Republic of the Philippines court rendered judgment reiterating the
SUPREME COURT same penalty imposed upon the accused by
Manila
EN BANC
G.R. No. L-6407             July 29, 1954
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee,
vs.
PASCUAL CASTRO, defendant-appellant.
Office of the Solicitor General Juan R.
Liwag and Solicitor Isidro C. Borromeo for
appellee.
Alfredo Reyes for appellant.
BAUTISTA ANGELO, J.:
Apolonio Bustos, the complainant, was the
head teacher of the barrio school of San
Jose Macabebe, Pampanga, and Pascual
Castro, the accused, a teacher in said
school. In the morning of January 19, 1952,
while the complainant was on his way to the
barrio chapel to hear mass he met a group
of persons including the accused. The
complainant invited the accused to hear
mass but instead of accepting his invitation
a discussion ensued in the course of which
the accused gave the complainant a fist
blow on the face causing him injuries which
required medical attendance for a period of
five days.
On April 14, 1952, a complaint for slight
physical injuries was lodged by the
complainant against the accused in the
Justice of the Peace Court of Macabebe,
Pampanga. After trial, the accused was
found guilty as charged and sentenced to
suffer fifteen days of arresto menor and to
pay the costs. From this decision, the
accused appealed to the Court of First
Instance where he pleased not guilty.
Before trial on the merits, but after the
charge on the ground that the crime had
already prescribed. This plea was ignored,
and after the presentation of evidence, the
the inferior court. Hence, this appeal.
The only issue to be determined is whether
the lower court erred in not dismissing the
information on the ground that the offense
charged had already prescribed.
It appears that the incident which gave rise
to the injuries now complained of occurred
on January 19, 1952 while the
corresponding criminal complaint was filed
before the justice of the peace court on April
14, 1952, or after the period of two months
had elapsed. And considering that a light
offense prescribes in two months (article 90,
Revised Penal Code), it is now contended
that the crime had already prescribed and
as such it cannot serve as basis of criminal
prosecution.
The Solicitor General does not agree with
this contention. He claims that, since the
accused failed to move to quash before
pleading, he must be deemed to have
waived this defense under rule 113, section
10, of the Rules of Court.
The rule thus invoked in effect provides that
if the accused does not move to quash the
information before he pleads thereto, "he
shall be taken to have waived all objections
which are ground for a motion to quash
except when the complaint or information
does not charge an offense, or the court is
without jurisdiction of the same." And one of
the grounds on which a motion to quash
may be predicated is that the criminal action
or liability has been extinguished. (Section
2, paragraph f, rule 113.) On the other hand,
the law provides that the criminal liability
may be extinguished by prescription of the
crime. (Article 89, Revised Penal Code).
The question that now arises is: Does the
failure of the accused to move to quash
before pleading constitute a waiver to raise
the question of prescription at a later stage
of the case?
A case in point is People vs. Moran, 44
Phil., 387. In that case, the accused was
charged with a violation of the election law.
He was found guilty and convicted and the
judgment was affirmed, with slight
modification, by the Supreme Court.
Pending reconsideration of the decision, the
accused moved to dismiss the case setting
up the plea of prescription. After the
Attorney General was given an opportunity
to answer the motion, and the parties had
submitted memoranda in support of their
respective contentions, the court ruled that
the crime had already prescribed holding
that this defense can not de deemed waived
even if the case had been decided by the
lower court and was pending appeal in the
Supreme Court. The philosophy behind this
ruling was aptly stated as follows: "Although
the general rule is that the defense of
prescription is not available unless
expressly set up in the lower court, as in
that case it is premused to have been
waived and cannot be taken advantage of
thereafter, yet this rule is not always of
absolute application in criminal cases, such
as that in which prescription of the crime is
expressly provided by law, for the State not
having then the right to prosecute, or
continue prosecuting, nor to punish, or
continue punishing, the offense, or to
continue holding the defendant subject to its
action through the imposition of the penalty,
the court must so declare." And elaborating
on this proposition, the Court went on to
state as follows:
As prescription of the crime is the
loss by the State of the right to
prosecute and punish the same, it is
absolutely indisputable that from the
moment the State has lost or waived
such right, the defendant may, at
any stage of the proceeding,
demand and ask that the same be
finally dismissed and he be acquitted
from the complaint, and such petition
is proper and effective even if the
court taking cognizance of the case
has already rendered judgment and
said judgment is merely in
suspense, pending the resolution of
a motion for a reconsideration and
new trial, and this is the more so
since in such a case there is not yet
any final and irrevocable judgment.
The ruling above adverted to squarely
applies to the present case. Hence, the rule
provides that the plea of prescription should
be set up before arraignment, or before the
accused pleads to the charge, as otherwise
the defense would be deemed waived; but,
as was well said in the Moran case, this rule
is not of absolute application, especially
when it conflicts with a substantive
provisions of the law, such as that which
refers to prescription of crimes. Since, under
the Constitution the Supreme Court has
only the power to promulgate rules
concerning pleadings, practice and
procedure, and the admission to the
practice of law, and cannot cover
substantive rights (section 13, article VII, of
the Constitution), the rule we are
considering cannot be interpreted or given
such scope or extent that would come into
conflict or defeat an express provision of our
substantive law. One of such provisions is
article 89 of the Revised Penal Code which
provides that the prescription of crime has
the effect of totally extinguishing the criminal
liability. And so we hold that the ruling laid
down in the Moran case still holds good
even if it were laid down before the adoption
of the present Rules of Court.
The learned dissenter opines that the Moran
case has already lost its validity because at
the time it was decided there was no rule
prescribing waiver of prescription and,
besides, this question was not raised and
could not have been raised because the law
was enacted only when the case was
already pending in the Supreme Court. In
other words, the learned dissenter is of the
opinion that the Moran case cannot be
invoked as authority because the question
of waiver was not specially raised therein
unlike the present case.
We cannot agree to this apprisal of the failure of the Government to furnish us
Moran case for precisely the ruling laid sufficient data prevents us from concluding
down therein was predicated upon the that the prescription period has not yet
theory that the defense of prescription, even elapsed since the charge for attempted
if not set up in its proper time, is not homicide may have been filed after March
deemed waived it being an exception to the 20, 1952 and dismissed on March 27.
general rule. Thus, it was there said that, Under the facts presently obtaining the only
"Although the general rule is that the alternative is to dismiss the case as prayed
defense of prescription is not available for by the defense.
unless expressly set up in the lower court,
as in that case it is presumed to have been Wherefore, the judgment appealed from is
waived and cannot be taken advantage of reversed, and the case is dismissed, with
thereafter, yet this rule is not always of cost de oficio.
absolute application in criminal cases ... ."
Paras, C.J., Pablo, Padilla, Jugo, Labrador
It is true that the doctrine in the Moran case and Concepcion, JJ., concur.
was not adhered to in the case of Santos Reyes, A., J., concurs in the result.
vs. Supt. of the Phil. Training School for
Girls, 55 Phil., 345, but that was because
the plea of prescription was raised in a
petition for a writ of habeas corpus. It has
been held that such plea is not available "on
an application for a writ of habeas
corpus (16 C. J. 416), for the reason that
"All questions which may arise in the orderly
course of a criminal prosecution are to be
determined by the court to whose
jurisdiction the defendant has been
subjected by the law, and the fact that a
defendant has a good and sufficient
defense to a criminal charge on which he is
held will not entitle him to his discharge on
habeas corpus."(12 R. C. L.
1206.)1 (Emphasis supplied). The Santos
case did not nullify our ruling in the Moran
case.

An attempt was made to maintain the case

by showing that as a result of the incident in
question a criminal complaint for attempted
homicide was filed against the accused prior
to the charge of slight physical injuries
which was dismissed without prejudice and
must have had the effect of interrupting the
period of prescription; but this attempt
cannot be given serious consideration it
appearing that the date when the criminal
complaint for attempted homicide was filed,
does not appear in the record. The only
data we have on hand is that the complaint
was dismissed on March 27, 1952. The

