G.R. No. L-29015 April 29, 1975 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE MALUNSING, ET AL.

, defendants, MANUEL VILLEGAS, defendantappellant. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for plaintiff-appellee. Pablito Pielago for defendant-appellant.

FERNANDO, J.:+.wph!1 It was the failure of the lower court to respect the constitutional right to counsel, 1 so it is alleged, that is the basis for seeking the reversal of a conviction for murder of appellant Manuel Villegas. 2 There is more than ample support in the records for the charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant intimated to him that he had his own lawyer. 3 There was an admission that he did appear for him in the preliminary investigation but only because there was no other counsel. 4 Parenthetically, it may be observed that while in the original complaint there were two other accused with the same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they "were both discharged for lack of probable cause." 5 To resume, the lower court at this stage then asked whether the appellant notified Attorney Pajarito about his change of mind. When he answered in the negative, the Court stated: "All right, you have a lawyer who is appearing for you." 6 It is to the credit of such counsel that he had reservations about the matter, stating that as the accused had manifested that he had dispensed with his services, his representation might later on be questioned. 7 The court was not sufficiently impressed. Appellant was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will proceed with the trial." 8 After marking it of record that he was appointed as such counsel de oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer: "I think I know the case." 9 The Court then immediately proceeded with the hearing, having the first witness called. 10 In the decision itself, there is this meaningful admission by the court: "No evidence was presented for and in behalf of Manuel Villegas." 11 This is how the matter was characterized in the brief of appellant: "The prosecution during the trial presented its witnesses, and likewise all the defendants, ... except the appellant Manuel Villegas, took the witness stand and testified for and in their defense. The appellant is a very old man, ignorant and unlettered; during the entire proceedings in the case, the appellant while present did not know what was going on; the trial court never apprised the appellant of his fundamental right to be assisted by a lawyer; the trial

court did not even bother inquiring why the appellant Manuel Villegas did not take the witness stand, [something out of the ordinary as] all defendants, except the appellant, had testified; and the trial court went on throughout the proceedings of the case without knowing why the appellant did not testify, that if the appellant testified what would his testimony be like, what would be his demeanor during his testimony, ..." 12 Hence, his insistence that no deference was shown to the constitutional right to counsel. We are inclined to agree and we reverse. Considering, however, the gravity of the offense charged, instead of an acquittal, there should be a new trial with all the safeguards thrown around an accused. 1. That would be to vindicate a fundamental safeguard which in this case, perhaps from a desire of the lower court to proceed with the trial and thus ease what could be a congestion in its sala, was inadvertently disregarded. It is not enough that a counsel de oficio was appointed, especially so as here, where the accused had indicated that he wanted a lawyer of his choice, a decision prompted moreover by the fact that he had lost confidence in the member of the bar thus designated. Nor is it to manifest respect for this right if the counsel de oficio thus named, instead of conferring with the accused, would just blithely inform the judge that he was already fully prepared for his exacting responsibility. It was unintended, of course, but the result could not rightly be distinguished from pure travesty. Appellant could then rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a just and fair proceeding, he is entitled at the most to a new trial where he can be duly represented either by a counsel of his choice or by one appointed de oficio, one who would discharge his task in a much more diligent and conscientious manner and would not readily assume that he need not bother himself unduly with familiarizing himself further with all aspects of the case. For only in such a way may there be an intelligent defense. If the matter be viewed thus, there is no unfairness to the state either. It can still see to it that a person against whom a probable cause had been found would have to stand trial, but, to repeat, with all the constitutional safeguards. 2. It would not be amiss to refer to the opinion of Chief Justice Moran in People v. Holgado, 13 where the importance of this right was stressed. Thus: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 14 There are a number of American Supreme Court decisions to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly summed up the matter thus: "[The

accused] needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." 15 What is more, it is one of the worthwhile innovations of the present Constitution that even at the stage of custodial interrogation when the police agencies are investigating a man's possible connection with a crime, he is already entitled to counsel. 16 In a true sense, that is merely to underscore the historical fact that even under the organic acts 17 prior to the 1935 Constitution, there was an awareness of the importance of the right to counsel. 18 This is not of course to assert that this Court in the past had invariably accorded it an interpretation favorable to the stand of an accused. Thus in United States v. Labial, 19 a 1914 decision, it was held that the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to counsel is not sufficient ground for the reversal of a conviction. When Labial was affirmed in United States v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is "perhaps the privilege most important to the person accused of crime. 21 It is in that spirit, or something akin to it, that the framers of the 1935 Constitution approached the subject. Of even greater relevance is the fact that the present fundamental law has, as above indicated, vitalized still further its worth and significance. WHEREFORE, the lower court decision of December 4, 1967 insofar as it found Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered forthwith for such accused. This decision is immediately executory. No costs. Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.1wph1.t

Footnotest.hqw
1 Article III, Section 1, par. 17 of the 1935 Constitution. The applicable provision at the time of the hearing, insofar as pertinent reads: "In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, ...." 2 He was accused along with a certain Felipe Malunsing and Alfredo Rivera. 3 T.s.n., Session of December 21, 1965, 2. 4 Ibid. 5 Decision, Appendix to Brief for Appellant, 1. 6 T.s.n., Session of December 21, 1965, 2. 7 Ibid, 3. 8 Ibid. 9 Ibid. 10 Ibid.

11 Decision, Appendix to Brief for Appellant, 3. 12 Brief for the Defendant-Appellant, 2. 13 85 Phil. 752 (1950). Before this leading case, the following decisions may be noted: People v. Cachero, 73 Phil. 426 (1941); People V. Miranda, 78 Phil, 418 (1947); People v. Prieto, 80 Phil. 138 (1948); and People v. Silerio, 81 Phil. 124 (1948). 14 Ibid, 756-757. Cf. Montilla v. Sullano, 89 Phil. 434 (1951); People v. Nabaluna, 101 Phil. 402 (1957); and People v. Espejo, L-27708, Dec. 19, 1970, 36 SCRA 400. 15 323 US 471 (1945). 16 According to Article IV, Section 20 of the Constitution insofar as relevant: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." Cf. Magtoto v. Manguera, L-3720102, March 3, 1975. 17 Cf. The Philippine Bill, Section 5 (1902) and the Philippine Autonomy Act, Section 3 (1916). 18 Cf. U.S. v. Gimeno, 1 Phil. 236 (1902); U.S. v. Santos, 4 Phil. 419 (1905); U.S. v. Palisoc, 4 Phil. 207 (1905); U.S. v. Bacarrisas, 6 Phil. 539 (1906); U.S. v. Capa, 19 Phil. 125 (1911); U.S. v. Go Leng, 21 Phil. 420 (1912); U.S. v. Laranja, 21 Phil. 500 (1912); U.S. v. Ramirez, 26 Phil. 616 (1914); U.S. v. Labial, 27 Phil. 82 (1914); U.S. v. Custan, 28 Phil. 19 (1914); U.S. v. Kilayko, 31 Phil. 371 (1915); Tamayo v. Gsell 35 Phil. 953 (1916); U.S. v. Escalante, 36 Phil. 743 (1917); People v. Abuyen, 52 Phil. 722 (1929); People v. Del Rosario, 56 Phil. 796 (1931); Chua Go v. Collector of Customs, 59 Phil. 523 (1934). 19 27 Phil. 82. 20 36 Phil. 743. 21 Ibid, 747.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 129744 June 26, 1998 HONOR P. MOSLARES, petitioner, vs. THIRD DIVISION, COURT OF APPEALS, HON. ERIBERTO ROSARIO, JR., Presiding Judge, Br. 66, Makati; TOYOTA BEL-AIR, INC., respondents.

