape victims account is straightforward and candid,
and is corroborated by the medical findings of the examining physician, it is
sufficient to support a conviction for rape.[14]
It has been proved beyond reasonable doubt that accused-appellant Lindo
had carnal knowledge of AAA. The insertion of his penis into the vagina of AAA,
though incomplete, was sufficient. As held in People v. Tablang,[15] the mere
introduction of the male organ in the labia majora of the victims genitalia
consummates the crime; the mere touching of the labia by the penis was held to be
sufficient. The elements of the crime of rape under Art. 266-A of the Revised
Penal Code are present. Under the said article, it provides that rape is committed
by a man who shall have carnal knowledge of a woman when the offended party is
under twelve years of age. AAA was 11 years old at the time accused-appellant

had carnal knowledge of her. As such, that constitutes statutory rape. The two
elements of the crime are: (1) that the accused had carnal knowledge of a woman;
and (2) that the woman was below 12 years of age. [16] Thus, the CA correctly
upheld the conviction of accused-appellant by the RTC.
Both the RTC and the CA, however, erred in finding only one count of rape
in the present case. It is settled that in a criminal case, an appeal throws the whole
case open for review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment appealed from, whether they are made the
subject of the assignment of errors or not. [17] From the information filed, it is clear
that accused-appellant was charged with two offenses, rape under Art. 266-A, par.
1 (d) of the Revised Penal Code, and rape as an act of sexual assault under Art.
266-A, par. 2. Accused-appellant was charged with having carnal knowledge of
AAA, who was under twelve years of age at the time, under par. 1(d) of Art. 266A, and he was also charged with committing an act of sexual assault by inserting
his penis into another persons mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person under the second paragraph of
Art. 266-A. Two instances of rape were indeed proved at the trial, as it was
established that there was contact between accused-appellants penis and
AAAs labia; then AAAs testimony established that accused-appellant was able to
partially insert his penis into her anal orifice. The medical examination also
supports the finding of rape under Art. 266-A par. 1(d) and Art. 266-A par. 2,
considering the extragenital injuries and abrasions in the anal region reported.
The information, read as a whole, has sufficiently informed accusedappellant that he is being charged with two counts of rape, as it relates his act of
inserting his penis into AAAs anal orifice, as well as his trying to insert his penis
into her vagina. We held in People v. Dimaano:
For complaint or information to be sufficient, it must state the
name of the accused; the designation of the offense given by the statute;
the acts or omissions complained of as constituting the offense; the name
of the offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed. What is
controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated,

these being mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts therein
recited. The acts or omissions complained of must be alleged in such
form as is sufficient to enable a person of common understanding to
know what offense is intended to be charged, and enable the court to
pronounce proper judgment. No information for a crime will be
sufficient if it does not accurately and clearly allege the elements of the
crime charged. Every element of the offense must be stated in the
information. What facts and circumstances are necessary to be included
therein must be determined by reference to the definitions and essentials
of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his
defense. The presumption is that the accused has no independent
knowledge of the facts that constitute the offense. [18]

Two offenses were charged, a violation of Section 13, Rule 110 of the
Revised Rules of Criminal Procedure, which states, A complaint or
information must charge only one offense, except when the law prescribes a
single punishment for various offenses. Section 3, Rule 120 of the Revised
Rules of Criminal Procedure states, When two or more offenses are charged
in a single complaint or information but the accused fails to object to it before
trial, the court may convict the appellant of as many as are charged and
proved, and impose on him the penalty for each offense, setting out separately
the findings of fact and law in each offense. As accused-appellant failed to
file a motion to quash the Information he can be convicted of two counts of
rape.
The CA modified the award of damages by the RTC, adding civil indemnity
and exemplary damages. This is but proper, considering that was done to conform
to prevailing jurisprudence. The award of civil indemnity to the rape victim is
mandatory upon finding that rape took place.[19] As to the award of exemplary
damages, it finds support in People v. Dalisay.[20] Art. 2229 of the Civil Code
serves as the basis for the award of exemplary damages as it pertinently provides,
Exemplary or corrective damages are imposed, by way of example or correction
for the public good, in addition to the moral, temperate, liquidated or compensatory
damages. Being corrective in nature, exemplary damages, therefore, can be