FIRST DIVISION
G.R. No. 131082               June 19, 2000
ROMULO, MABANTA, BUENAVENTURA,
SAYOC & DE LOS ANGELES, petitioner,
vs.
HOME DEVELOPMENT MUTUAL
FUND, respondent.
DAVIDE, JR., C.J.:
Once again, this Court is confronted with the
issue of the validity of the Amendments to the
Rules and Regulations Implementing Republic
Act No. 7742, which require the existence of a
plan providing for both provident/retirement
and housing benefits for exemption from the
Pag-IBIG Fund coverage under Presidential
Decree No. 1752, as amended.
Pursuant to Section 19  of P.D. No. 1752, as
1  Appeals dismissed  the petition on the ground
amended by R.A. No. 7742, petitioner
Romulo, Mabanta, Buenaventura, Sayoc and
De Los Angeles (hereafter PETITIONER), a
law firm, was exempted for the period 1
January to 31 December 1995 from the Pag-
IBIG Fund coverage by respondent Home
Development Mutual Fund (hereafter HDMF)
because of a superior retirement plan.  2
On 1 September 1995, the HDMF Board of
Trustees, pursuant to Section 5 of Republic
Act No. 7742, issued Board Resolution No.
1011, Series of 1995, amending and
modifying the Rules and Regulations
Implementing R.A. No. 7742. As amended,
Section 1 of Rule VII provides that for a
company to be entitled to a waiver or
suspension of Fund coverage,  it must have a
3  questioned amendments were published in
plan providing for both provident/retirement
and housing benefits superior to those
provided under the Pag-IBIG Fund.
On 16 November 1995, PETITIONER filed
with the respondent an application for Waiver
or Suspension of Fund Coverage because of
its superior retirement plan.  In support of said
4 
application, PETITIONER submitted to the
HDMF a letter explaining that the 1995
Amendments to the Rules are invalid.  5
In a letter dated 18 March 1996, the President
and Chief Executive Officer of HDMF
disapproved PETITIONER's application on the
ground that the requirement that there should
be both a provident retirement fund and a
housing plan is clear in the use of the phrase
"and/or," and that the Rules Implementing
R.A. No. 7742 did not amend nor repeal
Section 19 of P.D. No. 1752 but merely
implement the law.  6
PETITIONER's appeal  with the HDMF Board
7 
of Trustees was denied for having been
rendered moot and academic by Board
Resolution No. 1208, Series of 1996,
removing the availment of waiver of the
mandatory coverage of the Pag-IBIG Fund,
except for distressed employers.  8
On 31 March 1997, PETITIONER filed a
petition for review  before the Court of
9 
Appeals. On motion by HDMF, the Court of
10 
that the coverage of employers and
employees under the Home Development
Mutual Fund is mandatory in character as
clearly worded in Section 4 of P.D. No. 1752,
as amended by R.A. No. 7742. There is no
allegation that petitioner is a distressed
employer to warrant its exemption from the
Fund coverage. As to the amendments to the
Rules and Regulations Implementing R.A. No.
7742, the same are valid. Under P.D. No.
1752 and R.A. No. 7742 the Board of
Trustees of the HDMF is authorized to
promulgate rules and regulations, as well as
amendments thereto, concerning the
extension, waiver or suspension of coverage
under the Pag-IBIG Fund. And the publication
requirement was amply met, since the
the 21 October 1995 issue of the Philippine
Star, which is a newspaper of general
circulation.
PETITIONER's motion for
reconsideration  was denied.  Hence, on 6
11  12 
November 1997, PETITIONER filed a petition
before this Court assailing the 1995 and the
1996 Amendments to the Rules and
Regulations Implementing Republic Act No.
7742 for being contrary to law. In support
thereof, PETITIONER contends that the
subject 1995 Amendments issued by HDMF
are inconsistent with the enabling law, P.D.
No. 1752, as amended by R.A. No. 7742,
which merely requires as a pre-condition for
exemption from coverage the existence of
either a superior provident/retirement plan or
a superior housing plan, and not the
concurrence of both plans. Hence,
considering that PETITIONER has a provident
plan superior to that offered by the HDMF, it is
entitled to exemption from the coverage in
accordance with Section 19 of P.D. No. 1752.
The 1996 Amendment are also void insofar as
they abolished the exemption granted by
Section 19 of P.D. 1752, as amended. The
repeal of such exemption involves the
exercise of legislative power, which cannot be
delegated to HMDF.
PETITIONER also cites Section 9 (1), Chapter
2, Book VII of the Administrative Code of
1987, which provides:
Sec. 9. Public Participation — (1) If
not otherwise required by law, an
agency shall, as far as practicable,
publish or circulate notices of
proposed rules and afford interested
parties the opportunity to submit their
views prior to the adoption of any rule.
Since the Amendments to the Rules and
Regulations Implementing Republic Act No.
7742 involve an imposition of an additional
burden, a public hearing should have first
been conducted to give chance to the
employers, like PETITIONER, to be heard
before the HDMF adopted the said
Amendments. Absent such public hearing, the
amendments should be voided.
Finally, PETITIONER contends that HDMF did
not comply with Section 3, Chapter 2, Book
VII of the Administrative Code of 1987, which
provides that "[e]very agency shall file with the
University of the Philippines Law Center three
(3) certified copies of every rule adopted by
it."
On the other hand, the HDMF contends that in
promulgating the amendments to the rules
and regulations which require the existence of
a plan providing for both
provident and housing benefits for exemption
from the Fund Coverage, the respondent
Board was merely exercising its rule-making
power under Section 13 of P.D. No. 1752. It
had the option to use "and" only instead of
"or" in the rules on waiver in order to
effectively implement the Pag-IBIG Fund Law.
By choosing "and," the Board has clarified the
confusion brought about by the use of "and/or"
in Section 19 of P.D. No. 1752, as amended.
As to the public hearing, HDMF maintains that
as can be clearly deduced from Section 9(1),
Chapter 2, Book VII of the Revised
Administrative Code of 1987, public hearing is
required only when the law so provides, and if
not, only if the same is practicable. It follows
that public hearing is only optional or
discretionary on the part of the agency
concerned, except when the same is required
by law. P.D. No. 1752 does not require that
pubic hearing be first conducted before the
rules and regulations implementing it would
become valid and effective. What it requires is
the publication of said rules and regulations at
least once in a newspaper of general
circulation. Having published said 1995 and
1996 Amendments through the Philippine Star
on 21 October 1995 1 and 15 November
1996,  respectively, HDMF has complied with
14 
the publication requirement.
Finally, HDMF claims that as early as 18
October 1996, it had already filed certified true
copies of the Amendments to the Rules and
Regulations with the University of the
Philippines Law Center. This fact is evidenced
by certified true copies of the Certification
from the Office of the National Administrative
Register of the U.P. Law Center.  15
We find for the PETITIONER.
The issue of the validity of the 1995
Amendments to the Rules and Regulations
Implementing R.A. No. 7742, specifically
Section I, Rule VII on Waiver and Suspension,
has been squarely resolved in the relatively
recent case of China Banking Corp. v. The
Members of the Board of Trustees of the
HDMF.  We held in that case that Section 1 of
16 
Rule VII of the Amendments to the Rules and
Regulations Implementing R.A. No. 7742, and
HDMF Circular No. 124-B prescribing the
Revised Guidelines and Procedure for Filing
Application for Waiver or Suspension of Fund
Coverage under P.D. No. 1752, as amended
by R.A. No. 7742, are null and void insofar as
they require that an employer should have
both a provident/retirement plan and a
housing plan superior to the benefits offered
by the Fund in order to qualify for waiver or
suspension of the Fund coverage. In arriving
at said conclusion, we ruled:
The controversy lies in the legal
signification of the words "and/or."
In the instant case, the legal meaning
of the words "and/or" should be taken
in its ordinary signification, i.e., "either
and or; e.g. butter and/or eggs means
butter and eggs or butter or eggs.
The term "and/or" means that
the effect shall be given to
both the conjunctive "and" and
the disjunctive "or"; or that one
word or the other may be
taken accordingly as one or
the other will best effectuate
the purpose intended by the
legislature as gathered from
the whole statute. The term is
used to avoid a construction
which by the use of the
disjunctive "or" alone will
exclude the combination of
several of the alternatives or
by the use of the conjunctive
"and" will exclude the efficacy
of any one of the alternatives
standing alone. 1avvphi1
It is accordingly ordinarily held that the
intention of the legislature in using the
term "and/or" is that the word "and"
and the word "or" are to be used
interchangeably.
It . . . seems to us clear from the
language of the enabling law that
Section 19 of P.D. No. 1752 intended
that an employer with a provident
plan or an employee housing plan
superior to that of the fund may obtain
exemption from coverage. If the law
had intended that the employee [sic]
should have both a superior provident
plan and a housing plan in order to
qualify for exemption, it would have
used the words "and" instead of
"and/or." Notably, paragraph (a) of
Section 19 requires for annual
certification of waiver or suspension,
that the features of the plan or
plans are superior to the fund or
continue to be so. The law obviously
contemplates that the existence of
either plan is considered as sufficient
basis for the grant of an exemption;
needless to state, the concurrence of
both plans is more than sufficient. To
require the existence of both plans
would radically impose a more
stringent condition for waiver which
was not clearly envisioned by the
basic law. By removing the disjunctive
word "or" in the implementing rules the
respondent Board has exceeded its
authority.
It is without doubt that the HDMF Board has
rule-making power as provided in Section
51  of R.A. No. 7742 and Section 13  of P.D.
17  18 
No. 1752. However, it is well-settled that rules
and regulations, which are the product of a
delegated power to create new and additional
legal provisions that have the effect of law,
should be within the scope of the statutory
authority granted by the legislature to the
administrative agency.  It is required that the
19 
regulation be germane to the objects and
purposes of the law, and be not in
contradiction to, but in conformity with, the
standards prescribed by law.  20
In the present case, when the Board of SO ORDERED.
Trustees of the HDMF required in Section 1,
Rule VII of the 1995 Amendments to the
Rules and Regulations Implementing R.A. No.
7742 that employers should have both
provident/retirement and housing benefits for
all its employees in order to qualify for
exemption from the Fund, it effectively
amended Section 19 of P.D. No. 1752. And
when the Board subsequently abolished that
exemption through the 1996 Amendments, it
repealed Section 19 of P.D. No. 1752. Such
amendment and subsequent repeal of Section
19 are both invalid, as they are not within the
delegated power of the Board. The HDMF
cannot, in the exercise of its rule-making
power, issue a regulation not consistent with
the law it seeks to apply. Indeed,
administrative issuances must not override,
supplant or modify the law, but must remain
consistent with the law they intend to carry
out.  Only Congress can repeal or amend the
21 

law.

