IV.3. D.1 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. going up again.
going up again.4 He saw through his blanket that the person had come up: "Naaninag
WILLERIE AVENDAÑO, accused-appellant.
On automatic review is the decision1 dated January 29, 1999 of the Regional Trial
Court of San Jose, Occidental Mindoro, Branch 46, in Criminal Case No. R-4227.
Appellant Willerie Avendaño was found guilty of murder and accordingly sentenced to
suffer the penalty of death.
The facts of this case, culled from the records, are as follows:
In an information dated August 18, 1997, Willerie Avendaño was charged with two
counts of murder allegedly committed as follows:
That on or about the 29th day of July, 1997 at night time (sic) in Purok
Bagong Silang, Barangay Aguas, Municipality of Rizal, Province of
Occidental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the accused being then armed with a jungle knife, with intent to kill,
with treachery, did then and there willfully, unlawfully and feloniously, attack,
assault and stab with the said weapon Remedios Castillo and Melvin Castillo
inflicting upon the victims serious wounds which caused their untimely death.
CONTRARY TO LAW.2
Upon arraignment, the accused pleaded not guilty. Thereafter, trial on the merits
ensued.
The principal witness for the prosecution was JEFFRE CASTILLO, an eight-year-old
son of the victim Remedios Castillo and brother of the victim Melvin Castillo. In his
testimony, he stated that his parents were named Remedios and Boyet; that they
were six children in the family, namely, Michael, Dikong, Ape, Manolito, the victim
Melvin and himself, and that he was a Grade I pupil at the Aguas Elementary School.
He testified that he knows appellant, having known him for about three or four years
before the incident of July 29, 1997. On said date, at around 6:00 P.M., he saw
appellant in their house, looking for his plow and asking if he knew who got it, to
which he replied that he did not. While appellant was in their house, his mother was
upstairs and his Kuya Melvin was also inside the house. His father and the rest of his
brothers and sisters were in Cabanatuan City. He recalled that appellant was then
wearing a green t-shirt and shorts, the color of which he could not
remember.3 Thereafter, appellant left. After dinner, he, his mother and brother went to
sleep. Before they slept, he recalled they had a pangmagdamagan or overnight lamp
which was turned on.
That night, according to Jeffre, they slept in the same room. He was suddenly
awakened when he heard a commotion (kalambugan). However, by the time he woke
up, the room was very dark because the lamp was already turned off. He heard his
mother shout, "Dikong, tulungan mo kami." When he heard the kalambugan he
immediately eased his way to where they kept their pillows and tried to hide. Then,
there was silence. Then he heard somebody going downstairs. His brother Melvin lit
the lamp, while Jeffre stayed where he was. He then heard the person downstairs
ko po sa kumot yung tao."5 That was when he distinctly heard his Kuya Melvin say,
"Kuya Willie, tama, na, tama na!" That was just before Melvin was killed.6
Jeffre recalled that someone coughed and he recognized the cough as that of
his Kuya Willie. He recognized it because he had heard a similar cough on several
occasions in the past when appellant frequented their house. He remained where he
was until appellant left.
Jeffre said he fell asleep and was awakened only the following morning by persistent
knocking on their door. He opened the door to find his Ate Annie (Juliana Castillo), Ate
Norma (Roldan) and Ate Ann (Roldan) looking for his mother. He then told his Ate
Annie that Willerie Avendaño killed both his mother Remedios and his Kuya Melvin.
He remembered that thereafter, their relatives as well as some policemen arrived.7
Jeffre recounted that he was brought to the police station where his sworn statement
was taken and he signed it in the presence of Mayor Bartolome Miranda of Rizal
town.8 He said he was accompanied by his Lola Nena who read to him what was
written in the statement because he did not know how to read. He said no one
coached him to answer the way he did, particularly to the question: "Sino ang taong
umubo na yon?" His answer was: "Hindi ko po nakita pero kilala ko ang boses niya
na si Kuya Willie."9
…
Later, according to Dimalaluan, they went to the house of appellant 150 meters away
from the crime scene. There they found appellant who had just taken a bath. They
asked him what he wore the day of the incident, and appellant pointed to the clothes
he was wearing. Doubting appellant, Dimalaluan went inside the house. In the
bathroom, a green t-shirt with "Landbank" print and dark short pants, newly washed
and still wet, were hanging from the clothesline. He said he noticed dark stains on
them. These were brought to the police station. During Dimalaluan's testimony he
marked the stains found on the clothes.26 These, however, were not subjected to
laboratory examination.
Appellant voluntarily went with the police to the police station, according to
Dimalaluan. While detained, appellant made an oral admission that he killed the
victims and that he used a knife, said the police officer. Hence, on July 31, 1997,
Dimalaluan accompanied appellant back to his house, where appellant got from the
cabinet a hunting knife with scabbard and then handed it over to him.27 According to
Dimalaluan, appellant's admission was not reduced into writing28 because when
appellant made the admission, he was not assisted by a lawyer. The knife was
likewise not subjected to any laboratory examination.
…
On January 29, 1999, the RTC convicted appellant as follows:
 WHEREFORE, and in the light of all the foregoing considerations, the Court
finds that the accused Willerie (Willy) Avendano is guilty beyond reasonable
doubt of the crime of Murder, as defined and penalized under Article 248 of
the Revised Penal Code, and Section 6 of Republic Act Number 7659,
otherwise referred to as the Death Penalty Law, and is hereby sentenced to
DEATH.
The accused is ordered to indemnify the heirs of the victims Remedios
Hilario Castillo and Melvin Hilario Castillo in the amount of FIFTY
THOUSAND PESOS (P50,000.000) for each victim, and to furthermore pay
said heirs the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00) for each victim as and for moral damages.
The Provincial Warden is hereby directed to cause the immediate transfer of
the accused from the Provincial Jail at Magbay, San Jose, Occidental
Mindoro to the New Bilibid Prisons, Muntinlupa City, Metro Manila.
SO ORDERED.36
Hence, this appeal. Appellant, in his brief, assigns the following errors for our
consideration:
… information was filed for the two deaths, in violation of Rule 110, Section 1368 of the
… except in cases for which the law prescribes a single punishment for various offenses.
In sum, we find appellant's defense of denial and alibi unavailing. Given the
testimonial evidence for the prosecution which we find credible, we entertain no doubt
as to his criminal liability for the death of Remedios and Melvin Castillo. The only
remaining question is whether these killings were attended by qualifying and
aggravating circumstances.
The qualifying circumstance of treachery was found present by the trial court,
resulting in appellant's conviction for two counts of murder. Under the Revised Penal
Code, there is treachery "when the offender commits any of the crimes against the
person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make." 1 For treachery to exist, two
conditions must be found: (1) that at the time of the attack the victim was not in a
position to defend himself; and (2) the offender consciously adopted the particular
means, method or form of attack employed by him.62
In this case, we find no adequate proof of treachery. Evidence on record does not
show that appellant consciously and purposely adopted means and methods to
ensure the commission of the crime without any risk to himself. Thus, absent
treachery or any circumstance that would otherwise qualify an offense to murder, the
crime committed is only homicide. Hence, appellant should only be held for two
counts of homicide, not double murder.
The trial court appreciated the aggravating circumstances of nighttime, dwelling, and
unlawful entry. Of the three, however, only nighttime was properly alleged in the
information. The Revised Rules of Criminal Procedure which took effect on December
1, 2000, requires that every complaint or information should state not only the
qualifying but also the aggravating circumstances.63 This rule may be given
retroactive effect in the light of the settled doctrine that statutes regulating the
procedure of the court will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in that
sense and to that extent.64 Hence, following this new rule, we cannot appreciate the
aggravating circumstances of dwelling and unlawful entry, since they were not alleged
in the information.
As to nighttime, this circumstance is considered aggravating only when (1) it was
especially sought by the offender; or (2) the offender took advantage of it; or (3) it
facilitated the commission of the crime by ensuring the offender's immunity from
identification or capture.65 In this case, the prosecution did not adduce evidence that
the appellant deliberately sought the cover of the night to commit the offense. The
mere fact that the killing was committed at night would not suffice to sustain nocturnity
for, by, and of itself.66 Aggravating circumstances must be established with the same
quantum of proof as fully as the crime itself, and any doubt as to their existence must
be resolved in favor of appellant.67
At this juncture, we note the observation of the trial court that only one criminal
Rules of Court which mandates that one information for each crime should be filed,
This observation, however, should not stop the court from imposing a penalty for each
crime committed in the light of appellant's failure to object to the defect in the
information. As held in People vs. Ramon:69
Regrettably for the accused-appellant, however, he has failed to timely
question the above defect, and he may thus be deemed to have waived his
objection to the multiplicity of charges. In People vs. Conte, this Court has
ruled:
. . . Under Sections 1 and 3(e) of Rule 117, the appellant, before entering his
plea, should have moved to quash the complaint for being duplicitous. For
his failure to do so, he is deemed to have waived the defect. Hence,
pursuant to Section 3 of Rule 120, the court could convict him of as many
offenses as are charged and proved, and impose on him the penalty for
each and every one of them. (Citations omitted)
The penalty for homicide is reclusion temporal. There being neither mitigating nor
aggravating circumstances, the appropriate penalty therefore is reclusion temporal in
its medium period. Applying the Indeterminate Sentence Law, appellant's sentence for
each homicide should be an indeterminate penalty of eight years and one day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1)
day of reclusion temporal, as maximum.
Finally, on the award of damages. For each count of homicide, the award of P50,000
as civil indemnity for the death of the victim, is in accord with prevailing jurisprudence.
70 Given the facts of this case, where mother and son perished in a shocking
carnage from numerous wounds inflicted by the malefactor, the amount of P50,000 as
moral damages for the death of each victim should also be awarded.

WHEREFORE, the decision of the Regional Trial Court of San Jose, Occidental
Mindoro, Branch 46, in Criminal Case No. R-4227, is hereby MODIFIED. Appellant
WILLERIE AVENDAÑO is found GUILTY of two counts of homicide. For each count,
there being no aggravating nor mitigating circumstance, he is sentenced to suffer the
indeterminate penalty of eight years and one day of prision mayor, as minimum, to
fourteen years, eight months and one day of reclusion temporal, as maximum, with all
the accessory penalties prescribed by law. Appellant is also ordered to pay the heirs
of each victim the amount of P50,000.00 as civil indemnity and another sum of
P50,000.00 as moral damages, together with the costs.

IV.3.D.3 FERNANDO Q. MIGUEL, Petitioner, vs.
THE HONORABLE SANDIGANBAYAN, Respondent.
Before the Court is a petition for certiorari under Rule 651 filed by Fernando Q. Miguel
(petitioner), assailing the January 25, 2006 and March 27, 2006 resolutions2 of the
Sandiganbayan. These resolutions (i) ordered the petitioner’s suspension from public
office and (ii) denied the petitioner’s motion for reconsideration of the suspension
order.
THE ANTECEDENT FACTS
On May 29, 1996, then Vice Mayor Mercelita M. Lucido and other local officials3 of
Koronadal City, South Cotabato filed a letter-complaint with the Office of the
Ombudsman-Mindanao (Ombudsman)4 charging the petitioner, among others,5 with
violation of Republic Act (R.A.) No. 3019, in connection with the consultancy services
for the architectural aspect, the engineering design, and the construction supervision
and management of the proposed Koronadal City public market (project).6
In a June 27, 1996 order, the Ombudsman directed the petitioner, among others, to
submit his counter-affidavit. On October 23, 1996, after moving for an extension, the
petitioner filed his counter-affidavit.7 In its July 29, 1999 resolution, the Ombudsman
found probable cause against the petitioner and some private individuals for violation
of R.A. No. 3019 and against the petitioner alone for Falsification of Public Document
under Article 171, par. 4 of the Revised Penal Code.8
On March 1, 2000, the Ombudsman filed the corresponding informations with the
Sandiganbayan.9 The information for violation of Section 3(e) of R.A. No. 3019 reads:
That on 10 January 1995 or sometime prior or subsequent thereto, in the Municipality
of Koronadal, South Cotabato, Philippines, and within the jurisdiction of this
Honorable Court, the [petitioner], a high ranking public officer in his capacity as
former Municipal Mayor of Koronadal, South Cotabato, and as such while in the
performance of his official functions, committing the offense in relation to his
office, taking advantage of his official position, conspiring and confederating with the
private [individuals] xxx acting with evident bad faith and manifest partiality, did then
and there willfully, unlawfully and criminally give unwarranted benefits and
advantages to said [accused], by inviting them to participate in the prequalification of
consultants to provide the Detailed Architectural & Engineering Design and
Construction Supervision and Management of the proposed Koronadal Public Market,
without causing the publication of said invitation in a newspaper of general circulation,
thereby excluding other consultants from participating in said
prequalification.10 (Emphases and underscoring added)
On motions separately filed by two of the petitioner’s co-accused,11 the
Sandiganbayan ordered the Office of the Special Prosecutor (OSP) to conduct a
reinvestigation. On August 21, 2000, the petitioner, through counsel, followed suit and
orally moved for a reinvestigation, which the Sandiganbayan likewise granted. The
Sandiganbayan gave the petitioner ten (10) days within which to file his counter-
affidavit with the OSP.12
Instead of submitting his counter-affidavit, the petitioner asked13 the Sandiganbayan
for a thirty-day extension to submit his counter-affidavit. Shortly before the expiry of
the extension requested, the petitioner asked14 the OSP for an additional thirty-day
period to file his counter-affidavit. Despite the two extensions asked and granted, the
petitioner asked the OSP anew for a twenty-day extension period.15
Despite the extension period asked and given, the petitioner failed to file his counter-
affidavit, prompting Prosecutor Norberto B. Ruiz to declare that the petitioner had
waived his right to submit countervailing evidence (April 25, 2001 resolution). On July
31, 2001, then Ombudsman Aniano Desierto approved the resolution.16
On August 7, 2001, Prosecutor Ruiz asked the Sandiganbayan for the arraignment
and trial of the petitioner and of the other accused private individuals.17
On August 6, 2002, after several extensions sought and granted, the petitioner filed a
Motion to Quash and/or Reinvestigation for the criminal cases against him. On
February 18, 2003, the Sandiganbayan denied the petitioner’s motion because of the
pending OSP reinvestigation – this, despite the OSP’s earlier termination of the
reinvestigation for the petitioner’s continuous failure to submit his counter-
affidavit.18 The petitioner did not question the denial of his motion.
On November 3, 2004, the petitioner was arraigned; he pleaded not guilty in both
criminal cases.19
On April 28, 2005, the OSP filed a Motion to Suspend [the petitioner] Pendente Lite.
On June 27, 2005, the petitioner filed his "Vigorous Opposition" based on the
"obvious and fatal defect of the [i]nformation" in failing to allege that the giving of
unwarranted benefits and advantages was done through manifest partiality, evident
bad faith or gross inexcusable negligence.20
On January 25, 2006, the Sandiganbayan promulgated the assailed
resolution21 suspending the petitioner pendente lite –
WHEREFORE, PREMISES CONSIDERED, the Prosecution’s Motion is GRANTED.
As prayed for, the Court hereby orders the suspension of [the petitioner] from his
position as City Mayor, Koronadal City, South Cotabato, and from any other public
position he now holds. His suspension shall be for a period of ninety (90) days only.22
On February 2, 2006, the petitioner moved for reconsideration of his suspension
order and demanded for a pre-suspension hearing.23 The Sandiganbayan denied his
motion,24 prompting him to file this certiorari petition to challenge the validity of his
suspension order.
THE PETITION
The petitioner claims that the Sandiganbayan gravely abused its discretion in ordering
his suspension despite the failure of the information to allege that the giving of
unwarranted benefits and advantages by the petitioner was made through "manifest
partiality, evident bad faith or gross inexcusable negligence." He alleges that the
phrases "evident bad faith" and "manifest partiality" actually refers not to him, but to
his co-accused,25 rendering the information fatally defective.
The petitioner bewails the lack of hearing before the issuance of his suspension
order. Citing Luciano, et al. v. Hon. Mariano, etc., et al.,26 he claims that "[n]owhere in
the records of the [case] can [one] see any order or resolution requiring the
[p]etitioner to show cause at a specific date of hearing why he should not be ordered
suspended."27 For the petitioner, the requirement of a pre-suspension hearing can
only be satisfied if the Sandiganbayan ordered an actual hearing to settle the "defect"
in the information.
THE OSP’S COMMENT
The OSP argues for the sufficiency of the information since all the elements of the
offense under Section 3(b) of R.A. No. 3019 are specifically pleaded by way of
ultimate facts. These elements are:
1. The petitioner was the Municipal Mayor of Koronadal, South Cotabato at
the time material to the acts complained of;
2. The petitioner acted with manifest partiality and evident bad faith when he
invited only his co-accused private individuals to participate in the
prequalification of consultants for the project instead of publishing it in a
newspaper of general circulation; and
3. The petitioner’s actions, performed in relation to his office, gave
unwarranted benefits and advantages to his co-accused.28
The OSP faults the petitioner for his attempt to mislead the Court on the sufficiency of
the allegations in the information, by conveniently failing to cite the phrase "acting
with evident bad faith and manifest partiality" when the petitioner quoted the
"relevant" portions of the information in his petition.
Citing Juan v. People,29 the OSP argues that while no actual pre-suspension hearing
was conducted, the events preceding the issuance of the suspension order already
satisfied the purpose of conducting a pre-suspension hearing – i.e., basically, to
determine the validity of the information. Here, the petitioner was afforded his right to
preliminary investigation both by the Ombudsman and by the OSP (when the
petitioner moved for a reinvestigation with the Sandiganbayan); the acts for which the
petitioner was charged constitute a violation of R.A. No. 3019 and Title VII, Book II of
the Revised Penal Code; and the petitioner already moved to quash the information,
although unsuccessfully, after he had been declared to have waived his right to
submit countervailing evidence in the reinvestigation by the OSP.30
ISSUES
There are only two issues presented for our resolution:
1. Whether the information, charging the petitioner with violation of Section
3(e) of R.A. No. 3019, is valid; and
2. If it is valid, whether the absence of an actual pre-suspension hearing
renders invalid the suspension order against the petitioner.
THE COURT’S RULING
We dismiss the petition for failure to establish any grave abuse of discretion in the
issuance of the assailed resolutions.
The information for violation of R.A. No. 3019 is valid
In deference to the constitutional right of an accused to be informed of the nature and
the cause of the accusation against him,31 Section 6, Rule 110 of the Revised Rules of
Criminal Procedure (Rules)32 requires, inter alia, that the information shall state the
designation of the offense given by the statute and the acts or omissions imputed
which constitute the offense charged. Additionally, the Rules requires that these acts
or omissions and its attendant circumstances "must be stated in ordinary and concise
language" and "in terms sufficient to enable a person of common understanding to
know what offense is being charged x x x and for the court to pronounce judgment."33
The test of the information’s sufficiency is whether the crime is described in intelligible
terms and with such particularity with reasonable certainty so that the accused is duly
informed of the offense charged. In particular, whether an information validly charges
an offense depends on whether the material facts alleged in the complaint or
information shall establish the essential elements of the offense charged as defined in
the law. The raison d’etre of the requirement in the Rules is to enable the accused to
suitably prepare his defense.34
In arguing against the validity of the information, the petitioner appears to go beyond
the standard of a "person of common understanding" in appreciating the import of the
phrase "acting with evident bad faith and manifest partiality." A reading of the
information clearly reveals that the phrase "acting with evident bad faith and manifest
partiality" was merely a continuation of the prior allegation of the acts of the petitioner,
and that he ultimately acted with evident bad faith and manifest partiality in giving
unwarranted benefits and advantages to his co-accused private individuals. This is
what a plain and non-legalistic reading of the information would yield.
Notably, in his petition, the petitioner would have us believe that this elemental phrase
was actually omitted in the information35 when, in his reaction to the OSP’s comment,
what the petitioner actually disputes is simply the clarity of the phrase’s position, in
relation with the other averments in the information. Given the supposed ambiguity of
the subject being qualified by the phrase "acting with evident bad faith and manifest
partiality," the remedy of the petitioner, if at all, is merely to move for a bill of
particulars and not for the quashal of an information which sufficiently alleges the
elements of the offense charged.36
The pre-suspension order is valid

Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces the principle enshrined in
the Constitution that a public office is a public trust.56 In light of the constitutional
principle underlying the imposition of preventive suspension of a public officer
charged under a valid information and the nature of this suspension, the petitioner’s
demand for a trial-type hearing in the present case would only overwhelmingly
frustrate, rather than promote, the orderly and speedy dispensation of justice.

WHEREFORE, we hereby DISMISS the petition for lack of merit.


