Crim Rev Atty Diwa Part 1 51-60

CRIM REV ATTY DIWA PART 1 61-70
Jeross Romano Aguilar
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,

vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and
save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of probation. This outlaws the
element of speculation on the part of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the
service of his sentence inevitable, he now applies for probation as an "escape hatch" thus rendering
nugatory the appellate court's affirmance of his conviction. Consequently, probation should be
availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who
manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by
P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he
failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo
walang utak . . . . Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5)
separate Informations instituted by five (5) of his employees, each Information charging him with
gravely maligning them on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found
petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim.
Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year
and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed
on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the
offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis,
P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit.1 He was
however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar
Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his
case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated
in his favor a mitigating circumstance analogous to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory words complained
of . . . . he must have been angry and worried "about some missing documents . . .
as well as the letter of the Department of Tourism advising ASPAC about its
delinquent tax of P1.2 million . . . . " the said defamatory words must have been
uttered in the heat of anger which is a mitigating circumstance analogous to passion
or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment . . . . "3 After he failed to interpose an appeal therefrom the decision.of the RTC
became final. The case was then set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an
application for probation which the MeTC denied "in the light of the ruling of the Supreme Court
in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition
on the following grounds —
Initially, the Court notes that the petitioner has failed to comply with the provisions of
Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is
sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition that he had asked
the respondent court to reconsider its above order; in fact, he had failed to give the
court an.opportunity to correct itself if it had, in fact, committed any error on the
matter. He is, however, required to move for reconsideration of the questioned
order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure
is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de
Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v.
Public Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary,
despotic or whimsical exercise of power in denying the petitioner's application for
probation . . . .
Fourthly, the petition for probation was filed by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after
conviction, upon an application by the defendant within the period of appeal, upon terms and
conditions and period appropriate to each case, but expressly rules out probation where an appeal
has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in
dispensing with the minor technicalities which may militate against his petition as he now argues
before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the
MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of
the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was
such that he would not then be entitled to probation." 6 He contends that "he appealed from the
judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by
the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation even after
appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration of
the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly
included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity
conferred by the state which may be granted by the court to a seemingly deserving defendant who
thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands
convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by
others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which
is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of
the accused.10 The Probation Law should not therefore be permitted to divest the state or its
government of any of the latter's prerogatives, rights or remedies, unless the intention of the
legislature to this end is clearly expressed, and no person should benefit from the terms of the law
who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law should not be subjected to
any to suit the case of petitioner. While the proposition that an appeal should not bar the accused
from applying for probation if the appealis solely to reduce the penalty to within the probationable
limit may be equitable, we are not yet prepared to accept this interpretation under existing law and
jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en
banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal statute. We, however,
understand petitioner's argument to be really that any statutory language that
appears to favor the accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the
spirit of the law" where the words of the statute themselves, and·as illuminated by the
history of that statute, leave no room for doubt or interpretation. We do not believe
that "the spirit of·the law" may legitimately be invoked to set at naught words which
have a clear and definite meaning imparted to them by our procedural law. The "true
legislative intent" must obviously be given effect by judges and all others who are
charged with the application and implementation of a statute. It is absolutely
essential to bear in mind, however, that the spirit of the law and the intent that is to
be given effect are derived from the words actually used by the law-maker, and not
from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No.
1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined
and principled search for the meaning which the law-making authority projected
when it promulgated the language which we must apply. That meaning is clearly
visible in the text of Section 4, as plain and unmistakable as the nose on a man's
face. The Courtis simply·reading Section 4 as it is in fact written. There is no need for
the involved process of construction that petitioner invites us to engage in, a process
made necessary only because petitioner rejects the conclusion or meaning which
shines through the words of the statute. The first duty of the judge is to take and
apply a statute as he finds it, not as he would like·it to be. Otherwise, as this Court
in Yangco v. Court of First Instance warned, confusion and uncertainty will surely
follow, making, we might add, stability and continuity in the law much more difficult to
achieve:
. . . [w]here language is plain, subtle refinements which tinge words

as to give them the color of a particular judicial theory are not only
unnecessary but decidedly harmful. That which has caused so much
confusion in the law, which has made it so difficult for the public to
understand and know what the law is with respect to a given matter,
is in considerable measure the unwarranted interference by judicial
tribunals with the English language as found in statutes and
contracts, cutting the words here and inserting them there, making
them fit personal ideas of what the legislature ought to have done or
what parties should have agreed upon, giving them meanings which
they do not ordinarily have cutting, trimming, fitting, changing and
coloring until lawyers themselves are unable to advise their clients as
to the meaning of a given statute or contract until it has been
submitted to some court for its interpretation and construction.
The point in this warning may be expected to become sharper as our people's grasp
of English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is
taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of
the Probation Law, as amended, which opens with a negativeclause, "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction." In Bersabal v. Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule of statutory construction.
negative words and phrases are to be regarded as mandatory while those in the
affirmative are merely directory. . . . the use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to impose a duty
which may be enforced.
And where the law does not distinguish the courts should not distinguish; where the law does not
make exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there
was no need to appeal if only to reduce the penalties to within the probationable period. Multiple
prison terms imposed against an accused found guilty of several offenses in one decision are not,
and should not be, added up. And, the sum of the multiple prison terms imposed against an
applicant should not be determinative of his eligibility for, nay his disqualification from, probation.
The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set
out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he
is otherwise specifically disqualified. The number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D.
968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree
shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more
than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each
penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to
have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months
of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each
crime committed on each date of each case, as alleged in the information(s)," and in each of the four
(4) informations, he was charged with.having defamed the four (4) private complainants on four (4)
different, separate days, he was still·eligible for probation, as each prison term imposed on petitioner
was probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on
the assumption that those sentenced to higher penalties pose too great a risk to society, not just
because of their demonstrated capability for serious wrong doing but because of the gravity and
serious consequences of the offense they might further commit. 14 The Probation Law, as amended,
disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to
Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the
disqualification is principally the gravity of the offense committed and the concomitant degree of
penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally
considered callous, hard core criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say,
thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one
outburst) and sentenced to a total prison term of thirteen (13) years, and another who has been
found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as
minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin.
Obviously, the latter offender is more perverse and is disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not
have availed of the benefits of probation. Since he could have, although he did not, his appeal now
precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the
penalties imposed against him should be summed up, still he would not have qualified under the
Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty
would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six
(6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16
cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence,
following his argument, petitioner cannot still be eligible for probation as the total of his penalties
exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times since there are
only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16)
times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer —
"one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each
crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner
should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the
judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in
each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating
circumstance for each case, count or incident of grave oral defamation·There is no valid reason
therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of
petitioner in each of the sixteen (16) cases and reducing only the duration of the penalties imposed
therein. Thus —
Premises considered, the judgment of conviction rendered by the trial court is

AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY
beyond reasonable doubt in each of the above entitled cases and appreciating in his
favor the mitigating circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight penalty of
EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law;
and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or
absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of
thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed.
Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can
we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole
modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken separately as
the totality of all the penalties is not the test, petitioner should have immediately filed an application
for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he
felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability.
Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to
probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the
MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed his
conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for
probation — since he was already qualified under the MeTC Decision — but rather to insist on his
innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the
RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at
his acquittal: (a) in finding that the guilt of the accused has been established because of his positive
identification by the witness for the prosecution; (b) in giving full faith and credence to the bare
statements of the private complainants despite the absence of corroborating testimonies; and, (c)in
not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private complainants could not have
missed identifying him who was their President and General Manager with whom they worked for a
good number of years. Petitioner further argued that although the alleged defamatory words were
uttered in the presence of other persons, mostly private complainants, co-employees and clients, not
one of them was presented as a witness. Hence, according to petitioner, the trial court could not
have convicted him on the basis of the uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete

innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the
accused never manifested that he was appealing only for the purpose of correcting a wrong penalty
— to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after
asserting his innocence therein, petitioner should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the
Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of
an accused who although already eligible does not at once apply for probation, but doing so only
after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of
Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties.
Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be
worse for him. Besides, the RTC Decision had already become final and executory because of the
negligence, according to him, of his former counsel who failed to seek possible remedies within the
period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule
117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed
against him charged four (4) separate crimes of grave oral defamation, committed on four (4)
separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same
Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the
Information.
Fourth. The application for probation was filed way beyond the period allowed by law. This is vital
way beyond the period allowed by law and crucial. From the records it is clear that the application for
probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost
two months after (his) receipt of the Decision" 22of the RTC. This is a significant fact which militates
against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of
now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out of time. The law in point,
Section 4 of P.D. 968, as amended, provides thus:
Sec. 4. Grant of Probation. — Subject to the provisions of this

Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal. . . . place the defendant on
probation . . . .
Going to the extreme, and assuming that an application for probation from one who
had appealed the trial court's judgment is allowed by law, the petitioner's plea for
probation was filed out of time. In the petition is a clear statement that the petitioner
was up for execution of judgment before he filed his application for probation. P.D.
No. 968 says that the application for probation must be filed "within the period for
perfecting an appeal;" but in this case, such period for appeal had passed, meaning
to say that the Regional Trial Court's decision had attained finality, and no appeal
therefrom was possible under the law. Even granting that an appeal from
the appellate court's judgment is contemplated by P.D. 968, in addition to the
judgment rendered by the trial court, that appellate judgment had become final and
was, in fact, up for actual execution before the application for probation was
attempted by the petitioner. The petitioner did not file his application for probation
before the finality of the said judgment; therefore, the petitioner's attempt at probation
was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation may yet be
granted even if it was filed only after judgment has become final, the conviction already set for
execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily
must be after the decision of the RTC had become final, for him to file the application for probation
with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow
probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually
exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed
penalties were already probationable, and in his appeal, he asserted only his innocence and did not
even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an
application for probation outside the period for perfecting an appeal granting he was otherwise
eligible for probation, the instant petition for review should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

THIRD DIVISION
[G.R. No. 110097. December 22, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO

ASTORGA, accused-appellant.
DECISION
PANGANIBAN, J.:
Actual detention or locking up is the primary element of kidnapping. If the evidence

does not adequately prove this element, the accused cannot be held liable for
kidnapping. In the present case, the prosecution merely proved that appellant forcibly
dragged the victim toward a place only he knew. There being no actual detention or
confinement, the appellant may be convicted only of grave coercion.
The Case
The foregoing principle is used by this Court in resolving the appeal of Arnulfo Astorga
challenging the March 31, 1993 Decision[1] of the Regional Trial Court of Tagum, Davao
convicting him of kidnapping.
In an Information[2] dated March 24, 1992 and docketed as Criminal Case No. 8243,
Appellant Arnulfo Astorga was charged with violation of Article 267, paragraph 4 of the
Revised Penal Code, allegedly committed as follows:
That on or about December 29, 1991 in the Municipality of Tagum, Province of

Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent and by means of force, did then and there
wilfully, unlawfully and feloniously kidnap Yvonne Traya, a minor, 8 years of age,
thereby depriving her of her liberty against her will, to the damage and prejudice of
said offended party.
Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his

counsel,[3] pleaded not guilty to the charge. Trial on the merits ensued. The dispositive
portion of the assailed Decision[4] reads as follows:[5]
WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA

having been proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of
the Revised Penal Code, [he] is hereby sentenced to Reclusion Perpetua to be served
at the National Penitentiary, [Muntinlupa].
This appeal was filed directly with this Court in view of the penalty imposed.[6]
The Facts
Evidence for the Prosecution

The evidence for the prosecution was narrated in the Decision of the trial court, as
follows:[7]
Prosecution witnesses extant from their testimonies categorically assert that around
6:30 P.M. children of neighbors were near the store of the grandparents of Yvonne
Traya.
Incidentally, there was a brown out that evening hence candle was used. The daughter
and nephew of her aunt Bebeth were quarelling [sic] about the possession of a
flashlight until the glass got lost. Accused or Boy Astorga, went near and asked her
daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home.
Accused told Yvonne to go with him to buy candy. She did not answer and accused
immediately grabbed and hold [sic] her hand. Accused placed his hand on her
shoulder and covered his [sic] mouth.
Yvonne was only eight (8) years old on 29 December 1991 when she was brought by
the accused allegedly to buy candy. Some stores were closed; others were
opened. Accused never went inside the store to buy candy. Instead she [sic] held and
dragged Yvonne until they went inside the compound of Maco Elementary
School. They were walking inside the perimeter fence, [while the accused was]
holding closely the child. Later, there being no person around the gate, accused
brought her out to the highway and walked towards the direction of Tagum.
Yvonne stays with her grandparents and so with her parents at Sitio Binuangan,
Maco. She asked him where they were going and accused answered that they were
going home. She told him that they were already on the opposite direction because her
grandparents house is at Binuangan, while their route was going towards
Tagum. Indeed, it was an opposite direction. Notwithstanding the assertion of Yvonne
that they were on the wrong direction, accused placed his hands on her shoulder and
dragged her. She cried and protested that she must go home. Accused did not heed her
plea and while she was forced to walk she continued crying.
While accused and Yvonne were walking in the situation as described, somewhere
near the Luponlupon bridge they met some group of men. Having met on their
opposite direction, the two, were noticed by the group of youngsters. The group were
bound to Maco Catholic Church to see a drama. Having met the two and as noticed by
the group accused keep [sic] on looking back at them. The group were suspicious
about the man who was bringing a child. The group decided to follow them. Accused
hurriedly walked fast with Yvonne, and to prevent from being overtaken, he carried
the victim and ran. They were chased. After a distance of half a kilometer they were
overtaken.
Edwin Fabila declared that Jonathan, one of his companions with others in chasing,
asked the accused where they were bound. He answered towards Binuangan. The
group noticed something suspicious because their destination was already towards
Tagum which is an opposite direction to Binuangan.
When asked who is the child, accused answered Traya. Jonathan one of those who
chased knew the family. He got from the accused Yvonne who showed some
resistance. Nevertheless, the group brought her home at Binuangan.Likewise, accused
was also brought by them to Yvonnes home. The house of accused and Yvonne were
five (5) meters away. Accused wanted to talk to the parents of the victim, but he was
driven by her aunt and adviced [sic] to leave otherwise he will be stabbed by Yvonnes
father. He left and never talked with the family.
Evidence for the Defense
The facts as viewed by the defense are presented in the Appellants Brief, [8] dated
December 10, 1993:
The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant
himself.
Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of
December 29, 1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga
with two (2) companions. They were drinking Red Horse and were already
drunk. When they finished drinking, she went with Astorga to the latters house. (TSN,
pp. 7-8 and 18, March 23, 1993). The house of Astorga is about 5 meters away from
the house of the complainant[.] Yvonne came and asked money from the accused to
buy candy. The two went together and she was left behind. She told them to hurry
up.When they failed to return, she looked for them, but because it was already dark,
she did not find them. She went back to the house of the accused. (Ibid., pp. 10-11).
Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that at around
1:00 P.M. of December 29, 1991, he arrived at Maco from Tagum. Upon arrival his
two friends, Vicvic and Anding were already at his home. They decided to drink,
hence they proceeded to Adecor Cottage and drank two gallons of Tuba. At around
2:00 P.M., they were at the market place and drink beer grande. At 5:00 P.M. on the
same day, the three proceeded near the municipal hall and with some persons, they
again continued their drinking spree taking up Red Horse wine. (Decision, p. 3).
At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him
and asked him money to buy candy. He told her that they will buy. They were not able
to buy because the two stores where they went were already closed. (TSN, pp. 12 and
13, March 24, 1993). He took her for a stroll for his drunkeness [sic] to subside. They
walked inside the school premises which was about 20 meters away from the second
store. They went out of the school compound going towards Lupon-lupon because due
to his drunkneness [sic], he thought it was the way towards their house. (Ibid, pp. 14-
15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the bridge
near the municipal hall. After reaching Purok, they met several persons, he was asked
were (sic) they were heading, and he answered to Tagumpay, but he was told that they
[sic] way was already going to Tagum. He requested those persons to guide them to
Tagumpay. They asked him who was the child he was carrying. He answered that it
was Trayas child.(Ibid, pp. 16-17). He was carrying the child because he was already
crying as she already wanted to go home. The group of persons, men and women,
guided them. Yvonne was being held by the women. They arrived at Yvonnes
house. He talked to the auntie of the child and told her that he would converse with
her but he was advised to go away because the father of Yvonne might hack him. So
he went home. (Ibid, pp. 18-19)
The Trial Courts Ruling
The trial court justified its finding of guilt with the following discussion: [9]
Accused insisted [that] he was already drunk hence when he took Yvonne to buy
candy, he strolled with her so that his drunkenness be subsided.
All these defense version was rebutted by Yvonne when she categorically declared
that she did not smell liquor on the accused.
His defense of intoxication has no leg to stand [on].
Consider these facts.
Never did he present Vicvic and Anding to corroborate that he was intoxicated that
afternoon and at dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M.
He did not rebut the testimonies of Fabila that when they noticed his actions
suspicious bringing with him a child, he walked fast dragging Yvonne. When he
noticed that the group of youngsters were chasing him, he carried Yvonne and ran
until they covered a distance of half a kilometer in chasing them, until they had
overtaken him.
If he was that intoxicated, being under stupor and weakened by liquor, he could not
ran that fast carrying Yvonne for half a kilometer.
Moreover, Yvonne categorically in straight forward testimony asserted that she did
not smell liquor on the accused.
Accused, naivety [sic], that because of his intoxication, he got lost and was not able to
proceed with Yvonne to Binuangan was a shallow afterthought.
It must be recalled that Yvonne told him they were already going at opposite direction
from home. Instead they were heeding towards Tagum. Accused did not change
course.
xxx xxx xxx
Again, not only force was employed in having Yvonne as captive by dragging,
slapping her mouth and was holding her tight, but accused also used psychological
means of scaring her about a red eyed ghost.
Through this means and efforts, Yvonne was deprived of her liberty and was by force
prevented to go home to her parents.
On rebuttal, Yvonne denied that she asked money from accused to buy candy. She
also denied as testified by defense witness Arbeth Nalcot that she went to the house of
the accused on 29 December 1991 or on any other dates to ask money from Astorga
for candy.
Defense evidence are [sic] punctured with unbelievability in his off tangent and
incredible theory of drunkardness. His alleged being lost in the direction of Binuangan
in spite of Yvonnes insistence and that of the person they met that he was on the
wrong way considering that there are no criss crossing roads except the highway, is
preposterous.
The Issues
Appellant imputes the following errors to the trial court:[10]

I
The trial court erred in giving credence to the testimonies of the prosecutions
witnesses which were replete with inconsistencies and contradictions.
II
The trial court erred in convicting the appellant despite the fact that Yvonne Traya
was not detained, locked-up or deprived of her liberty.
III
The trial court erred in convicting the appellant despite the fact that appellant had no
motive to kidnap Yvonne Traya.
In the main, appellant challenges the credibility of the prosecution witnesses and the
legal characterization of the acts imputed to him.
The Courts Ruling
The appeal is partly meritorious. Appellant should be convicted only of grave

coercion, not kidnapping.
First Issue: Credibility of Prosecution Witnesses
Appellant contends that the testimonies of the prosecution witnesses are not worthy
of credence because they were inconsistent and improbable. He cites the following:
Glenda Chavez testified that she was present when the accused told Yvonne that they
will buy candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10,
1993). These testimonies were contradicted by Yvonne Traya when she declared that
Glenda Chavez had already went [sic] inside their house when [the] accused told her
that they will buy candy (TSN, pp. 10, March 16, 1993). She testified that she did not
smell liquor on the accused. (Decision, pp. 3-4)
Edwin Fabila testified that their group was able to overtake the accused at a distance
of 2 fathoms and they [sic] him about 15 to 20 meters (TSN, p. 35, March 10,
1993). Arnel Fabila, on the other hand, testified that they overtook the accused after
chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993).
Yvonne Traya testified that the accused could not ran fast carrying her because she
was heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they
were able to overtake the accused only after chasing him at a distance of half
kilometer (TSN, p. 10, March 11, 1993) meaning accused was running fast. [11]
We hold, however, that inconsistencies in the testimonies of witnesses concerning

minor details and collateral matters, like the examples cited by appellant, do not affect the
substance, veracity or weight of their declarations. These inconsistencies reinforce,
rather than weaken, their credibility, for different witnesses of startling events usually
perceive things differently.[12] Indeed, the testimonies of the prosecution witnesses cannot
be expected to be uniform to the last detail.
The testimony of Glenda Chavez that the accused was drunk at that time allegedly
contradicted Yvonnes statement that the accused did not smell of liquor. This does not
detract from the credibility of either witness. Yvonne, then an eight-year-old child,[13] and
her Aunt Glenda, then twenty-seven years old,[14] do not have the same experiences or
level of maturity; hence, their perceptions of events differ. More important, whether the
accused was drunk or not is an insignificant detail that does not substantially affect the
testimonies of these witnesses.
Further, the discrepancy in the witnesses estimate of the distance covered by the
men who chased appellant does not render their testimonies incredible. [15] Quite the
contrary, such discrepancy shows their candor and sincerity, demonstrating that their
testimonies were unrehearsed.[16] Yvonne testified that when appellant noticed the group
of men following them, he carried her and ran. Yvonnes testimony is in accord with that
of Arnel Fabila -- a member of the group who chased appellant -- that they were able to
overtake appellant after chasing him half a kilometer.[17]
Appellants challenge to the credibility of the prosecution account is also premised on
the alleged failure of the trial court to consider the following points: [18]
a) that the alleged victim admitted that she and the accused casually moved around the
school premises, as if they were strolling; That when they were already in the
highway, they were also walking openly and casually until they were met by a group
of youngster[s].
Edwin Fabila, one of the prosecutions witnesses, corroborated the fact that the two
were walking casually along the highway when he first saw them;
b) That it is highly incredible that accused and the alleged victim will not be seen or
noticed by the people travelling or those persons residing along the highway if it was
true that the accused was dragging her and she was continuously crying from her
residence up to a distance of more than one kilometer;
c) That the accused and the alleged victim were travelling at a very slow pace; a
distance of barely a kilometer for a period of more than two hours;
d) That the accused was very drunk, having been drinking different kinds of
intoxicating liquors from 1:00 p.m. to 5:00 p.m., causing him to be confused on which
way they should take in going home.
e) That the accused was not hurt by the group of youngsters who allegedly rescued the
child, nor was immediately brought to the municipal hall which was just near the
house of the victim for the filing of the necessary charge; this [sic] actuations only
confirm the fact that the accused merely sought their help in guiding them home, and
f) That it took more than one week for the complainant and her parents to file the case
at the Fiscals Office.
We cannot sustain these contentions. The charge is not belied by the one-week delay
in the filing of the complaint. It has been held that delay or vacillation in making a criminal
accusation does not necessarily weaken the credibility of a witness where such delay is
satisfactorily explained.[19] In the present case, one week was reasonable, considering that
the victim was a resident of Binuangan and that the case was filed in Tagum, Davao.
Furthermore, the group whom appellant met did not hurt or bring him to the municipal
hall, because they deemed it more urgent at the time to rescue Yvonne and to bring her
home, which they actually did.[20]There is no settled rule on how a group of young men
should react upon seeing a young girl snatched by an older man. Verily, violence is not
the only normal reaction of young men who see a girl being forcibly taken.
Appellants claim that he and Yvonne were merely strolling and walking casually does
not negate the fact that Yvonne was deprived of her will. As noted by the trial court,
appellant used physical force and psychological means in restraining her.[21] Despite her
young age, Yvonne was able to clearly recount the events that transpired on that fateful
night.
Moreover, there is no merit in the argument that the people travelling or living along
the highway should have noticed appellant and Yvonne. The fact is that a group of men
actually noticed and ultimately chased them.
All in all, appellant utterly fails to justify a departure from the long settled rule that the
trial courts assessment of the credibility of witnesses should be accorded great respect
on appeal.[22]
Second Issue: No Motive to Kidnap
Petitioner contends that [t]here was no evidence presented to prove why the accused
should kidnap Yvonne Traya. He submits that the prosecution had failed to prove [any]
motive to support the alleged kidnapping incident, thus, making the theory of the defense
more credible and believable.[23]
The contention is insignificant. Motive is not an element of the crime. Furthermore,
motive becomes material only when the evidence is circumstantial or inconclusive, and
there is some doubt on whether a crime has been committed or whether the accused has
committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the
culpability of the accused beyond reasonable doubt.[24] In this case, the identity of
appellant is not in question. He himself admitted having taken Yvonne to Maco Central
Elementary School.
Third Issue: Kidnapping or Coercion?
Appellant contends that the prosecution failed to prove one essential element of
kidnapping -- the fact of detention or the deprivation of liberty. The solicitor general
counters that deprivation of liberty is not limited to imprisoning or placing the victim in an
enclosure. Citing People vs. Crisostomo,[25] he argues:
(T)he act proven in the record constitutes (kidnapping). It is no argument against this
conclusion that the accused deprived the offended party of her liberty without placing
her in an inclosure; because illegal detention, as defined and punished in our Code,
may consist not only in imprisoning a person but also in detaining her or depriving her
in any manner of her liberty. [26]
We agree with appellants contention this time.

Under Article 267 of the Revised Penal Code,[27] the elements of kidnapping are as
follows:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives the latter of
his liberty.
3. That the act of detention or kidnapping must be illegal.
4. That in the commission of the offense, any of the following circumstances is

present:
(a) That the kidnapping or detention lasts for more than five (5) days; or
(b) That it is committed simulating public authority; or
(c) That any serious physical injuries are inflicted upon the person kidnapped or
detained or threats to kill him are made; or
(d) That the person kidnapped or detained is a minor, female, or a public officer.
The Spanish version of Article 267 of the Revised Penal Code uses the terms lockup
(encerrar) rather than kidnap (secuestrar or raptar). Lockup is included in the broader
term of detention, which refers not only to the placing of a person in an enclosure which
he cannot leave, but also to any other deprivation of liberty which does not necessarily
involve locking up.[28] Likewise, the Revised Penal Code was originally approved and
enacted in Spanish. Consequently, the Spanish text is controlling in cases of conflict with
the English version, as provided in Section 15 of the Revised Administrative Code. [29]
A review of the events as narrated by the prosecution witnesses ineluctably shows
the absence of locking up. Victim Yvonne Traya testified:[30]
Q. And after that what happened next?
A. When Auntie Bebeth went inside her house she was already bringing her child and
bringing with her candle. And Arnulfo Astorga told me that we will buy candy, sir.
Q. And after that?
A. And while I was not answering the question he immediately grabbed me.
xxx xxx xxx
Q. And after that, after he held your hand, what did he do next?
A. He placed his hands on my shoulder and also covering [sic] my mouth.
xxx xxx xxx
Q. And after that what did he do next?
A. He brought me to the school.
Q. What school did Boy Astorga bring you? What is the name of the school?
A. Maco Central Elementary School.
Q. How far is Maco Central Elementary School from your house?