While it may be conceded that the

requirement of having both plans to qualify for
an exemption, as well as the abolition of the
exemption, would enhance the interest of the
working group and further strengthen the
Home Development Mutual Fund in its pursuit
of promoting public welfare through ample
social services as mandated by the
Constitution, we are of the opinion that the
basic law should prevail. A department zeal
may not be permitted to outrun the authority
conferred by the statute. 
22

Considering the foregoing conclusions, it is

unnecessary to dwell on the other issues
raised.

WHEREFORE, the petition is GRANTED. The

assailed decision of 31 July 1997 of the Court
of Appeals in CA-G.R. No. SP-43668 and its
Resolution of 15 October 1997 are hereby
REVERSED and SET ASIDE. The
disapproval by the Home Development Mutual
Fund of the application of the petitioner for
waiver or suspension of Fund coverage is
SET ASIDE, and the Home Development
Mutual Fund is hereby directed to refund to
petitioner all sums of money it collected from
the latter.

epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29658      November 29, 1968
ENRIQUE V. MORALES, petitioner,
vs.
ABELARDO SUBIDO, as Commissioner of
Civil Service, respondent.
Vicente Rodriguez, for appellant.
Office of the Solicitor-General Araneta, for
appellee.
CASTRO, J.:
The question for resolution in this case is
whether a person who has served as captain
in the police department of a city for at least
three years but does not possess a bachelor's
degree, is qualified for appointment as chief of
police. The question calls for an interpretation
of the following provisions of section 10 of the
Police Act of 1966 (Republic Act 4864):
Minimum qualification for appointment
as Chief of Police Agency. — No
person may be appointed chief of a
city police agency unless he holds a
bachelor's degree from a recognized
institution of learning and has served
either in the Armed Forces of the
Philippines or the National Bureau of
Investigation, or has served as chief of
police with exemplary record, or has
served in the police department of any
city with the rank of captain or its
equivalent therein for at least three
years; or any high school graduate
who has served as officer in the
Armed Forces for at least eight years
with the rank of captain and/or higher.
The petitioner Enrique V. Morales is the chief
of the detective bureau of the Manila Police
Department and holds the rank of lieutenant
colonel. He began his career in 1934 as
patrolman and gradually rose to his present
position. Upon the resignation of Brig. Gen.
Ricardo G. Papa on March 14, 1968, the
petitioner was designated acting chief of
police of Manila and, at the same time, given
a provisional appointment to the same
position by the mayor of Manila.
On September 24, 1968 the respondent
Commissioner of Civil Service Abelardo
Subido approved the designation of the
petitioner but rejected his appointment for
"failure to meet the minimum educational and
civil service eligibility requirements for the said
position." Instead, the respondent certified
other persons as qualified for the post and
called the attention of the mayor to section 4
of the Decentralization Act of 1967 which
requires the filling of a vacancy within 30 days
after its coming into existence. Earlier, on
September 5, he announced in the
metropolitan newspapers that the position of
chief of police of Manila was vacant and listed
the qualifications which applicants should
possess.
The petitioner's reaction to the announcement
was a demand that the respondent include
him in a list of eligible and qualified applicants
from which the mayor might appoint one as
chief of police of the city. He contended that
his service alone as captain for more than
three years in the Manila Police Department
qualified him for appointment. The demand
was contained in a letter which he wrote to the
respondent on October 8, 1968. The mayor
endorsed the letter favorably, but the
respondent refused to reconsider his stand.
Hence this petition for mandamus to compel
the respondent to include the petitioner in a
list of "five next ranking eligible and qualified
persons."
The petitioner's reading of section 10 of the
Police Act of 1966 is, per his own phrasing, as
follows:
NO PERSON may be appointed chief
of a city police agency unless HE
 (1) holds a bachelor's degree from a
recognized institution of learning AND
has served in the Armed Forces of the
Philippines OR the National Bureau of
Investigation, OR
(2) has served as chief of police with
exemplary record, OR
(3) has served in the police
department of any city with the rank of
captain or its equivalent therein for at
least three years; OR
(4) any high school graduate who has
served as officer in the Armed Forces
for at least eight years with the rank of
captain and/or higher.
As he has served successively as captain,
major and lieutenant colonel in the MPD since
1954, the petitioner's insistence is that he falls
under the third class of persons qualified for
appointment as chief of a city police
department.
In support of this proposition, he adverts to
the policy of the Act "to place the local police
service on a professional level," 1 and
contends that a bachelor's degree does not
guarantee that one who possesses it will
make a good policeman, but that, on the other
hand, one who, like the petitioner, has risen
from patrolman to lieutenant colonel "meets
the test of professionalism."
Even if we concede the correctness of the
petitioner's view still we do not see how the
requirement of a college degree as additional
qualification can run counter to the avowed
policy of the Act. On the contrary, we should
think that the requirement of such additional
qualification will best carry out that policy. The
fallacy of petitioner's argument lies in its
assumption that the choice is between one
who has served long and loyally in a city
police agency and another who, not having so
served, has only a bachelor's degree. But that
is not the issue in this case. The issue rather
is whether, within the meaning and
intendment of the law, in addition to service
qualification, one should have educational
qualification as shown by the possession of a
bachelor's degree.
The petitioner invokes the last paragraph of
section 9 of the Act which provides:
Persons who at the time of the
approval of this Act have rendered at
least five years of satisfactory service
in a provincial, city or municipal police
agency although they have not
qualified in an appropriate civil service
examination are considered as civil
service eligibles for the purpose of this
Act.
In effect, he contends that if a person who has
rendered at least five years of satisfactory
service in a police agency is considered a civil
service eligible, so must a person be
considered qualified even though he does not
possess a bachelor's degree.
The petitioner's argument is fallacious in two
respects. First, it fails to distinguish between
eligibility and qualification. For the statute may
allow the compensation of service for a
person's lack of eligibility but not necessarily
for his lack of educational
qualification. Second, section 9 governs the
appointment of members of a police agency
only. On the other hand, the appointment of
chiefs of police is the precise gravamen of
section 10, the last paragraph of which states:
Where no civil service eligible is
available, provisional appointment
may be made in accordance with Civil
Service Law and rules: Provided, that
the appointee possesses the above
educational qualification: Provided,
further, That in no case shall such
appointment extend beyond six
months, except for a valid cause, and
with the approval of the Civil Service
Commission.
Thus, while the Act gives credit for service
and allows it to compensate for the lack of civil
service eligibility in the case of a member of a
police agency, it gives no such credit for lack
of civil service eligibility in the case of a chief
of police. On the contrary, by providing that a
person, who is not a civil service eligible, may
be provisionally appointed2 chief of police
"[ p]rovided, [t]hat the appointee possesses
the above educational qualification," the Act
makes it unequivocal that the possession of a
college degree or a high school diploma (in
addition to service) is an indispensable
requisite.
It is next contended that to read section 10 as
requiring a bachelor's degree, in addition to
service either in the Armed Forces of the
Philippines or in the National Bureau of
Investigation or as chief of police with an
exemplary record or as a captain in a city
police department for at least three years,
would be to create an "absurd situation" in
which a person who has served for only one
month in the AFP or the NBI is in law
considered the equal of another who has
been a chief of police or has been a captain in
a city police agency for at least three years.
From this it is concluded that "the only logical
equivalence of these two groups (Chief of
Police with exemplary record and Police
Captain for at least 3 years in a City Police
Agency) is the bachelor's degree."
Section 10, it must be admitted, does not
specify in what capacity service in the AFP or
in the NBI must have been rendered, but an
admission of the existence of the ambiguity in
the statute does not necessarily compel
acquiescence in the conclusion that it is only
in cases where the appointee's service has
been in the AFP or in the NBI that he must be
required to have a bachelor's degree. The
logical implication of the petitioner's argument
that a person who has served as captain in a
city police department for at least three years
need not have a bachelor's degree to qualify,
is that such person need not even be a high
school graduate. If such be the case would
there still be need for a person to be at least a