MELO, J.: Petitioner Honor P. Moslares seeks to set aside the decision of the Court of Appeals in its CA-G.R. SP No. 40086, dismissing his petition for review and affirming the order

dated September 13, 1995 of the Regional Trial Court of the National Capital Judicial Region (Makati City, Branch 66), declaring petitioner to have waived his right to present evidence, and affirming too the decision of the same regional trial court dated October 26, 1995 finding petitioner guilty of violation of Batas Pambansa Bilang 22 (Criminal Case No. 22-0099) which decision was promulgated in absentia. Likewise, petitioner seeks to nullify respondent appellate court's resolutions dated April 11, 1997 and May 19, 1997 denying his petition for bail. The antecedental facts may be chronicled in the following manner: On February 19, 1991, petitioner purchased three units of Toyota Corolla 1600 from Toyota Bel-Air, Inc. which were thereupon registered under his name, under the name of Manila Construction Development Corporation of the Philippines, and under the name of Austra-Phil Homes Inc. In payment thereof, petitioner issued Philippine Bank of Communications Check No. 841644 dated May 24, 1991 in the amount of P1,425,780.00. When presented for payment, said check was dishonored for having been drawn against insufficient funds. Thus, petitioner was charged for violation of Batas Pambansa Blg. 22 and for Estafa. The hearings of the case were postponed several times either at the instance of the petitioner or the prosecution, or motu proprio by the court. On September 13, 1995, the scheduled date of the presentation of evidence by petitioner, he failed to appear, but was represented by a newly retained lawyer, Atty. Dionisio Landero, who claimed that he was not ready to proceed with the trial as he was not yet familiar with the case. As a result, the trial court set the promulgation of the decision on October 30, 1995. On October 9, 1995, petitioner filed a Motion for Reconsideration/Re-Trial. However, on October 26, 1995 the trial court issued its assailed decision, portions of which read:
The record shows that accused Honor Moslares did not attend during the presentation of evidence for the prosecution nor for the defense. The Court set the presentation of evidence for defense nineteen (19) times four (4) of which were cancelled on the ground that there was a typhoon and the public prosecutor was "indisposed". But the accused did not even testify and presented only one witness, a certain Sixto Avila. Subject cases were submitted for decision four (4) times for failure of the accused to present evidence but was lifted in the interest of justice upon motion of the accused. He changed his lawyer four times everytime the Court ordered the case submitted for decision for failure of the accused to present his evidenced inorder to gain a delay. xxx xxx xxx

IN VIEW OF THE FOREGOING, judgment is hereby rendered:

1) In Criminal Case No. 92-0099 finding accused Honor Moslares guilty beyond reasonable doubt of violation of Batas Pambansa Bilang 22 and the Court hereby sentences Honor Moslares to suffer an imprisonment of one (1) year.

2) In Criminal Case No. 92-0100 finding accused Honor Moslares guilty beyond reasonable doubt of violation of Batas Pambansa Bilang 22 and the Court hereby sentences Honor Moslares to suffer an imprisonment of one (1) year. (pp. 111-112; 114, Rollo.)

On October 30, 1995, the trial court proceeded to promulgate in absentia the October 26, 1996 decision. On November 14, 1995, petitioner filed a notice of appeal which was denied due course by the lower court in its assailed order dated February 1, 1996. The lower court, relying on the case of People vs. Mapalao (197 SCRA 79 [1991]), considered petitioner to have waived his right to appeal. On February 14, 1996, petitioner filed a petition for relief from judgment which was likewise denied by the trial court. On March 14, 1996, petitioner filed a petition for review with the Court of Appeals which treated the petition as one for certiorari. Petitioner also filed on October 3, 1996, a petition to post bail, later supplemented. On November 29, 1996, the Court of Appeals rendered a decision dismissing the petition for review and denying the petition to post bail. Motions for reconsideration subsequently filed by petitioner were denied. Hence, the instant recourse, with petitioner contending that the Court of Appeals erred:
I. IN AFFIRMING THE DECISION OF THE LOWER COURT DECLARING THAT THE PETITIONER HAD WAIVED HIS RIGHT TO PRESENT EVIDENCE BY NUMEROUS POSTPONEMENTS THEREBY DEPRIVING PETITIONER HIS RIGHT TO DUE PROCESS. II. IN AFFIRMING THE DECISION OF THE LOWER COURT WHICH WAS PROMULGATED IN ABSENTIA WITHOUT GIVING PETITIONER AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF HIS DEFENSE. III. IN RULING THAT PETITIONER HAS NO VALID DEFENSE. IV. IN SUSTAINING ACTION OF LOWER COURT DISMISSING APPEAL THEREBY DENYING HIS RIGHT TO DUE PROCESS. V. IN DENYING PETITIONER'S APPLICATION FOR BAIL.

(p. 10, Rollo.)

Anent the first and second errors which are related, the Court of Appeals agreed with the trial court that petitioner should be considered to have waived his right to present further evidence because of his repeated failure to attend scheduled hearings. While it is true that the right to present evidence may be waived expressly or impliedly, it cannot be said that petitioner had waived said right in this case. The postponements sought by petitioner and counsel appear to be justified and were not vexatious and oppressive as borne by the record of the case. The intention and the willingness of petitioner to present evidence can be gleaned from the fact that he had already presented one witness and has other witnesses ready for presentation, although this was delayed, but for meritorious reasons, such as illness of the petitioner and his counsel, petitioner's confinement at a hospital, ongoing negotiations between the parties, and substitution of counsel. The rights of an accused during trial are given paramount importance in our laws and rules on criminal procedure. Among the fundamental rights of the accused is the right to be heard by himself and counsel. Verily, this right is even guaranteed by the Constitution itself. This right has been recognized and established in order to make sure that justice is done to the accused. Further, the constitutional right of the accused to be heard in his defense is inviolate. No court of justice under our system of government has the power to deprive him of that right (People vs. Lumague, Jr., 111 SCRA 515 [1982]). It would have thus been more befitting and seemly of the Court of Appeals had it ordered the trial court to reopen the case for the reception of petitioner's evidence. Granting that petitioner had sought a number of postponements, the requirements of substantial justice mandate that he should have been given his day in court. The grant of a reasonable continuance would have been sounder judicial discretion to ferret out the truth, than to have a speedy disposition of the case, but at the expense of a fundamental right. Hence, it was error for the trial court to have proceeded with the promulgation of decision on the premise that petitioner had waived his right to appear in court to present his evidence. Likewise, the Court of Appeals, in affirming said decision, gravely abused its discretion as it sustained a decision of the lower court rendered in violation of the right of petitioner to due process. As enunciated in the case of Alliance of Democratic Free Labor Organization vs. Laguesma (254 SCRA 565 [1996]), the most basic tenet of due process is the right to be heard. As regards the third assigned error, the Court of Appeals held that the defense sought to be established by petitioner would not, even if considered by the court, exonerate him from his criminal liability under Batas Pambansa Blg. 22. This declaration seems to be no less than, and is tantamount to, prejudging the nature of the testimony of petitioner and his witnesses.

