PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ROBERTO TONGKO,

This is an appeal by accused Roberto Tongko from the Decision of the RTC of
Pasig City, Branch 156 finding him guilty of estafa under Article 315(2)(d) of the
Revised Penal Code. He was sentenced to suffer twenty seven (27) years of
reclusion perpetua and to indemnify Carmelita V. Santos by way of actual
damages in the sum of P100,000.00 and to pay the cost of suit.

Accused was charged under the following Information:

"That on or about the 20th day of August, 1993, in the Municipality of Pasig,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, by means of deceit and false pretenses committed prior
to or simultaneously with the commission of the fraudulent acts, did then and
there willfully, unlawfully and feloniously make or draw and issue to one,
Carmelita Santos to apply on account or for value, the check described below:

BANK CHECK NO. DATE AMOUNT

Phil. Amanah Bank 203729 12-20-93 P10,000.00

Phil. Amanah Bank 203730 12-20-93 10,000.00

Phil. Amanah Bank 203731 12-20-93 10,000.00

Phil. Amanah Bank 203732 12-20-93 10,000.00

Phil. Amanah Bank 203733 12-20-93 10,000.00

Phil. Amanah Bank 203737 12-20-93 10,000.00

Phil. Amanah Bank 203738 12-20-93 10,000.00

Phil. Amanah Bank 203739 12-20-93 10,000.00

Phil. Amanah Bank 203740 12-20-93 10,000.00

Phil. Amanah Bank 203741 12-20-93 10,000.00

said accused well knowing at the time of issue he did not have sufficient funds in
or credit with the drawee bank for the payment in full of the face amount of such
check upon presentment which check when presented for payment within ninety
(90) days from the date thereof was subsequently dishonored by the drawee
bank for the reason "Account Closed" and despite the lapse of three (3) banking
days from receipt of notice that said check has been dishonored, the accused
failed to pay said payee the face amount of such check or to make arrangement
for full payment thereof, to the damage and prejudice of said Carmelita Santos in
the total amount of P100,000.00.

CONTRARY TO LAW."

Accused pled not guilty and underwent trial.

The evidence for the prosecution shows that on September 21, 1990, accused
opened savings and current accounts with Amanah Bank.[1] In the morning of
August 20, 1993, Marites Bo-ot brought the accused to the office of Carmelita V.
Santos at Room 504 Pacific Place, Pearl Drive, Ortigas Center, Pasig City to
borrow money.[2] The accused asked for P50,000.00 to be paid not later than
December 1993.[3] He assured Santos that his receivables would come in by
November 1993. He persuaded Santos to give the loan by issuing five (5)
checks, each in the sum of P10,000.00, postdated December 20, 1993 and by
signing a promissory note.[4] The promissory note was co-signed by Bo-ot. In the
afternoon of the same date, the accused returned to Santos and borrowed an
additional P50,000.00. Again, he issued five (5) checks, each worth P10,000.00
postdated December 20, 1993. He also signed a promissory note together with
Bo-ot.[5]

On September 14, 1993, Amanah Bank closed accused's current account for lack
of funds. On October 19, 1993, accused himself requested for the closing of his
savings account.[6]

Santos did not present accused's checks to the drawee bank on their due date
upon the request of accused himself.[7] Instead, the checks were presented on
March 1, 1994 but were dishonored as accused's accounts had been closed.[8]
Accused was informed that his checks had bounced. He promised to make good
the checks. He failed to redeem his promise, hence, the case at bar.[9]

The accused testified for himself. Nobody corroborated his testimony. He

admitted the evidence of the prosecution but alleged that the postdated checks
were issued a day or two after he signed the promissory notes.[10] Obviously, he
was relying on the defense that the checks were in payment of a pre-existing
obligation.

As aforestated, the trial court convicted the accused. He appealed to this Court
and changed his counsel.[11] He now contends:

"I

THE TRIAL COURT ERRED IN HOLDING THAT THE ISSUANCE OF THE TEN
(10) POSTDATED CHECKS (EXHS. "C" TO "L") BY THE ACCUSED-
APPELLANT CONSTITUTED FRAUD WHICH INDUCED THE PRIVATE
COMPLAINANT TO EXTEND THE LOANS. IT IS RESPECTFULLY SUBMITTED
THAT THE INDUCEMENT WAS THE EXECUTION OF THE TWO (2)
PROMISSORY NOTES AS WELL AS THE CO-SIGNING THEREOF BY MA.
THERESA DEL ROSARIO BO-OT (WHO INTRODUCED ACCUSED-
APPELLANT TO PRIVATE COMPLAINANT), IN A JOINT AND SEVERAL
CAPACITY.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE POST-DATED

CHECKS WERE IN PAYMENT OF PRE-EXISTING OBLIGATIONS.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

OF ESTAFA AS CHARGED, AND IN IMPOSING A STIFF PRISON TERM OF 27
YEARS OF RECLUSION PERPETUA, A PENALTY "TOO HARSH AND OUT OF
PROPORTION" AS TO BE VIOLATIVE OF THE CONSTITUTION."

The appeal is without merit.

Estafa, under Article 315, paragraph 2(d) of the Revised Penal Code, as
amended by Republic Act No. 4885, has the following elements: (1) postdating or
issuance of a check in payment of an obligation contracted at the time the check
was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to
the payee thereof.

To avoid the first element, appellant contends that he was able to borrow
P100,000.00 from Santos due to the promissory notes he co-signed with Bo-ot
and not due to the postdated checks he issued. We reject this contention. Firstly,
this contention was contrived only after appellant's conviction in the trial court.
The records show that appellant did not raise this defense in the trial court. He
cannot fault the trial court for failing to consider a defense which he never raised.
Secondly, Santos is the best person who can testify on what induced her to lend
P100,000.00 to the appellant. Santos categorically declared that it was the
issuance of postdated checks which persuaded her to part with her money. We
quote her testimony, viz.:[12]

"Q What happened to those checks you mentioned in the promissory note?

A When presented to the bank they were all returned by the bank for reason,
account closed.

Q Before this was deposited to the bank when the accused came to your office
and loaned money from you, what was his representation if any to you?

A That his collection will come in by Nov. 1993 and also the checks issued to me
will be definitely funded on the date that it will become due.

Q Were you persuaded as a result of the statement of the accused that these
checks will be good that you parted away the amount?

A Yes, sir."

There is likewise no merit to the submission of appellant that his postdated

checks were in payment of a pre-existing obligation. Again, we note appellant's
change of theory in foisting this argument. In the trial court, appellant testified
that he issued the postdated checks, thru Bo-ot, a day or two after he obtained
the P100,000.00 loan from Santos.[13] The falsity of the uncorroborated claim,
however, is too obvious and the trial court correctly rejected it. The claim cannot
succeed in light of Santos' testimony that the issuance of said checks persuaded
her to grant the loans. A look at the two promissory notes will show that they bear
the date August 20, 1993 and they referred to the postdated checks issued by
the appellant. There could be no reference to the postdated checks if they were
issued a day or two after the loans. In this appeal, however, appellant offers the
new thesis that since the checks were postdated December 1993, ergo, they
were issued in payment of the P100,000.00 he got from Santos on August 20,
1993. The postdating of the checks to December 1993 simply means that on said
date the checks would be properly funded. It does not mean that the checks
should be deemed as issued only on December 1993.

Lastly, appellant contends that the penalty of twenty seven (27) years of
reclusion perpetua is too harsh and out of proportion to the crime he committed.
He submits that his sentence violates section 19(1), Article III of the Constitution
which prohibits the infliction of cruel, degrading or inhuman punishment. We are
not persuaded. In People v. de la Cruz,[14] we held that "x x x the prohibition of
cruel and unusual punishments is generally aimed at the form or character of the
punishment rather than its severity in respect of duration or amount, and apply to
punishments which never existed in America or which public sentiment has
regarded as cruel or obsolete x x x for instance those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like..." In People v. Estoista,[15] we further held:

"It takes more than merely being harsh, excessive, out of proportion, or severe
for a penalty to be obnoxious to the Constitution. The fact that the punishment
authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive," "wholly disproportionate
to the nature of the offense as to shock the moral sense of the community."

The legislature was not thoughtless in imposing severe penalties for violation of
par. 2(d) of Article 315 of the Revised Penal Code. The history of the law will
show that the severe penalties were intended to stop the upsurge of swindling by
issuance of bouncing checks. It was felt that unless aborted, this kind of estafa
"... would erode the people's confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the retardation of
trade and commerce and the undermining of the banking system of the
country."[16] The Court cannot impugn the wisdom of Congress in setting this
policy.
IN VIEW WHEREOF, the Decision dated January 16, 1996 of the RTC of Pasig
City, Br. 156 in Criminal Case No. 106614 convicting appellant is affirmed. Costs
against appellant.

SO ORDERED.

Echegaray v Secretary G.R. No. 132601 October 12, 1998

Facts:

The SC affirmed the conviction of petitioner Leo Echegaray y Pilo for the crime of
rape of the 10 year-old daughter of his common-law spouse and the imposition
upon him of the death penalty for the said crime.

He filed an MFR and a supplemental MFR raising for the first time the issue of
the constitutionality of Republic Act No. 7659 and the death penalty for rape. The
Court denied both motions.

In the meantime, Congress had seen it fit to change the mode of execution of the
death penalty from electrocution to lethal injection, and passed Republic Act No.
8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE
METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE
PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY
SECTION 24 OF REPUBLIC ACT NO. 7659.

The convict filed a Petition for prohibition from carrying out the lethal injection
against him under the grounds that it constituted cruel, degrading, or unusual
punishment, being violative of due process, a violation of the Philippines'
obligations under international covenants, an undue delegation of legislative
power by Congress, an unlawful exercise by respondent Secretary of the power
to legislate, and an unlawful delegation of delegated powers by the Secretary of
Justice to respondent Director.

In his motion to amend, the petitioner added equal protection as a ground.

The Office of the Solicitor General stated that this Court has already upheld the
constitutionality of the Death Penalty Law, and has repeatedly declared that the
death penalty is not cruel, unjust, excessive or unusual punishment; execution by
lethal injection, as authorized under R.A. No. 8177 and the questioned rules, is
constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber);
the International Covenant on Civil and Political Rights does not expressly or
impliedly prohibit the imposition of the death penalty; R.A. No. 8177 properly
delegated legislative power to respondent Director; and that R.A. No. 8177
confers the power to promulgate the implementing rules to the Secretary of
Justice, Secretary of Health and the Bureau of Corrections.

The Commission on Human Rights filed a Motion for Leave of Court to Intervene
and/or Appear as Amicus Curiae with the attached Petition to Intervene and/or
Appear as Amicus Curiae. They alleged similarly with Echegarays arguments.

The petitioner filed a reply similar to his first arguments. The court gave due
course to the petition.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do
not pass constitutional muster for: (a) violation of the constitutional proscription
against cruel, degrading or inhuman punishment, (b) violation of our international
treaty obligations, (c) being an undue delegation of legislative power, and (d)
being discriminatory.

Issue:

1. Is it a violation of the constitutional proscription against cruel, degrading or

inhuman punishment?

2. Is it a violation of our international treaty obligations?

3. Is it an undue delegation of legislative power?

4. Is it discriminatory and contrary to law?

Held:

No 1st three. Yes to last. Petition denied.

Ratio:

1. Petitioner contends that death by lethal injection constitutes cruel, degrading

and inhuman punishment considering that (1) R.A. No. 8177 fails to provide for
the drugs to be used in carrying out lethal injection, the dosage for each drug to
be administered, and the procedure in administering said drug/s into the
accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the
date of the execution, time of notification, the court which will fix the date of
execution, which uncertainties cause the greatest pain and suffering for the
convict; and (3) the possibility of "botched executions" or mistakes in
administering the drugs renders lethal injection inherently cruel.

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel,
degrading or inhuman punishment.

Harden v. Director of Prisons- "punishments are cruel when they involve torture
or a lingering death; but the punishment of death is not cruel, within the meaning
of that word as used in the constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of life." Would the
lack in particularity then as to the details involved in the execution by lethal
injection render said law "cruel, degrading or inhuman"? The Court believes not.
For reasons discussed, the implementing details of R.A. No. 8177 are matters
which are properly left to the competence and expertise of administrative
officials.

Petitioner contends that Sec. 16 of R.A. No. 8177 is uncertain as to which "court"
will fix the time and date of execution, and the date of execution and time of
notification of the death convict. As petitioner already knows, the "court" which
designates the date of execution is the trial court which convicted the accused.
The procedure is that the "judgment is entered fifteen (15) days after its
promulgation, and 10 days thereafter, the records are remanded to the court
below including a certified copy of the judgment for execution. Neither is there
any uncertainty as to the date of execution nor the time of notification. As to the
date of execution, Section 15 of the implementing rules must be read in
conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides
that the death sentence shall be carried out "not earlier than one (1) year nor
later then eighteen (18) months from the time the judgment imposing the death
penalty became final and executory, without prejudice to the exercise by the
President of his executive clemency powers at all times." Hence, the death
convict is in effect assured of eighteen (18) months from the time the judgment
imposing the death penalty became final and executor wherein he can seek
executive clemency and attend to all his temporal and spiritual affairs.

Petitioner further contends that the infliction of "wanton pain" in case of possible
complications in the intravenous injection that respondent Director is an
untrained and untested person insofar as the choice and administration of lethal
injection is concerned, renders lethal injection a cruel, degrading and inhuman
punishment. This is unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection
required the expertise only of phlebotomists and not trained personnel and that
the drugs to be administered are unsafe or ineffective. Petitioner simply cites
situations in the United States wherein execution by lethal injection allegedly
resulted in prolonged and agonizing death for the convict, without any other
evidence whatsoever.

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which
requires that all personnel involved in the execution proceedings should be
trained prior to the performance of such task. We must presume that the public
officials entrusted with the implementation of the death penalty will carefully avoid
inflicting cruel punishment.

Third. Any infliction of pain in lethal injection is merely incidental in carrying out
the execution of death penalty and does not fall within the constitutional
proscription against cruel, degrading and inhuman punishment. "In a limited
sense, anything is cruel which is calculated to give pain or distress, and since
punishment imports pain or suffering to the convict, it may be said that all
punishments are cruel. But of course the Constitution does not mean that crime,
for this reason, is to go unpunished." The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the method of punishment, not the
necessary suffering involved in any method employed to extinguish life
humanely.

What is cruel and unusual "is not fastened to the obsolete but may acquire
meaning as public opinion becomes enlightened by a humane justice" and "must
draw its meaning from the evolving standards of decency that mark the progress
of a maturing society."

2. International Covenant on Civil And Political Rights states:

2. In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgment rendered by a competent court."

The punishment was subject to the limitation that it be imposed for the "most
serious crimes".

Included with the declaration was the Second Optional Protocol to the
International Covenant on Civil and Political Rights, Aiming at the Abolition of the
Death Penalty was adopted by the General Assembly on December 15, 1989.
The Philippines neither signed nor ratified said document.

3. R.A. No. 8177 likewise provides the standards which define the legislative
policy, mark its limits, map out its boundaries, and specify the public agencies
which will apply it. It indicates the circumstances under which the legislative
purpose may be carried out. R.A. No. 8177 specifically requires that "the death
sentence shall be executed under the authority of the Director of the Bureau of
Corrections, endeavoring so far as possible to mitigate the sufferings of the
person under the sentence during the lethal injection as well as during the
proceedings prior to the execution." Further, "the Director of the Bureau of
Corrections shall take steps to ensure that the lethal injection to be administered
is sufficient to cause the instantaneous death of the convict." The legislature also
mandated that "all personnel involved in the administration of lethal injection shall
be trained prior to the performance of such task." The Court cannot see that any
useful purpose would be served by requiring greater detail. The question raised
is not the definition of what constitutes a criminal offense, but the mode of
carrying out the penalty already imposed by the Courts. In this sense, R.A. No.
8177 is sufficiently definite and the exercise of discretion by the administrative
officials concerned is, canalized within banks that keep it from overflowing.

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer
serious flaws that could not be overlooked. To begin with, something basic
appears missing in Section 19 of the implementing rules which provides a
manual for the execution procedure. It was supposed to be confidential.

The Court finds in the first paragraph of Section 19 of the implementing rules a
vacuum. The Secretary of Justice has practically abdicated the power to
promulgate the manual on the execution procedure to the Director of the Bureau
of Corrections, by not providing for a mode of review and approval. Being a
mere constituent unit of the Department of Justice, the Bureau of Corrections
could not promulgate a manual that would not bear the imprimatur of the
administrative superior, the Secretary of Justice as the rule-making authority
under R.A. No. 8177. Such apparent abdication of departmental responsibility
renders the said paragraph invalid.

4. Petitioner contends that Section 17 of the Implementing Rules is

unconstitutional for being discriminatory as well as for being an invalid exercise
of the power to legislate by respondent Secretary. Petitioner insists that Section
17 amends the instances when lethal injection may be suspended, without an
express amendment of Article 83 of the Revised Penal Code, as amended by
section 25 of R.A. No. 7659.

"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE.

Execution by lethal injection shall not be inflicted upon a woman within the three
years next following the date of the sentence or while she is pregnant, nor upon
any person over seventy (70) years of age. In this latter case, the death penalty
shall be commuted to the penalty of reclusion perpetua with the accessory
penalties provided in Article 40 of the Revised Penal Code."

Petitioner contends that Section 17 is unconstitutional for being discriminatory as

well as for being an invalid exercise of the power to legislate by respondent
Secretary. Petitioner insists that Section 17 amends the instances when lethal
injection may be suspended, without an express amendment of Article 83 of the
Revised Penal Code, as amended by section 25 of R.A. No. 7659, stating that
the death sentence shall not be inflicted upon a woman while she is pregnant or
within one (1) year after delivery, nor upon any person over seventy years of age.

While Article 83 of the Revised Penal Code, as amended by Section 25 of

Republic Act No. 7659, suspends the implementation of the death penalty while a
woman is pregnant or within one (1) year after delivery, Section 17 of the
implementing rules omits the one (1) year period following delivery as an
instance when the death sentence is suspended, and adds a ground for
suspension of sentence no longer found under Article 83 of the Revised Penal
Code as amended, which is the three-year reprieve after a woman is sentenced.
This addition is, in petitioner's view, tantamount to a gender-based discrimination
sans statutory basis, while the omission is an impermissible contravention of the
applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but
instead remain consistent and in harmony with the law it seeks to apply and
implement.