high school graduate provided he has had at
least eight years of service as captain in the
AFP?
The truth is that, except for the ambiguity
referred to (the meaning of which is not in
issue in this case), section 10 of the Act needs
no interpretation because its meaning is clear.
That the purpose is to require both
educational and service qualifications of those
seeking appointment as chief of police is
evidence from a reading of the original
provision of House Bill 6951 and the
successive revision it underwent. Thus,
section 12 of House Bill 6951 (now section 10
of the Police Act of 1966) read:
Minimum Qualification for
Appointment as Chief of a Police
Agency. — No chief of a police
agency of a province or chartered city
shall be appointed unless he is a
member of the Philippine Bar, or a
holder of a bachelor's degree in police
administration. Any holder of a
bachelor's degree who served either
in the Philippine Constabulary or the
police department of any city from the
rank of captain or inspector, second
class, or its equivalent for at least
three years shall be eligible for
appointment to the position of chief of
the police agency.
No chief of a municipal police force
shall be appointed unless he is a
holder of a four-year college degree
course or a holder of a Bachelor's
degree in Police Administration or
Criminology.
Where no civil service eligible is
available provisional appointment may
be made in accordance with Civil
Service Law and rules, provided the
appointee possesses the above
educational qualification but in no
case shall such appointment exceed
beyond six months.
It was precisely because the bill was clearly
understood as requiring both educational and
service qualifications that the following
exchanges of view were made on the floor of
the house of Representatives:
MR. VELOSO (F.). Section 12,
Minimum Qualification for
Appointment of Chief of a Police
Agency, provides that the chief of a
police agency of a province or a
chartered city should be at least a
member of the Philippine Bar or a
holder of a bachelor's degree in Police
Administration; and the chief of police
of a municipality should be at least a
holder of a four years' college degree
or holder of a bachelor's degree in
Police Administration or Criminology.
At first blush, there is no reason why I
should object to these minimum
requirements; but I find such
requirement very rigid because it
would not allow a man to rise from the
ranks. Take a policeman who rose
from the ranks. He became a corporal,
a sergeant, a police lieutenant.
Shouldn't he be allowed to go higher?
If he merited it, he should also be
appointed chief of police of a city or
municipality.
MR. AMANTE. During our committee
discussions, I objected to this
provision of the bill because it is a very
high qualification. However, somebody
insisted that in order to professionalize
our police system and also to attain a
high standard of police efficiency, we
must have a chief of police who has a
college degree. The point which the
gentleman is now raising was brought
up by one Member in the sense that a
policeman who rose from the ranks
through serious hard work, even after
serving for fifteen or twenty years in
the police force, cannot become chief
of police for lack of a college degree.
The gentleman's objection is a very
good and reasonable one. I assure
him that if he brings it up during the
period of amendments, I will consider
it.
MR. VELOSO (F.). I am glad that the
Committee will accept my
amendment. My only regret, however,
is that because I made a number of
proposed amendments, I will not be
ready to submit them immediately. We
should just limit ourselves to the
sponsorship this evening.3
Thus it appears that it was because of the
educational requirement contained in the bill
that objections were expressed, but while it
was agreed to delete this requirement during
the period of amendment, no motion was ever
presented to effect the change.4
In the Senate, the Committee on Government
Reorganization, to which House Bill 6951 was
referred, reported a substitute measure. 5 It is
to this substitute bill that section 10 of the Act
owes its present form and substance.
Parenthetically, the substitute measure gives
light on the meaning of the ambiguous phrase
"and who has served either in the Armed
Forces of the Philippines or the National
Bureau of Investigation." The provision of the
substitute bill reads:
No person may be appointed chief of
a city police agency unless he holds a
bachelor's degree and has served
either in the Armed Forces of the
Philippines or the National Bureau of
Investigation or police department of
any city and has held the rank of
captain or its equivalent therein for at
least three years or any high school
graduate who has served the police
department of a city for at least 8
years with the rank of captain and/or
higher.
Thus, service in the AFP or the NBI was
intended to be in the capacity of captain for at
least three years.
At the behest of Senator Francisco Rodrigo,
the phrase "has served as officer in the Armed
Forces" was inserted so as to make the
provision read:
No person may be appointed chief of
a city police agency unless he holds a
bachelor's degree and has served
either in the Armed Forces of the
Philippines or the National Bureau of
Investigation or police department of
 any city and has held the rank of
captain or its equivalent therein for at
least three years or any high school
graduate who has served the police
department of a city or who has
served as officer in the Armed Forces
for at least 8 years with the rank of
captain and/or higher.6
It is to be noted that the Rodrigo amendment
was in the nature of an addition to the phrase,
"who has served the police department of a
city for at least 8 years with the rank of captain
and/or higher," under which the petitioner
herein, who is at least a high school graduate
(both parties agree that the petitioner finished
the second year of the law course) could
possibly qualify. However, somewhere in the
legislative process the phrase was dropped
and only the Rodrigo amendment was
retained.
Because of the suggested possibility that the
deletion was made by mistake, the writer of
this opinion personally and painstakingly read
and examined the enrolled bill in the
possession of the legislative secretary of the
Office of the President and found that the text
of section 10 of the Act is as set forth in the
beginning of this opinion. The text of the Act
bears on page 15 thereof the signatures of
President of the Senate Arturo M. Tolentino
and Speaker of the House of Representatives
Cornelio T. Villareal, and on page 16 thereof
those of Eliseo M. Tenza, Secretary of the
Senate, and Inocencio B. Pareja, Secretary of
the House of Representatives, and of
President Ferdinand E. Marcos. Under the
enrolled bill theory, announced in Mabanag v.
Lopez Vito8 this text of the Act must be
deemed as importing absolute verity and as
binding on the courts. As the Supreme Court
of the United States said in Marshall Field &
Co. v. Clark:9
The signing by the Speaker of the
House of Representatives and, by the
President of the Senate, in open
session, of an enrolled bill, is an
official attestation by the two houses
of such bill as one that has passed
Congress. It is a declaration by the
two houses, through their presiding
officers, to the President that a bill,
thus attested, has received in the
form, the sanction of the legislative
branch of the government, and that it
is delivered to him in obedience to the
constitutional requirement that all bill
which pass Congress shall be
presented to him. And when a bill,
thus attested, receives his approval,
its authentication as a bill that has
passed Congress should be deemed
complete and unimpeachable. As the
President has no authority to approve
a bill not passed by Congress, an
enrolled Act in the custody of the
Secretary of State, and having the
official attestations of the Speaker of
the house of Representatives, of the
President of the Senate, and of the
President of the United States, carries,
on its face, a solemn assurance by the
legislative and executive departments
of the government, charged,
respectively, with the duty of enacting
and executing the laws, that it was
passed by Congress. The respect due
to co-equal and independent
department requires the judicial
department to act upon that
assurance, and to accept, as having
passed Congress, all bills
authenticated in the manner stated;
leaving the courts to determine, when
the question properly arises, whether
the Act, so authenticated, is in
conformity with the Constitution. 10
To proceed with the history of the statute, it
appears that, when the two chambers of the
legislature met in conference committee, the
phrase "has served as chief of police with
exemplary record" was added, thereby
accounting for its presence in section 10 of
the Act.11
What, then, is the significance of this? It
logically means that — except for that vagrant
phrase "who has served the police
department of a city for at least 8 years with
the rank of captain and/or higher" — a high
school graduate, no matter how long he has
served in a city police department, is not
qualified for appointment as chief of police.
Still it is insisted that "if a high school graduate
who has served as captain in the Armed
Forces of the Philippines for eight years
irrespective of the branch of service where he
served can be Chief of Police of Manila, why
not one who holds an A.A. degree, completed
two years in Law School, and served as Chief
of the Detective Bureau for 14 years, holding
the successive ranks of Captain, Major and Lt.
Colonel? Not to mention the fact that he was
awarded three Presidential Awards, and was
given the Congressional Commendation —
the highest award ever conferred in the
history of the Manila Police Department."