IV.3.D.4 G.R. No. 179031 November 14, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
This case involves a father’s detestable act of abusing his daughter through rape by
sexual assault.
Factual Antecedents
Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the
December 29, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
01442 which affirmed with modification the June 30, 2005 Judgment2 of the Regional
Trial Court (RTC) of Quezon City, Branch 94, in Criminal Case No. Q-01-98692. Said
RTC Judgment found appellant guilty beyond reasonable doubt of the crime of rape
committed against his daughter "AAA",3 as described in an Information,4 the relevant
portion of which reads:
That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said
accused, who is the father of private complainant "AAA", did then and there willfully,
unlawfully, and feloniously with force and intimidation commit an act of sexual assault
upon the person of one "AAA", a minor, 7 years of age[,] by then and there inserting
his penis into [the] genital of said complainant, all against her will and consent, which
act debases, degrades, or demeans the intrinsic worth and dignity of said "AAA", as a
human being, in violation of said law.
CONTRARY TO LAW.5
Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.
Version of the Prosecution
On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father
(appellant) brought home for merienda. After eating, "AAA" went to the bedroom to
rest. Thereafter, appellant also entered the room and positioned himself on top of
"AAA", took off her clothes and inserted his penis into her vagina. "AAA" felt intense
pain from her breast down to her vagina and thus told her father that it was painful. At
that point, appellant apologized to his daughter, stood up, and left the room. This
whole incident was witnessed by "AAA’s" brother, "BBB".
The pain persisted until "AAA’s" vagina started to bleed. She thus told her aunt about
it and they proceeded to a hospital for treatment. Her mother was also immediately
informed of her ordeal. Subsequently, "AAA" was taken into the custody of the
Department of Social Welfare and Development.
On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe)
examined "AAA", which examination yielded the following results:
GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent
female child. Breasts are undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and
coaptated with light brown labia minora presenting in between. On separating the
same, disclosed an elastic, fleshy type, hyperemic and intact hymen. Posterior
fourchette is sharp.
CONCLUSION: The subject is in virgin state physically. There are no external signs of
application of any form of physical trauma.6
Version of the Defense
Appellant admitted that he was at home on the day and time of "AAA’s" alleged rape
but denied committing the same. Instead, he claimed that the filing of the rape case
against him was instigated by his wife, whom he confronted about her illicit affair with
a man residing in their community. According to appellant, he could not have
molested "AAA" because he treated her well. In fact, he was the only one sending his
children to school since his wife already neglected them and seldom comes home.
Ruling of the Regional Trial Court
On June 30, 2005, the trial court rendered its Judgment7 finding appellant guilty
beyond reasonable doubt of the crime of rape against "AAA", his daughter of minor
age, as charged in the Information. It ruled that the lack of tenacious resistance on
the part of "AAA" is immaterial considering that appellant’s moral ascendancy and
influence over her substitute for violence and intimidation.8 It also held that his wife
could not have instigated the filing of the rape case since as the mother of "AAA", it
would not be natural for her to use her child as a tool to exact revenge especially if it
will result in her embarrassment and stigma.9 The trial court gave credence to the
testimony of "AAA" and her positive identification of appellant as her rapist, and
rejected the latter’s defense of denial. The dispositive portion of the Judgment reads
as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding the herein
accused, BENJAMIN SORIA Y GOMEZ − GUILTY beyond reasonable doubt of the
crime as charged and sentences him to suffer the supreme penalty of DEATH and to
indemnify the offended party the amount of P75,000.00, to pay moral damages in the
amount of P50,000.00, and the amount of P25,000.00 as exemplary damages to
deter other fathers with perverse proclivities for aberrant sexual behavior for sexually
abusing their own daughters.
SO ORDERED.10
Ruling of the Court of Appeals
In its Decision11 dated December 29, 2006, the CA found partial merit in the appeal.
While the appellate court was convinced that appellant raped "AAA", it nevertheless
noted the prosecution’s failure to present her birth certificate as competent proof of
her minority. Thus, the CA concluded that the crime committed by appellant against
his daughter was only simple rape and accordingly modified the penalty imposed by
the trial court from death to reclusion perpetua and reduced the civil indemnity
awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate
court’s Decision reads as follows:
WHEREFORE, premises considered, the appeal is hereby GRANTED and the June
30, 2005 Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal
Case No. Q-01-98692, is hereby MODIFIED, in that, the penalty imposed is reduced
to reclusion perpetua instead of death and the civil indemnity to be paid by the
offender to the victim is hereby reduced to the amount of P50,000.00 instead of
P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as
amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became
effective on October 15, 2004, this judgment of the Court of Appeals may be
appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the
Court of Appeals.
SO ORDERED.12
Still insisting on his innocence, appellant comes to this Court through this appeal.
Assignment of Errors
Appellant adopts the same assignment of errors he raised before the appellate court,
viz:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED
GUILTY OF THE CRIME OF RAPE DESPITE THE FAILURE OF THE
PROSECUTION TO OVERTHROW THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE X X X.
II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED, THE TRIAL COURT GRAVELY ERRED IN IMPOSING
THE DEATH PENALTY UPON HIM.13
Appellant asserts that he should be acquitted of the crime of rape since there is no
evidence that would establish the fact of sexual intercourse. Aside from the
prosecution’s failure to prove penile contact, "AAA’s" testimony was also wanting in
details as to how he took off her underwear or whether she saw his penis during the
incident despite leading questions propounded on the matter by the prosecution. The
medical report even revealed that "AAA’s" hymen remained intact and that there were
no notable lacerations or external physical injuries thereon. Appellant therefore
surmises that his wife merely instigated "AAA" to file this baseless rape case against
him in retaliation for his act of confronting her about her illicit relationship with a
neighbor.
Our Ruling
The appeal lacks merit.
The crime of rape under Article 266-A of
the Revised Penal Code (RPC).
Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the
crime of rape as a crime against persons. It also amended Article 335 of the RPC and
incorporated therein Article 266-A which reads:
Article 266-A. Rape, When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise
unconscious,
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned
above be present;
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person’s mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
Thus, rape can now be committed either through sexual intercourse or by sexual
assault. Rape under paragraph 1 of the above-cited article is referred to as rape
through sexual intercourse. Carnal knowledge is the central element and it must be
proven beyond reasonable doubt.14 It is commonly denominated as "organ rape" or
"penile rape"15 and must be attended by any of the circumstances enumerated in
subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape under paragraph 2 of Article 266-A is commonly known as
rape by sexual assault. The perpetrator, under any of the attendant circumstances
mentioned in paragraph 1, commits this kind of rape by inserting his penis into
another person’s mouth or anal orifice, or any instrument or object into the genital or
anal orifice of another person. It is also called "instrument or object rape", also
"gender-free rape".16
The Information did not specify whether
the crime of rape was committed through
sexual intercourse or by sexual assault.
The Information in this case did not specify with certainty whether appellant
committed the rape through sexual intercourse under paragraph 1 of Article 266-A, or
rape by sexual assault as described in paragraph 2 thereof. The Information stated
that appellant inserted his penis into the genital of "AAA," which constituted rape by
sexual intercourse under the first paragraph of Article 266-A. At the same time, the
Information alleged that appellant used force and intimidation to commit an act of
sexual assault. While these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the same do not invalidate the
Information or result in the automatic dismissal of the case. "[W]here an offense may
be committed in any of the different modes and the offense is alleged to have been
committed in two or more modes specified, the indictment is sufficient,
notwithstanding the fact that the different means of committing the same offense are
prohibited by separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of only
one offense and the information is not thereby rendered defective on the ground of
multifariousness."17 Any objection from the appellant with respect to the Information is
held to have been waived failing any effort to oppose the same before trial.18 He
therefore can be convicted of rape through sexual intercourse or rape by sexual
assault, depending on the evidence adduced during trial.
The trial court’s conviction of the appellant was for rape through sexual intercourse
under paragraph 1(a) of Article 266-A. The CA sustained the trial court’s finding that
appellant had sexual intercourse with "AAA" against her will.
In determining whether appellant is indeed guilty of rape through sexual intercourse
under paragraph 1 of Article 266-A, it is essential to establish beyond reasonable
doubt that he had carnal knowledge of "AAA". There must be proof that his penis
touched the labia of "AAA" or slid into her female organ, and not merely stroked the
external surface thereof, to ensure his conviction of rape by sexual
intercourse.22 1ªvvph!1
We reviewed the testimony of "AAA" and found nothing therein that would show that
she was raped through sexual intercourse. While "AAA" categorically stated that she
felt something inserted into her vagina, her testimony was sorely lacking in important
details that would convince us with certainty that it was indeed the penis of appellant
that was placed into her vagina.
It is evident from the testimony of "AAA" that she was unsure whether it was indeed
appellant’s penis which touched her labia and entered her organ since she was
pinned down by the latter’s weight, her father having positioned himself on top of her
while she was lying on her back. "AAA" stated that she only knew that it was the
"bird" of her father which was inserted into her vagina after being told by her brother
"BBB". Clearly, "AAA" has no personal knowledge that it was appellant’s penis which
touched her labia and inserted into her vagina. Hence, it would be erroneous to
conclude that there was penile contact based solely on the declaration of "AAA’s"
brother, "BBB", which declaration was hearsay due to "BBB’s" failure to testify. Based
on the foregoing, it was an error on the part of the RTC and the CA to conclude that
appellant raped "AAA" through sexual intercourse.
Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that
appellant inserted an object into "AAA’s" female organ. "AAA" categorically testified
that appellant inserted something into her vagina. She claimed to have suffered
tremendous pain during the insertion. The insertion even caused her vagina to bleed
necessitating her examination at the hospital. Both the trial court and the CA found
"AAA’s" testimony to be credible. We find no compelling reason not to lend credence
to the same.
This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which
provides that rape by sexual assault is committed "by any person who, under any of
the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual
assault by inserting x x x any instrument or object, into the genital or anal orifice of
another person."
According to Dr. Supe, it is possible that "AAA’s" hyperemic hymen may be the result
of the insertion of a finger or object. While Dr. Supe said that the injury could also be
attributed to scratching, "AAA’s" testimony is bereft of any showing that she scratched
her genital organ thus causing the reddening. Appellant would also want to make it
appear that the injury of "AAA" was the result of friction from playing or riding a
bicycle since the doctor testified that this was also possible. However, there is
likewise no evidence that friction was applied on "AAA’s" female organ when she
played hide and seek with her playmates or that she actually rode a bicycle. On the
other hand, "AAA" was categorical in stating that in the afternoon of February 26,
2000, appellant removed her clothes, laid on top of her, and that she felt something
being inserted into her vagina and that thereafter she experienced pain in her
genitals. The foregoing thus proved that appellant inserted an object into "AAA’s"
vagina against her will and without consent. Simply put, appellant committed the
crime of rape by sexual assault.
WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 01442 is AFFIRMED with MODIFICATIONS. Accused-appellant
Benjamin Soria y Gomez is found guilty beyond reasonable doubt of the crime of rape
by sexual assault and is sentenced to suffer the penalty of twelve (12) years of prison
mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. He is
also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity, P30,000.00
as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an
interest on all damages awarded at the legal rate of 6% per annum from the date of
finality of this judgment until fully paid.
IV.3.E.1 PEOPLE VS. JUGUETA
FACTS:
Ireneo Jugueta y Flores (appellant) was accused, together with Gilbert
Estores and Roger San Miguel, of using firearms to shoot on the house occupied by
the family of Norberto Divina. Two of the children of Norberto, namely, Mary Grace
(13 years old) and Claudine (3 1/2 years old), died from gunshot wounds. Norberto
Divina, his wife Maricel Divina and children Elizabeth and Judy Ann Divina, both
minors, were not hit.
Appellant Jugueta was charged with the Double Murder of Mary Grace
Divina and Claudine Divina, both minors. The crime was alleged to have been
committed with treachery, evident premeditation, in the dwelling of the offended party,
and the accused taking advantage of nighttime to facilitate the commission of the
offense. He was also charged, together with Gilbert Estores and Roger San Miguel,
with Multiple Attempted Murder, for the shooting attack on the other family members
of Norberto Divina, who fortunately, were not hit.
ISSUE:
1. Whether appellant and other accused are co-conspirators.
2. Whether complex crime under Article 48 of RPC exists in this case.
3. Whether the aggravating circumstance of dwelling must be appreciated.
aggravates a felony where the crime is committed in the dwelling of the offended
party provided that the latter has not given provocation therefor. The testimony of
Norberto established the fact that the group of appellant violated the victims' home by
destroying the same and attacking his entire family therein, without provocation on
the part of the latter. Hence, the trial court should have appreciated dwelling as an
ordinary aggravating circumstance.
WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court of
Appeals dated January 30, 2012 in CA-G.R. CR HC No. 03252 is AFFIRMED with
the following MODIFICATIONS:
(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of two (2) counts of the crime of murder
defined under Article 248 of the Revised Penal Code, attended by the aggravating
circumstance of dwelling, and hereby sentences him to suffer two (2) terms
of reclusion perpetua without eligibility for parole under R.A. 9346. He
is ORDERED to PAY the heirs of Mary Grace Divina and Claudine Divina the
following amounts for each of the two victims: (a) ₱100,000.00 as civil indemnity; (b)
₱100,000.00 as moral damages; (c) ₱100,000.00 as exemplary damages; and (d)
₱50,000.00 as temperate damages.

RULING: (2) In Criminal Case No. 7702-G, the Court finds accused-appellant Ireneo
1. Yes. Appellant and the two other malefactors are equally responsible for the Jugueta GUILTY beyond reasonable doubt of four (4) counts of the crime of
death of Norberto's daughters because they clearly conspired to kill Norberto's family. attempted murder defined and penalized under Article 248 in relation to Article 51 of
Conspiracy exists when two or more persons come to an agreement regarding the the Revised Penal Code, attended by the aggravating circumstance of dwelling
commission of a crime and decide to commit it. Proof of a prior meeting between the
perpetrators to discuss the commission of the crime is not necessary as long as their
concerted acts reveal a common design and unity of purpose. In such case, the act of
one is the act of all. Here, the three men undoubtedly acted in concert as they went to
the house of Norberto together, each with his own firearm. It is, therefore, no longer
necessary to identify and prove that it is the bullet particularly fired from appellant's
firearm that killed the children.

2. A different rule governs where separate and distinct acts result in a number
killed. Deeply rooted is the doctrine that when various victims expire from separate
shot, such acts constitute separate and distinct crimes.
Appellant and the two others, in firing successive and indiscriminate shots at
the family of Norberto from their respective firearms, intended to kill not only Norberto,
but his entire family. When several gunmen, as in this case, indiscriminately fire a
series of shots at a group of people, it shows their intention to kill several individuals.
Hence, they are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held in People v.
Nelmida, " each act by each gunman pulling the trigger of their respective firearms,
aiming each particular moment at different persons constitute distinct and individual
acts which cannot give rise to a complex crime.”

3. Yes. The Court notes that both the trial court and the CA failed to take into
account dwelling as an ordinary, aggravating circumstance, despite the fact that the
Informations contain sufficient allegations to that effect.
It has been held that dwelling is aggravating because of the sanctity of
privacy which the law accords to human abode. He who goes to another's house to
hurt him or do him wrong is more guilty than he who offends him elsewhere." Dwelling
IV.3.E.2 Ivler vs. San Pedro
G.R. No. 172716November 17, 2010
FACTS:
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig City (MTC), with
two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries
for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and
(2) Reckless Imprudence Resulting in Homicide and Damage to Property for the
death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses
Ponce’s vehicle.
Petitioner posted bail for his temporary release in both cases. On 2004,
petitioner pleaded guilty to the charge on the first delict and was meted out the
penalty of public censure. Invoking this conviction, petitioner moved to quash the
Information for the second delict for placing him in jeopardy of second punishment for
the same offense of reckless imprudence.
The MTC refused quashal, finding no identity of offenses in the two cases.
The petitioner elevated the matter to the Regional Trial Court of Pasig City
(RTC), in a petition for certiorari while Ivler sought from the MTC the suspension of
proceedings in criminal case, including the arraignment his arraignment as a
prejudicial question.
Without acting on petitioner’s motion, the MTC proceeded with the
arraignment and, because of petitioner’s absence, cancelled his bail and ordered his
arrest.
Seven days later, the MTC issued a resolution denying petitioner’s motion to
suspend proceedings and postponing his arraignment until after his arrest. Petitioner
sought reconsideration but as of the filing of this petition, the motion remained
unresolved.
ISSUES:
1. Whether petitioner forfeited his standing to seek relief from his petition for
certiorari when the MTC ordered his arrest following his non-appearance at the
arraignment in Reckless Imprudence Resulting in Slight Physical Injuries for injuries
sustained by respondent; and
2. Whether petitioner’s constitutional right under the Double Jeopardy
Clause bars further proceedings in Reckless Imprudence Resulting in Homicide and
Damage to Property for the death of respondent Ponce’s husband.
RULING:
The accused negative constitutional right not to be "twice put in jeopardy of
punishment for the same offense" protects him from, among others, post-conviction
prosecution for the same offense, with the prior verdict rendered by a court of
competent jurisdiction upon a valid information.
Petitioner adopts the affirmative view, submitting that the two cases concern
the same offense of reckless imprudence. The MTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate
offense from Reckless Imprudence Resulting in Homicide and Damage to Property
"as the [latter] requires proof of an additional fact which the other does not."
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as amended,
namely, Article 365 defining and penalizing quasi-offenses.
The provisions contained in this article shall not be applicable. Indeed, the
notion that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is nothing
new.
The doctrine that reckless imprudence under Article 365 is a single quasi-
offense by itself and not merely a means to commit other crimes such that conviction
or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded this Court’s unbroken
chain of jurisprudence on double jeopardy as applied to Article 365.
These cases uniformly barred the second prosecutions as constitutionally
impermissible under the Double Jeopardy Clause.
Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the Double Jeopardy
Clause. True, they are thereby denied the beneficent effect of the favorable
sentencing formula under Article 48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for quasi-crime effects qualifying as
"light offenses" (or, as here, for the more serious consequence prosecuted belatedly).
If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the
sentencing formula of Article 48 so that only the most severe penalty shall be
imposed under a single prosecution of all resulting acts, whether penalized as grave,
less grave or light offenses. This will still keep intact the distinct concept of quasi-
offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting
crimes occupying a lower rung of culpability, should cushion the effect of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February
2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We
DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y
Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the
ground of double jeopardy.
Tests to determine double jeopardy:
1. Whether or not the second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
2.Whether the evidence which proves one would prove the other that is to say
whether the facts alleged in the first if proven, would have been sufficient to support
the second charge and vice versa; or whether the crime is an ingredient of the other

IV.3.F.1 MIRIAM DEFENSOR SANTIAGO, petitioner, vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division)
and PEOPLE OF THE PHILIPPINES, respondents.
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set
aside: (a) the Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice
Francis Garchitorena of the Sandiganbayan, disqualified from acting in said criminal
case; and (b) the Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against
petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the
Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed by
her favoring "unqualified" aliens with the benefits of the Alien Legalization Program
(Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition,
docketed as G.R. No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to
enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 on the
ground that said case was intended solely to harass her as she was then a
presidential candidate. She alleged that this was in violation of Section 10, Article IX-
C of the Constitution which provides that "(b)ona fide candidates for any public office
shall be free from any form of harassment and discrimination." The petition was
dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice
Garchitorena, which motion was set for hearing on November 13, 1992 at 8:00 A.M.
(Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice
Garchitorena is a member, set the criminal case for arraignment on November 13,
1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the grounds that
there was a pending motion for inhibition, and that petitioner intended to file a motion
for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer
the arraignment (Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-
48). The motion stated that while the information alleged that petitioner had approved
the application or legalization of "aliens" and gave them indirect benefits and
advantages it lacked a list of the favored aliens. According to petitioner, unless she
was furnished with the names and identities of the aliens, she could not properly
plead and prepare for trial.
On November 12, 1992 and upon motion of petitioner in G.R.
No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the
Sandiganbayan (First Division) to reset the arraignment to a later date and to dispose
of the two incidents pending before it (Re: disqualification of Presiding Justice
Garchitorena and the motion for the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars, the
prosecution stated categorically that they would file only one amended information
against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp.
61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution
dated March 11, 1993, denying the motion for his disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution,
admitting the 32 Amended Informations and ordering petitioner to post the
corresponding bail bonds within ten days from notice (Rollo, pp. 165-185). Petitioner's
arraignment on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
…
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the petition that the
public prosecutors filed 32 Amended Informations against petitioner, after manifesting
to the Sandiganbayan that they would only file one amended information (Rollo, pp.
6-61). We also noted that petitioner questioned in her opposition to the motion to
admit the 32 Amended Informations, the splitting of the original information (Rollo, pp.
127-129). In the furtherance of justice, we therefore proceed to inquire deeper into the
validity of said plant, which petitioner failed to pursue with vigor in her petition.
We find that, technically, there was only one crime that was committed in petitioner's
case, and hence, there should only be one information to be file against her.
The 32 Amended Informations charge what is known as delito continuado or
"continued crime" and sometimes referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in
mind that the concept of delito continuado has been a vexing problem in Criminal Law
— difficult as it is to define and more difficult to apply.
According to Cuello Calon, for delito continuado to exist there should be a plurality of
acts performed during a period of time; unity of penal provision violated; and unity of
criminal intent or purpose, which means that two or more violations of the same penal
provisions are united in one and same instant or resolution leading to the perpetration
of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of several crimes
but in reality there is only one crime in the mind of the perpetrator (Commentaries on
the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine Criminal
Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal
intent or resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only one offense
the following cases:
(1) The theft of 13 cows belonging to two different owners
committed by the accused at the same time and at the same period
of time (People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners from
the same coop and at the same period of time (People v. Jaranillo,
55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on the same
occasion (People v. De Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer
every time he collects veteran's benefits on behalf of a client, who
agreed that the attorney's fees shall be paid out of said benefits
(People v. Sabbun, 10 SCRA 156 [1964] ). The collection of the
legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under
the same criminal impulse (People v. Lawas, 97 Phil. 975 [1955] ).
On the other hand, we declined to apply the concept to the following cases:
(1) Two estafa cases, one of which was committed during the
period from January 19 to December 1955 and the other from
January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961]
). The said acts were committed on two different occasions.
(2) Several malversations committed in May, June and July, 1936,
and falsifications to conceal said offenses committed in August and
October 1936. The malversations and falsifications "were not the
result of only one purpose or of only one resolution to embezzle
and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).
(3) Two estafa cases, one committed in December 1963 involving
the failure of the collector to turn over the installments for a radio
and the other in June 1964 involving the pocketing of the
installments for a sewing machine (People v. Ledesma, 73 SCRA
77 [1976] ).
(4) 75 estafa cases committed by the conversion by the agent of
collections from customers of the employer made on different dates
(Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal Code, has
been applied to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered
following up claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964]
).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to
special laws, unless the latter provide the contrary. Hence, legal principles developed
from the Penal Code may be applied in a supplementary capacity to crimes punished
under special laws.
The question of whether a series of criminal acts over a period of time creates a
single offense or separate offenses has troubled also American Criminal Law and
perplexed American courts as shown by the several theories that have evolved in
theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the
taking of several things, whether belonging to the same or different owners, at the
same time and place constitutes but one larceny. Many courts have abandoned the
"separate larceny doctrine," under which there is a distinct larceny as to the property
of each victim. Also abandoned was the doctrine that the government has the
discretion to prosecute the accused or one offense or for as many distinct offenses as
there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the commission of the
different criminal acts as but one continuous act involving the same "transaction" or
as done on the same "occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473;
People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW
539).
An American court held that a contrary rule would violate the constitutional guarantee
against putting a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d
1179). Another court observed that the doctrine is a humane rule, since if a separate
charge could be filed for each act, the accused may be sentenced to the penitentiary
for the rest of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged petitioner with performing a temporary restraining order issued by this Court on March 25, 1993 is LIFTED insofar
single criminal act — that of her approving the application for legalization of aliens not as to the disqualification of Presiding Justice Francis Garchitorena is concerned.
qualified under the law to enjoy such privilege.

The original information also averred that the criminal act : (i) committed by petitioner
was in violation of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government,
and (iii) was done on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original

information, except that instead of the word "aliens" in the original information each
amended information states the name of the individual whose stay was legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested
that they would file only one amended information embodying the legalization of stay
of the 32 aliens. As stated in the Order dated November 12, 1992 of the
Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has

conceded categorically that the accusation against Miriam Defensor
Santiago consists of one violation of the law represented by the
approval of the applications of 32 foreign nationals for availment
(sic) of the Alien Legalization Program. In this respect, and
responding directly to the concerns of the accused through counsel,
the prosecution is categorical that there will not be 32 accusations
but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same
period of time, i.e., on or about October 17, 1988. The strong probability even exists
that the approval of the application or the legalization of the stay of the 32 aliens was
done by a single stroke of the pen, as when the approval was embodied in the same
document.

Likewise, the public prosecutors manifested at the hearing the motion for a bill of
particulars that the Government suffered a single harm or injury. The Sandiganbayan
in its Order dated November 13, 1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage

and prejudice to the government is concerned, the same is
represented not only by the very fact of the violation of the law itself
but because of the adverse effect on the stability and security of the
country in granting citizenship to those not qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of
the Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11,
1993 in Criminal Case No. 16698 is MODIFIED in the sense that the Office of the
Special Prosecutor of the Office of the Ombudsman is directed to consolidate the 32
Amended Informations (Criminal Cases Nos. 18371 to 18402) into one information
charging only one offense under the original case number, i.e., No. 16698. The

IV.3.F.2 G.R. No. L-46428 April 13, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IRINEO TUMLOS, defendant-appellant.
Marcelo Nubla for appellant.
Office of the Solicitor-General Ozaeta and Acting Assistant Attorney Kahn for
appellee.
VILLA-REAL, J.:
The defendant Irineo Tumlos appeals to this court from the judgment of the Court of
First Instance of Iloilo finding him guilty of the crime of theft of large cattle defined and
punished in article 310, in relation to article 309, of the Revised Penal Code, and
sentencing him to suffer the indeterminate penalty of from two months and one day
of arresto mayor to two years, four months and one day of prision correccional, with
the accessories prescribed by law and costs, by virtue of an information reading as
follows:
The undersigned acting provincial fiscal accuses Irineo Tumlos of the crime
of qualified theft committed as follows:
That on or about November 21, 1937, in the municipality of Sara, Province of
Iloilo, Philippines, and within the jurisdiction of this court, said defendant,
wilfully and without using force upon things or violence or intimidation
against person, took, with intent to gain and without the consent of their
owner, five cows valued at P39 and belonging to Ambrosio Pecasis.
An act punishable by law.
Iloilo, July 11, 1938.
In support of his appeal the appellant assigns as the only error allegedly committed
by the lower court in the aforesaid judgment its failure to sustain the defense of
"autrefois convict" or double jeopardy, interposed by said defendant.
On or about November 21, 1937, eight cows belonging to Maximiano Sobrevega and
five belonging to his son-in-law, Ambrosio Pecasis, then grazing together in the barrio
of Libong-cogon, municipality of Sara, Province of Iloilo, were taken by the herein
defendant without the knowledge or consent of their respective owners. The deputy
fiscal of Iloilo filed on July 11, 1938, an information against the said defendant for the
offense of theft of the eight cows belonging to Maximiano Sobrevega, which resulted
in his being sentenced on July 15, 1938, to an indeterminate penalty of from one year,
eight months and twenty-one days to five years, five months and eleven days
of prision correccional, with the accessories prescribed by law and costs. In the
information filed in the present case the same defendant is charged with the theft of
five cows belonging to Ambrosio Pecasis, committed on November 21, 1937, the date
of the commission of the theft to the eight cows of Maximiano Sobrevega charged to
the previous information.
The question to be decided in the present appeal is whether or not the conviction of
the accused for the theft of the eight cows belonging to Maximiano Sobrevega
constitutes a bar to his conviction for the theft of the five cows belonging to Ambrosio
Pecasis, which were grazing together with the aforesaid eight cows belonging to
Maximiano Sobrevega in the same place from which they were stolen at the same
time, under the legal procedural principle of "autrefois convict" or double jeopardy.
The theft of the thirteen cows committed by the defendant took place at the same
time and in the same place; consequently, he performed but one act. The fact that
eight of said cows pertained to one owner and five to another does not make him
criminally liable for two distinct offenses, for the reason that in such case the act must
be divided into two, which act is not susceptible of division.
The intention was likewise one, namely, to take for the purpose of appropriating or
selling the thirteen cows which he found grazing in the same place. As neither the
intention nor the criminal act is susceptible of division, the offense arising from the
concurrence of its two constituent elements cannot be divided, it being immaterial that
the subject matter of the offense is singular or plural, because whether said subject
matter be one or several animate or inanimate objects, it is but one.
Therefore, as the five cows alleged to be stolen by Irineo Tumlos were integral parts
of the thirteen cows which were the subject matter of theft, and as he had already
been tried for and convicted of the theft of the other five.
Wherefore, as he had already been put in jeopardy of being convicted of the theft of
the five cows in question when he was tried for and convicted of the theft of the eight
which together with the five from an integral part of the thirteen which were the
subject matter of the offense, the conviction of the herein defendant Irineo Tumlos for
the said five cows in the present case would be the second, in violation of his
constitutional right not to be punished twice for the same offense; hence, he is
acquitted of the charge, which is dismissed, with costs de oficio. So ordered.