ROSA LIM, petitioner, vs., PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PARDO, J.:
The case is an appeal from the decision[1] of the Court of Appeals affirming in
toto that of the Regional Trial Court, Cebu City.[2] Both courts found petitioner
Rosa Lim guilty of twice violating Batas Pambansa Bilang 22[3] and imposing on
her two one-year imprisonment for each of the two violations and ordered her to
pay two fines, each amounting to two hundred thousand pesos (P200,000.00).
The trial court also ordered petitioner to return to Maria Antonia Seguan, the
jewelry received or its value with interest, to pay moral damages, attorney's fees
and costs.[4]

We state the relevant facts.[5]

On August 25, 1990, petitioner called Maria Antonia Seguan by phone. Petitioner
thereafter went to Seguan's store. She bought various kinds of jewelry --
Singaporean necklaces, bracelets and rings worth P300,000.00. She wrote out a
check dated August 25, 1990, payable to "cash" drawn on Metrobank in the
amount of P300,000.00[6] and gave the check to Seguan.

On August 26, 1990, petitioner again went to Seguan's store and purchased
jewelry valued at P241,668.00. Petitioner issued another check payable to "cash"
dated August 16, 1990 drawn on Metrobank in the amount of P241,668.00[7] and
sent the check to Seguan through a certain Aurelia Nadera.

Seguan deposited the two checks with her bank. The checks were returned with
a notice of dishonor. Petitioner's account in the bank from which the checks were
drawn was closed.

Upon demand, petitioner promised to pay Seguan the amounts of the two
dishonored checks. She never did.

On June 5, 1991,[8] an Assistant City Prosecutor of Cebu filed with the Regional
Trial Court, Cebu City, Branch 23 two informations against petitioner. Both
informations were similarly worded. The difference is that in Criminal Case No.
22128, the bouncing checks is Metro Bank Check No. CLN 094244392 dated
August 26, 1990 in the amount of P241,668.00. The informations read:[9]

Criminal Case No. 22127-

"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for
VIOLATION OF BATAS PAMBANSA BILANG 22 committed as follows:

"That on or about the 20th day of August, 1990, and for sometime subsequent
thereto, in the City of Cebu Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she
does not have sufficient funds in the drawee bank for the payment of such check
in full upon its presentment, with deliberate intent, with intent of gain and of
causing damage, did then and there issue, make or draw Metro Bank Check NO.
1 CLN 094244391 dated August 25, 1990 in the amount of P300,000.00 payable
to Maria Antonia Seguan which check was issued in payment of an obligation of
said accused, but when the said check was presented with the bank the same
was dishonored for reason "Account Closed" and despite notice and demands
made to redeem or make good said check, said accused failed and refused, and
up to the present time still fails and refuses to do so, to the damage and
prejudice of said Maria Antonia Seguan in the amount of P300,000.00, Philippine
Currency.

"CONTRARY TO LAW."

Criminal Case No. 22128-

"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for
VIOLATION OF BATAS PAMBANSA BILANG 22, COMMITTED AS FOLLOWS:

"That on or about the 20th day of August, 1990, and for sometime subsequent
thereto, in this City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she
does not have sufficient funds in or credit with the drawee bank for the payment
of such check in full upon its presentment, with deliberate intent, with intent of
gain and of causing damage, did then and there issue, make or draw Metro Bank
Check No. CLN-094244392 dated August 26, 1990 in the amount of P241,668.00
payable to Maria Antonia Seguan which check was issued in payment of an
obligation of said accused, but when the said check was presented with the
bank, the same was dishonored for reason "Account Closed" and despite notice
and demands made to redeem or make good said check, said accused failed
and refused, and up to the present time still fails and refuses to do so, to the
damage and prejudice of said Maria Antonia Seguan in the amount of
P241,668.00, Philippine Currency.

"CONTRARY TO LAW.

"Cebu City, Philippines, 30 May 1991."[10]

Upon arraignment, petitioner pleaded "not guilty" in both cases.

After due trial, on December 29, 1992, the trial court rendered a decision in the
two cases convicting petitioner, to wit:[11]

"WHEREFORE, prosecution having established the guilt of the accused beyond

reasonable doubt, judgment is hereby rendered convicting the accused, Rosa
Lim and sentencing her in Criminal Case No. CBU-22127, to suffer the penalty of
imprisonment for a period of ONE (1) YEAR and a fine of TWO HUNDRED
THOUSAND (P200,000.00) PESOS and in Criminal Case No. CBO-22128, the
same penalty of imprisonment for ONE YEAR and fine of TWO HUNDRED
THOUSAND (P200,000.00) is likewise imposed.

"The accused is hereby ordered to pay private complainant Maria Antonia

Seguan, the sum of P541,668.00 which is the value of the jewelries bought by
the accused from the latter with interest based on the legal rate to be counted
from June 5, 1991, the date of the filing of the informations, or return the subject
jewelries; and further to pay private complainant:

"(a) The sum of P50,000.00 as moral damages in compensation for the latter's
worries with the freezing of her business capital involved in these litigated
transactions;

"(b) The sum of P10,000.00 for attorney's fees, plus costs.

"SO ORDERED."[12]

In due time, petitioner appealed to the Court of Appeals.[13]

On October 15, 1996, the Court of Appeals rendered a decision, dismissing the
appeal in this wise:

"WHEREFORE, premises considered, the appeal is DISMISSED. The decision

appealed from is AFFIRMED in toto.

"SO ORDERED."[14]

Hence, this appeal.[15]

In this appeal, petitioner argues that she never knew Seguan and much more,
had any "transaction" with her. According to petitioner, she issued the two checks
and gave them to Aurelia Nadera, not to Seguan. She gave the two checks to
Aurelia Nadera from whom she got two sets of jewelry, as a "security
arrangement" or "guarantee" that she would return the jewelry received if she
would not be able to sell them.[16]
The appeal has no merit.

The elements of B.P. Blg. 22 are:[17]

"(1) The making, drawing and issuance of any check to apply for account or for
value;

"(2) The knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the payment
of such check in full upon its presentment; and

"(3) The subsequent dishonor of the check by the drawee bank for insufficiency
of funds or credit or dishonor for the same reason had not the drawer, without
any valid cause, ordered the bank to stop payment."

Petitioner never denied issuing the two checks. She argued that the checks were
not issued to Seguan and that they had no pre-existing transaction. The checks
were issued to Aurelia Nadera as mere guarantee and as a security arrangement
to cover the value of jewelry she was to sell on consignment basis.[18] These
defenses cannot save the day for her. The first and last elements of the offense
are admittedly present. To escape liability, she must prove that the second
element was absent, that is, at the time of issue of the checks, she did not know
that her funds in the bank account were insufficient. She did not prove this.

B.P. No. 22, Section 2 creates a presumption juris tantum that the second
element prima facie exists when the first and third elements of the offense are
present.[19] If not rebutted, it suffices to sustain a conviction.[20]

The gravamen of B.P. No. 22 is the act of making and issuing a worthless check
or one that is dishonored upon its presentment for payment. And the accused
failed to satisfy the amount of the check or make arrangement for its payment
within five (5) banking days from notice of dishonor.[21] The act is malum
prohibitum, pernicious and inimical to public welfare.[22] Laws are created to
achieve a goal intended and to guide and prevent against an evil or mischief.[23]
Why and to whom the check was issued is irrelevant in determining culpability.
The terms and conditions surrounding the issuance of the checks are also
irrelevant.[24]

Unlike in estafa,[25] under B. P. No. 22, one need not prove that the check was
issued in payment of an obligation, or that there was damage. The damage done
is to the banking system.[26]

In United States v. Go Chico, we ruled that in acts mala prohibita, the only inquiry
is, "has the law been violated?" When dealing with acts mala prohibita[27]--

" it is not necessary that the appellant should have acted with criminal intent. In
many crimes, made such by statutory enactment, the intention of the person who
commits the crime is entirely immaterial. This is necessarily so. If it were not, the
statute as a deterrent influence would be substantially worthless. It would be
impossible of execution. In many cases, the act complained of is itself that which
produces the pernicious effect the statute seeks to avoid. In those cases the
pernicious effect is produced with precisely the same force and result whether
the intention of the person performing the act is good or bad."

This case is a perfect example of an act mala prohibita. Petitioner issued two
checks. They were dishonored upon presentment for payment due to the fact
that the account was closed. Petitioner failed to rebut the presumption that she
knew her funds were insufficient at the time of issue of the checks. And she failed
to pay the amount of the checks or make arrangement for its payment within five
(5) banking days from receipt of notice of dishonor. B.P. No. 22 was clearly
violated. Hoc quidem per quam durum est sed ita lex scripta est. The law may be
exceedingly hard but so the law is written.

However, we resolve to modify the penalty imposed on petitioner. B.P. No. 22

provides a penalty of "imprisonment of not less than thirty days but not more than
one year or 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."[28]

In Vaca v. Court of Appeals,[29] we held that in determining the penalty to be

imposed for violation of B.P. No. 22, the philosophy underlying the Indeterminate
Sentence Law applies. The philosophy is to redeem valuable human material,
and to prevent unnecessary deprivation of personal liberty and economic
usefulness with due regard to the protection of the social order. There, we
deleted the prison sentence imposed on petitioners. We imposed on them only a
fine double the amount of the check issued. We considered the fact that
petitioners brought the appeal, believing in good faith, that no violation of B.P.
No. 22 was committed, "otherwise, they would have simply accepted the
judgment of the trial court and applied for probation to evade prison term."[30]
We do the same here. We believe such would best serve the ends of criminal
justice.

Consequently, we delete the prison sentences imposed on petitioner. The two

fines imposed for each violation, each amounting to P200,000.00 are appropriate
and sufficient.

The award of moral damages and order to pay attorney's fees are deleted for
lack of sufficient basis.

WHEREFORE, we AFFIRM with modification the decision of the Court of

Appeals.[31] We find petitioner Rosa Lim guilty beyond reasonable doubt of two
counts of violation of Batas Pambansa Bilang 22. We SET ASIDE the sentence
of imprisonment and hereby sentence her only to pay a fine of P200,000.00 in
each case, with subsidiary imprisonment in case of insolvency or non-payment
not to exceed six (6) months.[32] We DELETE the award of moral damages and
attorney's fees. The rest of the judgment of the trial court as affirmed by the Court
of Appeals shall stand. Costs against petitioner.

SO ORDERED.
Perez vs People

Facts:

An audit team conducted a cash examination on the account of petitioner, who

was then the acting municipal treasurer of Tubigon, Bohol. In the course of the
audit, the amount of P21,331.79 was found in the safe of petitioner. The audit
team embodied their findings in the Report of Cash Examination, which also
contained an inventory of cash items. Based on the said audit, petitioner was
supposed to have on hand the total amount of P94,116.36, instead of the
P21,331.79, incurring a shortage of P72,784.57. When asked by the auditing
team as to the location of the missing funds, petitioner verbally explained that
part of the money was used to pay for the loan of his late brother, another portion
was spent for the food of his family, and the rest for his medicine.

As a result of the audit, Arlene R. Mandin prepared a memorandum dated

January 13, 1989 addressed to the Provincial Auditor of Bohol recommending the
filing of the appropriate criminal case against petitioner.

Petitioner was charged before the Sandiganbayan with malversation of

public funds, defined and penalized by Article 217 of the Revised Penal Code.

andiganbayan Disposition

On September 24, 2003, the Sandiganbayan rendered a judgment of conviction

with a fallo reading:

WHEREFORE, judgment is hereby rendered finding the accused ZENON R.

PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public
Funds as defined in and penalized by Article 217 of the Revised Penal Code and,
there being one mitigating circumstance without any aggravating circumstance to
offset the same, is hereby sentenced to suffer an indeterminate penalty of from
TEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum to
FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal as the
maximum and to suffer perpetual special disqualification. The accused Zenon R.
Perez is likewise ordered to pay a FINE equal to the total amount of the funds
malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos
and Fifty-Seven Centavos (P72, 784.57).

SO ORDERED.22 (Emphasis in the original)

On January 13, 2004, petitioner filed a motion for reconsideration23 which the
prosecution opposed on January 28, 2004.24 Petitioner replied25 to the
opposition. On August 6, 2004, petitioners motion was denied with finality.

On September 23, 2004, petitioner resorted to the instant appeal26 raising the
following issues, to wit:

I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY

DELAYING THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS
VIOLATED THE PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS
CASE AND DUE PROCESS.

II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE
SENTENCE IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19
OF ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.27 (Underscoring
supplied)

Our Ruling

Before addressing petitioners twin assignment of errors, We first tackle the

propriety of petitioners conviction for malversation of public funds.
I. Petitioner was correctly convicted of malversation.

Malversation is defined and penalized under Article 217 of the Revised Penal
Code. The acts punished as malversation are: (1) appropriating public funds or
property, (2) taking or misappropriating the same, (3) consenting, or through
abandonment or negligence, permitting any other person to take such public
funds or property, and (4) being otherwise guilty of the misappropriation or
malversation of such funds or property.28

There are four elements that must concur in order that one may be found guilty of
the crime. They are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the
duties of his office;

(c) That those funds or property involved were public funds or property for which
he is accountable; and

(d) That he has appropriated, took or misappropriated or consented or, through

abandonment or negligence, permitted another person to take them.29

Evidently, the first three elements are present in the case at bar. At the time of
the commission of the crime charged, petitioner was a public officer, being then
the acting municipal treasurer of Tubigon, Bohol. By reason of his public office,
he was accountable for the public funds under his custody or control.

The question then is whether or not petitioner has appropriated, took or

misappropriated, or consented or through abandonment or negligence, permitted
another person to take such funds.

We rule in the affirmative.

In malversation, all that is necessary to prove is that the defendant received in

his possession public funds; that he could not account for them and did not have
them in his possession; and that he could not give a reasonable excuse for its
disappearance. An accountable public officer may be convicted of malversation
even if there is no direct evidence of misappropriation and the only evidence is
shortage in his accounts which he has not been able to explain satisfactorily.30

Verily, an accountable public officer may be found guilty of malversation even if

there is no direct evidence of malversation because the law establishes a
presumption that mere failure of an accountable officer to produce public funds
which have come into his hands on demand by an officer duly authorized to
examine his accounts is prima facie case of conversion.31

Because of the prima facie presumption in Article 217, the burden of evidence is
shifted to the accused to adequately explain the location of the funds or property
under his custody or control in order to rebut the presumption that he has
appropriated or misappropriated for himself the missing funds. Failing to do so,
the accused may be convicted under the said provision.

However, the presumption is merely prima facie and a rebuttable one. The
accountable officer may overcome the presumption by proof to the contrary. If he
adduces evidence showing that, in fact, he has not put said funds or property to
personal use, then that presumption is at end and the prima facie case is
destroyed.32

In the case at bar, petitioner was not able to present any credible evidence to
rebut the presumption that he malversed the missing funds in his custody or
control. What is extant in the records is that the prosecution, through witness
Arlene R. Mandin, was able to prove that petitioner malversed the funds under
his custody and control. As testified by Mandin:

Petitioner gave himself away with his first Answer filed at the Office of the
Provincial Treasurer of Bohol in the administrative case filed against him.

In that Answer, petitioner narrated how he disposed of the missing funds under
his custody and control, to wit: (1) about P30,000.00 was used to pay the
commercial loan of his late brother; (2) he spent P10,000.00 for the treatment of
his toxic goiter; and (3) about P32,000.00 was spent for food and clothing of his
family, and the education of his children. He there stated:

1. That the circumstances surrounding the cash shortage in the total amount of
P72,784.57 during the examination of the respondents cash accounts by the
Commission on Audit on December 28-29, 1988 and January 4-5, 1989 are as
follows, to wit:

(a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his late
brother Carino R. Perez using respondents house and lot as collateral thereof. If
the interests would not be paid, the loan would be foreclosed to respondents
great prejudice and disadvantage considering that he and his family are residing
in said house used as collateral;

(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent by him
for his familys foods, clothings (sic), and education of his children because his
monthly salary is not enough for the needs of his family.34

By the explicit admission of petitioner, coupled with the testimony of Arlene R.

Mandin, the fourth element of the crime of malversation was duly established. His
conviction thus stands in terra firma.

True it is that petitioner filed another Answer on March 2, 1989 with the Office of
the Provincial Treasurer of Bohol, substantially changing the contents of his
earlier answer of February 22, 1989. His second Answer averred:

3. That the truth of the matter is that the alleged total cash shortage of
P72,784.57 were still in the possession and custody of his accountable personnel
at the time of the examination held by the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount
were already remitted to him by his accountable personnel after January 5, 1989,
and only the remaining amount of P8,000.00 remains to be remitted to him by his
accountable personnel.35

The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner
only changed his story to exonerate himself, after realizing that his first Answer
put him in a hole, so to speak.

It is contended that petitioners first Answer of February 22, 1989 should not have
been given probative weight because it was executed without the assistance of
counsel.36

There is no law, jurisprudence or rule which mandates that an employee should

be assisted by counsel in an administrative case. On the contrary, jurisprudence
is in unison in saying that assistance of counsel is not indispensable in
administrative proceedings.

Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay

dapat may tulong ng abogado sa isang kasong administratibo. Sa katunayan,
ang hurisprudensiya ay iisa ang sinasabi na ang pagtulong ng isang abogado ay
hindi kailangang-kailangan sa kasong administratibo.
The right to counsel, which cannot be waived unless the waiver is in writing and
in the presence of counsel, is a right afforded a suspect or accused during
custodial investigation. It is not an absolute right and may be invoked or rejected
in a criminal proceeding and, with more reason, in an administrative inquiry.37

Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang

ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa
suspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na
karapatan at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo na
sa isang administratibong pagsisiyasat.

While investigations conducted by an administrative body may at times be akin to

a criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of the
nature of the charges and of respondents capacity to represent himself, and no
duty rests on such body to furnish the person being investigated with counsel.38

Thus, the right to counsel is not imperative in administrative investigations

because such inquiries are conducted merely to determine whether there are
facts that merit disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of government service.39

Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang

administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang
malaman kung may sapat na batayan na patawan ng disiplina ang nagkasalang
opisyal o empleyado, para mapanatili ang dignidad ng paglilingkod sa
pamahalaan.

There is nothing in the Constitution that says that a party in a non-litigation

proceeding is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The assistance of
lawyers, while desirable, is not indispensable. The legal profession was not
engrafted in the due process clause such that without the participation of its
members, the safeguard is deemed ignored or violated. The ordinary citizen is
not that helpless that he cannot validly act at all except only with a lawyer at his
side.40

More than that, petitioners first Answer may be taken against him, as he
executed it in the course of the administrative proceedings below. This is
pursuant to Rule 130, Section 26 of the Rules of Court which provides that the
"act, declaration or omission of a party as to a relevant fact may be given against
him." In People v. Lising,41 the Court held:

Extrajudicial statements are as a rule, admissible as against their respective

declarants, pursuant to the rule that the act, declaration or omission of a party as
to a relevant fact may be given against him. This is based upon the presumption
that no man would declare anything against himself, unless such declarations
were true. A mans act, conduct and declarations wherever made, provided they
be voluntary, are admissible against him, for the reason that it is fair to presume
that they correspond with the truth and it is his fault if they are not.