The trouble with such argument is that even if

we were to concede its soundness, still we
would be hard put reading it in the law
because it is not there. The inclusion of
desirable enlargements in the statute is
addressed to the judgment of Congress and
unless such enlargements are by it accepted
courts are without power to make them. As
Mr. Justice Frankfurter put the matter with
lucidity:

An omission at the time of enactment,

whether careless or calculated, cannot
be judicially supplied however much
later wisdom may recomment the
inclusion.

The vital difference between initiating

policy, often involving a decided break
with the past, and merely carrying out
a formulated policy, indicates the
relatively narrow limits within which
choice is fairly open to courts and the
extent to which interpreting law is
inescapably making law.12

In conclusion, we hold that, under the present

state of the law, the petitioner is neither
qualified nor eligible for appointment as chief
of police of the city of Manila. Consequently,
the respondent has no corresponding legal
duty — and therefore may not be compelled
by mandamus to certify the petitioner as
qualified and eligible.

ACCORDINGLY, the petition for mandamus is

denied. No pronouncements as to costs.

epublic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 186400               October 20, 2010
CYNTHIA S. BOLOS, Petitioner,
vs.
DANILO T. BOLOS, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under
Rule 45 of the Rules of Court seeking a
review of the December 10, 2008 Decision1 of
the Court of Appeals (CA) in an original action
for certiorari under Rule 65 entitled "Danilo T.
Bolos v. Hon. Lorifel Lacap Pahimna and
Cynthia S. Bolos," docketed as CA-G.R. SP.
No. 97872, reversing the January 16, 2007
Order of the Regional Trial Court of Pasig
City, Branch 69 (RTC), declaring its decision
pronouncing the nullity of marriage between
petitioner and respondent final and executory.
On July 10, 2003, petitioner Cynthia
Bolos (Cynthia) filed a petition for the
declaration of nullity of her marriage to
respondent Danilo Bolos (Danilo) under
Article 36 of the Family Code, docketed as
JDRC No. 6211.
After trial on the merits, the RTC granted the
petition for annulment in a Decision, dated
August 2, 2006, with the following disposition:
WHEREFORE, judgment is hereby rendered
declaring the marriage between petitioner
CYNTHIA S. BOLOS and respondent DANILO
T. BOLOS celebrated on February 14, 1980
as null and void ab initio on the ground of
psychological incapacity on the part of both
petitioner and respondent under Article 36 of
the Family Code with all the legal
consequences provided by law.
Furnish the Local Civil Registrar of San Juan
as well as the National Statistics Office (NSO)
copy of this decision.
SO ORDERED.2
A copy of said decision was received by
Danilo on August 25, 2006. He timely filed the
Notice of Appeal on September 11, 2006.
In an order dated September 19, 2006, the
RTC denied due course to the appeal for
Danilo’s failure to file the required motion for
reconsideration or new trial, in violation of
Section 20 of the Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages.
On November 23, 2006, a motion to
reconsider the denial of Danilo’s appeal was
likewise denied.
On January 16, 2007, the RTC issued the
order declaring its August 2, 2006 decision
final and executory and granting the Motion
for Entry of Judgment filed by Cynthia.
Not in conformity, Danilo filed with the CA a
petition for certiorari under Rule 65 seeking to
annul the orders of the RTC as they were
rendered with grave abuse of discretion
amounting to lack or in excess of jurisdiction,
to wit: 1) the September 19, 2006 Order which
denied due course to Danilo’s appeal; 2) the
November 23, 2006 Order which denied the
motion to reconsider the September 19, 2006
Order; and 3) the January 16, 2007 Order
which declared the August 2, 2006 decision
as final and executory. Danilo also prayed that
he be declared psychologically capacitated to
render the essential marital obligations to
Cynthia, who should be declared guilty of
abandoning him, the family home and their
children.
As earlier stated, the CA granted the petition
and reversed and set aside the assailed
orders of the RTC. The appellate court stated
that the requirement of a motion for
reconsideration as a prerequisite to appeal
under A.M. No. 02-11-10-SC did not apply in
this case as the marriage between Cynthia
and Danilo was solemnized on February 14,
1980 before the Family Code took effect. It
relied on the ruling of this Court in Enrico v.
Heirs of Sps. Medinaceli3 to the effect that the
"coverage [of A.M. No. 02-11-10-SC] extends
only to those marriages entered into during
the effectivity of the Family Code which took
effect on August 3, 1988."
Cynthia sought reconsideration of the ruling
by filing her Manifestation with Motion for
Extension of Time to File Motion for
Reconsideration and Motion for Partial
Reconsideration [of the Honorable Court’s
Decision dated December 10, 2008]. The CA,
however, in its February 11, 2009
Resolution,4 denied the motion for extension
of time considering that the 15-day
reglementary period to file a motion for
reconsideration is non-extendible, pursuant to
Section 2, Rule 40, 1997 Rules on Civil
Procedure citing Habaluyas v. Japson, 142
SCRA 208. The motion for partial
reconsideration was likewise denied.
Hence, Cynthia interposes the present petition
via Rule 45 of the Rules of Court raising the
following
ISSUES
I ERRED IN ISSUING THE QUESTIONED
THE COURT OF APPEALS GRAVELY
ERRED IN ISSUING THE QUESTIONED
DECISION DATED DECEMBER 10, 2008
CONSIDERING THAT:
A. THE PRONOUNCEMENT OF THE
HONORABLE COURT IN ENRICO V.
SPS. MEDINACELI IS NOT
APPLICABLE TO THE INSTANT
CASE CONSIDERING THAT THE
FACTS AND THE ISSUE THEREIN
ARE NOT SIMILAR TO THE
INSTANT CASE.
B. ASSUMING ARGUENDO THAT
THE PRONOUNCEMENT OF THE
HONORABLE COURT IS
APLLICABLE TO THE INSTANT
CASE, ITS RULING IN ENRICO V.
SPS. MEDINACELI IS PATENTLY
ERRONEOUS BECAUSE THE
PHRASE "UNDER THE FAMILY
CODE" IN A.M. NO. 02-11-10-SC
PERTAINS TO THE WORD
"PETITIONS" RATHER THAN TO
THE WORD "MARRIAGES."
C. FROM THE FOREGOING, A.M.
NO. 02-11-10-SC ENTITLED "RULE
ON DECLARATION OF ABSOLUTE
NULLITY OF VOID MARRIAGES
AND ANNULMENT OF VOIDABLE
MARRIAGES" IS APPLICABLE TO
MARRIAGES SOLEMNIZED
BEFORE THE EFFECTIVITY OF THE
FAMILY CODE. HENCE, A MOTION
FOR RECONSIDERATION IS A
PRECONDITION FOR AN APPEAL
BY HEREIN RESPONDENT.
D. CONSIDERING THAT HEREIN
RESPONDENT REFUSED TO
COMPLY WITH A PRECONDITION
FOR APPEAL, A RELAXATION OF
THE RULES ON APPEAL IS NOT
PROPER IN HIS CASE.
II
THE COURT OF APPEALS GRAVELY
RESOLUTION DATED FEBRUARY 11, 2009
CONSIDERING THE FOREGOING AND THE
FACTUAL CIRCUMSTANCES OF THIS
CASE.
III
THE TENETS OF JUSTICE AND FAIR
PLAY, THE NOVELTY AND IMPORTANCE
OF THE ISSUE AND THE SPECIAL
CIRCUMSTANCES IN THIS CASE JUSTIFY
AND WARRANT A LIBERAL VIEW OF THE
RULES IN FAVOR OF THE PETITIONER.
MOREOVER, THE INSTANT PETITION IS
MERITORIOUS AND NOT INTENDED FOR
DELAY.5
From the arguments advanced by Cynthia, the
principal question to be resolved is whether or
not A.M. No. 02-11-10-SC entitled "Rule on
Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages," is applicable to the case at bench.
Petitioner argues that A.M. No. 02-11-10-SC
is also applicable to marriages solemnized
before the effectivity of the Family Code.
According to Cynthia, the CA erroneously
anchored its decision to an obiter dictum in
the aforecited Enrico case, which did not even
involve a marriage solemnized before the
effectivity of the Family Code.
She added that, even assuming arguendo that
the pronouncement in the said case
constituted a decision on its merits, still the
same cannot be applied because of the
substantial disparity in the factual milieu of the
Enrico case from this case. In the said case,
both the marriages sought to be declared null
were solemnized, and the action for
declaration of nullity was filed, after the
effectivity of both the Family Code in 1988 and
of A.M. No. 02-11-10-SC in 2003. In this case,
the marriage was solemnized before the
effectivity of the Family Code and A.M. No.
02-11-10-SC while the action was filed and
decided after the effectivity of both.
Danilo, in his Comment,6 counters that A.M.
No. 02-11-10-SC is not applicable because
his marriage with Cynthia was solemnized on
February 14, 1980, years before its effectivity.
He further stresses the meritorious nature of
his appeal from the decision of the RTC
declaring their marriage as null and void due
to his purported psychological incapacity and
citing the mere "failure" of the parties who
were supposedly "remiss," but not
"incapacitated," to render marital obligations
as required under Article 36 of the Family
Code.
The Court finds the petition devoid of merit.
Petitioner insists that A.M. No. 02-11-10-SC
governs this case. Her stance is unavailing.
The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages as contained in A.M. No. 02-11-10-
SC which the Court promulgated on March 15,
2003, is explicit in its scope. Section 1 of the
Rule, in fact, reads:
Section 1. Scope – This Rule shall govern
petitions for declaration of absolute nullity of
void marriages and annulment of voidable
marriages under the Family Code of the
Philippines.
The Rules of Court shall apply suppletorily.
The categorical language of A.M. No. 02-11-
10-SC leaves no room for doubt. The
coverage extends only to those marriages
entered into during the effectivity of the Family
Code which took effect on August 3,
1988.7 The rule sets a demarcation line
between marriages covered by the Family
Code and those solemnized under the Civil
Code.8
The Court finds Itself unable to subscribe to
petitioner’s interpretation that the phrase
"under the Family Code" in A.M. No. 02-11-
10-SC refers to the word "petitions" rather
than to the word "marriages."
A cardinal rule in statutory construction is that
when the law is clear and free from any doubt
or ambiguity, there is no room for construction
or interpretation. There is only room for
application.9 As the statute is clear, plain, and
free from ambiguity, it must be given its literal
meaning and applied without attempted
interpretation. This is what is known as the
plain-meaning rule or verba legis. It is
expressed in the maxim, index animi sermo,
or "speech is the index of intention."
Furthermore, there is the maxim verba legis
non est recedendum, or "from the words of a
statute there should be no departure."10
There is no basis for petitioner’s assertion
either that the tenets of substantial justice, the
novelty and importance of the issue and the
meritorious nature of this case warrant a
relaxation of the Rules in her favor. Time and
again the Court has stressed that the rules of
procedure must be faithfully complied with and
should not be discarded with the mere
expediency of claiming substantial merit. 11 As
a corollary, rules prescribing the time for doing
specific acts or for taking certain proceedings
are considered absolutely indispensable to
prevent needless delays and to orderly and
promptly discharge judicial business. By their
very nature, these rules are regarded as
mandatory.12
The appellate court was correct in denying
petitioner’s motion for extension of time to file
a motion for reconsideration considering that
the reglementary period for filing the said
motion for reconsideration is non-extendible.
As pronounced in Apex Mining Co., Inc. v.
Commissioner of Internal Revenue, 13
The rule is and has been that the period for
filing a motion for reconsideration is non-
extendible. The Court has made this clear as
early as 1986 in Habaluyas Enterprises vs.
Japzon. Since then, the Court has consistently
and strictly adhered thereto. 1avvphil
Given the above, we rule without hesitation
that the appellate court’s denial of petitioner’s
motion for reconsideration is justified,
precisely because petitioner’s earlier motion
for extension of time did not suspend/toll the
running of the 15-day reglementary period for
filing a motion for reconsideration. Under the
circumstances, the CA decision has already
attained finality when petitioner filed its motion
for reconsideration. It follows that the same
decision was already beyond the review
jurisdiction of this Court.
In fine, the CA committed no reversible error
in setting aside the RTC decision which
denied due course to respondent’s appeal
and denying petitioner’s motion for extension
of time to file a motion for reconsideration.
Appeal is an essential part of our judicial
system. Its purpose is to bring up for review a
final judgment of the lower court. The courts
should, thus, proceed with caution so as not
to deprive a party of his right to appeal. 14 In
the recent case of Almelor v. RTC of Las
Pinas City, Br. 254,15 the Court reiterated:
While the right to appeal is a statutory, not a
natural right, nonetheless it is an essential
part of our judicial system and courts should
proceed with caution so as not to deprive a
party of the right to appeal, but rather, ensure
that every party-litigant has the amplest
opportunity for the proper and just disposition
of his cause, free from the constraints of
technicalities.
In the case at bench, the respondent should
be given the fullest opportunity to establish
the merits of his appeal considering that what
is at stake is the sacrosanct institution of
marriage.
No less than the 1987 Constitution recognizes
marriage as an inviolable social institution.
This constitutional policy is echoed in our
Family Code. Article 1 thereof emphasizes its
permanence and inviolability, thus:
Article 1. Marriage is a special contract of
permanent union between a man and a
woman entered into in accordance with law for
the establishment of conjugal and family life. It
is the foundation of the family and an
inviolable social institution whose nature,
consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property
relations during the marriage within the limits
provided by this Code.
This Court is not unmindful of the
constitutional policy to protect and strengthen
the family as the basic autonomous social
institution and marriage as the foundation of
the family.16
Our family law is based on the policy that
marriage is not a mere contract, but a social
institution in which the State is vitally
interested. The State finds no stronger anchor
than on good, solid and happy families. The
break up of families weakens our social and
moral fabric and, hence, their preservation is
not the concern alone of the family members.17
WHEREFORE, the petition is DENIED.
SO ORDERED.