IV.3.g.2 G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A.
Carreon for appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of appeal from, the judgment
rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio
Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the
crime of murder and multiple frustrated murder, as charged in the information, and is
sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera
(or Barrela) in the sum of P2,000 and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges contained
in the information.
Then the case was tried in one of the branches of the Court of First Instance of
Manila presided over by the honorable Buenaventura Ocampo who, after the
submission of the evidence of the prosecution and the defense, rendered judgment
as above stated.
In this connection it should be stated that, at the beginning of the trial and before
arraignment, counsel de oficio for the accused moved that the mental condition of
Guillen be examined. The court, notwithstanding that it had found out from the
answers of the accused to questions propounded to him in order to test the
soundness of his mind, that he was not suffering from any mental derangement,
ordered that Julio Guillen be confined for Hospital, there to be examined by medical
experts who should report their findings accordingly. This was done, and, according to
the report of the board of medical experts, presided over by Dr. Fernandez of the
National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L),
under the heading "Formulation and Diagnosis," at pages 13 and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since admission.
There was not a single moment during his whole 24 hours daily, that he was
not under observation.
The motive behind the commission of the crime is stated above. The veracity
of this motivation was determined in the Narcosynthesis. That the narco-
synthesis was successful was checked up the day after the test. The narco-
synthesis proved not only reveal any conflict or complex that may explain a
delusional or hallucinatory motive behind the act.
Our observation and examination failed to elicit any sign or symptom of
insanity in Mr. Julio C. Guillen. He was found to be intelligent, always able to
differentiate right from wrong, fully aware of the nature of the crime he
committed and is equally decided to suffer for it in any manner or form.
His version of the circumstances of the crime, his conduct and conversation
relative thereto, the motives, temptations and provocations that preceded the
act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once
arriving at a decision he executes, irrespective of consequences and as in
this case, the commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his
commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar Factory
he engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the
women cigar makers, and felt it his duty to defend them. One time he ran
after a policeman with a knife in hand after being provoked to a fight several
times. He even challenged Congressman Nueno to a fight sometime before
when Mr. Nueno was running for a seat in the Municipal Board of the City of
Manila, after hearing him deliver one of his apparently outspoken speeches.
All these mean a defect in his personality characterized by a weakness of
censorship especially in relation to rationalization about the consequences of
his acts.
In view of the above findings it is our considered opinion that Julio C. Guillen
is not insane but is an individual with a personality defect which in Psychiatry
is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and notwithstanding the
contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion
on the matter, the court ruled that Guillen, not being insane, could be tired, as he was
tired, for the offenses he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel for the
accused, the Solicitor General and their respective memoranda, we find that there is
no disagreement between the prosecution and the defense, as to the essential facts
which caused the filing of the present criminal case against this accused. Those facts
may be stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed
with any particular political group, has voted for the defeated candidate in the
presidential elections held in 1946. Manuel A. Roxas, the successful candidate,
assumed the office of President of the Commonwealth and subsequently President of
the President of the Philippine Republic. According to Guillen, he became
disappointed in President Roxas for his alleged failure to redeem the pledges and
fulfill the promises made by him during the presidential election campaign; and his
disappointment was aggravated when, according to him, President Roxas, instead of
looking after the interest of his country, sponsored and campaigned for the approval
of the so-called "parity" measure. Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of assassinating
President Roxas, the opportunity presented itself on the night of March 10, 1947,
when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo,
Manila attended by a big crowd, President Roxas, accompanied by his wife and
daughter and surrounded by a number of ladies and gentlemen prominent in
government and politics, stood on a platform erected for that purpose and delivered
his speech expounding and trying to convince his thousand of listeners of the
advantages to be gained by the Philippines, should the constitutional amendment
granting American citizens the same rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his purpose, but
having lost said firearm, which was duly licensed, he thought of two hand grenades
which were given him by an American soldier in the early days of the liberation of
Manila in exchange for two bottles of whisky. He had likewise been weighing the
chances of killing President Roxas, either by going to Malacañan, or following his
intended victim in the latter's trips to provinces, for instance, to Tayabas (now
Quezon) where the President was scheduled to speak, but having encountered many
difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de
Miranda on the night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he
requested to prepare for him a document (Exhibit B), in accordance with their
pervious understanding in the preceding afternoon, when they met at the premises of
the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On
account of its materially in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-2) from its original
Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I planned it,
and I carried it out all by myself alone. It took me many days and nights
pondering over this act, talking to my own conscience, to my God, until I
reached my conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I expected
to lives to spare, I would not have hesitated either ton sacrifice it for the sake
of a principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of their
husbands, of their sons, and there are millions now suffering. Their deeds
bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be
blamed for all this: he had deceived the people, he had astounded them with
no other purpose than to entice them; he even went to the extent of risking
the heritage of our future generations. For these reasons he should not
continue any longer. His life would mean nothing as compared with the
welfare of eighteen million souls. And why should I not give up my life too if
only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am willing to
bear up the consequences of my act. I t matters not if others will curse me.
Time and history will show, I am sure, that I have only displayed a high
degree of patriotism in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of
Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of
March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he
was in a hurry for that meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand grenades
concealed in a paper bag which also contained peanuts. He buried one of the hand
grenades (Exhibit D), in a plant pot located close to the platform, and when he
decided to carry out his evil purpose he stood on the chair on which he had been
sitting and, from a distance of about seven meters, he hurled the grenade at the
President when the latter had just closed his speech, was being congratulated by
Ambassador Romulo and was about to leave the platform.
General Castañeda, who was on the platform, saw the smoking, hissing, grenade and
without losing his presence of mind, kicked it away from the platform, along the
stairway, and towards an open space where the general thought the grenade was
likely to do the least harm; and, covering the President with his body, shouted to the
crowd that everybody should lie down. The grenade fell to the ground and exploded in
the middle of a group of persons who were standing close to the platform. Confusion
ensued, and the crowd dispersed in a panic. It was found that the fragments of the
grenade had seriously injured Simeon Varela (or Barrela ) — who died on the
following day as the result of mortal wounds caused by the fragments of the grenade
(Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department about two hours after the
occurrence. It appears that one Angel Garcia, who was one spectators at that
meeting, saw how a person who was standing next to him hurled an object at the
platform and, after the explosion, ran away towards a barber shop located near the
platform at Plaza de Miranda. Suspecting that person was the thrower of the object
that exploded, Garcia went after him and had almost succeeded in holding him, but
Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia
pursued him, but some detectives, mistaking the former for the real criminal and the
author of the explosion, placed him under arrest. In the meantime, while the City
Mayor and some agents of the Manila Police Department were investigating the affair,
one Manuel Robles volunteered the information that the person with whom Angel
Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with
Julio Guillen for the previous ten years and had seen each other in the plaza a few
moments previous to the explosion.
The police operatives interrogated Garcia and Robles, and Julio Guillen was, within
two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila,
brought to the police headquarters and identified by Angel Garcia, as the same
person who hurled towards the platform the object which exploded and whom Garcia
tried to hold when he was running away.
During the investigation conducted by the police he readily admitted his responsibility,
although at the same time he tried to justify his action in throwing the bomb at
President Roxas. He also indicated to his captors the place where he had hidden his
so called last will quoted above and marked Exhibit B, which was then unsigned by
him and subsequently signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried
(Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he
signed a statement which contained his answers to question propounded to him by
Major A. Quintos of the Manila Police, who investigated him soon after his arrest
(Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies
exactly with the declarations and made by him on the witness stand during the trial of
this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several errors are
assigned allegedly committed by the trial court, namely: first, "in finding the appellant
guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant
guilty of the complex crime of murder and multiple frustrated murder"; third, "in
applying sub-section 1 of article 49 of the Revised Penal Code in determining the
penalty to be imposed upon the accused"; and fourth, "in considering the concurrence
of the aggravating circumstances of nocturnity and of contempt of public authorities in
the commission of crime."
The evidence for the prosecution, supported by the brazen statements made by the
accused, shows beyond any shadow of doubt that, when Guillen attended that
meeting, carrying with him two hand grenades, to put into execution his preconceived
plan to assassinate President Roxas, he knew fully well that, by throwing one of those
two hand grenades in his possession at President Roxas, and causing it to explode,
he could not prevent the persons who were around his main and intended victim from
being killed or at least injured, due to the highly explosive nature of the bomb
employed by him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by the trial
judge (page 96 of transcript) supports our conclusion. He stated that he performed
the act voluntarily; that his purpose was to kill the President, but that it did not make
any difference to him if there were some people around the President when he hurled
that bomb, because the killing of those who surrounded the President was
tantamount to killing the President, in view of the fact that those persons, being loyal
to the President being loyal to the President, were identified with the latter. In other
word, although it was not his main intention to kill the persons surrounding the
President, he felt no conjunction in killing them also in order to attain his main
purpose of killing the President.
The facts do not support the contention of counsel for appellant that the latter is guilty
only of homicide through reckless imprudence in regard to the death of Simeon
Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the
corresponding penalties for the different felonies committed, the sum total of which
shall not exceed three times the penalty to be imposed for the most serious crime in
accordance with article 70 in relation to article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention of killing him, the
appellant acted with malice. He is therefore liable for all the consequences of his
wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing felony (delito) although the wrongful act
done be different from that which he intended. In criminal negligence, the injury
caused to another should be unintentional, it being simply the incident of another act
performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in
order that an act may be qualified as imprudence it is necessary that either malice nor
intention to cause injury should intervene; where such intention exists, the act should
qualified by the felony it has produced even though it may not have been the intention
of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on
the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to
do an unlawful act is essentially inconsistent with the idea of reckless imprudence.
(People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a
mistake in the identity of the intended victim cannot be considered as reckless
imprudence. (People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme Court of
Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a
comprar tabaco, y habiendose negado este a darselo al fiado, se retira a
quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de
hora, hallandose el estanquero despachando a C, se oye la detonacion de
un arma de fuego disparada por A desde la calle, quedando muertos en el
acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo
al estanquero, cabe calificar la muerte de este de homicidio y la de c de
imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de
Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion
por el homivcidio y a un año de prision correctional por la imprudencia.
Aparte de que la muerte del estanquero debio calificarse de assesinato y no
de homicidio, por haberse ejecutado con aleviosa. es evidente que la
muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no
pudo calificarse de imprudencia teme raria, sino que tambien debio
declararsele responsable de la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo ambas muertes producidas por un
solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del
delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90
del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el
antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la
Sala la disposicion de este apartado ultimo del articulo muy principalmente,
y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de
1,0 de agosto.) (I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. — When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.
We think it is the above-quoted article and not paragraph 1 of article 49 that is
applicable. The case before us is clearly governed by the first clause of article 48
because by a single act, that a throwing highly explosive hand grenade at President
Roxas, the accused committed two grave felonies, namely: (1) murder, of which
Simeon Varela was the victim; and (2) multiple attempted murder, of which President
Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured
parties.
The killing of Simeon Varela was attended by the qualifying circumstance of
treachery. In the case of People vs. Mabug-at, supra, this court held that the
qualifying circumstance of treachery may be properly considered, even when the
victim of the attack was not the one whom the defendant intended to kill, if it appears
from the evidence that neither of the two persons could in any manner put up defense
against the attack, or become aware of it. In the same case it was held that the
qualifying circumstance of premeditation may not be properly taken into the account
when the person whom the defendant proposed to kill was different from the one who
became his victim.
There can be no question that the accused attempted to kill President Roxas by
throwing a hand grenade at him with the intention to kill him, thereby commencing the
commission of a felony by over acts, but he did not succeed in assassinating him "by
reason of some cause or accident other than his own spontaneous desistance." For
the same reason we qualify the injuries caused on the four other persons already
named as merely attempted and not frustrated murder.
In this connection, it should be stated that , although there is abundant proof that , in
violation of the provisions of article 148 of the Revised Penal Code, the accused
Guillen has committed among others the offense of assault upon a person in
authority, for in fact his efforts were directed towards the execution of his main
purpose of eliminating President Roxas for his failure to redeem his electoral
campaign promises, by throwing at him in his official capacity as the Chief Executive
of the nation the hand grenade in question, yet, in view of the appropriate allegation
charging Guillen with the commission of said offense, we shall refrain making a
finding to that effect.
The complex crimes of murder and multiple attempted murder committed by the
accused with the single act of throwing a hand grenade at the President, was
attended by the various aggravating circumstances alleged in the information, without
any mitigating circumstance. But we do not deem it necessary to consider said
aggravating circumstances because in any event article 48 of the Revised Penal
Code above-quoted requires that the penalty for the most serious of said crimes be
applied in its maximum period. The penalty for murder is reclusion temporal in its
maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to the accused the extreme penalty
provided by it upon the facts and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it,
and we hereby do so by a unanimous vote. The death sentence shall be executed in
accordance with article 81 of the Revised Penal Code, under authority of the Director
of Prisons, on such working day as the trial court may fix within 30 days from the date
the record shall have been remanded. It is so ordered.