There is also no merit in the contention that petitioners sickness affected the
preparation of his first Answer. He presented no convincing evidence that his
disease at the time he formulated that answer diminished his capacity to
formulate a true, clear and coherent response to any query. In fact, its contents
merely reiterated his verbal explanation to the auditing team on January 5, 1989
on how he disposed of the missing funds.

II. There is no violation of the rights to a speedy disposition of the case and to
due process of law.

We now discuss the right to a speedy trial and disposition, the balancing test,
due process, and cruel and unusual punishment.

Petitioner asserts that his right to due process of law and to speedy disposition of
his case was violated because the decision of the Sandiganbayan was handed
down after the lapse of more than twelve years. The years that he had to wait for
the outcome of his case were allegedly spent in limbo, pain and agony.42

We are not persuaded.

Due process of law as applied to judicial proceedings has been interpreted to

mean "a law which hears before it condemns, which proceeds on inquiry, and
renders judgment only after trial."43 Petitioner cannot complain that his right to
due process has been violated. He was given all the chances in the world to
present his case, and the Sandiganbayan rendered its decision only after
considering all the pieces of evidence presented before it.

Petitioners claim of violation of his right to a speedy disposition of his case must
also fail.

The 1987 Constitution44 guarantees the right of an accused to speedy trial. Both
the 1973 Constitution in Section 16 of Article IV and the 1987 Constitution in
Section 16 of Article III, Bill of Rights, are also explicit in granting to the accused
the right to speedy disposition of his case.45

In Barker v. Wingo,46 the United States Supreme Court was confronted for the
first time with two "rigid approaches" on speedy trial as "ways of eliminating some
of the uncertainty which courts experience protecting the right."47

The first approach is the "fixed-time period" which holds the view that "the
Constitution requires a criminal defendant to be offered a trial within a specified
time period."48 The second approach is the "demand-waiver rule" which provides
that "a defendant waives any consideration of his right to speedy trial for any
period prior to which he has not demanded trial. Under this rigid approach, a prior
demand is a necessary condition to the consideration of the speedy trial right."49

The fixed-time period was rejected because there is "no constitutional basis for
holding that the speedy trial can be quantified into a specific number of days or
months."50 The demand-waiver rule was likewise rejected because aside from
the fact that it is "inconsistent with this Courts pronouncements on waiver of
constitutional rights,"51 "it is insensitive to a right which we have deemed
fundamental."52

The Court went on to adopt a middle ground: the "balancing test," in which "the
conduct of both the prosecution and defendant are weighed."53 Mr. Justice
Powell, ponente, explained the concept, thus:

A balancing test necessarily compels courts to approach speedy trial cases on an

ad hoc basis. We can do little more than identify some of the factors which courts
should assess in determining whether a particular defendant has been deprived
of his right. Though some might express them in different ways, we identify four
such factors: Length of delay, the reason for the delay, the defendants assertion
of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is
some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the length of delay that will provoke such
an inquiry is necessarily dependent upon the peculiar circumstances of the case.
To take but one example, the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify
the delay. Here, too, different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify
appropriate delay. We have already discussed the third factor, the defendants
responsibility to assert his right. Whether and how a defendant asserts his right is
closely related to the other factors we have mentioned. The strength of his efforts
will be affected by the length of the delay, to some extent by the reason for the
delay, and most particularly by the personal prejudice, which is not always readily
identifiable, that he experiences. The more serious the deprivation, the more
likely a defendant is to complain. The defendants assertion of his speedy trial
right, then, is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right. We emphasize that failure to assert the
right will make it difficult for a defendant to prove that he was denied a speedy
trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be

assessed in the light of the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of
the accused; and (iii) to limit the possibility that the defense will be impaired. Of
these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious. There is also
prejudice if defense witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always reflected in the record
because what has been forgotten can rarely be shown.54 (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test.

In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:

It must be here emphasized that the right to a speedy disposition of a case, like
the right to speedy trial, is deemed violated only when the proceeding is attended
by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause or
justifiable motive a long period of time is allowed to elapse without the party
having his case tried. Equally applicable is the balancing test used to determine
whether a defendant has been denied his right to a speedy trial, or a speedy
disposition of a case for that matter, in which the conduct of both the prosecution
and the defendant are weighed, and such factors as length of the delay, reason
for the delay, the defendants assertion or non-assertion of his right, and
prejudice to the defendant resulting from the delay, are considered.
(Underscoring supplied)

Subsequently, in Dela Pea v. Sandiganbayan,56 this Court again enumerated

the factors that should be considered and balanced, namely: (1) length of delay;
(2) reasons for the delay; (3) assertion or failure to assert such right by the
accused; and (4) prejudice caused by the delay.57

Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that the

right to speedy disposition of cases, like the right to speedy trial, is violated only
when the proceedings are attended by vexatious, capricious and oppressive
delays.59 In the determination of whether said right has been violated, particular
regard must be taken of the facts and circumstances peculiar to each case.60
The conduct of both the prosecution and defendant, the length of the delay, the
reasons for such delay, the assertion or failure to assert such right by accused,
and the prejudice caused by the delay are the factors to consider and balance.61

Moreover, the determination of whether the delays are of said nature is relative
and cannot be based on a mere mathematical reckoning of time.62

Measured by the foregoing yardstick, We rule that petitioner was not deprived of
his right to a speedy disposition of his case.

More important than the absence of serious prejudice, petitioner himself did not
want a speedy disposition of his case.63 Petitioner was duly represented by
counsel de parte in all stages of the proceedings before the Sandiganbayan.
From the moment his case was deemed submitted for decision up to the time he
was found guilty by the Sandiganbayan, however, petitioner has not filed a single
motion or manifestation which could be construed even remotely as an indication
that he wanted his case to be dispatched without delay.

Petitioner has clearly slept on his right. The matter could have taken a different
dimension if during all those twelve years, petitioner had shown signs of
asserting his right to a speedy disposition of his case or at least made some
overt acts, like filing a motion for early resolution, to show that he was not
waiving that right.64

Currit tempus contra decides et sui juris contempores: Time runs against the
slothful and those who neglect their rights. Ang panahon ay hindi panig sa mga
tamad at pabaya sa kanilang karapatan. Vigilantis sed non dormientibus jura in
re subveniunt. The law aids the vigilant and not those who slumber in their rights.
Ang batas ay tumutulong sa mga mapagbantay at hindi sa mga humihimbing sa
kanilang karapatan.

Pending his conviction by the Sandiganbayan, petitioner may have truly lived in
suspicion and anxiety for over twelve years. However, any prejudice that may
have been caused to him in all those years was only minimal. The supposed
gravity of agony experienced by petitioner is more imagined than real.

This case is analogous to Guerrero v. Court of Appeals.65 There, the Court ruled
that there was no violation of petitioners right to speedy trial and disposition of
his case inasmuch as he failed seasonably to assert his rights:

In the present case, there is no question that petitioner raised the violation
against his own right to speedy disposition only when the respondent trial judge
reset the case for rehearing. It is fair to assume that he would have just
continued to sleep on his right a situation amounting to laches had the
respondent judge not taken the initiative of determining the non-completion of the
records and of ordering the remedy precisely so he could dispose of the case.
The matter could have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989 when the case
was re-raffled, the accused showed signs of asserting his right which was
granted him in 1987 when the new Constitution took effect, or at least made
some overt act (like a motion for early disposition or a motion to compel the
stenographer to transcribe stenographic notes) that he was not waiving it. As it is,
his silence would have to be interpreted as a waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly from
the right to a speedy trial, and although this Court has always zealously
espoused protection from oppressive and vexatious delays not attributable to the
party involved, at the same time, we hold that a partys individual rights should
not work against and preclude the peoples equally important right to public
justice. In the instant case, three people died as a result of the crash of the
airplane that the accused was flying. It appears to us that the delay in the
disposition of the case prejudiced not just the accused but the people as well.
Since the accused has completely failed to assert his right seasonably and
inasmuch as the respondent judge was not in a position to dispose of the case
on the merits due to the absence of factual basis, we hold it proper and equitable
to give the parties fair opportunity to obtain (and the court to dispense)
substantial justice in the premises.

III. The law relied upon in convicting petitioner is not cruel and unusual. It does
not violate Section 19, Article III of the Bill of Rights.

What constitutes cruel and unusual punishment has not been exactly defined.66
The Eighth Amendment of the United States Constitution,67 the source of
Section 19, Article III of the Bill of Rights68 of our own Constitution, has yet to be
put to the test to finally determine what constitutes cruel and inhuman
punishment.69

Cases that have been decided described, rather than defined, what is meant by
cruel and unusual punishment. This is explained by the pronouncement of the
United States Supreme Court that "[t]he clause of the Constitution, in the opinion
of the learned commentators, may be therefore progressive, and is not fastened
to the obsolete, but may acquire meaning as public opinion becomes enlightened
by a humane justice."70

In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme Court
opined that "[d]ifficulty would attend the effort to define with exactness the extent
of the constitutional provision which provides that cruel and unusual punishments
shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and
all others in the same line of unnecessary cruelty, are forbidden by that
amendment to the constitution."72

In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that
"[p]unishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel within the meaning of that word as used in the
constitution. It implies x x x something more inhuman and barbarous, something
more than the mere extinguishment of life."74

Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that cadena
temporal and its accessory penalties "has no fellow in American legislation. Let
us remember that it has come to us from a government of a different form and
genus from ours. It is cruel in its excess of imprisonment and that which
accompanies and follows imprisonment. It is unusual in character. Its
punishments come under the condemnation of the Bill of Rights, both on account
of their degree and kind. And they would have those bad attributes even if they
were found in a Federal enactment, and not taken from an alien source."

In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision held

that Republic Act No. 8177,77 even if it does not provide in particular the details
involved in the execution by lethal injection, is not cruel, degrading or inhuman,
and is thus constitutional. Any infliction of pain in lethal injection is merely
incidental in carrying out the execution of the death penalty and does not fall
within the constitutional proscription against cruel, degrading or inhuman
punishment.78

The Court adopted the American view that what is cruel and unusual is not
fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by humane justice and must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.79

In his last ditch effort to exculpate himself, petitioner argues that the penalty
meted for the crime of malversation of public funds "that ha[ve] been replenished,
remitted and/or returned" to the government is cruel and therefore
unconstitutional, "as government has not suffered any damage."80
The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a public officer
who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take and misappropriate or shall
consent, or through abandonment or negligence shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property.81

Payment or reimbursement is not a defense for exoneration in malversation; it

may only be considered as a mitigating circumstance. This is because damage is
not an element of malversation.

Second. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in

harmony with, rather than in violation of, the Constitution.82 The presumption is
that the legislature intended to enact a valid, sensible and just law and one which
operates no further than may be necessary to effectuate the specific purpose of
the law.83 It is presumed that the legislature has acted within its constitutional
powers. So, it is the generally accepted rule that every statute, or regularly
accepted act, is, or will be, or should be, presumed to be valid and
constitutional.84

He who attacks the constitutionality of a law has the onus probandi to show why
such law is repugnant to the Constitution. Failing to overcome its presumption of
constitutionality, a claim that a law is cruel, unusual, or inhuman, like the stance
of petitioner, must fail.

IV. On the penalty

The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten
(10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years
and eight (8) months of reclusion temporal, as maximum. In imposing the
penalty, it found that petitioner was entitled to the mitigating circumstance of
payment which is akin to voluntary surrender.

Article 217 penalizes malversation in the following tenor:

Article 217. Malversation of public funds or property. Presumption of

malversation. Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall take
and misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds
or property.

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 but is less than 22,000 pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal uses. (Underscoring supplied)
The amount malversed totalled P72,784.57. The prescribed penalty is reclusion
temporal in its maximum period to reclusion perpetua, which has a range of
seventeen (17) years, four (4) months and one (1) day to forty (40) years.

However, the commission of the crime was attended by the mitigating

circumstance akin to voluntary surrender. As correctly observed by the
Sandiganbayan, petitioner restituted the full amount even before the prosecution
could present its evidence. That is borne by the records.

It bears stressing that the full restitution of the amount malversed will not in any
way exonerate an accused, as payment is not one of the elements of extinction
of criminal liability. Under the law, the refund of the sum misappropriated, even
before the commencement of the criminal prosecution, does not exempt the
guilty person from liability for the crime.85 At most, then, payment of the amount
malversed will only serve as a mitigating circumstance86 akin to voluntary
surrender, as provided for in paragraph 7 of Article 1387 in relation to paragraph
1088 of the same Article of the Revised Penal Code.

But the Court also holds that aside from voluntary surrender, petitioner is entitled
to the mitigating circumstance of no intention to commit so grave a wrong,89
again in relation to paragraph 10 of Article 13.90

The records bear out that petitioner misappropriated the missing funds under his
custody and control because he was impelled by the genuine love for his brother
and his family. Per his admission, petitioner used part of the funds to pay off a
debt owed by his brother. Another portion of the misappropriated funds went to
his medications for his debilitating diabetes.

Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos
(P8,000.00) of the funds in less than one month and a half and said small
balance in three (3) months from receipt of demand of COA on January 5, 1999.
Evidently, there was no intention to commit so grave a wrong.
Of course, the end does not justify the means. To condone what petitioner has
done because of the nobility of his purpose or financial emergencies will become
a potent excuse for malefactors and open the floodgates for more corruption in
the government, even from "small fry" like him.

The bottom line is a guilty person deserves the penalty given the attendant
circumstances and commensurate with the gravity of the offense committed.
Thus, a reduction in the imposable penalty by one degree is in order. Article 64 of
the Revised Penal Code is explicit:

Art. 64. Rules for the application of penalties which contain three periods. In
cases in which the penalties prescribed by law contains three periods, whether it
be a single divisible penalty or composed of three difference penalties, each one
of which forms a period in accordance with the provisions of Articles 76 and 77,
the courts shall observe for the application of the penalty, the following rules,
according to whether there are no mitigating or aggravating circumstances:

xxxx

5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the
number and nature of such circumstances. (Underscoring supplied)

Considering that there are two mitigating circumstances, the prescribed penalty
is reduced to prision mayor in its maximum period to reclusion temporal in its
medium period, to be imposed in any of its periods. The new penalty has a range
of ten (10) years and one (1) day to seventeen (17) years and four (4) months.
Applying the Indeterminate Sentence Law,91 the maximum term could be ten
(10) years and one (1) day of prision mayor maximum, while the minimum term is
again one degree lower92 and could be four (4) years, two (2) months and one
(1) day of prision correccional maximum.
In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of
conviction against the accused and meted to him the penalty of "three years
imprisonment, to pay a fine of P1,500.00, and in case of insolvency to suffer
subsidiary imprisonment at the rate of one day for every P2.50 that he failed to
pay, which subsidiary imprisonment, however, should not exceed one third of the
principal penalty" and to be "perpetually disqualified for public office and to pay
the costs." This was well within the imposable penalty then under Section 1 of Act
No. 1740,94 which is "imprisonment for not less than two months nor more than
ten years and, in the discretion of the court, by a fine of not more than the
amount of such funds and the value of such property."

On appeal to the Supreme Court, the accuseds conviction was affirmed but his
sentence was modified and reduced to six months. The court, per Mr. Justice
Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to the judgment
appealed from have been fully refuted, since in conclusion it is fully shown that
the accused unlawfully disposed of a portion of the municipal funds, putting the
same to his own use, and to that of other persons in violation of Act. No. 1740,
and consequently he has incurred the penalty therein established as principal of
the crime of misappropriation; and even though in imposing it, it is not necessary
to adhere to the rules of the Penal Code, the court in using its discretional
powers as authorized by law, believes that the circumstances present in the
commission of crimes should be taken into consideration, and in the present
case the amount misappropriated was refunded at the time the funds were
counted.95 (Underscoring supplied)

We opt to exercise an analogous discretion.

WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is

AFFIRMED with the MODIFICATION that petitioner is hereby sentenced to suffer
the indeterminate penalty of four (4) years, two (2) months and one (1) day of
prision correccional, as minimum term, to ten (10) years and one (1) day of
prision mayor, as maximum term, with perpetual special disqualification. He is
likewise ORDERED to pay a fine of P72,784.57, the amount equal to the funds
malversed.

Costs against petitioner.

SO ORDERED.

People vs Relova

FACTS:

In this petition for certiorari and mandamus, People of the Philippines seeks to
set aside the orders of Respondent Judge Hon. Relova quashing an information
for theft filed against Mr. Opulencia on the ground of double jeopardy and
denying the petitioners motion for reconsideration.. On Feb.1 1975, Batangas
police together with personnel of Batangas Electric Light System, equipped with
a search warrant issued by a city judge of Batangas to search and examine the
premises of the Opulencia Carpena Ice Plant owned by one Manuel Opulencia.
They discovered electric wiring devices have been installed without authority
from the city government and architecturally concealed inside the walls of the
building. Said devices are designed purposely to lower or decrease the readings
of electric current consumption in the plants electric meter. The case was
dismissed on the ground of prescription for the complaint was filed nine months
prior to discovery when it should be 2months prior to discovery that the act being
a light felony and prescribed the right to file in court. On Nov 24, 1975, another
case was filed against Mr. Opulencia by the Assistant City Fiscal of Batangas for
a violation of a Batangas Ordinance regarding unauthorized electrical
installations with resulting damage and prejudice to City of Batangas in the
amount of P41,062.16. Before arraignment, Opulencia filed a motion to quash on
the ground of double jeopardy. The Assistant fiscals claim is that it is not double
jeopardy because the first offense charged against the accused was
unauthorized installation of electrical devices without the approval and necessary
authority from the City Government which was punishable by an ordinance,
where in the case was dismissed, as opposed to the second offense which is
theft of electricity which is punishable by the Revised Penal Code making it a
different crime charged against the 1st complaint against Mr.Opulencia.
Issue: Whether or Not the accused Mr. Opulencia can invoke double jeopardy as
defense to the second offense charged against him by the assistant fiscal of
Batangas on the ground of theft of electricity punishable by a statute against the
Revised Penal Code.

Held: Yes, Mr. Opulencia can invoke double jeopardy as defense for the second
offense because as tediously explained in the case of Yap vs Lutero, the bill of
rights give two instances or kinds of double jeopardy. The first would be that No
person shall be twice put in jeopardy of punishment for the same offense and the
second sentence states that If an act is punishable by a law or an ordinance, the
conviction or acquittal shall bar to another prosecution for the same act. In the
case at bar, it was very evident that the charges filed against Mr. Opulencia will
fall on the 2nd kind or definition of double jeopardy wherein it contemplates
double jeopardy of punishment for the same act. It further explains that even if
the offenses charged are not the same, owing that the first charge constitutes a
violation of an ordinance and the second charge was a violation against the
revised penal code, the fact that the two charges sprung from one and the same
act of conviction or acquittal under either the law or the ordinance shall bar a
prosecution under the other thus making it against the logic of double jeopardy.
The fact that Mr. Opulencia was acquitted on the first offense should bar the 2nd
complaint against him coming from the same identity as that of the 1st offense
charged against Mr.Opulencia.