EN BANC
G.R. No. 123779            April 17, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
RUBEN SURIAGA y CHAVEZ, accused-
appellant.
PER CURIAM:
It is always a distressing task to impose the
death penalty on an accused. However, it is
the bounden duty of this Court to apply the
law imposing such penalty when
justified. Dura lex, sed lex.
On February 22, 1995, an Information was
filed with the Regional Trial Court (RTC)
Branch 78, Quezon City, charging Ruben
Suriaga, Rosita Dela Cruz and Joel Isidera
with kidnapping for ransom and serious illegal
detention committed as follows:
"That on or about 5:00 o’clock in the
afternoon of January 22, 1995, in
Quezon City, Philippines, and within
the jurisdiction of this Honorable
Court, accused RUBEN SURIAGA
and ROSITA DELA CRUZ, being
private individuals, conspiring
together, confederating and mutually
helping one another, did then and
there, willfully, unlawfully and
feloniously kidnap and take away
NICOLE RAMOS, a 2-year old female
child, without the consent of her
parents, for the purpose of extorting
ransom from the latter, and
immediately thereafter, the said
accused still conspiring together,
confederating and mutually helping
one another, did then and there
willfully, unlawfully and feloniously
detain her and deprive her of her
freedom and liberty up to and until
about 4:30 o’clock in the afternoon of
the following day.
"That accused JOEL ISIDERA, having
learned of the kidnapping and without
having participated therein either as
principal or accomplice, take part
subsequent to its commission by
assisting the principal accused,
RUBEN SURIAGA and ROSITA DELA
CRUZ, to profit by the effects of the
crime by accompanying and driving for
accused RUBEN SURIAGA to the
place where the pay-off was made
and receiving the ransom money in
the amount of P100,000.00, to the
damage and prejudice of the parents
of NICOLE RAMOS, spouses Johnny
and Mercedita Ramos in the said
amount and such other amounts as
may be awarded to them under the
provisions of the Civil Code.
"CONTRARY TO LAW."
No bail was recommended for Ruben Suriaga.
During the scheduled arraignment and pre-
trial conference on March 8, 1995, accused
Suriaga, through his counsel de
parte manifested that he was willing to enter a
plea of guilty to the offense charged provided
that the penalty to be imposed is reclusion
perpetua.
Upon arraignment, however, Suriaga and his
co-accused entered a plea of "Not guilty."
The relevant facts established by the
prosecution are:
On January 22, 1995, at around 5:00 o’clock
in the afternoon, Edwin Ramos, a prosecution
witness, was cleaning the car of his older
brother, Johnny Ramos at Sangangdaan,
Caloocan City. The latter was taking care of
his 2-year old daughter, Nicole, who was then
playing inside the car.
1
Suriaga, a cousin of the Ramos brothers,
arrived. He was accompanied by his live-in-
partner and co-accused Rosita dela
Cruz. Suriaga requested Edwin if he could
2 
drive the car, but the latter declined, saying he
did not have the keys. Meanwhile, Johnny
3 
returned to his house because a visitor
arrived. At this instance, Rosita held Nicole
and cajoled her. Rosita asked Edwin if she
could take Nicole with her to buy barbeque at
Monumento, Caloocan City. Having been
acquainted with Rosita for a long time and
because he trusted her, Edwin acceded.
When Rosita and the child left, Suriaga joined
them. 4
But after the lapse of more than one hour,
they failed to return. Worried, Edwin rushed
inside the house and after being told by
Johnny that Nicole has not yet arrived, he
(Edwin) searched for her at the Sangangdaan
Market, Caloocan City, but there was no trace
of the child, nor of her companions. 5
At the same time, Johnny and his wife,
Mercedita, began their search in the entire
vicinity of their barangay. Then they
6 
proceeded to Ever Gotesco along
Commonwealth Avenue, Quezon City, but
they could not find their daughter and Rosita.
At the Ramos’ residence, Nicole’s grandfather
received a phone call asking for ransom in the
amount of ₱100,000.00. He recognized that
the caller was Suriaga.
When Johnny came to know of such
telephone call, he immediately reported it to
the PACC Task Force Habagat in Camp
Crame, Quezon City. It was 11:30 in the
evening of January 22, 1995. 7
The next day, January 23, at around 7:00
o’clock in the morning, Suriaga called
Mercedita, introduced himself and asked her if
she and her husband would give the amount.
She gave a positive answer and said, "kahit
ipangutang namin." Suriaga warned her that if
8 
she will not deliver the money, her daughter
would be placed in a plastic bag or thrown in a
garbage can. 9
Thereafter, the Task Force Habagat gave
Mercedita instructions on the delivery of the
ransom money. The pay-off site would be in
front of the Fairview General Hospital, Quezon
City on that same day, January 23, 1995.
Meantime, surveillance teams from PACC
were being organized to rescue Nicole and to
apprehend the suspects. 10
At 4:00 o’clock in the afternoon, also of that
same day, Mercedita, with the cash money,
and while being tailed by the PACC agents,
proceeded in a jeepney to the Fairview
General Hospital. She reached the place at
around 4:35 o’clock in the afternoon and
waited for Suriaga. At around 5:00, Suriaga,
accompanied by Joel Isidera, arrived. Then
the three of them boarded a jeepney and
disembarked on Regalado Street. It was then
that Suriaga asked Mercedita for the money.
Since Joel Isidera was beside her, Mercedita
gave him the money. Subsequently, they
boarded a tricycle. After travelling a short
distance, the PACC agents suddenly
appeared and arrested Suriaga and Isidera.
Prior thereto, Inspector Jose Duenas’ Team
was able to rescue Nicole in a shanty where
1âwphi1.nêt
Rosita’s sister lived located at the NAWASA
Squatters Area, Ideal Subdivision, Quezon
City. Upon being informed thereof, Mercedita
11 
and the PACC agents proceeded to that
place.
Forthwith, the ransom money was properly
recovered and returned to spouses Johnny
and Mercedita Ramos. It was photocopied for
identification purposes. At the same time,
12 
accused Suriaga, Rosita dela Cruz and Joel
Isidera were investigated at the PACC
Headquarters, Camp Crame, Quezon City.
On February 15, 1995, an Information for
kidnapping for ransom and serious illegal
detention was filed against Ruben Suriaga
and Rosita dela Cruz, as principal, and Joel
Isidera, as accessory.
In his defense, accused Suriaga denied the
charges. He claimed that on January 22,
1995, he only "borrowed" Nicole for a stroll
with Rosita Dela Cruz along Monumento. After
thirty minutes, Suriaga decided to go to
Rosita’s house to get something. Since the
traffic was heavy, he did not return the child
but instead called her grandfather. They slept
13 
at Rosita’s house, the accused being
convinced that Nicole’s parents would not
worry because he always took care of the
child.
The next day, at around 3:00 o’clock in the
morning, before Suriaga left for B.F. Quezon
City to butcher a pig, he instructed Rosita to
call Nicole’s parents and inform them that the
child would be returned in the afternoon.
When he came back the following day,
January 24, at 10:00 in the morning, Rosita
informed him that they have been charged
with the police headquarters for kidnapping
Nicole. Forthwith, he immediately called his
uncle (the child’s grandfather) denying the
imputation, promising he would return her
immediately. His uncle told him that since
Mercedita would go to Fairview General
Hospital that afternoon, it would be best if they
would just meet there. But he was not able to
bring Nicole to the place because the child
was then sleeping.
After trial, the lower court rendered judgment
finding Suriaga guilty beyond reasonable
doubt of kidnapping for ransom as charged,
while acquitting the other accused, thus:
"WHEREFORE, the Court finds
accused Ruben Suriaga GUILTY
beyond reasonable doubt for the crime
of Kidnapping for Ransom defined and
penalized under Art. 267 of the
Revised Penal Code, as amended by
Republic Act No. 7659, and is hereby
sentenced to suffer the penalty of
DEATH. For failure of the prosecution
to prove the guilt of accused Rosita
Dela Cruz and Joel Isidera beyond
reasonable doubt, they are hereby
ACQUITTED. Accused Rosita Dela
Cruz may now be released from
detention unless she is being held for
some other legal cause.
"SO ORDERED."
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 84850 June 29, 1989
RICARDO A. LLAMADO, petitioner,
vs.
HONORABLE COURT OF APPEALS and
LEON GAW, respondents.
Ambrosio Padilla, Mempin & Reyes Law
Offices for petitioner.
FELICIANO, J.:
Petitioner Ricardo A. Llamado was Treasurer
of Pan Asia Finance Corporation. Together
with Jacinto N. Pascual, Sr., President of the
same corporation, petitioner Llamado was
prosecuted for violation of Batas Pambansa
Blg. 22 in Criminal Case No. 85-38653,
Regional Trial Court of Manila, Branch 49.
The two (2) had co-signed a postdated check
payable to private respondent Leon Gaw in
the amount of P186,500.00, which check was
dishonored for lack of sufficient funds.
In a decision dated 10 March 1987, the trial
court convicted the petitioner alone, since
jurisdiction over the person of Pascual, who
had thoughtfully fled the country, had not
been obtained. Petitioner was sentenced to
imprisonment for a period of one (1) year
of prision correccional and to pay a fine of P
200,000.00 with subsidiary imprisonment in
case of insolvency. Petitioner was also
required to reimburse respondent Gaw the
amount of P186,500.00 plus the cost of suit.
On 20 March 1987, after the decision of the
trial court was read to him, petitioner through
counsel orally manifested that he was taking
an appeal. Having been so notified, the trial
court on the same day ordered the forwarding
of the records of the case to the Court of
Appeals. On 9 July 1987, petitioner through
his counsel received from the Court of
Appeals a notice to file his Appellant's Brief
within thirty (30) days. Petitioner managed to
secure several extensions of time within which
to file his brief, the last extension expiring on
18 November 1987.  1
Petitioner Llamado, even while his Appellant's
Brief was being finalized by his then counsel