It is worthy to note that the alleged criminal liability of petitioner stems from his being the signatory of the questioned check and his being an officer of the corporation, the actual purchaser of the cars. As mentioned by the Solicitor General in his Manifestation, and citing the case of Lina Lim Lao vs. Court of Appeals (274 SCRA 572 (1997]), an officer of a corporation is not to be held criminally liable for violation of Batas Pambansa Blg. 22 for signing a bum check, upon which premise, the Solicitor General concludes and recommends that petitioner be given his opportunity to present his evidence. With respect to the fourth error, the lower court, in denying petitioner's appeal, considered him to have waived his right to appeal because of his failure to be present during the promulgation of the judgment on October 30, 1995, despite due notice to him and his bondsman or counsel. We do not agree. The last sentence of Section 6, Rule 120 states that :
. . . If the judgment is for conviction, and the accused's failure to appear was without justifiable cause, the court shall further order the arrest of the accused, who may appeal within fifteen (15) days from notice of the decision to him or his counsel.

This means that whether or not the absence of the accused during promulgation is justified, the right to appeal is not lost, the only requirement being that the notice of appeal must be filed within 15 days from notice of the judgment. The Mapalao ruling (197 SCRA 79 [1991]), upon which the lower court and the Court of Appeals based their denial of petitioner's appeal, does not appear to be applicable herein, as the facts of the two cases differ. In Mapalao, the accused escaped from detention and trial in absentia continued against him. He remained at large even at the time of the promulgation of judgment, and thus, was deemed to have waived his right to appeal. In the instant case, however, petitioner is not a fugitive from justice. On the contrary, petitioner has been seeking redress under the law as evidenced by the various pleadings and motions he has filed with the courts. Petitioner, therefore, cannot be considered as one who has lost his standing in court and thus, cannot be deprived of his right to seek judicial relief. Inasmuch as petitioner's appeal was perfected within the 15-day reglementary period, the same must be given due course. To deny petitioner's appeal is tantamount to denying him due process. Although the right to appeal is a statutory, not a natural right, it is an essential part of the judicial system and courts should proceed with caution so as not to deprive a party of this prerogative, but instead, afford every party-litigant the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities (Santos vs. Court of Appeals, 253 SCRA 632 [1996]).

On the matter of bail, the Court of Appeals denied petitioner's motion to post bail on the ground that the decision of the lower court had become final and executory, inasmuch as the petitioner's appeal has also been denied. The following provisions of Rule 114 of the Rules of Court, as amended by Administrative Circular No. 12-94, are pertinent :
Sec. 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this Rule. Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.

Petitioner was not convicted of an offense punishable by death, reclusion perpetua, or life imprisonment where bail is not a matter of right on the part of petitioner nor of discretion on the part of the Court. Neither has he been convicted of an offense punishable by imprisonment of six to twenty years where bail becomes a matter of judicial discretion and may be denied if any of the circumstances aforementioned are present. Rather, petitioner was convicted erroneously it is to be hastily added of offenses punishable only by imprisonment of one year each. In this light, petitioner's

admission to bail becomes imperative and indispensable, moreso because of petitioner's deteriorating health. The right to bail is a constitutional guaranty which every person under legal custody may invoke, except those disqualified under the law. Petitioner does not fall under these exceptions and must, therefore, be duly accorded such right. Verily, it was patent error for the respondent Court of Appeals to deny petitioner of said right. WHEREFORE, the instant petition for certiorari is GRANTED. The decision of the Court of Appeals dated November 29, 1996 affirming the October 30, 1996 decision of the lower court, as well as said latter decision, are hereby set aside, and the case is remanded to the court of origin for further proceedings whereat, petitioner may be given an opportunity to post bail. For this reason, respondent court's resolutions dated April 11, 1997 and May 19, 1997 denying petitioner's petition for bail likewise set aside. No special pronouncement is made as to costs. SO ORDERED. Regalado, Puno, Mendoza and Martinez, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-45667 June 20, 1977 MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch VI) and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I), respondents. Hermis I. Mopntecillo for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela, Jr. and Solicitor Carlos N. Ortega for respondents. FERNANDO, J.:

The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining of the City of Cebu which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of Cebu in this certionrari proceeding was the absence of an arrainment of petitioner Manuel Borja, who was accused of slight physical injuries. This notwithstanding respondent Judge Senining proceeded with the trial in abssentia and thereafter, in a decision promulgated on August 18, 1976, found him guilty of such offense and sentenced him to suffer imprisonment for a period of twenty days of arresto menor. 1 Thereafter, an appeal was duly elevated to the Court of First Instance of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered on November 16, 1976 petitioner that the failure to arraign him is violative of his constitutional right to procedural due process, 3 more specifically of his right to be informed of the nature and cause of the accusation against him and of his right to be heard by himself and counsel. 4 Ther was thus, at the very least, a graveabuse of discretion. The Solicitor General, 5 when asked to comment, agreed that the procedural defect was of such gravity as to render void the decision of the City Court affirmed by the Court of First Instance. The comment was considered as answer, with the case being submitted for decision. Respect for the constitutional rights of an accused as authoritatively construed by this Court, duly taken note of in the comment of the Solicitor General, thus calls for the grant of the writ of certiorari prayed for. 1. The plea of petitioner to nullify the proceedings had in the criminal case against him finds support in the procedural due process mandate of the Constitution. It requires that the accused be arraigned so that he may be informed as to why he was indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him. Moreover, the sentence to be imposed in such a case is to be in accordance with a valid law. 6 This Court, in People v. Castillo, 7 speaking through Justice De Joya and following the language of the American Supreme Court, Identified due process with the accused having "been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded with the authority of a constitutional law, ..." 8 An arraignment thus becomes indispensable as the means "for bringing the accused into court and notifying him of the cause he is required to meet ... " 9 Its importance was stressed by Justice Moreland as early as 1916 in the leading case of United States v. Binayoh. 10 He pointed out that upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This duty is an affirmative one which the court, on its own motion, must perform, unless waived." 11 To emphasize its importance, he added: "No such duty, however, is laid on the court with regard to the rights of the accused which he may be entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of which he himself must demand. In other words, in the arraignment the court must act of its own volition, ..." 12 In the terse and apt language of the Solicitor