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

THE CITY COURT OF MANILA, BRANCH VI and AGAPITO GONZALES Y

VENERACION, respondents.
PADILLA, J.:

Petition for review on certiorari to set aside the order of the respondent City Court
of Manila, Branch VI, dated 20 January 1973, dismissing the information (for
violation of Article 201 (3) of the Revised Penal Code) against the accused,
herein respondent Agapito Gonzales, in Criminal Case No. F-147348 and its
amended order, dated 16 March 1973, denying petitioner's motion for
reconsideration of the first order.

Respondent Agapito Gonzales, together with Roberto Pangilinan, was accused

of violating Section 7, in relation to Section 11, Republic Act No. 3060 and Article
201 (3) of the Revised Penal Code, in two (2) separate informations filed with the
City Court of Manila on 4 April 1972.

On 7 April 1972, before arraignment in the two (2) cases, the City Fiscal
amended the information in Criminal Case No. F-147347 (for violation of Section
7 in relation to Section 11, Rep. Act No. 3060), by alleging that the accused.

conspiring, and confederating together, and mutually helping each other did then
and there wilfully, unlawfully, and feloniously publicly exhibit and cause to be
publicly exhibited ... completed composite prints of motion film, of the 8 mm. size,
in color forming visual moving images on the projection screen through the
mechanical application of the projection equipment, which motion pictures have
never been previously submitted to the Board of Censors for Motion Pictures for
preview, examination and partnership, nor duly passed by said Board, in a public
place, to wit: at Room 309, De Leon Building, Raon Street corner Rizal Avenue,
[Manila].

On the other hand, the information in Criminal Case No. F-147348 (for violation
of Article 201 (3) of the Revised Penal Code) was amended to allege that, on the
same date, 16 July 1971, the same accused,

conspiring and confederating together and actually helping each other, did then
and there wilfully, unlawfully, feloniously and publicly exhibit, through the
mechanical application of movie projection equipment and the use of projection
screen, indecent and immoral motion picture scenes, to wit: motion pictures of
the 8 mm. size, in color, depicting and showing scenes of totally naked female
and male persons with exposed private parts doing the sex act in various lewd
and obvious positions, among other similarly and equally obscene and morally
offensive scenes, in a place open to public view, to wit: at Room 309, De Leon
Building, Raon Street corner Rizal Avenue, [Manila].

On 31 May 1972, upon arraignment, accused Agapito Gonzales pleaded not

guilty to both charges. The other accused, Roberto Pangilinan, was not arraigned
as he was (and he still is) at large.

On 26 June 1972, accused Agapito Gonzales filed a motion to quash the

informations in the two (2) cases, on the ground that said informations did not
charge an offense. The motion was denied on 17 July 1972 and the cases were
set for trial on 7 August 1972.

No hearing was held on 7 August 1972, however, as the accused moved for
postponement of the trial set on said date and the trial set on two (2) other dates.
On 15 November 1972, the accused Gonzales moved for permission to withdraw
his plea of "not guilty" in Criminal Case No. F-147348, without however,
substituting or entering another plea. The Court granted the motion and reset the
hearing of the cases for 27 December 1972.

On 27 December 1972, accused Gonzales moved to quash the information in

Criminal Case No. F-147348 on the ground of double jeopardy, as there was
according to him, also pending against him Criminal Case No. F-147347, for
violation of Rep. Act No. 3060, where the information allegedly contains the same
allegations as the information in Criminal Case No. F-147348.

Petitioner opposed the motion to quash but the respondent City Court, in an
order, dated 20 January 1973, dismissed the case (Criminal Case No. F-147348)
stating thus:
In one case (F-147347), the basis of the charge is a special law, Rep. Act No.
3060. In the other case (F-147348), the basis of the same is the pertinent
provision of the Revised Penal Code. Considering that the allegations in the
information of said cases are Identical the plea entered in one case by the
accused herein can be reasonably seen as exposing him to double jeopardy in
the other case, as said allegations therein are not only similar but [sic] Identical
facts.

After the dismissal of Criminal Case No. F-147348, or on 7 February 1973, in

Criminal Case No. F-147347, the accused changed his plea of "not guilty" and
entered a plea of "guilty" for violation of Rep. Act No. 3060. He was accordingly
sentenced to pay a fine of P600.00.

On 10 February 1973, petitioner filed a motion for reconsideration of the order of

20 January 1973, dismissing Criminal Case No. F-147348. This was however
denied by respondent court in its order dated 15 March 1973, and in its amended
order dated 16 March 1973; hence, this petition for review on certiorari.

Petitioner contends that the accused could not invoke the constitutional
guarantee against double jeopardy, when there had been no conviction, acquittal,
dismissal or termination of criminal proceedings in another case for the same
offense. 1 The respondent, on the other hand, argues that conviction or acquittal
in, or dismissal or termination of a first case is not necessary, so long as he had
been put in jeopardy of being convicted or acquitted in the first case of the same
offense. 2

It is a settled rule that to raise the defense of double jeopardy, three requisites
must be present: (1) a first jeopardy must have attached prior to the second; (2)
the first jeopardy must have been validly terminated; and (3) the second jeopardy
must be for the same offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or is an attempt to commit
the same or a frustration thereof
All these requisites do not exist in this case.

The two (2) informations with which the accused was charged, do not make out
only one offense, contrary to private respondent's allegations. In other words, the
offense defined in section 7 of Rep. Act No. 3060 punishing the exhibition of
motion pictures not duly passed by the Board of Censors for Motion Pictures
does not include or is not included in the offense defined in Article 201 (3) of the
Revised Penal Code punishing the exhibition of indecent and immoral motion
pictures.

The two (2) offenses do not constitute a jeopardy to each other. A scrutiny of the
two (2) laws involved would show that the two (2) offenses are different and
distinct from each other. The relevant provisions of Rep. Act No. 3060 state:

Sec. 7. It shall be unlawful for any person or entity to exhibit or cause to be

exhibited in any motion picture theater or public place, or by television within the
Philippines any motion picture, including trailers, stills, and other pictorial
advertisements in connection with motion pictures, not duly passed by the Board;
or to print or cause to be printed on any motion picture to be exhibited in any
theater, or public place or by television, a label or notice showing the same to
have been previously passed by the said Board when the same has not been
previously authorized, except motion pictures imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and newsreels.

Sec. 11. Any violation of Section seven of this Act shall be punished by
imprisonment of not less than six months but not more than two years, or by a
fine of not less than six hundred nor more than two thousand pesos, or both at
the discretion of the court. If the offender is an alien he shall be deported
immediately. The license to operate the movie theater or television shall also be
revoked. Any other kind of violation shall be punished by imprisonment of not
less than one month nor more than three months or a fine of not less than one
hundred pesos nor more than three hundred pesos, or both at the discretion of
the court. In case the violation is committed by a corporation, partnership or
association, the liability shall devolve upon the president, manager, administrator,
or any office thereof responsible for the violation.
On the other hand, Article 201 (3) of the Revised Penal Code provides:

Art. 201. Immoral doctrines, obscene publications and exhibitions.- The

penalty of prision correccional in its minimum period, or a fine ranging from 200
to 2,000 pesos, or both, shall be imposed upon:

... 3. Those who in theaters, fairs, cinematographs, or any other place open to
public view, shall exhibit indecent or immoral plays, scenes, acts, or shows; ...

It is evident that the elements of the two (2) offenses are different. The gravamen
of the offense defined in Rep. Act No. 3060 is the public exhibition of any motion
picture which has not been previously passed by the Board of Censors for Motion
Pictures. The motion picture may not be indecent or immoral but if it has not
been previously approved by the Board, its public showing constitutes a criminal
offense. 3 On the other hand, the offense punished in Article 201 (3) of the
Revised Penal Code is the public showing of indecent or immoral plays, scenes,
acts, or shows, not just motion pictures. 4

The nature of both offenses also shows their essential difference. The crime
punished in Rep. Act No. 3060 is a malum prohibitum in which criminal intent
need not be proved because it is presumed, while the offense punished in Article
201 (3) of the Revised Penal Code is malum in se, in which criminal intent is an
indispensable ingredient.

Considering these differences in elements and nature, there is no Identity of the

offenses here involved for which legal jeopardy in one may be invoked in the
other. 5 Evidence required to prove one offense is not the same evidence
required to prove the other. The defense of double jeopardy cannot prosper. As
aptly put in People v. Doriquez. 6

It is a cardinal rule that the protection against double jeopardy may be invoked
only for the same offense or Identical offense. A single act may offend against
two (or more) entirely distinct and unrelated provisions of law, and if one
provision requires proof of an additional fact or element which the other does not,
an acquittal or conviction or a dismissal of the information under one does not
bar prosecution under the other. (People v. Bacolod, 89 Phil. 621; People v.
Alvarez, 45 Phil. 24). Phrased elsewhere, where two different laws (or articles of
the same code) define two crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although both offenses arise from the
same facts, if each crime involves some important act which is not an essential
element of the other. (People v. Alvarez, 45 Phil. 472). 7 (Emphasis supplied)

Petitioner also questions the propriety of allowing the accused in Criminal Case
No. F-147348 to withdraw his plea of not guilty in order to file a motion to quash
on the ground of double jeopardy. Petitioner argues:

It is true that on February 3, 1973, the trial court finally convicted respondent
Gonzales in Criminal Case No. F-147347 by imposing on him a fine of P600.00.
But it is obvious that respondent Gonzales's conviction in that case cannot
retroactively supply the ground for the dismissal of Criminal Case No. F-147348.

But even if conviction in Criminal Case No. F-147347 preceded the dismissal of
Criminal Case No. F-147348, still that conviction cannot bar the prosecution for
violation of Article 201 (3) of the Revised Penal Code, because, by pleading to
the charge in Criminal Case No. F-147348 without moving to quash the
information, the accused (now the respondent) Gonzales must be taken to have
waived the defense of double jeopardy, pursuant to the provisions of Rule 117,
section 10. (Barot v. Villamor, 105 Phil. 263 [1959]) It is only in cases where, after
pleading or moving to quash on some other grounds, the accused learns for the
first time that the offense of which he is charged is an offense for which he has
been in jeopardy that the court may in its discretion entertain at any time before
judgment a motion to quash on that ground. ... In the case at bar, however, the
fact is that the accused (now the respondent Gonzales) was arraigned in the
same court. He, therefore, cannot claim ignorance of the existence of another
charge against him for supposedly the same offense. 8
Petitioner's argument is well-taken. Sec. 10, Rule 117, of the Rules of Court,
before its amendment stated

SEC. 10. Failure to move to quash-Effect of- Exception. If the defendant

does not move to quash the complaint or information before he pleads thereto he
shall be taken to have waived all objections which are grounds for a motion to
quash except when the complaint or information does not charge an offense, or
the court is without jurisdiction of the same. If, however, the defendant learns
after he has pleaded or has moved to quash on some other ground that the
offense for which he is now charged is an offense for which he has been
pardoned, or of which he has been convicted or acquitted or been in jeopardy,
the court may in its discretion entertain at any time before judgment a motion to
quash on the ground of such pardon, conviction, acquittal or jeopardy. (Emphasis
supplied)

However, it must be noted that, under the 1985 Rules, the provision now reads
as follows:

Failure to move or quash or to allege any ground therefore. The failure of the
accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of the grounds
for a motion to quash, except the grounds of no offense charged, lack of
jurisdiction, extinction of the offense or penalty, and jeopardy. ... 9

The above, being an amendment favorable to the accused, the benefit thereof
can be extended to the accused-respondent. However, whatever benefit he may
derive from this amendment, is also illusory. For, as previously noted, there is no
double jeopardy which gave rise to a valid motion to quash.

The People (petitioner) rightly appealed the dismissal of Criminal Case No F-

147348. For, as ruled in People v. Desalisa: 10
As a general rule, the dismissal or termination of a case after arraignment and
plea of the defendant to a valid information 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 complaint or information (Sec. 9, Rule 113). However, an appeal by the
prosecution from the order of dismissal (of the criminal case) by the trial court
shall not constitute double jeopardy if (1) the dismissal is made upon motion, or
with the express consent, of the defendant, and (2) the dismissal is not an
acquittal or based upon consideration of the evidence or of the merits of the
case; and (3) the question to be passed upon by the appellate court is purely
legal so that should the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine the guilt or
innocence of the defendant. 11

WHEREFORE, the petition is granted. The appealed orders are hereby reversal
and set aside. Criminal Case No. F-147348 is ordered reinstated and remanded
to the respondent Court for trial according to law.

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

THE CITY COURT OF MANILA, BRANCH XI and FRANCISCO GAPAY y

MALLARES, respondents.

This is a petition to review the order, dated November 17, 1972, of the City Court
of Manila, Branch XI, dismissing the information for homicide thru reckless
imprudence filed against private respondent, Francisco Gapay y Mallares, in
Criminal Case No. E-505633 on the ground of double jeopardy. Respondent
court held that the private respondent having been previously tried and convicted
of serious physical injuries thru reckless imprudence for the resulting death of the
victim would place the accused in double jeopardy.
The question presented in this case is whether a person who has been
prosecuted for serious physical injuries thru reckless imprudence and convicted
thereof may be prosecuted subsequently for homicide thru reckless imprudence
if the offended party dies as a result of the same injuries he had suffered.

In Melo vs. People, 85 Phil. 766, this Court held that "where after the first
prosecution a new fact supervenes for which the defendant is responsible, which
changes the character of the offense and, together with the facts existing at a
time, constitutes a new and distinct offense, the accused cannot be said to be in
second jeopardy if indicted for the second offense." However, the trial court held
that the doctrine of Melo vs. People does not apply in the case at bar in view of
this Court's ruling in People vs. Buan, 22 SCRA 1383, that Article 365 of the
Penal Code punishes the negligent state of mind and not the resulting injury. The
trial court concluded that once prosecuted for and convicted of negligence, the
accused cannot again be prosecuted for the same negligence although for a
different resulting injury.

In the case at bar, the incident occurred on October 17, 1971. The following day,
October 18, an information for serious physical injuries thru reckless imprudence
was filed against private respondent driver of the truck. On the same day, the
victim Diolito de la Cruz died.

On October 20, 1972, private respondent was arraigned on the charge of serious
physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to
one (1) month and one (1) day of arresto mayor, and commenced serving
sentence.

On October 24, 1972, an information for homicide thru reckless imprudence was
filed against private respondent.

On November 17, 1972, the City Court of Manila, upon motion of private
respondent, issued an order dismissing the homicide thru reckless imprudence
case on the ground of double jeopardy.
Well-settled is the rule that one who has been charged with an offense cannot be
charge again with the same or Identical offense though the latter be lesser or
greater than the former. However, as held in the case of Melo vs. People, supra,
the rule of Identity does not apply when the second offense was not in existence
at the time of the first prosecution, for the reason that in such case there is no
possibility for the accused, during the first prosecution, to be convicted for an
offense that was then inexistent. "Thus, where the accused was charged with
physical injuries and after conviction, the injured person dies, the charge for
homicide against the same accused does not put him twice in jeopardy." Stated
differently, where after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the offense and,
together with the facts existing at the time, constitutes a new and distinct offense,
the accused cannot be said to be in second jeopardy if indicted for the new
offense.

As stated above, the victim Diolito dela Cruz died on the day the information was
filed, and the accused was arraigned two (2) days after, or on October 20, 1972.
When the information for homicide thru reckless imprudence was, therefore, filed
on October 24, 1972, the accused-private respondent was already in jeopardy.

In his memorandum, the Solicitor General made mention of the fact that on
October 21, 1972, the City Fiscal filed an Urgent Motion asking that the "hearing
and arraignment of this case be held in abeyance for there is information that the
victim, Diolito dela Cruz died, and the information would have to be amended."
Be that as it may, the fact remains that the victim Diolito dela Cruz died on
October 18 "one (1) day after the accident and the arrest of the respondent
Gapay" (P. 103, Rollo) and that on October 20, 1972, the accused was arraigned,
pleaded guilty and sentenced accordingly. Thus, jeopardy had attached and no
new fact supervened after the arraignment and conviction of the accused.

ACCORDINGLY, the order of dismissal of the lower court is affirmed.

SO ORDERED.
Melencio-Herrera and Plana, JJ., concur.

Teehankee (Chairman), J., took no part.

Separate Opinions

GUTIERREZ, JR., J., concurring opinion:

I am constrained to concur because the records are inadequate to show that the
arraignment, while hasty and surrounded by seemingly suspicious
circumstances, was tainted by fraud, collusion, or other form of chicanery
sufficient to sustain a finding that the State was denied due process (Cf. Silvestre
v. Military Commission No. 21, 82 SCRA 10).

The incident happened on October 17, 1972. The information for serious physical
injuries through reckless imprudence was filed on October 18, 1972. The victim
of the accident died on the same day.

Knowing the volume of the case load in the City Court of Manila and the
inevitably slow pace of work even when urgency is dictated by the nature of
cases with the Fiscal or before the various salas, it is most surprising that the
accused could have been arraigned on October 20, 1972 for the charge of
serious physical injuries only three days after the incident, two days after the
filing of the information, and two days after the death of the victim. The accused
does not appear to have been a detention prisoner necessitating his immediate
arraingment right after the filing of the information. The only sensible conclusion
to draw from the above circumstances is that the accused was hastily made to
plead guilty to serious physical injuries to foreclose a charge for homicide even
before it could be filed. In such a case, there would be a trifling with the
processes of justice and a collusive effort amounting to fraud or deceit to deprive
the State of its authority to prosecute an accused for the correct offense. While
this conclusion is most likely, it remains speculative, however, because we have
a criminal case before us. The records fail to show what were the results of an
investigation, if any was conducted to ascertain why the assistant city fiscal's
suspicions were not aroused when the case was hurriedly set for arraignment,
contrary to the usual procedures in the Manila City Court. Either the assistant city
fiscal was naively new to the job, or he was hopelessly negligent, or he connived
with the accused, in which case remedial measures are called for. At any rate, I
concur in the affirmance of the order of dismissal in line with the many
protections that the Constitution and the laws give to the accused in criminal
prosecutions.

Vasquez, J., I join the concurring opinion of Mr. Justice Gutierrez, Jr.

Separate Opinions

GUTIERREZ, JR., J., concurring opinion:

I am constrained to concur because the records are inadequate to show that the
arraignment, while hasty and surrounded by seemingly suspicious
circumstances, was tainted by fraud, collusion, or other form of chicanery
sufficient to sustain a finding that the State was denied due process (Cf. Silvestre
v. Military Commission No. 21, 82 SCRA 10).