of record, sought advice from another
counselor. On 30 November 1987, petitioner,
with the assistance of his new counsel, filed in
the Regional Trial Court a Petition for
Probation invoking Presidential Decree No.
968, as amended. The Petition was not,
however, accepted by the lower court, since
the records of the case had already been
forwarded to the Court of Appeals.
Petitioner then filed with the Court of Appeals
Manifestation and Petition for Probation"
dated 16 November 1987, enclosing a copy of
the Petition for Probation that he had
submitted to the trial court. Petitioner asked
the Court of Appeals to grant his Petition for
Probation or, in the alternative, to remand the
Petition back to the trial court, together with
the records of the criminal case, for
consideration and approval under P.D. No.
968, as amended. At the same time, petitioner
prayed that the running of the period for the
filing of his Appellant's Brief be held in
abeyance until after the Court of Appeals shall
have acted on his Petition for Probation.
In a "Manifestation and Motion" dated 3 March
1988 and filed with the Court of Appeals,
petitioner formally withdrew his appeal
conditioned, however, on the approval of his
Petition for Probation.  2
Complying with a Resolution of the Court of
Appeals, the Office of the Solicitor General
filed a Comment stating that it had no
objection to petitioner Llamado's application
for probation. Private respondent-
complainant, upon the other hand, sought and
obtained leave to file a Comment on petitioner
Llamado's application for probation, to which
Comment, petitioner filed a Reply. Private
respondent then filed his "Comment" on the
Office of the Solicitor General's Comment of
18 March 1988.
In a Resolution dated 17 June 1988, the Court
of Appeals, through Mr. Justice Magsino,
denied the Petition for Probation. A dissenting
opinion was filed by Mr. Justice Bellosillo
while Mr. Justice Santiago submitted a
concurring opinion. Petitioner moved for
reconsideration which Motion was denied by
the Court of Appeals on 23 August 1988, with
another, briefer, dissenting opinion from Mr.
Justice Bellosillo.
Petitioner now asks this Court to review and
reverse the opinion of the majority in the Court
of Appeals and, in effect, to accept and adopt
the dissenting opinion as its own.
The issue to be resolved here is whether or
not petitioner's application for probation which
was filed after a notice of appeal had been
filed with the trial court, after the records of the
case had been forwarded to the Court of
Appeals and the Court of Appeals had issued
the notice to file Appellant's Brief, after several
extensions of time to file Appellant's Brief had
been sought from and granted by the Court of
Appeals but before actual filing of such brief,
is barred under P.D. No. 968, as amended.
P.D. No. 968, known as the Probation Law of
1976, was promulgated on 24 July 1976.
Section 4 of this statute provided as follows:
Sec. 4. Grant of
Probation. Subject to the
provisions of this Decree, the
court may, after it shall have
convicted and sentenced a
defendant and upon
application at any time of said
defendant, suspend the
execution of said sentence
and place the defendant on
probation for such period and
upon such terms and
conditions as it may deem
best.
Probation may be granted
whether the sentence imposes
a term of imprisonment or a
fine only. An application for
probation shall be filed with
 the trial court, with notice to
the appellate court if an
appeal has been taken from
the sentence of conviction.
The filing of the application
shall be deemed a waiver of
the right to appeal, or the
automatic withdrawal of a
pending appeal.
An order granting or denying
probation shall not be
appealable. (Emphasis
supplied)
It will be noted that under Section 4 of P.D.
No. 968, the trial court could grant an
application for probation "at any time" "after it
shall have convicted and sentenced a
defendant" and certainly after "an appeal has
been taken from the sentence of conviction."
Thus, the filing of the application for probation
was "deemed [to constitute] automatic
withdrawal of a pending appeal."
On 1 December 1977, Section 4 of P.D. No.
968 was amended by P.D. No. 1257 so as to
read as follows:
Sec. 4. Grant of
Probation. Subject to the
provisions of this Decree, the
court may, senteafter it shall
have convicted and sentenced
a defendant but before he
begins to serve his
sentence and upon his
application, suspend the
execution of said sentence
and place the defendant on
probation for such period and
upon such terms and
conditions as it may deem
best.
The prosecuting officer concerned shall be
notified by the court of the filing of the
application for probation and he may submit
his comment on such application within ten
days from receipt of the notification.
Probation may be granted
whether the sentence imposes
a term of imprisonment or a
fine with subsidiary
imprisonment in case of
insolvency. An application for
probation shall be filed with
the trial court, with notice to
the appellate court if an
appeal has been taken from
the sentence of conviction.
The filing of the application
shall be deemed a waiver of
the right to appeal, or
the automatic withdrawal of a
pending appeal. In the latter
case, however, if the
application is filed on or after
the date of the judgment of the
appellate court, said
application shall be acted
upon by the trial court on the
basis of the judgment of the
appellate court. (Emphasis
supplied)
Examination of Section 4, after its amendment
by P.D. No. 1257, reveals that it had
established a prolonged but definite period
during which an application for probation may
be granted by the trial court. That period was:
'After [the trial court] shall have convicted and
sentenced a defendant but before he begins
to serve his sentence." Clearly, the cut-off
time-commencement of service of sentence-
takes place not only after an appeal has
been taken from the sentence of conviction,
but even after judgement has been rendered
by the appellate court and after judgment has
become final. Indeed, in this last situation,
Section 4, as amended by P.D. No. 1257
provides that "the application [for probation]
shall be acted upon by the trial court on the
basis of the judgment of the appellate court";
for the appellate court might have increased
or reduced the original penalty imposed by the
trial court. It would seem beyond dispute then
that had the present case arisen while Section
4 of the statute as amended by P.D. No. 1257
was still in effect, petitioner Llamado's
application for probation would have had to be
granted. Mr. Llamado's application for
probation was filed well before the cut-off time
established by Section 4 as then amended by
P.D. No. 1257.
On 5 October 1985, however, Section 4 of the
Probation Law of 1976 was once again
amended. This time by P.D. No. 1990. As so
amended and in its present form, Section 4
reads as follows:
Sec. 4. Grant of
Probation. Subject to the
provisions of this Decree, the
trial court may, after it shall
have convicted and
sentenced a defendant,
and upon application by said
defendant within the period for
perfecting an appeal, suspend
the execution of the sentence
and place the defendant on
probation for such period and
upon such terms and
conditions as it may deem
best; Provided, That no
application for probation shall
be entertained or granted if
the defendant has perfected
an appeal from the judgment
of conviction.
Probation may be granted
whether the sentence imposes
a term of imprisonment or a
fine only An application for
probation shall be filed with
the trial court. The filing of the
application shall be deemed a
waiver of the right to appeal.
An order granting or denying
probation shall not be
appealable. (Emphasis
supplied)
In sharp contrast with Section 4 as amended
by PD No. 1257, in its present form, Section 4
establishes a much narrower period during
which an application for probation may be
filed with the trial court: "after [the trial court]
shall have convicted and sentenced a
defendant and — within the period for
perfecting an appeal — ." As if to provide
emphasis, a new proviso was appended to
the first paragraph of Section 4 that
expressly prohibits the grant of an application
for probation "if the defendant has perfected
an appeal from the judgment of conviction." It
is worthy of note too that Section 4 in its
present form has dropped the phrase which
said that the filing of an application for
probation means "the automatic withdrawal of
a pending appeal". The deletion is quite
logical since an application for probation can
no longer be filed once an appeal is perfected;
there can, therefore, be no pending appeal
that would have to be withdrawn.
In applying Section 4 in the form it exists
today (and at the time petitioner Llamado was
convicted by the trial court), to the instant
case, we must then inquire whether petitioner
Llamado had submitted his application for
probation "within the period for perfecting an
appeal." Put a little differently, the question is
whether by the time petitioner Llamado's
application was filed, he had already
"perfected an appeal" from the judgment of
conviction of the Regional Trial Court of
Manila.
The period for perfecting an appeal from a
judgment rendered by the Regional Trial
Court, under Section 39 of Batas Pambansa
Blg. 129, Section 19 of the Interim Rules and
Guidelines for the Implementation of B.P. Blg.
129 and under the 1985 Rules on Criminal
Procedure, as amended, or more specifically
Section 5 of Rule 122 of the Revised Rules of
Court, is fifteen (15) days from the
promulgation or notice of the judgment
appealed from. It is also clear from Section 3
(a) of Rule 122 that such appeal is taken or
perfected by simply filing a notice of appeal
with the Regional Trial Court which rendered
the judgment appealed from and by serving a
copy thereof upon the People of the
Philippines. As noted earlier, petitioner
Llamado had manifested orally and in open
court his intention to appeal at the time of
promulgation of the judgment of conviction, a
manifestation at least equivalent to a written
notice of appeal and treated as such by the
Regional Trial Court.