awarded, not only in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous conduct
of the offender.[21] By subjecting a child to his sexual depredations, accusedappellant has displayed behavior that society has an interest in curbing. Thus, the
purpose of exemplary damages to serve as a deterrent finds application to the
present case, to protect the youth from sexual abuse.
Accused-appellant was found guilty of two counts of rape, rape under Art.
266-A, par. 1(d) and rape through sexual assault, under Art. 266-A, par. 2. The
decision of the CA must therefore be modified. Accused-appellant would then be
sentenced for one count of rape and another count for rape through sexual
assault. For rape under Art. 266-A, par. 1(d), the imposable penalty is reclusion
perpetua. For rape through sexual assault under Art. 266-A, par. 2, the imposable
penalty is prision mayor; and applying the Indeterminate Sentence Law, accusedappellant would be sentenced to an indeterminate penalty of two years, four
months and one day of prision correccional as minimum, to eight years and one
day of prision mayor as maximum.
As to the damages awarded, considering that accused-appellant is guilty of
committing rape under Art. 266-A, par. 1(d) and rape through sexual assault under
Art. 266-A, par. 2 of the Revised Penal Code, the award should reflect that: for
rape under Art. 266-A, par. 1(d), civil indemnity is pegged at PhP 50,000, moral
damages at PhP 50,000, and exemplary damages increased to PhP 30,000, as per
prevailing jurisprudence;[22] and for rape through sexual assault under Art. 266-A,
par. 2 of the Revised Penal Code, the award of damages will be PhP 30,000 as civil
indemnity, PhP 30,000 as moral damages, and PhP 30,000 as exemplary damages,
in line with prevailing jurisprudence.[23]
Children should be protected from sexual predators, and the conviction of
accused-appellant, with the award of damages as well to the victim, serves this
purpose.
WHEREFORE,
the
Court AFFIRMS with MODIFICATION the
Decision of the CA in CA-G.R. CR-H.C. No. 00283. Accused-appellant Lindo is
found guilty of one count of rape under Art. 266-A par. 1(d), Revised Penal Code,
and is sentenced to suffer the penalty of reclusion perpetua, and to pay the victim,

AAA, PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP
30,000 as exemplary damages. Accused-appellant is likewise found guilty of one
count of rape through sexual assault under Art. 266-A, par. 2 of the Code, and is
sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to eight (8) years and one (1) day
of prision mayor, as maximum, and to pay the victim, AAA, PhP 30,000 as civil
indemnity, PhP 30,000 as moral damages, and PhP 30,000.00 as exemplary
damages.
SO ORDERED.

MYRNA P. ANTONE,
Petitioner,

G.R. No. 183824

Present:
CORONA,C.J.,
Chairperson,
LEONARD
O-DE CASTRO,*
DEL CASTILLO, and
ABAD,**
PEREZ, JJ.

-versus-

LEO
BERONILLA,

R.
Promulgated:
Respondent.
December 8, 2010

x-----------------------------------------------------------------------------------------x
DECISION
PEREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of