IV.4.1 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. ZEIDA AURORA B.
GARFIN, In her capacity as Presiding Judge of RTC, Branch 19, of the City of Naga
and SERAFIN SABALLEGUE, Respondents.
DECISION
PUNO, J:
For determination in this petition is a question in procedural law - - - whether an
information filed by a state prosecutor without the prior written authority or approval of
the city or provincial prosecutor or chief state prosecutor should be dismissed after
the accused has entered his plea under the information.
Petitioner comes before us with a petition for certiorari and mandamus under Rule 65
of the Revised Rules of Court, seeking to declare as null and void the Orders issued
by the Regional Trial Court of Naga City, Branch 19 dated February 26, 2002[1]and
April 3, 2002[2] which dismissed for lack of jurisdiction the case of People vs. Serafin
Saballegue, Criminal Case No. RTC 2001-0597, and denied petitioners motion for
reconsideration.
The antecedent facts are undisputed.
On June 22, 2001, private respondent was charged with violation of Section 22(a) in
relation to Sections 19(b) and 28(e) of Republic Act No. 8282, otherwise known as the
Social Security Act, in an information which reads:
The undersigned State Prosecutor of the Office of the Regional State Prosecutor,
Legazpi City, accuses SERAFIN SABALLEGUE, as proprietor of Saballegue Printing
Press with business address at 16 San Mateo St., Peafrancia Ave., Naga City for
Violation of Section 22(a) in relation to Sections 19(b) and 28(e) of R.A. 8282
otherwise known as the Social Security Act of 1997, committed as follows:
That on or about February 1990 and up to the present, in the City of Naga,
Philippines, within the functional jurisdiction of SSS Naga Branch and the territorial
jurisdiction of this Honorable Court, the above named accused, while being the
proprietor of Saballegue Printing Press, did then and there willfully, unlawfully, and
criminally refuse and fail and continuously refuse and fail to remit the premiums due
for his employee to the SSS in the amount of SIX THOUSAND FIVE HUNDRED
THIRTY-THREE PESOS (P6,533.00), Philippine Currency, representing SSS and EC
premiums for the period from January 1990 to December 1999 (n.i.), and the 3%
penalty per month for late remittance in the amount of ELEVEN THOUSAND ONE
HUNDRED FORTY-THREE PESOS and 28/100 (P11,143.28) computed as of 15
March 2000, despite lawful demands by letter in violation of the above-cited
provisions of the law, to the damage and prejudice of the SSS and the public in
general.
CONTRARY TO LAW.
Legazpi City for Naga City. 22 June 2001.
(sgd.) ROMULO SJ. TOLENTINO
State
Prosecutor
Special Prosecutor on SSS Cases
in Region
V[3]
The information contains a certification signed by State Prosecutor Romulo SJ.
Tolentino which states:
I hereby certify that the required investigation in this case has been conducted by the
undersigned Special Prosecutor in accordance with law and under oath as officer of
the court, that there is reasonable ground to believe that the offense has been
committed, that the accused is probably guilty thereof and that the filing of the
information is with the prior authority and approval of the Regional State Prosecutor.
[4]
The case was raffled to Branch 19 of the Regional Trial Court of Naga City presided
by respondent judge Hon. Zeida Aurora B. Garfin. On September 24, 2001, accused
Serafin Saballegue pleaded not guilty to the charge and the case was set for pre-trial.
[5] Three days thereafter, the accused filed a motion to dismiss[6] on the ground that
the information was filed without the prior written authority or approval of the city
prosecutor as required under Section 4, Rule 112 of the Revised Rules of Court.[7]
The People, through State Prosecutor Tolentino, filed an opposition,[8] against which
the accused filed a rejoinder.[9] The People filed a reply to the rejoinder[10] on
December 21, 2001. A rejoinder to the reply[11] was filed by the accused on January
21, 2002.
After considering the arguments raised, the trial court granted the motion to dismiss in
its first questioned Order dated February 26, 2002, to wit:
After considering the respective arguments raised by the parties, the Court believes
and so resolves that the Information has not been filed in accordance with Section 4,
par. 3 of Rule 112 of the 2000 Rules on Criminal Procedure, thus:
Rule 112, Section 4 x x x x x x
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
Expresio unius est exclusio alterius.
The Information will readily show that it has not complied with this rule as it has not
been approved by the City Prosecutor.
This Court holds that the defendants plea to the Information is not a waiver to file a
motion to dismiss or to quash on the ground of lack of jurisdiction. By express
provision of the rules and by a long line of decisions, questions of want of jurisdiction
may be raised at any stage of the proceedings (People vs. Eduarte, 182 SCRA 750).
The Supreme Court in Villa vs. Ibaez (88 Phil 402) dwelt on lack of authority of the
officer who filed the information and on jurisdiction at the same time, pertinent
portions run as follows:
The defendant had pleaded to the information before he filed a motion to quash, and
it is contended that by his plea he waived all objections to the information. The
contention is correct as far as formal objections to the pleadings are concerned. But
by clear implication, if not by express provision of section 10 of Rule 113 of the Rules
of Court, and by a long line of uniform decisions, questions of want of jurisdiction may
be raised at any stage of the proceedings. Now, the objection to the respondents
actuations goes to the very foundations of jurisdiction. It is a valid information signed
by a competent officer which, among other requisites, confers jurisdiction on the court
over the person of the accused and the subject matter of the accusation. In
consonance with this view, an infirmity of the nature noted in the information cannot
be cured by silence, acquiescence, or even by express consent.
Prosecutor Tolentino also contends that having been duly designated to assist the
City Prosecutor in the investigation and prosecution of all SSS cases by the Regional
State prosecutor as alter ego of the Secretary of Justice in Region V, then that
authority may be given to other than the City Prosecutor. The Court finds this
contention to be devoid of merit. The Regional State Prosecutor is not the alter ego of
the Secretary of Justice but a mere subordinate official and if ever the former files
cases, it is by virtue of a delegated authority by the Secretary of Justice. Potestas
delegada non potesta delegare (sic) what has been delegated cannot be redelegated.
In his opposition, the state prosecutor also attached a memorandum dated June 22,
2001 by Regional State Prosecutor Santiago M. Turingan addressed to Provincial
Prosecutor and City Prosecutors of Region V directing them to inhibit and to append
the following NOTATION after the certification in the Information for filing.
NOTATION: The herein City/Provincial Prosecutor is inhibiting from this case and the
Special Prosecution Team on SSS Cases in Region V is authorized to dispose of the
case without my approval in view of the request for inhibition of the SSS Regional
Manager as granted by the Regional State Prosecutor.
A perusal of the Information, however, would readily show that nowhere in the
Information has the City Prosecutor of Naga City appended the above-quoted
notation/inhibition. At most, the authority of the special prosecutor is only for the
conduct of preliminary investigations and the prosecution of cases after they are filed.
The Court, however, believes that the filing of this Information must be in conformity
with the Rules on Criminal Procedure, particularly Section 4 of Rule 112.
WHEREFORE, premises considered and for lack of jurisdiction, the Court hereby
resolves to DISMISS this case without pronouncement as to cost.
SO ORDERED.[12]
A motion for reconsideration was filed by the People contending that as a special
prosecutor designated by the regional state prosecutor to handle SSS cases within
Region V, State Prosecutor Tolentino is authorized to file the information involving
violations of the SSS law without need of prior approval from the city
prosecutor. [13] Letters of commendation from Chief State Prosecutor Jovencito
Zuo[14] and Secretary Hernando Perez[15] were offered as proof to show that State
Prosecutor Tolentinos authority to file the information was recognized. In response,
the defense pointed out in its opposition that the motion for reconsideration lacked a
notice of hearing, hence it is pro forma or a mere scrap of paper. [16]
On April 3, 2002, respondent judge issued the second questioned Order which reads:
Acting upon the Motion for Reconsideration filed by State Prosecutor Romulo SJ.
Tolentino, Special Prosecutor on SSS cases in Region V, and it appearing that the
same has failed to comply with the requirement of notice prescribed in Sections 4 and
5, Rule 15 of the Rules of Court, the same is hereby DENIED for being a mere scrap
of paper.
SO ORDERED.[17]
Hence, this petition by the People through Regional State Prosecutor Santiago
Turingan and State Prosecutor Romulo SJ. Tolentino. Petitioner attributes grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
respondent judge, viz:[18]
1.RESPONDENT JUDGE DISMISSED THE INFORMATION WITHOUT THE
REQUIRED SUPPORTING FACTUAL AND LEGAL BASES;
2.RESPONDENT JUDGE DELIBERATELY AND CAPRICIOUSLY IGNORED THE
PRESUMPTION OF REGULARITY IN FAVOR OF THE PROSECUTION WITHOUT
THE REQUIRED SUFFICIENCY OF REBUTTAL EVIDENCE. THE WORD MAY IN
SEC. 4, RULE 112 OF THE RULES OF COURT IS NOT MANDATORY;
3.RESPONDENT JUDGE COMMITTED GRAVE ERROR IN DELIBERATELY
IGNORING THE JUDICIALLY KNOWN INHIBITION OF THE CITY PROSECUTOR
AND THE SETTLED JURISPRUDENCE ON THE MATTER;
4.RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION IN INTERFERING
WITH THE PURELY EXECUTIVE FUNCTION OF FILING AN INFORMATION BY
RULING ON THE AUTHORITY OF THE FILING OFFICER TO FILE THE
INFORMATION.
The Office of the Solicitor General (OSG) filed its comment[19] in compliance with this
Courts Resolution dated September 23, 2002.[20] It opines that the dismissal of the
information is mandated under Section 4, Rule 112 of the Rules of Criminal
Procedure.
Private respondent contends that:[21] 1) the instant petition was filed out of time; 2)
the special State Prosecutor is only authorized to conduct preliminary investigation
and prosecution of SSS cases and not to sign the information; and 3) the City
Prosecutor did not expressly inhibit himself from handling SSS cases nor signing the
information.
We shall first resolve the procedural issues. Respondent contends that the motion for
reconsideration filed on April 1, 2002 is late because it was filed eighteen days after
March 14, 2002, the date when petitioner received the first questioned order.
Respondent has overlooked that the 15th day after March 14 is a Good Friday. Hence,
petitioners last day to file the motion for reconsideration was on the next working day
after Good Friday, April 1.[22]
Next, respondent argues that having been considered as a mere scrap of paper, the
motion for reconsideration of the petitioner did not toll the running of the reglementary
period. Respondent, however, erroneously assumes that the present case is an
appeal by certiorari under Rule 45. As stated at the outset, this is an original petition
for certiorari and mandamus under Rule 65.
Sec. 2, Rule 37 of the Rules of Court is clear. It provides that (a) pro forma motion for
new trial or reconsideration shall not toll the reglementary period of appeal.
(emphases supplied) Hence, the same provision has no application in the case at bar.
The reckoning date is the receipt of the second questioned Order and not the receipt
of the first. Section 4, Rule 65, as amended by En Banc Resolution A.M. No. 00-2-03-
SC, September 1, 2000, provides, viz:
Sec. 4. When and where petition filed.-- The petition may be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60)- day period shall be counted from notice of the denial of said motion.
x x xx x xx x x
As shown by the records, petitioner received the first questioned order dated
February 26, 2002 on March 14, 2002.[23] A motion for reconsideration was timely
filed on April 1, 2002[24] which was dismissed for lack of notice of hearing in an Order
dated April 3, 2002.[25] This second questioned order was received by petitioner on
April 11, 2002.[26] A motion for extension of time to file a petition for review
on certiorari was filed on April 18, 2002.[27] A motion for leave to file and admit the
instant petition for certiorari and mandamus was filed on May 29, 2002.[28] Having
been filed within the reglementary period, petitioners motion for leave to file the
instant petition was granted in this Courts Resolution dated July 15, 2002.[29]
We now come to the other issue: whether the prior written authority and approval of
the city or provincial prosecutor or chief state prosecutor is necessary in filing the
information at bar.
Petitioner takes the unbending view that the approval of the city or provincial
prosecutor is no longer required. It is contended that the Regional State Prosecutor
has already directed the city or provincial prosecutor to inhibit from handling SSS
cases.[30] Petitioner cites the letter of Regional State Prosecutor Santiago M.
Turingan to SSS Regional Director in Naga City dated June 6, 1997[31] and copies of
Regional Orders No. 97-024-A[32] and 2001-033[33] dated July 14, 1997 and
September 28, 2001, respectively, showing the designation of State Prosecutor
Tolentino as special prosecutor for SSS cases in Region V. Petitioner relies
on Galvez, et al. v. Court of Appeals, et al.[34] and Sanchez v. Demetriou, et al.[35] to
prop up its contention that given the designation of State Prosecutor Tolentino, the
city prosecutor need not participate in the filing and prosecution of the information in
the case at bar.
We disagree. Under Presidential Decree No. 1275, the powers of a Regional State
Prosecutor are as follows:
Sec. 8.The Regional State Prosecution Office: Functions of Regional State
Prosecutor. - The Regional State Prosecutor shall, under the control of the Secretary
of Justice, have the following functions:
a)Implement policies, plans, programs, memoranda, orders, circulars and rules and
regulations of the Department of Justice relative to the investigation and prosecution
of criminal cases in his region.
b)Exercise immediate administrative supervision over all provincial and city fiscals
and other prosecuting officers of provinces and cities comprised within his region.
c)Prosecute any case arising within the region.
d)With respect to his regional office and the offices of the provincial and city fiscals
within his region, he shall:
1)Appoint such member of subordinate officers and employees as may be necessary;
and approve transfers of subordinate personnel within the jurisdiction of the regional
office.
2)Investigate administrative complaints against fiscals and other prosecuting officers
within his region and submit his recommendation thereon to the Secretary of Justice
who shall, after review thereof, submit the appropriate recommendation to the Office
of the President: Provided, that where the Secretary of Justice finds insufficient
grounds for the filing of charges, he may render a decision of dismissal thereof.
3)Investigate administrative complaints against subordinate personnel of the region
and submit his recommendations thereon to the Secretary of Justice who shall have
the authority to render decision thereon. (emphases supplied)
The power of administrative supervision is limited to the authority of the department or
its equivalent to generally oversee the operations of such agencies and to insure that
they are managed effectively, efficiently and economically but without interference
with day-to-day activities; or require the submission of reports and cause the conduct
of management audit, performance evaluation and inspection to determine
compliance with policies, standards and guidelines of the department; to take such
action as may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration; and to review
and pass upon budget proposals of such agencies but may not increase or add to
them.[36] This is distinguished from the power of supervision and control which
includes the authority to act directly whenever a specific function is entrusted by law
or regulation to a subordinate; direct the performance of duty; restrain the commission
of acts; review, approve, reverse or modify acts and decisions of subordinate officials
or units; determine priorities in the execution of plans and programs; and prescribe
standards, guidelines, plans and programs.[37]
The Regional State Prosecutor is clearly vested only with the power of administrative
supervision. As administrative supervisor, he has no power to direct the city and
provincial prosecutors to inhibit from handling certain cases. At most, he can request
for their inhibition. Hence, the said directive of the regional state prosecutor to the city
and provincial prosecutors is questionable to say the least.
Petitioner cannot lean on the cases of Galvez and Sanchez. In those cases, the
special prosecutors were acting under the directive of the Secretary of Justice. They
were appointed in accordance with law. Nowhere in P.D. No. 1275 is the regional
state prosecutor granted the power to appoint a special prosecutor armed with the
authority to file an information without the prior written authority or approval of the city
or provincial prosecutor or chief state prosecutor. P.D. No. 1275 provides the manner
by which special prosecutors are appointed, to wit:
Sec. 15. Special Counsels. - Whenever the exigencies of the service require the
creation of positions of additional counsel to assist provincial and city fiscals in the
discharge of their duties, positions of Special Counsels may be created by any
province or city, subject to the approval of the Secretary of Justice, and with salaries
chargeable against provincial or city funds. The Secretary of Justice shall appoint said
Special Counsels, upon recommendation of the provincial or city fiscal and regional
state prosecutors concerned, either on permanent or temporary basis.
Special Counsel shall be appointed from members of the bar and shall be allowed not
more than the salary rate provided in this Decree for the lowest rank or grade of
assistant fiscal in the province or city where assigned. (emphases supplied)
Under Department Order No. 318,[38] Defining the authority, duties and
responsibilities of regional state prosecutors,then Acting Secretary of Justice Silvestre
H. Bello III ordered the appointed regional state prosecutors (which included Regional
State Prosecutor Turingan for Region V) to, among others, (i)nvestigate and/or
prosecute, upon the directive of the Secretary of Justice, specific criminal cases filed
within the region.(emphasis supplied)
In the case at bar, there is no pretense that a directive was issued by the Secretary of
Justice to Regional State Prosecutor Turingan to investigate and/or prosecute SSS
cases filed within his territorial jurisdiction. A bare reading of the alleged letter of
commendation by then Secretary Hernando Perez would show that it does not
amount to a directive or even a recognition of this authority. In fact, while the letter of
Secretary Perez commends the efforts of Regional State Prosecutor Turingan in
successfully prosecuting SSS cases, it also negates his authority to prosecute them.
Secretary Perez called the Regional State Prosecutors attention to DOJ Circular No.
27, series of 2001, which states that all important cases of the SSS should be
referred to the Office of the Government Corporate Counsel.[39] Thus, Regional State
Prosecutor Turingan cannot be considered a special prosecutor within the meaning of
the law.
Petitioner argues that the word may is permissive. Hence, there are cases when prior
written approval is not required, and this is one such instance. This is too simplistic an
interpretation. Whether the word may is mandatory or directory depends on the
context of its use. We agree with the OSG that the use of the permissive word may
should be read together with the other provisions in the same section of the Rule. The
paragraph immediately preceding the quoted provision shows that the word may is
mandatory. It states:
Sec. 4, Rule 112. x x x
Within five (5) days from his resolution, he (investigating prosecutor) shall forward the
record of the case to the provincial or city prosecutor or chief state prosecutor, or to
the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan
in the exercise of its original jurisdiction. They shall act on the resolution within ten
(10) days from their receipt thereof and shall immediately inform the parties of such
action. (emphasis supplied)
Having settled that the prior authority and approval of the city, provincial or chief state
prosecutor should have been obtained, we shall now resolve the more important
issue: whether the lack of prior written approval of the city, provincial or chief state
prosecutor in the filing of an information is a defect in the information that is waived if
not raised as an objection before arraignment.
We hold that it is not.
The provisions in the 2000 Revised Rules of Criminal Procedure that demand
illumination are Sections 3 and 9 of Rule 117 in relation to paragraph 3, Section 4 of
Rule 112, to wit:
Rule 117, Section 3. Grounds.The accused may move to quash the complaint or
information on any of the following grounds:
(a)That the facts charged do not constitute an offense;
(b)That the court trying the case has no jurisdiction over the offense charged;
(c)That the court trying the case has no jurisdiction over the person of the accused;
(d)That the officer who filed the information had no authority to do so;
(e)That it does not conform substantially to the prescribed form;
(f)That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
(g)That the criminal action or liability has been extinguished;
(h)That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i)That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent.
xxxxxxxxx
Section 9. Failure to move to quash or to allege any ground therefor.The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint
or information, either because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of any objections except those based
on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this
Rule. (emphasis supplied)
Rule 112, Section 4, paragraph 3 provides, viz:
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy. (emphasis supplied)
Private respondent and the OSG take the position that the lack of prior authority or
approval by the city or provincial prosecutor or chief state prosecutor is an infirmity in
the information that prevented the court from acquiring jurisdiction over the case.
Since lack of jurisdiction is a defect that may be raised as an objection anytime even
after arraignment, the respondent judge did not err in granting the motion to dismiss
based on this ground. As basis, they cite the case of Villa v. Ibaez, et al.[40] where we
held, viz:
The defendant had pleaded to an information before he filed a motion to quash, and it
is contended that by his plea he waived all objections to the informations. The
contention is correct as far as formal objections to the pleadings are concerned. But
by clear implication, if not by express provision of section 10 of Rule 113 of the Rules
of Court (now Section 9 of Rule 117), and by a long line of uniform decisions,
questions of want of jurisdiction may be raised at any stage of the proceeding.
Now, the objection to the respondents actuations goes to the very foundation of the
jurisdiction. It is a valid information signed by a competent officer which, among other
requisites, confers jurisdiction on the court over the person of the accused and the
subject matter of the accusation. In consonance with this view, an infirmity in the
information cannot be cured by silence, acquiescence, or even by express consent.
[41](emphasis supplied)
The case of Villa is authority for the principle that lack of authority on the part of the
filing officer prevents the court from acquiring jurisdiction over the case. Jurisdiction
over the subject matter is conferred by law while jurisdiction over the case is invested
by the act of plaintiff and attaches upon the filing of the complaint or information.
[42] Hence, while a court may have jurisdiction over the subject matter, like a violation
of the SSS Law, it does not acquire jurisdiction over the case itself until its jurisdiction
is invoked with the filing of the information.
In the United States, an information has been held as a jurisdictional requirement
upon which a defendant stands trial. Thus, it has been ruled that in the absence of
probable cause, the court lacks jurisdiction to try the criminal offense.[43] In our
jurisdiction, we have similarly held that:
While the choice of the court where to bring an action, where there are two or more
courts having concurrent jurisdiction thereon, is a matter of procedure and not
jurisdiction, as suggested by appellant, the moment such choice has been exercised,
the matter becomes jurisdictional. Such choice is deemed made when the proper
complaint or information is filed with the court having jurisdiction over the crime, and
said court acquires jurisdiction over the person of the defendant, from which time the
right and power of the court to try the accused attaches. (citations omitted) It is not for
the defendant to exercise that choice, which is lodged upon those who may validly file
or subscribe to the complaint or information under sections 2 and 3 of Rule 106 of the
Rules of Court. [44] (emphasis supplied)
A closer look at Villa would be useful in resolving the issue at hand. In that case,Atty.
Abelardo Subido, Chief of the Division of Investigation in the Office of the Mayor of
Manila, was appointed by the Secretary of Justice as special counsel to assist the
City Fiscal of Manila in the cases involving city government officials or employees.
Pursuant to his appointment, Atty. Subido filed an information against Pedro Villa for
falsification of a payroll. Atty. Subidos authority to file the information was challenged
on the ground that he was disqualified for appointment under Section 1686 of the
Revised Administrative Code, as amended by Section 4 of Commonwealth Act No.
144, to wit:
SEC. 1686.Additional counsel to assist fiscal. The Secretary of Justice may appoint
any lawyer, being either a subordinate from his office or a competent person not in
the public service, temporarily to assist a fiscal or prosecuting attorney in the
discharge of his duties, and with the same authority therein as might be exercised by
the Attorney General or Solicitor General.[45]
We held, viz:
Appointments by the Secretary of Justice in virtue of the foregoing provisions of the
Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et
al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official
Gazette, 5092). But in those cases, the appointees were officials or employees in one
or another of the bureaus or offices under the Department of Justice, and were rightly
considered subordinates in the office of the Secretary of Justice within the meaning of
section 1686, ante.
The case at bar does not come within the rationale of the above decisions. Attorney
Subido is a regular officer or employee in the Department of Interior, more particularly
in the City Mayors office. For this reason, he belongs to the class of persons
disqualified for appointment to the post of special counsel.
That to be eligible as special counsel to aid a fiscal the appointee must be either an
employee or officer in the Department of Justice is so manifest from a bare reading of
section 1686 of the Revised Administrative Code as to preclude construction. And the
limitation of the range of choice in the appointment or designation is not without
reason.
The obvious reason is to have appointed only lawyers over whom the Secretary of
Justice can exercise exclusive and absolute power of supervision. An appointee from
a branch of the government outside the Department of Justice would owe obedience
to, and be subject to orders by, mutually independent superiors having, possibly,
antagonistic interests. Referring particularly to the case at hand for illustration,
Attorney Subido could be recalled or his time and attention be required elsewhere by
the Secretary of Interior or the City Mayor while he was discharging his duties as
public prosecutor, and the Secretary of Justice would be helpless to stop such recall
or interference. An eventuality or state of affairs so undesirable, not to say detrimental
to the public service and specially the administration of justice, the Legislature wisely
intended to avoid.
The application of the 1951 Villa ruling is not confined to instances where the person
who filed the information is disqualified from being a special prosecutor under Section
1686 of the Revised Administrative Code, as amended, but has been extended to
various cases where the information was filed by an unauthorized officer as in the
case at bar. In Cruz, Jr. v. Sandiganbayan, et al.,[46] the Court held that it is a
fundamental principle that when on its face the information is null and void for lack of
authority to file the same, it cannot be cured nor resurrected by amendment. In that
case, the Presidential Commission on Good Government (PCGG) conducted an
investigation and filed an information with the Sandiganbayan against petitioner
Roman Cruz, Jr. charging him with graft and corruption. The petitioner sought to
quash the information on the ground that the crime charged did not constitute a
Marcos crony related crime over which the PCGG had authority to investigate and file
an information. The Court found that the crime alleged in the information was not
among those which PCGG was authorized to investigate under Executive Orders No.
1 and 14 of then President Corazon Aquino and ruled that the information was null
and void. Of similar import is Romualdez v. Sandiganbayan, et al.[47]where we ruled
that the information having been filed by an unauthorized party (the PCGG), the
information was fatally flawed. We noted that this defect is not a mere remediable
defect of form, but a defect that could not be cured.
In Cudia v. Court of Appeals,et al.,[48] we also reiterated the Villa ruling. The accused
in that case was apprehended in Mabalacat, Pampanga for illegal possession of
firearms and was brought to Angeles City where the headquarters of the arresting
officers was located. The City Prosecutor of Angeles City filed an information in the
Regional Trial Court of Angeles City. We invalidated the information filed by the City
Prosecutor because he had no territorial jurisdiction, as the offense was committed in
Mabalacat, Pampanga and his territorial jurisdiction was only in Angeles City. We held
that an information,when required by law to be filed by a public prosecuting officer,
cannot be filed by another.[49]Otherwise, the court does not acquire jurisdiction.[50] It
is a valid information signed by a competent officer which, among other requisites,
confers jurisdiction on the court over the person of the accused and the subject
matter thereof. The accuseds plea to an information may be a waiver of all formal
objections to the said information but not when there is want of jurisdiction. Questions
relating to lack of jurisdiction may be raised at any stage of the proceeding. An
infirmity in the information, such as lack of authority of the officer signing it, cannot be
cured by silence, acquiescence, or even by express consent.[51]
Despite modifications of the provisions on unauthorized filing of information contained
in the 1940 Rules of Criminal Procedure under which Villa was decided, the 1951 Villa
ruling continues to betheprevailing case law on the matter.[52]
The 1940 Rules of Court provided in Rule 113, Section 10 that, if the defendant fails
to move to quash the complaint or information before he pleads thereto, he shall be
taken to have waived all objections which are grounds for a motion to
quash except (1) when the complaint or information does not charge an offense or (2)
the court is without jurisdiction of the same. (emphasis ours) Among the enumerated
grounds for a motion to quash under Section 2 of the same Rule was (t)hat the fiscal
has no authority to file the information. With only the above two exceptions provided
by the 1940 Rules, the Court nevertheless made the Villa ruling that if the filing officer
lacks authority to file the information, jurisdiction is not conferred on the court and this
infirmity cannot be cured by silence or waiver, acquiescence, or even by express
consent.
The 1940 Rules of Court was amended in 1964. With only minimal changes
introduced, the 1964 Rules of Court contained provisions on unauthorized filing of
information similar to the above provisions of the 1940 Rules.[53]
Then came the 1985 Rules of Criminal Procedure. Lack of authority of the officer who
filed the information was also a ground for a motion to quash under these rules. The
1985 Rules also provided for waiver of the grounds for a motion to quash under Rule
117, Section 8, but enumerated the following exceptions to the waiver: (a) the facts
charged do not constitute an offense; (b) the court trying the case has no jurisdiction
over the offense charged or the person of the accused; (c) the criminal action or
liability has been extinguished; and (d) the accused has been previously convicted or
in jeopardy of being convicted, or acquitted of the offense charged. Apparently, the
want of jurisdiction under the 1985 Rules refers to jurisdiction over the offense and
the person, and not over the case as in Villa where the court did not acquire
jurisdiction over the case for lack of authority of the officer who filed the information.
Still, despite the enumeration, the Court continued to apply the Villa ruling as shown
in the afore-cited Cruz and Cudia cases.
The 1985 Rules was amended in 2000. The 2000 Revised Rules of Criminal
Procedure also provide for lack of authority of the filing officer as among the grounds
for a motion to quash and the waiver of these grounds. Similar to the 1985 Rules, the
Revised Rules enumerate the exceptions from the waiver, namely: (a) that the facts
charged do not constitute an offense; (b) that the court trying the case has no
jurisdiction over the offense charged; (c) that the criminal action or liability has been
extinguished; and (d) that the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or otherwise terminated
without his express consent. Under the regime of the 2000 Revised Rules, we
reiterated the Villa ruling in the above-cited Romualdez case. With the enumeration of
the four exceptions, which was almost a replica of the enumeration in the 1985 Rules,
the 2000 Rules did not intend to abandon Villa. The Villa ruling subsisted alongside
the enumerated exceptions under the 1985 Rules, and it remains to do so under the
enumerated exceptions under the 2000 Rules. Neither the Rationale of the 2000
Revised Rules of Criminal Procedure nor the Minutes of the Meeting of the
Committee on the Revision of the Rules of Court evinces any intent to abandon the
doctrine enunciated in Villa.

In sum, we hold that, in the absence of a directive from the Secretary of Justice
designating State Prosecutor Tolentino as Special Prosecutor for SSS cases or a
prior written approval of the information by the provincial or city prosecutor, the
information in Criminal Case No. RTC 2001-0597 was filed by an officer without
authority to file the same. As this infirmity in the information constitutes a jurisdictional
defect that cannot be cured, the respondent judge did not err in dismissing the case
for lack of jurisdiction.

WHEREFORE,premises considered, the petition is DENIED. The respondent courts

orders dated February 26, 2002 and April 3, 2002 are AFFIRMED. Criminal Case No.
RTC 2001-0597 is DISMISSED without prejudice to the filing of a new information by
an authorized officer.

SO ORDERED.
IV.4.2 Tolentino v Pacqueo

Petitioner, State Prosecutor Romulo SJ. Tolentino filed an information charging

private respondent, Benedict Tecklo for violation of Sec 22 (a) in relation to Sec 28 (e)
of R.A. No. 8282, for failing to remit SSS premiums due to his employee despite
demand.
Accused, private respondent through his counsel filed a motion to quash the
information of the ground that Petitioner, Prosecutor Tolentino has no legal personality
and authority to commence such prosecution without the approval of the City
Prosecutor of Naga City, the situs of the crime.
Petitioner contends that he was given authority and designated as Special Prosecutor
for SSS cases by the Regional State Prosecutor to comply with the request for SSS
which authority was confirmed by the Chief Sate prosecutor. He claims, approval of
the City Prosecutor in filing the information is no longer necessary by virtue of the
Regional order which designated him as Special Prosecutor.
Respondent, Judge Paque granted the motion to quash based on the lack of legal
personality of State Prosecutor Tolentino, not legally clothed with the authority to
commence prosecution in violation of Sec 4 (3) of Rule 112 which requires the
approva of the City Prosecutor prior to filing an information and Sec 3 (c) of Rule 117
which provides the grounds for granting a motion to quash. He then denied the
objection and motion of the petitioner.
A petition for certiorari and mandamus was then filed by the petitioner alleging that
respondent Jugde Paqueo acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing orders granting the motion to quash of private
respondent in the case People vs Tecklo.

ISSUE:
Whether or nor petioner State Prosecutor Tolentino is duly authorized to file the
subject Information without the approval of the City Prosecutor?

HELD:
No. The Court ruled that the decision of the respondent Judge to grant the motion to
quash is proper.
Petitioner alleged that he was designated as a Special Prosecutor by the Regional
State Prosecutor in relation with the regional order, however Regional State
Prosecutor is not included among the law officers authorized to approve the filing or
dismissal of the Information in compliance with Sec 4, Rule 112. In the case ar bar,
Petitioner, did not comply with such requirement. Conseuqently, the non-compliance
was a ground to quash the information under Sec 3 (2) of Rule 117.
Therefore, the Court finds that Respondent, Judge did not gravely abuse his
discretion in dismissing the information for failure to the petitioner, State prosecutor to
comply with Sec 4 (3) of Rule 112, as such failure tantamounts to an invalid
information filed for the officer who filed it had no authority to do so.