A. A little bit near.
Q. When Boy Astorga brought you to school, was it dark?
A. Yes, sir.
Q. Exactly where in Maco Elementary School did Boy Astorga bring you?
A. Inside the gate, sir.
Q. And once inside the gate what did he do to you?
A. We were going around the school?
xxx xxx xxx
Q. Do you know why you were going around the school?
A. Yes, sir.
Q. Why, what did he do?
A. We were going around and when he saw that there is no person in the gate we passed
at that gate.
Q. And where did he go after passing that gate?
A. Towards Lupon-lupon, sir.
xxx xxx xxx
Q. What about you, did you talk to him?
A. I asked him where we were going and he told me that we are going home and I told
him that this is not the way to our house, and we did not pass this way. (Witness
gesturing a certain direction).
Q. And so when you said that that is not the way, when you said that is not the way
because our house is towards Binuangan...
By the way, you said you were going to Lupon-lupon, do you know to what direction
is going to Lupon-lupon, to what place is Lupon-lupon going to?
A. Yes, sir.
Q. Where?
A. Going to my place.
Q. Do you know the place where it was going? What is that place?
A. On the road going to Tagum.
Q. Now, what about your house, where is it going?
A. To Binuangan.
Q. And so when you ... what did he do next when you said that is not the place going to
your house?
A. We continued walking and he also placed his hands on my shoulder and dragged me,
sir.
Q. What about you, what did you do when he was dragging you?
A. I was crying, sir.
Q. Did you say any word to him when you were crying?
A. Yes, I told him that we are going home.
Q. And what did Boy Astorga say?
A. He told me that we will be going home, and told me not to make any noise because if
I will make any noise we will be lost on our way.
Q. And so, what did you do?
A. I continued crying, sir.
Q. And after that, what happened?
A. We continued walking and we met a person and he asked Boy Astorga where we are
going, sir.
Q. What did that man ask Boy Astorga?
A. The man asked Boy Astorga where are you going, and Boy Astorga answered, to
Binuangan, but the man continued to say that this way is going to Tagum and not to
Binuangan any more.
Q. What else did the man ask, if any?
A. I further said that we will already leave, and we will be the ones to go to Binuangan,
and after that, Boy Astorga put me down because he urinated. So, at that instance,
I ran, but, after he urinated, he already took hold of me not to run any more because
there is a ghost.
Q. When you said you ran away after Boy Astorga left you when he urinated, where did
you run?
A. Towards Binuangan, sir.
Q. Towards the direction of your house?
A. Yes, sir.
Q. And you were overtaken again by Boy Astorga?
A. Yes, sir.
Q. What did he do to you when you were overtaken by Boy Astorga?
A. He took hold of me again and he told me, he threatened me that there is [sic] a red
eyes but I answered him that is [sic] not a red eyes of the ghost but that is a light
coming from the vehicle.
Q. Now, what happened next?
A. He placed a necklace on me, sir.
xxx xxx xxx
A. He was dragging me and I was crying when he was dragging me.
Q. While you were being dragged did you make any plea to him?
A. Yes, I told him that I will go home.
Q. And what did he say?
A. He said that we will go home but I know [sic] that that place we are [sic] heading to is
[sic] not a way to our home but it is [sic] the opposite.
Q. So, what happened next?
A. He continued dragging me and after that we met plenty of persons and I shouted for
help and at that instance, he slapped my mouth and after a few steps he already
carried me.
xxx xxx xxx
A. He continued walking and I also continued crying and I told him that I want to go home
and he told me that we are heading towards home, but I told him that the way we
are going to is not the way to our house.
Q. By the way, when you shouted [for] help, was it loud?
A. Yes, sir.
Q. So, what happened next?
A. He continued running and he stopped several vehicles but they did not stop, so, we
just continued walking.
Q. After that, what happened next?
A. He moved closer to the banana plants. He looked back and he saw that persons were
already chasing him and after that he carried me and ran.
From the foregoing, it is clear that the appellant and the victim were constantly on the
move. They went to Maco Elementary School and strolled on the school grounds. When
nobody was at the Luponlupon bridge, appellant took the victim to the highway leading to
Tagum, Davao. At that time, Yvonne pleaded with appellant that she really wanted to go
home to Binuangan, but appellant ignored her pleas and continued walking her toward
the wrong direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant
Astorga carried the victim and ran, but Fabilas group chased and caught up with them.
This narration does not adequately establish actual confinement or restraint of the
victim, which is the primary element of kidnapping.[31] Appellants apparent intention was to
take Yvonne against her will towards the direction of Tagum. Appellants plan did not
materialize, however, because Fabilas group chanced upon them. The evidence does not
show that appellant wanted to detain Yvonne; much less, that he actually detained
her. Appellants forcible dragging of Yvonne to a place only he knew cannot be said to be
an actual confinement or restriction on the person of Yvonne. There was no
lockup. Accordingly, appellant cannot be convicted of kidnapping under Article 267 of the
Revised Penal Code.
Rather, the felony committed in this case is grave coercion under Article 286 of the
same code. Grave coercion or coaccion grave has three elements: (a) that any person is
prevented by another from doing something not prohibited by law, or compelled to do
something against his or her will, be it right or wrong; (b) that the prevention or compulsion
is effected by violence, either by material force or such a display of it as would produce
intimidation and, consequently, control over the will of the offended party; and (c) that the
person who restrains the will and liberty of another has no right to do so or, in other words,
that the restraint is not made under authority of a law or in the exercise of any lawful
right.[32] When appellant forcibly dragged and slapped Yvonne, he took away her right to
go home to Binuangan. Appellant presented no justification for preventing Yvonne from
going home, and we cannot find any.
The present case should be distinguished from People vs. Rosemarie de la
Cruz. [33] Here, Appellant Astorga tricked Yvonne to go with him by telling her that they
were going to buy candy. When Yvonne recognized the deception, she demanded that
she be brought home, but appellant refused and instead dragged her toward the opposite
direction against her will. While it is unclear whether Appellant Astorga intended to detain
or lock up Yvonne, there is no question that he forced her to go with him against her will.
In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the
accused in that case failed to consummate the crime of kidnapping because of the timely
intervention of the victims neighbor. Thus, the Court held in that case:[34]
In a prosecution for kidnapping, the intent of the accused to deprive the victim of the
latters liberty, in any manner, needs to be established by indubitable proof (People vs.
Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the
People, as consummating the crime of kidnapping in this case are those when
accused-appellant held the victims hand and refused to let go when the victim asked to
go over to her neighbor, who by then already saw what was happening. This happened
for only a very brief span of time and the evidentiary record shows that there were a
good number of people present at that time, that a guard was stationed at the gate, and
that there was at least a teacher nearby. The child could have just as easily shouted for
help. While it does not take much to scare the wits out of a small child like Whiazel,
under the attendant circumstances, we cannot say with certainty that she was indeed
deprived of her liberty. It must further be noted that up to that brief moment when
Cecilia saw them, and the child asked to be let go, the victim had gone with accused-
appellant voluntarily. Without any further act reinforcing the inference that the victim
may have been denied her liberty, even taking cognizance of her minority, the Court
hesitates to find that kidnapping in the case at bar was consummated. While it is a
well-entrenched rule that factual findings of trial courts, especially when they concern
the appreciation of testimony of witnesses, are accorded great respect, by exception,
when the judgment is based on a misapprehension of facts, as we perceive in the case
at bar, the Court may choose to substitute its own findings (People vs. Padua, 215
SCRA 266 [1992]).
The Information, dated March 24, 1992, filed against Astorga contains sufficient
allegations constitutinggrave coercion, the elements of which were sufficiently proved by
the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule
120 of the 1988 Rules on Criminal Procedure:
Section 4. Judgment in case of variance between allegation and proof. -- When there
is variance between the offense charged in the complaint or information, and that
proved or established by the evidence, and the offenses as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the offense
proved included in that which is charged, or of the offense charged included in that
which is proved.
At the time the felony was committed on December 29, 1991, the penalty imposed by
law for grave coercion was arresto mayor and a fine not exceeding five hundred
pesos.[35] The Indeterminate Sentence Law does not apply here because the maximum
penalty does not exceed one year.[36] However, appellant has been imprisoned for more
than six (6) months. He has more than served the penalty imposable for such an
offense.[37]
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is
CONVICTED only of grave coercion and is sentenced to six (6) months of arresto
mayor. Unless he is being detained for any other valid cause, his IMMEDIATE RELEASE
is herewith ordered, considering that he has more than served the maximum penalty
imposable upon him. The director of prisons is DIRECTED to inform this Court, within five
days from receipt of this Decision, of the actual date the appellant is released. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 182239 March 16, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim’s positive identification of the accused as the perpetrator of the crime.1 For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the
reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal
Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as
follows:
That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at
barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court,
[Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only
five years old.7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense admitted the
existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3
December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That
of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF’s house, the frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He bore no grudge against
appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing
at the basketball court near her house, fetching water, and passing by her house on his way to the
road. She and appellant used to be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her aunt
Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum.16 At the
store, he saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short
pants.18 All of them left the store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the direction of the "lower area
or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held
her hand while on the road near the store.22 They walked towards the rice field near the house of
spouses Alejandro and Gloria Perocho [the Perochos].23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.24 Already half-naked from waist down,25 he
mounted her, and, while her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27 Afterwards, appellant left and proceeded to the
Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found
her face greasy.32 There was mud on her head and blood was oozing from the back of her
head.33 He checked for any injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud on her vagina.35 AAA told
him that appellant brought her from the store36 to the grassy area at the back of the house of the
Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he
did to AAA.41Appellant replied that he was asked to buy rum at the store and that AAA followed
him.42 FFF went home to check on his daughter,43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.46AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced
her, and asked what happened to her, to which she replied that appellant raped her.49 Julito left and
found appellant at the Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the
daughter of [MMM]?" but the latter ignored his question.51Appellant’s aunt, Gloria, told appellant that
the policemen were coming to which the appellant responded, "Wait a minute because I will wash
the dirt of my elbow (sic) and my knees."52 Julito did found the elbows and knees of appellant with
dirt.53
On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center.55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate56 dated 29 January
2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was
at the Perochos at the time of the commission of the crime.60 Luzvilla even went further to state that
she actually saw Julito, not appellant, pick up AAA on the road.61 In addition, Antonia Perocho
[Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified on the behavior of Julito after the rape
incident was revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of
FFF’s house.64He denied that there was a need to pass by the house of FFF in order to access the
road or to fetch water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever
he was asked to buy something from the store, AAA always approached him.67
At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro
Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle sent him to the
store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he was able to
return after three (3) minutes. He was certain of the time because he had a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also
observed that appellant’s white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side
of the tree beside the road next to the house of the Perochos.72 From where she was, she saw Julito,
who was wearing black short pants and black T-shirt, carry AAA.73 AAA’s face was covered and she
was wiggling.74 This did not alarm her because she thought it was just a game.75 Meanwhile,
appellant was still in the kitchen when she returned.76 Around three (3) minutes later, Luzvilla saw
Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA was slowly following
behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and asked what the
appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did
not answer. Upon Antonia’s advice, Julito released her and went out of the house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of which
reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA]
P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs87
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended
in order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon
the accused, therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of
the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate
review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1)
day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages and to pay the costs.91
On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective supplemental
briefs.93 Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the innocence of the accused and
the other with his guilt, then the evidence does not pass the test of moral certainty and will not
suffice to support a conviction."96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we consider the three
well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which
only two persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict
the accused.98More so, when the testimony is supported by the medico-legal findings of the
examining physician.99
Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator
of the crime,100except when it is established that it was physically impossible for the accused to have
been at the locus criminis at the time of the commission of the crime.101
I
A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in
the absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when
the offended party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of the acts culminating in
the insertion of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the
physicians sufficiently proved such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and boxed you, what else
did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and re-phrased in
order to test that AAA well understood the information elicited from her, said it all – she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.104 Significantly, youth and immaturity are normally badges of truth and
honesty.105
Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.107
The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively
established the essential requisite of carnal knowledge.108
II
The real identity of the assailant and the whereabouts of the appellant at the time of the commission
of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good look at
him during the commission of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs criminus111 that it would be
impossible for the child not to recognize the man who held her hand and led her all the way to the
rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called "kuya" and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else – one Julito Apiki, but the child, on rebuttal,
was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
who is older, who molested her.112
In a long line of cases, this Court has consistently ruled that the determination by the trial court of the
credibility of the witnesses deserves full weight and respect considering that it has "the opportunity to
observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or
full realization of their oath,"113 unless it is shown that material facts and circumstances have been
"ignored, overlooked, misconstrued, or misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone
else is xxx a vain exercise in view of the private complainant’s positive identification of accused and
other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki, the
supposed real culprit, asked him "What is this incident, Pare?", thus corroborating the latter’s
testimony that he confronted accused after hearing of the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.116 He arrived from work only after FFF came to their house for
the second time and boxed appellant.117 It was actually the fish vendor, not her husband, who asked
appellant to buy Tanduay.118 Further, the drinking session started only after the appellant’s errand to
the store.119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria’s statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a
white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to by
AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that appellant
wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-shirt (colored black and
later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court’s appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her father that
Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers
who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen
at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been
brought there by her mother Brenda so that Lita Lingkay could take a look at her ˗ just as Julito Apiki
said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been
offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot
qualify as such, "they being related or were one way or another linked to each other."121
Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically impossible
for the accused to have been at the locus criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis and the
location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate vicinity
when the crime was committed.123
In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the
crime was considered not physically impossible to reach in less than an hour even by
foot.125 Inasmuch as it would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the accused was fast asleep
when she left to gather bamboo trees and returned several hours after. She could have merely
presumed that the accused slept all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:
Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law
and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time
Rachel was raped. It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the appellant never
left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for
Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too,
was very much occupied with her task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her
inside his house and ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next
to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle’s house.129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the
time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three
(3) years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is still under
review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in which
case, "the appropriate proceedings" in accordance with the Act shall be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.135 Such capacity may be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s
cunning and shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her
defense" are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she
was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the
death penalty when rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346;142 and (2) the privileged
mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code.145 Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family.150 The respective
awards of civil indemnity and moral damages in the amount of ₱75,000.00 each are, therefore,
proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from ₱25,000.00 to ₱30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period
of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is
pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals
held that, consistent with Article 192 of Presidential Decree No. 603, as amended,154 the aforestated
provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the
ruling in Gubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict
with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.157
The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court
to cover heinous crimes in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests,
and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child’s restoration, rehabilitation and reintegration. xxx (Italics
supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict
with the Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended sentence can no
longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of
the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of
a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the Act
in order that he/she is given the chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender committed the offense when
he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect
appellant’s confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is
reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.
SO ORDERED.
JOSE PORTUGAL PEREZ

Associate Justice
epublic of the Philippines

Supreme Court
Manila
THIRD DIVISION
JOEMAR ORTEGA, G.R. No. 151085
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CORONA,*
CHICO-NAZARIO, and
NACHURA, JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.
August 20, 2008
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DECISION
NACHURA, J.:
Before this Court is a Petition[1] for Review on Certiorari under Rule 45 of the Rules
of Civil Procedure seeking the reversal of the Court of Appeals (CA)
Decision[2] dated October 26, 2000 which affirmed in toto the Decision[3] of the
Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999,
convicting petitioner Joemar Ortega[4] (petitioner) of the crime of Rape.
The Facts
Petitioner, then about 14 years old,[5] was charged with the crime of Rape in two
separate informations both dated April 20, 1998, for allegedly raping AAA,[6] then
about eight (8) years of age. The accusatory portions thereof respectively state:
Criminal Case No. 98-19083

That sometime in August, 1996, in the Municipality of XXX, Province of
YYY, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, by means of force, violence and intimidation, did
then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal
knowledge of and/or sexual intercourse with the said AAA, a minor, then
about 6 years old, against her will.
CONTRARY TO LAW.[7]
Criminal Case No. 98-19084
That on or about the 1st day of December, 1996, in the Municipality of XXX,
Province of YYY, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, by means of force, violence and intimidation, did then
and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of
and/or sexual intercourse with the said AAA, a minor, then about 6 years old,
against her will.
CONTRARY TO LAW.[8]
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the
offense charged.[9]Thus, trial on the merits ensued. In the course of the trial, two
varying versions arose.
Version of the Prosecution
On February 27, 1990, AAA was born to spouses FFF and MMM.[10] Among her
siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the family. Before
these disturbing events, AAA's family members were close friends of petitioner's
family, aside from the fact that they were good neighbors. However, BBB caught
petitioner raping his younger sister AAA inside their own home. BBB then informed
their mother MMM who in turn asked AAA.[11] There, AAA confessed that petitioner
raped her three (3) times on three (3) different occasions.
The first occasion happened sometime in August 1996. MMM left her daughter
AAA, then 6 years old and son BBB, then 10 years old, in the care of Luzviminda
Ortega[12] (Luzviminda), mother of petitioner, for two (2) nights because MMM had
to stay in a hospital to attend to her other son who was sick.[13] During the first night
at petitioner's residence, petitioner entered the room where AAA slept together with
Luzviminda and her daughter. Petitioner woke AAA up and led her to the sala. There
petitioner raped AAA. The second occasion occurred the following day, again at the
petitioner's residence. Observing that nobody was around, petitioner brought AAA
to their comfort room and raped her there. AAA testified that petitioner inserted his
penis into her vagina and she felt pain. In all of these instances, petitioner warned
AAA not to tell her parents, otherwise, he would spank her.[14]AAA did not tell her
parents about her ordeal.
The third and last occasion happened in the evening of December 1, 1996. Petitioner
went to the house of AAA and joined her and her siblings in watching a battery-
powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching,
petitioner called AAA to come to the room of CCC and BBB. AAA obeyed. While
inside the said room which was lighted by a kerosene lamp, petitioner pulled AAA
behind the door, removed his pants and brief, removed AAA's shorts and panty, and
in a standing position inserted his penis into the vagina of AAA. [15] AAA described
petitioner's penis as about five (5) inches long and the size of two (2) ballpens. She,
likewise, narrated that she saw pubic hair on the base of his penis.[16]
This last incident was corroborated by BBB in his testimony. When BBB was about
to drink water in their kitchen, as he was passing by his room, BBB was shocked to
see petitioner and AAA both naked from their waist down in the act of sexual
intercourse. BBB saw petitioner holding AAA and making a pumping motion.
Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left.
Thereafter, BBB reported the incident to his mother, MMM.[17]
MMM testified that when she asked AAA about what BBB saw, AAA told her that
petitioner inserted his fingers and his penis into her vagina. MMM learned that this
was not the only incident that petitioner molested AAA as there were two previous
occasions. MMM also learned that AAA did not report her ordeal to them out of fear
that petitioner would spank her. MMM testified that when BBB reported the matter
to her, petitioner and Luzviminda already left her house. After waiting for AAA's
brothers to go to sleep, MMM, with a heavy heart, examined AAA's vagina and she
noticed that the same was reddish and a whitish fluid was coming out from it.
Spouses FFF and MMM were not able to sleep that night. The following morning,
at about four o'clock, MMM called Luzviminda and petitioner to come to their
house. MMM confronted Luzviminda about what petitioner did to her daughter, and
consequently, she demanded that AAA should be brought to a doctor for
examination.[18]
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas[19] (Dr.
Katalbas), the Rural Health Officer of the locality who examined AAA and found
no indication that she was molested.[20]Refusing to accept such findings,
on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical
Officer IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written
report[21] showing that there were abrasions on both right and left of the labia minora
and a small laceration at the posterior fourchette. She also found that the minor
injuries she saw on AAA's genitals were relatively fresh; and that such abrasions
were superficial and could disappear after a period of 3 to 4 days. Dr. Jocson,
however, indicated in her certification that her findings required the confirmation of
the Municipal Health Officer of the locality.
Subsequently, an amicable settlement[22] was reached between the two families

through the DAWN Foundation, an organization that helps abused women and
children. Part of the settlement required petitioner to depart from their house to avoid
contact with AAA.[23] As such, petitioner stayed with a certain priest in the locality.
However, a few months later, petitioner went home for brief visits and in order to
bring his dirty clothes for laundry. At the sight of petitioner, AAA's father FFF was
infuriated and confrontations occurred. At this instance, AAA's parents went to the
National Bureau of Investigation (NBI) which assisted them in filing the three (3)
counts of rape. However, the prosecutor's office only filed the two (2) instant cases.
Version of the Defense
Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and

Luzviminda Ortega.[24] He isthe second child of three siblings ― an elder
brother and a younger sister. Petitioner denied the accusations made against him. He
testified that: his parents and AAA's parents were good friends; when MMM left
AAA and her brothers to the care of his mother, petitioner slept in a separate room
together with BBB and CCC while AAA slept together with Luzviminda and his
younger sister; he never touched or raped AAA or showed his private parts to her;
petitioner did not threaten AAA in any instance; he did not rape AAA in the former's
comfort room, but he merely accompanied and helped AAA clean up as she
defecated and feared the toilet bowl; in the process of washing, he may have
accidentally touched AAA's anus; on December 1, 1996, petitioner together with his
parents, went to AAA's house;[25] they were dancing and playing together with all
the other children at the time; while they were dancing, petitioner hugged and lifted
AAA up in a playful act, at the instance of which BBB ran and reported the matter
to MMM, who at the time was with Luzviminda, saying that petitioner and AAA
were having sexual intercourse;[26]petitioner explained to MMM that they were only
playing, and that he could not have done to AAA what he was accused of doing, as
they were together with her brothers, and he treated AAA like a younger
sister;[27] BBB was lying; AAA's parents and his parents did not get angry at him nor
did they quarrel with each other; petitioner and his parents peacefully left AAA's
house at about nine o'clock in the evening; however, at about four o'clock in the
morning, petitioner and his parents were summoned by MMM to go to the latter's
house; upon arriving there they saw BBB being maltreated by his father as AAA
pointed to BBB as the one who molested her; and MMM and Luzviminda agreed to
bring AAA to a doctor for examination.[28]
Luzviminda corroborated the testimony of her son. She testified that: her son was a
minor at the time of the incident; CCC and BBB were the
children of MMM in her first marriage, while AAA and therest of her
siblings were of the second marriage; CCC and BBB are half-brothers of AAA;
when MMM entrusted AAA and her brothers to her sometime in August of 1996,
she slept with AAA and her youngest daughter in a separate room from petitioner;
on December 1, 1996, she was at AAA's house watching television and conversing
with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from
where they were seated, she could clearly see all the children, including petitioner
and AAA, playing and dancing in the dining area; she did not hear any unusual cry
or noise at the time; while they were conversing, BBB came to MMM saying that
petitioner and AAA were having sexual intercourse; upon hearing such statement,
Luzviminda and MMM immediately stood up and looked for them, but both mothers
did not find anything unusual as all the children were playing and dancing in the
dining area; Luzviminda and MMM just laughed at BBB's statement; the parents of
AAA, at that time, did not examine her in order to verify BBB's statement nor did
they get angry at petitioner or at them; and they peacefully left AAA's house.
However, the following day, MMM woke Luzviminda up, saying that FFF was
spanking BBB with a belt as AAA was pointing to BBB nor to petitioner as the one
who molested her. At this instance, Luzviminda intervened, telling FFF not to spank
BBB but instead, to bring AAA to a doctor for examination. Luzviminda
accompanied MMM to Dr. Katalbas who found no indication that AAA was
molested. She also accompanied her to Dr. Jocson. After getting the results of the
examination conducted by Dr. Jocson, they went to the police and at this instance
only did Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner
vehemently denied to Luzviminda that he raped AAA. Thereafter, MMMand
Luzviminda went to their employer who recommended that they should seek advice
from the Women's Center. At the said Center, both agreed on an amicable settlement
wherein petitioner would stay away from AAA. Thus, petitioner stayed with a
certain priest in the locality for almost two (2) years. But almost every Saturday,
petitioner would come home to
visit his parents and to bring hisdirty clothes for laundry. Every time petitioner
came home, FFF bad-mouthed petitioner, calling him a rapist. Confrontations
occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda.
Subsequently, AAA's parents filed the instant cases.[29]
The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail
over the positive identification of petitioner as the perpetrator of the crime by AAA
and BBB, who testified with honesty and credibility. Moreover, the RTC opined that
it could not perceive any motive for AAA's family to impute a serious crime of Rape
to petitioner, considering the close relations of both families. Thus,
the RTC disposed of this case in this wise:
FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y
Felisario GUILTY beyond reasonable doubt as Principal by Direct Participation of
the crime of RAPE as charged in Criminal Cases Nos. 98-19083 and 98-19084 and
there being no aggravating or mitigating circumstance, he is sentenced to suffer
the penalty of Two (2) Reclusion Temporal in its medium period. Applying the
Indeterminate Sentence Law, the accused shall be imprisoned for each case for a
period of Six (6) years and One (1) day of Prision Mayor, as minimum, to Fifteen
(15) years of Reclusion Temporal, as maximum. The accused is condemned to pay
the offended party AAA, the sum of P100,000.00 as indemnification for the two
(2) rapes (sic).
Aggrieved, petitioner appealed the RTC Decision to the CA.[30]
Taking into consideration the age of petitioner and upon posting of the
corresponding bail bond for his provisional liberty in the amount of P40,000.00, the
RTC ordered the petitioner's release pending appeal.[31]
The CA's Ruling
On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the
petitioner's defense of denial could not prevail over the positive identification of the
petitioner by the victim AAA and her brother BBB, which were categorical,
consistent and without any showing of ill motive. The CA also held that the
respective medical examinations conducted by the two doctors were irrelevant, as it
is established that the slightest penetration of the lips of the female organ
consummates rape; thus, hymenal laceration is not an element of rape. Moreover, the
CA opined that petitioner acted with discernment as shown by his covert acts.
Finally, the CA accorded great weight and respect to the factual findings of the RTC,
particularly in the evaluation of the testimonies of witnesses.
Petitioner filed his Motion for Reconsideration[32] of the assailed Decision which the
CA denied in its Resolution[33] dated November 7, 2001.
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED
CERTAIN FACTS OF SUBSTANCE AND VALUE WHICH IF
CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE.
II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE
ERROR WHEN IT FAILED TO APPRECIATE THE MEDICAL
FINDINGS OF DR. LUCIFREE KATALBAS.
III.
THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE

APPELLATE COURT, THAT PETITIONER-APPELLANT IN
FACT COMMITTED AND IS CAPABLE OF COMMITTING THE
ALLEGED
RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE
SEVERAL OF THE ALLEGED VICTIM'S FAMILY MEMBERS AND
THEIR RESPECTIVE MOTHERS WERE PRESENT IS
IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.
IV.
THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING

THE FACTS SET FORTH BY THE ALLEGED VICTIM
REGARDING THE CIRCUMSTANCES ATTENDING THE
COMMISSION OF RAPE SOMETIME IN AUGUST 1996.[34]
Petitioner argues that, while it is true that the factual findings of the CA are
conclusive on this Court, we are not prevented from overturning such findings if the
CA had manifestly overlooked certain facts of substance and value which if
considered might affect the result of the case. Petitioner stresses that from the
testimonies of AAA and BBB, it can be deduced that penetration was achieved; thus,
AAA felt pain. Petitioner contends that assuming the allegations of AAA are true
that petitioner inserted his fingers and his penis into her vagina, certainly such acts
would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA,
taking into consideration her age at the time and the alleged size of petitioner's penis.
However, such allegation is completely belied by the medical report of Dr. Katalbas
who, one day after the alleged rape, conducted a medical examination on AAA and
found that there were no signs or indications that AAA was raped or molested.
Petitioner submits that the CA committed a grave error when it disregarded such
medical report since it disproves the allegation of the existence of rape and,
consequently, the prosecution failed to prove its case; thus, the presumption of
innocence in favor of the petitioner subsists. Moreover, petitioner opines that like
AAA, petitioner is also a child of the barrio who is innocent, unsophisticated and
lacks sexual experience. As such, it is incredible and contrary to human reason that
a 13- year-old boy would commit such act in the very dwelling of AAA, whose
reaction to pain, at the age of six, could not be controlled or subdued. Petitioner
claims that poverty was MMM's motive in filing the instant case,
as she wanted to extort money from the parents of the petitioner. Petitioner points
out that the medical report of Dr. Jocson indicated that the abrasions that were
inflicted on the genitalia of AAA were relatively fresh and the same could disappear
within a period of 3 to 4 days. Considering that Dr. Jocson conducted the medical
examination on December 12, 1996, or after the lapse of eleven (11) days after the
alleged incident of rape, and that AAA's parents only filed the instant case after
almost a year, in order to deter Luzviminda from filing a case of slander by deed
against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA to
prove their case and to depart from the initial confession of AAA that it was actually
BBB who raped her. Finally, petitioner submits that AAA and BBB were merely
coached by MMM to fabricate these stories.[35]
On the other hand, respondent People of the Philippines through the Office of the
Solicitor General (OSG) contends that: the arguments raised by the petitioner are
mere reiterations of his disquisitions before the CA; the RTC, as affirmed by the
CA, did not rely on the testimonies of both doctors since despite the absence of
abrasions, rape is consummated even with the slightest penetration of the lips of the
female organ; what is relevant in this case is the reliable testimony of AAA that
petitioner raped her in August and December of 1996; even in the absence of force,
rape was committed considering AAA's age at that time; as such, AAA did not have
any ill motive in accusing petitioner; and it is established that the crime of rape could
be committed even in the presence of other people nearby. Moreover, the OSG relies
on the doctrine that the evaluation made by a trial court is accorded the highest
respect as it had the opportunity to observe directly the demeanor of a witness and
to determine whether said witness was telling the truth or not. Lastly, the OSG
claims that petitioner acted with discernment when he committed the said crime, as
manifested in his covert acts.[36]
However, Republic Act (R.A.) No. 9344,[37] or the Juvenile Justice and Welfare Act
of 2006, was enacted into law on April 28, 2006 and it took effect on May 20,
2006.[38] The law establishes a comprehensive system to manage children in conflict
with the law[39] (CICL) and children at risk[40]with child-appropriate procedures and
comprehensive programs and services such as prevention, intervention, diversion,
rehabilitation, re-integration and after-care programs geared towards their
development. In order to ensure its implementation, the law, particularly Section
8[41] thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested
it with certain duties and functions[42] such as the formulation of policies and
strategies to prevent juvenile delinquency and to enhance the administration of
juvenile justice as well as the treatment and rehabilitation of the CICL.The law also
provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65,
66, 67 and 68 of R.A. No. 9344's Transitory Provisions.[43]
The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old
and Below. Upon effectivity of this Act, cases of children fifteen (15)
years old and below at the time of the commission of the crime shall
immediately be dismissed and the child shall be referred to the
appropriate local social welfare and development officer. Such officer,
upon thorough assessment of the child, shall determine whether to release
the child to the custody of his/her parents, or refer the child to prevention
programs, as provided under this Act. Those with suspended sentences

and undergoing rehabilitation at the youth rehabilitation center shall
likewise be released, unless it is contrary to the best interest of the child.
SECTION 65. Children Detained Pending Trial. If the child is detained

pending trial, the Family Court shall also determine whether or not
continued detention is necessary and, if not, determine appropriate
alternatives for detention. If detention is necessary and he/she is detained
with adults, the court shall immediately order the transfer of the child to
a youth detention home.
SECTION 66. Inventory of "Locked-up" and Detained Children in
Conflict with the Law. The PNP, the BJMP and the BUCOR are hereby
directed to submit to the JJWC, within ninety (90) days from the
effectivity of this Act, an inventory of all children in conflict with the law
under their custody.
SECTION 67. Children Who Reach the Age of Eighteen (18) Years
Pending Diversion and Court Proceedings. If a child reaches the age of
eighteen (18) years pending diversion and court proceedings, the
appropriate diversion authority in consultation with the local social
welfare and development officer or the Family Court in consultation with
the Social Services and Counseling Division (SSCD) of the Supreme
Court, as the case may be, shall determine the appropriate disposition. In
case the appropriate court executes the judgment of conviction, and
unless the child in conflict with the law has already availed of probation
under Presidential Decree No. 603 or other similar laws, the child may
apply for probation if qualified under the provisions of the Probation
Law.
SECTION 68. Children Who Have Been Convicted and are Serving
Sentences. Persons who have been convicted and are serving sentence at
the time of the effectivity of this Act, and who were below the age of
eighteen (18) years at the time of the commission of the offense for which
they were convicted and are serving sentence, shall likewise benefit from
the retroactive application of this Act. They shall be entitled to
appropriate dispositions provided under this Act and their sentences shall
be adjusted accordingly. They shall be immediately released if they are
so qualified under this Act or other applicable laws.
Ostensibly, the only issue that requires resolution in this case is whether or not
petitioner is guilty beyond reasonable doubt of the crime of rape as found by both
the RTC and the CA. However, with the advent of R.A. No. 9344 while petitioner's
case is pending before this Court, a new issue arises, namely, whether the pertinent
provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time
he committed the alleged rape, he was merely 13 years old.
In sum, we are convinced that petitioner committed the crime of rape against AAA.
In a prosecution for rape, the complainant's candor is the single most important
factor. If the complainant's testimony meets the test of credibility, the accused can
be convicted solely on that basis.[44] The RTC, as affirmed by the CA, did not doubt
AAA's credibility, and found no ill motive for her to charge petitioner of the heinous
crime of rape and to positively identify him as the malefactor. Both courts also
accorded respect to BBB's testimony that he saw petitioner having sexual intercourse
with his younger sister. While petitioner asserts that AAA's poverty is enough
motive for the imputation of the crime, we discard such assertion for no mother or
father like MMM and FFF would stoop so low as to subject their daughter to the
tribulations and the embarrassment of a public trial knowing that such a traumatic
experience would damage their daughter's psyche and mar her life if the charge is
not true.[45] We find petitioner's claim that MMM inflicted the abrasions found by
Dr. Jocson in the genitalia of AAA, in order to extort money from petitioners parents,
highly incredible. Lastly, it must be noted that in most cases of rape committed
against young girls like AAA who was
only 6 years old then, total penetration of the victim's organ is improbable due to the
small vaginal opening. Thus, it has been held that actual penetration of the victim's
organ or rupture of the hymen is not required.[46] Therefore, it is not necessary for
conviction that the petitioner succeeded in having full penetration, because the
slightest touching of the lips of the female organ or of the labia of the pudendum
constitutes rape.[47]
However, for one who acts by virtue of any of the exempting circumstances,
although he commits a crime, by the complete absence of any of the conditions
which constitute free will or voluntariness of the act, no criminal liability
arises.[48] Therefore, while there is a crime committed, no criminal liability attaches.
Thus, in Guevarra v. Almodovar,[49] we held:
[I]t is worthy to note the basic reason behind the enactment of the exempting
circumstances embodied in Article 12 of the RPC; the complete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on
the part of the accused. In expounding on intelligence as the second element
of dolus, Albert has stated:
"The second element of dolus is intelligence; without this power,

necessary to determine the morality of human acts to distinguish a
licit from an illicit act, no crime can exist, and because . . . the infant
(has) no intelligence, the law exempts (him) from criminal liability."
It is for this reason, therefore, why minors nine years of age and below
are not capable of performing a criminal act.
In its Comment[50] dated April 24, 2008, the OSG posited that petitioner is no longer
covered by the provisions of Section 64 of R.A. No. 9344 since as early as 1999,
petitioner was convicted by the RTC and the conviction was affirmed by the CA in
2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now
approximately 25 years old, he no longer qualifies as a child as defined by R.A. No.
9344. Moreover, the OSG
claimed that the retroactive effect of Section 64 of R.A. No.9344 is
applicable only if the child-accused is still below 18 years old as explained under
Sections 67 and 68 thereof. The OSG also asserted that petitioner may avail himself
of the provisions of Section 38[51] of R.A. No. 9344 providing for automatic
suspension of sentence if finally found guilty. Lastly, the OSG argued that while it
is a recognized principle that laws favorable to the accused may be given retroactive
application, such principle does not apply if the law itself provides for conditions
for its application.
We are not persuaded.
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SECTION 6. Minimum Age of Criminal Responsibility. A child fifteen

(15) years of age or under at the time of the commission of the offense
shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment, in which
case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with
existing laws.
Likewise, Section 64 of the law categorically provides that cases of children 15 years
old and below, at the time of the commission of the crime, shall immediately be
dismissed and the child shall be referred to the appropriate local social welfare and
development officer (LSWDO). What is
controlling, therefore, with respect to the exemption from criminal liability of the
CICL, is not the CICL's age at the time of the promulgation of judgment but the
CICL's age at the time of the commission of the offense. In short, by virtue of R.A.
No. 9344, the age of criminal irresponsibility has been raised from 9 to 15 years
old.[52]
Given this precise statutory declaration, it is imperative that this Court accord
retroactive application to the aforequoted provisions of R.A. No. 9344 pursuant to
the well-entrenched principle in criminal law - favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to the accused are given retroactive
effect.[53] This principle is embodied in Article 22 of the Revised Penal Code, which
provides:
Art. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony, who
is not a habitual criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication of such laws, a final
sentence has been pronounced and the convict is serving the same.
We also have extant jurisprudence that the principle has been given expanded
application in certain instances involving special laws.[54] R.A. No. 9344 should be
no exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the
deliberations on the bill in the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages

34 to 35, may I humbly propose that we should insert, after Sections 67
to 69, the following provision:
ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY

UNDER THIS LAW PENDING THE CREATION OF THE OFFICE OF
JUVENILE WELFARE AND RESTORATION (OJWR) AND THE
LOCAL COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC)
WITHIN A YEAR, SHALL BE IMMEDIATELY TRANSFERRED TO
DSWD INSTITUTIONS, AND DSWD SHALL UNDERTAKE
DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE
YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE
LIGHTER OFFENSES.
The only question will be: Will the DSWD have enough facilities for
these adult offenders?
Senator Pangilinan, Mr. President, according to the CWC, the DSWD

does not have the capability at the moment. It will take time to develop
the capacity.
Senator Santiago. Well, we can say that they shall be transferred

whenever the facilities are ready.
Senator Pangilinan. Yes. Mr. President, just a clarification. When we

speak here of children who do not have criminal liability under this law,
we are referring here to those who currently have criminal liability, but
because of the retroactive effect of this measure, will now be
exempt. It is quite confusing.
Senator Santiago. That is correct.
Senator Pangilinan. In other words, they should be released either to their

parents or through a diversion program, Mr. President. That is my
understanding.
Senator Santiago. Yes, that is correct. But there will have to be a process
of sifting before that. That is why I was proposing that they should be
given to the DSWD, which will conduct the sifting process, except that
apparently, the DSWD does not have the physical facilities.
Senator Pangilinan. Mr. President, conceptually, we have no

argument. We will now have to just craft it to ensure that the input raised
earlier by the good Senator is included and the capacity of the DSWD to
be able to absorb these individuals. Likewise, the issue should also be
incorporated in the amendment.
The President. Just a question from the Chair. The moment this law
becomes effective, all those children in conflict with the law, who
were convicted in the present Penal Code, for example, who will now
not be subject to incarceration under this law, will be immediately
released. Is that the understanding?
Senator Pangilinan. Yes, Mr. President.
Senator Santiago. They would immediately fall under . . . .
Senator Pangilinan. The diversion requirements, Mr. President.
Senator Santiago. Yes.
The President. But since the facilities are not yet available, what will
happen to them?
Senator Santiago. Well, depending on their age, which has not yet been
settled . . . . . provides, for example, for conferencing family mediation,
negotiation, apologies, censure, et cetera. These methodologies will
apply. They do not necessarily have to remain in detention.
Senator Pangilinan. Yes, that is correct, Mr. President. But it will still
require some sort of infrastructure, meaning, manpower. The personnel
from the DSWD will have to address the counseling. So, there must be a
transition in terms of building the capacity and absorbing those who will
benefit from this measure.
The President. Therefore, that should be specifically provided for as an

amendment.
Senator Pangilinan. That is correct, Mr. President.
The President. All right. Is there any objection? [Silence] There being
none, the Santiago amendment is accepted.[55]
xxxx
PIMENTEL AMENDMENTS
xxxx
Senator Pimentel.
xxxx
Now, considering that laws are normally prospective, Mr. President, in

their application, I would like to suggest to the Sponsor if he could
incorporate some kind of a transitory provision that would make this
law apply also to those who might already have been convicted but
are awaiting, let us say, execution of their penalties as adults when, in
fact, they are juveniles.
Senator Pangilinan. Yes, Mr. President. We do have a provision under

the Transitory Provisions wherein we address the issue raised by the
good Senator, specifically, Section 67. For example, Upon effectivity of
this Act, cases of children fifteen (15) years old and below at the time
of the commission of the crime shall immediately be dismissed and the
child shall be referred to the appropriate local social welfare and
development officer. So that would be giving retroactive effect.
Senator Pimentel. Of cases that are still to be prosecuted.
Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been prosecuted? I
was trying to cite the instance of juvenile offenders erroneously convicted
as adults awaiting execution.
Senator Pangilinan. Mr. President, we are willing to include that as an

additional amendment, subject to style.
Senator Pimentel. I would certainly appreciate that because that is a reality

that we have to address, otherwise injustice will really be . . .
Senator Pangilinan. Yes, Mr. President, we would also include that as a

separate provision.
The President. In other words, even after final conviction if, in fact, the
offender is able to prove that at the time of the commission of the offense
he is a minor under this law, he should be given the benefit of the law.
Senator Pimentel. Yes, Mr. President. That is correct.
Senator Pangilinan. Yes, Mr. President. We accept that proposed

amendment.[56]
The Court is bound to enforce this legislative intent, which is the dominant factor in
interpreting a statute. Significantly, this Court has declared in a number of cases,
that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have effect

according to the purpose and intent of the lawmaker. The intent is the
vital part, the essence of the law, and the primary rule of construction is
to ascertain and give effect to the intent. The intention of the legislature
in enacting a law is the law itself, and must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute.
Courts will not follow the letter of a statute when it leads away from the
true intent and purpose of the legislature and to conclusions inconsistent
with the general purpose of the act. Intent is the spirit which gives life to
a legislative enactment. In construing statutes the proper course is to start
out and follow the true intent of the legislature and to adopt that sense
which harmonizes best with the context and promotes in the fullest
manner the apparent policy and objects of the legislature.[57]
Moreover, penal laws are construed liberally in favor of the

accused.[58] In this case, the plainmeaning of R.A. No. 9344's unambiguous
language, coupled with clear lawmakers' intent, is most favorable to herein
petitioner. No other interpretation is justified, for the simple language of the new
law itself demonstrates the legislative intent to favor the CICL.
It bears stressing that the petitioner was only 13 years old at the time of the
commission of the alleged rape. This was duly proven by the certificate of live birth,
by petitioner's own testimony, and by the testimony of his mother. Furthermore,
petitioners age was never assailed in any of the proceedings before the RTC and the
CA. Indubitably, petitioner, at the time of the commission of the crime, was below
15 years of age. Under R.A. No. 9344, he is exempted from criminal liability.
However, while the law exempts petitioner from criminal liability for the two (2)
counts of rape committed against AAA, Section 6 thereof expressly provides that
there is no concomitant exemption from civil liability. Accordingly, this Court
sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or his
parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the
nature of actual or compensatory damages, and is mandatory upon a conviction for
rape.
The RTC, however, erred in not separately awarding moral damages, distinct from
the civil indemnity awarded to the rape victim. AAA is entitled to moral damages in
the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the
Civil Code, without the necessity of additional pleading or proof other than the fact
of rape. Moral damages are granted in recognition of the victim's injury necessarily
resulting from the odious crime of rape.[59]
A final note. While we regret the delay, we take consolation in the fact that a law
intended to protect our children from the harshness of life and to alleviate, if not
cure, the ills of the growing number of CICL and children at risk in our country, has
been enacted by Congress. However, it has not escaped us that major concerns have
been raised on the effects of the law. It is worth mentioning that in the Rationale for
the Proposed Rule on Children Charged under R.A. No. 9165, or the Comprehensive
Dangerous Drugs Act of 2002, it was found that:
The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of
2006 raising the age of criminal irresponsibility from 9 years old to 15 years old
has compounded the problem of employment of children in the drug trade several
times over. Law enforcement authorities, Barangay Kagawads and the police, most
particularly, complain that drug syndicates have become more aggressive in using
children 15 years old or below as couriers or foot soldiers in the drug trade. They
claim that Republic Act No. 9344 has rendered them ineffective in the faithful
discharge of their duties in that they are proscribed from taking into custody
children 15 years old or below who openly flaunt possession, use and delivery or
distribution of illicit drugs, simply because their age exempts them from criminal
liability under the new law. [60]
The Court is fully cognizant that our decision in the instant case effectively
exonerates petitioner of rape, a heinous crime committed against AAA who was only
a child at the tender age of six (6) when she was raped by the petitioner, and one
who deserves the laws greater protection. However, this consequence is inevitable
because of the language of R.A. No. 9344, the wisdom of which is not subject to
review by this Court.[61] Any perception that the result reached herein appears unjust
or unwise should be addressed to Congress. Indeed, the Court has no discretion to
give statutes a meaning detached from the manifest intendment and language of the
law. Our task is constitutionally confined only to applying the law and jurisprudence
to the proven facts, and we have done so in this case.[62]
WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-
19084 filed against petitioner Joemar F. Ortega are hereby DISMISSED. Petitioner
is hereby referred to the local social welfare and development officer of the locality
for the appropriate intervention program. Nevertheless, the petitioner is hereby
ordered to pay private complainant AAA, civil indemnity in the amount of One
Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One
Hundred Thousand Pesos (P100,000.00). No costs.
Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile
Justice and Welfare Council (JJWC).
SO ORDERED.
ANTONIO EDUARDO B. NACHURA

Associate Justice
FIRST DIVISION
[G.R. No. 117407. April 15, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IRVIN

TADULAN y EPAN, accused-appellant.
DECISION
PADILLA, J.:
Accused-appellant Irvin Tadulan was charged with the crime of rape before the
Regional Trial Court of xxx, Branch xxx, Metro Manila, in a complaint docketed as Criminal
Case No. 92-186, alleging as follows:
"That on or about the 2nd day of April, 1992 in the Municipality of xxx, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, armed with a
knife, with lewd design and by means of force, threats and intimidation, did then and
there willfully, unlawfully and feloniously have sexual intercourse with one AAA, a
minor, nine (9) years old, without her consent and against her will.
CONTRARY TO LAW." [1]
When arraigned under the foregoing indictment, appellant pleaded not guilty to the
crime attributed to him. Thereafter, trial commenced with both prosecution and defendant
presenting evidence consisting of testimonies of witnesses and documentary exhibits.
The evidence presented by the prosecution tended to establish the following facts:
" x x x Complainant BBB owns a house at xxx, in Barangay xxx, Metro Manila where
she resides with her common-law husband and their minor daughter, AAA. Behind
the said house, complainant also owns a three-door apartment building, one unit of
which was rented and occupied by accused Irvin Tadulan, his wife Adefa Tadulan and
their three children name [sic] Dianne, Angie and Bochoy who were aged 10, 9 and 5,
respectively. In 1992 complainant's daughter, AAA was about nine (9) year [sic] old
(Exh. 'A') and was in grade school. She often played with the accused's children in
the vicinity of their house and the apartment building.
In the morning of April 2, 1992, at about 11:00 o'clock, AAA was playing with the
other children when she was called by Irvin Tadulan into the latter's apartment
unit. He brought the girl upstairs and told her to lie down on the
floor. Irvin Tadulan then removed the shorts and panties of AAA and his own pants
and briefs. He kissed the girl and fondled her breasts and private parts. Then he put
himself on top of her and inserted his organ into her genitals. AAA felt the pain in her
vagina. She pushed Irvin Tadulan away from her and got up, but the latter poked a
kitchen knife at her and told her to remain lying down; and because of fear, AAA lay
[sic] down on the floor again. Irvin Tadulan placed himself on top of her once more,
kissed and fondled her breasts as before, and finally succeeded in inserting his penis
into her sex organ. As he had intercourse with AAA, blood oozed out of her vagina
and she felt the pain. Shortly thereafter, however, she heard her mother calling
her. So, Irvin Tadulan told her to dress up quickly and ordered her to go home.
Upon reaching home, AAA did not inform her mother that Irvin Tadulan had carnal
knowledge of her; but two days later, their laundry woman saw the blood stains on her
panties and told her mother about it. At first, AAA refused to talk when her mother
asked her about the said blood stains, but when the mother persisted in asking her, the
girl cried and revealed that Irvin Tadulan had sexual intercourse with her. The mother
(BBB) was shocked. She reported the matter to her godson who immediately
confronted Irvin Tadulan relative to what he had done to AAA. At first,
Irvin Tadulan denied having done the act imputed to him by the said girl, but he later
on admitted that he had sexual intercourse with her.
Shortly thereafter, Irvin Tadulan's wife (Adefa Tadulan) arrived from a trip from
Cagayan de Oro City, and BBB immediately informed her that her husband,
Irvin Tadulan has raped her (BBBs) daughter AAA. BBB further
informed Adefa Tadulan that she would not take action against the latter's husband if
they would vacate the apartment unit right away. Adefa Tadulan later on met with
BBB and told her that she had driven away Irvin Tadulan, but requested that she and
her children be allowed to stay until Saturday, April 11, 1992. BBB thereafter noted,
however, that Irvin Tadulan was still coming home to the apartment unit every night
despite the promise of his wife that she herself would call the police should he ever
come back to the place. So, BBB conferred with her cousin, a lawyer, and later on
made up her mind to file a criminal charge against Irvin Tadulan before leaving for
abroad, for she was then scheduled to go to the United States to fetch her mother who
was ill due to a stroke.
On the night of April 11, 1992, BBB heard a loud noise coming from the apartment
building, and when she inquired about it she came to know that it was
Irvin Tadulan creating the noise because he was kicking the door of the apartment unit
occupied by him and his family. So, BBB called up the police because of her
apprehension that Irvin Tadulan would create trouble due to the quarrel that was then
taking place between him and his wife. Responding policemen soon arrived at the
place in a mobile car, and because Irvin Tadulan was denounced by his wife for
having rape [sic] the daughter of BBB, the said police officers brought
Irvin Tadulan to the xxx Police Station for questioning and also asked BBB and her
daughter to follow them. So, that same evening, BBB and her daughter went to the
xxx Police Station where they gave their respective sworn statements (Exhs. 'B' & 'E')
and lodged their complaint against Irvin Tadulan. It was during the taking of her
statement before the police when AAA also revealed that Irvin Tadulan had laid with
her not only on April 2, 1992. She stated that Irvin Tadulan had previously laid on top
of her and first attempted to have intercourse with her sometime in September 1,
1991, but it was not consummated because she was hurt whenever he tried to insert
his penis into her vagina.
In order to determine physical signs of sexual abuse, the xxx Police Station made a
Request For The Medico Legal Examination of AAA to the PC Crime Laboratory
Service at Camp Crame, Quezon City (Exh. 'F') on the following day, April 12, 1992,
upon the written Consent For Examination (Exh. 'G') which was signed by the mother,
BBB. A medico-legal officer of the PCCLS examined AAA and then issued Medico-
Legal Report No. M-0708-92 dated April 13, 1992 (Exh. 'C') finding her 'hymen with
deep, healed laceration at 4 o'clock", and with the conclusion that the 'Subject is in
non-virgin state physically'. Thereafter, the xxx Police Station forwarded the sworn
statements of AAA and her mother, together with all the pertinent papers to the Office
of the Provincial Prosecutor of xxx where the said minor child and her mother signed
the Complaint for Rape (Exh. 'D') against Irvin Tadulan, which initiated the
prosecution of the said accused in this case."[2]
On the other hand, accused Irvin Tadulan set up the defense of alibi and pardon. In
support of his defense, Tadulan testified that he could not have raped AAA in his
apartment unit in xxx, Metro Manila, at 11:00 o'clock in the morning of 2 April 1992 as he
was then at his place of work at the Republic Asahi Glass Corporation in xxx, Metro
Manila, where he was employed as a mobile equipment operator. His testimony was
corroborated by his supervisor at the plant who testified that on 2 April 1992,
Irvin Tadulan worked with him at the company plant during the first shift, from 6:00 a.m.
to 2:00 p.m.; and that as shown in Tadulan'sdaily time record (Exhibit " 1 "), said accused
punched in at 5:25 a.m. and punched out at 2:31 p.m.
Relative to the defense of pardon or condonation, Adefa Tadulan, wife of accused-
appellant, testified that when she arrived at their apartment on 7 April 1992 from Cagayan
de Oro, she learned from BBB and her daughter AAA that the latter had been raped by
her husband; that she again went to see BBB and asked for forgiveness and that the latter
told her: "Hayaan mo na lang, umalis na lang kayo dito,
kung angDios nagpapatawad, tao pa kaya." Said witness also testified that she asked
BBB if the accused Irvin Tadulan could just leave first while she and their children would
vacate the apartment unit on the coming Saturday, and BBB agreed; and that pursuant
to said agreement, Irvin Tadulan immediately left the apartment and she started packing
their belongings and sent their children to Cagayan de Oro in the company of her mother.
Adefa Tadulan further testified that on the night of 11 April 1992, her husband came
home and upon learning that she had sent their children to the province, he got angry and
they had a violent quarrel. The noise created by the quarrel was heard by BBB who
immediately called the police; and on that same night, BBB and AAA lodged a complaint
for rape against accused Irvin Tadulan despite the previous understanding between BBB
and Adefa Tadulan that BBB would not take action anymore against Irvin Tadulan.
Prior to the reception of evidence for the accused, his counsel filed a Motion to Plead
Guilty to Lesser Offense[3] praying that accused be allowed to plead guilty to the crime
under Article 336, Revised Penal Code, denominated as Acts of Lasciviousness. No
communication having been received from the complainant with regard to said offer to
plead guilty to a lesser offense, the trial proceeded for the reception of evidence for the
defense
After trial, the now appealed judgment was rendered by the lower court finding
accused-appellant guilty beyond reasonable doubt of the crime charged. The dispositive
part of the decision reads as follows:
"WHEREFORE, AND IN VIEW OF ALL THE FOREGOING CONSIDERATIONS,
this Court hereby finds accused IRVIN TADULAN guilty beyond reasonable doubt of
the crime of RAPE defined and penalized by Article 335 of the Revised Penal Code,
and he is hereby sentenced to the penalty of Reclusion Perpetua, with the accessory
penalties the law provides therefor.
Accused Irvin Tadulan is also hereby ordered to indemnify the offended minor girl,
AAA in the sum of THIRTY THOUSAND PESOS (P30,000.00), with interest
thereon at the legal rate of six per cent (6%) per annum from the filing of the
complaint in this case until the same is fully paid.
SO ORDERED." [4]
In this appeal, accused Irvin Tadulan assigns the following errors to the trial court:
I
THE TRIAL COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT

TO THE EVIDENCE ADDUCED BY THE DEFENSE.
II
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO

THE TESTIMONIES OF PROSECUTION WITNESSES MARKED AS THEY
ARE WITH INCONSISTENCIES AND IMPROBABILITIES WHICH CAST

SERIOUS DOUBTS AS TO THEIR TRUTHFULNESS.
III
ASSUMING THAT THE PROSECUTION'S VERSION OF THE INCIDENT IS

CORRECT, THE TRIAL COURT ERRED IN NOT CONSIDERING THE
FACT THAT ACCUSED-APPELLANT WAS ALREADY PARDONED BY
COMPLAINANTS.
IV
THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING ACCUSED-

APPELLANT ON GROUND OF REASONABLE DOUBT. [5]
The issues raised by accused-appellant boil down to credibility of witnesses.