General: "Arraignment is an indispensable requirement in any criminal prosecution." 13 Procedural due process demands no less. 2. Nor is it only the due process guarantee that calls for the accused being duly arraigned. As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. It is imperative that he is thus made fully aware of Possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. An arraignment serves that purpose. Thereafter he is no longer in the dark. It is true, the complaint or information may not be worded with sufficient clarity. He would be in a much worse position though if he does not even have such an opportunity to plead to the charge. With his counsel by his side, he is thus in a position to enter his plea with full knowledge of the consequences. He is not even required to do so immediately. He may move to quash. What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital aspect of the constitutional rights guaranteed him. It is not useless formality, much less an Idle ceremony. 3. An equally fatal defect in the proceeding had before respondent Judge Senining was that notwithstanding its being conducted in the absence of petitioner, he was convicted. It was shown that after one postponement due to his failure to appear, the case was reset for hearing. When that date came, December 14, 1973, without petitioner being present, although his bondsmen were notified, respondent Judge, as set forth in the comment of the Solicitor General, "allowed the prosecution to present its evidence invoking Letter of Instruction No. 40. Only one witness testified, the offended party herself, and three documents were offered in evidence after which the prosecution rested its case. Thereupon, respondent City Court set the promulgation of the decision on December 28, 1973." 14 It could then conclude: :Verily the records clearly show that petitioner was not arraigned at all and was not represented by counsel throughout the whole proceedings in the respondent City Court." 15 It is indisputable then that there was a denial of petitioner's constitutional right to be heard by himself and counsel. As categorically affirmed by Justice Ozaeta for this Court in the leading case of Abriol v. Homeres: 16 "It is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him." 17 He added further that such "constitutional right is inviolate." 18 There is no doubt that it could be waived, but here there was no such waiver, whether express or implied. It suffices to refer to another leading case, People v. Holgado, 19 where the then Chief Justice Moran emphatically took note of the importance of the right to counsel: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence." 20 With the violation of the constitutional right to be heard by himself and counsel being thus

manifest, it is easily understandable why the Solicitor General agreed with petitioner that the sentence imposed on him should be set aside for being null. 4. The provision in the present Constitution allowing trial to be held in absentia is unavailing. It cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit. What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 21 As pointed out then by the Solicitor General, the indispensable requisite for trial in absentia is that it should come "after arraignment." The express mention in the present Constitution of the need for such a step emphasizes its importance in the procedural scheme to accord an accused due process. Without the accused having been arraigned, it becomes academic to discuss the applicability of this exception to the basic constitutional right that the accused should be heard by himself and counsel. 5. Nor did the appeal to the Court of First Instance presided by respondent Judge Mendoza possess any curative aspect. To quote anew from the comment of the Solicitor General: "Respondent Court of First Instance ... considered the appeal taken by the petitioner as waiver of the defects in the proceedings in the respondent City Court. Precisely, the appeal itself is tantamount to questioning those defects. In fact, the Memorandum in support of the appeal unmistakably raised as error the absence of petitioner at the arraignment and cited jurisprudence, commentaries and the rules to bolster his position. Specifically, the absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a fair and impartial trial." 22 WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge Romulo R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight physical injuries, with due respect and observance of the provisions of the Rules of Court, starting with the arraignment of petitioner. Barredo, Antonio, Aquino and Fernandez, JJ, concur. Concepcion Jr., J, is on leave.

Footnotes
1 Petition, pars. 4-8. 2 Ibid, 9. 3 According to Article IV Section 17 of the Constitution: "No person shall be held to answer for a criminal offense without due process of law.

4 According to Article IV, Section 19: "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy; impartial, and public trial, to meet the witnesses face to face, and to ahve compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 5 Solicitor General Estelito P. Mendoza was assisted by Assistant Solicitor General Jose F. Racela, Jr. and Solicitor Carlos N. Ortega. 6 Cf. Vera v. People, L-31218, February 18, 1970, 31 SCRA 711. 7 76 Phil. 72 (1946). 8 Ibid, 87. Reference was made to Rogers v. Peck, 199 US 425 (1905) and Twining v. New Jersey, 211 US 78 (1908). 9 Ibid. 10 35 Phil. 23. 11 Ibid, 27. 12 Ibid. 13 Comment of the Solicitor General, 4. 14 Ibid, 2. 15 Ibid, 8. 16 84 Phil. 525 (1949). 17 Ibid, 529. 18 Ibid, 534. 19 85 Phil. 752 (1950). 20 Ibid, 756. 21 Article IV, Section 19 of the Constitution. 22 Comment of the Solicitor General, 9.

BORJA VS. MENDOZA [77 SCRA 422; G.R. NO.L-45667; 20 JUN 1977]
Sunday, February 15, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts:

Borja was accused of slight physical injuries in the City of Cebu. However, he was not arraigned. That not withstanding, respondent Judge Senining proceeded with

the trial in absentia and rendered a decision finding petitioner guilty of the crime charged. The case was appealed to the Court o First Instance in Cebu presided by respondent Judge Mendoza. It was alleged that the failure to arraign him is a violation of his constitutional rights. It was also alleged that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered The Solicitor General commented that the decision should be annulled because there was no arraignment.

Issue:
was

Whether or Not petitioners constitutional right violated when he was not arraigned.

Yes. Procedural due process requires that the accused be arraigned so that he may be informed as to why he was indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him. It is also not just due process that requires an arraignment. It is required in the Rules that an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. It is imperative that he is thus made fully aware of possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. Being arraigned is thus a vital aspect of the constitutional rights guaranteed him. Also, respondent Judge Senining convicted petitioner notwithstanding the absence of an arraignment. With the violation of the constitutional right to be heard by himself

Held:

and counsel being thus manifest, it is correct that the Solicitor General agreed with petitioner that the sentence imposed on him should be set aside for being null. The absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a fair and impartial trial. Wherefore, the petition for certiorari is granted. The decision of respondent Judge Romulo R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight physical injuries, with due respect and observance of the provisions of the Rules of Court, starting with the arraignment of petitioner.

EN BANC [G.R. Nos. 139225-28. May 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALCALDE y PASCASIO, accused-appellant. DECISION
DAVIDE, JR., C.J.:

For automatic reviewi[1] is the Consolidated Judgmentii[2] of 30 April 1999 of the Regional Trial Court, Branch 28, Santa Cruz, Laguna, in Criminal Cases Nos. SC-6651 to SC-6654, convicting accused-appellant Arnel Alcalde y Pascasio (hereafter ARNEL) of two counts of parricide committed against his wife WENDY and his 11-month-old son ARWIN and two counts of frustrated parricide committed against his two daughters BERNALYN and ERICA.