IV.4.3 GIRLIE M. QUISAY, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
1 2
Assailed in this petition for review on certiorari are the Decision dated October 10,
2014 and the Resolution3 dated January 30, 2015 of the Court of Appeals (CA) in CA-
G.R. SP No. 131968, which affirmed the denial of petitioner Girlie M. Quisay's
(petitioner) Motion to Quash before the Regional Trial Court of Makati, Branch 144
(RTC).chanRoblesvirtualLawlibrary
The Facts
On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-Makati)
issued a Pasiya4 or Resolution finding probable cause against petitioner for violation
of Section 10 of Republic Act No. (RA) 7610,5 otherwise known as the "Special
Protection of Children Against Abuse, Exploitation and Discrimination Act."
Consequently, a Pabatid Sakdal6 or Information was filed before the RTC on January
11, 2013 charging petitioner of such crime.
On April 12, 2013, petitioner moved for the quashal of the Information against her on
the ground of lack of authority of the person who filed the same before the RTC. In
support of her motion, petitioner pointed out that the Pasiya issued by the OCP-
Makati was penned by Assistant City Prosecutor Estefano H. De La Cruz (ACP De La
Cruz) and approved by Senior Assistant City Prosecutor Edgardo G. Hirang (SACP
Hirang), while the Pabatid Sakdal was penned by ACP De La Cruz, without any
approval from any higher authority, albeit with a Certification claiming that ACP De La
Cruz has prior written authority or approval from the City Prosecutor in filing the said
Information. In this regard, petitioner claimed that nothing in the
aforesaid Pasiya and Pabatid Sakdal would show that ACP De La Cruz and/or SACP
Hirang had prior written authority or approval from the City Prosecutor to file or
approve the filing of the Information against her. As such, the Information must be
quashed for being tainted with a jurisdictional defect that cannot be
cured.7chanroblesvirtuallawlibrary
In its Comment and Opposition,8 the OCP-Makati countered that the review
prosecutor, SACP Hirang, was authorized to approve the Pasiya pursuant to OCP-
Makati Office Order No. 32.9 Further, it maintained that the Pabatid Sakdal was filed
with the prior approval of the City Prosecutor as shown in the Certification in the
Information itself.10chanRoblesvirtualLawlibrary
The RTC Ruling
In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for lack
of merit. It found the Certification attached to the Pabatid Sakdal to have sufficiently
complied with Section 4, Rule 112 of the Rules of Court which requires the prior
written authority or approval by, among others, the City Prosecutor, in the filing of
Informations.12chanroblesvirtuallawlibrary
Petitioner moved for reconsideration,13 which was, however, denied in an
Order14 dated July 10, 2013. Aggrieved, petitioner elevated the matter to the CA via a
petition for certiorari.15chanRoblesvirtualLawlibrary
The CA Ruling
In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held that
pursuant to Section 9 of RA 10071,17 otherwise known as the "Prosecution Service
Act of 2010," as well as OCP-Makati Office Order No. 32, the City Prosecutor of
Makati authorized SACP Hirang to approve the issuance of, inter alia, resolutions
finding probable cause and the filing of Informations before the courts. As such,
SACP Hirang may, on behalf of the City Prosecutor, approve the Pasiya which found
probable cause to indict petitioner of violation of Section 10 of RA
7610.18chanroblesvirtuallawlibrary
Further, it held that the Certification made by ACP De La Cruz in the Pabatid Sakdal
clearly indicated that the same was filed after the requisite preliminary investigation
and with the prior written authority or approval of the City Prosecutor. In this regard,
the CA opined that such Certification enjoys the presumption of regularity accorded to
a public officer's performance of official functions, in the absence of convincing
evidence to the contrary.19chanroblesvirtuallawlibrary
Undaunted, petitioner moved for reconsideration,20 but was denied in a
Resolution21 dated January 30, 2015; hence, this petition.chanRoblesvirtualLawlibrary
The Issue Before the Court
The core issue for the Court's resolution is whether or not the CA correctly held that
the RTC did not gravely abuse its discretion in dismissing petitioner's motion to
quash.chanRoblesvirtualLawlibrary
The Court's Ruling
The petition is meritorious.
Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the
filing of a complaint or information requires a prior written authority or approval of the
named officers therein before a complaint or information may be filed before the
courts, viz.:
SECTION 4. Resolution of investigating prosecutor and its review. -
If the investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
 was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the
parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
x x x x (Emphases and underscoring supplied)
Thus, as a general rule, complaints or informations filed before the courts without the
prior written authority or approval of the foregoing authorized officers renders the
same defective and, therefore, subject to quashal pursuant to Section 3 (d), Rule 117
of the same Rules, to wit:
SECTION 3. Grounds. - The accused may move to quash the
complaint or information on any of the following grounds:
xxxx
(d) That the officer who filed the information had no authority
to do so;
x x x x (Emphasis and underscoring supplied)
In this relation, People v. Garfin22 firmly instructs that the filing of an Information by an
officer without the requisite authority to file the same constitutes a jurisdictional
infirmity which cannot be cured by silence, waiver, acquiescence, or even by express
consent. Hence, such ground may be raised at any stage of the
proceedings.23chanroblesvirtuallawlibrary
In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the
grounds that: (a) the City Prosecutor of Makati may delegate its authority to approve
the filing of the Pabatid Sakdal pursuant to Section 9 of RA 10071, as well as OCP-
Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a Certification
stating that its filing before the RTC was with the prior written authority or approval
from the City Prosecutor.
The CA correctly held that based on the wordings of Section 9 of RA 10071, which
gave the City Prosecutor the power to "[investigate and/or cause to be
investigated all charges of crimes, misdemeanors and violations of penal laws and
ordinances within their respective jurisdictions, and have the necessary
information or complaint prepared or made and filed against the persons
accused,"24 he may indeed delegate his power to his subordinates as he may deem
necessary in the interest of the prosecution service. The CA also correctly stressed
that it is under the auspice of this provision that the City Prosecutor of Makati issued
OCP-Makati Office Order No. 32, which gave division chiefs or review prosecutors
"authority to approve or act on any resolution, order, issuance, other action, and any
information recommended by any prosecutor for approval,"25 without necessarily
diminishing the City Prosecutor's authority to act directly in appropriate cases.26 By
virtue of the foregoing issuances, the City Prosecutor validly designated SACP
Hirang, Deputy City Prosecutor Emmanuel D. Medina, and Senior Assistant City
Prosecutor William Celestino T. Uy as review prosecutors for the OCP-
Makati.27chanroblesvirtuallawlibrary
In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the
crime charged, was validly made as it bore the approval of one of the designated
review prosecutors for OCP-Makati, SACP Hirang, as evidenced by his signature
therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or Information filed
before the RTC, as there was no showing that it was approved by either the City
Prosecutor of Makati or any of the OCP-Makati's division chiefs or review
prosecutors. All it contained was a Certification from ACP De La Cruz which stated,
among others, that "DAGDAG KO PANG PINATUTUNAYAN na angpaghahain ng
sakdal na ito ay may nakasulat na naunang pahintulot o pagpapatibay ng Panlunsod
na Taga-Usig"28 - which translates to "and that the filing of the Information is with the
prior authority and approval of the City Prosecutor."
In the cases of People v. Garfin,29Turingan v. Garfin,30 and Tolentino v. Paqueo31 the
Court had already rejected similarly-worded certifications, uniformly holding that
despite such certifications, the Informations were defective as it was shown that the
officers filing the same in court either lacked the authority to do so or failed to show
that they obtained prior written authority from any of those authorized officers
enumerated in Section 4, Rule 112 of the 2000 Revised Rules of Criminal Procedure.
Here, aside from the bare and self-serving Certification, there was no proof that ACP
De La Cruz was authorized to file the Pabatid Sakdal or Information before the RTC
by himself. Records are bereft of any showing that the City Prosecutor of Makati had
authorized ACP De La Cruz to do so by giving him prior written authority or by
designating him as a division chief or review prosecutor of OCP-Makati. There is
likewise nothing that would indicate that ACP De La Cruz sought the approval of
either the City Prosecutor or any of those authorized pursuant to OCP-Makati Office
Order No. 32 in filing the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP
De La Cruz was able to have the Pasiya approved by designated review prosecutor
SACP Hirang but failed to have the Pabatid Sakdal approved by the same person or
any other authorized officer in the OCP-Makati.
In view of the foregoing circumstances, the CA erred in according the Pabatid
Sakdal the presumption of regularity in the performance of official functions solely on
the basis of the Certification made by ACP De La Cruz considering the absence of
any evidence on record clearly showing that ACP De La Cruz: (a) had any authority to
file the same on his own; or (b) did seek the prior written approval from those
authorized to do so before filing the Information before the RTC.

In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to

quash as the Pabatid Sakdal or Information suffers from an incurable infirmity - that
the officer who filed the same before the RTC had no authority to do so. Hence,
the Pabatid Sakdal must be quashed, resulting in the dismissal of the criminal case
against petitioner.

As a final note, it must be stressed that "[t]he Rules of Court governs the pleading,
practice, and procedure in all courts of the Philippines. For the orderly administration
of justice, the provisions contained therein should be followed by all litigants, but
especially by the prosecution arm of the Government."32chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014 and
the Resolution dated January 30, 2015 of the Court of Appeals in CA-G.R. SP No.
131968 are hereby REVERSED and SET ASIDE. Accordingly, the Information against
petitioner Girlie M. Quisay is QUASHED and the criminal case against her
is DISMISSED.

IV.4.5.1 FILEMON A. VERZANO, JR., Petitioner, v. FRANCIS VICTOR D. PARO,
JANET A FLORENCIO, HON. REGIONAL STATE PROSECUTOR, and HON. CITY
PROSECUTOR OF BACOLOD, Respondents.
Before this Court is a petition for review on certiorari,1cra1aw under Rule 45 of the
Rules of Court, seeking to set aside the July 28, 2005 Decision2cra1aw and the
February 7, 2006 Resolution3cra1aw of the Court of Appeals (CA) in CA-G.R. SP No.
86521.
The facts of the case are as follows:
On March 14, 2002, petitioner Filemon A. Verzano, Jr., former District Manager of
Wyeth Philippines, Inc. (Wyeth) for the islands of Panay and Negros, was dismissed
from service upon an administrative complaint filed against him. Among the
individuals who filed the complaint against petitioner were respondents Francis Victor
D. Paro (Paro) and Janet A. Florencio (Florencio) who were territory managers under
the supervision of petitioner.
The complaint was founded on petitioner's alleged violation of company policy on
prohibited sale of drug samples given for free to doctors and for the unauthorized act
of "channeling," or the transfer of stocks within the same area falsely creating an
impression that there was a sale. After conducting its own investigation and giving
petitioner an opportunity to explain his side, Wyeth resolved to dismiss petitioner
tendering him a Notice of Termination.4cra1aw
Aggrieved by his termination, petitioner filed a Complaint5cra1aw for illegal dismissal
with the Regional Labor Arbitration Board, National Labor Relations Commission
(NLRC), Bacolod City against Wyeth. For its part, Wyeth filed its Position Paper to
rebut the charges of petitioner. Attached to the position paper of Wyeth were the
affidavits6cra1aw of respondents Paro and Florencio.
It was on account of the said affidavits that petitioner filed a criminal
complaint7cra1aw against respondents for perjury, false testimony and incriminatory
machination. In said complaint, petitioner argued that the affidavits of respondents
contained falsehoods against him, particularly on the material date of the alleged sale
and the fact that he sold products which are to be given free to doctors. He also
argued that the alleged acts of "channeling" by him are false and unfounded.
Subpoenas were issued by the City Prosecutor against respondents for the
submission of their respective counter-affidavits; however, the return of the
subpoenas showed that respondents could not be located at their given addresses.
8
In a Resolution cra1aw dated March 3, 2004, notwithstanding that no counter-
affidavits were submitted by respondents, the City Prosecutor resolved to dismiss
petitioner's complaint, the dispositive portion of which reads:chan robles virtual law
library
WHEREFORE, finding no probable cause, all the charges are
hereby recommended dismissed for insufficiency of
evidence.9cra1aw
Petitioner then filed a motion for reconsideration,10cra1aw which was, however,
denied by the City Prosecutor in a Resolution11cra1aw dated June 11, 2004.
Petitioner appealed the Resolution of the City Prosecutor to the Office of Regional
State Prosecutor via a petition for review.12cra1aw On July 30, 2004, the Regional
State Prosecutor issued a Resolution13cra1aw finding merit in petitioner's appeal, the
dispositive portion of which reads:chan robles virtual law library
WHEREFORE, your Resolution dated March 3, 2004 is hereby
reversed and you are hereby directed to file the appropriate
information for Perjury against Francis Victor D. [Paro] and Janet A.
Florencio within (5) days from receipt hereof, furnishing this Office
with proof of compliance within the same period.14cra1aw
Aggrieved, respondents filed a motion for reconsideration.15cra1aw In a
Resolution16cra1aw dated August 25, 2004, the Regional State Prosecutor denied
respondents' motion.
On September 20, 2004 two Informations for perjury were filed against respondents in
the Municipal Trial Court in the Cities (MTCC), Bacolod City. The Information against
respondent Florencio was docketed as Criminal Case No. 049-8479, whereas, the
Information against respondent Paro was docketed as Criminal Case No. 049-8480.
On the same day, September 20, 2004, respondents filed a petition
for certiorari before the CA assailing the Resolutions of the Regional State Prosecutor
which reversed the earlier Resolution of the City Prosecutor. Respondents likewise
prayed for the issuance of a temporary restraining order (TRO) from the CA.
On October 7, 2004, the MTCC issued Warrants of Arrest against respondents. On
the same day, respondent Florencio posted bail. Respondent Paro followed suit on
October 8, 2004.
In a Resolution dated October 14, 2004, a TRO was issued by the CA, the pertinent
portion of which reads:chan robles virtual law library
xxx
In order not to render moot and academic the instant petition, a
temporary restraining order (TRO) is hereby issued temporarily
enjoining the public respondent Chief Prosecutor from acting on the
assailed Order issued by the public respondent Regional State
Prosecutor for a period of sixty (60) days from receipt
hereof.17cra1aw
In light of the issuance of a TRO by the CA, respondents filed with the MTCC a
Manifestation and Urgent Motion to Suspend Proceedings18cra1aw on November 2,
2004.
On November 10, 2004, the MTCC issued an Order,19cra1aw granting respondent's
motion to suspend the proceedings.
On July 28, 2005, the CA rendered a Decision,20cra1aw ruling in favor of respondents,
the dispositive portion of which reads:chan robles virtual law library
WHEREFORE, premises considered, the Petition is hereby
GRANTED. Accordingly, the assailed Resolutions dated July 30,
2004 and August 25, 2004 are REVERSED and SET ASIDE.
SO ORDERED.21cra1aw
In ruling against petitioner, the CA ruled, among others, that the Regional State
Prosecutor committed grave abuse of discretion when he directed the filing of the
Informations for perjury on the simple reason that no counter-affidavits were
submitted by respondents. In addition, the CA held that even though the Informations
had already been filed in the MTCC, the same did not bar the CA from reviewing and
correcting acts tainted with grave abuse of discretion.
Aggrieved, petitioner filed a motion for reconsideration, which was, however, denied
by the CA in a Resolution22cra1aw dated February 7, 2006.
Hence, herein petition, with petitioner raising the following issues for this Court's
consideration, to wit:chan robles virtual law library
I.
THE PETITION FILED BY PRIVATE RESPONDENTS WITH THE
COURT OF APPEALS HAD BEEN RENDERED MOOT AND
ACADEMIC BY THE FILING OF THE CASES IN COURT.
II.
THE REGIONAL STATE PROSECUTOR DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN REVERSING THE
RESOLUTION OF THE CITY PROSECUTOR.
III.
THE PETITION FOR CERTIORARI FILED BY HEREIN PRIVATE
RESPONDENTS WITH THE HONORABLE COURT OF APPEALS
IS NOT THE PROPER REMEDY.23cra1aw
The petition has no merit.
Anent the first issue, petitioner argues that the filing of the informations in the MTCC
had already removed the cases from the power and authority of the prosecution to
dismiss the same in accordance with the doctrine laid down in Crespo v.
Mogul24cra1aw (Crespo), to wit:chan robles virtual law library
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. The determination of the case is
within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the accused
or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.25cra1aw
In addition, petitioner points out that warrants of arrest were already issued by the
MTCC and that respondents had already individually posted bail. Petitioner thus
concludes, that the issue of whether or not the Regional State Prosecutor committed
grave abuse of discretion when he directed the filing of Informations for perjury
against respondents had already become moot and academic.
Petitioner is not entirely correct. As discussed in Ledesma v. Court of
Appeals26cra1aw (Ledesma), Crespo does not foreclose an appeal made to the
resolution of a prosecutor in the determination of probable cause notwithstanding that
informations had already been filed in court, to wit:chan robles virtual law library
In Marcelo vs. Court of Appeals, the Court clarified that Crespo did
not foreclose the power or authority of the secretary of justice to
review resolutions of his subordinates in criminal cases. The Court
recognized in Crespo that the action of the investigating fiscal or
prosecutor in the preliminary investigation is subject to the approval
of the provincial or city fiscal or chief state prosecutor. Thereafter, it
may be appealed to the secretary of justice.
The justice secretary's power of review may still be availed of
despite the filing of an information in court. x x x27cra1aw
In the case at bar, while it is generally the Secretary of Justice who has the authority
to review the decisions of the prosecutors, this Court agrees with the CA that the
same precedential principles apply in full force and effect to the authority of the CA to
correct the acts tainted with grave abuse of discretion by the prosecutorial officers
notwithstanding the filing of the informations before the MTCC.28cra1aw The authority
of the CA is bolstered by the fact that the petition filed before it was one under Rule
65, therefore it has the jurisdiction to determine whether or not the Regional State
Prosecutor acted with grave abuse of discretion amounting to lack or excess of
jurisdiction.
Ledesma29cra1aw adds that where the secretary of justice exercises his power of
review only after an Information has been filed, trial courts should defer or suspend
arraignment and further proceedings until the appeal is resolved. On this note, the
MTCC was thus correct when it suspended the proceedings in view of the appeal
taken by respondents to the resolution of the Regional State Prosecutor. As observed
by the CA, the suspension of the proceedings by the MTCC was done in the exercise
of its jurisdiction, to wit:chan robles virtual law library
To a certain extent, the respondents' asseverations are correct
when they say by the operative act of filing of the informations
before it, the MTCC has acquired jurisdiction over the criminal
proceedings against petitioners. Indeed, the suspension of said
proceedings is one such exercise of jurisdiction, and therefore,
respondents' worries of the MTCC being divested of jurisdiction or
competence over the proceedings are at best, speculative and
illusory.30cra1aw
Anent the second issue raised by petitioner, the same is without merit. Petitioner
argues that the Regional State Prosecutor did not commit grave abuse of discretion
when it reversed the finding of the city prosecutor that no probable cause existed to
warrant the filing of the Informations against respondents.
In finding grave abuse of discretion, the CA opined that the Regional State Prosecutor
reversed the finding of the City Prosecutor on the simple reason that respondents
failed to submit counter-affidavits. The CA ruled that it would have been different had
the Regional State Prosecutor reversed the resolutions of his subordinate upon a
positive finding of probable cause.
The pertinent portions of the July 30, 2004 Resolution of the Regional State
Prosecutor is hereunder reproduced, to wit:chan robles virtual law library
Perusal of the affidavits executed by Francis Victor D. [Paro] and
Janet A. Florencio reveals the following:chan robles virtual law
library
a) The material matter contained in these
affidavits refer to the act of selling by Filemon
Verzano, Jr. of Tazocin products intended to be
distributed as free samples in violation of
company policy. The date when the sale was
made is not a material issue.
b) The affidavits of the respondent were executed
before a Labor Arbiter and a Notary Public who
are persons authorized to administer oaths.
c) There is also no question that these affidavits
are required by law as they were attached as part
of the position paper submitted with the Labor
Arbiter handling the labor case.
d) Although there is yet no clear evidence that
there was an apparent willful and deliberate
assertion of falsehood on their part, the
respondents by their failure to file or submit their
respective counter-affidavit for their defense, are
deemed to have waived the same and in effect,
the allegations in the complaint remain
uncontroverted.
The case record will show that your Office, in the determination of probable cause vis-
à-vis the attending set of facts and circumstances, failed to consider the application of
the procedure laid down under Section 3 paragraph (d) of Rule 112 of the Revised
Rules of Procedure which provides:chan robles virtual law library
If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10)-day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.
Only a counter-affidavit subscribed and sworn to by the respondent before the Public
Prosecutor can dispute or put at issue the allegations in the complaint thus, a
respondent who fails to submit his counter-affidavit within the required period is
deemed not to have controverted the complainant's evidence.31cra1aw
Contrary to the claim of petitioner that the Regional State Prosecutor found probable
cause, the July 30, 2004 Resolution does not show that the latter actually made an
independent assessment of the evidence presented in the investigation. As a matter
of fact, the clear import of the July 30, 2004 Resolution is that the mere failure of
respondents to submit counter-affidavits automatically warrants a finding of probable
cause against them. The fallacy in such theory is very apparent and the CA is thus
correct when it observed that:chan robles virtual law library
To follow the public respondent Regional State Prosecutor's
skewed premise that only counter-affidavits can dispute or
controvert allegations in the Complaint, would be to perpetuate an
absurdity wherein a criminal complaint should automatically be
resolved in favor of the complainant in the absence of counter-
affidavits. x x x32cra1aw
It is not disputed that the Regional State Prosecutor has the authority to reverse the
findings of the existence of probable cause on review. However, a perusal of the July
30, 2004 Resolution would show that little attempt was made by the Regional State
Prosecutor to discuss the existence or non-existence of probable cause and that
much reliance was made on a flawed interpretation of Section 3, paragraph (d) of the
Revised Rules of Procedure.
What makes matters worse is that in his August 25, 2004 Resolution which dealt with
respondents' Motion for Reconsideration, the Regional State Prosecutor stuck with
his theory and even relied on another flawed interpretation of Section 3, paragraph (b)
of Rule 112, to wit:chan robles virtual law library
x x x It would have been a different scenario if it falls within the
scope of Rule 112, Section 3, paragraph (b) which provides:chan
robles virtual law library
b) Within ten (10) days after the filing of the
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with
the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint
and its supporting affidavits and documents.
In the instant case, the Investigating Prosecutor found ground to
continue with the inquiry which is why he issued subpoenas to the
respondents to submit their counter affidavit within the 10-day
period, since he could have dismissed it initially if indeed there was
really no evidence to serve as a ground for continuing with the
inquiry. For failure of the respondents to file their respective
counter-affidavits, they are deemed to have forfeited their right to
preliminary investigation as due process only requires that the
respondent be given the opportunity to submit counter-affidavit, if
he is so minded. x x x33cra1aw
The clear import of Section 3, paragraph (b), of Rule 112 is that the Investigating
Prosecutor may issue subpoenas if he finds grounds to continue with the
investigation. However, the continuance of the investigation does not necessarily
mean that the result will be an automatic conclusion of a finding of probable cause. To
subscribe to such a theory would defeat the very purpose of a counter-affidavit which
is to honor due process and to provide respondents an opportunity to refute the
allegations made against them. Again, the conclusion reached by the Regional State
Prosecutor is manifestly wrong as the CA was correct when it observed that the
issuance of a subpoena would become unceremoniously clothed with the untoward
implication that probable cause is necessarily extant.34cra1aw
Based on the foregoing, because of the manner by which the Regional State
Prosecutor resolved the case, this Court finds that the same constitutes grave abuse
of discretion, as his interpretation and appreciation of the Rules of Court have no
legal bases.
Lastly, petitioner argues that the petition for certiorari filed by respondents with the CA
was the wrong remedy, considering that the proper procedure was to appeal to the
Secretary of Justice under Department Circular No. 70,35cra1aw otherwise known as
the "2000 NPS Rule on Appeal."
The same deserves scant consideration.
Time and again, this Court has held that the principle of exhaustion of administrative
remedies is not without exception. Based on the previous discussion, the actions of
the Regional State Prosecutor, being patently illegal amounting to lack or excess of
jurisdiction, the same constitutes an exception to the rule on administrative
remedies.36cra1aw
Finally, what is damning to petitioner's cause is the fact that the MTCC had already
withdrawn the two Informations filed against respondents. As previously stated, the
MTCC suspended the proceedings before it in view of the petition filed by the
respondents with the CA. In Ledesma,37cra1aw this Court stated that such deferment
or suspension, however, does not signify that the trial court is ipso facto bound by the
resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is
not lost despite a resolution by the secretary of justice to withdraw the information or
to dismiss the case.38cra1aw Since the Informations for perjury had already been filed
in the MTCC, any subsequent action must be addressed to the said court's discretion.
In the case at bar, the CA found that the Regional State Prosecutor acted with grave
abuse of discretion when he ordered the City Prosecutor to file the Informations for
perjury against respondents. It was because of the CA Decision that the City
Prosecutor eventually filed two Motions for Leave to Withdraw
Informations39cra1aw with the MTCC. On August 30, 2005, the MTCC issued an
Order40cra1aw granting the motion, to wit:chan robles virtual law library
Acting on the Motion for Leave to Withdraw Informations filed by
the prosecution, through 2nd Asst. City Prosecutor Arlene
Catherine A. Dato, and finding it to be impressed with merit, the
same is hereby Granted.
Accordingly, the information against accused Janet Florencio in the
above-entitled case is hereby Withdrawn.
SO ORDERED.41cra1aw
The court is the best and sole judge of what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and competence. Thus,
the court may deny or grant a motion to withdraw an information, not out of
subservience to the (Special) Prosecutor, but in faithful exercise of judicial discretion
and prerogative.42cra1aw The dismissal of the two informations against respondents
were subject to the MTCC's jurisdiction and discretion in view of the circumstances of
the case at bar. Such dismissal ultimately renders the case moot and academic.
WHEREFORE, premises considered, the petition is DENIED. The July 28, 2005
Decision and the February 7, 2006 Resolution of the Court of Appeals, in CA-G.R. SP
No. 86521, are AFFIRMED.