Court seeking to nullify and set aside the issuances of the Court of Appeals in CAG.R. SP No. 102834, to wit: (a) the Resolution [1] dated 29 April 2008 dismissing
the petition for certiorari under Rule 65, which assailed the trial courts
Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 070907-CFM for Bigamy; and (b) the Resolution [3] dated 18 July 2008 denying the
motion for reconsideration of the first resolution.
The trial court quashed the Information on the ground that the elements of
Bigamy were rendered incomplete after herein respondent presented documents to
prove a fact, which the court believed would negate the allegation in the
Information that there was a first valid marriage. The evidence presented showed
that respondent later obtained a judicial declaration of nullity of the first union
following the celebration of a subsequent marriage.
The Antecedents
On 12 March 2007, herein petitioner Myrna P. Antone executed an AffidavitComplaint[4] for Bigamy against Leo R. Beronilla before the Office of the City
Prosecutor of Pasay City. She alleged that her marriage with respondent in 1978
had not yet been legally dissolved when the latter contracted a second marriage
with one Cecile Maguillo in 1991.
On 21 June 2007, the prosecution filed the corresponding
Information[5] before the Regional Trial Court, Pasay City. The case was docketed
as Criminal Case No. 07-0907-CFM and raffled to Branch 115.
Pending the setting of the case for arraignment, herein respondent
moved to quash the Information on the ground that the facts charged do not
constitute an offense.[6] He informed the court that his marriage with
petitioner was declared null and void by the Regional Trial Court, Branch 16,
Naval, Biliran on 26 April 2007; [7] that the decision became final and executory on
15 May 200[7];[8] and that such decree has already been registered with the
Municipal Civil Registrar on 12 June 2007. [9] He argued that since the marriage
had been declared null and void from the beginning, there was actually no first

marriage to speak of. Absent a first valid marriage, the facts alleged in the
Information do not constitute the crime of bigamy.[10]
In its comment/opposition to the motion,[11] the prosecution, through herein
petitioner, maintained that the respondent committed an act which has all the
essential requisites of bigamy. The prosecution pointed out that the marriage of
petitioner and respondent on 18 November 1978 has not yet been severed
when he contracted a second marriage on 16 February 1991, for which reason,
bigamy has already been committed before the court declared the first
marriage null and void on 27 April 2007. [12] The prosecution also invoked the
rulings of the Supreme Court holding that a motion to quash is a hypothetical
admission of the facts alleged in the information, and that facts contrary
thereto are matters of defense which may be raised only during the
presentation of evidence.[13]

[15]

After a hearing on the motion, [14] the court quashed the Information.
Applying Morigo v. People,[16] it ruled:
Hence, contrary to what was stated in the Information, accused
Beronilla was actually never legally married to Myrna Antone. On this
score alone, the first element appears to be missing. Furthermore, the
statement in the definition of Bigamy which reads before the first
marriage has been legally dissolved clearly contemplates that the first
marriage must at least be annullable or voidable but definitely not void, as
in this case. xxx [I]n a similar case, [the Supreme Court] had the occasion
to state:
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under
the principle of retroactivity of a marriage being declared
void ab initio, the two were never married from the
beginning. xxx The existence and the validity of the first
marriage being an essential element of the crime of bigamy, it
is but logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of. xxx[17]

The prosecution, through herein petitioner, moved for reconsideration of the

said Order[18] on the ground, among others, that the facts and the attending
circumstances inMorigo are not on all fours with the case at bar. It likewise
pointed out that, in Mercado v. Tan,[19] this Court has already settled that (a)
declaration of the absolute nullity of a marriage is now explicitly required either as
a cause of action or a ground for defense.[20]
In its Order of 6 December 2007,[21] the court denied the motion for
reconsideration stating that Mercado has already been superseded by Morigo.
In the interim, in a Petition for Relief from Judgment[22] before the
Regional Trial Court of Naval, Biliran, petitioner questioned the validity of the
proceedings in the petition for the declaration of nullity of marriage in Civil Case
No. B-1290 on 5 October 2007. On 24 March 2008, the court set aside its
Decision of 26 April 2007 declaring the marriage of petitioner with respondent null
and void, and required herein petitioner (respondent in Civil Case No. B-1290) to
file her answer to the complaint. [23] On 21 July 2008, the court DISMISSED the
petition for nullity of marriage for failure of herein respondent (plaintiff in Civil
Case No. B-1290) to submit his pre-trial brief. [24] Respondent, however,
challenged the orders issued by the court before the Court of Appeals. [25] The
matter is still pending resolution thereat.[26]
Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court
filed on 26 March 2008 before the Court of Appeals, [27] herein petitioner alleged
that the Pasay City trial court acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction when it
dismissed the case of bigamy and denied her motion for reconsideration.
In its Resolution of 29 April 2008, the Court of Appeals dismissed the
petition stating that:
The present petition xxx is fatally infirm in form and substance for
the following reasons:
1. The verification is defective as it does not include the assurance
that the allegations in the petition are based on authentic records.