The incident happened on October 17, 1972. The information for serious physical
injuries through reckless imprudence was filed on October 18, 1972. The victim
of the accident died on the same day.
Knowing the volume of the case load in the City Court of Manila and the
inevitably slow pace of work even when urgency is dictated by the nature of
cases with the Fiscal or before the various salas, it is most surprising that the
accused could have been arraigned on October 20, 1972 for the charge of
serious physical injuries only three days after the incident, two days after the
filing of the information, and two days after the death of the victim. The accused
does not appear to have been a detention prisoner necessitating his immediate
arraingment right after the filing of the information. The only sensible conclusion
to draw from the above circumstances is that the accused was hastily made to
plead guilty to serious physical injuries to foreclose a charge for homicide even
before it could be filed. In such a case, there would be a trifling with the
processes of justice and a collusive effort amounting to fraud or deceit to deprive
the State of its authority to prosecute an accused for the correct offense. While
this conclusion is most likely, it remains speculative, however, because we have
a criminal case before us. The records fail to show what were the results of an
investigation, if any was conducted to ascertain why the assistant city fiscal's
suspicions were not aroused when the case was hurriedly set for arraignment,
contrary to the usual procedures in the Manila City Court. Either the assistant city
fiscal was naively new to the job, or he was hopelessly negligent, or he connived
with the accused, in which case remedial measures are called for. At any rate, I
concur in the affirmance of the order of dismissal in line with the many
protections that the Constitution and the laws give to the accused in criminal
prosecutions.

MELO VS PEOPLE
DOCTRINE OF SUPERVENING EVENT/ SUPERVENING FACT DOCTRINE

FACTS:

Petitioner herein was charged with frustrated homicide, for having allegedly
inflicted upon Benjamin Obillo with a kitchen knife and with intent to kill, several
serious wounds on different part of the body, requiring medical attendance for a
period of more than 30 days, and incapacitating him from performing his habitual
labor for the same period of time.
During the arraignment, the petitioner pleaded not guilty, but on the same day,
during the night, the victim died from his wounds. Evidence of death of the victim
was available to the prosecution and the information was amended.

Petitioner filed a motion to quash the amended information alleging double

jeopardy, but was denied. Hence this petition.

ISSUE:

Whether or not the amended information constitutes double jeopardy.

HELD:

Rule 106, section 13, 2nd paragraph provides:

If it appears at may time before the 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 the bail for their appearance at the trial.

No person shall be twice put in jeopardy of punishment for the same offense. It
meant that when a person is charged with an offense and the case is terminated
either by acquittal or conviction or in any other manner without the consent of the
accused, the latter cannot again be charged with the same or identical offense.

The protection of the Constitution inhibition is against a second jeopardy for the
same offense, the only exception being, as stated in the same Constitution, that if
an act is punished by a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act. SAME OFFENSE
under the general rule, has always been construed to mean not only the second
offense charged is exactly the same as the one alleged in the first information,
but also that the two offenses are identical.
There is identity between two offenses when the evidence to support a conviction
for one offense would be sufficient to warrant a conviction for the other. This is
called SAME-EVIDENCE-TEST. In this connection, an offense may be said to
necessarily include another when some of the ESSENTIAL INGREDIENTS of the
former as alleged in the information constitute the latter; vice versa.

This rule however does not apply when the second offense was not in existence
at the time of the first prosecution, for the simple reason that in such case there
is no possibility for the accused, during the first prosecution, to be convicted for
an offense that was then inexistent.Thus, where the accused was charged with
physical injuries and after conviction the injured person dies, the charge for
homicide against the same accused does not put him twice in jeopardy.

Where after the first prosecution a new fact supervenes for which the defendant
is responsible, which charges the character of the offense and, together with the
fact existing at the time, constitutes a new and distinct offense.

People vs. Yorac

Facts: Rodrigo Yorac was charged with slight physical injuries before the City
Court of Bacolod, the offended party being a certain Lam Hock who, according to
the medical certificate issued in 10 April 1968 by a Dr. Rogelio Zulueta, a resident
physician of the Occidental Negros Provincial Hospital, was confined "since 8
April 1968 up to the present time for head injury." Then came a plea of guilty by
Yorac on 16 April 1968 resulting in his being penalized to suffer 10 days of
arresto menor. He started serving his sentence forthwith.

On 18 April 1968, the provincial fiscal filed an information, this time in the Court
of First Instance of Negros Occidental, charging Yorac with frustrated murder
arising from the same act against Lam Hock upon another medical certificate
dated 17 April 1968 issued by the same Dr. Zulueta.

The later information for frustrated murder was based on a second medical
certificate after the lapse of one week from the former previously given by the
same physician who, apparently, was much more thorough the second time, to
the effect that the victim did suffer a greater injury than was at first ascertained.
The lower court, presided by the Honorable Judge Nestor B. Alampay,
considering that there was no supervening fact that would negate the defense of
double jeopardy, sustained the motion to quash (filed on 10 June 1968) in an
order of 21 June 1968. The People appealed.

Issue: Whether the new medical findings warrant the filing of the new
information against the accused,without violating the rule against double
jeopardy.

NO

Held: "No person shall be twice put in jeopardy of punishment for the same
offense." A defendant in a criminal case should be adjudged either guilty or not
guilty and thereafter left alone in peace, in the latter case the State being
precluded from taking an appeal. It is in that sense that the right against being
twice put in jeopardy is considered as possessing many features in common with
the rule of finality in civil cases. For the accused is given assurance that the
matter is closed, enabling him to plan his future accordingly, protecting him from
continued distress, not to mention saving both him and the state from the
expenses incident to redundant litigation. There is likewise the observation that
this constitutional guarantee helps to equalize the adversary capabilities of two
grossly mismatched litigants, a poor and impecunious defendant hardly in a
position to keep on shouldering the costs of a suit. As ruled in Melo vs. People,
the rule of identity does not apply "when the second offense was not in existence
at the time of the first prosecution, for the simple reason that in such case there
is no possibility for the accused, during the first prosecution, to be convicted for
an offense that was then inexistent." Stated differently, if after the first
prosecution "a new fact supervenes" on which defendant may be held liable,
resulting in altering the character of the crime and giving rise to a new and
distinct offense, "the accused cannot be said to be in second jeopardy if indicted
for the new offense."

There is then the indispensable requirement of the existence of "a new fact
[which] supervenes for which the defendant is responsible" changing the
character of the crime imputed to him and together with the facts existing
previously constituting a new and distinct offense. Herein, if the X-ray
examination discloses the existence of a fracture on 17 January 1957, that
fracture must have existed when the first examination was made on 10
December 1956. There is, therefore, no new or supervening fact that could be
said to have developed or arisen since the filing of the original action. The new
finding of fracture, which evidently lengthened the period of healing of the wound,
to the very superficial and inconclusive examination made on 10 December
1956. Had an X-ray examination been taken at the time, the fracture would have
certainly been disclosed. The wound causing the delay in healing was already in
existence at the time of the first examination, but said delay was caused by the
very superficial examination then made. No supervening fact had occurred which
justifies the application of the rule in the case of Melo vs. People and People vs.
Manolong, for which reason the general rule of double jeopardy should be
applied.

Ivler vs. San Pedro

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner)

was charged before the Metropolitan Trial Court of Pasig City (MTC), with two
separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries
for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce);
and (2) Reckless Imprudence Resulting in Homicide and Damage to Property for
the death of respondent Ponces husband Nestor C. Ponce and damage to the
spouses Ponces vehicle.

Petitioner posted bail for his temporary release in both cases. On 2004, petitioner
pleaded guilty to the charge on the first delict and was meted out the penalty of
public censure. Invoking this conviction, petitioner moved to quash the
Information for the second delict for placing him in jeopardy of second
punishment for the same offense of reckless imprudence.

The MTC refused quashal, finding no identity of offenses in the two cases.

The petitioner elevated the matter to the Regional Trial Court of Pasig City
(RTC), in a petition for certiorari while Ivler sought from the MTC the suspension
of proceedings in criminal case, including the arraignment his arraignment as a
prejudicial question.
Without acting on petitioners motion, the MTC proceeded with the arraignment
and, because of petitioners absence, cancelled his bail and ordered his arrest.

Seven days later, the MTC issued a resolution denying petitioners motion to
suspend proceedings and postponing his arraignment until after his arrest.
Petitioner sought reconsideration but as of the filing of this petition, the motion
remained unresolved.

ISSUES:

1. Whether petitioner forfeited his standing to seek relief from his petition for
certiorari when the MTC ordered his arrest following his non-appearance at the
arraignment in Reckless Imprudence Resulting in Slight Physical Injuries for
injuries sustained by respondent; and

2. Whether petitioners constitutional right under the Double Jeopardy Clause

bars further proceedings in Reckless Imprudence Resulting in Homicide and
Damage to Property for the death of respondent Ponces husband.

RULING:

The accused negative constitutional right not to be "twice put in jeopardy of

punishment for the same offense" protects him from, among others, post-
conviction prosecution for the same offense, with the prior verdict rendered by a
court of competent jurisdiction upon a valid information.

Petitioner adopts the affirmative view, submitting that the two cases concern the
same offense of reckless imprudence. The MTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate
offense from Reckless Imprudence Resulting in Homicide and Damage to
Property "as the [latter] requires proof of an additional fact which the other does
not."

The two charges against petitioner, arising from the same facts, were prosecuted
under the same provision of the Revised Penal Code, as amended, namely,
Article 365 defining and penalizing quasi-offenses.

The provisions contained in this article shall not be applicable. Indeed, the notion
that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is
nothing new.

The doctrine that reckless imprudence under Article 365 is a single quasi-offense
by itself and not merely a means to commit other crimes such that conviction or
acquittal of such quasi-offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded this Courts
unbroken chain of jurisprudence on double jeopardy as applied to Article 365.

These cases uniformly barred the second prosecutions as constitutionally

impermissible under the Double Jeopardy Clause.

Our ruling today secures for the accused facing an Article 365 charge a stronger
and simpler protection of their constitutional right under the Double Jeopardy
Clause. True, they are thereby denied the beneficent effect of the favorable
sentencing formula under Article 48, but any disadvantage thus caused is more
than compensated by the certainty of non-prosecution for quasi-crime effects
qualifying as "light offenses" (or, as here, for the more serious consequence
prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by
extending to quasi-crimes the sentencing formula of Article 48 so that only the
most severe penalty shall be imposed under a single prosecution of all resulting
acts, whether penalized as grave, less grave or light offenses. This will still keep
intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of
penalties under Article 365, befitting crimes occupying a lower rung of culpability,
should cushion the effect of this ruling.
Petition granted.

HON. WALDO Q. FLORES,

- versus -

ATTY. ANTONIO F. MONTEMAYOR,

Respondent.

This resolves the motion for reconsideration of our Decision dated August 25,
2010 setting aside the October 19, 2005 Decision of the Court of Appeals and
reinstating the Decision dated March 23, 2004 of the Office of the President in
O.P. Case No. 03-1-581, which found the respondent administratively liable for
failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities
(SSAL) two expensive cars registered in his name, in violation of Section 7,
Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The
OP adopted the findings and recommendations of the Presidential Anti-Graft
Commission (PAGC), including the imposition of the penalty of dismissal from
service on respondent, with all accessory penalties.

The motion is anchored on the following grounds:

1. Respondent was subjected to two (2) administrative/criminal Investigations

equivalently resulting in violation of his constitutional right against double
jeopardy.

2. Who to follow between conflicting decisions of two (2) government agencies

involving the same facts and issues affecting the rights of the Respondent.

3. Respondents constitutional right to due process was violated.

4. Penalties prescribed by the Honorable Court is too harsh and severe on the
alleged offense committed/omitted.[1]

On the first ground, the Court finds it bereft of merit. Respondent asserts that
since the PAGC charge involving non-declaration in his 2001 and 2002 SSAL
was already the subject of investigation by the Ombudsman in OMB-C-C-04-
0568-LSC, along with the criminal complaint for unexplained wealth, the former
can no longer be pursued without violating the rule on double jeopardy.

Double jeopardy attaches only (1) upon a valid indictment, (2) before a
competent court, (3) after arraignment, (4) when a valid plea has been entered,
and (5) when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of the accused.
[2] We have held that none of these requisites applies where the Ombudsman
only conducted a preliminary investigation of the same criminal offense against
the respondent public officer.[3] The dismissal of a case during preliminary
investigation does not constitute double jeopardy, preliminary investigation not
being part of the trial.[4]

With respect to the second ground, respondent underscores the dismissal by the
Ombudsman of the criminal and administrative complaints against him, including
the charge subject of the proceedings before the PAGC and OP. It is argued that
the Office of the Ombudsman as a constitutional body, pursuant to its mandate
under R.A. No. 6770, has primary jurisdiction over cases cognizable by the
Sandiganbayan, as against the PAGC which is not a constitutional body but a
mere creation of the OP. Under said law, it is the Ombudsman who has
disciplinary authority over all elective and appointive officials of the government,
such as herein respondent.

The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil,
administrative and criminal liabilities. We held in Tecson v. Sandiganbayan[5]:

[I]t is a basic principle of the law on public officers that a public official or
employee is under a three-fold responsibility for violation of duty or for a wrongful
act or omission. This simply means that a public officer may be held civilly,
criminally, and administratively liable for a wrongful doing. Thus, if such violation
or wrongful act results in damages to an individual, the public officer may be held
civilly liable to reimburse the injured party. If the law violated attaches a penal
sanction, the erring officer may be punished criminally. Finally, such violation may
also lead to suspension, removal from office, or other administrative sanctions.
This administrative liability is separate and distinct from the penal and civil
liabilities. (Italics in the original.)

Dismissal of a criminal action does not foreclose institution of an administrative

proceeding against the same respondent, nor carry with it the relief from
administrative liability.[6] Res judicata did not set in because there is no identity
of causes of action. Moreover, the decision of the Ombudsman dismissing the
criminal complaint cannot be considered a valid and final judgment. On the
criminal complaint, the Ombudsman only had the power to investigate and file
the appropriate case before the Sandiganbayan.[7]

In the analogous case of Montemayor v. Bundalian,[8] this Court ruled:

Lastly, we cannot sustain petitioners stance that the dismissal of similar charges
against him before the Ombudsman rendered the administrative case against
him before the PCAGC moot and academic. To be sure, the decision of the
Ombudsman does not operate as res judicata in the PCAGC case subject of this
review. The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings, not to the exercise of administrative powers. Petitioner was
investigated by the Ombudsman for his possible criminal liability for the
acquisition of the Burbank property in violation of the Anti-Graft and Corrupt
Practices Act and the Revised Penal Code. For the same alleged misconduct,
petitioner, as a presidential appointee, was investigated by the PCAGC by virtue
of the administrative power and control of the President over him. As the
PCAGCs investigation of petitioner was administrative in nature, the doctrine of
res judicata finds no application in the case at bar. (Emphasis supplied.)

Respondent argues that it is the Ombudsman who has primary jurisdiction over
the administrative complaint filed against him. Notwithstanding the consolidation
of the administrative offense (non-declaration in the SSAL) with the criminal
complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for
perjury (Article 183, Revised Penal Code, as amended) before the Office of the
Ombudsman, respondents objection on jurisdictional grounds cannot be
sustained.

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to

act promptly on complaints filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency, instrumentality
thereof, including government-owned or controlled corporations. Under Section
13, Article XI, the Ombudsman is empowered to conduct investigations on his
own or upon complaint by any person when such act appears to be illegal,
unjust, improper, or inefficient. He is also given broad powers to take the
appropriate disciplinary actions against erring public officials and employees.

The investigative authority of the Ombudsman is defined in Section 15 of R.A.

No. 6770:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act
or omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases;

x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive.

This power of investigation granted to the Ombudsman by the 1987 Constitution

and The Ombudsman Act is not exclusive but is shared with other similarly
authorized government agencies, such as the PCGG and judges of municipal
trial courts and municipal circuit trial courts. The power to conduct preliminary
investigation on charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the passage of the
Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction
with the Office of the President and the local Sanggunians to investigate
complaints against local elective officials.[9] (Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of

the OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which
was granted the authority to investigate presidential and also non-presidential
employees who may have acted in conspiracy or may have been involved with a
presidential appointee or ranking officer mentioned x x x.[10] On this score, we
do not agree with respondent that the PAGC should have deferred to the
Ombudsman instead of proceeding with the administrative complaint in view of
the pendency of his petition for certiorari with the CA challenging the PAGCs
jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost
upon the instance of the parties but continues until the case is terminated.[11]

It may be recalled that at the time respondent was directed to submit his counter-
affidavit under the Ombudsmans Order dated March 19, 2004, the PAGC
investigation had long commenced and in fact, the PAGC issued an order
directing respondent to file his counter-affidavit/verified answer as early as May
19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent
jurisdiction divests another of its own jurisdiction.[12] Having already taken
cognizance of the complaint against the respondent involving non-declaration in
his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents
administrative case notwithstanding the subsequent filing of a supplemental
complaint before the Ombudsman charging him with the same violation.
As to the third ground raised by respondent, we find no merit in his reiteration of
the alleged gross violation of his right to due process. Records bear out that he
was given several opportunities to answer the charge against him and present
evidence on his defense, which he stubbornly ignored despite repeated warnings
that his failure to submit the required answer/counter-affidavit and position paper
with supporting evidence shall be construed as waiver on his part of the right to
do so.

The essence of due process in administrative proceedings is the opportunity to

explain ones side or seek a reconsideration of the action or ruling complained of.
As long as the parties are given the opportunity to be heard before judgment is
rendered, the demands of due process are sufficiently met.[13] What is offensive
to due process is the denial of the opportunity to be heard.[14] This Court has
repeatedly stressed that parties who choose not to avail themselves of the
opportunity to answer charges against them cannot complain of a denial of due
process.[15] Having persisted in his refusal to file his pleadings and evidence
before the PAGC, respondent cannot validly claim that his right to due process
was violated.

In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin,

concurred with the CAs finding that respondents right to due process was
violated by the unilateral investigation conducted by the PAGC which did not
furnish the respondent with a copy of the prejudicial PAGC resolution. The
dissent also agreed with the CAs observation that there was a rush on the part of
the PAGC to find the respondent guilty of the charge. This was supposedly
manifested in the issuance by the PAGC of its resolution even without taking into
consideration any explanation and refutation of the charges that he might make,
and even before the CA could finally resolve his suit to challenge the PAGCs
jurisdiction to investigate him. On the other hand, the dissent proposed that the
non-submission by respondent of his counter-affidavit or verified answer as
directed by the PAGC should not be taken against him. Respondents refusal was
not motivated by bad faith, considering his firm belief that PAGC did not have
jurisdiction to administratively or disciplinarily investigate him.

We do not share this view adopted by the dissent.