IV.4.5.2 TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E.
MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN
C. GONZALEZ, JR., and BEN YU LIM, JR., Petitioners, v. MAGDALENO M. PEÑA
and HON. MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial
Court in Cities, Bago City, Respondents.
DECISION
NACHURA, J.:
For review is the Decision1 of the Court of Appeals (CA) dated June 20, 2000 in CA-
G.R. SP No. 49666 dismissing the petition for certiorari filed by petitioners Teodoro C.
Borlongan, Jr., Corazon M. Bejasa, Arturo Manuel, Jr., Benjamin de Leon, P. Siervo
Dizon, Delfin C. Gonzalez, Jr., Eric Lee and Ben T. Lim, Jr.
The factual and procedural antecedents of the case are as follows:
Respondent Magdaleno Peña instituted a civil case for recovery of agent's
compensation and expenses, damages, and attorney's fees,2 against Urban Bank and
the petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago
City. The case was raffled to Branch 62 and was docketed as Civil Case No. 754.
Respondent anchored his claim for compensation on the contract of
agency3 allegedly entered into with the petitioners wherein the former undertook to
perform such acts necessary to prevent any intruder and squatter from unlawfully
occupying Urban Bank's property located along Roxas Boulevard, Pasay City.
Petitioners filed a Motion to Dismiss4 arguing that they never appointed the
respondent as agent or counsel. Attached to the motion were the following
documents: 1) a letter5 dated December 19, 1994 signed by Herman Ponce and Julie
Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original owner of the
subject property; 2) an unsigned letter6 dated December 7, 1994 addressed to
Corazon Bejasa from Marilyn G. Ong; 3) a letter7 dated December 9, 1994 addressed
to Teodoro Borlongan and signed by Marilyn G. Ong; and 4) a Memorandum8 dated
November 20, 1994 from Enrique Montilla III. Said documents were presented in an
attempt to show that the respondent was appointed as agent by ISCI and not by
Urban Bank or by the petitioners.
In view of the introduction of the above-mentioned documents, respondent Peña filed
his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He claimed
that said documents were falsified because the alleged signatories did not actually
affix their signatures, and the signatories were neither stockholders nor officers and
employees of ISCI.11 Worse, petitioners introduced said documents as evidence
before the RTC knowing that they were falsified.
In a Resolution12 dated September 23, 1998, the City Prosecutor concluded that the
petitioners were probably guilty of four (4) counts of the crime of Introducing Falsified
Documents penalized by the second paragraph of Article 172 of the Revised Penal
Code (RPC). The City Prosecutor concluded that the documents were falsified
because the alleged signatories untruthfully stated that ISCI was the principal of the
respondent; that petitioners knew that the documents were falsified considering that
the signatories were mere dummies; and that the documents formed part of the
record of Civil Case No. 754 where they were used by petitioners as evidence in
support of their motion to dismiss, adopted in their answer and later, in their Pre-Trial
Brief.13 Subsequently, the corresponding Informations14 were filed with the Municipal
Trial Court in Cities (MTCC), Bago City. The cases were docketed as Criminal Cases
Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the
warrants15 for the arrest of the petitioners.
On October 1, 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants
of Arrest and/or For Reinvestigation.16 Petitioners insisted that they were denied due
process because of the non-observance of the proper procedure on preliminary
investigation prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. They then argued that
since no such counter-affidavit and supporting documents were submitted by the
petitioners, the trial judge merely relied on the complaint-affidavit and attachments of
the respondent in issuing the warrants of arrest, also in contravention of the Rules.
Petitioners further prayed that the information be quashed for lack of probable cause.
Lastly, petitioners posited that the criminal case should have been suspended on the
ground that the issue being threshed out in the civil case is a prejudicial question.
In an Order17 dated November 13, 1998, the court denied the omnibus motion
primarily on the ground that preliminary investigation was not available in the instant
case - - - which fell within the jurisdiction of the MTCC. The court, likewise, upheld the
validity of the warrant of arrest, saying that it was issued in accordance with the
Rules. Besides, the court added, petitioners could no longer question the validity of
the warrant since they already posted bail. The court also believed that the issue
involved in the civil case was not a prejudicial question, and thus, denied the prayer
for suspension of the criminal proceedings. Lastly, the court was convinced that the
Informations contained all the facts necessary to constitute an offense.
Petitioners subsequently instituted a special civil action for Certiorari and Prohibition
with Prayer for Writ of Preliminary Injunction and TRO, before the CA ascribing grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
MTCC in issuing and not recalling the warrants of arrest, reiterating the arguments in
their omnibus motion.18 They, likewise, questioned the court's conclusion that by
posting bail, petitioners already waived their right to assail the validity of the warrant
of arrest.
On June 20, 2000, the CA dismissed the petition.19 Hence, the instant Petition for
Review on Certiorari under Rule 45 of the Rules of Court. Petitioners now raise
before us the following issues:
A.
Where the offense charged in a criminal complaint is not cognizable
by the Regional Trial Court and not covered by the Rule on
Summary Procedure, is the finding of probable cause required for
the filing of an Information in court?cra lawlibrary
 If the allegations in the complaint-affidavit do not establish probable
cause, should not the investigating prosecutor dismiss the
complaint, or at the very least, require the respondent to submit his
counter-affidavit?
B.
Can a complaint-affidavit containing matters which are not within
the personal knowledge of the complainant be sufficient basis for
the finding of probable cause?
C.
Where the offense charged in a criminal complaint is not cognizable
by the Regional Trial Court and not covered by the Rule on
Summary Procedure, and the record of the preliminary investigation
does not show the existence of probable cause, should not the
judge refuse to issue a warrant of arrest and dismiss the criminal
case, or at the very least, require the accused to submit his
counter-affidavit in order to aid the judge in determining the
existence of probable cause?
D.
Can a criminal prosecution be restrained?
E.
Can this Honorable Court itself determine the existence of probable
cause?20
On August 2, 2000, this Court issued a Temporary Restraining Order
(TRO)21 enjoining the judge of the MTCC from proceeding in any manner with
Criminal Cases Nos. 6683 to 6686, effective during the entire period that the case is
pending before, or until further orders of, this Court.
With the MTCC proceedings suspended, we now proceed to resolve the issues
raised.
Respondents contend that the foregoing issues had become moot and academic
when the petitioners posted bail and were arraigned.
We do not agree.
It appears that upon the issuance of the warrant of arrest, petitioners immediately
posted bail as they wanted to avoid embarrassment being then the officers of Urban
Bank. On the scheduled date for the arraignment, despite the petitioners' refusal to
enter a plea, the court entered a plea of "Not Guilty."
The earlier ruling of this Court that posting of bail constitutes a waiver of the right to
question the validity of the arrest has already been superseded by Section 26,22 Rule
114 of the Revised Rules of Criminal Procedure. Furthermore, the principle that the
accused is precluded from questioning the legality of his arrest after arraignment is
true only if he voluntarily enters his plea and participates during trial, without
previously invoking his objections thereto.23
Records reveal that petitioners filed the omnibus motion to quash the information and
warrant of arrest, and for reinvestigation, on the same day that they posted bail. Their
bail bonds likewise expressly contained a stipulation that they were not waiving their
right to question the validity of their arrest.24 On the date of the arraignment, the
petitioners refused to enter their plea, obviously because the issue of the legality of
the information and their arrest was yet to be settled by the Court. This
notwithstanding, the court entered a plea of "Not Guilty." From these circumstances,
we cannot reasonably infer a valid waiver on the part of the petitioners, as to preclude
them from raising the issue of the validity of the arrest before the CA and eventually
before this Court.
In their petition filed before this Court, petitioners prayed for a TRO to restrain the
MTCC from proceeding with the criminal cases (which the Court eventually issued on
August 2, 2000). Thus, we confront the question of whether a criminal prosecution
can be restrained, to which we answer in the affirmative.
As a general rule, the Court will not issue writs of prohibition or injunction, preliminary
or final, to enjoin or restrain criminal prosecution. However, the following exceptions
to the rule have been recognized: 1) when the injunction is necessary to afford
adequate protection to the constitutional rights of the accused; 2) when it is necessary
for the orderly administration of justice or to avoid oppression or multiplicity of actions;
3) when there is a prejudicial question which is sub judice; 4) when the acts of the
officer are without or in excess of authority; 5) where the prosecution is under an
invalid law, ordinance or regulation; 6) when double jeopardy is clearly apparent; 7)
where the Court has no jurisdiction over the offense; 8) where it is a case of
persecution rather than prosecution; 9) where the charges are manifestly false and
motivated by the lust for vengeance; and 10) when there is clearly no prima
facie case against the accused and a motion to quash on that ground has been
denied.25
Considering that the issues for resolution involve the validity of the information and
warrant of arrest, and considering further that no waiver of rights may be attributed to
the petitioners as earlier discussed, we issued a TRO on August 2, 2000 to give the
Court the opportunity to resolve the case before the criminal prosecution is allowed to
continue. The nature of the crime and the penalty involved (which is less than 4 years
of imprisonment), likewise, necessitate the suspension of the case below in order to
prevent the controversy from being mooted.
We now proceed with the main issues, viz.: 1) whether petitioners were deprived of
their right to due process of law because of the denial of their right to preliminary
investigation and to submit their counter-affidavit; 2) whether the Informations
charging the petitioners were validly filed and the warrants for their arrest were
properly issued; and 3) whether this Court can, itself, determine probable cause.
As will be discussed below, the petitioners could not validly claim the right to
preliminary investigation. Still, petitioners insist that they were denied due process
because they were not afforded the right to submit counter-affidavits which would
have aided the court in determining the existence of probable cause.26 Petitioners
also claim that the respondent's complaint-affidavit was not based on the latter's
personal knowledge; hence, it should not have been used by the court as basis in its
finding of probable cause.27 Moreover, petitioners aver that there was no sufficient
evidence to prove the elements of the crime. Specifically, it was not established that
the documents in question were falsified; that petitioners were the ones who
presented the documents as evidence; and that petitioners knew that the documents
were indeed falsified.28 Petitioners likewise assert that at the time of the filing of the
complaint-affidavit, they had not yet formally offered the documents as evidence;
hence, they could not have "introduced" the same in court.29 Considering the
foregoing, petitioners pray that this Court, itself, determine whether or not probable
cause exists.30
The pertinent provisions of the 1985 Rules of Criminal Procedure,31 namely, Sections
1, 3 (a) and 9(a) of Rule 112, are relevant to the resolution of the aforesaid issues:
SECTION 1. Definition. - Preliminary investigation is an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well-founded
belief that a crime cognizable by the Regional Trial Court has been committed and
that the respondent is probably guilty thereof, and should be held for trial.32
SEC. 3. Procedure. - Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed without
a preliminary investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents, in such number of copies as there are respondents, plus two
(2) copies of the official file. The said affidavits shall be sworn to before any fiscal,
state prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, a notary public, who must certify that he personally
examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.33
SEC. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts
not covered by the Rule on Summary Procedure.'
(a) Where filed with the fiscal. - If the complaint is filed directly with the fiscal or state
prosecutor, the procedure outlined in Section 3 (a) of this Rule shall be observed. The
Fiscal shall take appropriate action based on the affidavits and other supporting
documents submitted by the complainant.34
Petitioners were charged with the offense defined and penalized by the second
paragraph of Article 17235 of the Revised Penal Code. The penalty imposable is
arresto mayor in its maximum period to prision correccional in its minimum period, or
four (4) months and one (1) day to two (2) years and four (4) months. Clearly, the
case is cognizable by the Municipal Trial Court and preliminary investigation is not
mandatory.36
Records show that the prosecutor relied merely on the complaint-affidavit of the
respondent and did not require the petitioners to submit their counter-affidavits. The
prosecutor should not be faulted for taking this course of action, because it is
sanctioned by the Rules. To reiterate, upon the filing of the complaint and affidavit
with respect to cases cognizable by the MTCC, the prosecutor shall take the
appropriate action based on the affidavits and other supporting documents submitted
by the complainant. It means that the prosecutor may either dismiss the complaint if
he does not see sufficient reason to proceed with the case, or file the information if he
finds probable cause. The prosecutor is not mandated to require the submission of
counter-affidavits. Probable cause may then be determined on the basis alone of the
affidavits and supporting documents of the complainant, without infringing on the
constitutional rights of the petitioners.
On the other hand, for the issuance of a warrant of arrest, the judge must personally
determine the existence of probable cause. Again, the petitioners insist that the trial
judge erred in issuing the warrant of arrest without affording them their right to submit
their counter-affidavits.
Section 2, Article III of the Constitution provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. But the judge is
not required to personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall (1) personally evaluate the report and
the supporting documents submitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not satisfied that
probable cause exists, he may disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause.37
In determining probable cause for the issuance of the warrant of arrest in the case at
bench, we find nothing wrong with the procedure adopted by the trial judge - - - he
relied on the resolution of the prosecutor, as well as the supporting documents
submitted by the respondent. There is no provision of law or procedural rule which
makes the submission of counter-affidavits mandatory before the judge can
determine whether or not there exists probable cause to issue the warrant.
In light of the foregoing, it appears that the proper procedure was followed by the
prosecutor in determining probable cause for the filing of the informations, and by the
trial court judge in determining probable cause for the issuance of the warrants of
arrest. To reiterate, preliminary investigation was not mandatory, and the submission
of counter-affidavit was not necessary.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
However, notwithstanding the proper observance of the procedure laid down by the
Rules, a closer scrutiny of the records reveals that the Informations should not have
been filed and the warrants of arrest should not have been issued, because of lack of
probable cause.
Probable cause, for purposes of filing a criminal information, has been defined as
such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that the accused is probably guilty thereof.38 It is the existence of such
facts and circumstances as would excite the belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he is to be prosecuted.39 A finding of probable cause needs only
to rest on evidence showing that, more likely than not, a crime has been committed
and that it was committed by the accused.40
On the other hand, we have defined probable cause for the issuance of a warrant of
arrest as the existence of such facts and circumstances that would lead a reasonably
discreet and prudent person to believe that an offense has been committed by the
person sought to be arrested.41
To accord respect to the discretion granted to the prosecutor and for reasons of
practicality, this Court, as a rule, does not interfere with the prosecutor's determination
of probable cause. Otherwise, courts would be swamped with petitions to review the
prosecutor's findings in such investigations.42 In the same way, the general rule is that
this Court does not review the factual findings of the trial court, which include the
determination of probable cause for the issuance of a warrant of arrest.43 It is only in
exceptional cases when this Court may set aside the conclusions of the prosecutor
and the trial judge on the existence of probable cause, that is, when it is necessary to
prevent the misuse of the strong arm of the law or to protect the orderly administration
of justice.44 The facts obtaining in the present case warrant the application of the
exception.
Petitioners were charged with violation of par. 2, Article 172 of the RPC or
Introduction of Falsified Document in a Judicial Proceeding. The elements of the
offense are as follows:
1. That the offender knew that a document was falsified by another
person.
2. That the false document is embraced in Article 171 or in any
subdivisions No. 1 or 2 of Article 172.
3. That he introduced said document in evidence in any judicial
proceeding.45
The falsity of the document and the defendant's knowledge of its falsity are essential
elements of the offense.46
The Office of the City Prosecutor filed the Informations against the petitioners on the
basis of the complaint-affidavit of the respondent, together with the following attached
documents: the motion to dismiss and answer filed by the petitioners in Civil Case No.
754; petitioners' pre-trial brief in said case; the alleged falsified documents; a copy of
the minutes of the regular meeting of ISC during the election of the board; and the list
of stockholders of ISC.47 On the basis of these documents and on the strength of the
affidavit executed by the respondent, the prosecutor concluded that probable cause
exists. These same affidavit and documents were used by the trial court in issuing the
warrant of arrest.
Contrary to the findings of the MTCC, as affirmed by the Court of Appeals, we find the
complaint-affidavit and attachments insufficient to support the existence of probable
cause. Specifically, the respondent failed to sufficiently establish prima facie that the
alleged documents were falsified. In support of his claim of falsity of the documents,
the private respondent stated in his complaint-affidavit that Herman Ponce, Julie Abad
and Marilyn Ong, the alleged signatories of the questioned letters, did not actually
affix their signatures; and that they were not actually officers or stockholders of
ISCI.48 He further claimed that Enrique Montilla's signature appearing in another
memorandum addressed to respondent was forged.49 These are mere assertions,
insufficient to warrant the filing of the complaint or the issuance of the warrant of
arrest.
It must be emphasized that the affidavit of the complainant, or any of his witnesses,
shall allege facts within their (affiants) personal knowledge. The allegation of the
respondent that the signatures of Ponce, Abad, Ong and Montilla were falsified does
not qualify as personal knowledge. Nowhere in said affidavit did respondent state that
he was present at the time of the execution of the documents. Neither did he claim
that he was familiar with the signatures of the signatories. He simply made a bare
assertion that the signatories were mere dummies of ISCI and they were not in fact
officers, stockholders or representatives of the corporation. At the very least, the
affidavit was based on respondent's "personal belief" and not "personal
knowledge."50 Considering the lack of personal knowledge on the part of the
respondent, he could have submitted the affidavit of other persons who are qualified
to attest to the falsity of the signatures appearing in the questioned documents. One
cannot just claim that a certain document is falsified without further stating the basis
for such claim, i.e., that he was present at the time of the execution of the document
or he is familiar with the signatures in question. Otherwise, this could lead to abuse
and malicious prosecution. This is actually the reason for the requirement that
affidavits must be based on the personal knowledge of the affiant. The requirement
assumes added importance in the instant case where the accused were not made to
rebut the complainant's allegation through counter-affidavits.
Neither can the respondent find support in the documents attached to his complaint-
affidavit. The minutes of the regular meeting, as well as the list of stockholders, could
have possibly shown that the signatories were not officers or stockholders of the
corporation. However, they did not at all show that the questioned documents were
falsified. In the letter allegedly signed by Ponce and Abad, there was no
representation that they were the president and corporate secretary of ISCI. Besides,
the mere fact that they were not officers or stockholders of ISCI does not necessarily
mean that their signatures were falsified. They still could have affixed their signatures
as authorized representatives of the corporation.

True, a finding of probable cause need not be based on clear and convincing
evidence, or on evidence beyond reasonable doubt. It does not require that the
evidence would justify conviction. Nonetheless, although the determination of
probable cause requires less than evidence which would justify conviction, it should at
least be more than mere suspicion.51 While probable cause should be determined in a
summary manner, there is a need to examine the evidence with care to prevent
material damage to a potential accused's constitutional right to liberty and the
guarantees of freedom and fair play, and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and holding trials arising from
false, fraudulent or groundless charges.52 It is, therefore, imperative for the prosecutor
to relieve the accused from the pain and inconvenience of going through a trial once it
is ascertained that no probable cause exists to form a sufficient belief as to the guilt of
the accused.53

Considering that the respondent failed to adduce sufficient evidence to support his
claim that the documents were falsified, it follows that the introduction of the
questioned documents in Civil Case No. 754 is not an offense punished by any
provision of the Revised Penal Code or any other law. The petitioners should not be
burdened with court proceedings, more particularly a criminal proceeding, if in the first
place, there is no evidence sufficient to engender a well-founded belief that an
offense was committed.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals,

dated June 20, 2000, in CA-G.R. SP No. 49666 is REVERSED and SET ASIDE. The
Temporary Restraining Order dated August 2, 2000 is hereby made permanent.
Accordingly, the Municipal Trial Court in Cities, City of Bago, is ORDERED to
DISMISS Criminal Case Nos. 6683-86.