2. Since the petition assails the trial courts dismissal of the

criminal information for bigamy filed against private respondent Leo
Beronilla, the petition, if at all warranted, should be filed in behalf of the
People of the Philippines by the Office of the Solicitor General, being its
statutory counsel in all appealed criminal cases.
3. There is a violation of the rule on double jeopardy as the
dismissal of the subject criminal case is tantamount to an acquittal based on
the trial courts finding that the first essential element of bigamy, which is a
first valid marriage contracted by private respondent is wanting. There is
no clear showing in the petition that the dismissal was tainted with
arbitrariness which violated petitioners right to due process. Notably,
petitioner filed her comment/opposition to private respondents motion to
quash before the trial court issued its Order dated September 20, 2007
dismissing the information. Hence, if there is no denial of due process,
there can be no grave abuse of discretion that would merit the application
of the exception to the double jeopardy rule. [28]

On 18 July 2008, the Court of Appeals denied respondents Motion for

Reconsideration of the aforequoted Resolution for lack of merit. [29]
Hence, this petition.[30]
Our Ruling
I
We are convinced that this petition should be given due course despite the
defect in the pleading and the question of legal standing to bring the action.
The Rules of Court provides that a pleading required to be verified which
lacks a proper verification shall be treated as unsigned pleading.[31]
This, notwithstanding, we have, in a number of cases, opted to relax the
rule in order that the ends of justice may be served.[32] The defect being merely
formal and not jurisdictional, we ruled that the court may nevertheless order the
correction of the pleading, or even act on the pleading if the attending

circumstances are such that xxx strict compliance with the rule may be dispensed
with in order that the ends of justice xxx may be served. [33] At any rate, a
pleading is required to be verified only to ensure that it was prepared in good faith,
and that the allegations were true and correct and not based on mere speculations.
[34]

There is likewise no dispute that it is the Office of the Solicitor General

(OSG) which has the authority to represent the government in a judicial proceeding
before the Court of Appeals. The Administrative Code specifically defined its
powers and functions to read, among others:
Sec. 35. Powers and Functions. - The Office of the Solicitor
General shall represent the Government of the Philippines, its agencies
and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of lawyers. xxx
It shall have the following specific powers and functions:
(1) Represent the Government in the Supreme Court
and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the Supreme
Court, Court of Appeals, and all other courts or tribunals in
all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a
party.[35]

As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus,
agencies and offices to assist the Solicitor General and appear or
represent the Government in cases involving their respective offices,
brought before the courts and exercise supervision and control over such
legal officers with respect to such cases. [36]

Thus, in Republic v. Partisala,[37] we held that the summary dismissal of an

action in the name of the Republic of the Philippines, when not initiated by the
Solicitor General, is in order.[38] Not even the appearance of the conformity of the
public prosecutor in a petition for certiorari would suffice because the authority of
the City Prosecutor or his assistant to represent the People of the Philippines is
limited to the proceedings in the trial court.[39]