Records reveal that on August 26, 2003, the CA already rendered a decision in
CA-G.R. SP No. 77285 dismissing respondents petition challenging the
jurisdiction of the PAGC. Respondents motion for reconsideration was likewise
denied by the CA. Upon elevation to this Court via a petition for review on
certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First
Divisions Resolution dated January 26, 2004, the petition was denied for failure
of the petitioner (respondent) to show that the CA committed any reversible error
in the assailed decision and resolution. Said resolution became final and
executory on April 27, 2004. Thus, at the time respondent submitted his counter-
affidavit before the Ombudsman on May 21, 2004, there was already a final
resolution of his petition challenging the PAGCs investigative authority.

On the other hand, the PAGC submitted to the OP its September 1, 2003
resolution finding respondent guilty as charged and recommending that he be
dismissed from the service, after the expiration of the 60-day temporary
restraining order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285.
The OP rendered its Decision adopting the PAGCs findings and recommendation
on March 23, 2004. As thus shown, a period of ten (10) months had elapsed from
the time respondent was directed to file his counter-affidavit or verified answer to
the administrative complaint filed against him, up to the rendition of the OPs
decision. It cannot therefore be said that the PAGC and OP proceeded with
undue haste in determining respondents administrative guilt.

Still on respondents repeated claim that he was denied due process, it must be
noted that when respondent received a copy of the OP Decision dated March 23,
2004, his petition for review filed in this Court assailing the CAs dismissal of CA-
G.R. SP No. 77285 was already denied under Resolution dated January 26,
2004. However, despite the denial of his petition, respondent still refused to
recognize PAGCs jurisdiction and continued to assail the same before the CA in
CA-G.R. SP No. 84254, a petition for review under Rule 43 from the OPs March
23, 2004 Decision and May 13, 2004 Resolution.[16] In any event, respondent
was served with a copy of the OP Decision, was able to seek reconsideration of
the said decision, and appeal the same to the CA.

We also find nothing irregular in considering the investigation terminated and

submitting the case for resolution based on available evidence upon failure of the
respondent to file his counter-affidavit or answer despite giving him ample
opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The
PAGC is also not required to furnish the respondent and complainant copy of its
resolution.

The dissent of Justice Bersamin assails the OPs complete reliance on the
PAGCs findings and recommendation which constituted a gross violation of
administrative due process as set forth in Ang Tibay v. Court of Industrial
Relations[17]. Among others, it is required that [T]he tribunal or any of its judges
must act on its or his own independent consideration of the facts and the law of
the controversy, and not simply accept the views of a subordinate in arriving at a
decision. Justice Bersamin thus concludes that the OP should have itself
reviewed and appreciated the evidence presented and independently considered
the facts and the law of the controversy. It was also pointed out that the OPs
statement that the respondents arguments in his Motion for Reconsideration With
Motion For Leave To Admit Explanation/Refutation of Complaint were a mere
reiteration of matters previously considered, was a patent untruth.

We disagree.

The OP decision, after quoting verbatim the findings and recommendation of the
PAGC, adopted the same with a brief statement preceding the dispositive
portion:

After a circumspect study of the case, this Office fully agrees with the
recommendation of PAGC and the legal premises as well as the factual findings
that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL
high-priced vehicles in breach of the prescription of the relevant provisions of RA
No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample
opportunity to explain his failure, but he opted to let the opportunity pass by.[18]

The relevant consideration is not the brevity of the above disquisition adopting
fully the findings and recommendation of the PAGC as the investigating authority.
It is rather the fact that the OP is not a court but an administrative body
determining the liability of respondent who was administratively charged, in the
exercise of its disciplinary authority over presidential appointees.

In Solid Homes, Inc. v. Laserna,[19] this Court ruled that the rights of parties in
an administrative proceedings are not violated by the brevity of the decision
rendered by the OP incorporating the findings and conclusions of the Housing
and Land Use Regulatory Board (HLURB), for as long as the constitutional
requirement of due process has been satisfied. Thus:

It must be stated that Section 14, Article VIII of the 1987 Constitution need not
apply to decisions rendered in administrative proceedings, as in the case a[t] bar.
Said section applies only to decisions rendered in judicial proceedings. In fact,
Article VIII is titled Judiciary, and all of its provisions have particular concern only
with respect to the judicial branch of government. Certainly, it would be error to
hold or even imply that decisions of executive departments or administrative
agencies are oblige[d] to meet the requirements under Section 14, Article VIII.

The rights of parties in administrative proceedings are not violated as long as the
constitutional requirement of due process has been satisfied. In the landmark
case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in
administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present ones case and
submit evidence in support thereof.

2) The tribunal must consider the evidence presented.

3) The decision must have something to support itself.

4) The evidence must be substantial.

5) The decision must be rendered on the evidence presented at the hearing,

or at least contained in the record and disclosed to the parties affected.

6) The tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the controversy and not simply
accept the views of a subordinate in arriving at a decision.

7) The board or body should, in all controversial question, render its decision
in such a manner that the parties to the proceeding can know the various issues
involved, and the reason for the decision rendered.

As can be seen above, among these rights are the decision must be rendered on
the evidence presented at the hearing, or at least contained in the record and
disclosed to the parties affected; and that the decision be rendered in such a
manner that the parties to the proceedings can know the various issues involved,
and the reasons for the decisions rendered. Note that there is no requirement in
Ang Tibay that the decision must express clearly and distinctly the facts and the
law on which it is based. For as long as the administrative decision is grounded
on evidence, and expressed in a manner that sufficiently informs the parties of
the factual and legal bases of the decision, the due process requirement is
satisfied.

At bar, the Office of the President apparently considered the Decision of HLURB
as correct and sufficient, and said so in its own Decision. The brevity of the
assailed Decision was not the product of willing concealment of its factual and
legal bases. Such bases, the assailed Decision noted, were already contained in
the HLURB decision, and the parties adversely affected need only refer to the
HLURB Decision in order to be able to interpose an informed appeal or action for
certiorari under Rule 65.

xxxx

Accordingly, based on close scrutiny of the Decision of the Office of the

President, this Court rules that the said Decision of the Office of the President
fully complied with both administrative due process and Section 14, Article VIII of
the 1987 Philippine Constitution.

The Office of the President did not violate petitioners right to due process when it
rendered its one-page Decision. In the case at bar, it is safe to conclude that all
the parties, including petitioner, were well-informed as to how the Decision of the
Office of the President was arrived at, as well as the facts, the laws and the
issues involved therein because the Office of the President attached to and made
an integral part of its Decision the Decision of the HLURB Board of
Commissioners, which it adopted by reference. If it were otherwise, the petitioner
would not have been able to lodge an appeal before the Court of Appeals and
make a presentation of its arguments before said court without knowing the facts
and the issues involved in its case.[20] (Emphasis supplied.)

Since respondent repeatedly refused to answer the administrative charge against

him despite notice and warning by the PAGC, he submitted his evidence only
after an adverse decision was rendered by the OP, attaching the same to his
motion for reconsideration. That the OP denied the motion by sustaining the
PAGCs findings without any separate discussion of respondents arguments and
belatedly submitted evidence only meant that the OP found the same lacking in
merit and insufficient to overturn its ruling on respondents administrative liability.

On the fourth ground cited by the respondent, we maintain that the penalty of
dismissal from the service is justified as no acceptable explanation was given for
the non-declaration of the two expensive cars in his 2001 and 2002 SSAL.

Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law
proven in a proper administrative proceeding shall be sufficient cause for removal
or dismissal of a public official or employee, even if no criminal prosecution is
instituted against him. Respondents deliberate attempt to evade the mandatory
disclosure of all assets acquired during the period covered was evident when he
first claimed that the vehicles were lumped under the entry
Machineries/Equipment or still mortgaged, and later averred that these were
already sold by the end of the year covered and the proceeds already spent.

Under this scheme, respondent would have acquired as many assets never to be
declared at anytime. Such act erodes the function of requiring accuracy of entries
in the SSAL which must be a true and detailed statement. It undermines the
SSAL as the means to achieve the policy of accountability of all public officers
and employees in the government through which the public are able to monitor
movement in the fortune of a public official; [as] a valid check and balance
mechanism to verify undisclosed properties and wealth.[21]

IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH

FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.

ARNOLD JAMES M. YSIDORO, G.R. No. 171513

Petitioner,

- versus -

HON. TERESITA J. LEONARDO-

DE CASTRO,

Before us are consolidated petitions assailing the rulings of the Sandiganbayan

in Criminal Case No. 27963, entitled People of the Philippines v. Arnold James
M. Ysidoro.

G.R. No. 171513 is a petition for certiorari and prohibition under Rule 65 of the
Rules of Court (Rules) filed by petitioner Arnold James M. Ysidoro to annul the
resolutions, dated July 6, 2005[1] and January 25, 2006,[2] of the
Sandiganbayan granting the Motion to Suspend Accused Pendente Lite.

G.R. No. 190963, on the other hand, is a petition for certiorari under Rule 65 filed
by the People of the Philippines through the Office of the Special Prosecutor
(People) to annul and set aside the decision,[3] dated October 1, 2009, and the
resolution,[4] dated December 9, 2009, of the Sandiganbayan which acquitted
Ysidoro for violation of Section 3(e) of Republic Act (R.A.) No. 3019 (Anti-Graft
and Corrupt Practices Acts), as amended.
The Antecedents

Ysidoro, as Municipal Mayor of Leyte, Leyte, was charged before the

Sandiganbayan, with the following information:

That during the period from June 2001 to December 2001 or for sometime prior
or subsequent thereto, at the Municipality of Leyte, Province of Leyte,
Philippines, and within the jurisdiction of [the] Honorable Court, above-named
accused, ARNOLD JAMES M. YSIDORO, a public officer, being the Municipal
Mayor of Leyte, Leyte, in such capacity and committing the offense in relation to
office, with deliberate intent, with manifest partiality and evident bad faith, did
then and there willfully, unlawfully and criminally, withhold and fail to give to
Nierna S. Doller, Municipal Social Welfare and Development Officer (MSWDO) of
Leyte, Leyte, without any legal basis, her RATA for the months of August,
September, October, November and December, all in the year 2001, in the total
amount of TWENTY-TWO THOUSAND ONE HUNDRED TWENTY-FIVE PESOS
(P22,125.00), Philippine Currency, and her Productivity Pay in the year 2000, in
the amount of TWO THOUSAND PESOS (P2,000.00), Philippine Currency, and
despite demands made upon accused to release and pay her the amount of
P22,125.00 and P2,000.00, accused failed to do so, thus accused in the course
of the performance of his official functions had deprived the complainant of her
RATA and Productivity Pay, to the damage and injury of Nierna S. Doller and
detriment of public service.[5]

Ysidoro filed an omnibus motion to quash the information and, in the alternative,
for judicial determination of probable cause,[6] which were both denied by the
Sandiganbayan. In due course, Ysidoro was arraigned and he pleaded not guilty.

The Sandiganbayan Preventively Suspends Ysidoro

On motion of the prosecution,[7] the Sandiganbayan preventively suspended

Ysidoro for ninety (90) days in accordance with Section 13 of R.A. No. 3019,
which states:
Any incumbent public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the Revised Penal
Code or for any offense involving fraud upon government or public funds or
property whether as a simple or as complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be suspended from
office.

Ysidoro filed a motion for reconsideration, and questioned the necessity and the
duration of the preventive suspension. However, the Sandiganbayan denied the
motion for reconsideration, ruling that -

Clearly, by well established jurisprudence, the provision of Section 13, Republic

Act 3019 make[s] it mandatory for the Sandiganbayan to suspend, for a period
not exceeding ninety (90) days, any public officer who has been validly charged
with a violation of Republic Act 3019, as amended or Title 7, Book II of the
Revised Penal Code or any offense involving fraud upon government of public
funds or property.[8]

Ysidoro assailed the validity of these Sandiganbayan rulings in his petition (G.R.
No. 171513) before the Court. Meanwhile, trial on the merits in the principal case
continued before the Sandiganbayan. The prosecution and the defense
presented their respective evidence.

The prosecution presented Nierna S. Doller as its sole witness. According to

Doller, she is the Municipal Social Welfare Development Officer of Leyte. She
claimed that Ysidoro ordered her name to be deleted in the payroll because her
husband transferred his political affiliation and sided with Ysidoros opponent.
After her name was deleted from the payroll, Doller did not receive her
representation and transportation allowance (RATA) for the period of August
2001 to December 2001. Doller also related that she failed to receive her
productivity bonus for the year 2000 (notwithstanding her performance rating of
VS) because Ysidoro failed to sign her Performance Evaluation Report. Doller
asserted that she made several attempts to claim her RATA and productivity
bonus, and made representations with Ysidoro, but he did not act on her
requests. Doller related that her family failed to meet their financial obligations as
a result of Ysidoros actions.

To corroborate Dollers testimony, the prosecution presented documentary

evidence in the form of disbursement vouchers, request for obligation of
allotment, letters, excerpts from the police blotter, memorandum, telegram,
certification, order, resolution, and the decision of the Office of the Deputy
Ombudsman absolving her of the charges.[9]

On the other hand, the defense presented seven (7) witnesses,[10] including
Ysidoro, and documentary evidence. The defense showed that the withholding of
Dollers RATA was due to the investigation conducted by the Office of the Mayor
on the anomalies allegedly committed by Doller. For this reason, Ysidoro ordered
the padlocking of Dollers office, and ordered Doller and her staff to hold office at
the Office of the Mayor for the close monitoring and evaluation of their functions.
Doller was also prohibited from outside travel without Ysidoros approval.

The Sandiganbayan Acquits Ysidoro

In a decision dated October 1, 2009,[11] the Sandiganbayan acquitted Ysidoro

and held that the second element of the offense that there be malice, ill-motive or
bad faith was not present. The Sandiganbayan pronounced:

This Court acknowledges the fact that Doller was entitled to RATA. However, the
antecedent facts and circumstances did not show any indicia of bad faith on the
part of [Ysidoro] in withholding the release of Dollers RATA.

In fact, this Court believes that [Ysidoro] acted in good faith and in honest belief
that Doller was not entitled to her RATA based on the opinion of the COA resident
Auditor and Section 317 of the Government Accounting and Auditing Manual.

It may be an erroneous interpretation of the law, nonetheless, [Ysidoros] reliance

to the same was a clear basis of good faith on his part in withholding Dollers
RATA.

With regard to the Productivity Incentive Bonus, Doller was aware that the non-
submission of the Performance Evaluation Form is a ground for an employees
non-eligibility to receive the Productivity Incentive Bonus:

a) Employees disqualification for performance-based personnel actions which

would require the rating for the given period such as promotion, training or
scholarship grants, and productivity incentive bonus if the failure of the
submission of the report form is the fault of the employees.

Doller even admitted in her testimonies that she failed to submit her Performance
Evaluation Report to [Ysidoro] for signature.

There being no malice, ill-motive or taint of bad faith, [Ysidoro] had the legal
basis to withhold Dollers RATA and Productivity pay.[12] (italics supplied)

In a resolution dated December 9, 2009,[13] the Sandiganbayan denied the

prosecutions motion for reconsideration, reasoning that -

It must be stressed that this Court acquitted [Ysidoro] for two reasons: firstly, the
prosecution failed to discharge its burden of proving that accused Ysidoro acted
in bad faith as stated in paragraph 1 above; and secondly, the exculpatory proof
of good faith xxx.

Needless to state, paragraph 1 alone would be enough ground for the acquittal of
accused Ysidoro. Hence, the COA Resident Auditor need not be presented in
court to prove that [Ysidoro] acted in good faith. This is based on the legal
precept that when the prosecution fails to discharge its burden, an accused need
not even offer evidence in his behalf. [14] (italics supplied)
Supervening events occurred after the filing of Ysidoros petition which rendered
the issue in G.R. No. 171513 i.e., the propriety of his preventive suspension moot
and academic. First, Ysidoro is no longer the incumbent Municipal Mayor of
Leyte, Leyte as his term of office expired in 2007. Second, the prosecution
completed its presentation of evidence and had rested its case before the
Sandiganbayan. And third, the Sandiganbayan issued its decision acquitting
Ysidoro of the crime charged.

In light of these events, what is left to resolve is the petition for certiorari filed by
the People on the validity of the judgment acquitting Ysidoro of the criminal
charge.

The Peoples Petition

The People posits that the elements of Section 3(e) of R.A. No. 3019 have been
duly established by the evidence, in that:

First. [Ysidoro] was the Municipal Mayor of Leyte, Leyte when he ordered the
deletion of private complainants name in the payroll for RATA and productivity
pay.

Second. He caused undue injury to [Doller] when he ordered the withholding of

her RATA and productivity pay. It is noteworthy that complainant was the only
official in the municipality who did not receive her RATA and productivity pay
even if the same were already included in the budget for that year. x x x

Consequently, [Doller] testified that her family suffered actual and moral damages
due to the withholding of her benefits namely: a) the disconnection of electricity in
their residence; x x x b) demand letters from their creditors; x x x c) her son was
dropped from school because they were not able to pay for his final exams; x x x
d) [h]er children did not want to go to school anymore because they were
embarrassed that collectors were running after them.
Third. Accused clearly acted in evident bad faith as he used his position to
deprive [Doller] of her RATA and productivity pay for the period mentioned to
harass her due to the transfer of political affiliation of her husband.[15] (emphasis
supplied)

The People argues[16] that the Sandiganbayan gravely abused its discretion,
and exceeded its, or acted without, jurisdiction in not finding Ysidoro in bad faith
when he withheld Dollers RATA and deprived her of her productivity bonus. The
Sandiganbayan failed to take into account that: first, the Commission on Audit
(COA) resident auditor was never presented in court; second, the documentary
evidence showed that Doller continuously discharged the functions of her office
even if she had been prevented from outside travel by Ysidoro; third, Ysidoro
refused to release Dollers RATA and productivity bonus notwithstanding the
dismissal by the Ombudsman of the cases against her for alleged anomalies
committed in office; and fourth, Ysidoro caused Dollers name to be dropped from
the payroll without justifiable cause, and he refused to sign the disbursement
vouchers and the request for obligation of allotment so that Doller could claim her
RATA and her productivity bonus.

In the same manner, the People asserts that the Sandiganbayan gravely abused
its discretion when it ruled that Doller was not eligible to receive the productivity
bonus for her failure to submit her Performance Evaluation Report. The
Sandiganbayan disregarded the evidence showing the strained relationship and
the maneuverings made by Ysidoro so that he could deny her this incentive.

In his Comment,[17] Ysidoro prays for the dismissal of the petition for procedural
and substantive infirmities. First, he claims that the petition was filed out of time
considering the belated filing of the Peoples motion for reconsideration before the
Sandiganbayan. He argues that by reason of the late filing of the motion for
reconsideration, the present petition was filed beyond the 60-day reglementary
period. Ysidoro also argues that the 60-day reglementary period should have
been counted from the Peoples receipt of the Sandiganbayans decision since no
motion for reconsideration was seasonably filed. Second, Ysidoro claims that the
Sandiganbayans ruling was in accord with the evidence and the prosecution was
not denied due process to properly avail of the remedy of a writ of certiorari. And
third, Ysidoro insists that he can no longer be prosecuted for the same criminal
charge without violating the rule against double jeopardy.