On 24 September 1997, the Office of the Provincial Prosecutor of Laguna filed before the trial court two informations for parricide and two informations for frustrated parricide. Upon his arraignment on 22 October 1997,iii[3] ARNEL, who was assisted by a counsel de parte, refused to speak. Pursuant to Section 1(c) of Rule 116 of the Rules of Court, the trial court entered for him a plea of not guilty in each of the cases. On the same occasion, the defense waived pre-trial. The cases were then consolidated and jointly tried. The witnesses initially presented by the prosecution were SPO2 Nicanor Avendao, Dr. Nilo Pempengco, Dr. June Mendoza, and Salud Suillan. SPO2 Nicanor Avendao testified that upon his arrival at the house of ARNEL in Barangay Bubukal, Santa Cruz, Laguna, at about 1:00 p.m. of 29 August 1997, he found the house in disarray. He saw a naked woman lying dead on a wooden bed with both hands and feet tied from behind, as well as a dead child on a crib. The dead woman was WENDY, and the dead child was ARWIN. Some clothes and a puppy were also burned. Avendao and his team recovered a piece of steel near WENDYs face and empty bottles of gin and Royal Tru-Orange on top of the cabinet. They took pictures of the dead bodies and caused the entry of the incident in the police blotter. He learned later that ARNEL's two daughters, BERNALYN and ERICA, had been rushed to the provincial hospital for treatment before he and his team arrived at the crime scene.iv[4] Dr. Nilo Pempengco, the physician who conducted an examination of the dead bodies of WENDY and ARWIN, testified that the cause of their death was cardio-respiratory arrest due to severe traumatic head injury and multiple contusion hematoma.v[5] The injuries could have been caused by any hard and blunt object like a piece of metal, piece of wood, or even a hand. Dr. June Mendoza, a physician-surgeon of the Laguna Provincial Hospital, testified that he treated BERNALYN and ERIKA on 29 August 1997. He found in BERNALYN multiple contusion hematoma,vi[6] which could have been inflicted by a blunt and hard object and by a rope but which would not have caused immediate death even if not properly treated.vii[7] He found in ERIKA contusions and lacerated and incised wounds,viii[8] which would not have caused death even if no immediate medical attention had been given.ix[9] Salud Suillan, WENDYs mother, declared that WENDY and ARNEL lived with her at her residence in Banca-Banca, Victoria, Laguna, for nine months after their marriage and that during their sojourn at her house she noticed ARNELs uncontrollable jealousy. ARNEL used drugs, which frequently caused his tantrums.x[10] When asked whether she knew who killed WENDY and ARWIN, Salud answered that according to Jose Alcalde, ARNEL was the killer.xi[11] On cross-examination, she admitted that ARNEL had been continuously treated at the University of Sto. Tomas Hospital in Manila from 1993 up to 1997. However, she did not know whether he was treated for a mental illness.xii[12] After the prosecution rested its case and formally offered its exhibits, the defense filed a motion for leave of court to file a demurrer to evidence,xiii[13] which was granted. On 27 April 1998,

the defense, through counsel de parte Atty. Renato B. Vasquez, Sr., filed a demurrer to evidencexiv[14] based on the following grounds: (a) The accused has not been adequately informed of the nature and cause of accusation against him during the arraignment; (b) Not an iota of incriminatory evidence, direct or circumstantial, has been adduced and presented by the prosecution during the trial; and (c) The constitutional presumption of innocence of the accused has not been overcome by any evidence or contrary presumption. In support thereof, the defense alleged that ARNEL was afflicted with psychosis and could not comprehend, and that despite his strange behavior characterized by his deafening silence, motionless appearance, and single direction blank stare the trial court insisted on his arraignment. Thus, ARNEL was not adequately apprised of the nature and cause of the accusation against him. Moreover, no concrete evidence pointing to ARNEL as the culprit was presented by the prosecution. Hence, the constitutional presumption of innocence of an accused prevails. In its Order of 22 May 1998,xv[15] the trial court denied the demurrer to evidence and set the dates for the presentation of the evidence for the defense. However, in a Manifestation dated 4 June 1998,xvi[16] Atty. Vasquez informed the court that the defense opted not to present evidence for ARNELs defense, as the prosecution failed to prove his guilt beyond reasonable doubt. On 16 July 1998, the prosecution filed its Commentxvii[17] on the manifestation and prayed for the re-opening of the presentation of prosecutions evidence for the purpose of proving that ARNEL was at the scene of the crime. In its Order of 21 August 1998,xviii[18] the trial court allowed the prosecution to present additional evidence. The defense questioned the propriety of the said order before the Court of Appeals in a petition for certiorari. In its resolution of 17 December 1998,xix[19] the Court of Appeals dismissed the petition for non-compliance with Section 1, Rule 65, Rules of Court, and for the further reason that the order sought to be set aside was interlocutory in character and could not, therefore, be the subject of a petition for certiorari; and that even granting that the exception applied, the trial court committed no capriciousness in issuing the assailed order. The prosecution thereafter presented SPO1 Neptali de la Cruz and Jose Alcalde as additional witnesses. SPO1 Neptali dela Cruz, testified that at around 1:30 p.m. of 29 August 1997, while he was on duty at the Police Assistance Center Base, Barangay Bubukal, Santa Cruz, Laguna, he received a report of a killing incident at the house of ARNEL. He proceeded to the place with SPO2 Edilberto Apuada. There, he saw ARNEL seated outside the house while being held by two persons. He and Apuada entered the house and saw the dead bodies of WENDY and ARWIN.

He noticed that ARNEL was motionless and silent when the dead bodies were being brought out of their house.xx[20] Jose Alcalde, father of ARNEL, testified that at 1:30 p.m. of 29 August 1997 he heard the news that ARNELs house was burning. Along with one Martin, his carpenter, Jose proceeded to ARNELs house. Upon entering the house, he saw ARNEL with raging eyes, holding a kitchen knife and a hammer. Jose tried to pacify and convince ARNEL to surrender his weapons to him. Joses effort proved futile. It was only upon the intervention of ARNELs two brothers that ARNEL was successfully disarmed. Jose left ARNEL to the care of his brothers because he had to bring to the hospital the almost lifeless bodies of BERNALYN and ERIKA. xxi[21] After the prosecution finally rested its case, the trial court set on 8 October 1998 the presentation of the evidence for the defense. However, on 7 October 1998, counsel for ARNEL, Atty. Vasquez Sr., informed the trial court of his inability to communicate with ARNEL because of ARNELs out of touch of the world behavior. Atty. Vasquez manifested that the defense was constrained to submit the case for decision.xxii[22] In its decision of 30 April 1999,xxiii[23] the trial court found that the prosecutions evidence has duly established a succession of circumstantial evidence that leads to the inescapable conclusion that ARNEL committed the crimes charged. It gave due credence to the testimony of Jose Alcalde. It found significant the fact that right from the start of the investigation of the incident up to the time the cases were submitted for decision, no other person was suspected of having anything to do with the gruesome family massacre. The trial court added that ARNELs culpability was further bolstered by his failure to offer any evidence for his defense despite ample opportunity to do so. In determining the appropriate penalty in Criminal Case Nos. SC-6651 and SC-6654 for the killing of WENDY and ARWIN, the trial court applied Article 246 of the Revised Penal Code, as amended by Section 5, R.A. No. 7659, which reads: ART. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Taking into account the two aggravating circumstances of treachery and abuse of superior strength, it imposed the death penalty in both cases. As for Criminal Cases Nos. SC-6652 and SC-6653, the trial court found ARNEL guilty of the crime of frustrated parricide after considering the severity of the wounds suffered by his daughters BERNALYN and ERIKA, which clearly showed his intent to kill them. In the Appellants Brief, the defense, through a new counsel, Atty. Eduardo A. Cagandahan, states that the trial court committed the following errors: 1. in proceeding with the case against the accused who had not been duly informed of the nature and cause of accusation against him during the arraignment or trial.