In rejecting the version of the accused-appellant, the trial court made the following
findings and conclusions to which we agree.
"This Court finds, however, that the abovementioned testimonies of accused
Irvin Tadulan and his witness cannot prevail over the more convincing testimony of
the rape victim, AAA, who positively identified the said accused as the one who raped
her and described in a clear and straightforward manner how she was sexually abused
by him. In the absence of any clear showing of ill motive that might have impelled
her to impute the heinous crime of rape against the said accused, there is no reason to
doubt the veracity of the declarations of the said victim in court; for as held in a case
(People vs. Camasis, 189 SCRA 649), 'it is hard to believe that a young unmarried
woman would reveal that she was deflowered and allow the examination of her
private parts and thereafter permit herself to be the subject of public trial if her motive
was not to bring to justice the person who wronged her.' Also applicable here is the
well-settled principle that 'alibi is unavailing as a defense where there is positive
identification of the perpetrator of the crime, most specially, when the said
identification is made by the victim of the rape herself in the absence of any motive to
implicate the assailant' (People vs. Felipe, 191 SCRA 176, and cases therein
cited). Besides, it has been held time and time again, that for alibi to prosper as a
defense the accused must show that he was so far away that he could not have been
physically present at the place of the crime, or its immediate vicinity at the time of its
commission (People vs. Tasurra, 192 SCRA 266). In this case, however, it is clear
that accused Irvin Tadulan was not so situated on April 2, 1992, for according to him
he was at the plant of the Republic-Asahi Glass Corporation in xxx, Metro Manila --
which is but a few kilometers from Barangay xxx of the same municipality where the
crime was committed.
Relative to the defense of pardon or condonation also set up by accused Irvin Tadulan,
his wife AdefaTadulan testified that on April 7, 1992 when she arrived at their
apartment unit from a trip from Cagayan de Oro City, she came to know from both
BBB and her daughter, AAA, that the latter has been raped by her husband; that she
again met with BBB and asked for forgiveness; and that the said mother told her:
'Hayaan mo na lang, umalis na lang kayo dito,
kung ang Diyos ay nagpapatawad, tao pa kaya.' The said wife also testified that she
asked BBB if her husband could just leave first while she and their children could
vacate the apartment unit on the coming Saturday, and BBB agreed; and that pursuant
to the said agreement Irvin Tadulan immediately left their house, after which she also
sent their children to Cagayan de Oro City in the company of her mother and then
started packing-up their belongings. She further testified that on the night of April 11,
1992, however, her husband came home and quarreled with her upon knowing that
she had sent their children to the province; that because of the noise their quarrel
created, BBB called for the police; and that on that same night, BBB and her daughter
lodged a complaint for rape against Irvin Tadulan, despite the previous understanding
between her and BBB that the latter would not anymore take any action against her
husband.
It should be pointed out, however, as earlier narrated above, that according to BBB,
she agreed not to file any complaint against Irvin Tadulan upon the representation of
his wife, Adefa Tadulan, that she had driven away her husband, and her promise that
if he would ever return to their apartment unit, she herself would call for the police;
that she (BBB) noted, however, that Irvin Tadulan was still coming home to their
apartment unit every night; that she was prompted to call for police assistance because
she saw Irvin Tadulan kicking the door of the apartment during a violent quarrel with
his wife on the night of April 11, 1992; and that because soon after policemen arrived
at the place, Adefa Tadulan herself informed them that her husband has raped AAA,
she (BBB) and her said child proceeded with the filing of their complaint for rape
against Irvin Tadulan.
From the evidence just discussed, it would appear that the initial desistance of BBB
from taking any action against Irvin Tadulan, was upon the representation of the
latter's wife Adefa Tadulan that she had driven away her husband, and her promise
that should he ever come back to their apartment unit she herself would call for the
police; but that the said representation turn [sic] out to be untrue, and the promise was
not complied with because Irvin Tadulan was still coming home every night and, in
fact, he and her [sic] wife had a violent quarrel in the apartment unit on the night of
April 11, 1992. Otherwise stated, the desistance was subject to certain conditions
which were not complied with, and for which reason BBB proceeded with the filing
of a criminal complaint against Irvin Tadulan. Upon such circumstances, it is clear to
the mind of this Court that the complainant has not expressly pardoned the said
accused.
Besides, there are authorities holding that pardon must be granted not only by the
parents of an offended minor but also by the minor herself in order to be effective as
an express pardon under Art. 344 of the Revised Penal Code. Thus, in the case of
People vs. Lacson, Jr., (C.A.) 55 O.G. 9460, we find the following words: 'Neither
must we be understood as supporting the view that the parents alone can extend a
valid pardon. Far from it, for we, too are of the belief that the pardon by the parents,
standing alone, is inefficacious.' It was also held in another case, that 'The express
pardon of a person guilty of attempted abduction of a minor, granted by the latter's
parents, is not sufficient to remove criminal responsibility, but must be accompanied
by the express pardon of the girl herself.' (U.S. vs. Luna, 1 Phil. 360)
In the present case, the supposed pardon of the accused was allegedly granted only by
the mother (BBB) without the concurrence of the offended minor, AAA. Hence, even
if it be assumed for the sake of argument that the initial desistance of the said mother
from taking any action against the accused, constitutes pardon, it is clear that upon the
authorities cited above, such pardon is ineffective without the express concurrence of
the offended minor herself.
In fine, this Court concludes that the prosecution has proved the guilt of the accused
Irvin Tadulan of the crime of rape charged against him, and that the defenses of alibi
and pardon or condonation set up by him are lacking in merit." [6]
We have consistently held that appellate courts, as a rule, will not disturb the findings
of the trial court on the credibility of witnesses. We have sustained trial courts in this
respect, considering their vantage point in the evaluation of testimonial evidence, absent,
of course, any showing of serious error or irregularity that otherwise would alter the result
of the case.[7] We find no such serious error or irregularity in the case at bar.
Accused-appellant alleges that the trial court gravely erred when it disregarded the
defense of alibi despite the overwhelming evidence that the accused did not leave his
place of work on 2 April 1992. According to the appellant, his immediate supervisor,
Leandro Daguro, testified that he (appellant) reported for work on 2 April 1992 and was
assigned in a critical area, and being the only driver at that time a problem would have
ensued had he left his post at any given time on 2 April 1992. Appellant likewise faults
the trial court when it observed that there was no physical impossibility for him to be at
xxx where the crime was committed because the court mainly focused its attention on the
fact that Barangay xxx is but a few kilometers away from Barangay xxx, both in xxx,
hence, appellant could have returned to his place of work after committing the crime at
the time and place it occurred. Accused argues that the distance between the
two barangays was never an issue, that the question really is whether or not appellant
left or could have left his work at the Republic Asahi Glass Corporation in Barangay xxx
and gone home to Barangay xxx in the morning of 2 April 1992.
We are not persuaded. The testimony of Leonardo Daguro that accused could not
have left his work as this would have resulted in a big problem at the area where appellant
was working is too simple for comfort. The same witness testified that he could not
remember if a problem arose on that date when the crime was committed and that he
was supervising an average of seventeen (17) men in different sections of the raw
material department so that he had to go around each section.
We quote with approval the following observation of the court a quo:
" x x x Besides, it has been held time and time again that for alibi to prosper as a
defense the accused must show that he was so far away that he could not have been
physically present at the place of the crime, or its immediate vicinity at the time of its
commission (People vs. Tasurra, 192 SCRA 266). In this case, however, it is not so
situated on April 2, 1992, for according to him he was at the plant of the Republic
Asahi Glass Corporation in Barangay xxx, Metro Manila -- which is but a few
kilometers from Barangay xxx of the same municipality where the crime was
committed." [8]
Accused-appellant tries to discredit the victim's testimony by questioning her behavior

after she was allegedly raped by the accused in September 1991 in that she did not show
any fear of the accused on 2 April 1992 when she was called by him. It should be borne
in mind, in this connection, that the victim was only a naive nine (9) year old child when
the crime was committed on her. She considered the accused as a friend, almost like a
relative, as in fact she called him "Tito Loloy." She therefore unsuspectingly went near
the accused when called by the latter.
As we have stressed in a recent case -
" x x x it is not proper to judge the actions of children who have undergone traumatic
experience by the norms of behavior expected under the circumstances from mature
people. The range of emotion shown by rape victims is yet to be captured even by the
calculus. It is thus unrealistic to expect uniform reactions from rape victims." [9]
The victim AAA was too young to totally comprehend the consequences of the
dastardly act inflicted on her by the accused-appellant.
As correctly observed by the Solicitor General: "(A)s regards the acts imputed to
BBB, the delay of seven (7) days from the date of her knowledge of the rape incident on
4 April 1992 in reporting to the authorities the rape of her daughter is excusable. At that
time, she was not yet certain of the steps she would take considering the delicate nature
of the problem they were facing" (citing People v. Danguilan, 218 SCRA 98;People v.
Joaquin, Jr., 225 SCRA 179)." Besides, we have ruled that a delay in prosecuting the
rape is not indicative of fabricated charges.[10]
Finally, the accused's denial and alibi cannot prevail over his positive identification by
the victim AAA as her rapist. AAA testified in a clear and straightforward manner that
appellant through force and intimidation and with use of a deadly weapon (kitchen knife),
succeeded in having carnal knowledge of her.[11]
As for the defense that BBB, as the mother of the victim BBB, expressly pardoned
him, we sustain the trial court's finding which reads as follows:
"From the evidence just discussed, it would appear that the initial desistance of BBB
from taking any action against Irvin Tadulan, was upon the representation of the
latter's wife Adefa Tadulan that she had driven away her husband, and her promise
that should he ever come back to their apartment unit she herself would call for the
police; but that the said representation turned out to be untrue, and the promise was
not complied with because Irvin Tadulan was still coming home every night and, in
fact, he and her wife had a violent quarrel in the apartment unit on the night of April
11, 1992. Otherwise stated, the desistance was subject to certain conditions which
were not complied with, and for which reason BBB proceeded with the filing of a
criminal complaint against Irvin Tadulan. Upon such circumstances, it is clear to the
mind of this Court that the complainant has not expressly pardoned the said accused.
Besides, there are authorities holding that pardon must be granted not only by the
parents of an offended minor but also by the minor herself in order to be effective as
an express pardon under Art. 344 of the Revised Penal Code. Thus, in the case
of People vs. Lacson, Jr., (C.A.) 55 O.G. 9460, we find the following words: 'Neither
must we be understood as supporting the view that the parents alone can extend a
valid pardon. Far from it, for we, too are of the belief that the pardon by the parents,
standing alone, is inefficacious.' It was also held in another case, that 'The express
pardon of a person guilty of attempted abduction of a minor, granted by the latter's
parents, is not sufficient to remove criminal responsibility, but must be accompanied
by the express pardon of the girl herself.' (U.S. vs. Luna, 1 Phil. 360)
In the present case, the supposed pardon of the accused was allegedly granted only by
the mother (BBB) without the concurrence of the offended minor, AAA. Hence, even
if it be assumed for the sake of argument that the initial desistance of the said mother
from taking any action against the accused, constitutes pardon, it is clear that upon the
authorities cited above, such pardon is ineffective without the express concurrence of
the offended minor herself." [12]
WHEREFORE, the appealed decision dated 4 August 1994 in Criminal Case No.
92186 of the Regional Trial Court, Branch xxx of xxx, Metro Manila, is hereby AFFIRMED,
with modification as to the indemnity for the victim which is raised to P50,000.00
from P30,000.00 to conform with prevailing jurisprudence including the recent case
of People v. Romualdo Miranda y Geronimo, et al., G.R. No. 97425, 24 September 1996,
where the victim was also a minor, as in the case at bar.
SO ORDERED.
Bellosillo, Vitug, and Kapunan, JJ., concur.
Hermosisima, Jr., J., on leave.
SECOND DIVISION
[G.R. No. 135457. September 29, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE

PATRIARCA, JR., alias "KA DJANGO," CARLOS NARRA, alias
"KA JESSIE" and TEN (10) JOHN DOES, accused-appellant.
DECISION
BUENA, J.:
Accused-appellant Jose Patriarca, Jr., with the aliases of "Ka Django," "Carlos Narra"
and "Ka Jessie," appeals the decision of the Regional Trial Court at Sorsogon, Sorsogon,
Branch 52, in Criminal Case No. 2773 entitled "People of the Philippines versus Jose
Patriarca, Jr. alias 'Ka Django,' 'Carlos Narra,' 'Ka Jessie,' and 21 John Does" convicting
him of murder and sentencing him to reclusion perpetua.
On August 16, 1990, an information for murder was filed against Jose Patriarca, Jr.,
alias "Ka Django," "Carlos Narra", "Ka Jessie," et al., charging them of murder committed
as follows:
"That on or about the 30th day of June, 1987 at about 10:00 o'clock in the evening in
the Municipality of Donsol, Province of Sorsogon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another, armed with guns, forcibly took away
ALFREDO AREVALO from his residence and brought him to Sitio Abre, Mabini,
Donsol, Sorsogon, and did then and there willfully, unlawfully and feloniously with
intent to kill, with treachery and evident premeditation, attack, assault and shoot
ALFREDO AREVALO thereby inflicting upon him mortal wounds, which directly
caused his death to the damage and prejudice of his legal heirs.
"CONTRARY TO LAW."
Accused-appellant Jose Patriarca, Jr. was also charged with Murder for the killing of
one Rudy de Borja and a certain Elmer Cadag under Informations docketed as Criminal
Cases Nos. 2665 and 2672, respectively.
Upon arraignment on November 25, 1993, accused-appellant, assisted by
his counsel de parte, pleaded not guilty to the crimes charged. Joint trial of the three
cases was conducted considering the substantial identity of the facts and circumstances
of the case.
Prosecution witness Nonito Malto testified that on June 30, 1987, the accused, with
ten (10) armed companions, requested permission to rest in his house, which was
granted. They had with them a person who was hogtied. Accused Patriarca asked that
the lights in Malto's house be extinguished and Malto complied.
Around 2:00 o'clock in the early morning of July 1, 1987, Malto was awakened by a
gunshot. When he looked out, he saw Patriarca holding a gun and ordering the person
who was hogtied to lie down. After several minutes, Malto heard two gunshots. He then
heard the accused direct his companions to carry away the dead man.
Nonito Malto, later on, learned that the dead man was Alfredo Arevalo when Patriarca
went back to his place, together with the military, on March 29, 1990.
The skeletal remains of Alfredo Arevalo were recovered in the property of a Rubuang
Tolosa and were identified by Elisa Arevalo, the mother of the victim.
The second witness for the prosecution was Elisa Arevalo. She knew Patriarca, alias
"Ka Django", as he told her on March 10, 1987 not to let her son join the military. She,
however, replied that they were only seeking employment. Her son Alfredo was her
companion in attending to their farm and he was a member of the Civilian Home Defense
Force (CHDF) in their locality.
After she was informed by her tenant Alegria Moratelio Alcantara that her son was
abducted by the New People's Army (NPA) led by Patriarca, she reported the matter to
the military and looked for him. She was informed by the residents of the place where the
NPA passed, that they saw her son hogtied, that her son even asked for drinking water,
and complained that he was being maltreated by the NPA. After three days of searching,
a certain Walter Ricafort, an NPA member and a relative of hers, notified her that her son
Alfredo was killed by Jose Patriarca, Jr.
In the municipal building, Nonito Malto likewise informed her of her son's death in the
hands of Ka Django. Consequently, a Death Certificate was issued by the Local Civil
Registrar.
When the skeletal remains of a man were recovered, she was able to identify them
as belonging to her son by reason of the briefs found in the burial site. Her son, Alfredo
Arevalo, used to print his name on the waistband of his briefs so that it would not get lost.
The defense presented accused Jose Patriarca, Jr. and Francisco Derla who
admitted that accused is a member of the NPA operating in Donsol, Sorsogon, but denied
ever abducting the victims in the three criminal cases filed against him.
On January 20, 1998, a decision was rendered convicting the accused and imposing
the following penalty:
"WHEREFORE, premises considered, the Court finds accused Jose Patriarca, Jr. alias
Ka Django, alias Carlos Narra guilty beyond reasonable doubt of the crime of Murder
for the death of Alfredo Arevalo and hereby sentences him to suffer an imprisonment
of reclusion perpetua with all the accessory provided by law and to pay the amount of
P50,000.00 as civil indemnity to the heirs of the victim Alfredo Arevalo, without
subsidiary imprisonment in case of insolvency and as regards Crim. Case No. 2665
and Crim. Case No. 2672, for failure of the prosecution to prove the guilt of the
accused beyond reasonable doubt, said Jose Patriarca alias Carlos Narra, Ka Django,
is hereby acquitted.
"In the service of his sentence, the accused shall be given full credit of his period of
detention.
"With cost de-oficio.
"SO ORDERED." [1]
Hence, this appeal where accused-appellant assigns the following lone error
allegedly committed by the trial court:
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF

THE CRIME OF MURDER, AN OFFENSE COMMITTED IN PURSUANCE OR
IN FURTHERANCE OF REBELLION.
Accused-appellant applied for amnesty under Proclamation No. 724 amending

Proclamation No. 347, dated March 25, 1994, entitled "Granting Amnesty to Rebels,
Insurgents, and All Other Persons Who Have or May Have Committed Crimes Against
Public Order, Other Crimes Committed in Furtherance of Political Ends, and Violations of
the Article of War, and Creating a National Amnesty Commission." His application was
favorably granted by the National Amnesty Board. Attached to appellant's brief is the
Notice of Resolution of the National Amnesty Commission (NAC) dated November 17,
1999 which states:
"Quoted below is a resolution of the National Amnesty Commission dated 22 October

1998.[2]
'RESOLUTION NO. D-99-8683 refers to Application No. 02125 of MR. JOSE

NARRA PATRIARCA filed with the Local Amnesty Board of Legazpi City on 18
February 1997.
'Applicant admitted joining the NPA in 1977. He served under the Sandatahang Yunit
Pampropaganda and participated in the following armed activities:
'a) Encounter with the Philippine Army forces at Barangay Hirawon, Donsol, Sorsogon
on 14 February 1986;
'b) Encounter with elements of the Philippine Constabulary at Barangay Godon, Donsol,
Sorsogon on 15 February 1986;
'c) Encounter with the Philippine Army forces at Barangay Banwang, Gurang, Donsol,
Sorsogon in 1987;
'd) Liquidation of ELMER CADAG an alleged military informer at Barangay Boroan,
Donsol, Sorsogon, on 21 March 1987, in which a case of Murder in Criminal Case
No. 2672 was filed against him before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon;
'e) Liquidation of a certain RUDY DEBORJA, a thief and nuisance of the community, at
Donsol, Sorsogon, on 09 March 1984, in which a case of Murder in Criminal Case
No. 2665 was filed against him before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon;
'f) Liquidation of a certain ALEJANDRINO MILITANTE for his misconducts at San
Antonio, Donsol, Sorsogon, on 12 February 1986, in which a case of Murder in
Criminal Case No. 2664 was filed against him before the Regional Trial Court, Branch
52, Sorsogon, Sorsogon;
'g) Liquidation of a certain ALFREDO AREVALO, a former member of the CHDF at Sitio
Abe (sic), Mabini, Donsol, Sorsogon, on 30 June 1987, in which a case of Murder in
Criminal Case No. 2773 was filed against him before the Regional Trial Court, Branch
52, Sorsogon, Sorsogon;
'h) Liquidation of one DOMINGO DONQUILLO, a barangay captain, at Barangay
Tinanogan, Donsol, Sorsogon, on 20 September 1986 in which a (sic) Criminal Case
No. 2663 was filed against him.
'After a careful verification and evaluation on (sic) the claims of the applicant, the
Local Amnesty Board concluded that his activities were done in the pursuit of his
political beliefs. It thus recommended on 20 May 1998 the grant of his application for
amnesty.
'The Commission, in its deliberation on the application on 22 October 1999, resolved

to approve the recommendation of the Local Amnesty Board.
'WHEREFORE, the application for amnesty of MR. JOSE NARRA PATRIARCA

under Proclamation No. 724 is hereby GRANTED for rebellion constituted by the acts
detailed above, provided they were committed on or before the date he was captured
on 22 June 1988. Let a Certificate of Amnesty be issued in his favor as soon as this
Resolution becomes final. It shall become final after the lapse of fifteen (15) calendar
days from receipt of this Notice, unless a Motion for Reconsideration is filed with the
Commission by any party within said period.'" [3]
On March 9, 2000, Hon. Alfredo F. Tadiar, Chairman of the National Amnesty

Commission, wrote the following letter to the Provincial Prosecutor of Sorsogon,
Sorsogon:
"Notice of Amnesty Grant to Jose N. Patriarca"
"Pursuant to NAC Action No. 95-358-C, we are transmitting herewith the attached
copy of RESOLUTION NO. D-99-8683 granting amnesty to JOSE N.
PATRIARCA. The grantee was accused of the following cases:
"1. Murder in Criminal Case No. 2672 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.
Sorsogon, Sorsogon.
Sorsogon, Sorsogon.
Sorsogon, Sorsogon.
Sorsogon, Sorsogon.
"He is currently detained at the Provincial Jail, Sorsogon, Sorsogon.
"The purpose of this transmittal is to provide you, as the chief prosecutor of the
province, the opportunity to take whatever action you may deem appropriate from
receipt of this note. This grant of amnesty shall become final after the lapse of fifteen
(15) calendar days from receipt of this Notice, unless a Motion for Reconsideration is
filed with the Commission by any party within said period.
"Thank you for your continued support for the Peace Process." [4]
The Office of the Solicitor General, in its letter dated June 23, 2000 to the National
Amnesty Commission, requested information as to whether or not a motion for
reconsideration was filed by any party, and the action, if there was any, taken by the
NAC.[5]
In his reply dated June 28, 2000, NAC Chairman Tadiar wrote, among other things,
that there has been no motion for reconsideration filed by any party.[6]
Accused-appellant Jose N. Patriarca, Jr. was granted amnesty under Proclamation
No. 724 dated May 17, 1996. It amended Proclamation No. 347 dated March 25, 1994.
Section 1 of Proclamation No. 724 reads thus:
"Section 1. Grant of Amnesty. - Amnesty is hereby granted to all persons who shall
apply therefor and who have or may have committed crimes, on or before June 1,
1995, in pursuit of their political beliefs, whether punishable under the Revised Penal
Code or special laws, including but not limited to the following: rebellion or
insurrection; coup d'etat; conspiracy and proposal to commit rebellion, insurrection, or
coup d'etat; disloyalty of public officers or employees; inciting to rebellion or
insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal
assembly; illegal association; direct assault; indirect assault; resistance and
disobedience to a person in authority or agents of such person; tumults and other
disturbances of public order; unlawful use of means of publication and unlawful
utterances; alarms and scandals; illegal possession of firearms, ammunitions, and
explosives, committed in furtherance of, incident to, or in connection with the crimes
of rebellion and insurrection; and violations of Articles 59 (desertion), 62 (absence
without leave), 67 (mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94
(various crimes), 96 (conduct unbecoming an officer and gentleman), and 97 (general
article) of the Articles of War; Provided, That the amnesty shall not cover crimes
against chastity and other crimes for personal ends."
Amnesty commonly denotes a general pardon to rebels for their treason or other high
political offenses, or the forgiveness which one sovereign grants to the subjects of
another, who have offended, by some breach, the law of nations. [7] Amnesty looks
backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person released by amnesty
stands before the law precisely as though he had committed no offense.[8]
Paragraph 3 of Article 89 of the Revised Penal Code provides that criminal liability is
totally extinguished by amnesty, which completely extinguishes the penalty and all its
effects.
In the case of People vs. Casido,[9] the difference between pardon and amnesty is
given:
"Pardon is granted by the Chief Executive and as such it is a private act which must be
pleaded and proved by the person pardoned, because the courts take no notice thereof;
while amnesty by Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take judicial notice. Pardon is
granted to one after conviction; while amnesty is granted to classes of persons or
communities who may be guilty of political offenses, generally before or after the
institution of the criminal prosecution and sometimes after conviction. Pardon looks
forward and relieves the offender from the consequences of an offense of which he
has been convicted, that is, it abolishes or forgives the punishment, and for that reason
it does 'not work the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon,' and it 'in
no case exempts the culprit from the payment of the civil indemnity imposed upon
him by the sentence' (Article 36, Revised Penal Code). While amnesty looks
backward and abolishes and puts into oblivion the offense itself, it so overlooks and
obliterates the offense with which he is charged that the person released by amnesty
stands before the law precisely as though he had committed no offense."
This Court takes judicial notice of the grant of amnesty upon accused-appellant Jose
N. Patriarca, Jr.Once granted, it is binding and effective. It serves to put an end to the
appeal.[10]
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Regional Trial