The Issue Raised

The ultimate issue to be resolved is whether the Sandiganbayan gravely abused

its discretion and exceeded its, or acted without, jurisdiction when it acquitted
Ysidoro of the crime charged.

The Courts Ruling

We first resolve the preliminary issue raised by Ysidoro on the timeliness of the
Peoples petition for certiorari. The records show that the motion for
reconsideration was filed by the People before the Sandiganbayan on the last
day of the 15-day reglementary period to file the motion which fell on October 16,
2009, a Friday. Although the date originally appearing in the notice of hearing on
the motion was September 22, 2009 (which later on was corrected to October 22,
2009), the error in designating the month was unmistakably obvious considering
the date when the motion was filed. In any case, the error cannot detract from the
circumstance that the motion for reconsideration was filed within the 15-day
reglementary period. We consider, too, that Ysidoro was not deprived of due
process and was given the opportunity to be heard on the motion. Accordingly,
the above error cannot be considered fatal to the right of the People to file its
motion for reconsideration. The counting of the 60-day reglementary period
within which to file the petition for certiorari will be reckoned from the receipt of
the People of the denial of its motion for reconsideration, or on December 10,
2009. As the last day of the 60-day reglementary period fell on February 8, 2010,
the petition which was filed on February 5, 2010 was filed on time.

Nevertheless, we dismiss the petitions for being procedurally and substantially

infirm.

A Review of a Judgment of Acquittal

Generally, the Rules provides three (3) procedural remedies in order for a party
to appeal a decision of a trial court in a criminal case before this Court. The first
is by ordinary appeal under Section 3, Rule 122 of the 2000 Revised Rules on
Criminal Procedure. The second is by a petition for review on certiorari under
Rule 45 of the Rules. And the third is by filing a special civil action for certiorari
under Rule 65. Each procedural remedy is unique and provides for a different
mode of review. In addition, each procedural remedy may only be availed of
depending on the nature of the judgment sought to be reviewed.

A review by ordinary appeal resolves factual and legal issues. Issues which have
not been properly raised by the parties but are, nevertheless, material in the
resolution of the case are also resolved in this mode of review. In contrast, a
review on certiorari under a Rule 45 petition is generally limited to the review of
legal issues; the Court only resolves questions of law which have been properly
raised by the parties during the appeal and in the petition. Under this mode, the
Court determines whether a proper application of the law was made in a given
set of facts. A Rule 65 review, on the other hand, is strictly confined to the
determination of the propriety of the trial courts jurisdiction whether it has
jurisdiction over the case and if so, whether the exercise of its jurisdiction has or
has not been attended by grave abuse of discretion amounting to lack or excess
of jurisdiction.

While an assailed judgment elevated by way of ordinary appeal or a Rule 45

petition is considered an intrinsically valid, albeit erroneous, judgment, a
judgment assailed under Rule 65 is characterized as an invalid judgment
because of defect in the trial courts authority to rule. Also, an ordinary appeal and
a Rule 45 petition tackle errors committed by the trial court in the appreciation of
the evidence and/or the application of law. In contrast, a Rule 65 petition resolves
jurisdictional errors committed in the proceedings in the principal case. In other
words, errors of judgment are the proper subjects of an ordinary appeal and in a
Rule 45 petition; errors of jurisdiction are addressed in a Rule 65 petition.

As applied to judgments rendered in criminal cases, unlike a review via a Rule 65

petition, only judgments of conviction can be reviewed in an ordinary appeal or a
Rule 45 petition. As we explained in People v. Nazareno,[18] the constitutional
right of the accused against double jeopardy proscribes appeals of judgments of
acquittal through the remedies of ordinary appeal and a Rule 45 petition, thus:
The Constitution has expressly adopted the double jeopardy policy and thus bars
multiple criminal trials, thereby conclusively presuming that a second trial would
be unfair if the innocence of the accused has been confirmed by a previous final
judgment. Further prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been afforded a complete
opportunity to prove the criminal defendants culpability; after failing to persuade
the court to enter a final judgment of conviction, the underlying reasons
supporting the constitutional ban on multiple trials applies and becomes
compelling. The reason is not only the defendants already established innocence
at the first trial where he had been placed in peril of conviction, but also the same
untoward and prejudicial consequences of a second trial initiated by a
government who has at its disposal all the powers and resources of the State.
Unfairness and prejudice would necessarily result, as the government would then
be allowed another opportunity to persuade a second trier of the defendants guilt
while strengthening any weaknesses that had attended the first trial, all in a
process where the governments power and resources are once again employed
against the defendants individual means. That the second opportunity comes via
an appeal does not make the effects any less prejudicial by the standards of
reason, justice and conscience.[19] (emphases supplied)

However, the rule against double jeopardy cannot be properly invoked in a Rule
65 petition, predicated on two (2) exceptional grounds, namely: in a judgment of
acquittal rendered with grave abuse of discretion by the court; and where the
prosecution had been deprived of due process.[20] The rule against double
jeopardy does not apply in these instances because a Rule 65 petition does not
involve a review of facts and law on the merits in the manner done in an appeal.
In certiorari proceedings, judicial review does not examine and assess the
evidence of the parties nor weigh the probative value of the evidence.[21] It does
not include an inquiry on the correctness of the evaluation of the evidence.[22] A
review under Rule 65 only asks the question of whether there has been a validly
rendered decision, not the question of whether the decision is legally correct.[23]
In other words, the focus of the review is to determine whether the judgment is
per se void on jurisdictional grounds.[24]

Applying these legal concepts to this case, we find that while the People was
procedurally correct in filing its petition for certiorari under Rule 65, the petition
does not raise any jurisdictional error committed by the Sandiganbayan. On the
contrary, what is clear is the obvious attempt by the People to have the evidence
in the case reviewed by the Court under the guise of a Rule 65 petition. This
much can be deduced by examining the petition itself which does not allege any
bias, partiality or bad faith committed by the Sandiganbayan in its proceedings.
The petition does not also raise any denial of the Peoples due process in the
proceedings before the Sandiganbayan.

We observe, too, that the grounds relied in the petition relate to factual errors of
judgment which are more appropriate in an ordinary appeal rather than in a Rule
65 petition. The grounds cited in the petition call for the Courts own appreciation
of the factual findings of the Sandiganbayan on the sufficiency of the Peoples
evidence in proving the element of bad faith, and the sufficiency of the evidence
denying productivity bonus to Doller.

The Merits of the Case

Our consideration of the imputed errors fails to establish grave abuse of

discretion amounting to lack or excess of jurisdiction committed by the
Sandiganbayan. As a rule, misapplication of facts and evidence, and erroneous
conclusions based on evidence do not, by the mere fact that errors were
committed, rise to the level of grave abuse of discretion.[25] That an abuse itself
must be grave must be amply demonstrated since the jurisdiction of the court, no
less, will be affected.[26] We have previously held that the mere fact, too, that a
court erroneously decides a case does not necessarily deprive it of jurisdiction.
[27]

Jurisprudence has defined grave abuse of discretion amounting to lack or excess

of jurisdiction in this wise:

Grave abuse of discretion is defined as capricious or whimsical exercise of

judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.[28]

Under this definition, the People bears the burden of convincingly demonstrating
that the Sandiganbayan gravely abused its discretion in the appreciation of the
evidence. We find that the People failed in this regard.

We find no indication from the records that the Sandiganbayan acted arbitrarily,
capriciously and whimsically in arriving at its verdict of acquittal. The settled rule
is that conviction ensues only if every element of the crime was alleged and
proved.[29] In this case, Ysidoro was acquitted by the Sandiganbayan for two
reasons: first, his bad faith (an element of the crime charged) was not sufficiently
proven by the prosecution evidence; and second, there was exculpatory
evidence of his good faith.

As bad faith is a state of mind, the prosecution must present evidence of the
overt acts or omissions committed by Ysidoro showing that he deliberately
intended to do wrong or cause damage to Doller by withholding her RATA.
However, save from the testimony of Doller of the strained relationship between
her and Ysidoro, no other evidence was presented to support Ysidoros bad faith
against her. We note that Doller even disproved Ysidoros bad faith when she
admitted that several cases had been actually filed against her before the Office
of the Ombudsman. It bears stressing that these purported anomalies were
allegedly committed in office which Ysidoro cited to justify the withholding of
Dollers RATA.

The records also show other acts that tend to negate Ysidoros bad faith under
the circumstances. First, the investigation of the alleged anomalies by Ysidoro
was corroborated by the physical transfer of Doller and her subordinates to the
Office of the Mayor and the prohibition against outside travel imposed on Doller.
Second, the existence of the Ombudsmans cases against Doller. And third,
Ysidoros act of seeking an opinion from the COA Auditor on the proper
interpretation of Section 317 of the Government Accounting and Auditing Manual
before he withheld the RATA. This section provides:
An official/employee who was wrongly removed or prevented from performing his
duties is entitled to back salaries but not RATA. The rationale for the grant of
RATA is to provide the official concerned additional fund to meet necessary
expenses incidental to and connected with the exercise or the discharge of the
functions of an office. If he is out of office, [voluntarily] or involuntarily, it
necessarily follows that the functions of the office remain undischarged (COA,
Dec. 1602, October 23, 1990). And if the duties of the office are not discharged,
the official does not and is not supposed to incur expenses. There being no
expenses incurred[,] there is nothing to be reimbursed (COA, Dec. 2121 dated
June 28, 1979).[30]

Although the above provision was erroneously interpreted by Ysidoro and the
COA Auditor, the totality of the evidence, to our mind, provides sufficient grounds
to create reasonable doubt on Ysidoros bad faith. As we have held before, bad
faith does not simply connote bad judgment or negligence but imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong or a
breach of a sworn duty through some motive or intent, or ill-will to partake the
nature of fraud.[31] An erroneous interpretation of a provision of law, absent any
showing of some dishonest or wrongful purpose, does not constitute and does
not necessarily amount to bad faith.[32]

Similarly, we find no inference of bad faith when Doller failed to receive the
productivity bonus. Doller does not dispute that the receipt of the productivity
bonus was premised on the submission by the employee of his/her Performance
Evaluation Report. In this case, Doller admitted that she did not submit her
Performance Evaluation Report; hence, she could not have reasonably expected
to receive any productivity bonus. Further, we cannot agree with her self-serving
claim that it was Ysidoros refusal that led to her failure to receive her productivity
bonus given that no other hard evidence supported this claim. We certainly
cannot rely on Dollers assertion of the alleged statement made by one Leo
Apacible (Ysidoros secretary) who was not presented in court. The alleged
statement made by Leo Apacible that the mayor will get angry with him and he
might be laid off,[33] in addition to being hearsay, did not even establish the
actual existence of an order from Ysidoro or of his alleged maneuverings to
deprive Doller of her RATA and productivity bonus.
In light of these considerations, we resolve to dismiss the Peoples petition. We
cannot review a verdict of acquittal which does not impute or show any
jurisdictional error committed by the Sandiganbayan.

WHEREFORE, premises considered, the Court hereby resolves to:

1. DISMISS the petition for certiorari and prohibition, docketed as G.R. No.
171513, filed by Arnold James M. Ysidoro for being moot and academic.

2. DISMISS the petition for certiorari, docketed as G.R. No. 190963, filed by
the People of the Philippines, through the Office of the Special Prosecutor, for
lack of merit.

LITO BAUTISTA and JIMMY ALCANTARA, Petitioners,

vs.
SHARON G. CUNETA-PANGILINAN, Respondent.

Before the Court is the petition for review on certiorari seeking to set aside the
Decision1

elated May 19, 2009 and Resolution2 dated September 28, 2009 of the Court of
Appeals (CA), in CA-G.R. SP No. 104885, entitled Sharon G. Cuneta-Pangilinan
v. lion. Rizalina T Capco-Urnali, in her capacity as Presiding Judge of the
Regional Trial Court in Mandaluyong City, Branch 212, Lito Bautista, and Jimmy
Alcantara, which granted the

petition for certiorari of respondent Sharon G. Cuneta-Pangilinan. TheCA

Decision reversed and set aside the Order3 dated April 25, 2008 of the Regional
Trial Court (RTC), Branch 212, Mandaluyong City, but only insofar as it pertains
to the granting of the Demurrer to Evidence filed by petitioners Lito Bautista
(Bautista) and Jimmy Alcantara (Alcantara), and also ordered that the case be
remanded to the trial court for reception of petitioners' evidence.

The antecedents are as follows:

On February 19, 2002, the Office of the City Prosecutor of Mandaluyong City
filed two (2) informations, both dated February 4, 2002, with the RTC, Branch
212, Mandaluyong City, against Pete G. Ampoloquio, Jr. (Ampoloquio), and
petitioners Bautista and Alcantara, for the crime of libel, committed by publishing
defamatory articles against respondent Sharon Cuneta-Pangilinan in the tabloid
Bandera.

In Criminal Case No. MC02-4872, the Information dated February 4, 2002 reads:

That on or about the 24th day of April, 2001, in the City of Mandaluyong,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Jane/John Does unknown
directors/officer[s] of Bandera Publishing Corporation, publisher of Bandera,
whose true identities are unknown, and mutually helping and aiding one another,
with deliberate intent to bring SHARON G. CUNETA-PANGILINAN into public
dishonor, shame and contempt, did then and there wilfully, unlawfully and
feloniously, and with malice and ridicule, cause to publish in Bandera (tabloid),
with circulation in Metro Manila, which among others have the following insulting
and slanderous remarks, to wit:

MAGTIGIL KA, SHARON!

Sharon Cuneta, the mega-taba singer-actress, Id like to believe, is really brain-

dead. Mukhang totoo yata yung sinasabi ng kaibigan ni Pettizou Tayag na
ganyan siya.

Hayan at buong ingat na sinulat namin yung interview sa kaibigan ng may-ari ng

Central Institute of Technology at ni isang side comment ay wala kaming ginawa
and all throughout the article, weve maintained our objectivity, pero sa interview
sa aparadoric singer- actress in connection with an album launching, ay buong
ningning na sinabi nitong shes supposedly looking into the item that weve
written and most probably would take some legal action.

xxx

Magsalita ka, Missed Cuneta, at sabihin mong hindi ito totoo.

Ang hindi lang namin nagustuhan ay ang pagbintangan kaming palagi naman
daw namin siyang

sinisiraan, kaya hindi lang daw niya kami pinapansin, believing na part raw siguro
yun ng aming trabaho.

Dios mio perdon, what she gets to see are those purportedly biting commentaries
about her katabaan and kaplastikan but she has simply refused to acknowledge
the good reviews weve done on her.

xxx

Going back to this seemingly disoriented actress whos desperately trying to sing
even if she truly cant, itanggi mo na hindi mo kilala si Pettizou Tayag gayung
nagkasama raw kayo ng tatlong araw sa mother's house ng mga Aboitiz sa Cebu
more than a month ago, in connection with one of those political campaigns of
your husband.

xxx
thereby casting publicly upon complainant, malicious contemptuous imputations
of a vice, condition or defect, which tend to cause complainant her dishonor,
discredit or contempt.

CONTRARY TO LAW.4

In Criminal Case No. MC02-4875, the Information dated February 4, 2002 reads:

That on or about the 27th day of March, 2001, in the City of Mandaluyong,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Jane/John Does unknown
directors/officers of Bandera Publishing Corporation, publisher of Bandera,
whose true identities are unknown, and mutually helping, and aiding one another,
with deliberate intent to bring SHARON G. CUNETA-PANGILINAN into public
dishonor, shame and contempt did, then and there wilfully, unlawfully and
feloniously, and with malice and ridicule, cause to publish in Bandera (tabloid),
with circulation in Metro Manila, which, among others, have the following insulting
and slanderous remarks, to wit:

NABURYONG SA KAPLASTIKAN NI SHARON ANG MILYONARYANG

SUPPORTER NI KIKO!

FREAKOUT pala kay Sharon Cuneta ang isa sa mga loyal supporters ni Kiko
Pangilinan na si Pettizou Tayag, a multi-millionaire who owns Central Institute of
Technology College in Sampaloc, Manila (it is also one of the biggest schools in
Paniqui, Tarlac).

xxx

Which in a way, she did. Bagama't busy siya (she was having a meeting with
some business associates), she went out of her way to give Sharon security.
So, ang ginawa daw ni Ms. Tayag ay tinext nito si Sharon para mabigyan ito ng
instructions para kumportable itong makarating sa Bulacan.

She was most caring and solicitous, pero tipong na-offend daw ang megastar at
nagtext pang "You dont need to produce an emergency SOS for me, Ill be fine."

Now, nang makara[t]ing na raw sa Bulacan si Mega nagtatarang daw ito at

binadmouth si Pettizou. Kesyo ang kulit-kulit daw nito, atribida, mapapel at kung
anu-ano pang mga derogatory words na nakarating siyempre sa kinauukulan.

Anyhow, if its true that Ms. Pettizou has been most financially supportive of Kiko,
how come Sharon seems not to approve of her?

"She doesnt want kasi her husband to win as a senator because when that
happens, mawawalan siya ng hold sa kanya," our caller opines.

Pettizou is really sad that Sharon is treating her husband like a wimp.

"In public," our source goes on tartly, "pa kiss-kiss siya. Pa-embrace-embrace
pero kung silang dalawa na lang parang kung sinong sampid kung i-treat niya si
Kiko."

My God Pete, Harvard graduate si Kiko. Hes really intelligent as compared to

Sharon who appears to be brain dead most of the time.

Yung text message niyang "You dont need to produce an emergency SOS for
me," hindi bat she was being redundant?
Another thing, I guess its high time that she goes on a diet again. Jesus, she
looks 611 crosswise!

xxx

Kunsabagay, she was only being most consistent. Yang si Sharon daw ay
talagang mega-brat, mega-sungit. But who does she think she is? Her wealth,
dear, would pale in comparison with the Tayags millions. Kunsabagay, shes
brain dead most of the time.

xxx

thereby casting publicly upon complainant, malicious contemptuous imputation of

a vice, condition or defect, which tend to cause complainant her dishonor,
discredit or contempt.