2. when it failed to have the accused medically examined to ascertain whether he was in possession of his mental faculties when he allegedly committed the acts imputed to him, or that he was suffering from mental aberration at the time the crime was committed, and when he entered the plea and during the trial on the merits despite the observation of the court a quo, as contained in the order dated August 21, 1998. In support thereof, the defense assails the validity of ARNELs arraignment, and asserts that with ARNELs questionable mental state he could not have understood the proceedings. It then cites the trial courts Order dated 21 August 1998, wherein the trial court made its own observation regarding ARNELs strange behavior at the time of arraignment. The Order reads in part: Finally, it is worthwhile to recall that when the accused was arraigned in all the four cases, the Court was constrained to enter for him a PLEA OF NOT GUILTY in all said cases as the accused acted strangely in a manner as if he [was] out of touch with the world and would not utter any word. But since the defense opted not to present any evidence, no defense whatsoever could be entertained for the accused. Furthermore, the defense calls our attention to the Medical Certificatexxiv[24] issued by Dr. Ramon S. Javier, M.D., FPPA, FPNA, of Sto. Tomas University Hospital, stating that ARNEL was first brought to his clinic on 3 December 1993, and was confined at the psychiatric ward several times for bipolar mood disorder (manic-depressive psychosis). His last confinement in that hospital was from 12 to 24 February 1997, or six months before the family massacre. The medical abstractxxv[25] issued by Dr. Ma. Corazon S. Alvarez, which was also submitted by the defense, likewise shows the several hospitalizations of ARNEL while in detention at the Bureau of Corrections, Muntinlupa City, and the finding that ARNEL was suffering from bipolar mood disorder with psychotic features. The defense then prays for ARNELs acquittal or, in the alternative, the remand of the case to the lower court for further proceedings and for the determination of ARNELs mental state. In the Brief for the Appellee, the Office of the Solicitor General (OSG) maintains that under Section 11, paragraph (a), Rule 116 of the Rules of Criminal Procedure, suspension of arraignment on the ground that accused appears to be suffering from an unsound mental condition, which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto, may be granted upon motion by the party. In these cases neither accused nor his counsel de parte asked for the suspension of the arraignment on that ground. Such failure was tantamount to an admission that ARNEL was not suffering from any mental disorder or to a waiver of the right to move for suspension of arraignment. Besides, for the defense of insanity to prosper, it must be proved that the accused was insane at the very moment when the crime was committed. The trial court was not duty-bound to initiate the determination of ARNELs alleged mental incapacity. Finally, the OSG agrees with the trial court that the chain of circumstances in these cases proved beyond reasonable doubt that ARNEL committed the crimes charged. It, however, submits that ARNEL should be meted the penalty of reclusion perpetua only, instead of death, in Criminal Cases Nos. SC-6651 and SC-6654 because the aggravating circumstances of treachery and abuse

of superior strength cannot be appreciated against ARNEL. It agreed with the trial court insofar as Criminal Cases Nos. SC-6652 and SC-6653 are concerned. After a painstaking scrutiny of the records of these cases, we rule for ARNEL. We cannot subscribe to the claim of the OSG that the failure of ARNELs counsel de parte to ask for the suspension of his arraignment on the ground that ARNEL was suffering from an unsound mental health amounted to a waiver of such right. It must be recalled that ARNELs arraignment was on 22 October 1997. At the time, what was applicable was Section 12(a) of Rule 116 of the 1985 Rules on Criminal Procedure, which reads: SEC. 12. Suspension of arraignment. The arraignment shall be suspended, if at the time thereof: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. Nowhere in that Section was it required that a motion by the accused be filed for the suspension of arraignment. Hence, the absence of such motion could not be considered a waiver of the right to a suspension of arraignment. True, Section 11(a) of the Revised Rules of Criminal Procedure, which was invoked by the OSG, requires a motion by the proper party, thus: SEC. 11. Suspension of arraignment. -- Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. [Emphasis supplied]. This new requirement of motion by the proper party could not be applied to these cases because the Revised Rules of Criminal Procedure, which prescribes such requirement, took effect only on 1 December 2000. Besides, a waiver must be knowingly and intelligently made by the person possessing such right.xxvi[26] Unfortunately, ARNEL was apparently deprived of such mental faculties. Thus, no waiver, impliedly or expressly, could have been made by ARNEL at the time of his arraignment by reason of his mental condition.xxvii[27] Settled is the rule that when a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter. If it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered.xxviii[28] Moreover, the

aforementioned Section 12(a) of Rule 116 mandates the suspension of the arraignment and the mental examination of the accused should it appear that he is of unsound mind. In these cases, the trial court should have ascertained ARNELs mental state instead of proceeding with his arraignment and its subsequent proceedings. The following were enough for the trial court to take seriously the issue of whether ARNEL was in full possession of his mental faculties at the time of the arraignment and trial: (a) At his arraignment, the trial court observed that ARNEL acted strangely in a manner as if he [was] out of touch with the world and would not utter any word.xxix[29] (b) In its Motion and Waiver of Presence [of the Accused] During the Trial,xxx[30] the defense expressed its apprehension that ARNEL might explode into another violence while in transit to attend his trial or while in the courtroom. (c) ARNELs continued strange behavior characterized by his deafening silence, motionless behavior and blank stares was raised as an issue by the defense in its demurrer to evidence.xxxi[31] (d) The persistent out of touch with the world behavior of ARNEL, which prevented his counsel from effectively communicating with him for his defense was pointed out in the Manifestation and Motion submitted by the defense.xxxii[32] (e) ARNELs questionable mental state was reiterated by the defense in its memorandum.xxxiii[33] The physical and outward manifestations of ARNEL at the time of his arraignment, which were brought to the attention of the trial court, indicated substantial demonstration of a mental disorder that rendered ARNEL unfit to be arraigned or tried in the four criminal cases at bar. The trial court failed to exercise utmost circumspection in assuming that ARNEL was in full possession of his mental faculties and understood the proceedings against him. The constitutional right to be informed of the nature and cause of the accusation against him under the Bill of Rightsxxxiv[34] carries with it the correlative obligation to effectively convey to the accused the information to enable him to effectively prepare for his defense.xxxv[35] At the bottom is the issue of fair trial. While not every aberration of the mind or exhibition of mental deficiency on the part of the accused is sufficient to justify suspension of the proceedings, the trial court must be fully satisfied that the accused would have a fair trial with the assistance the law secures or gives.xxxvi[36] Under the circumstances in these cases, the trial court gravely failed in this regard. While at first glance, the remarkable enthusiasm by which the trial court adjudicated these cases should earn emulation, it however cannot be countenanced considering its disregard of the constitutional rights of ARNEL. Courts should be mindful of their responsibility to see to it that the paramount interests of justice are not sacrificed for the sake of speed and efficiency.xxxvii[37]