Court at Sorsogon, Sorsogon, Branch 52 in Criminal Case No. 2773 is REVERSED and
SET ASIDE. Accused-appellant Jose N. Patriarca, Jr. is hereby ACQUITTED of the crime
of murder.
Pursuant to Resolution No. D-99-8683,[11] Criminal Case Nos. 2663 and 2664, which
are both filed in the Regional Trial Court, Branch 53, Sorsogon, Sorsogon ,[12] are ordered
DISMISSED. The release of Jose N. Patriarca who is presently detained at the Provincial
Jail of Sorsogon is likewise ORDERED unless he is being detained for some other legal
cause.
The Director of Prisons is ordered to report within ten (10) days his compliance with
this decision.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.
SECOND DIVISION
LUIS PANAGUITON, JR., G.R. No. 167571
Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
DEPARTMENT OF JUSTICE,
RAMON C. TONGSON and
RODRIGO G. CAWILI, Promulgated:
Respondents.
November 25, 2008
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
This is a Petition for Review[1] of the resolutions of the Court of Appeals dated 29
October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis
Panaguiton, Jr.s (petitioners) petition for certiorari and his subsequent motion for
reconsideration.[2]
The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting

to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business
associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner three
(3) checks in payment of the said loans. Significantly, all three (3) checks bore the
signatures of both Cawili and Tongson. Upon presentment for payment on 18 March
1993, the checks were dishonored, either for insufficiency of funds or by the closure
of the account. Petitioner made formal demands to pay the amounts of the checks
upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995, but to no avail.[3]
On 24 August 1995, petitioner filed a complaint against Cawili and

Tongson[4] for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)[5] before the
Quezon City Prosecutors Office. During the preliminary investigation, only Tongson
appeared and filed his counter-affidavit.[6] Tongson claimed that he had been
unjustly included as party-respondent in the case since petitioner had lent money to
Cawili in the latters personal capacity. Moreover, like petitioner, he had lent
various sums to Cawili and in appreciation of his services, he was
offered to be an officer of Roma Oil Corporation. He averred that he was not Cawilis
business associate; in fact, he himself had filed several criminal cases against Cawili
for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks
and pointed out that his signatures on the said checks had been falsified.
To counter these allegations, petitioner presented several documents showing

Tongsons signatures, which were purportedly the same as the those appearing on the
checks.[7] He also showed a copy of an affidavit of adverse claim wherein Tongson
himself had claimed to be Cawilis business associate.[8]
In a resolution dated 6 December 1995,[9] City Prosecutor III Eliodoro V. Lara found
probable cause only against Cawili and dismissed the charges against Tongson.
Petitioner filed a partial appeal before the Department of Justice (DOJ) even while
the case against Cawili was filed before the proper court.In a letter-resolution dated
11 July 1997,[10] after finding that it was possible for Tongson to co-sign the bounced
checks and that he had deliberately altered his signature in the pleadings submitted
during the preliminary investigation, Chief State Prosecutor Jovencito R. Zuo
directed the City Prosecutor of Quezon City to conduct a reinvestigation of the case
against Tongson and to refer the questioned signatures to the National Bureau of
Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but his motion was denied
for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP

Sampaga) dismissed the complaint against Tongson without referring the matter to
the NBI per the Chief State Prosecutors resolution. In her resolution,[11] ACP
Sampaga held that the case had already prescribed pursuant to Act No. 3326, as
amended,[12] which provides that violations penalized by B.P. Blg. 22 shall prescribe
after four (4) years. In this case, the four (4)-year period started on the date the
checks were dishonored, or on 20 January 1993 and 18 March 1993. The filing of
the complaint before the Quezon City Prosecutor on 24 August 1995 did not
interrupt the running of the prescriptive period, as the law contemplates judicial, and
not administrative proceedings. Thus, considering that from 1993 to 1998, more than
four (4) years had already elapsed and no information had as yet been filed against
Tongson, the alleged violation of B.P. Blg. 22 imputed to him had already
prescribed.[13] Moreover, ACP Sampaga stated that the order of the Chief State
Prosecutor to refer the matter to the NBI could no longer be sanctioned under
Section 3, Rule 112 of the Rules of Criminal Procedure because the initiative should
come from petitioner himself and not the investigating prosecutor.[14] Finally, ACP
Sampaga found that Tongson had no dealings with petitioner.[15]
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J.
Teehankee, dismissed the same, stating that the offense had already prescribed
pursuant to Act No. 3326.[16]Petitioner filed a motion for reconsideration of the DOJ
resolution. On 3 April 2003,[17] the DOJ, this time through then Undersecretary Ma.
Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not
prescribed and that the filing of the complaint with the prosecutors office interrupted
the running of the prescriptive period citing Ingco v. Sandiganbayan.[18] Thus, the
Office of the City Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22.[19] On 8 July 2003, the
City Prosecutors Office filed an information[20] charging petitioner with three (3)
counts of violation of B.P. Blg. 22.[21]
However, in a resolution dated 9 August 2004,[22] the DOJ, presumably acting on a

motion for reconsideration filed by Tongson, ruled that the subject offense had
already prescribed and ordered the withdrawal of the three (3) informations for
violation of B.P. Blg. 22 against Tongson. In justifying its sudden turnabout, the
DOJ explained that Act No. 3326 applies to violations of special acts that do not
provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as
a special act, does not provide for the prescription of the offense it defines and
punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code
which governs the prescription of offenses penalized thereunder.[23] The DOJ also
cited the case of Zaldivia v. Reyes, Jr.,[24] wherein the Supreme Court ruled that the
proceedings referred to in Act No. 3326, as amended, are judicial proceedings, and
not the one before the prosecutors office.
Petitioner thus filed a petition for certiorari[25] before the Court of Appeals assailing
the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court
of Appeals in view of petitioners failure to attach a proper verification and
certification of non-forum
shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the
DOJ attached to the petition is a mere photocopy.[26] Petitioner moved for the
reconsideration of the appellate courts resolution, attaching to said motion an
amended Verification/Certification of Non-Forum Shopping.[27] Still, the Court of
Appeals denied petitioners motion, stating that subsequent compliance with the
formal requirements would not per se warrant a reconsideration of its resolution.
Besides, the Court of Appeals added, the petition is patently without merit and the
questions raised therein are too unsubstantial to require consideration.[28]
In the instant petition, petitioner claims that the Court of Appeals committed grave
error in dismissing his petition on technical grounds and in ruling that the petition
before it was patently without merit and the questions are too unsubstantial to require
consideration.
The DOJ, in its comment,[29] states that the Court of Appeals did not err in dismissing
the petition for non-compliance with the Rules of Court. It also reiterates that the
filing of a complaint with the Office of the City Prosecutor of Quezon City does not
interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues
that under B.P. Blg. 22, a special law which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in accordance with Act No. 3326.
Cawili and Tongson submitted their comment, arguing that the Court of Appeals did
not err in dismissing the petition for certiorari. They claim that the offense of
violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition, they
claim that the long delay, attributable to petitioner and the State, violated their
constitutional right to speedy disposition of cases.[30]
The petition is meritorious.
First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of
Appeals substantially complies with the rules, the verification being intended simply
to secure an assurance that the allegations in the pleading are true and correct and
not a product of the imagination or a matter of speculation. He points out that
this Court has held in a number of cases that a deficiency in the verification can be
excused or dispensed with, the defect being neither jurisdictional nor always fatal. [31]
Indeed, the verification is merely a formal requirement intended to secure an

assurance that matters which are alleged are true and correctthe court may simply
order the correction of unverified pleadings or act on them and waive strict
compliance with the rules in order that the ends of justice may be served,[32] as in the
instant case. In the case at bar, we find that by attaching the pertinent verification to
his motion for reconsideration, petitioner sufficiently complied with the verification
requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the petition on
the ground that there was failure to attach a certified true copy or duplicate original
of the 3 April 2003 resolution of the DOJ. We agree. A plain reading of the petition
before the
Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9
August 2004,[33] a certified true copy of which was attached as Annex
A.[34] Obviously, the Court of Appeals committed a grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJs reliance on Zaldivia v. Reyes,[35] a case involving the
violation of a municipal ordinance, in declaring that the prescriptive period is tolled
only upon filing of the information in court. According to petitioner, what is
applicable in this case is Ingco v. Sandiganbayan,[36] wherein this Court ruled that
the filing of the complaint with the fiscals office for preliminary investigation
suspends the running of the prescriptive period. Petitioner also notes that
the Ingco case similarly involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
notes.[37] He argues that sustaining the DOJs and the Court of
Appeals pronouncements would result in grave injustice to him since the delays in
the present case were clearly beyond his control.[38]
There is no question that Act No. 3326, appropriately entitled An Act to
Establish Prescription for Violations of Special Acts and Municipal Ordinances and
to Provide When Prescription Shall Begin,is the law applicable to offenses under
special laws which do not provide their own prescriptive periods. The pertinent
provisions read:
SECTION 1. Violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in accordance with the following
rules: (a) x x x; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) x x x
SEC. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted

against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An
offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty
(30) days but not more than one year or by a fine, hence, under Act No. 3326, a
violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the
offense or, if the same be not known at the time, from the discovery
thereof.Nevertheless, we cannot uphold the position that only the filing of a case in
court can toll the running of the prescriptive period.
It must be pointed out that when Act No. 3326 was passed on 4 December
1926, preliminary investigation of criminal offenses was conducted by justices of
the peace, thus, the phraseology in the law, institution of judicial proceedings for its
investigation and punishment,[39] and the prevailing rule at the time was that once a
complaint is filed with the justice of the peace for preliminary investigation, the
prescription of the offense is halted.[40]
The historical perspective on the application of Act No. 3326 is

illuminating.[41] Act No. 3226 was approved on 4 December 1926 at a time when the
function of conducting the preliminary investigation of criminal offenses was vested
in the justices of the peace. Thus, the prevailing rule at the time, as shown in the
cases of U.S. v. Lazada[42] and People v. Joson,[43] is that the prescription of the
offense is tolled once a complaint is filed with the justice of the
peace for preliminary investigation inasmuch as the
filing of the complaint signifies the
institution of the criminal proceedings against the accused.[44] These cases were
followed by our declaration in People v. Parao and Parao[45] that the first step taken
in the investigation or examination of offenses partakes the nature of a judicial
proceeding which suspends the prescription of the offense.[46] Subsequently,
in People v. Olarte,[47] we held that the filing of the complaint in the Municipal
Court, even if it be merely for purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of the criminal responsibility,
even if the court where the complaint or information is filed cannot try the case on
the merits. In addition, even if the court where the complaint or information is filed
may only proceed to investigate the case, its actuations already represent the initial
step of the proceedings against the offender,[48] and hence, the prescriptive period
should be interrupted.
In Ingco v. Sandiganbayan[49] and Sanrio Company Limited v. Lim,[50] which

involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and
the Intellectual Property Code (R.A. No. 8293), which are both special laws, the
Court ruled that the
prescriptive period is interrupted by the institution of proceedings for preliminary
investigation against the accused. In the more recent case of Securities and
Exchange Commission v. Interport Resources Corporation, et al.,[51] the Court ruled
that the nature and purpose of the investigation conducted by the Securities and
Exchange Commission on violations of the Revised Securities Act,[52] another
special law, is equivalent to the preliminary investigation conducted by the DOJ in
criminal cases, and thus effectively interrupts the prescriptive period.
The following disquisition in the Interport Resources case[53] is instructive,

thus:
While it may be observed that the term judicial proceedings in Sec.

2 of Act No. 3326 appears before investigation and punishment in the old
law, with the subsequent change in set-up whereby the investigation of
the charge for purposes of prosecution has become the exclusive function
of the executive branch, the term proceedings should now be understood
either executive or judicial in character: executive when it involves the
investigation phase and judicial when it refers to the trial and judgment
stage. With this clarification, any kind of investigative proceeding
instituted against the guilty person which may ultimately lead to his
prosecution should be sufficient to toll prescription.[54]
Indeed, to rule otherwise would deprive the injured party the right to obtain
vindication on account of delays that are not under his control.[55] A clear example
would be this case, wherein petitioner filed his complaint-affidavit on 24 August
1995, well within the four (4)-year prescriptive period. He likewise timely filed
his appeals and his motions for reconsideration on the dismissal of the charges
against
Tongson. He went through the proper channels, within the prescribed periods.
However, from the time petitioner filed his complaint-affidavit with the Office of
the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed
resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was
beyond petitioners control. After all, he had already initiated the active prosecution
of the case as early as 24 August 1995, only to suffer setbacks because of the DOJs
flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and actively pursue their causes,
should not be allowed to suffer unnecessarily further simply because of
circumstances beyond their control, like the accuseds delaying tactics or the delay
and inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet prescribed. Petitioner s filing
of hiscomplaintaffidavit before the Office of the City Prosecutor on 24 August
1995 signified the commencement of the proceedings for the prosecution of the
accused and thus effectively interrupted the prescriptive period for the offenses they
had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of
probable cause, with the debunking of the claim of prescription there is no longer
any impediment to the filing of the information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of the Court of

Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also
ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE
the information against the petitioner.
No costs.
SO ORDERED.
DANTE O. TINGA Associate

Justice
WE CONCUR:
THIRD DIVISION
[G.R. No. 132120. February 10, 2003]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT

(PCGG), petitioner, vs. Hon. ANIANO A. DESIERTO as
Ombudsman, HERMINIO T. DISINI, PACIENCIA ESCOLIN-DISINI,
ANGEL E. DISINI, LILIANA L. DISINI and LEA E.
DISINI, respondents.
DECISION
PANGANIBAN, J.:
The Office of the Ombudsman is endowed with a wide latitude of

investigatory and prosecutory prerogatives in the exercise of its power to pass
upon criminal complaints. However, such power is not absolute; it cannot be
exercised arbitrarily or capriciously. Verily, when it is gravely abused through a
gross misappreciation of evidence and a whimsical dismissal of a complaint,
this Court has the constitutional duty to reverse the ombudsman. The
present Petition is one such exception, involving serious allegations of
multimillion-dollar bribes and unlawful commissions. At the center of all
these is the non-performing, billion-dollar Bataan nuclear power plant -- a
virtual white elephant -- which our impoverished people are still paying for,
even if they have not benefited from it at all!
The Case
Before this Court is a Petition for Certiorari under Rule 65 of the Rules of
Court, seeking to reverse the May 31, 1997 Resolution and the October 24,
[1]
1997 Order of then Ombudsman Aniano A. Desierto who, in OMB-0-91-0800,

[2]
exonerated Herminio T. Disini of the crimes of corruption of public officials in

relation to bribery and of violation of the Anti-Graft Law. The assailed
[3]
Resolution dismissed the charges against Disini for lack of prima facie
evidence, while the assailed Order denied petitioners Motion for
[4]
Reconsideration. [5]
The Antecedents [6]
The Presidential Commission on Good Government (PCGG), herein

petitioner, charged Disini with bribing the late President Ferdinand E. Marcos
as a means to induce him to assist and favor individuals and corporate
entities. The charge pertained to the negotiation, award, signing, amendment
[7]
and implementation of the main and related contracts for the Philippine Nuclear
Power Plant (PNPP) project of the National Power Corporation (NPC), as a
result of which the afore-mentioned public official x x x accumulated and

benefited from unlawful acquisition of income or profits. [8]
The Petition alleges that sometime in August 1973, then President Marcos
instructed the NPC to pursue, supervise and undertake the construction and
the eventual operation of the nuclear power plant in Morong, Bataan. Because
of its lack of expertise in designing and constructing commercial nuclear power
plants, the NPC needed a qualified engineering firm to act as consultant to
assist it in selecting a plant site, preparing equipment specifications, soliciting
bids, and evaluating proposals from prospective contractors.
A number of companies, including Westinghouse Electric Corporation
(hereinafter, Westinghouse) and Burns & Roe, a New York-based
company, manifested their interest in the PNPP project. The former was
[9]
interested in the construction of the main PNPP project; and the latter, in the
architectural and engineering contract. Burns & Roe had initially offered its
services to be NPCs consultant; once so appointed, it later used that position
as a springboard to obtain the more lucrative contracts of the nuclear power
plant project.
Petitioner further avers that in early 1974, a Westinghouse representative
approached Disini to act as their go-between with Marcos. Disini was known to
be the late Presidents close personal associate, whose wife was then First Lady
Imelda R. Marcos first cousin and the Marcos familys personal physician. Disini
relayed his acceptance of the offer to Lea Sabol, the resident agent of
[10]
Westinghouse in the Philippines.

Meanwhile, NPC General Manager Ramon Ravanzo informed Ebasco
Services, Inc. (hereinafter, Ebasco) that it had been chosen by the NPC Board
as consultant for the PNPP project. This move prompted Westinghouse and
[11]
Burns & Roe to send Marcos, through Disini, an Aide-Memoire strongly

recommending that the consulting contract given to Ebasco be awarded instead
to Burns & Roe. Westinghouse wanted Burns & Roe to get the consultancy
[12]
contract, in order to place the latter in a position to recommend that the main
contract for the construction of the PNPP project be awarded to the former.
The Petition further alleges that the foregoing development was discussed
by Samuel P. Hull Jr. and Kenneth E. Roe -- the international operations
director, and the chairman and chief executive officer, respectively, of Burns
and Roe. As a result, Hull enplaned for Manila and met with Disini at the
Intercontinental Hotel in Makati. This time, Disini not only assured Hull that he
could influence Marcos to cause the reversal of the Decision awarding the
consulting contract to Ebasco, but he also made a commitment to Hull that the
former would obtain for Westinghouse the prime contract for the entire nuclear
power plant project on a turn-key basis; and for Burns & Roe, the award of the
main architectural and engineering subcontract for the same project. [13]
Hull agreed to grant Disini a commission based on a percentage of the

amounts paid to Burns & Roe under the architectural and engineering contract
and to pay up front $1 million dollars in four installments of $250,000 each. [14]
Sent to Marcos was another Aide-Memoire further stressing the need for
[15]
awarding the consulting contract to Burns & Roe. On February 22, 1974, Mr. L.
C. Saunders of Westinghouse also wrote him a letter offering to submit a turn-
key proposal for the nuclear power plant project. In a handwritten note, Marcos
[16]
instructed then Executive Secretary Alejandro Melchor and Ravanzo to wait for
Westinghouses offer and, in the meantime, enter into the contract for the
consultant Burns and Roe. Consequently, NPC was constrained to rescind the
[17]
letter of intent issued to Ebasco and to award the consulting contract to Burns
& Roe instead. [18]
Petitioner also states that in the early part of March 1974, Disini departed
for San Francisco, California, USA, and met with six (6) officials of
Westinghouse. Convinced that Disini could surely influence Marcos to award
the PNPP prime contract to it, Westinghouse finally decided to retain him
formally as its special sales representative (SSR).
On April 24, 1974, Westinghouse sent Marcos, through Disini, a letter
containing its turn-key proposal. Upon receipt of the letter, Marcos informed
[19]
Melchor and Ravanzo of his preference for Westinghouse as shown by the

following handwritten notation: I am calling them, Westinghouse, to brief me on
their offer. Disini furnished Westinghouse a copy of the letter containing
[20]
Marcos marginal note as proof that he could effectively persuade the late
President to directly intervene and to conform to its goal of finally getting the
award of the prime construction contract for the PNPP project.
On May 7, 1974, a delegation sent by Westinghouse and headed by James
M. Wallace, vice president and general manager of its Power Systems Projects
Division, briefed Marcos on its proposal.
On the same occasion, Burns & Roe also succeeded in obtaining the main
architectural and engineering subcontract, when Marcos directed
Westinghouse to hire it for such purpose. However, in view of the apparent
conflict of interest, Burns & Roe gave up the consulting contract and retained
only the architectural and engineering contract, which it considered to be far
more lucrative. Thereafter, it worked for the termination of its consulting
agreement with NPC and was subsequently replaced by Ebasco. [21]
In a cabinet meeting held on June 6, 1974, Marcos categorically stated his

choice of Westinghouse. On the following day, he formally authorized Ravanzo
[22]
to sign for and in behalf of the Republic of the Philippines, the letter of
commitment with Westinghouse Electric Corporation to negotiate for and
formulate a signed and effective contract between the two parties for the supply,
installation, construction and start up of two 626-megawatt nuclear power
plants.
[23]
In compliance with the Marcos directive, the NPC negotiated with

Westinghouse. A draft of the turn-key contract was submitted by the latter
sometime in November 1974. During the negotiations, Westinghouse was
apparently annoyed at Ebascos consultancy role. Hence, John F. Doyle, its
commercial manager for the PNPP project, prepared another Aide-
Memoire, allegedly sent to Marcos through Disini, denouncing the expansion of
Ebascos influence and the possibility that the knowledge it gained during said
negotiations could be used against Westinghouse to promote Ebascos own
interest as a potential competitor and an ally of GE. Marcos took prompt action
[24]
by directing Ravanzo, Melchor and NPC Chairman Manuel Barreto to leave the
whole construction (civil and erection) to Westinghouse since the concept is
totally turn-key. Marcos also ordered them to keep Ebasco strictly to its role as
[25]
a consultant.[26]
In a Memorandum Report dated May 5, 1975, Ravanzo pointed out that

[27]
many provisions in the Westinghouse contract were extremely onerous,

unacceptable or inconsistent with the turn-key approach to project
implementation. Melchor endorsed Ravanzos Report to Marcos, opining that
the problems being encountered with Westinghouse may be attributed to the
absence of competitive pressure. Melchor thus proposed that alternative
[28]
suppliers be considered. But Marcos overruled their recommendations and

[29]
directed the NPC to finalize negotiations with Westinghouse and to submit to

me for approval your recommendations. [30]
By November 1975, the final draft of the Westinghouse contract was

referred to then Solicitor General Estelito P. Mendoza for review. Noting that
the proposed contract was extremely onerous and unfavorable to the
government, he recommended that NPC should reject it. However, [31]
notwithstanding the foregoing adverse observations and unfavorable

recommendation, Marcos directed the NPC to sign the contract with
Westinghouse. That contract was finally executed on February 9, 1976.
Aside from alleging that illegal commissions in terms of millions of dollars
were remitted to Disini and Marcos, the Petition further avers that other material
benefits from the two contractors were given to both men. Such benefits were
allegedly in the form of subcontracts awarded to companies which Marcos and
Disini owned, or in which they had beneficial interests.
One of these companies was Power Contractors Inc. (hereinafter, PCI),
which had been organized by Disini to undertake the civil/structural construction
work for the nuclear power plant. Despite NPCs strong objections to the hiring
[32]
of a company that lacked a track record that would justify its selection, PCI was
nonetheless retained as a subcontractor.
Similarly, against the advice of NPC, Westinghouse hired the services of
the Engineering and Construction Company of Asia (hereinafter, Ecco-Asia) as
mechanical and electrical subcontractor for the project.
Following the signing of the contract and the finalization of the project
financing, NPC opened letters of credit in favor of Westinghouse to cover
progress payments, pursuant to the contract.
After Mrs. Corazon C. Aquino took over the Presidency of the Republic,
petitioner filed the previously mentioned charges against Disini before the Office
of the Ombudsman which, as already stated, dismissed the charges. Hence,
the instant Petition. [33]
Issue
The present Petition for Certiorari under Rule 65 contends that the
[34]
Presidential Commission on Good Government has submitted sufficient

evidence to engender a well-grounded belief that an offense has been
committed and that Disini is probably guilty thereof, but that public respondent
-- in grave abuse of discretion amounting to lack or excess of jurisdiction --

capriciously and arbitrarily dismissed the charges.
This Courts Ruling
The Petition is meritorious.
Main Issue
Sufficiency of Evidence
As a general rule, the Office of the Ombudsman is endowed with a wide

latitude of investigatory and prosecutory prerogatives in the exercise of its
power to pass upon criminal complaints. However, such authority is not
absolute; it cannot be exercised arbitrarily or capriciously. Verily, the
Constitution has tasked this Court to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government, including the Office of the
[35]
Ombudsman. Specifically, this Court is mandated to review and reverse the

ombudsmans evaluation of the existence of probable cause, if it has been made
with grave abuse of discretion. [36]
More categorical was our ruling in Nava v. Commission on Audit, in which [37]
we held:
An aggrieved party is not left without any recourse. Where the findings of the
Ombudsman as to the existence of probable cause [are] tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a
petition for certiorari under Rule 65 of the Rules of Court. [38]
Grave abuse of discretion refers not merely to palpable errors of jurisdiction;

or to violations of the Constitution, the law and jurisprudence. It refers also to
[39]
cases in which, for various reasons, there has been a gross misapprehension
of facts. The present Petition is one such exception, involving serious
[40]
allegations of multimillion-dollar bribes and unlawful commissions.