Petitioner urges, however, that the phrase
"period for perfecting an appeal" and the
clause "if the defendant has perfected an
appeal from the judgment of conviction" found
in Section 4 in its current form, should not be
interpreted to refer to Rule 122 of the Revised
Rules of Court; and that the "whereas" or
preambulatory clauses of P.D. No. 1990 did
not specify a period of fifteen (15) days for
perfecting an appeal.   It is also urged that
3
"the true legislative intent of the amendment
(P.D. No. 1990) should not apply to petitioner
who filed his Petition for probation at the
earliest opportunity then prevailing and
withdrew his appeal."  4
Petitioner invokes the dissenting opinion
rendered by Mr. Justice Bellosillo in the Court
of Appeals. Petitioner then asks us to have
recourse to "the cardinal rule in statutory
construction" that "penal laws [should]
be liberally construed in favor of the accused,"
and to avoid "a too literal and strict
application of the proviso in P.D. No. 1990"
which would "defeat the manifest purpose or
policy for which the [probation law] was
enacted-."
We find ourselves unable to accept the
eloquently stated arguments of petitioner's
counsel and the dissenting opinion. We are
unable to persuade ourselves that Section 4
as it now stands, in authorizing the trial court
to grant probation "upon application by [the]
defendant within the period for perfecting an
appeal" and in reiterating in the proviso that
no application for
probation shall be entertained
or granted if the defendant
has perfected an appeal from
the judgment of conviction.
did not really mean to refer to the fifteen-day
period established, as indicated above, by
B.P. Blg. 129, the Interim Rules and
Guidelines Implementing B.P. Blg. 129 and
the 1985 Rules on Criminal Procedure, but
rather to some vague and undefined time, i.e.,
"the earliest opportunity" to withdraw the
defendant's appeal. The whereas clauses
invoked by petitioner did not, of course, refer
to the fifteen-day period. There was absolutely
no reason why they should have so referred
to that period for the operative words of
Section 4 already do refer, in our view, to such
fifteen-day period. Whereas clauses do not
form part of a statute, strictly speaking; they
are not part of the operative language of the
statute.   Nonetheless, whereas clauses may
5
be helpful to the extent they articulate
the general purpose or reason underlying a
new enactment, in the present case, an
enactment which drastically but clearly
changed the substantive content of Section 4
existing before the promulgation of P.D. No.
1990. Whereas clauses, however, cannot
control the specific terms of the statute; in the
instant case, the whereas clauses of P.D. No.
1990 do not purport to control or modify the
terms of Section 4 as amended. Upon the
other hand, the term "period for perfecting an
appeal" used in Section 4 may be seen to
furnish specification for the loose language
"first opportunity" employed in the fourth
whereas clause. "Perfection of an appeal" is,
of course, a term of art but it is a term of art
widely understood by lawyers and judges and
Section 4 of the Probation Law addresses
itself essentially to judges and lawyers.
"Perfecting an appeal" has no sensible
meaning apart from the meaning given to
those words in our procedural law and so the
law-making agency could only have intended
to refer to the meaning of those words in the
context of procedural law.
Turning to petitioner's invocation of "liberal
interpretation" of penal statutes, we note at
the outset that the Probation Law is not a
penal statute. We, however, understand
petitioner's argument to be really that any
statutory language that appears to favor the
accused in a criminal case should be given a
"liberal interpretation." Courts, however, have
no authority to invoke "liberal interpretation' or
"the spirit of the law" where the words of the
statute themselves, and as illuminated by the
history of that statute, leave no room for doubt
or interpretation. We do not believe that "the
spirit of law" may legitimately be invoked to
set at naught words which have a clear and
definite meaning imparted to them by our
procedural law. The "true legislative intent"
must obviously be given effect by judges and
all others who are charged with the
application and implementation of a statute. It
is absolutely essential to bear in mind,
however, that the spirit of the law and the
intent that is to be given effect are to be
derived from the words actually used by the
law-maker, and not from some external,
mystical or metajuridical source independent
of and transcending the words of the
legislature.
The Court is not here to be understood as
giving a "strict interpretation rather than a
"liberal" one to Section 4 of the Probation Law
of 1976 as amended by P.D. No. 1990. "Strict"
and "liberal" are adjectives which too
frequently impede a disciplined and principled
search for the meaning which the law-making
authority projected when it promulgated the
language which we must apply. That meaning
is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a
man's face. The Court is simply reading
Section 4 as it is in fact written. There is no
need for the involved process of construction
that petitioner invites us to engage in, a
process made necessary only because
petitioner rejects the conclusion or meaning
which shines through the words of the statute.
The first duty of a judge is to take and apply a
statute as he finds it, not as he would like it to
be. Otherwise, as this Court in Yangco v.
Court of First Instance of Manila warned,
confusion and uncertainty in application will
surely follow, making, we might add, stability
and continuity in the law much more difficult to
achieve:
. . . [w]here language is plain,
subtle refinements which tinge
words so as to give them the
color of a particular judicial
theory are not only
unnecessary but decidedly
harmful. That which has
caused so much confusion in
the law, which has made it so
difficult for the public to
understand and know what the
law is with respect to a given
matter, is in considerable
measure the unwarranted
interference by judicial
tribunals with the English
language as found in
statutes and contracts, cutting
the words here and inserting
them there, making them fit
personal ideas of what the
legislature ought to have
done or what parties should
have agreed upon, giving
them meanings which they do
not ordinarily have cutting,
trimming, fitting, changing and
coloring until lawyers
themselves are unable to
advise their clients as to the
meaning of a given statute or
contract until it has been
submitted to some court for its
interpretation and
construction. 6
The point in this warning may be expected to
become sharper as our people's grasp of
English is steadily attenuated.
There is another and more fundamental
reason why a judge must read a statute as the
legislative authority wrote it, not as he would
prefer it to have been written. The words to be
given meaning whether they be found in the
Constitution or in a statute, define and
therefore limit the authority and discretion of
the judges who must apply those words. If
judges may, under cover of seeking the "true
spirit" and "real intent" of the law, disregard
the words in fact used by the law-giver, the
judges will effectively escape the
constitutional and statutory limitations on their
authority and discretion. Once a judge goes
beyond the clear and ordinary import of the
words of the legislative authority, he is
essentially on uncharted seas. In a polity like
ours which enshrines the fundamental notion
of limiting power through the separation and
distribution of powers, judges have to be
particularly careful lest they substitute their
conceptions or preferences of policy for that
actually projected by the legislative agency.
Where a judge believes passionately that he
knows what the legislative agency should
have said on the particular matter dealt with
by a statute, it is easy enough for him to reach
the conclusion that therefore that was what
the law-making authority was really saying or invoked the jurisdiction of the Court of
trying to say, if somewhat ineptly As Mr. Appeals, petitioner is not at liberty casually to
Justice Frankfurter explained: attack that jurisdiction when exercised
adversely to him. In any case, the argument is
Even within their area of mooted by the conclusion that we have
choice the courts are not at reached, that is, that petitioner's right to apply
large. They are confined by for probation was lost when he perfected his
the nature and scope of the appeal from the judgment of conviction.
judicial function in its particular
exercise in the field of WHEREFORE, the Decision of the Court of
interpretation. They are under Appeals in CAGR No. 04678 is hereby
the constraints imposed by the AFFIRMED. No pronouncement as to costs.
judicial function in our
democratic society. As a SO ORDERED.
matter of verbal recognition
certainly, no one will gainsay
that the function in construing
a statute is to ascertain the
meaning of words used by the
legislature. To go beyond it is
to usurp a power which our
democracy has lodged in its
elected legislature. The great
judges have constantly
admonished their brethren of
the need for discipline in
observing the limitations A
judge must not rewrite a
statute, neither to enlarge nor
to contract it. Whatever
temptations the statesmanship
of policy-making might wisely
suggest, construction must
eschew interpolation and
evisceration He must not read
in by way of creation. He must
not read out except to avoid
patent nonsense of internal
contradictions. ... 7

Petitioner finally argues that since under

Section 4 of Probation Law as amended has
vested in the trial court the authority to grant
the application for probation, the Court of
Appeals had no jurisdiction to entertain the
same and should have (as he had prayed in
the alternative) remanded instead the records
to the lower court. Once more, we are not
persuaded. The trial court lost jurisdiction over
the case when petitioner perfected his appeal.
The Court of Appeals was not, therefore, in a
position to remand the case except for
execution of judgment. Moreover, having