It is also worthy to mention Atty. Vasquezs apparent lackadaisical attitude in these cases which amounted to disregard of the strict demands of fidelity to his oath as a lawyer, duty to his client, and responsibility as an officer of the court.xxxviii[38] He knew, or ought to know, from the very beginning that ARNEL was hospitalized for mental disorder. The latters strange appearance at his arraignment was enough reason for a counsel to ask for the deferment of arraignment and for leave of court to have ARNEL subjected to psychological examination and psychiatric evaluation. Then, too, he should have, at the very least, presented the doctor who treated ARNEL in the University of Santo Tomas Hospital for his recurring mental illness. Irrefutably, Atty. Vasquezs behavior in the defense of ARNEL fell short of the demanding duty to present every defense that the law permits to the end that no person may be deprived of life or liberty but by due process of law.xxxix[39] Even if Atty. Vasquezs zeal for ARNELs cause fell short of that required of him, that is, for him to have asked the court to suspend the arraignment of ARNEL on the ground of the latters unsound mental health, the greater demand of due process overwhelms such inadequate zeal. Solemn and inflexible is the constitutional behest that no person shall be deprived of life, liberty or property without due process of law. Absolute heedfulness of this constitutional injunction is most pronounced in criminal cases where the accused is in the gravest jeopardy of losing his life. It constantly behooves every court to proceed with utmost care in each of such cases before it, and nothing can be more demanding of judges in that respect than when the possible punishment would be in its severest form like death -- a penalty that, once carried out, is irreversible and irreparable.xl[40] In light of the foregoing fatal infirmities committed by the trial court, as well as by the defense counsel, we have no other alternative except to set aside the joint decision in question and remand the cases to the trial court for further proceedings to allow the defense to present evidence to prove that ARNEL was either unfit for arraignment and trial or was insane at the time the crimes charged were committed. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Consolidated Judgment of the Regional Trial Court, Branch 28, Santa Cruz, Laguna, in Criminal Cases Nos. SC-6651 to SC6654 promulgated on 30 April 1999 is hereby SET ASIDE. These cases are ordered REMANDED to the trial court for further and appropriate proceedings in accordance with the foregoing observations. Costs de oficio. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

FIRST DIVISION [G.R. Nos. 115236-37. January 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BRYAN FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA, accused-appellants. DECISION YNARES-SANTIAGO, J.: Accused-appellants Bryan Dy and Giovan Bernardino were charged with Rape and Acts of Lasciviousness in a complaint initiated by Gina Marie Mobley under the following informations: Criminal Case No. 12600-R: That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously and taking advantage of the unconscious state of the complainant who was then under the influence of drugs, have carnal knowledge of the complainant GINA MARIE MOBLEY, against her will and consent. CONTRARY TO LAW. Criminal Case No. 12601-R: That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, actuated by lust with lewd design and with deliberate intent to satisfy their lascivious desire, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously kiss her, fondle her breast, undress her and insert their fingers into her vagina, who was then unconscious by reason of the drugs employed on her by the accused, all against her will and without her consent, thereby inflicting upon the latter moral shock, fright, humiliation, dishonor and besmirched reputation on the part of the complainant and her family. The two cases were tried jointly. Accused-appellants refused to be arraigned and enter a plea; hence, a plea of not guilty was entered on their behalf. During the trial, the following undisputed facts were established: Complainant Gina Marie Mobley, together with her companion Helen Kathleen Tennican, both American nationals, were exchange students at the Chengdu University of Science and Technology in Chengdu, Sichuan, China. Gina was taking up Biology. Helen was also a Biology major and took Chinese Studies as an additional course. Both were enrolled at the Pacific Lutheran University at Tacoma, Washington, where Gina was a university scholar.

Having heard of the renowned Filipino hospitality from their Filipino-American friends, Gina and Helen decided to spend their semestral break in the Philippines. They arrived in the country on January 10, 1994. They stayed overnight in Manila then went to Angeles City the next day. In Angeles City, they visited a bar and had cocktails, played billiards and went disco dancing. The following morning, January 12, 1994, they flew over Mt. Pinatubo and viewed the laharcovered areas on board an ultralight plane. That afternoon, they were driven from their hotel to the Philippine Rabbit Bus terminal in Dau, Pampanga, where they were supposed to take a ride to Baguio City. While waiting for their bus, they went to a Shakeys Pizza Parlor near the terminal. Gina and Helen took the table near the comfort room. Accused-appellants Bryan and Giovan, who are brothers-in-law, were seated at the next table. With them was their driver, Rizal. Bryan recognized the two girls from the Angeles Flying Club, where Gina and Helen rented the ultralight plane. Gina went to the comfort room. Bryan and Giovan approached Helen and introduced themselves. They invited Helen to join them at their table, but she declined. While Brian and Giovan were still talking to Helen, Gina returned. She presumed that Helen knew them, so she started to talk with the boys. Gina told them they came to the country to see the sights and that they wanted to experience Filipino hospitality. Since they could hardly hear each other above the din of the TV, the girls agreed to join them at their table. The girls talked about their plan to go to Baguio City and Banaue. Bryan and Giovan offered the girls a ride to Baguio City. Gina and Helen talked the matter between themselves. Eventually they accepted the offer thinking that they could save some money. Besides, they thought the boys looked nice and trustworthy. They left Shakeys at 7:30 in the evening and boarded a white 1991 four-door Mitsubishi sedan. Rizal took the wheel, while Bryan sat at the front passenger seat. Helen, Gina and Giovan stayed on the back seat, in that order. Before proceeding to Baguio, they stopped at a residential area where Bryan delivered some papers and picked up some jackets. On their way to Baguio, they talked about school. The girls told them about their boyfriends, while Bryan talked about his Italian ex-girlfriend. Rizal and Giovan did not join in the conversation at all. Bryan asked Gina whether she has taken drugs, but Gina replied that she only drinks alcohol occasionally. The group arrived in Baguio City at 10:45 in the evening. They proceeded to the house of Bryans uncle, but shortly afterwards, they left to look for another place to stay. They went to the Terraces Hotel but found the rates too expensive. Then, they checked the Baden Powell. The girls found the dormitory style accommodations to their liking and were about to unload their things, when Bryan suggested the Benguet Pines Tourist Inn, which he said he had already tried and had found to be a very fine hotel. They checked in at the Benguet Pines Tourist Inn at 11:00 in the evening. They got two rooms on opposite sides of the corridor on the second floor. After a while, Bryan and Giovan asked the girls out for some drinks and dancing at the Songs Jazz Bar along Session Road.