We took exceptions, however, and gave due course to a number of actions

even when the respective interests of the government were not properly
represented by the Office of the Solicitor General.
In Labaro v. Panay,[40] this Court dealt with a similar defect in the following
manner:
It must, however, be stressed that if the public prosecution is
aggrieved by any order or ruling of the trial judge in a criminal case, the
OSG, and not the prosecutor, must be the one to question the order or
ruling before us.[41] xxx
Nevertheless, since the challenged order affects the interest of
the State or the plaintiff People of the Philippines, we opted not to
dismiss the petition on this technical ground. Instead, we required the
OSG to comment on the petition, as we had done before in some cases.
[42]
In light of its Comment, we rule that the OSG has ratified and adopted
as its own the instant petition for the People of the Philippines. (Emphasis
supplied.)
In Cooperative Development Authority v. Dolefil Agrarian Reform
Beneficiaries Cooperative, Inc.,[43] without requiring the Office of the Solicitor
General to file a comment on the petition, this Court determined the merits of the
case involving a novel issue on the nature and scope of jurisdiction of
the Cooperative Development Authority to settle cooperative disputes as well as the
battle between two (2) factions concerning the management of the Dolefil Agrarian
Reform Beneficiaries Cooperative, Inc. (DARBCI) that inevitably threatens the
very existence of one of the countrys major cooperatives.[44]
And, lest we defeat the ends of justice, we opt to look into the merit of the
instant petition even absent the imprimatur of the Solicitor General. After all, for
justice to prevail, the scales must balance, for justice is not to be dispensed for the
accused alone.[45] To borrow the words of then Justice Minita V. Chico-Nazario in
another case where the dismissal of a criminal case pending with the trial court was
sought:
[T]he task of the pillars of the criminal justice system is to preserve
our democratic society under the rule of law, ensuring that all those who

[come or are brought to court] are afforded a fair opportunity to present

their side[s]. xxx The State, like any other litigant, is entitled to its day in
court, and to a reasonable opportunity to present its case. [46]

II
We cannot agree with the Court of Appeals that the filing of this petition is in
violation of the respondents right against double jeopardy on the theory that he has
already been practically acquitted when the trial court quashed the Information.
Well settled is the rule that for jeopardy to attach, 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. [47]

The third and fourth requisites are clearly wanting in the instant case as (a)
respondent has not yet entered his plea to the charge when he filed the Motion to
Quash the Information, and (2) the case was dismissed not merely with his consent
but, in fact, at his instance.[48]
We reiterate, time and again, that jeopardy does not attach in favor of
the accused on account of an order sustaining a motion to quash. [49] More
specifically, the granting of a motion to quash anchored on the ground
that the facts charged do not constitute an offense is not a bar to another
prosecution for the same offense.[50] Thus:
It will be noted that the order sustaining the motion to quash
the complaint against petitioner was based on Subsection (a) of
Section 2 of Rule 117 of the Rules of Court that the facts charged in
the complaint do not constitute an offense. If this is so then the

dismissal of said complaint will not be a bar to another prosecution

for the same offense, for it is provided in Section 8 of Rule 117 of the
Rules of Court [now Section 6 of the 2000 Rules of Criminal
Procedure] that an order sustaining the motion to quash is not a bar
to another prosecution for the same offense unless the motion was
based on the grounds specified in Section 2, Subsection[s] (f) and (h)
of this rule [now substantially reproduced in Section 3, Subsections
(g) and (i) of the 2000 Rules of Criminal Procedure] xxx.[51]

III
We now determine the merit of the petition did the trial court act without or
in excess of jurisdiction or grave abuse of discretion when it sustained respondents
motion to quash on the basis of a fact contrary to those alleged in the information?
Petitioner maintains that the trial court did so because the motion was a
hypothetical admission of the facts alleged in the information and any evidence
contrary thereto can only be presented as a matter of defense during trial.
Consistent with existing jurisprudence, we agree with the petitioner.
We define a motion to quash an Information as
the mode by which an accused assails the validity of a criminal
complaint or Information filed against him for insufficiency on its face in
point of law, or for defects which are apparent in the face of the
Information.[52]