CONTRARY TO LAW.5

Upon arraignment, petitioners, together with their co-accused Ampoloquio, each

entered a plea of not guilty. Thereafter, a joint pre-trial and trial of the case
ensued.6

Respondents undated Complaint-Affidavit7 alleged that Bautista and Alcantara

were Editor and Associate Editor, respectively, of the publication Bandera, and
their co-accused, Ampoloquio, was the author of the alleged libelous articles
which were published therein, and subject of the two informations. According to
respondent, in April 2001, she and her family were shocked to learn about an
article dated March 27, 2001, featured on page 7 of Bandera (Vol. 11, No. 156),
in the column Usapang Censored of Ampoloquio, entitled Naburyong sa
Kaplastikan ni Sharon ang
Milyonaryang Supporter ni Kiko, that described her as plastic (hypocrite), ingrate,
mega-brat, mega-sungit, and brain dead, which were the subject of Criminal
Case No. MC02-4875.8 Another article, with the same title and similar text, also
featured on the same date, appeared on page 6 of Saksi Ngayon, in the column
Banatan of Ampoloquio.9 Moreover, respondent averred that on April 24, 2001,
Ampoloquio wrote two follow-up articles, one appeared in his column Usapang
Censored, entitled Magtigil Ka, Sharon!, stating that she bad-mouthed one
Pettizou Tayag by calling the latter kulit-kulit (annoyingly persistent), atribida
(presumptuous), mapapel (officious or self-important), and other derogatory
words; that she humiliated Tayag during a meeting by calling the latter bobo
(stupid); that she exhibited offensive behavior towards Tayag; and that she was a
dishonest person with questionable credibility, which were the subject of Criminal
Case No. MC02-4872.10 Another article, entitled Magtigil Ka, Sharon Cuneta!!!!,
also featured on the same date with similar text, and appeared on page 7 of
Saksi Ngayon (Vol. 3, No. 285), in the column Banatan of Ampoloquio,11 with the
headline in bold letters, Sharon Cuneta, May Sira? on the front page of the said
issue.12 Respondent added that Ampoloquios articles impugned her character
as a woman and wife, as they depicted her to be a domineering wife to a
browbeaten husband. According to Ampoloquio, respondent did not want her
husband (Senator Francis Pangilinan) to win (as Senator) because that would
mean losing hold over him, and that she would treat him like a wimp and sampid
(hanger-on) privately, but she appeared to be a loving wife to him in public.
Respondent denied that Tayag contributed millions to her husbands campaign
fund. She clarified that Tayag assisted during the campaign and was one of the
volunteers of her husbands Kilos Ko Movement, being the first cousin of one
Atty. Joaquinito Harvey B. Ringler (her husbands partner in Franco Pangilinan
Law Office); however, it was Atty. Ringler who asked Tayag to resign from the
movement due to difficulty in dealing with her.

After presenting respondent on the witness stand, the prosecution filed its Formal
Offer of Documentary Exhibits dated October 11, 2006, which included her
undated Complaint-Affidavit.13

On November 14, 2006, petitioners filed a Motion for Leave of Court to File the
Attached Demurrer to Evidence.14 In their Demurrer to Evidence,15 which was
appended to the said Motion, Bautista and Alcantara alleged that the
prosecution's evidence failed to establish their participation as Editor and
Associate Editor, respectively, of the publication Bandera; that they were not
properly identified by respondent herself during her testimony; and that the
subject articles written by Ampoloquio were not libelous due to absence of
malice.

On April 25, 2008, the RTC issued an Order16 granting petitioners Demurrer to
Evidence and dismissed Criminal Case Nos. MCO2-4872 and MCO2-4875. The
trial court opined, among others, that since the prosecution did not submit its
Comment/Opposition to the petitioners' Demurrer to Evidence, the averments
therein thus became unrebutted; that the testimonial and documentary evidence
adduced by the prosecution failed to prove the participation of petitioners as
conspirators of the crime charged; and that during the direct examination on July
27, 2004 and cross-examination on August 1, 2006, respondent neither identified
them, nor was there any mention about their actual participation.

As a consequence, the prosecution filed a Motion to Admit17 dated May 29,

2008, with the attached Comment (to Accused Lito Bautista and Jimmy
Alcantara's Demurrer to Evidence)18 dated March 24, 2008, stating that during
the pendency of the trial court's resolution on the petitioners' Motion for Leave of
Court to File the Attached Demurrer to Evidence, with the attached Demurrer to
Evidence, the prosecution intended to file its Comment, by serving copies
thereof, through registered mail, upon counsels for the petitioners, including the
other accused, and the respondent; however, said Comment was not actually
filed with the trial court due to oversight on the part of the staff of the State
Prosecutor handling the case.19 Claiming that it was deprived of due process,
the prosecution prayed that its Comment be admitted and that the same be
treated as a reconsideration of the trial court's Order dated April 25, 2008.

In an Order dated June 3, 2008, the RTC granted the prosecutions' Motion to
Admit, with the attached Comment, and ruled that its Comment be admitted to
form part of the court records.

On August 19, 2008, respondent filed a Petition for Certiorari with the CA,
seeking to set aside the RTC Orders dated April 25, 2008 (which granted
petitioners' Demurrer to Evidence and ordered the dismissal of the cases against
them) and June 3, 2008 (which noted and admitted respondent's Comment to
form part of the records of the case).

In a Decision dated May 19, 2009, the CA granted respondent's petition, thereby
reversing and setting aside the RTC Order dated April 25, 2008, but only insofar
as it pertains to the grant of petitioners' Demurrer to Evidence, and ordered that
the case be remanded to the trial court for reception of petitioners' evidence.

Aggrieved, petitioners filed a Motion for Reconsideration dated June 7, 2009

which, however, was denied by the CA in a Resolution dated September 28,
2009.

Hence, petitioners filed this present petition, raising the following arguments:

I.

RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF

APPEALS IS BARRED BY THE PETITIONERS' RIGHT AGAINST DOUBLE
JEOPARDY.

II.

RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF

APPEALS DOES NOT LIE TO CORRECT ALLEGED ERRORS OF JUDGMENT
COMMITTED BY THE REGIONAL TRIAL COURT.

III.

THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL COURT

COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING PETITONERS'
DEMURRER TO EVIDENCE.

Petitioners allege that the Order of the RTC, dated April 25, 2008, granting the
Demurrer to Evidence was tantamount to an acquittal. As such, the prosecution
can no longer interpose an appeal to the CA, as it would place them in double
jeopardy. Petitioners contend that respondent's petition for certiorari with the CA
should not have prospered, because the allegations therein, in effect, assailed
the trial court's judgment, not its jurisdiction. In other words, petitioners posit that
the said Order was in the nature of an error of judgment rendered, which was not
correctible by a petition for certiorari with the CA.

Petitioners aver that although the CA correctly ruled that the prosecution had not
been denied due process, however, it erred in ruling that the trial court committed
grave abuse of discretion in granting petitioners' Demurrer to Evidence, on the
basis that the prosecution failed to prove that they acted in conspiracy with
Ampoloquio, the author of the questioned articles. They added that what the
prosecution proved was merely their designations as Editor and Associate Editor
of the publication Bandera, but not the fact that they had either control over the
articles to be published or actually edited the subject articles.

Respondent counters that petitioners failed to show special and important

reasons to justify their invocation of the Court's power to review under Rule 45 of
the Rules of Court. She avers that the acquittal of petitioners does not preclude
their further prosecution if the judgment acquitting them is void for lack of
jurisdiction. Further, she points out that contrary to petitioners contention, the
principle of double jeopardy does not attach in cases where the court's judgment
acquitting the accused or dismissing the case is void, either for having
disregarded the State's right to due process or for having been rendered by the
trial court with grave abuse of discretion amounting to lack or excess of
jurisdiction, and not merely errors of judgment.

Respondent also avers that even if the prosecution was deemed to have waived
its right to file a Comment on the petitioners Motion for Leave of Court to File the
Attached Demurrer to Evidence, this did not give the trial court any reason to
deprive the prosecution of its right to file a Comment on the petitioners Demurrer
to Evidence itself, which was a clear violation of the due process requirement. By
reason of the foregoing, respondent insists that petitioners cannot invoke
violation of their right against double jeopardy.

The petition is impressed with merit.

At the onset, it should be noted that respondent took a procedural misstep, and
the view she is advancing is erroneous. The authority to represent the State in
appeals of criminal cases before the Supreme Court and the CA is solely vested
in the Office of the Solicitor General (OSG). Section 35 (1), Chapter 12, Title III,
Book IV of the 1987 Administrative Code explicitly provides that the OSG shall
represent the Government of the Philippines, its agencies and instrumentalities
and its officials and agents in any litigation, proceeding, investigation or matter
requiring the services of lawyers. It shall have specific powers and functions to
represent the

Government and its officers in the Supreme Court and the CA, 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.20 The OSG is
the law office of the Government.21

To be sure, in criminal cases, the acquittal of the accused or the dismissal of the
case against him can only be appealed by the Solicitor General, acting on behalf
of the State. The private complainant or the offended party may question such
acquittal or dismissal only insofar as the civil liability of the accused is concerned.
In a catena of cases, this view has been time and again espoused and
maintained by the Court. In Rodriguez v. Gadiane,22 it was categorically stated
that if the criminal case is dismissed by the trial court or if there is an acquittal,
the appeal on the criminal aspect of the case must be instituted by the Solicitor
General in behalf of the State. The capability of the private complainant to
question such dismissal or acquittal is limited only to the civil aspect of the case.
The same determination was also arrived at by the Court in Metropolitan Bank
and Trust Company v. Veridiano II.23 In the recent case of Bangayan, Jr. v.
Bangayan,24 the Court again upheld this guiding principle.
Worthy of note is the case of People v. Santiago,25 wherein the Court had the
occasion to bring this issue to rest. The Court elucidated:

It is well-settled that in criminal cases where the offended party is the State, the
interest of the private complainant or the private offended party is limited to the
civil liability. Thus, in the prosecution of the offense, the complainant's role is
limited to that of a witness for the prosecution. If a criminal case is dismissed by
the trial court or if there is an acquittal, an appeal therefrom on the criminal
aspect may be undertaken only by the State through the Solicitor General. Only
the Solicitor General may represent the People of the Philippines on appeal. The
private offended party or complainant may not take such appeal. However, the
said offended party or complainant may appeal the civil aspect despite the
acquittal of the accused.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of
Court wherein it is alleged that the trial court committed a grave abuse of
discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the
rules state that the petition may be filed by the person aggrieved. In such case,
the aggrieved parties are the State and the private offended party or
complainant. The complainant has an interest in the civil aspect of the case so he
may file such special civil action questioning the decision or action of the
respondent court on jurisdictional grounds. In so doing, complainant should not
bring the action in the name of the People of the Philippines. The action may be
prosecuted in name of said complainant.26

Thus, the Court has definitively ruled that in a criminal case in which the offended
party is the State, the interest of the private complainant or the private offended
party is limited to the civil liability arising therefrom. If a criminal case is dismissed
by the trial court or if there is an acquittal, an appeal of the criminal aspect may
be undertaken, whenever legally feasible, only by the State through the solicitor
general. As a rule, only the Solicitor General may represent the People of the
Philippines on appeal. The private offended party or complainant may not
undertake such appeal.27

In the case at bar, the petition filed by the respondent before the CA essentially
questioned the criminal aspect of the Order of the RTC, not the civil aspect of the
case. Consequently, the petition should have been filed by the State through the
OSG. Since the petition for certiorari filed in the CA was not at the instance of the
OSG, the same should have been outrightly dismissed by the CA. Respondent
lacked the personality or legal standing to question the trial courts order because
it is only the Office of the Solicitor General (OSG), who can bring actions on
behalf of the State in criminal proceedings, before the Supreme Court and the
CA.28 Thus, the CA should have denied the petition outright.

Moreover, not only did the CA materially err in entertaining the petition, it should
be stressed that the granting of petitioners Demurrer to Evidence already
amounted to a dismissal of the case on the merits and a review of the order
granting the demurrer to evidence will place the accused in double jeopardy.
Consequently, the Court disagrees with the CAs ruling reversing the trial courts
order dismissing the criminal cases against petitioners.

Under Section 23,29 Rule 119 of the Rules of Court on Demurrer to Evidence,
after the prosecution terminates the presentation of evidence and rests its case,
the trial court may dismiss the case on the ground of insufficiency of evidence
upon the filing of a Demurrer to Evidence by the accused with or without leave of
court. If the accused files a Demurrer to Evidence with prior leave of court and
the same is denied, he may adduce evidence in his defense. However, if the
Demurrer to Evidence is filed by the accused without prior leave of court and the
same is denied, he waives his right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.

Corollarily, after the prosecution rests its case, and the accused files a Demurrer
to Evidence, the trial court is required to evaluate whether the evidence
presented by the prosecution is sufficient enough to warrant the conviction of the
accused beyond reasonable doubt. If the trial court finds that the prosecution
evidence is not sufficient and grants the accused's Demurrer to Evidence, the
ruling is an adjudication on the merits of the case which is tantamount to an
acquittal and may no longer be appealed. Any further prosecution of the accused
after an acquittal would, thus, violate the constitutional proscription on double
jeopardy.30
Anent the prosecutions claim of denial of due process. As correctly found by the
CA, the prosecution was not denied due process. Suffice it to state that the
prosecution had actively participated in the trial and already rested its case, and
upon petitioners' filing of their Demurrer to Evidence, was given the opportunity to
file its Comment or Opposition and, in fact, actually filed its Comment thereto,
albeit belatedly. The CA emphasized that the word "may" was used in Section 23
of Rule 119 of the Revised Rules of Criminal Procedure, which states that if leave
of court is granted, and the accused has filed the Demurrer to Evidence within a
non-extendible period of ten (10) days from notice, the prosecution "may" oppose
the Demurrer to Evidence within a similar period from its receipt.1wphi1 In this
regard, the CA added that the filing of a Comment or Opposition by respondent is
merely directory, not a mandatory or jurisdictional requirement, and that in fact
the trial court may even proceed with the resolution of the petitioners' Demurrer
to Evidence even without the prosecution's Comment.

One final note. Article 360 of the Revised Penal Code specifies the persons that
can be held liable for libel. It provides:

ART. 360. Persons responsible. Any person who shall publish, exhibit or
cause the publication or exhibition of any defamation in writing or by similar
means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of

a daily newspaper, magazine or serial publication, shall be responsible for the
defamation contained therein to the same extent as if he were the author
thereof.31

From the foregoing, not only is the person who published, exhibited or caused
the publication or exhibition of any defamation in writing shall be responsible for
the same, all other persons who participated in its publication are liable, including
the editor or business manager of a daily newspaper, magazine or serial
publication, who shall be equally responsible for the defamations contained
therein to the same extent as if he were the author thereof. The liability which
attaches to petitioners is, thus, statutory in nature.
In Fermin v. People,32 therein petitioner argued that to sustain a conviction for
libel under Article 360 of the Code, it is mandatory that the publisher knowingly
participated in or consented to the preparation and publication of the libelous
article. She also averred that she had adduced ample evidence to show that she
had no hand in the preparation and publication of the offending article, nor in the
review, editing, examination, and approval of the articles published in Gossip
Tabloid. The Court struck down her erroneous theory and ruled that therein
petitioner, who was not only the Publisher of Gossip Tabloid but also its President
and Chairperson, could not escape liability by claiming lack of participation in the
preparation and publication of the libelous article.

Similarly, in Tulfo v. People,33 therein petitioners, who were Managing Editor,

National Editor of Remate publication, President of Carlo Publishing House, and
one who does typesetting, editing, and layout of the page, claim that they had no
participation in the editing or writing of the subject articles which will hold them
liable for the crime of libel and, thus, should be acquitted. In debunking this
argument, the Court stressed that an editor or manager of a newspaper, who has
active charge and control over the publication, is held equally liable with the
author of the libelous article. This is because it is the duty of the editor or
manager to know and control the contents of the paper, and interposing the
defense of lack of knowledge or consent as to the contents of the articles or
publication definitely will not prosper.

The rationale for the criminal culpability of those persons enumerated in Article
360 was already elucidated as early as in the case of U.S. v. Ocampo,34 to wit:

According to the legal doctrines and jurisprudence of the United States, the
printer of a publication containing libelous matter is liable for the same by reason
of his direct connection therewith and his cognizance of the contents thereof.
With regard to a publication in which a libel is printed, not only is the publisher
but also all other persons who in any way participate in or have any connection
with its publication are liable as publishers.35

Accordingly, Article 360 would have made petitioners Bautista and Alcantara,
being the Editor and Assistant Editor, respectively, of Bandera Publishing
Corporation, answerable with Ampoloquio, for the latters alleged defamatory
writing, as if they were the authors thereof. Indeed, as aptly concluded by the
court a quo:

The aforestated provision is clear and unambiguous. It equally applies to an

editor of a publication in which a libelous article was published and states that the
editor of the same shall be responsible for the defamation in writing as if he were
the author thereof. Indeed, when an alleged libelous article is published in a
newspaper, such fact alone sufficient evidence to charge the editor or business
manager with the guilt of its publication. This sharing of liability with the author of
said article is based on the principle that editors and associate editors, by the
nature of their positions, edit, control and approve the materials which are to be
published in a newspaper. This means that, without their nod of approbation, any
article alleged to be libelous would not be published.

Hence, by virtue of their position and the authority which they exercise,
newspaper editors and associate editors are as much critical part in the
publication of any defamatory material as the writer or author thereof.36

Nevertheless, petitioners could no longer be held liable in view of the procedural

infirmity that the petition for certiorari was not undertaken by the OSG, but
instead by respondent in her personal capacity. Although the conclusion of the
trial court may be wrong, to reverse and set aside the Order granting the
demurrer to evidence would violate petitioners constitutionally-enshrined right
against double jeopardy. Had it not been for this procedural defect, the Court
could have seriously considered the arguments advanced by the respondent in
seeking the reversal of the Order of the RTC.

The granting of a demurrer to evidence should, therefore, be exercised with

caution, taking into consideration not only the rights of the accused, but also the
right of the private offended party to be vindicated of the wrongdoing done
against him, for if it is granted, the accused is acquitted and the private
complainant is generally left with no more remedy. In such instances, although
the decision of the court may be wrong, the accused can invoke his right against
double jeopardy. Thus, judges are reminded to be more diligent and circumspect
in the performance of their duties as members of the Bench, always bearing in
mind that their decisions affect the lives of the accused and the individuals who
come to the courts to seek redress of grievances, which decision could be
possibly used by the aggrieved party as basis for the filing of the appropriate
actions against them.

Perforce, the Order dated April 25, 2008 of the Regional Trial Court, Branch 212,
Mandaluyong City, in Criminal Case Nos. MC02-4872 and MC02-4875, which
dismissed the actions as against petitioners Lito Bautista and Jimmy Alcantara,
should be reinstated.

WHEREFORE, the petition is GRANTED. The Decision dated May 19, 2009 and
Resolution dated September 28, 2009 of the Court of Appeals, in CA-G.R. SP
No. 104885, are REVERSED AND SET ASIDE. The portion of the Order dated
April 25, 2008 of the Regional Trial Court, Branch 212, Mandaluyong City, in
Criminal Case Nos. MC02-4872 and MC02-4875, which dismissed the actions as
against petitioners Lito Bautista and Jimmy Alcantara, is REINSTATED.

SO ORDERED.