IV.4.7.1 G.R. No. 116623 March 23, 1995
PEOPLE OF THE PHILIPPINES and HONORABLE ALFREDO
GUSTILO, petitioners,
vs.
COURT OF APPEALS and ESAM GADI y ABDULLAH, respondents.
RESOLUTION
FELICIANO, J.:
Petitioners assail a Decision of the Court of Appeals which reversed the Regional
Trial Court, Branch 116, of Pasay city and granted the motion for reinvestigation of
private respondent Esam Gadi.
On 31 December 1993, Esam Gadi, a national of Saudi Arabia, was apprehended at
the Manila International Airport and subsequently detained for possession of
marijuana.
On 3 January 1994, an information was filed and docketed as Criminal Case No. 94-
4826 in the Regional Trial Court, Branch 116, Pasay City charging Esam Gadi with
violation of section 81 Article 11, of the Dangerous Drugs Act, as amended.
Three (3) days later, on 6 January 1994, Esam Gadi filed an "Ex Parte Motion to
Reduce Bail," from P90,000.00 to P30,000.00. This Motion was denied. Esam Gadi
then posted a cash bond of P90,000.00 which was approved by the trial court on 10
January 1994.
On 9 February 1994, Esam Gadi filed a motion for "reinvestigation,"1 claiming that the
seriousness of the offense charged warranted the grant of his motion. Admitting that
this motion was filed beyond the five-day period prescribed in Section 7, Rule 112 of
the Rules of Court,2 he contended that the reglementary period was not mandatory.
Section 7, Rule 112 of the Rules of Court provides:
Sec. 7. When accused lawfully arrested without a
warrant. — When a person is lawfully arrested
without a warrant for an offense cognizable by
the Regional Trial Court the complaint
or information may be filed by the offended party,
peace officer or fiscal without a preliminary
investigation having first been conducted, on the
basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or
information, the person arrested may ask for a
preliminary investigation by a proper officer in
accordance with this rule, but he must sign a
waiver of the provisions of Article 125 of the
Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of
his own choice. Notwithstanding such waiver, he
may apply for bail as provided in the
corresponding rule and the investigation must be
terminated fifteen (15) days from its inception.
If the case has been filed in court without a
preliminary investigation having been conducted,
the accused may within five (5) days from the
time he learns of the filing of the information, ask
for a preliminary investigation with the same right
to adduce evidence in his favor in the manner
prescribed in this Rule. (Emphasis supplied)
The motion for "reinvestigation" was denied by the trial court. A motion for
reconsideration was likewise turned down on 8 March 1994, the date of his
arraignment where Esam Gadi pleaded not guilty. He then challenged the denial of
his motion for "reinvestigation" in a petition for certiorari before the Court of Appeals.
The Court of Appeals granted the petition and reversed the trial court Order denying
reinvestigation. Citing Tan vs. Securities Exchange Commission,3 the Court of
Appeals held that the five-day period for asking reinvestigation was only permissive,
considering the use of the word "may." The appellate court also relied on Go vs.
Court of Appeals" and held that a motion for preliminary investigation may be granted
even if trial on the merits had begun, provided that the motion was filed before
arraignment.
In this Petition for Review, the Solicitor General contends that it is a mandatory rule
that a motion for preliminary investigation be filed within five (5) days from the time
the accused had learned of the filing of the information. It is also maintained that
Esam Gadi had waived his right to preliminary investigation when he posted bail for
his release.
Deliberating on the Petition for Review and the Comment of private respondent, the
Court finds that the Court of Appeals fell into reversible error in granting the motion for
"reinvestigation" of private respondent.
The period for filing a motion for preliminary investigation after an information has
been filed against an accused who was arrested without a warrant has been
characterized as mandatory by the Court. In People vs. Figueroa,5 the .Supreme
Court applied Section 15, Rule 1126 of the old Rules, which is substantially
reproduced in Section 7, Rule 112 of the 1985 Rules of Criminal Procedure. The
Court held that Section 15 of old Rule 112 granted the accused the right to ask for
preliminary investigation within a period of five (5) days from the time he learned of
the filing of the information. As the accused in that case did not exercise his
right within the five-day period, his motion for "reinvestigation" was denied.7
Clearly, Section 7 of Rule 112 of the present Rules gives the accused the right to ask
for a preliminary investigation; but it does not give him the right to do so after the
lapse of the five-day period. This is in accord with the intent of the Rules of Criminal
Procedure to make preliminary investigation simple and speedy. The Supreme Court,
elaborating on the rationale of the rules on preliminary investigation, held:
The new Rules were drafted in the light of
the Court's experience with cases where
preliminary investigations had dragged on for
weeks and even months. The Court had
intended to remove this clog upon the judicial
machinery and to make a preliminary
investigation as simple and speedy as is
consistent with the substantial rights of the
accused. The investigation is advisedly
preliminary, to be followed by the trial proper. The
investigating judge or prosecuting officer acts
upon probable cause and reasonable belief, not
upon proof beyond reasonable doubt. The
occasion is not for the full and exhaustive display
of the parties' evidence; it is for the presentation
of such evidence only as may engender well-
grounded belief that an offense has been
committed and that the accused is probably
guilty thereof. When all this is fulfilled, the
accused will not be permitted to cast about for
fancied reasons to delay the proceedings; the
time to ask for more is at the trial.8 (Emphases
supplied)
The respondent Court of Appeals held, however, that the five-day period prescribed in
Section 7, Rule 112 was not mandatory as the provision uses the permissive term
"may." As already noted, the Court of Appeals cited Tan vs. Securities and Exchange
Commission9 where the Supreme Court held that the term "may" as used in adjective
rules is only permissive and not mandatory.
Tan, however, does not really support a ruling that the five-day period for asking for
preliminary investigation of a person accused of crime is only permissive. Tan was
concerned with "may" as used in a provision of the Corporation Code dealing with the
transfer of shares of stock. Two (2) cases relied upon in Tan are equally inapplicable
to the present case. In Shauf vs. Court of Appeals, 10 "may" was used in a U.S.
federal statute on equal opportunity for civilian employment in U.S. military
installations which enumerated the remedies of an aggrieved party. Holding that
remedial statutes
are to be construed liberally and that the term "may" as used in adjective rules was
only permissive and not mandatory, our Supreme Court held that the substantive
remedies of a party were not limited to those enumerated in that U.S.
legislation. 11 In Legaspi vs. Estrella, 12 the Court had to interpret "may" as used in
section 146 of Batas Pambansa Blg. 337 or the old Local Government Code. That
term, being indicative of a "possibility" or an 'opportunity," was read as permissive
rather than mandatory to avoid defeating the purpose of the law immediately to
include sectoral representatives in the legislative councils of local government units.13
While Tan and the cases there cited show that the use of the term "may" is indicative
of an Opportunity or possibility, they cannot be used to support the proposition that
the five-day period under section 7 of Rule 112 is not mandatory and may be
disregarded at will. The "opportunity" or "possibility" engendered by the use of the
term "may" in this rule relates only to the option of filing a motion for preliminary
investigation; it does not refer to the filing of the motion after the expiration of the five-
day period. This rule grants the accused a right or faculty and not an obligation. In the
sense that he is not obliged to exercise this right, this rule is permissive only; in the
sense that he may exercise this right only within the five-day period, the rule
is mandatory. Put a little differently, Esam Gadi had the option or faculty of demanding
preliminary investigation; if he wanted to exercise that option, however, he had to
exercise it within the reglementary period. Upon expiration of that period, his option
lapsed.
Much the same situation obtains in respect of the period for filing a petition for review.
Section 1, Rule 45 of the Rules of Court provides that:
Sec. 1. Filing of petition with Supreme Court. — A party may appeal
by certiorari from a judgment of the Court of Appeals, by filing with
the Supreme Court a petition for certiorari within fifteen (15)
days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to
the clerk of said court the corresponding docketing fee. The petition
shall not be acted upon without proof of service of a copy thereof to
the Court of Appeals. (Emphasis supplied)
The use of "may" in Section 1 of Rule 45 refers only to the opportunity or option to file
a petition for review. This, however, does not give a party a license to file a petition for
review beyond the fifteen-day period. Hence, under Rule 45, Section 1, a petition for
review filed after lapse of the fifteen-day period is not to be entertained. Innumerable
petitions have been denied by the Court for having been filed unseasonably.
The reliance of the Court of Appeals on the case of Rolito Go vs. Court
of Appeals 14 is misplaced. In Go, as in the present case, an information was filed
without a prior preliminary investigation of the accused. The accused in both cases
demanded their right to a preliminary investigation before arraignment. The similarity
between the two (2) cases ends there. There are, upon the other hand, critical
differences in the fact situations in one and the other case which must not be
overlooked.
In Go, the accused asked for preliminary investigation on the very day the information
was filed. In the present case, Esam Gadi did so only on 9 February 1994, or a month
after he had learned of the filing of the information against him.
In the present case, Esam Gadi insists on the application of Section 7, Rule 112 in
effect claiming or conceding there was a lawful warrantless arrest. It appears that the
accused was apprehended while engaged in the commission of an offense, i.e,
possession of marijuana punishable under Section 8, Article II of the Dangerous
Drugs Act, as amended. In Go, the Court relied on the general rule that an information
may be filed only after a preliminary investigation has been conducted. The Court did
not apply Section 7, Rule 112 because there had been no arrest at all. The Court
found that accused Rolito Go had merely walked into the police station in the
company of his two lawyers and placed himself at the disposal of the police
authorities. In fact, the Court did not consider his act as surrender for the accused did
not expressly declare that he was surrendering himself, probably to avoid the
implication that he was admitting his guilt.
Further, in Go, the Prosecutor had himself filed with the trial court a motion for leave
to conduct a preliminary investigation. This motion, along with the application for bail,
was in fact initially granted by the trial court. But the trial court a few days later turned
around and inexplicably changed its mind, cancelled the bail, refused to accord
preliminary investigation to the accused Go and the trial began over the vehement
protests of Go. The court said:
Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation
and not for a re-investigation (Crespo vs. Mogul
involved a re-investigation),
and since the Prosecutor himself did file with the
trial court, on the 5th day after filing the
information for murder, a motion for leave to
conduct preliminary investigation (attaching to his
motion a copy of petitioner's omnibus motion), we
conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal
clear was that petitioner did ask for a preliminary
investigation the very day that the information
was filed without such preliminary investigation,
and that the trial court was five (5) days later
apprised of the desire of the petitioner such
preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the
Prosecutor that Section 7 of Rule 112 of the
Revised Rules of Court was applicable, the 5-day
reglementary period on Section 7 Rule 112 must
be held to have been substantially complied
with. 15 (Emphases supplied)
Hence, while the accused in Go was entitled to preliminary investigation as a matter
of right, Esam Gadi is not. His right to demand preliminary investigation was subject
to the condition that he should claim it seasonably. He did not do so. Esam Gadi,
accordingly, effectively waived his right to a preliminary investigation.
The denial of Esam Gadi's motion for preliminary investigation is also warranted: by
his posting of a cash bail bond without previously or simultaneously demanding a
preliminary investigation. In People vs. Hubilo,16 an accused who had posted bail was
deemed to have foregone his right to preliminary investigation. In the present case,
Esam Gadi asked for and was granted bail on 10 January 1994, or one month before
he asked for a preliminary investigation on 9 February 1994. Once more Esam Gadi
in fact waived his right to preliminary investigation.
In Go, in contrast, the accused had asked for preliminary investigation and the right to
post bail at the same time in one omnibus motion. Accordingly, the Court held that the
accused in Go had not waived his right to preliminary investigation:
Again, in the circumstances of this case, we do
not believe that by posting bail, petitioner had
waived his right to preliminary investigation.
In People v. Selfaison (110 Phil. 839 [1961]), we
did not hold that appellants there had waived
their right to preliminary investigation because
immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming
that they did not have the benefit of a preliminary
investigation." In the instant case, petitioner Go
asked for release on recognizance or on bail and
for preliminary investigation in one omnibus
motion. He had thus claimed his right to
preliminary investigation before respondent
Judge approved the cash bond posted by
petitioner and ordered his release on 12 July
1991. Accordingly, we cannot reasonably imply
waiver of preliminary investigation on the part of
petitioner. In fact, when the Prosecutor filed a
motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly
recognized that petitioner's claim to preliminary
investigation was a legitimate one.17 (Emphases
partly in the original and partly supplied)
All in all, Esam Gadi's demand for preliminary investigation was an afterthought
merely.
WHEREFORE, the petition for Review is hereby GRANTED and the assailed
Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Orders
of the Regional Trial Court, Branch 116 of Pasay City dated 14 February 1994 and 8
March 1994 are hereby REINSTATED and the Regional Trial Court is ORDERED to
proceed with the trial of Criminal Case No. 94-4820, with all deliberate dispatch.
Costs against private respondent.

IV.4.8.1 G.R. No. 114046 October 24, 1994
HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,
vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor.
DENNIS M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES;
and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of
the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents.
Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for
petitioners.
REGALADO, J.:
Submitted for resolution in the present special civil action are: (1) the basic petition
for certiorari and mandamus with a petition for habeas corpus, to review the
resolution issued by respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261;1 (2) the Urgent Motion2 and
Supplemental Urgent Motion3 for Immediate Action on Petition for Habeas corpus;
and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant
Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings
(with Immediate Prayer for another Cease and Desist Order).4
On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San
Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate
informations with homicide and two counts of frustrated homicide fot has been the
rule that under the first paragraph of Section 14, Rule 110, the amendment of the
information may also be made even if it may result in altering the nature of the charge
so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as
Criminal Cases Nos. 3642-M-93 to 3644-M-93.5 Both accused posted their respective
cash bail bonds and were subsequently released from detention.
On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a
Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review
the evidence on record and determine once more the proper crimes chargeable
against the accused,"6 which was granted by Judge Villajuan in an order dated
November 16, 1993.7 Thereafter, pursuant to Department Order No. 369 of the
Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was
designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a
re-investigation of the aforesaid criminal cases filed against herein petitioners.8
9
By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 filed by
respondent prosecutor, the proceedings were again ordered suspended by Judge
Villajuan until after the prosecution's request for change of venue shall have been
resolved by the Supreme Court, and the preliminary investigation being conducted by
the former shall have been terminated. 10 It appears that on December 2, 1993,
private complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with
the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93
to 3644-M-93, purportedly to safeguard the lives of the victims and their witnesses,
and to prevent a miscarriage of justice. 11
On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos.
3642-M-93 to 3644-M-93, respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases. 12 This motion was granted by
Judge Villajuan also on December 15, 1993 and the cases were considered
withdrawn from the docket of the court. 13 On the same day, Prosecutor Villa-Ignacio
filed four new informations against herein petitioners for murder, two counts of
frustrated murder, and violation of Presidential Decree No. 1866 for illegal possession
of firearms 14 which were subsequently raffled to the sala of Judge Victoria Pornillos of
Branch 10, Regional
Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos.
4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder,
Judge Pornillos ordered the arrest of herein petitioners. 15 On December 23, 1993,
said presiding judge issued an order setting the arraignment of the accused for
December 27, 1993. 16
On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset
due to the absence of respondent prosecutor. On even date, petitioners filed before
Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993
which granted the motion to withdraw the original informations. 17
Thereafter, a Motion to Quash the new informations for lack
of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At
the court session set for the arraignment of petitioners on January 24, 1994, Judge
Pornillos issued an order denying the motion to quash and, at the same time, directed
that a plea of not guilty be entered for petitioners when the latter refused to enter their
plea. 19
In the meantime, and prior to the arraignment of herein petitioners before Judge
Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the
motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal
Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused
therein for February 8, 1994. 20 On said date, however, the arraignment was
suspended and, in the meanwhile, petitioners filed a petition for certiorari, prohibition
and mandamus with respondent Court of Appeals, assailing the order dated January
24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in
Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court
dismissed the petition in its questioned resolution of February 18, 1994, hence this
petition.
I. On the Main Petition
The main issue in this case involves a determination of the set
of informations under which herein petitioners should be tried, that is, (a) the first set
of informations for homicide and frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder,
frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-
93 to 4007-M-93. Several corollary but equally important issues have likewise been
addressed to us for resolution, to wit:
1. Whether the ex parte motion to withdraw the original informations
is null and void on the ground that (a) there was no notice and
hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of
Court; and (b) the appropriate remedy which should have been
adopted by the prosecution was to amend the informations by
charging the proper offenses pursuant to Section 14 of Rule 110;
2. Whether the order granting the withdrawal of the original
informations was immediately final and executory;
3. Whether Judge Pornillos was correct in denying the motion to
quash and thereby acquired jurisdiction over the new informations
considering that (a) the designated public prosecutor allegedly had
no authority to file the second set of informations; and (b) the filing
thereof constituted forum shopping; and
4. Whether the arraignment proceeding held on January 24, 1994
in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid.
We shall discuss these issues seriatim.
1. It is petitioners' submission that the prosecution's failure to serve them a copy of
the motion to withdraw the original informations and to set said motion for hearing
constitutes a violation of their right to be informed of the proceedings against them, as
well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so
they contend, the ex parte motion should be considered as a worthless scrap of paper
and Judge Villajuan had no authority to act on it. Ergo, the order granting the same is
null and void.
Petitioners advance the theory that respondent prosecutor should have amended the
original informations instead of withdrawing the same and filing new ones. They
postulate that the principle of nolle prosequi does not apply in this case since the
withdrawal or dismissal of an information is addressed solely to the sound and
judicious discretion of the court which has the option to grant or deny it and the
prosecution cannot impose its opinion on the court. It is further stressed that in case
there is a need to change the nature of the offense charged, that is, from homicide to
murder, by adding the qualifying circumstance of treachery, the only legal and proper
remedy is through the filing of the corresponding amended information; and that the
withdrawal of an information is allowed only where the new information involves a
different offense which does not include or is not included in the offense originally
charged.
Normally, an accused would not object to the dismissal of an information against him
because it is to his best interest not to oppose the same. Contrarily, if the accused
should deem such conditional or provisional dismissal to be unjust and prejudicial to
him, he could object to such dismissal and insist that the case be heard and decided
on the merits. 21 However, considering that in the original cases before Branch 14 of
the trial court petitioners had not yet been placed in jeopardy, and the ex parte motion
to withdraw was filed and granted before they could be arraigned, there would be no
imperative need for notice and hearing thereof. In actuality, the real grievance of
herein accused is not the dismissal of the original three informations but the filing of
four new informations, three of which charge graver offenses and the fourth, an
additional offense. Had these new informations not been filed, there would obviously
have been no cause for the instant petition. Accordingly, their complaint about the
supposed procedural lapses involved in the motion to dismiss filed and granted in
Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid
presentation of their real position.
Petitioners' contention that the dismissal of the original informations and the
consequent filing of the new ones substantially affected their right to bail is too
strained and tenuous an argument. They would want to ignore the fact that had the
original informations been amended so as to charge the capital offense of murder,
they still stood to likewise be deprived of their right to bail once it was shown that the
evidence of guilt is strong. Petitioners could not be better off with amended
informations than with the subsequent ones. It really made no difference considering
that where a capital offense is charged and the evidence of guilt is strong, bail
becomes a matter of discretion under either an amended or a new information.
Contrary to petitioners' submission, the absence of notice and hearing does not divest
a trial court of authority to pass on the merits of the motion. It has been held that —
The order of the court granting the motion to dismiss despite
absence of a notice of hearing, or proof of service thereof, is merely
an irregularity in the proceedings. It cannot deprive a competent
court of jurisdiction over the case. The court still retains its authority
to pass on the merits of the motion. The remedy of the aggrieved
party in such cases is either to have the order set aside or the
irregularity otherwise cured by the court which dismissed the
complaint, or to appeal from the dismissal and not certiorari. 22
Besides, when petitioners were given by Judge Villajuan the opportunity to file a
motion for reconsideration, even assuming the alleged procedural infirmity in his
issuance of the order of dismissal, the same was thereby deemed cured. This is
especially so in this case since, on his order, the original informations were reinstated
in Branch 14 of the trial court.
The rule is now well settled that once a complaint or information is filed in court any
disposition of the case, whether as to its dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the court. Although the prosecutor
retains the direction and control of the prosecution of criminal cases even when the
case is already in court, he cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court,
once the case had already been brought therein any disposition the prosecutor may
deem proper thereafter should be addressed to the court for its consideration and
approval. 23 The only qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the People to due process of law.
We reiterate once again the doctrine we enunciated and explained in Crespo vs.
Mogul, etc., et al.: 24
Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of
Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or
deny it and require that the trial on the merits proceed for the
proper determination of the case.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while
the case is already in Court he cannot impose his opinion on the
trial court. The court is the best and sole judge on what to do with
the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case
filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done
before or after the arraignment of the accused or that the motion
was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
In such an instance, before a re-investigation of the case may be conducted by the
public prosecutor, the permission or consent of the court must be secured. And, if
after such re-investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such proposed course of
action may be taken but shall likewise be addressed to the sound discretion of the
court. 25
It is not denied that in the present case, the court granted the motion of respondent
prosecutor for the suspension of the proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived
at a finding that petitioners should have been charged with murder, frustrated murder,
and illegal possession of firearms. This prompted him to file an ex parte motion to
withdraw the original informations for homicide and frustrated homicide. Although the
motion did not state the reasons for the withdrawal of the informations, nevertheless,
the court in the exercise of its discretion granted the same, as a consequence of
which a new set of informations was thereafter filed and raffled to another branch of
the court. Petitioners now question the propriety of the procedure adopted by the
prosecution, insisting that an amendment, not a new information, was required under
the circumstances.
It must here be emphasized that respondent prosecutor sought, and was
subsequently granted, permission by the court to dismiss the original informations. It
cannot therefore be validly claimed that the prosecutor exceeded his authority in
withdrawing those informations because the same bore the imprimatur of the court.
The issue is thus focused on whether or not under the given situation the court acted
correctly in dismissing the original informations rather than ordering the amendment
thereof.
It has been observed that while the Rules of Court gives the accused the right to
move for the quashal of the information, it is silent with respect to the right of the
prosecutor to ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules
on Criminal Procedure will show that there are only two provisions concerning the
dismissal of an information other than on motion of the accused, namely, Section 14
of Rule 110 and Section 11 of Rule 119. But then, it may be contended that these
rules speak of a dismissal by the court when there is a mistake in charging the proper
offense, but make no mention of a dismissal made upon application of the
prosecution. That is not necessarily so.
It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110,
providing as it does that:
Sec. 11. When mistake has been made in charging the proper
offense. — When it becomes manifest at any time before judgment,
that a mistake has been made in charging the proper offense, and
the accused cannot be convicted of the offense charged, or of any
other offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In
such case, the court shall commit the accused to answer for the
proper offense and dismiss the original case upon the filing of the
proper information. (Emphasis supplied.)
Rule 119 is the rule specifically governing the trial stage where evidence is
necessarily being presented, hence the trial court is now in a better position to
conclude that manifestly the accused cannot be convicted of the offense charged or
of one that it necessarily includes. It would primarily be the function of the court
to motu proprio order the dismissal of the case and direct the filing of the appropriate
information. We do not discount the possibility of either the prosecution or the
defense initiating such dismissal and substitution at that stage, although, from a
realistic point of view, that would be a rare situation. This provision, therefore, is more
directly and principally directed to the trial court to invest it with the requisite authority
to direct by itself the dismissal and refiling of the informations therein contemplated.
Rule 110, on the other hand, provides the procedural governance for the prosecution
of offenses. Section 14 thereof, quoted infra, provides in its second paragraph the
procedure and requisites for the substitution of a defective information by the correct
one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that
substitution is "at any time before judgment," unlike the latter situation it is sufficient
that "it appears . . . that a mistake has been made in charging the proper
offense, . . . ." The situation under said Section 14 contemplates a longer time span,
inclusive of the period from the filing of the information up to and before trial. Since no
evidence has been presented at that stage, the error would appear or be discoverable
from a review of the records of the preliminary investigation. Of course, that fact may
be perceived by the trial judge himself but, again, realistically it will be the prosecutor
who can initially determine the same. That is why such error need not be manifest or
evident, nor is it required that such nuances as offenses includible in the offense
charged be taken into account. It necessarily follows, therefore, that the prosecutor
can and should institute remedial measures for the dismissal of the original
information and the refiling of the correct one, otherwise he would be recreant to his
duties.
It is interesting to note that in the American jurisdiction, such right is specifically
recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which
provides that the entry of a nolle prosequi by the Government is a permissible right,
although requiring in all cases the approval of the court in the exercise of its judicial
discretion. 27 As a matter of fact, the prosecuting attorney is given the broad power,
sole authority and discretion to enter a nolle prosequi provided he does not act
arbitrarily 28 and subject to the discretion of the court.
In several cases, we have also impliedly recognized the propriety of such a procedure
particularly in those instances where the prosecution is allowed to dismiss or
withdraw an information on the ground of insufficiency of evidence. We have even
gone further by imposing upon the fiscal, as he was then called, the duty to move for
the dismissal of the information if he is convinced that the evidence is insufficient to
establish, at least prima facie, the guilt of the accused. 29
In this case now before us, what is involved is a dismissal effected at the instance of
the prosecutor by reason of a mistake in charging the proper offense, in order that
new informations can be filed. The problem that may be posited, and should now be
resolved, is when the fiscal may be allowed to move to dismiss an information and
when he should merely move to amend it.
Section 14 of Rule 110, which is invoked by petitioners, reads as follows:
Sec. 14. Amendment. — The information or complaint may be
amended, in substance or form, without leave of court, at any time
before the accused pleads; and thereafter and during the trial as to
all matters of form, by leave and at the discretion of the court, when
the same can be done without prejudice to the rights of the
accused.
If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby in double
jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.
The first paragraph provides the rule for amendment of the information or complaint,
while the second paragraph refers to the substitution of the information or complaint.
Under the second paragraph, the court can order the filing of another information to
charge the proper offense, provided the accused would not be placed thereby in
double jeopardy and that could only be true if the offense proved does not necessarily
include or is not necessarily included in the offense charged in the original
information.
It has been the rule that under the first paragraph of Section 14, Rule 110, the
amendment of the information may also be made even if it may result in altering the
nature of the charge so long as it can be done without prejudice to the rights of the
accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were
originally charged with homicide and were released on bail. However, the then
provincial fiscal, after a review of the affidavits of the witnesses for the prosecution,
discovered that the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage of superior strength, and employing
means to weaken the defense of the victim. Consequently, an amended information
for murder was filed against the accused who were ordered re-arrested without the
amount of bail being fixed, the new charge being a capital offense.
The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule
106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on
Criminal Procedure), thus:
Here these rules properly apply, since it is undisputed that the
herein accused were not yet arraigned before the competent court
when the complaint for homicide was amended so as to charge the
crime of murder. Upon the authority of said rules, the amendment
could therefore be made even as to substance in order that the
proper charge may be made. The claim that such amendment can
only refer to matters of specification affecting the elements
constituting the crime is not correct, for there is nothing in the rule
to show that the nature of the amendment should only be limited to
matters of specification. The change may also be made even if it
may result in altering the nature of the charge so long as it can be
done without prejudice to the rights of the defendant.
Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an
amendment, an information for homicide may also be dismissed before the accused
pleads, to give way to the filing of a new information for murder. This may be deduced
from the pronouncement of the Court in the aforecited case of Dimalibot, to wit:
This clearly appears from the second part of Section 13 of Rule 106
which says that, if it appears before judgment that a mistake has
been made in charging the proper offense, the court may dismiss
the original information and order the filing of a new one provided
the defendant may not be placed in double jeopardy. If a new
information may be ordered at any time before judgment no reason
is seen why the court may not order the amendment of the
 information if its purpose is to make it conformable to the true
nature of the crime committed. . . .
In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 31 however, Section 14
of Rule 110 was clarified to mean as follows:
It may accordingly be posited that both amendment and substitution
of the information may be made before or after the defendant
pleads, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes,
while substitution necessarily involves a substantial change from
the original charge;
2. Amendment before plea has been entered can be effected
without leave of court, but substitution of information must be with
leave of court as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the plea of the
accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the
new information; and
4. An amended information refers to the same offense charged in
the original information or to an offense which necessarily includes
or is necessarily included in the original charge, hence substantial
amendments to the information after the plea has been taken
cannot be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double
jeopardy. On the other hand, substitution requires or presupposes
that the new information involves a different offense which does not
include or is not necessarily included in the original charge, hence
the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment
under the first paragraph of Section 14, Rule 110, or a substitution
of information under the second paragraph thereof, the rule is that
where the second information involves the same offense, or an
offense which necessarily includes or is necessarily included in the
first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is
distinct and different from that initially charged, a substitution is in
order.
In any event, we are inclined to uphold the propriety of the withdrawal of the original
informations, there having been no grave abuse of discretion on the part of the court
in granting the motion and, more importantly, in consideration of the fact that the
motion to withdraw was filed and granted before herein petitioners were arraigned,
hence before they were placed in jeopardy. Thus, even if a substitution was made at
such stage, petitioners cannot validly claim double jeopardy, which is precisely the
evil sought to be prevented under the rule on substitution, for the simple reason that
no first jeopardy had as yet attached. Consequently, we hold that although the
offenses charged under the three new informations necessarily include those charged
under the original informations, the substitution of informations was not a fatal error. A
contrary ruling, to paraphrase from our former pronouncements, would sacrifice
substantial justice for formal nuances on the altar of procedural technicalities.
Furthermore, petitioner's right to speedy trial was never violated since the new
informations were filed immediately after the motion to withdraw the original
informations was granted.
2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon
the new informations for murder, frustrated murder and illegal possession of firearms,
is grounded on three points of disagreement.
Firstly, it is argued that the new informations were prematurely filed considering that
the order granting the withdrawal of the original informations had not yet become final
and executory and that, as a matter of fact, the same was subsequently reconsidered
and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge
Pornillos could not acquire jurisdiction over the same offense involving the same
incident and the same accused.
Secondly, petitioners contend that the dismissal of the original informations and the
filing of new ones which were raffled to another branch of the court constituted forum
shopping, and was tainted with malice considering the indecent haste with which the
motion to withdraw the informations was filed, the order granting the same was
issued, and the new informations were filed, all of which took place on the same day.
Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the
other courts, it is theorized that the cognizance of the case taken by Judge Villajuan
barred Judge Pornillos from assuming jurisdiction thereover.
Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then
First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor
of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so
petitioners vigorously argue, that in the absence of such authority, the informations
should be considered null and void by reason of which Judge Pornillos did not acquire
jurisdiction over the same.
On the other hand, respondents question the propriety of petitioners' filing of a
petition for certiorari prohibition and mandamus in the Court of Appeals against the
order of the lower court denying petitioners' motion to quash, claiming that the proper
remedy was to proceed to trial on the merits and thereafter raise on appeal, as
special defenses, the grounds invoked in the motion to quash.
It is a general rule that a nolle prosequi or dismissal entered before the accused is
placed on trial and before he is called on to plead is not equivalent
to an acquittal, 32 and does not bar a subsequent prosecution for the same
offense. 33 It is not a final disposition of the case. 34 Rather, it partakes of the nature of
a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition
in which it was before the commencement of the prosecution. 35
A dismissal is different from an acquittal. An order of dismissal which is actually an
acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal
is always based on the merits, that is, the defendant is acquitted because the
evidence does not show that defendant's guilt is beyond reasonable doubt; but a
dismissal does not decide the case on the merits or that the defendant is not guilty.
Dismissals terminate the proceedings, either because the court is not a court of
competent jurisdiction, or the evidence does not show that the offense was committed
within the territorial jurisdiction of the court, or the complaint or information is not valid
or sufficient in form and substance. 37 For dismissal to be a bar under double
jeopardy, it must have the effect of acquittal.
All these go to show, therefore, that the dismissal of Criminal Cases
Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners.
Consequently, the same did not immediately become final, hence petitioners could
still file a motion for the reconsideration thereof. Moreover, such dismissal does not
constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet
attached, herein petitioners were not prejudiced by the filing of the new informations
even though the order of dismissal in the prior case had not yet become final. Neither
did it affect the jurisdiction of the court in the subsequent case.
In American legal practice, where a motion for an order of nolle prosequi is made, the
only power to deny the motion would be based on failure of the district attorney to
judiciously exercise his discretion. 39 In most cases, the motion will be readily granted
and should not be refused unless the court has some knowledge that it is based on
an improper reason or a corrupt motive. But such a motion to dismiss will not also be
approved unless the court is satisfied that the administration of justice requires that
the prosecution be ended, or if there appears to be a clear violation of the
law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw
should not be construed as a denigration of the authority of the special prosecutor to
control and direct the prosecution of the case, 41 since the disposition of the case
already rests in the sound discretion of the court.
This brings us to the question as to whether or not an order of dismissal may be
subsequently set aside and the information reinstated. Again, in American
jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be
set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may
be recalled and that the accused may be tried on the same information,43 but before it
can be retraced, set aside, cancelled, or struck off, the permission or assent of the
court must be had and obtained, and such cancellation or retraction must be duly
entered. According to other authorities, however, the entry of an unconditional nolle
prosequi, not on the ground that the information is insufficient on its face, is an end to
the prosecution of that information, and such nolle prosequi cannot afterward be
vacated and further proceedings had in that case.44
Still in some cases, it has been held that a nolle prosequi may be set aside by leave
of court, so as to reinstate proceedings on the information, or unless it was entered by
mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to
be set aside by leave of court. In one case, it was held that in the absence of any
statutory provision to the contrary, the court may, in the interest of justice, dismiss a
criminal case provisionally, that is, without prejudice to reinstating it before the order
becomes final or to the subsequent filing of a new information for the offense. 46
The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will
retain it to the end to the exclusion of other tribunals, is not to be given unyielding
effect in all cases and it does not apply where the jurisdiction of the first court has
come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions
is intended to prevent confusion and conflicts in jurisdiction and to prevent a person
from being twice tried for the same offense, but no accused has a vested right to be
tried in any particular court of concurrent jurisdiction; and when one court of
concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the
case, there can be no legal or logical reason for preventing the other court from
proceeding. 48 With much more reason will this rule apply where only branches of the
same court, and not different courts, are involved in the jurisdictional conflict.
There was no forum shopping in the lower court with respect to the case involved.
While the procedure adopted by the prosecution was somewhat cumbersome, it was
not in bad faith and, accordingly, it did not affect the legality of the proceedings. There
is no showing, and petitioners failed to prove otherwise, that the assignment by raffle
of the new informations to another branch of the same court was intended to
prejudice herein petitioners, or to place them under less favorable circumstances, or
to find a court which would act favorably on the prosecution's case.
The authority of the special prosecutor appointed by the Secretary of Justice to sign
and file informations has long been recognized in this jurisdiction and it has been held
that such information cannot be quashed on that account. There is nothing so
sacrosanct in the signing of complaints, holding of investigations, and conducting
prosecutions that only an officer appointed by the President or one expressly
empowered by law be permitted to assume these functions. 49 And any irregularity in
the appointment does not necessarily invalidate the same if he may be considered
a de facto officer. 50
Of course, where the person who signed the information was disqualified from
appointment to such position, the information is invalid and the court does not acquire
jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining
in the case at bar. It will be noted that respondent prosecutor was designated by the
Secretary of Justice to handle the re-investigation
and prosecution of the case against petitioners pursuant to Department Order No.
369. Petitioners failed to show any irregularity in the issuance of said directive.
At any rate, the power of supervision and control vested in the Secretary of Justice
under Presidential Decree No. 1275 had been broadened beyond the confines of the
old law, that is, Section 1679 of the Revised Administrative Code, wherein the power
of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo,
et al. vs. Domagas, et al., 52 we said:
 The Court notes, however; that Department of Justice Order No. 85
was issued pursuant to, among others, P.D. No. 1275 issued on 11
April 1978 which provides:
Sec. 1. Creation of the National Prosecution
Service; Supervision and Control of the
Secretary of Justice. — There is hereby created
and established a National Prosecution Service
under the supervision and control of the
Secretary of Justice, to be composed of the
Prosecution Staff in the Office of the Secretary of
Justice and such number of Regional State
Prosecution Offices, and Provincial and City
Fiscal's Offices as are hereinafter provided,
which shall be primarily responsible for the
investigation and prosecution of all cases
involving violations of penal laws.
The power of supervision and control vested in
the Secretary of Justice includes the authority to
act directly on any matter within the jurisdiction of
the Prosecution Staff, the Regional State
Prosecution Office or the Office of the Provincial
or City Fiscal and to review, modify or revoke any
decision or action of the Chief of said staff or
office.
The power of supervision and control vested in the Secretary of
Justice under P.D. No. 1275 had thus been broadened beyond the
confines of the old law, i.e., Section 1679 of the Revised
Administrative Code of 1917, where the power of the Secretary of
Justice to designate acting fiscals or prosecutors to handle a
particular case was limited to instances "when a provincial fiscal
shall be disqualified by personal interest to act in a particular case
or when for any reason he shall be unable, or shall fail to discharge
any of the duties of his position." Indeed, the limitation upon which
petitioners rely no longer subsisted under P.D. No. 1275.
Having been duly designated in accordance with law, the panel of
prosecutors had complete control of the investigation and
prosecution of the case. . . .
3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994,
when Judge Pornillos entered a plea of not guilty for them after they refused to plead,
without furnishing them copies of the information with the list of witnesses, after
merely reading the informations against them and asking whether they understood
the same, which were allegedly in palpable violation of Section 1, Rule 116.
Petitioners aver that they were requesting for the suspension of the arraignment as
they wanted to have a final copy of the order of January 24, 1994 which was merely
read in open court, and to take the necessary steps to question the same by way of a
motion for reconsideration or an appeal.
In criminal cases, it is the duty of the accused, in addition to the other pleas
authorized by law, to plead whether he is guilty or not of the crime charged. In that
way and in that way only can an issue be created upon which the trial shall
proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses
to plead, a plea of not guilty shall be entered for him. Hence, under such mandatory
language, if the accused refuses to plead, the court must enter a plea of not guilty.
The words are so plain and unambiguous that no construction is necessary. It actually
calls for a literal application thereof. Any explanation or defense which petitioners
would want to invoke can be properly raised during the trial, but they cannot refuse to
enter their plea. Nonetheless, the alleged defect in their arraignment on January 24,
1994 is deemed to have been cured when they were again arraigned on February 18,
1994 with the assistance of counsel de oficio, and the information was read to them in
the vernacular.
In conclusion, considering that Branch 10 of the same trial court handling Criminal
Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new
informations which we have likewise declared valid, petitioners may be prosecuted
thereunder.
II. On the Petition for Habeas corpus
This petition is predicated mainly on petitioners' asseveration that the court which
issued the warrant for their arrest had no jurisdiction over the case, hence their
detention should be deemed illegal.
We have earlier declared that Branch 10 of the trial court acquired jurisdiction over
the new set of informations. Consequently, the warrant of arrest issued on the bases
of said informations filed therein and the subsequent detention of herein petitioners
pursuant thereto are valid. What instead has to be resolved is the corollary issue of
whether the petition for habeas corpus was properly filed together with their present
petition for certiorari and mandamus.
The writs of habeas corpus and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of the higher courts. A writ
of habeas corpus reaches the body and the jurisdictional matters, but not the record.
A writ of certiorari reaches the record but not the body. Hence, a writ of habeas
corpus may be used with the writ of certiorari for the purpose of
review. 54 However, habeas corpus does not lie where the petitioner has the remedy
of appeal or certiorari because it will not be permitted to perform the functions of a
writ of error or appeal for the purpose of reviewing mere errors or irregularities in the
proceedings of a court having jurisdiction over the person and the subject matter. 55
Neither can we grant the writ at this stage since a writ of habeas corpus is not
intended as a substitute for the functions of the trial court. In the absence of
exceptional circumstances, the orderly course of trial should be pursued and the
usual remedies exhausted before the writ may be invoked. Habeas corpus is not
ordinarily available in advance of trial to determine jurisdictional questions that may
arise. 56 It has to be an exceptional case for the writ of habeas corpus to be available
to an accused before trial. 57 In the absence of special circumstances requiring
immediate action, a court will not grant the writ and discharge the prisoner in advance
of a determination of his case in court. 58 In the case under consideration, petitioners
have dismally failed to adduce any justification or exceptional circumstance which
would warrant the grant of the writ, hence their petition therefor has to be denied.
In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a
right to bail or vindicating its denial. In the case of Enrile vs. Salazar, etc., et al., 59 we
held that:
The criminal case before the respondent Judge was the normal
venue for invoking the petitioner's right to have provisional liberty
pending trial and judgment. The original jurisdiction to grant or deny
bail rested with said respondent. The correct course was for
petitioner to invoke that jurisdiction by filing a petition to be admitted
to bail, claiming a right to bail per se by reason of the weakness of
the evidence against him. Only after that remedy was denied by the
trial court should the review jurisdiction of this Court have been
invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.
III. On the Motion to Cite for Contempt
The records show that on February 24, 1994, this Court issued a temporary
restraining order, pursuant to its resolution in Administrative Matter No. 94-1-13-RTC
which is a petition for change of venue filed by the Vinculados, requiring Judges
Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the
criminal cases involving herein petitioners which were pending before them. 60
Subsequently, another resolution was issued in said cases, dated
March 1, 1994, with the following directive:
ACCORDINGLY, without prejudice to the final determination as to
which of the two (2) sets of information will be upheld or prevail, the
Executive Judge of the Regional Trial Court of Malolos, Bulacan is
hereby directed to transfer all the aforementioned criminal cases
filed against Mayor Honorato Galvez, et al. now in the Regional
Trial Court of Malolos, Bulacan, to the Executive Judge, Regional
Trial Court of Quezon City for raffle as one (1) single case among
its branches and for the branch concerned, after raffle, to proceed
with all deliberate dispatch after the issues raised in CA-G.R. SP
No. 33261 have been resolved with finality. 61
As a consequence, the seven informations which were docketed as Criminal Cases
Nos. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the
merits before Branch 103 of the Regional Trial Court of Quezon City, presided over by
Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor
Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in
the above cited resolutions. We find no merit in the motion to cite them for contempt.
The records reveal that there was a manifestation dated May 31, 1994 62 filed by the
Solicitor General wherein the latter manifested his conformity to the agreement made
between the prosecution and the defense before Judge Salazar, the pertinent part of
which agreement is as follows:
1. During the hearing on May 26, 1994, the prosecution, through
Senior State Prosecutor Dennis Villa-Ignacio, the defense through
Justice Alfredo Lazaro, and this Honorable Court agreed that the
trial in these cases shall proceed on condition that: (a) the defense
shall not be deemed to have waived any issue or objection it has
raised before the Supreme Court in G.R. No. 114046; and (b) that
the trial shall also be without prejudice to whatever decision and
resolution the Supreme Court may render in the case before it.
Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said
agreement on the pretension that the same is not the true agreement of the parties,
but he failed to state what they actually agreed upon. Withal, the resolutions of this
Court in the petition for change of venue, as well as the cease and desist order issued
therein, are clearly directed against the two aforenamed regional trial judges in
Malolos, Bulacan. By no stretch of the imagination can we interpret the same to
include Judge Jaime N. Salazar, Jr. of Quezon City.
For that matter, the issues involved in this petition for certiorari do not necessarily
require a suspension of the proceedings before the present trial court considering that
the main petition hinges only on a determination of which set of informations shall
constitute the indictments against petitioners and for which charges they shall stand
trial. Whichever set of informations prevails, the evidence of the prosecution and
defense will more or less be the same and can be utilized for the charges therein.
Hence, no cogent reason exists for the suspension of the proceedings before the
court below.
As a final word, while it may well be that both sets of information validly exist for the
nonce, to allow both of them to subsist will only serve to confuse and complicate the
proceedings in the cases therein. Brushing aside procedural technicalities, therefore,
it becomes exigent to now consider and declare the four informations for murder,
frustrated murder and illegal possession of firearms as having amended and
superseded the original three informations for homicide and frustrated homicide, there
being no substantial rights of herein petitioners which may be affected thereby.
Correspondingly, the three informations for homicide and frustrated homicide should
be ordered withdrawn from the Quezon City trial court's docket.
WHEREFORE, judgment is hereby rendered DISMISSING the petition
for certiorari and mandamus together with the petition for habeas corpus; DENYING,
for lack of merit, the motion to cite respondent judge and prosecutor for contempt and
to annul proceedings; and ORDERING the withdrawal and invalidation of the three
informations for homicide and frustrated homicide against petitioners from the docket
of Branch 103 of the Regional Trial Court of Quezon City.