This motion is a hypothetical admission of the facts alleged in the

Information,[53] for which reason, the court cannot consider allegations contrary to
those appearing on the face of the information.[54]
As further elucidated in Cruz, Jr. v. Court of Appeals:[55]
It is axiomatic that a complaint or information must state every
single fact necessary to constitute the offense charged; otherwise, a motion
to dismiss/quash on the ground that it charges no offense may be properly

sustained. The fundamental test in considering a motion to quash on this

ground is whether the facts alleged, if hypothetically admitted, will
establish the essential elements of the offense as defined in the law.
Contrary to the petitioners contention, a reading of the
information will disclose that the essential elements of the offense charged
are sufficiently alleged. It is not proper therefore to resolve the charges at
the very outset, in a preliminary hearing only and without the benefit of a
full-blown trial. The issues require a fuller examination. Given the
circumstances of this case, we feel it would be unfair to shut off the
prosecution at this stage of the proceedings and to dismiss the
informations on the basis only of the petitioners evidence, such as [this].
[56]

As in the recent case of Los Baos v. Pedro,[57] where we found no merit in

respondents allegation that the facts charged do not constitute an offense because
the Information duly charged a specific offense and provide[d] the details on how
the offense was committed,[58] we see no apparent defect in the allegations in the
Information in the case at bar. Clearly, the facts alleged in its accusatory portion,
which reads:
That on or about the 16th day of February, 1991, in Pasay City,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, LEO R. BERONILLA, having been
united in a lawful marriage with one MYRNA A. BERONILLA, which
marriage is still in force and subsisting and without having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract
a second marriage with one Cecile Maguillo, which subsequent marriage
of the accused has all the essential requisites for validity.[59]

sufficiently constitute an offense. It contained all the elements of the crime of

Bigamy under Article 349 of the Revised Penal Code hereunder enumerated:
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved or, in case
his or her spouse is absent, the absent spouse could not yet be presumed
dead according to the Civil Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential
requisites for validity.[60]

The documents showing that: (1) the court has decreed that the marriage of
petitioner and respondent is null and void from the beginning; and (2) such
judgment has already become final and executory and duly registered with the
Municipal Civil Registrar of Naval, Biliran are pieces of evidence that seek to
establish a fact contrary to that alleged in the Information that a first valid
marriage was subsisting at the time the respondent contracted a subsequent
marriage. This should not have been considered at all because matters of defense
cannot be raised in a motion to quash.
Neither do we find a justifiable reason for sustaining the motion to quash
even after taking into consideration the established exceptions to the rule earlier
recognized by this Court, among others: (1) when the new allegations are admitted
by the prosecution;[61] (2) when the Rules so permit, such as upon the grounds of
extinction of criminal liability and double jeopardy; [62] and (3) when facts have
been established by evidence presented by both parties which destroyed the prima
facie truth of the allegations in the information during the hearing on a motion to
quash based on the ground that the facts charged do not constitute an offense, and
it would be pure technicality for the court to close its eyes to said facts and still
give due course to the prosecution of the case already shown to be weak even to
support possible conviction xxx.[63]
For of what significance would the document showing the belated
dissolution of the first marriage offer? Would it serve to prevent the
impracticability of proceeding with the trial in accordance with People v. dela
Rosa thereby warranting the non-observance of the settled rule that a motion to
quash is a hypothetical admission of the facts alleged in the information? We
quote:
[W]here in the hearing on a motion to quash predicated on the
ground that the allegations of the information do not charge an offense,
facts have been brought out by evidence presented by both parties which
destroy the prima facie truth accorded to the allegations of the
information on the hypothetical admission thereof, as is implicit in the
nature of the ground of the motion to quash, it would be pure
technicality for the court to close its eyes to said facts and still give
due course to the prosecution of the case already shown to be weak

even to support possible conviction, and hold the accused to what

would clearly appear to be a merely vexatious and expensive trial, on
her part, and a wasteful expense of precious time on the part of the
court, as well as of the prosecution.[64] (Emphasis supplied.)

We find that there is none.