The Ombudsmans Grounds
for Disinis Exoneration
The ombudsman decided in favor of Disini and ordered the dismissal of the
Complaint against the latter, on the basis of the following:
1. There was no testimonial evidence (a) that Disini was interested in the
proposal of Westinghouse to be its special sales representative during
negotiations for the award of the PNPP project, or (b) that he intervened for
Burns and Roe to stop the hiring of Ebasco as NPC consultant for the project.
2. There was neither documentary evidence nor corroborating affidavit
showing how Disini had actually met with Hull to assure the latter that the former
could influence Marcos to overturn the award of the consulting contract to
Ebasco and to eventually award the PNPP contracts to Westinghouse and to
Burns & Roe.
3. Neither the Aides-Memoire allegedly sent to Marcos through Disini nor

the telexes and the correspondences between the officials of Westinghouse
and Burns & Roe indicated the author, the addressee, or the dates on which
they were drafted or sent.
4. All the negotiations for the unlawful commissions and the actual
payments thereof were based on unauthenticated documents.
5. There was no testimonial evidence that the bank transactions or the
remittances questioned by the PCGG had actually been sourced from
commission payments by Westinghouse and Burns & Roe.
6. There was insufficient supporting evidence for the fact that certain
corporations owned or headed by Disini -- like PPI and ECCO-Asia -- were
organized specifically for the PNPP project, or that Marcos had business
interests in those corporations.
To be sure, the nullity of a resolution may be shown not only by what
patently appears on its face, but also by the documentary and the testimonial
evidence found in the records of the case, upon which such ruling is
based. From these pieces of evidence on record, we will now show why the
[41]
ombudsman gravely abused his discretion in dismissing the Complaint against

Disini.
Testimonial Evidence Showing

That Disini Intervened for Westinghouse
First. The ombudsman ruled that there was no testimonial evidence on

record showing that Disini had actually intervened for Westinghouse as its
special sales representative in negotiations for the PNPP project.
This finding is completely belied by the records of this case. Complainant
PCGG, through its Security and Investigation Department, submitted Hulls
Affidavit dated September 28, 1988. This document detailed how Hull had met
[42]
and communicated with Disini to discuss matters leading to (1) the revocation
of the consulting contract with Ebasco and (2) the eventual award of the PNPP
project to Westinghouse and Burns & Roe.
The 44-page Supplemental Affidavit executed by Hull on November 28,
[43]
1988 was even more detailed and damning. It elaborated on his

communications and negotiations with, and payments of commissions to, Disini
in exchange for the selection of Westinghouse and Burns & Roe over other
corporations vying for the PNPP project.
The communications between Hull and the other officials of Westinghouse
and Burns & Roe clearly show that negotiations involving Disini and these two
companies indeed took place. We do not see how the ombudsman could have
simply closed his eyes to Hulls positive, direct and categorical statements to
that effect:
12. In the same conversation, Disini indicated that he could arrange award of the
entire nuclear power plant contract to Westinghouse on a turnkey basis, in which case
he would see to it that Burns & Roe was awarded the Architect/Engineer assignment
as subcontractor to Westinghouse. I took notes of our conversation on an

Intercontinental Hotel coffee shop placemat, which I took with me and saved.
13. Following this meeting, Jesus Vergara assured me repeatedly that Disini would
take the matter up with President Marcos and that everything would come out all right
for Burns & Roe and Westinghouse. He said he was in constant touch with Disini, and
knew that Disini would come through.
14. I learned a day or two after my meeting with Disini that NPCs negotiations with
Ebasco on the consulting contract had ceased, and NPC was ready to enter into a
consulting contract with Burns & Roe. I learned of this decision in a telephone
message from either Mr. Ravanzo or Mr. Del Rosario of NPC. Jesus Vergara later
explained to me at a meeting in his office that Burns & Roe was replacing Ebasco
because Herminio Disini had spoken to President Marcos, and Marcos had ordered
NPC to hire Burns & Roe. To prove this, Vergara gave me a copy of a letter from
Westinghouse to Marcos dated February 22, 1974 bearing a handwritten notation in
the margin, which I was told was written by Marcos, and which instructed NPCs
general manager to enter into the contract for the consultants Burns & Roe. A copy of
the letter is attached to this Affidavit as Exhibit A. Vergara said he was giving me this
letter as proof that Disini could deliver.
15. Len Sabol, Jesus Vergara, and others in Manila told me at that time that
Westinghouse was in the process of negotiating a similar SSR agreement with Disini
whereby he would secure the prime PNPP contract on a turnkey basis for
Westinghouse. The replacement of Ebasco by Burns & Roe was also being used by
Westinghouse as a test of Disinis influence with President Marcos. I understood that it
was only after he passed this test that Westinghouse finalized its deal with him.[44]
xxxxxxxxx
20. I also subsequently learned, through documents received in my trip to the

Philippines in February 1974, that Herminio Disini, Vergara and Sabol had been
working behind the scenes to have the award of the Phase I contract to Ebasco
vacated. Their intent then was not so much to benefit Burns & Roe, as to prevent
Ebasco from receiving the contract. Ebasco was known to be close to General Electric
Company (GE), a competitor of Westinghouse. Sabol, Vergara and Disini feared that
selection of Ebasco would give GE an advantage over Westinghouse. [45]
In the face of the Affidavit and the Supplemental Affidavit, it is indeed

strange how the ombudsman could have ruled that there was no testimonial
evidence on the said matters. That he ruled thus clearly shows that he
whimsically opted to disregard those pieces of evidence and thereby
demonstrated his capricious and arbitrary exercise of judgment.
The complainant is required to file affidavits as well as other supporting
documents to establish probable cause, as stated in the Rules of Court:
(a) The complaint shall state the address of the respondent and shall be accompanied
by the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. [46]
This requirement was fulfilled by the PCGG. The Supplemental

Complaint was accompanied by the Affidavits of witnesses as well as by a
[47]
host of other supporting documents, all of which -- taken together -- established

probable cause.
It should be noted that the Rules on Evidence recognizes different forms of
evidence -- object, documentary or testimonial -- without preference for any
[48]
of them in particular. What should really matter are the weight and the
sufficiency of the evidence presented.
Meetings with Disini
Second. As mentioned earlier, the ombudsman found no evidence that

Disini had actually met with and assured Hull that the former could influence
Marcos to overturn the award of the consulting contract to Ebasco and the
eventual award of the PNPP project to Westinghouse and Burns & Roe. The
aforesaid Affidavits completely controvert his finding. Hulls statements on the
matter are clear, specific and categorical:
10. x x x I met Disini at the Intercontinental Hotel. We discussed the basic terms of a
Special Sales Representative (SSR) agreement between Disini and Burns & Roe,
whereby he would assist us in obtaining PNPP business in return for commission
payments. Disini flaunted his close relationship with President Marcos. He
represented that he had the authority to arrange the entire nuclear power plant project
in any way he wished. Specifically, Disini told me that he could get the
Architect/Engineering contract to Burns & Roe. He stated that overturning the award
of the consulting contract to Ebasco was no problem, and in fact was only a small part
of what he could do for Burns & Roe. In fact, he offered to stop the award of the
consulting contract to Ebasco and have it awarded to Burns & Roe as a test of his
ability to deliver.
11. Disini asked for commission payments once the Architect/Engineer contract was
awarded to Burns & Roe. He wanted the payments to be made up front, and I offered
payment on a pari passu basis. We ended up compromising on an agreement under
which Burns & Roe would pay Disini commissions based on a percentage of the
payments for Burns & Roes services under the Architect/Engineer contract. One
million dollars would be paid up front over a period of something like 18 months or
two years, in four installments of $250,000 each. Any remaining commissions would
be paid over the life of the contract. The $1 million dollar figure was based on our
assumption that the Architect/Engineer contract would generate at least $20 million in
revenue to Burns & Roe.
12. In the same conversation, Disini indicated that he could arrange award of the
entire nuclear power plant contract to Westinghouse on a turnkey basis, in which case
he would see to it that Burns & Roe was awarded the Architect/Engineer assignment
as subcontractor to Westinghouse. I took notes of our conversation on an
Intercontinental Hotel coffee shop placemat, which I took with me and saved. [49]
xxxxxxxxx
16. In April 1974 Kenneth Roe visited Manila and met with Disini. Roe called me and
another Burns & Roe executive, Lawton Hammett, from Manila on April 23 and
explained that he had confirmed in his meeting with Disini the SSR relationship I had
worked out in my February trip. Roe reported that Westinghouse also had a deal with
Disini and that Westinghouses commissions were to be paid to President Marcos.
Hammett took notes on this telephone call.
17. The Burns & Roe SSR agreement with Disini was put in writing. I believe it was
between Burns & Roe and one of Disinis companies. While I do not recall the exact
formula for the commissions to be paid under the contract, I believe that we were to
pay at least $1 million in four equal installments, plus additional amounts calculated
under the formula, to be paid through the life of our Architect/Engineer subcontract. I
know that the amount we agreed to pay Disini was far higher than would have been
justified by the services Disini was to render pursuant to the SSR agreement (such as
providing advice and counsel to us, secretarial help, or telex services). The real
purpose of our agreement with Disini was simply for him to influence President
Marcos to award Burns & Roe the Architect/Engineer subcontract on the PNPP
project. [50]
In later negotiations and communications, there were also references to this

meeting between Hull and Disini. Hull absolutely had personal knowledge of the
above statements. This meeting -- taken with the whole series of acts,
transactions, correspondences, meetings and documents -- is sufficient ground
to determine the existence of probable cause and to sustain a finding that Disini
was probably guilty of the crime charged.
Aides-Memoire and Telexes
Third. The PCGG presented Aides-Memoire and telexes showing Disinis

complicity in the crimes charged. However, the ombudsman declared that these
could not stand, because the authors and the addressees as well as the dates
of drafting and sending had not been indicated.
Again, such findings cannot be sustained. The PCGG presented, as
corroborative evidence of the questioned Aides-Memoire and telexes between
the officials of Westinghouse and Burns and Roe, the Affidavits of Samuel Hull
Jr. and Angelo Manahan -- the executive vice president of Herdis
[51] [52]
Management and Investment Corporation (HMIC), of which Disini was

[53]
chairman. The prosecution argued thus:
The import of witness Manahans Affidavit dated January 26, 1989, attached as Annex
A to petitioners Motion for Reconsideration, is not to provide proof of commission
payments to respondent Herminio T. Disini but to explain how the Aide Memoires
were used by private respondents to perpetrate the acts complained of constituting
violation of the Revised Penal Code and the Anti-Graft and Corrupt Practices Act. [54]
Declared Manahan:
7. Aide memoires were confidential memoranda from Mr. Disini to President Marcos
(who was addressed as Sir), in which Mr. Disini provided information to the President
or requested that the President take specified actions in favor of HMIC/HGI, or of
Disini personally. Typically, Mr. Federico E. Navera (HGIs controller, and my direct
subordinate) would provide any financial information that went into an aide memoire.
Mr. Jacob would prepare an initial draft of the aide memoire, and Mr. Padre would
provide the final drafting, editing and reorganization of the document. Mr. Disini
would then approve and sign the document, and either he or his wife Paciencia Disini
(President Marcos personal physician, who according to rumors visited the President
daily) would deliver the aide memoire to President Marcos. Mr. Disinis main
contribution to HGIs business was, in fact, preparing the aide memoires and
influencing President Marcos to act favorably on the requests for action they
contained. Mr. Disini was extremely successful in this; I estimate that 85% of the aide
memoires he submitted to President Marcos resulted in the President taking the action
solicited by Mr. Disini.
[55]
The Affidavits of Hull likewise confirmed the telexes between Westinghouse

and Burns & Roe officials, including himself, in connection with the PNPP
transactions. He specifically identified the existence of these documents, which
positively linked Disini and Marcos to the dealings of these two corporations. In
fact, Hull attested to their use of codes, which he sufficiently explained, in
matters that they considered sensitive in relation to the PNPP project. He
stressed this point in his Supplemental Affidavit as follows:
37. On February 26, 1974, Ketterer and I travelled to Hongkong, he to return to his
post and I on my way back to the U.S. That evening, as we reflected on the events of
the prior two weeks, we decided it would be prudent to develop a secret code that
would permit rapid communication by telex while maintaining confidentiality. We
agreed on code names for key individuals (e.g., President Marcos was Lester,
Ravanzo was Bozo), parties (e.g., Westinghouse was Willy, Ebasco was Seagull,
Burns & Roe was Home, NPC was Charlie), and terms (e.g., contract was lucky,
negotiation was festival, turnkey was door), etc. I marked up a copy of my February
20, 1974 telex (Exhibit 11) with the codes, as an example of how an encoded
communication would be read. Exhibit 15 hereto is a copy of the marked up telex,
with my handwritten notations identifying the various code names. Subsequently, we
used some of these codes (or modifications to them) to communicate between the U.S.
and Manila. [56]
Given the foregoing clarification, the ombudsmans cavalier disregard of the

aforementioned documents and attestations was arbitrary, whimsical and
capricious, to say the least.
Further showing his grave abuse of discretion, the ombudsman even
questioned how the PCGG could prove that the persons referred to in the said
coded communications were Marcos and Disini, when the supposed senders
and addressees had never signified their willingness to testify against
respondents.
This fact reveals the faulty approach taken by public respondent. During the
stage of preliminary investigation, he was vainly looking for evidence that was
understandably not there yet, being suited to a trial proper; but was closing his
eyes to evidence that was already there, sufficient to determine probable cause
-- his task at hand.
Negotiations for and

Actual Payments of Commissions
Fourth. The ombudsman argued that none of the documents evidencing the
negotiations for and the actual payment of commissions had been
authenticated.
While it may be true that the documents were not signed (for telexes are not
signed), they were nonetheless identified and their sources
authenticated. Often have we ruled that the validity and the merits of a party's
defense or accusation, as well as the admissibility of testimonies and pieces of
evidence, are better ventilated during the trial than during the preliminary
investigation. Neither can the ombudsman rule on the presence or the
[57]
absence of the elements of the crime, for these are by nature evidentiary and
defense matters, the truth of which can be best passed upon after a full-blown
trial on the merits. [58]
It must here be stressed that a preliminary investigation is essentially

inquisitorial. It is often the only means of discovering the identities of the
persons who may be reasonably charged with a crime, in order to enable the
prosecutor to prepare the complaint or information. Such investigation is not
[59]
part of the trial of the case on the merits and has no purpose other than to
determine whether a crime has been committed, and whether there is probable
cause to believe that the accused is guilty thereof. Furthermore, a preliminary
investigation does not place in jeopardy the persons who are subjected to it. It [60]
is not the occasion for the full and exhaustive display of both parties evidence,
but for the presentation only of such evidence as may engender a well-
grounded belief that an offense has been committed and that the accused is
probably guilty thereof. [61]
Nonetheless, corroborative proof of the negotiations for and the actual

payment of commissions was also provided by the Affidavit of Hull:
18. I understand the first payment of $250,000 to Disini was made through an advance
from Westinghouse, because Burns & Roe had not done enough work on the project
to generate this amount. The first check for $250,000 was cut by the Treasurer of the
Burns & Roe and made out to a Disini bank account in Switzerland. I was asked to
carry this check with me on a trip I was planning to make to Europe. When my trip
was cancelled, the payment to Disini was made through a wire transfer. I am not
certain how many payments were made to Disini in all, but I believe that at least two
payments of $250,000 were made. [62]
Such arrangements were expounded in Hulls Supplemental Affidavit, which

we quote:
70. Once the arrangement between Burns & Roe and Disini was formalized in April
1974, we began to discuss with Disini the mechanism for the transfer of the SSR
payments to him from Burns & Roe. Disini insisted that the funds be secretly
conveyed to a bank account in Switzerland. Starting with my May 16, 1974 telex to
Disini, we worked on the details of the transfer (Exhibit 22). [63]
Commission Payments Through

Bank Transactions and Remittances
Fifth. The ombudsman also faulted the PCGG for failing to present
testimonial evidence from a responsible officer or a duly authorized
representative of the concerned local and foreign banks. Such evidence could
have attested to the fact that the bank remittances questioned by the PCGG
had actually been sourced from the commissions paid to Disini by
Westinghouse and Burns & Roe. The ombudsman held that the documents
presented to prove commission payments were mere scraps of paper.
Again, such finding wantonly disregarded the Affidavits of Hull, who
confirmed that Disini had actually received commission payments from
Westinghouse and Burns & Roe.
The ombudsman should have followed through with clarificatory questions
on the information given by Manahan. According to this information, although
the latter was the chief financial officer of Herdis Group, Inc. (HGI) -- a Disini
company -- he was not informed of the details of the commission payments
made to that company by Westinghouse. He declared thus:
16. Exhibit 9 (Document 00727) is a one-page tabulation of nuclear power plant

commissions, typed in Mr. Disinis stationery. Although I was HGIs chief financial
officer, I was not informed of the details of the arrangement under which HGI
rec[e]ived commissions from Westinghouse Electric Corporation (Westinghouse) in
connection with the Philippine Nuclear Power Plant (PNPP). Anything that related to
PNPP was treated as secret by Mr. Disini and his close advisors. The Westinghouse
commission payments were handled by Mr. Jerry Orlina, who was Mr. Disinis
personal finance officer. The Westinghouse commission payments were never
received by HGI in the Philippines, and my understanding is that they were paid
directly into foreign bank accounts. The funds from the commissions never entered
HGIs treasury.
17. The only payments received by HGI in the Philippines relating to PNPP were a
number of checks amounting to millions of pesos that were remitted by Power
Contractors, Inc. (PCI), the civil construction contractor for the job, in the nature of
dividends. HGI was 40% owner of PCI and shared in whatever profits PCI realized
from its role on the plants construction.[64]
Hull, on the other hand, confirmed in his Affidavit that Burns & Roe was to
pay at least $1 million in four equal installments plus additional amounts
calculated under the formula, to be paid throughout the life of their architectural
and engineering subcontract. [65]
Besides, the ombudsman was grievously mistaken in insisting on

testimonial evidence from bank representatives to show conclusively that
commissions had indeed been paid. The PCGG had already presented
numerous documents; coupled with Affidavits evidencing agreements on
commission payments, correspondences, and the flow of commission

payments from Westinghouse to Disinis Interbank Foreign Currency Deposit
(FCD) and on to Swiss bank accounts.
In requiring testimonial evidence, the public respondent brushed aside all
the other forms of evidence presented by the prosecution. In short, he
disregarded them capriciously without passing upon their weight and
sufficiency. It seems that he was preoccupied with requiring the presentation of
evidence that was not there, while closing his eyes to evidence actually
presented by the PCGG for his consideration.
The Disini Corporations and

the PNPP Projects
Sixth. The ombudsman opined that the evidence of the PCGG failed to
substantiate its claim that the corporations owned or headed by Disini had been
organized mainly to benefit from the PNPP project.Further, the ombudsman
found no proof that Marcos had business interests in the said corporations, such
that any commission paid to them would redound to the latters benefit.
A painstaking examination of the documents submitted by the PCGG
sufficiently contradicts these findings. Disinis control over Power Contractors,
Inc. is evidenced by an Assignment of Shares Without Stock Certificates dated [66]
March 6, 1975. Unquestionably, this company was organized to undertake for

[67]
Westinghouse subcontracts for the PNPP project.

Argued the PCGG:
Aside from the commissions in terms of millions of dollars remitted to them by

Westinghouse and Burns and Roe, it is further averred that H. Disini and Marcos also
received other material benefits from these two contractors in the course of the
implementation of said project. As part of the overall plan to plunder the nuclear
project funds, subcontracts pertaining to the project were awarded to companies in
which Marcos and H. Disini held ownership or beneficial interests.
One of these companies is the Power Contractors, Inc. organized by H. Disini to

undertake the civil/structural construction work for the nuclear power plant. Despite
strong objections by the NPC against hiring of PCIs services due to its lack of
previous track record that would justify its selection, said company was retained as a
subcontractor due to Marcos direct intervention.
Similarly, Westinghouse hired the services of the Engineering and Construction

Company of Asia (Ecco-Asia) as the mechanical and electrical subcontractor for the
project against the advice of NPC because of Ecco-Asias lack of technical
competence. Although not qualified, Westinghouse awarded the subcontract to Ecco-
Asia, known to be a subsidiary of the Meralco conglomerate, which was then
controlled by Marcos through Benjamin Romualdez, the brother of Imelda
Marcos. (Citations omitted)
[68]
In addition, Hull stated:

19. I was informed that Disini received many millions of dollars in connection with
this project. It is inconceivable that an amount in the millions of dollars would not
have been shared with President Marcos. In those days, Marcos received a share in
virtually every major profitable enterprise in the Philippines. My understanding was
that Marcos gave Disini the hunting license on the PNPP project - that is, the
authorization to strike deals generating the largest possible commissions. Disini struck
these deals, for the benefit of himself and Marcos, with Westinghouse and Burns &
Roe.[69]
He further expounded on the benefits obtained by the Disini corporations as

follows:
86. Another demand coming from Disini was that we pay additional commissions to
Asia Industries, Inc., which had been acquired by Disini. Disini was essentially asking
for a $200,000 gratuity to be paid to Asia Industries, Inc. for services rendered. We
did not feel it was fair or necessary for us to pay this additional commission.
87. Our strategy in response to these new demands was to delay giving a direct answer
to Disini until the prime contract was signed, in order to avoid antagonizing Vergara
and Disini. We would, however, promise to give Asia Industries, Inc. a commission of
% of the total contract price of any additional work that Burns & Roe was awarded.
This strategy was summarized in my handwritten notes on a March 20, 1975 telex we
received from Ketterer, a copy of which is included as Exhibit 32 hereto.
88. Disini was not pleased with the deferral in receiving his commission payments. As
the signing of the prime contract into 1976, I began to exchange increasingly terse
telexes with Rodolfo (Jake) Jacob, one of Disinis subordinates, regarding the
shipments (commission payments). The mechanics of the payments had been easily
worked out: we would issue Citicorp bank drafts in dollars in favor of Technosphere,
and would send them by registered mail to Mr. Disinis designated contact in
Switzerland (Mr. Rene Pasche in Lausanne). However, the initial shipment continued
to be postponed, since it was due only when Westinghouse received acknowledgment
from NPC that the contract commencement date had occurred. Disini pressed us,
nonetheless, for payment of his commissions. On April 19, 1976, I telexed Disini and
indicated that neither Westinghouse nor Burns & Roe had any funds to initiate the
scheduled payments until the first letter of credit making funds available to
Westinghouse was opened. I emphasized to Disini that Burns & Roes subcontract
with Westinghouse had made full provision for a schedule of commission payments to
Disini, but the schedule could only be implemented upon activation of the prime
contract.
89. Disini took matters up directly with Mr. Roe. Exhibit 33 hereto contains a copy of
an April 26, 1976 telex from Disini to Mr. Roe, in which Disini quoted from my
previous exchanges with Jacob on the schedule of commission payments. Disini
demanded that Burns & Roe make the initial commission payment during April 1976,
either by actually issuing a bank draft or by giving Disini a promissory note. Exhibit
33 also includes Mr. Roes April 28, 1976 response telex to Disini. In his response, Mr.
Roe reaffirmed our position that we could not pay the Phase II commissions to Disini
until the prime contract officially commenced. Mr. Roe also declined to issue a
promissory note, since it would leave Burns & Roe open to liability for the note
without recourse if the contract was terminated without having officially commenced.
Mr. Roe ended his telex to Disini as follows (Exhibit 33):
It is complicated, confusing and unfortunate to all parties that delay in project

implementation thru opening of true LC has delayed shipments by both PC
[Westinghouse] and ourselves. We have discussed this situation at highest levels of
prime contractor and have no other course of action open to us.[70]
Allegations of Hearsay
In a final attempt to shoot down the evidence of the PCGG, the ombudsman
also capriciously dismissed some statements in the Affidavits of Hull as mere
hearsay and conjecture. We do not agree. Hull made clear and categorical
statements in his Affidavits regarding the communications and negotiations, of
which he absolutely had personal knowledge. He positively identified the
exchanges of communication between himself and the other officials of
Westinghouse and Burns & Roe, the main beneficiaries in this case. Such
evidence cannot be hearsay. As clarified earlier, a preliminary investigation is
not the occasion for the full and exhaustive display of the parties respective sets
of evidence. Thus, the relative validity and merits of the defense and the
[71]
accusation, as well as the admissibility of testimonies and pieces of evidence,

are better ventilated during the trial than during the preliminary investigation. [72]
Other statements or documents alleged to be hearsay were testified to by

Hull as independently relevant statements. Hull was competent to testify on
those matters, because he had heard them or seen the execution of the
pertinent documents. These were therefore matters of fact derived from his own
perception. The purpose of such testimony was merely to prove either that the
[73]
statement or the tenor thereof was made. Also, granting that there were other
[74]
statements that could be considered hearsay, these were on minor and

incidental matters. What should be significant is the fact that Hull attested to the
actual negotiations with Disini to show the latters involvement in the crimes
charged by the PCGG. The formers testimony was further strengthened by a
multitude of other documents that validated the questionable transactions.
Neither does this Court subscribe to the contention that Hulls statements in
his Affidavit are based on conjectures and speculations, simply because they
were prefaced with words like I understand and I believe.
The ombudsmans finding seems to oversimplify the weight and the
sufficiency of the statements attested to in the Affidavit. We do not peremptorily
dismiss as incompetent statements attested to in a sworn affidavit, simply
because of such introductory phrases. We cannot fault Hull for using them, if
he felt that they would appropriately convey what he was to testify to. Besides,
he was expressing only his own involvement in the chain of transactions in this
case. His testimony should thus be evaluated based on its merit. In fact, such
phraseology only strengthens the veracity and cogency of the Affidavits, for it
shows that they were spontaneous and unrehearsed.
All told, to arrive at the conclusion that there was no sufficient ground to
engender a well-founded belief that a crime has been committed, it would be
erroneous to take each piece of evidence or sentence in a long affidavit singly

or independently. It is clear that the totality of the evidence presented in this
case was more than enough to sustain a finding that Disini was probably guilty
of the crime charged.
Finding of
Probable Cause
Indeed, during the preliminary investigation, the PCGG was not obliged to
prove its cause beyond reasonable doubt. It would be unfair to expect the
Commission to present the entire evidence needed to secure the conviction of
the accused prior to the filing of the information. The reason lies in the nature
[75]
and the purpose of a preliminary investigation. At this stage, the prosecutor

does not decide whether the guilt of the person charged is backed by evidence
beyond reasonable doubt. The former merely determines whether there is
sufficient basis to believe that a crime has been committed, and whether the
latter is guilty of it and should be held for trial.[76]
The established rule is that a preliminary investigation is not the occasion

for the full and exhaustive display of the parties respective sets of evidence. It
is for the presentation only of such evidence as may engender a well-grounded
belief that an offense has been committed, and that the accused is probably
guilty thereof.
[77]
During the preliminary investigation, the main function of the government

prosecutor -- the ombudsman in this case -- is merely to determine the
existence of probable cause and, if it does exist, to file the corresponding
information. Probable cause has been defined as the existence of such facts
and circumstances as would excite in a reasonable mind -- acting on the facts
within the prosecutors knowledge -- the belief that the person charged is
probably guilty of the crime for which he or she is being prosecuted. [78]
Probable cause is a reasonable ground for presuming that a matter is or

may be well-founded on such state of facts in the prosecutors mind as would
lead a person of ordinary caution and prudence to believe -- or entertain an
honest or strong suspicion -- that it is so. The term does not mean actual and
[79]
positive cause; neither does it import absolute certainty. It is based merely on

opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to secure a
conviction. It is enough that the act or the omission complained of is believed
to constitute the offense charged. Precisely, there is a trial to allow the reception
of evidence for the prosecution in support of the charge. [80]
It ought to be emphasized that in determining probable cause, the average

person weighs facts and circumstances without resorting to the calibrations of
technical rules of evidence, of which such persons knowledge is nil. Rather, the
lay person usually relies on the calculus of common sense, of which all
reasonable persons have an abundance. [81]
Effect on the Principal of the