IV.4.8.2 G.R. No. 103102 March 6, 1992
CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.
REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus, petitioner
principally seeks: (1) to nullify the order 1 of respondent judge admitting the amended
information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of
respondent judge when petitioner refused to be arraigned on the amended
information for lack of preliminary investigation therefor; (3) to nullify the appointment
of a counsel de oficio/PAO lawyer to represent petitioner; (4) to prohibit respondent
judge from "over-speedy and preferential scheduling of the trial of the aforementioned
criminal case;" and (5) to compel respondent judge to order preliminary investigation
of the crime charged in the amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of
frustrated murder allegedly committed as follows:
That on or about the 13th day of July 1991, in the Municipality of
Makati, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, while armed with a
handgun, with intent to kill, treachery and evident premeditation, did
then and there willfully, unlawfully, and feloniously attack, assault
and shoot one Maureen Navarro Hultman on the head, thereby
inflicting gunshot wounds, which ordinarily would have caused the
death of said Maureen Navarro Hultman, thereby performing all the
acts of execution which would have produced the crime of Murder
as a consequence, but nevertheless did not produce it by reason of
cause or causes independent of her will, that is, due to the timely
and able medical assistance rendered to said Maureen Navarro
Hultman which prevented her death.
After the prosecution had rested its case, petitioner was allowed to file a motion for
leave to file a demurrer to evidence. However, before the said motion could be filed,
Maureen Navarro Hultman died.
Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for
leave of court to file an amended information and to admit said amended information.
The amended information, 4 filed on October 31, 1991, reads:
That on or about the 13th day of July, 1991, in the Municipality of
Makati, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the said Claudio Teehankee, Jr. y. Javier, armed
with a handgun, with intent to kill and evident premeditation and by
means of treachery, did then and there willfully, unlawfully and
feloniously attack, assault and shoot with the said
handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of
said Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the
prosecution. On November 13, 1991, the trial court issued the questioned order
admitting the amended information.
At the scheduled arraignment on November 26, 1991, petitioner refused to be
arraigned on the amended information for lack of a preliminary investigation thereon.
By reason of such refusal, respondent judge ordered that a plea of "not guilty" be
entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its evidence. When
petitioner's counsel manifested that he would not take part in the proceedings
because of the legal issue raised, the trial court appointed a counsel de oficio to
represent herein petitioner.
Petitioner now raises the following issues before us:
(a) Whether or not an amended information involving a substantial
amendment, without preliminary investigation, after the prosecution
has rested on the original information, may legally and validly be
admitted;
(b) Whether or not a counsel de oficio may legally and validly be
appointed to represent an accused who is represented by counsel
of choice who refuses to participate in the proceedings because of
a perceived denial of due process and after a plea for appellate
remedies within a short period is denied by the trial court; and
(c) Whether or not a particular criminal case may legally and validly
be rushed and preferentially scheduled for trial over and at the
expense and sacrifice of other, specially older, criminal cases. 8
In our resolution of January 14, 1992, we required the Solicitor General to file a
comment to the basic petition. It appearing from a further review of the record that the
operative facts and determinant issues involved in this case are sufficiently presented
in the petition and the annexes thereto, both in regard to the respective positions of
petitioner and respondents, the Court has decided to dispense with the aforesaid
comment to obviate needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended information, as herein
underscored, that the accused ". . . did then and there willfully, unlawfully and
feloniously attack, assault and shoot with the said handgun Maureen Navarro
Hultman who was hit in the head, thereby inflicting mortal wounds which directly
caused the death of said Maureen Hultman . . ." constitutes a substantial amendment
since it involves a change in the nature of the offense charged, that is, from frustrated
to consummated murder. Petitioner further submits that "(t)here is a need then to
establish that the same mortal wounds, which were initially frustrated (sic) by timely
and able medical assistance, ultimately caused the death of the victim, because it
could have been caused by a supervening act or fact which is not imputable to the
offender." 9 From this, he argues that there being a substantial amendment, the same
may no longer be allowed after arraignment and during the trial.
Corollary thereto, petitioner then postulates that since the amended information for
murder charges an entirely different offense, involving as it does a new fact, that is,
the fact of death whose cause has to be established, it is essential that another
preliminary investigation on the new charge be conducted before the new information
can be admitted.
We find no merit in the petition. There are sufficient legal and jurisprudential moorings
for the orders of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. — The information or complaint may be
amended, in substance or form, without leave of court, at any time
before the accused pleads; and thereafter and during the trial as to
all matters of form, by leave and at the discretion of the court, when
the same can be done without prejudice to the rights of the
accused.
If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby in double
jeopardy and may also require the witnesses to give bail for their
appearance at the trial.
The first paragraph provides the rules for amendment of the information or complaint,
while the second paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information
may be made before or after the defendant pleaded, but they differ in the following
respects:
1. Amendment may involve either formal or substantial changes, while substitution
necessarily involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of court,
but substitution of information must be with leave of court as the original information
has to be dismissed;
3. Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of
information, another preliminary investigation is entailed and the accused has to
plead anew to the new information; and
4. An amended information refers to the same offense charged in the original
information or to an offense which necessarily includes or is necessarily included in
the original charge, hence substantial amendments to the information after the plea
has been taken cannot be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double jeopardy. On the
other hand, substitution requires or presupposes that the new information involves a
different offense which does not include or is not necessarily included in the original
charge, hence the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under the first
paragraph of Section 14, Rule 110, or a substitution of information under the second
paragraph thereof, the rule is that where the second information involves the same
offense, or an offense which necessarily includes or is necessarily included in the first
information, and amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that initially
charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a conviction
for one offense would be sufficient to warrant a conviction for the other, or when the
second offense is exactly the same as the first, or when the second offense is an
attempt to commit or a frustration of, or when it necessarily includes or is necessarily
included in, the offense charged in the first information. In this connection, an offense
may be said to necessarily include another when some of the essential elements or
ingredients of the former, as this is alleged in the information, constitute the latter.
And, vice-versa, an offense may be said to be necessarily included in another when
the essential ingredients of the former constitute or form a part of those constituting
the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a stage in the
execution of the crime of murder, hence the former is necessarily included in the
latter. It is indispensable that the essential element of intent to kill, as well as
qualifying circumstances such as treachery or evident premeditation, be alleged in
both an information for frustrated murder and for murder, thereby meaning and
proving that the same material allegations are essential to the sufficiency of the
informations filed for both. This is because, except for the death of the victim, the
essential elements of consummated murder likewise constitute the essential
ingredients to convict herein petitioner for the offense of frustrated murder.
In the present case, therefore, there is an identity of offenses charged in both the
original and the amended information. What is involved here is not a variance in the
nature of different offenses charged, but only a change in the stage of execution of
the same offense from frustrated to consummated murder. This is being the case, we
hold that an amendment of the original information will suffice and, consequent
thereto, the filing of the amended information for murder is proper.
Petitioner would insist, however, that the additional allegation on the fact of death of
the victim Maureen Navarro Hultman constitutes a substantial amendment which may
no longer be allowed after a plea has been entered. The proposition is erroneous and
untenable.
open and public accusation of a crime, as well as from the trouble, expenses and
anxiety of a public trial. The amended information could not conceivably have come
as a surprise to petitioner for the simple and obvious reason that it charges
essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is related to
the amended charge such that an inquiry into one would elicit substantially the same
facts that an inquiry into the other would reveal, a new preliminary investigation is not
necessary. 17

As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of
form or substance, may be made at any time before the accused enters a plea to the
charge and, thereafter, as to all matters of form with leave of court.
A substantial amendment consists of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other matters are merely
of form. 11 Thus, the following have been held to be merely formal amendments, viz:
(1) new allegations which relate only to the range of the penalty that the court might
impose in the event of conviction; 12 (2) an amendment which does not charge
another offense different or distinct from that charged in the original one; 13 (3)
additional allegations which do not alter the prosecution's theory of the case so as to
cause surprise to the accused and affect the form of defense he has or will assume;
and (4) an amendment which does not adversely affect any substantial right of the
accused, such as his right to invoke prescription. 14
We find nothing irregular in the appointment by the trial court of a counsel de oficio for
herein petitioner whose counsel of record refused to participate in the proceedings
because of an alleged legal issue. Such issue having been demonstrated herein as
baseless, we apprehend his refusal to participate in the trial as causative of or
contributive to the delay in the disposition of the case. And, finally, for as long as the
substantial rights of herein petitioner and other persons charged in court are not
prejudiced, the scheduling of cases should be left to the sound discretion of the trial
court.
WHEREFORE, it being clearly apparent that respondent judge did not commit the
errors speciously attributed to him, the extraordinary writs prayed for are hereby
DENIED and the instant petition is DISMISSED for lack of merit.

We repeat that after arraignment and during the trial, amendments are allowed, but
only as to matters of form and provided that no prejudice is caused to the rights of the
accused. 15 The test of whether an amendment is only of form and an accused is not
prejudiced by such amendment has been said to be whether or not a defense under
the information as it originally stood would be equally available after the amendment
is made, and whether or not any evidence the accused might have would be equally
applicable to the information in the one form as in the other; if the answer is in the
affirmative, the amendment is one of form and not of substance. 16

Now, an objective appraisal of the amended information for murder filed against
herein petitioner will readily show that the nature of the offense originally charged was
not actually changed. Instead, an additional allegation, that is, the supervening fact of
the death of the victim was merely supplied to aid the trial court in determining the
proper penalty for the crime. That the accused committed a felonious act with intent to
kill the victim continues to be the prosecution's theory. There is no question that
whatever defense herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information for murder. Under the
circumstances thus obtaining, it is irremissible that the amended information for
murder is, at most, an amendment as to form which is allowed even during the trial of
the case.

It consequently follows that since only a formal amendment was involved and
introduced in the second information, a preliminary investigation is unnecessary and
cannot be demanded by the accused. The filing of the amended information without
the requisite preliminary investigation does not violate petitioner's right to be secured
against hasty, malicious and oppressive prosecutions, and to be protected from an