With the submission of the documents showing that the court has declared
the first marriage void ab initio, respondent heavily relied on the
rulings[65] in People v. Mendoza and Morigo declaring that: (a) a case for bigamy
based on a void ab initio marriage will not prosper because there is no need for a
judicial decree to establish that a voidab initio marriage is invalid;[66] and (b) a
marriage declared void ab initio has retroactive legal effect such that there would
be no first valid marriage to speak of after all, which renders the elements of
bigamy incomplete.[67]
Both principles, however, run contrary to the new provision of the Family
Code, which was promulgated by the late President Corazon C. Aquino in 1987, a
few years before respondents subsequent marriage was celebrated in 1991.
The specific provision, which reads:
ART. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment
declaring such marriage void.

was exhaustively discussed in Mercado,[68] where this Court settled the

conflicting jurisprudence on the need for a judicial declaration of nullity of the
previous marriage. After establishing that Article 40 is a new provision expressly
requiring a judicial declaration of nullity of a prior marriage and examining a long
line of cases,[69] this Court, concluded, in essence, that under the Family Code a
subsequent judicial declaration of the nullity of the first marriage is immaterial in a
bigamy case because, by then, the crime had already been
consummated. Otherwise stated, this Court declared that a person, who contracts a
subsequent marriage absent a prior judicial declaration of nullity of a previous one,
is guilty of bigamy.[70]

Notably, Morigo, was

indeed
promulgated
years
after Mercado. Nevertheless, we cannot uphold the Order dated 6 December 2007
of
the
trial
court,
which
maintained
thatMorigo has
already
superseded Mercado. In fact, in Morigo, this Court clearly distinguished the two
(2) cases from one another, and explained:
The present case is analogous to, but must be distinguished
from Mercado v. Tan. In the latter case, the judicial declaration of nullity
of the first marriage was likewise obtained after the second marriage was
already celebrated. xxx
It bears stressing though that in Mercado, the first marriage was
actually solemnized xxx. Ostensibly, at least, the first marriage appeared
to have transpired, although later declared voidab initio.
In the instant case, however, no marriage ceremony at all was
performed by a duly authorized solemnizing officer. Petitioner and Lucia
Barrete merely signed a marriage contract on their own. The mere
private act of signing a marriage contract bears no semblance to a valid
marriage and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy unless he
first secures a judicial declaration of nullity before he contracts a
subsequent marriage.[71]

The application of Mercado to the cases following Morigo even reinforces

the position of this Court to give full meaning to Article 40 of the Family
Code. Thus, in 2004, this Court ruled in Tenebro v. Court of Appeals:[72]
Although the judicial declaration of the nullity of a marriage on the
ground of psychological incapacity retroacts to the date of the celebration
of the marriage insofar as the vinculumbetween the spouses is concerned,
xxx said marriage is not without legal effects. Among these effects is that
children conceived or born before the judgment of absolute nullity of the
marriage shall be considered legitimate. There is therefore a
recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these
legal consequences is incurring criminal liability for bigamy. xxx.
[73]
(Emphasis supplied.)

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and
Amelia Serafico,[74] this Court pronounced:
In a catena of cases,[75] the Court has consistently held that a judicial
declaration of nullity is required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous marriage, reprehensible
and immoral. xxx
To conclude, the issue on the declaration of nullity of the marriage between
petitioner and respondent only after the latter contracted the subsequent marriage
is, therefore, immaterial for the purpose of establishing that the facts alleged in the
information for Bigamy does not constitute an offense. Following the same
rationale, neither may such defense be interposed by the respondent in his motion
to quash by way of exception to the established rule that facts contrary to the
allegations in the information are matters of defense which may be raised only
during the presentation of evidence.
All considered, we find that the trial court committed grave abuse of
discretion when, in so quashing the Information in Criminal Case No. 07-0907CFM, it considered an evidence introduced to prove a fact not alleged thereat
disregarding the settled rules that a motion to quash is a hypothetical admission of
the facts stated in the information; and that facts not alleged thereat may be
appreciated only under exceptional circumstances, none of which is obtaining in
the instant petition.
WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007
of the Regional Trial Court, Branch 115, Pasay City as well as the Resolutions
dated 29 April 2008 and 18 July 2008 of the Court of Appeals are hereby SET
ASIDE. Criminal Case No. 07-0907-CFM is REMANDED to the trial court for
further proceedings.
SO ORDERED.