Dismissal of Charges Against

Accomplices and Accessories
Finally, we are not unmindful of our prior ruling in Republic v. Vasquez. In [82]
that case, we agreed with the ombudsmans Resolution dismissing, for lack of
evidence, the criminal charges against Respondents Paciencia E. Disini, Angel
E. Disini, Liliana L. Disini and Lea E. Disini.
There should be no disagreement with the Courts Resolution
in Vasquez. As we have stressed at the beginning of this Decision, the present
Petition should be granted as an exception to the doctrine of non-interference
in the ombudsmans investigatory and prosecutory powers. In the previous
Resolution in GR No. 114377, no grave abuse of discretion was found in the
dismissal of the indictment against Disinis relatives. In the case before us,
however, it is clear that the ombudsman gravely abused his discretion in
disregarding the evidence on record, as well as some settled principles and
rulings laid down by this Court.
Verily, there should be a divergence of results between the present Petition
and the previous one, which distinguished the charge against the other
respondents. They were classified therein as mere accomplices or
accessories. In the present case, Herminio T. Disini is being charged as the
principal. Because respondents have been charged with different degrees of
participation, the evidence needed to sustain an indictment for each of them
would necessarily also differ. In turn, this evidentiary difference would translate
to one of degree, sufficiency and appreciation thereof. Not finding any grave
abuse of discretion in the preceding Petition will not ipso facto lead to the same
conclusion in this Petition.
While the dismissal of a charge against the principal accused would carry
the charges against the accomplices and the accessories, the discharge of the
latter would not necessarily benefit the former. The responsibility of an
accessory or an accomplice is subordinate to that of the principal. Indeed, an
[83]
accessory or an accomplice is like a shadow that follows the principal, not the
[84]
other way around.
PCGG Evidence
Against Disini
In sum, the PCGG presented sufficient evidence to engender a well-

founded belief that at least one crime had been committed, and that Disini was
probably guilty thereof and should be held for trial. An inventory of the evidence
offered would include:
1. The twelve-page Affidavit of Angelo V. Manahan
2. The ten-page Affidavit of Samuel P. Hull Jr.
3. The more extensive 90-paragraph, 44-page Supplemental Affidavit of
Samuel P. Hull Jr.
4. At least six telexes dated November 1973 to April 1975, which were
exchanged amongst Ketterer, Hull, Disini and other Westinghouse and Burns
& Roe officials, detailing the negotiations for the PNPP project, including all the
transactions leading to the payment of bribes and the unlawful commissions
received by Disini and/or his representatives
5. At least three Aides-Memoire demonstrating how Westinghouse and
Burns & Roe were preferred and given special treatment at the expense of other
corporations involved in or competing for the PNPP project
6. The handwritten notations of Marcos expressing his preference for
Westinghouse and Burns & Roe
7. A number of letters, correspondences and notes between Westinghouse
and Burns & Roe officials -- specifically Ketterer, Hull and Hammett -- narrating
their transactions involving the PNPP project and the corresponding
commission payments to Disini
8. Three separate documents showing that at least three members of the
Marcos administration -- NPC General Manager Ravanzo, Executive Secretary
Alejandro Melchor and Solicitor General Estelito P. Mendoza -- disapproved the
Westinghouse and Burns & Roe proposals and objected to the governments
PNPP contract with Westinghouse for being highly onerous and
disadvantageous to the government
9. A host of documents showing Disinis Interbank Foreign Currency Deposit
Account with a corresponding flow of commission payments into and out
of Swiss bank accounts
10. Documents detailing the formation and the financial transactions of
Disinis corporations including Power Contractors, Inc.; Herdis Group, Inc.; and
Vulcan Industrial & Mining Corporation.
To our mind, the whole gamut of evidence presented is more than sufficient
to support a criminal complaint for the crimes of corruption of public officials in
relation to bribery, and violation of the Anti-Graft Law. The evidence on record
has engendered the reasonable belief that Disini had offered, promised or
actually given to a public officer (Marcos) gifts or presents that made the latter
liable for bribery.
Also, the PCGG has sufficiently established probable cause to show that
Disini had capitalized, exploited and taken advantage of his close personal
relations with the former President, who was to decide ultimately which
corporation would undertake the PNPP project. In so doing, Disini requested
and received pecuniary considerations from Westinghouse and Burns & Roe,
which were endeavoring to close the PNPP contract with the Philippine
government. All these things happened in violation of the Revised Penal Code
and/or the Anti-Graft and Corrupt Practices Act.
Should the appropriate information(s) be filed, nothing should prevent the
ombudsman from presenting other pieces of evidence to buttress the
prosecutions case and to prove beyond reasonable doubt the offense(s)
charged.
Parenthetically, the Republic of the Philippines and the NPC brought action
against Westinghouse and Burns & Roe before the US District Court of New
Jersey. Ironically, after evaluating the foregoing documents, District Judge

Dickinson R. Debevoise concluded in his Decision dated September 19,
1991, that there [was] sufficient evidence of bribery. It behooves the Philippine
[85]
government, especially the respondent ombudsman as the directly affected

authority, to review the facts carefully and to let the ax fall where it should.
Judge Debevoise rendered the Decision when the defendants therein
moved for summary judgment.They alleged, among others, that no genuine
issue as to the charge of bribery was shown by the plaintiffs pleadings,
depositions, answers to interrogatories, admissions or affidavits on record.
Indeed, the Bataan nuclear power plant is a monumental, billion-dollar, non-
performing white elephant, which our impoverished people are still paying for
even if they have not benefited from it at all. Justice is long overdue. Let those
who appear to be responsible for this humongous mess be brought to account
for their participation. Let justice be done!
WHEREFORE, the Petition is GRANTED. The Resolution and the Order of
the Office of the Ombudsman dismissing the charges against Herminio T. Disini
are SET ASIDE and the ombudsman is DIRECTED to file in the proper court
the appropriate criminal charge(s) against him. No costs.
SO OREDERED.
Puno, (Chairman), Corona, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., please see dissenting opinion.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158131 August 8, 2007
SOCIAL SECURITY SYSTEM, petitioner,

vs.
DEPARTMENT OF JUSTICE, JOSE V. MARTEL, OLGA S. MARTEL, and SYSTEMS AND
ENCODING CORPORATION, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 filed by the Social Security System (petitioner) of the Decision2 dated 17
October 2002 and Resolution dated 5 May 2003 of the Court of Appeals. The Decision of 17 October
2002 affirmed the ruling of the Department of Justice (DOJ) dismissing petitioner’s complaint against
respondents Jose V. Martel, Olga S. Martel and five other individuals3 for violation of Section 22(a)
and (b) in relation to Section 28(e) of Republic Act No. 1161 (RA 1161),4 as amended by Republic
Act No. 8282 (RA 8282),5 for non-remittance of contributions to petitioner. The 5 May 2003
Resolution denied petitioner’s motion for reconsideration.
The Facts
Respondents Jose V. Martel and Olga S. Martel (respondent Martels) are directors of respondent
Systems and Encoding Corporation (SENCOR), an information technology firm, with respondent
Jose V. Martel serving as Chairman of the Board of Directors. Petitioner is a government-owned and
controlled corporation mandated by its charter, RA 1161, to provide financial benefits to private
sector employees. SENCOR is covered by RA 1161, as amended by RA 8282, Section 22 of which
requires employers like SENCOR to remit monthly contributions to petitioner representing the share
of the employer and its employees.
In 1998, petitioner filed with the Pasay City Prosecutor’s Office a complaint against respondent
Martels and their five co-accused (docketed as I.S. No. 98-L-1534) for SENCOR’s non-payment of
contributions amounting to P6,936,435.80 covering the period January 1991 to May 1997. To pay
this amount, respondent Martels offered to assign to petitioner a parcel of land in Tagaytay City
covered by Transfer Certificate of Title No. 26340 issued under respondent Martels’ name. Petitioner
accepted the offer "subject to the condition that x x x [respondent Martels] will x x x settle their
obligation either by way of dacion en pago or through cash settlement within a reasonable time x x
x."6 Thus, petitioner withdrew its complaint from the Pasay City Prosecutor’s Office but reserved its
right to revive the same "in the event that no settlement is arrived at." Accordingly, the Pasay City
Prosecutor’s Office dismissed I.S. No. 98-L-1534.
In December 2001, respondent Jose V. Martel wrote petitioner offering, in lieu of the Tagaytay City
property, computer-related services. The record does not disclose petitioner’s response to this new
offer but on 7 December 2001, petitioner filed with the Pasay City Prosecutor’s Office another
complaint against respondent Martels and their five co-accused (docketed as I.S. No. 00-L-7142) for
SENCOR’s non-remittance of contributions, this time from February 1991 to October 2000
amounting to P21,148,258.30.
In their counter-affidavit, respondent Martels and their co-accused alleged that petitioner is estopped
from holding them criminally liable since petitioner had accepted their offer to assign the Tagaytay
City property as payment of SENCOR’s liability. Thus, according to the accused, the relationship
between SENCOR and petitioner was "converted" into an ordinary debtor-creditor relationship
through novation.
The Ruling of the Pasay City Prosecutor’s Office
In the Resolution of 28 February 2001, Pasay City Assistant Prosecutor Artemio Puti (Prosecutor
Puti) found probable cause to indict respondent Martels for violation of Section 22(a) and (b) in
relation to Section 28(e) of RA 1161, as amended by RA 8282.7 Prosecutor Puti rejected respondent
Martels’ claim of "negation" of criminal liability by novation, holding that (1) SENCOR’s criminal
liability was already "consummated" before respondent Martels offered to pay SENCOR’s liability
and (2) the dacion en pago involving the Tagaytay City property did not materialize. Prosecutor Puti
noted that respondent Martels did not dispute petitioner’s claim on SENCOR’s non-remittance of
contributions.8 Accordingly, the Pasay City Prosecutor’s Office filed with the Regional Trial Court of
Pasay City the corresponding Information against respondent Martels, docketed as Criminal Case
No. 01-0517.
Respondent Martels appealed to the DOJ.
The Ruling of the Department of Justice
In the Resolution dated 18 May 2001 signed by DOJ Undersecretary Manuel A.J. Teehankee, the
DOJ granted respondent Martels’ appeal, set aside Prosecutor Puti’s Resolution of 28 February
2001, and ordered the withdrawal of the Information filed in Criminal Case No. 01-0517. The DOJ
found that respondent Martels and petitioner entered into a compromise agreement before the filing
of the Information in Criminal Case No. 01-0517 and that such "negated" any criminal liability on
respondent Martels’ part. The DOJ Resolution pertinently reads:
From the facts obtaining, it cannot be denied that the dismissal of the first complaint
docketed as I.S. No. 98-L-1534 constituted the compromise agreement between the parties
whereby complainant SSS agreed to respondents’ mode of settling their liability through a
"dacion en pago". Consequently, the original relation between the parties was converted to
that of an ordinary creditor-debtor relationship thereby extinguishing the original obligation by
a new one. Complainant, therefore, cannot insist on the original trust it had with respondents
existing prior to the dismissal of the former complaint (I.S. No. 98-L-1534) by filling [sic] the
present complaint (I.S. No. 00-L-7142 now subject of this appeal). Incidentally, this Office
considers the latter complaint as a mere refilling [sic] of the former already compromised and
dismissed [complaint], because of the similarity of the parties and causes of action.
After the dismissal of the complaint in I.S. No. 98-L-1534 and prior to the filing of the
complaint at bar docketed as 00-L-7142, respondents have exerted great effort towards
complying with the terms and conditions of the compromise by way of "dacion en pago". For
example, respondents cite their arrangement for ocular inspection of the Tagaytay land by
the Presidential Commission on Tagaytay-Taal and with the Municipal Engineer of Laurel,
Batangas. The approval of the said commission to build a 12-storey building had been
complied with. This is not disputed by complainant. Access roads were acquired by
respondents from adjacent owners, ready to be titled in complainant’s name. Papers and
permits like ecological impact certification, site resurvey, soil test and site appraisal were
secured from various offices like the Municipality of Laurel, the Municipal Engineer, the
Presidential Commission on Tagaytay-Taal, the Philippine Volcanology Commission, the
Bureau of Lands and the Department of Agriculture, among others.
On the part of complainant, it equally shows [sic] adherence to the agreement to

compromise. Records show that on October 1999, one of its officers, Atty. Mariano Pablo S.
Tolentino, assistant vice-president, had expressed in writing his finding to the effect that
"(they) are satisfied to see the lot that (respondents) have negotiated with Congressman
Dumpit that (respondents) offered as access road to (respondents[’]) property" (Annex "8" of
Petition for Review). And, as borne by the records, a Dacion En Pago Committee had been
created by complainant SSS precisely to set the mechanism of the settlement in motion.
Further, respondents proposed an alternative mode of settlement through computer-related
services, which proposal was submitted to complainant as late as December 1, 2000.
Verily, the foregoing facts indelibly show that the parties had acted with an obvious intention
to compromise. Hence, respondents’ reliance on the doctrine of incipient criminal liability had
[sic] factual and legal bases. While the rule provides that novation does not extinguish
criminal liability, this rule, however holds true only if a criminal information is already filed in
court. Before that bench mark point, the criminal liability is only at its incipient stage and the
new relation between the parties forged at such stage had the effect of negating the criminal
liability of the offender (People vs. Galsim, People vs. Trinidad, 53 OG 731). x x x x
In fine, the compromise agreement between the parties whereby respondents’ obligation will
be settled through a "dacion en pago" and the dismissal of the complaint in I.S. No. 98-L-
1534 has [sic] all the earmarks of novation negating respondents’ criminal liability. Ergo,
complainant is precluded from filing the present criminal complaint against respondents.9
Petitioner sought reconsideration but the DOJ denied its motion in the Resolution of 20 September
2001.
Petitioner appealed to the Court of Appeals in a petition for certiorari.
The Ruling of the Court of Appeals
In its Decision of 17 October 2002, the Court of Appeals affirmed the DOJ’s rulings and dismissed
petitioner’s petition. The appellate court deferred to the DOJ’s power to review rulings of prosecutors
and held that in reversing Prosecutor Puti’s findings, the DOJ did not act with grave abuse of
discretion.10
Petitioner sought reconsideration but the appellate court denied its motion in the Resolution of 5 May
2003.
Hence, this petition. Petitioner contends that the Court of Appeals erred in affirming the DOJ’s
rulings because (1) respondent Martels were charged not with Estafa but with violation of Section
22(a) and (b) in relation to Section 28(e) of RA 1161, as amended, a special law impressed with
public interest; (2) petitioner did not agree to settle respondent Martels’ criminal liability; and (3)
novation serves only to negate civil, but not criminal, liability.
In their Comment, respondent Martels countered that the DOJ correctly applied the concept of
novation as they had settled SENCOR’s liability. Respondent Martels added that as of the filing of
their Comment, they had already paid P17,887,442.54 of SENCOR’s liability.
In its Reply, petitioner contended that although respondent Martels attempted to pay SENCOR’s
overdue contributions through dacion en pago, no payment took place, as evidenced by respondent
Martels’ alternative offer to provide computer related services to petitioner instead of assigning the
Tagaytay City realty. On respondent Martels’ partial payment of SENCOR’s liability, petitioner
contended that such does not preclude the resolution of this petition.
The Issue
The issue is whether the concept of novation serves to abate the prosecution of respondent Martels
for violation of Section 22(a) and (b) in relation to Section 28(e) of RA 1161, as amended.
The Ruling of the Court
We rule in the negative and accordingly grant the petition.
The Concept of Novation Finds No Application Here
Novation, a civil law concept relating to the modification of obligations,11 takes place when the parties
to an existing contract execute a new contract which either changes the object or principal condition
of the original contract, substitutes the person of the debtor, or subrogates a third person in the
rights of the creditor.12 The effect is either to modify or extinguish the original contract. In its
extinctive form, the new obligation replaces the original, extinguishing the obligor’s obligations under
the old contract.13
This Court first recognized the possibility of applying the concept of novation to criminal cases
in People v. Nery,14involving a case for Estafa. In that case, the Court observed that although
novation is not one of the means recognized by the Revised Penal Code to extinguish criminal
liability,15 it may "prevent the rise of criminal liability or to cast doubt on the true nature of the original
basic transaction," provided the novation takes place before the filing of the Information with the trial
court. We held:
The novation theory may perhaps apply prior to the filing of the criminal information in court
by the state prosecutors because up to that time the original trust relation may be converted
by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in
estoppel to insist on the original trust. But after the justice authorities have taken cognizance
of the crime and instituted action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as distinguished from the civil. The
crime being an offense against the state, only the latter can renounce it x x x.
It may be observed in this regard that novation is not one of the means recognized by
the Penal Code whereby criminal liability can be extinguished; hence, the role of
novation may only be to either prevent the rise of criminal liability or to cast doubt on
the true nature of the original basic transaction, whether or not it was such that its
breach would not give rise to penal responsibility, as when money loaned is made to
appear as a deposit, or other similar disguise is resorted to x x x.16(Emphasis supplied)
Thus, novation has been invoked to reverse convictions in cases where an underlying contract
initially defined the relation of the parties such as the contract in sale on commission in Estafa
cases17 or the contract in sale of goods in cases of violation of the Trust Receipts Law.18 Further, the
party invoking novation must prove that the new contract did indeed take effect.19
The facts of this case negate the application of novation. In the first place, there is, between
SENCOR and petitioner, no original contract that can be replaced by a new contract changing the
object or principal condition of the original contract, substituting the person of the debtor, or
subrogating a third person in the rights of the creditor. The original relationship between SENCOR
and petitioner is defined by law – RA 1161, as amended – which requires employers like SENCOR
to make periodic contributions to petitioner under pain of criminal prosecution. Unless Congress
enacts a law further amending RA 1161 to give employers a chance to settle their overdue
contributions to prevent prosecution, no amount of agreements between petitioner and SENCOR
(represented by respondent Martels) can change the nature of their relationship and the
consequence of SENCOR’s non-payment of contributions.
The indispensability of a prior contractual relation between the complainant and the accused as
requisite for the application of novation in criminal cases was underscored in People v. Tanjutco.20 In
that case, the accused, who was charged with Qualified Theft, invoked People v. Nery to support his
claim that the complainant’s acceptance of partial payment of the stolen funds before the filing of the
Information with the trial court converted his liability into a civil obligation thus rendering baseless his
prosecution. The Court rejected this claim and held that unlike in Nery, there was, in that case, no
prior "contractual relationship or bilateral agreement, which can be modified or altered by the
parties," thus:
Reliance on the aforecited Nery case, in support of the contention that the acceptance by
complainant of payment converted the liability of the accused-appellant into a civil obligation
or else that it estopped said complainant from proceeding with the prosecution of the case, is
misplaced and unwarranted.
[I]n the Nery case, which is an action for estafa, there was contractual relationship
between the parties that can be validly novated by the settlement of the obligation of
the offender. Whatever was said in that case, therefore, cannot be invoked in the
present case where no contractual relationship or bilateral agreement, which can be
modified or altered by the parties, is involved. There is here merely a taking of the
complainant’s property by one who never acquired juridical possession thereof,
qualified by grave abuse of confidence.21 (Italicization in the original; boldfacing and
underscoring supplied)
Similarly, there is here merely an employer’s failure to pay its contributions to a government
corporation as mandated by that corporation’s charter.
Secondly, as Prosecutor Puti correctly noted, the agreement between petitioner and respondent
Martels for the latter to pay SENCOR’s overdue contributions through the assignment to petitioner of
a piece of realty never materialized. Petitioner’s acceptance of respondent Martels’ offer was subject
to a suspensive condition that "x x x [private] respondents will x x x settle their obligation either by
way of dacion en pago or through cash settlement within a reasonable time x x x." This condition
was not met because three years after respondent Martels’ offer, petitioner did not receive any
payment. In fact, respondent Jose Martel, at that point, changed the terms of the supposed
settlement by offering computer-related services instead of assigning the Tagaytay City realty. In
their Comment to the petition, respondent Martels explained that they made such alternative offer
because "the processing of the papers for the Tagaytay property met with some delay."22 In short,
respondent Martels failed to make good on their promise in 1998 to settle SENCOR’s liability
through dacion en pago. The circumstances the DOJ cited as proof of the compromise agreement’s
alleged implementation were nothing but steps preparatory to the actual payment of SENCOR’s
overdue contributions.
In sum, we hold that any payment respondent Martels would have made to petitioner (and it appears
that pending this petition, respondent Martels partially paid SENCOR’s liability) only affects their civil,
if any, but not their criminal liability for violation of Section 22(a) and (b) in relation to Section 28(e) of
RA 1161, as amended. As noted in the Resolution dated 28 February 2001 of the Pasay City
Prosecutor’s Office, respondent Martels do not dispute SENCOR’s non-remittance of contributions
from February 1991 to October 2000. Thus, the existence of probable cause against respondent
Martels, SENCOR’s directors,23 is beyond doubt.
Prosecutors’ Findings Not Conclusive
In dismissing petitioner’s petition, the Court of Appeals held:
[T]his Court has no power to determine whether probable cause to warrant prosecution exist
or not. x x x [T]he determination of whether or not probable cause exists to warrant the
prosecution in court of [respondent Martels] should be consigned and entrusted to the
Department of Justice as reviewer of the findings of the public prosecutor x x x.
In this Petition, We are being asked to assume the function of Public Prosecutor by
determining whether probable cause exists or not. Such is a function that this Court should
not be called upon to perform x x x.24
This is a misstatement of the law. This Court and the Court of Appeals possess the power to review
findings of prosecutors in preliminary investigations.25 Although policy considerations call for the
widest latitude of deference to the prosecutor’s findings,26 courts should never shirk from exercising
their power, when the circumstances warrant, to determine whether the prosecutor’s findings are
supported by the facts, or as in this case, by the law. In so doing, courts do not act as prosecutors
but as organs of the judiciary, exercising their mandate under the Constitution, relevant statutes, and
remedial rules to settle cases and controversies. Indeed, the exercise of this Court’s review power
ensures that, on the one hand, probable criminals are prosecuted27 and, on the other hand, the
innocent are spared from baseless prosecution.28
WHEREFORE, we GRANT the petition. We SET ASIDE the Decision dated 17 October 2002 and
Resolution dated 5 May 2003 of the Court of Appeals. We REINSTATE the Resolution dated 28
February 2001 of the Pasay City Prosecutor’s Office.
SO ORDERED.
Quisumbing, Chairperson, Carpio-Morales, Tinga, Velasco, Jr., JJ., concur.
SPECIAL FIRST DIVISION
BENJAMIN (KOKOY) T. G.R. Nos. 165510-33

ROMUALDEZ,
Petitioner, Present:
Quisumbing,
- versus - Ynares-Santiago,
Carpio, and
Azcuna, JJ.
HON. SIMEON V. MARCELO,
in his official capacity as the Ombudsman,
and PRESIDENTIAL COMMISSION
ON GOOD GOVERNMENT, Promulgated:
Respondents.
July 28, 2006
x ---------------------------------------------------------------------------------------- x
RESOLUTION
YNARES-SANTIAGO, J.:
For resolution is petitioners Motion for Reconsideration[1] assailing the

Decision dated September 23, 2005, the dispositive portion of which states:
WHEREFORE, the petition is DISMISSED. The resolutions dated July 12,

2004 and September 6, 2004 of the Office of the Special Prosecutor, are
AFFIRMED.
SO ORDERED.[2]
Petitioner claims that the Office of the Ombudsman gravely abused its discretion in
recommending the filing of 24 informations against him for violation of Section 7
of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act; that
the Ombudsman cannot revive the aforementioned cases which were previously
dismissed by the Sandiganbayan in its Resolution of February 10, 2004; that the
defense of prescription may be raised even for the first time on appeal and thus there
is no necessity for the presentation of evidence thereon before the court a quo. Thus,
this Court may accordingly dismiss Criminal Case Nos. 28031-28049 pending
before the Sandiganbayan and Criminal Case Nos. 04-23185704-231860 pending
before the Regional Trial Court of Manila, all on the ground of prescription.
In its Comment,[3] the Ombudsman argues that the dismissal of the informations in
Criminal Case Nos. 13406-13429 does not mean that petitioner was thereafter
exempt from criminal prosecution; that new informations may be filed by the
Ombudsman should it find probable cause in the conduct of its preliminary
investigation; that the filing of the complaint with the Presidential Commission on
Good Government (PCGG) in 1987 and the filing of the information with the
Sandiganbayan in 1989 interrupted the prescriptive period; that the absence of the
petitioner from the Philippines from 1986 until 2000 also interrupted the aforesaid
period based on Article 91 of the Revised Penal Code.
For its part, the PCGG avers in its Comment[4] that, in accordance with the 1987
Constitution and RA No. 6770 or the Ombudsman Act of 1989, the Omdudsman
need not wait for a new complaint with a new docket number for it to conduct a
preliminary investigation on the alleged offenses of the petitioner; that considering
that both RA No. 3019 and Act No. 3326 or the Act To Establish Periods of
Prescription For Violations Penalized By Special Acts and Municipal Ordinances
and to Provide When Prescription Shall Begin To Run, are silent as to whether
prescription should begin to run when the offender is absent from the Philippines,
the Revised Penal Code, which answers the same in the negative, should be applied.
The issues for resolution are: (1) whether the preliminary investigation
conducted by the Ombudsman in Criminal Case Nos. 13406-13429 was a nullity;
and (2) whether the offenses for which petitioner are being charged have already
prescribed.
Anent the first issue, we reiterate our ruling in the assailed Decision that the
preliminary investigation conducted by the Ombudsman in Criminal Case Nos.
13406-13429 is a valid proceeding despite the previous dismissal thereof by the
Sandiganbayan in its Minute Resolution[5] dated February 10, 2004 which reads:
Crim. Cases Nos. 13406-13429PEO. vs. BENJAMIN T. ROMUALDEZ
Considering that the Decision of the Honorable Supreme Court in G.R. Nos.
143618-41, entitled Benjamin Kokoy Romualdez vs. The Honorable
Sandiganbayan (First Division, et al.) promulgated on July 30, 2002 annulled and
set aside the orders issued by this Court on June 8, 2000 which, among others,
denied the accuseds motion to quash the informations in these cases; that in
particular the above-mentioned Decision ruled that the herein informations may be
quashed because the officer who filed the same had no authority to do so; and that
the said Decision has become final and executory on November 29, 2002, these
cases are considered DISMISSED. Let these cases be sent to the archives.
The aforesaid dismissal was effected pursuant to our ruling in Romualdez v.

Sandiganbayan[6]where petitioner assailed the Sandiganbayans Order dated June 8,
2000 in Criminal Case Nos. 13406-13429 which denied his Motion to Quash,
terminated the preliminary investigation conducted by Prosecutor Evelyn T. Lucero

and set his arraignment for violations of Section 7 of RA No. 3019 on June 26,
2000.[7] In annulling and setting aside the aforesaid Order of the Sandiganbayan, we
held that:
In the case at bar, the flaw in the information is not a mere remediable defect
of form, as in Pecho v. Sandiganbayan where the wording of the certification in the
information was found inadequate, or in People v. Marquez, where the required
certification was absent. Here, the informations were filed by an unauthorized
party. The defect cannot be cured even by conducting another preliminary
investigation. An invalid information is no information at all and cannot be the basis
for criminal proceedings.[8]
In effect, we upheld in Romualdez v. Sandiganbayan[9] petitioners Motion to

Quash and directed the dismissal of Criminal Case Nos. 13406-13429 because the
informations were filed by an unauthorized party, hence void.
In such a case, Section 6, Rule 117 of the Rules of Court is pertinent and
applicable. Thus:
SEC. 6. Order sustaining the motion to quash not a bar to another

prosecution; exception. An order sustaining the motion to quash is not a bar to
another prosecution for the same offense unless the motion was based on the
grounds specified in section 3(g) and (i)[10] of this Rule.
An order sustaining a motion to quash on grounds other than extinction of

criminal liability or double jeopardy does not preclude the filing of another
information for a crime constituting the same facts. Indeed, we held in Cudia v.
Court of Appeals[11] that:
In fine, there must have been a valid and sufficient complaint or information
in the former prosecution. If, therefore, the complaint or information was
insufficient because it was so defective in form or substance that the conviction
upon it could not have been sustained, its dismissal without the consent of the
accused cannot be pleaded. As the fiscal had no authority to file the information,
the dismissal of the first information would not be a bar in petitioners subsequent
prosecution. x x x.[12]
Be that as it may, the preliminary investigation conducted by the Ombudsman

in the instant cases was not a violation of petitioners right to be informed of the
charges against him. It is of no moment that the cases investigated by the
Ombudsman bore the same docket numbers as those cases which have already been
dismissed by the Sandiganbayan, to wit: Criminal Case Nos. 13406-13429. As we
have previously stated:
The assignment of a docket number is an internal matter designed for efficient

record keeping. It is usually written in the Docket Record in sequential order
corresponding to the date and time of filing a case.
This Court agrees that the use of the docket numbers of the dismissed cases
was merely for reference. In fact, after the new informations were filed, new docket
numbers were assigned, i.e.,Criminal Cases Nos. 28031-28049 x x x.[13]
Besides, regardless of the docket numbers, the Ombudsman conducted the

above-referred preliminary investigation pursuant to our Decision in Romualdez v.
Sandiganbayan[14] when we categorically declared therein that:
The Sandiganbayan also committed grave abuse of discretion when it

abruptly terminated the reinvestigation being conducted by Prosecutor Lucero. It
should be recalled that our directive in G.R. No. 105248 for the holding of a
preliminary investigation was based on our ruling that the right to a preliminary
investigation is a substantive, rather than a procedural right. Petitioners right was
violated when the preliminary investigation of the charges against him were
conducted by an officer without jurisdiction over the said cases. It bears stressing
that our directive should be strictly complied with in order to achieve its objective
of affording petitioner his right to due process.[15]
Anent the issue on the prescription of the offenses charged, we should first resolve
the question of whether this Court may validly take cognizance of and resolve the
aforementioned issue considering that as we have said in the assailed Decision, this
case has never progressed beyond the filing of the informations against the
petitioner[16] and that it is only prudent that evidence be gathered through trial on the
merits to determine whether the offense charged has already prescribed.[17] We
reconsider our stance and shall rule in the affirmative.
Rule 117 of the Rules of Court provides that the accused may, at any time before he
enters his plea, move to quash the complaint and information[18] on the ground that
the criminal action or liability has been extinguished,[19] which ground includes the
defense of prescription considering that Article 89 of the Revised Penal Code
enumerates prescription as one of those grounds which totally extinguishes criminal
liability. Indeed, even if there is yet to be a trial on the merits of a criminal case, the
accused can very well invoke the defense of prescription.
Thus, the question is whether or not the offenses charged in the subject criminal
cases have prescribed? We held in the case of Domingo v. Sandiganbayan[20] that:
In resolving the issue of prescription of the offense charged, the following

should be considered: (1) the period of prescription for the offense charged; (2) the
time the period of prescription starts to run; and (3) the time the prescriptive period
was interrupted.[21]
Petitioner is being charged with violations of Section 7 of RA No. 3019 for failure
to file his Statements of Assets and Liabilities for the period 1967-1985 during his
tenure as Ambassador Extraordinary and Plenipotentiary and for the period 1963-
1966 during his tenure as Technical Assistant in the Department of Foreign Affairs.
Section 11 of RA No. 3019 provides that all offenses punishable therein shall
prescribe in 15 years. Significantly, this Court already declared in the case of People
v. Pacificador[22] that:
It appears however, that prior to the amendment of Section 11 of R.A. No. 3019 by
B.P. Blg. 195 which was approved on March 16, 1982, the prescriptive period for
offenses punishable under the said statute was only ten (10) years. The longer
prescriptive period of fifteen (15) years, as provided in Section 11 of R.A. No. 3019
as amended by B.P. Blg. 195, does not apply in this case for the reason that the
amendment, not being favorable to the accused (herein private respondent), cannot
be given retroactive effect. Hence, the crime prescribed on January 6, 1986 or ten
(10) years from January 6, 1976.[23]
Thus, for offenses allegedly committed by the petitioner from 1962 up to March 15,
1982, the same shall prescribe in 10 years. On the other hand, for offenses allegedly
committed by the petitioner during the period from March 16, 1982 until 1985, the
same shall prescribe in 15 years.
As to when these two periods begin to run, reference is made to Act No. 3326 which
governs the computation of prescription of offenses defined by and penalized under
special laws. Section 2 of Act No. 3326 provides:
SEC. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its investigation and
punishment.
The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy.
In the case of People v. Duque,[24] we construed the aforequoted provision,

specifically the rule on the running of the prescriptive period as follows:
In our view, the phrase "institution of judicial proceedings for its
investigation and punishment" may be either disregarded as surplusage or should
be deemed preceded by the word "until." Thus, Section 2 may be read as:
"Prescription shall begin to run from the day of the
commission of the violation of the law; and if the same be not known
at the time, from the discovery thereof;"
or as:
"Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known
at the time, from the discovery thereof and untilinstitution of judicial
proceedings for its investigation and punishment." (Emphasis
supplied)[25]
Thus, this Court rules that the prescriptive period of the offenses herein began to run
from the discovery thereof or on May 8, 1987, which is the date of the complaint
filed by the former Solicitor General Francisco I. Chavez against the petitioner with
the PCGG.
In the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans

v. Desierto[26]this Court already took note that:
In cases involving violations of R.A. No. 3019 committed prior to the

February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos, we
ruled that the government as the aggrieved party could not have known of the
violations at the time the questioned transactions were made.Moreover, no person
would have dared to question the legality of those transactions. Thus, the counting
of the prescriptive period commenced from the date of discovery of the offense in
1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on
Behest Loans.[27]
However, both respondents in the instant case aver that, applying Article 91
of the Revised Penal Code suppletorily, the absence of the petitioner from
the Philippines from 1986 until April 27, 2000 prevented the prescriptive period for
the alleged offenses from running.
We disagree.
Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence of the
offender from the Philippines bars the running of the prescriptive period. The silence
of the law can only be interpreted to mean that Section 2 of Act No. 3326 did not
intend such an interruption of the prescription unlike the explicit mandate of Article
91. Thus, as previously held:
Even on the assumption that there is in fact a legislative gap caused by such
an omission, neither could the Court presume otherwise and supply the details
thereof, because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts
may not, in the guise of the interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers. An omission at the
time of the enactment, whether careless or calculated, cannot be judicially supplied
however after later wisdom may recommend the inclusion. Courts are not
authorized to insert into the law what they think should be in it or to supply what
they think the legislature would have supplied if its attention has been called to the
omission.[28]
The only matter left to be resolved is whether the filing of the complaint with
the PCGG in 1987 as well as the filing of the informations with the Sandiganbayan
to initiate Criminal Case Nos. 13406-13429 in 1989 interrupted the running of the
prescriptive period such that when the Ombudsman directed petitioner to file his
counter-affidavit on March 3, 2004, the offenses have already prescribed.
Under Section 2 of Act No. 3326, the prescriptive period shall be interrupted when
proceedings are instituted against the guilty person. However, there is no such
proceeding instituted against the petitioner to warrant the tolling of the prescriptive
periods of the offenses charged against him.
In Romualdez v. Sandiganbayan,[29] petitioner averred that PCGG acted

without jurisdiction and/or grave abuse of discretion in conducting a preliminary
investigation of cases not falling within its competence.[30] This Court, in its resolve
to deal with the merits of the case to remove the possibility of any misunderstanding
as to the course which it wishes petitioners cases in the Sandiganbayan to
take[31]declared invalid
the preliminary investigation conducted by the PCGG over the 24 offenses ascribed
to Romualdez (of failure to file annual statements of assets and liabilities), for lack
of jurisdiction of said offenses.[32]
In Romualdez v. Sandiganbayan,[33] petitioner assailed the validity of the
informations filed with the Sandiganbayan in Criminal Case Nos. 13406-13429
considering that the same were subscribed and filed by the PCGG. In granting
petitioners plea, this Court held, thus:
Here, the informations were filed by an unauthorized party. The defect cannot be
cured by conducting another preliminary investigation. An invalid information is
no information at all and cannot be the basis for criminal proceedings.[34]
Indeed, the nullity of the proceedings initiated by then Solicitor General

Chavez in 1987 with the PCGG and by the PCGG with the Sandiganbayan in 1989
is judicially settled. In contemplation of the law, no proceedings exist that could
have merited the suspension of the prescriptive periods.
Besides, the only proceeding that could interrupt the running of prescription
is that which is filed or initiated by the offended party before the appropriate body
or office. Thus, in the case of People v. Maravilla,[35] this Court ruled that the filing
of the complaint with the municipal mayor for purposes of preliminary investigation
had the effect of suspending the period of prescription. Similarly, in the case
of Llenes v. Dicdican,[36] this Court held that the filing of a complaint against a
public officer with the Ombudsman tolled the running of the period of prescription.
In the case at bar, however, the complaint was filed with the wrong body, the
PCGG. Thus, the same could not have interrupted the running of the prescriptive
periods.
However, in his Dissenting Opinion, Mr. Justice Carpio contends that the
offenses charged against the petitioner could not have prescribed because the latter
was absent from the Philippines from 1986 to April 27, 2000 and thus the
prescriptive period did not run from the time of discovery on May 8, 1987, citing
Article 91 of the Revised Penal Code which provides that [t]he term of prescription
should not run when the offender is absent from the Philippine Archipelago.
Mr. Justice Carpio argues that
Article 10 of the same Code makes Article 91 x x x supplementary to [special laws],

unless the latter should x x x provide the contrary. Nothing in RA 3019 prohibits
the supplementary application of Article 91 to that law. Hence, applying Article 91,
the prescriptive period in Section 11 of RA 3019, before and after its amendment,
should run only after petitioner returned to this jurisdiction on 27 April 2000.
There is no gap in the law. Where the special law is silent, Article 10 of the
RPC applies suppletorily, as the Court has held in a long line of decisions since
1934, starting with People v. Moreno.Thus, the Court has applied suppletorily
various provisions of the RPC to resolve cases where the special laws are silent on
the matters in issue. The law on the applicability of Article 10 of the RPC is thus
well-settled, with the latest reiteration made by this Court in 2004 in Jao Yu v.
People.
He also expresses his apprehension on the possible effects of the ruling of the
Majority Opinion and argues that
The accused should not have the sole discretion of preventing his own
prosecution by the simple expedient of escaping from the States
jurisdiction. x x x An accused cannot acquire legal immunity by being a
fugitive from the States jurisdiction. x x x.
To allow an accused to prevent his prosecution by simply leaving this jurisdiction

unjustifiably tilts the balance of criminal justice in favor of the accused to the
detriment of the States ability to investigate and prosecute crimes. In this age of
cheap and accessible global travel, this Court should not encourage individuals
facing investigation or prosecution for violation of special laws to leave Philippine
jurisdiction to sit-out abroad the prescriptive period. The majority opinion
unfortunately chooses to lay the basis for such anomalous practice.
With all due respect, we beg to disagree.

Article 10 of the Revised Penal Code provides:
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not subject to
the provisions of this Code. This Code shall be supplementary to such laws, unless
the latter should specially provide the contrary.
Pursuant thereto, one may be tempted to hastily conclude that a special law
such as RA No. 3019 is supplemented by the Revised Penal Code in any and all
cases. As it is, Mr. Justice Carpio stated in his Dissenting Opinion that
There is no gap in the law. Where the special law is silent, Article 10 of the
RPC applies suppletorily, as the Court has held in a long line of decisions since
1934, starting with People v. Moreno.Thus, the Court has applied suppletorily
various provisions of the RPC to resolve cases where the special laws are silent on
the matters in issue. The law on the applicability of Article 10 of the RPC is thus
well-settled, with the latest reiteration made by this Court in 2004 in Jao Yu v.
People.
However, it must be pointed out that the suppletory application of the Revised
Penal Code to special laws, by virtue of Article 10 thereof, finds relevance only when
the provisions of the special law are silent on a particular matter as evident from the
cases cited and relied upon in the Dissenting Opinion:
In the case of People v. Moreno,[37] this Court, before ruling that the
subsidiary penalty under Article 39 of the Revised Penal Code may be applied in
cases of violations of Act No. 3992 or theRevised Motor Vehicle Law, noted that the
special law did not contain any provision that the defendant can be sentenced with
subsidiary imprisonment in case of insolvency.
In the case of People v. Li Wai Cheung,[38] this Court applied the rules on the
service of sentences provided in Article 70 of the Revised Penal Code in favor of the
accused who was found guilty of multiple violations of RA No. 6425 or The
Dangerous Drugs Act of 1972 considering the lack of similar rules under the special
law.
In the case of People v. Chowdury,[39] the Court applied Articles 17, 18 and
19 of the Revised Penal Code to define the
words principal, accomplices and accessories under RA No. 8042 or the Migrant
Workers and Overseas Filipinos Act of 1995 because it was not defined therein
although it referred to the same terms in enumerating the persons liable for the crime
of illegal recruitment.
In the case at bar, the silence of RA No. 3019 on the question of whether or
not the absence of the accused from the Philippines prevents or tolls the running of
the prescriptive period is more apparent than real.
Even before the enactment of RA No. 3019 in 1960, Act No. 3326 was already
in effect as early as December 4, 1926. Section 3 thereof categorically
defines special acts as acts defining and penalizing violations of the law not
included in the Penal Code.
Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on Behest

Loans v. Desierto,[40] this Court was categorical in ruling that
The law on prescription of offenses is found in Articles 90 and 91 of the

Revised Penal Code for offenses punishable thereunder. For those penalized under
special laws, Act No. 3326 applies.
Section 2 of Act No. 3326 provides that the prescription shall begin to run
from the day of the commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment. The running of the prescriptive
period shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons
not constituting jeopardy. Clearly, Section 2 of Act No. 3326 did not provide that
the absence of the accused from the Philippines prevents the running of the
prescriptive period. Thus, the only inference that can be gathered from the foregoing
is that the legislature, in enacting Act No. 3326, did not consider the absence of the
accused from the Philippines as a hindrance to the running of the prescriptive
period. Expressio unius est exclusio alterius. To elaborate, -
Indeed, it is an elementary rule of statutory construction that the express

mention of one person, thing, act, or consequence excludes all others. This rule is
expressed in the familiar maxim expressio unius est exclusio alterius. Where a
statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to others. The rule proceeds from the
premise that the legislature would not have made specified enumerations in a statute
had the intention been not to restrict its meaning and to confine its terms to those
expressly mentioned.[41]
Had the legislature intended to include the accuseds absence from

the Philippines as a ground for the interruption of the prescriptive period in special
laws, the same could have been expressly provided in Act No. 3326. A case in point
is RA No. 8424 or the Tax Reform Act of 1997 where the legislature made its
intention clear and was thus categorical that
SEC. 281. Prescription for Violations of any Provision of this Code All
violations of any provision of this Code shall prescribe after five (5) years.
Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof and
the institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the
guilty persons and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy.
The term of prescription shall not run when the offender is absent from the
Philippines. (Emphasis supplied)
According to Mr. Justice Carpio, Article 91 of the Revised Penal Code fills
the so-called gap in Act No. 3326. Thus, while Act No. 3326 governs the operation
of the prescriptive period for violations of R.A. No. 3019, Article 91 of the Revised
Penal Code can and shall still be applied in cases where the accused is absent from
the Philippines. In effect, Article 91 would supplement Act No. 3326.
This could not have been the intention of the framers of the law.
While it is true that Article 10 of the Revised Penal Code makes the Code
suppletory to special laws, however, Act No. 3326 cannot fall within the ambit
of special law as contemplated and used in Article 10 of the RPC.
In the case of United States v. Serapio,[42] the Court had the occasion to
interpret the term special laws mentioned in Article 7 of then Penal Code of
the Philippines, which is now Article 10 of the Revised Penal Code, as referring to
penal laws that punish acts not defined and penalized by the Penal Code of
the Philippines. Thus
This contention makes it necessary to define "special laws," as that phrase

is used in article 7 of the Penal Code. Does this phrase "leyes especiales,"
as used in the Penal Code (article 7) have the meaning applied to the
phrase "special laws," as the same is generally used? x x x It is confidently
contended that the phrase "leyes especiales," as used in the Penal Code
(article 7) is not used with this general signification: In fact, said phrase
may refer not to a special law as above defined, but to a general law. A
careful reading of said article 7 clearly indicates that the phrase "leyes
especiales" was not used to signify "special laws" in the general
signification of that phrase. The article, it will be noted, simply says, in
effect, that when a crime is made punishable under some other law than
the Penal Code, it (the crime) is not subject to the provisions of said
code.[43]
Even if we consider both Act No. 3326 and Article 91 as supplements to RA

No. 3019, the same result would obtain. A conflict will arise from the
contemporaneous application of the two laws.The Revised Penal Code explicitly
states that the absence of the accused from the Philippines shall be a ground for the
tolling of the prescriptive period while Act No. 3326 does not. In such a situation,
Act No. 3326 must prevail over Article 91 because it specifically and directly applies
to special lawswhile the Revised Penal Code shall apply to special laws only
suppletorily and only when the latter do not provide the contrary. Indeed, elementary
rules of statutory construction dictate that special legal provisions must prevail over
general ones.
The majority notes Mr. Justice Carpios reservations about the effects of ruling
that the absence of the accused from the Philippines shall not suspend the running
of the prescriptive period. Our duty, however, is only to interpret the law. To go
beyond that and to question the wisdom or effects of the law is certainly beyond our
constitutionally mandated duty. As we have already explained
Even on the assumption that there is in fact a legislative gap caused by such
an omission, neither could the Court presume otherwise and supply the details
thereof, because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts
may not, in the guise of interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers. An omission at the
time of the enactment, whether careless or calculated, cannot be judicially supplied
however after later wisdom may recommend the inclusion. Courts are not
authorized to insert into the law what they think should be in it or to supply what
they think the legislature would have supplied if its attention has been called to the
omission.[44]
Mr. Justice Carpio also remarks that the liberal interpretation of the statute of
limitations in favor of the accused only relates to the following issues: (1) retroactive
or prospective application of laws providing or extending the prescriptive period;
(2) the determination of the nature of the felony committed vis--vis the applicable
prescriptive period; and (3) the reckoning of when the prescriptive period
runs. Therefore, the aforementioned principle cannot be utilized to support the
Majority Opinions conclusion that the prescriptive period in a special law continues
to run while the accused is abroad.
We take exception to the foregoing proposition.
We believe that a liberal interpretation of the law on prescription in criminal

cases equally provides the authority for the rule that the prescriptive period runs
while the accused is outside of Philippine jurisdiction. The nature of the law on
prescription of penal statutes supports this conclusion. In the old but still relevant
case of People v. Moran,[45] this Court extensively discussed the rationale behind
and the nature of prescription of penal offenses
We should at first observe that a mistake is sometimes made in applying to

statutes of limitation in criminal suits the construction that has been given to statutes
of limitation in civil suits. The two classes of statutes, however, are essentially
different. In civil suits the statute is interposed by the legislature as an impartial
arbiter between two contending parties. In the construction of the statute, therefore,
there is no intendment to be made in favor of either party. Neither grants the right
to the other; there is therefore no grantor against whom the ordinary presumptions,
of construction are to be made. But it is, otherwise when a statute of limitation is
granted by the State. Here the State is the grantor, surrendering by act of grace its
rights to prosecute, and declaring the offense to be no longer the subject of
prosecution.' The statute is not a statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain time
oblivion shall be cast over the offence; that the offender shall be at liberty to
return to his country, and resume his immunities as a citizen and that from
henceforth he may cease to preserve the proofs of his innocence, for the proofs
of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally
construed in favor of the defendant, not only because such liberality of construction
belongs to all acts of amnesty and grace, but because the very existence of the
statute, is a recognition and notification by the legislature of the fact that time, while
it gradually wears out proofs of innocence, has assigned to it fixed and positive
periods in which it destroys proofs of guilt. Independently of these views, it must
be remembered that delay in instituting prosecutions is not only productive of
expense to the State, but of peril to public justice in the attenuation and distortion,
even by mere natural lapse of memory, of testimony. It is the policy of the law that
prosecutions should be prompt, and that statutes, enforcing such promptitude
should be vigorously maintained. They are not merely acts of grace, but checks
imposed by the State upon itself, to exact vigilant activity from its subalterns, and
to secure for criminal trials the best evidence that can be obtained. (Emphasis
supplied)
Indeed, there is no reason why we should deny petitioner the benefits accruing
from the liberal construction of prescriptive laws on criminal statutes. Prescription
emanates from the liberality of the State. Any bar to or cause of interruption in the
operation of prescriptive periods cannot simply be implied nor derived by mere
implication. Any diminution of this endowment must be directly and expressly
sanctioned by the source itself, the State. Any doubt on this matter must be resolved
in favor of the grantee thereof, the accused.
The foregoing conclusion is logical considering the nature of the laws on

prescription. The exceptions to the running of or the causes for the interruption of
the prescriptive periods may and should not be easily implied. The prescriptive
period may only be prevented from operating or may only be tolled for reasons
explicitly provided by the law.
In the case of People v. Pacificador,[46] we ruled that:

It bears emphasis, as held in a number of cases, that in the interpretation of
the law on prescription of crimes, that which is more favorable to the accused is to
be adopted. The said legal principle takes into account the nature of the law on
prescription of crimes which is an act of amnesty and liberality on the part of the
state in favor of the offender. In the case of People v. Moran, this Court amply
discussed the nature of the statute of limitations in criminal cases, as follows:
The statute is not statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain
time oblivion shall be cast over the offense; that the offender shall
be at liberty to return to his country, and resume his immunities as a
citizen; and that from henceforth he may cease to preserve the proofs
of his innocence, for the proofs of his guilt are blotted out. Hence, it
is that statues of limitation are to be liberally construed in favor of
the defendant, not only because such liberality of construction
belongs to all acts of amnesty and grace, but because the very
existence of the statute is a recognition and notification by the
legislature of the fact that time, while it gradually wears out proofs
of innocence, has assigned to it fixed and positive periods in which
it destroys proofs of guilt.[47]
In view of the foregoing, the applicable 10-and-15-year prescriptive periods

in the instant case, were not interrupted by any event from the time they began to
run on May 8, 1987. As a consequence, the alleged offenses committed by the
petitioner for the years 1963-1982 prescribed 10 years from May 8, 1987 or on May
8, 1997. On the other hand, the alleged offenses committed by the petitioner for the
years 1983-1985 prescribed 15 years from May 8, 1987 or on May 8, 2002.
Therefore, when the Office of the Special Prosecutor initiated the preliminary
investigation of Criminal Case Nos. 13406-13429 on March 3, 2004 by requiring the
petitioner to submit his counter-affidavit, the alleged offenses subject therein have
already prescribed. Indeed, the State has lost its right to prosecute petitioner for the
offenses subject of Criminal Case Nos. 28031-28049 pending before the
Sandiganbayan and Criminal Case Nos. 04-23185704-231860 pending before the
Regional Trial Court of Manila.
WHEREFORE, premises considered, petitioners Motion for

Reconsideration is GRANTED.Criminal Case Nos. 28031-28049 pending before
the Sandiganbayan and Criminal Case Nos. 04-23185704-231860 pending before
the Regional Trial Court of Manila are all hereby ordered DISMISSED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

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CRIM REV ATTY DIWA PART 1 61-70

Jeross Romano Aguilar

Republic of the Philippines

G.R. No. 108747 April 6, 1995

PABLO C. FRANCISCO, petitioner,

The motion for reconsideration was likewise denied.

Petitioner is no longer eligible for probation.

. . . [w]here language is plain, subtle refinements which tinge words

Premises considered, the judgment of conviction rendered by the trial court is

Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete

Sec. 4. Grant of Probation. — Subject to the provisions of this

Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

[G.R. No. 110097. December 22, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO

Actual detention or locking up is the primary element of kidnapping. If the evidence

That on or about December 29, 1991 in the Municipality of Tagum, Province of

Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his

WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA

Evidence for the Prosecution

Evidence for the Defense

The Trial Courts Ruling

His defense of intoxication has no leg to stand [on].

Consider these facts.

xxx xxx xxx

Appellant imputes the following errors to the trial court:[10]

The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only of grave

First Issue: Credibility of Prosecution Witnesses

We hold, however, that inconsistencies in the testimonies of witnesses concerning

Second Issue: No Motive to Kidnap

Third Issue: Kidnapping or Coercion?

We agree with appellants contention this time.

1. That the offender is a private individual.

3. That the act of detention or kidnapping must be illegal.

4. That in the commission of the offense, any of the following circumstances is

(b) That it is committed simulating public authority; or

Q. How far is Maco Central Elementary School from your house?

Republic of the Philippines

G.R. No. 182239 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

Evidence for the Prosecution

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

5. Abrasion over the posterior trunk, paravertebral area

7. Introitus is erythematous with minimal bleeding

8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

MULTIPLE SOFT TISSUE INJURIES

Evidence for the Defense

We sustain the judgment of conviction.

Q When Hermie mounted you, was he facing you?

Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

A They were apart.

Q Who pushed them apart?

Q Did Hermie push anything at you?

Q What was that?

Q Where did he push his penis?

Q What was painful?

Q Did you cry?

Further, as correctly observed by the trial court:

Neither was the testimony of Luzvilla credible enough to deserve consideration.