The parties versions of the events that followed differed. According to Gina and Helen, while at the Songs Jazz Bar, Helen drank a margarita, tequila and blowjob with plenty of water. Gina drank Singaporean sling, blowjob and half a glass of Giovans mai tai. Bryan drank just one shot of tequila while Giovan drank half a glass of mai tai. They also had appetizers. Gina and Helen did not feel intoxicated. They just felt warm. On the other hand, Bryan and Giovan narrate that Helen drank margarita, daiquiri, tequila and blow job while Gina had Singaporean sling, tequila, blow job and mai tai. Bryan had a bottle of beer and two shots of tequila while Giovan only drank one bottle of beer. They ordered chicken wings and kropeck chips. After the group left Songs Jazz Bar, Ginas and Helens account went as follows: As they were pulling away, Giovan, who was driving, said that he was thirsty and wanted to buy cola drinks. Gina agreed to have one (See Exhibit B-2). But Helen declined since she had drank plenty of water already at the Songs Jazz Bar (Ibid.). Giovan then drove to what the girls called a convenience store because it was open at odd hours, but which is actually the Kowloon Restaurant, according to the boys. Giovan and Bryan alighted and returned after some ten minutes with Giovan carrying three plastic cups of Sprite or Seven-Up and Bryan, two cups and a plastic bag containing Chinese food with small lemons to be squeezed on it. Bryan gave Helen and Gina a cup each. Since she thought it impolite not to drink what was given her, Helen removed the cover of her cup and sipped from it as there was no straw, although the cup cover had a hole into which a straw is to be inserted. On the other hand, Gina did not at first remove the lid of her cup (See Exhibit 4); she just sucked from the hole intended for the straw (Exhibit 4-B). But later on she took off the cover (Exhibit 4-A) and drunk from the cup. Meanwhile, as they were drinking their cola drinks, Giovan drove the group to Camp John Hay (should be Club John Hay) where he told the guards at the gate that they were just going to check on the Clubs billeting rates. They parked in front of the billeting office. Gina was then about to finish her cola drink when she felt something gritty in it which stuck into her teeth; they were like small particles. She spat them back into the cup and dumped out the remaining contents of the cup outside the car and thereafter gave the cup to Giovan who threw it into a trash can. Gina commented out loud about the gritty substance in her drink and related that in China they often found strange things in their food. There was no word from the boys. Helen finished her drink and then handed the empty cup to Giovan who likewise threw it into a trash can.xli[1] After leaving Club John Hay, the group returned to their hotel. The girls went on to narrate: Giovan, Gina, Bryan and Helen, in that order entered. Helen no longer noticed where Rizal was. Giovan directly proceeded upstairs and stopped on the stair just above the first landing while Gina followed him and stopped on the first landing. Helen got the keys to their room while Bryan was behind her talking to the desk clerk. Helen tossed the key to the boys room to Gina who was about seven to ten feet away and the latter, in turn, gave it to Giovan. Helen also flipped their key to Gina who caught it with one hand. Helen waited for Bryan and they went upstairs together. Gina was trying to open her and Helens room with difficulty and so the latter

got the key from her and opened the door. Both entered the room briefly and when Helen was still by the doorway, Gina went out and walked towards the boys room. Gina had no recollection why she did so; all she could recall was that she was standing inside the boys room. On the other hand, Helen remembered that one of the boys asked if she had playing cards but he seemed preoccupied with something else, so she did not make any move to get the playing cards from her bag. Since she was very tired she entered their (girls) room, took off her contact lenses in the comfort room, put them in her contacts case and went to bed. Thereupon, she lost her memory. Sometime later, she felt the sensation of wanting to vomit and ran to the comfort room in panic that she might not get there on time. However, she did not know if she vomitted. She lost her sense of time and did not know if she ever went back to bed. She had never felt that way before. She again regained partial consciousness when she felt being wet on her face and upper chest as though somebody was touching her with the mouth. She could not tell if her eyes were open but, in any event, she could not see anyone or anything; she only felt that her personal space was being violated. She curled up like a baby in the womb and kept on saying, no, until whoever was with her in the room went away. Then, she lapsed into unconsciousness. At this time in the boys room, Gina noticed that one of the boys pushed the two beds in the room together. She walked up to one of the beds and lay down on her belly. Giovan lay alongside her and forcefully kissed her. She could not call to mind what else happened as she believed she was drugged. She could only remember that Giovan was trying to take off her pants while she was trying to prevent him by holding on to its elastic waist line. Giovan was all along kissing her with his tongue in her mouth, lying on top of her and touching her breasts. He inserted his fingers into her vagina but at this precise moment someone knocked on the door. So, Giovan got up and it was then that Gina realized that he was completely naked and so was she. He handed the blanket on the bed to her and she covered her body with it. She saw lights coming from the hallway and heard Giovan say, I think she is asleep. She could not recall removing them again. When that someone laid on top of her, she found out that it was Bryan. He placed himself between her legs. She could not recollect if they kissed but she felt his erect penis against her vaginal opening. She told him that she did not want to have sex; that she was still a virgin. He asked why she was still a virgin and she replied that she wanted to wait for a husband. More words were in her mind but she could not speak them out. Bryan told her that he wont put it in. But Gina felt pain in her vagina because his penis was going into it. The thought occurred to Gina that if she did not do anything, she knew what was going to happen. It dawned on her that if she stimulated him in some other way, he might not penetrate her further. So, she slid down and did a fellatio or oral sex on him. She could not explain her feelings then; to her it was like a nightmare; it was as if she was observing what was going on and it wasnt really her; she felt like her head was detached from her body. She did the oral sex for only several seconds because it was as if someone went into the room. Then, she became unconscious.xlii[2] Again, Bryan and Giovan had a different story:

[F]rom the Songs Jazz Bar they went to Kowloon Restaurant because Bryan was hungry and wanted to eat siomai and chicken pao with Sprite. Gina and Helen also wanted Sprite while Giovan and Rizal, grape juice and root beer, respectively. Giovan and Rizal went down to buy all these. They made their orders through a small window because the main entrance to the restaurant was already closed. They returned with Rizal holding three plastic cups of Sprite with ice in them and Giovan, root beer and grape juice and two plastic bags containing siomai and chicken pao. Then, Giovan drove them to John Hay because one of the girls wanted to see the place. That was already past 2:00 oclock in the morning of January 13. They pulled over the premises of the billeting area because Giovan told the guards at the gate that they would just check on the billeting rates. Giovan went to the billeting office where he stayed for about ten minutes. In the meantime, those left in the car finished their drinks and Bryan collected the cups and threw them into a trash can at the farther left side of where they parked. They were at John Hay for less than 15 minutes. Then, they left for the Benguet Pines Tourist Inn at about 2:00 oclock in the morning of January 13.xliii[3] As to the events that occurred at the hotel, accused-appellants had this to say: Bryan, Helen, Gina and Rizal got off the car ahead as Giovan went to park it. Giovan got the key to their room from the cars glove compartment and picked up the key to the girls room from the backseat of the car because he saw it lying there. He averred that they did not leave their hotel keys at the front desk when they left for the Songs Jazz Bar since there was no one there at the time. After giving the girls key to them at the hallway where they were talking with Bryan, he went to their room followed by Rizal and then Gina. On the other hand, Bryan went with Helen to the girls room where he borrowed Helens playing cards. After Bryan had entered the boys room, they joined together the two beds inside and sat on them (Exhibit 8). They taught Gina how to play Russian poker or what is commonly called pusoy for more than thirty minutes. But Gina never learned the game and so they switched to blackjack. Then, Gina said that she was hungry. Giovan offered to go out and buy what Gina wanted, to which the latter replied that any food will do. Giovan left with Rizal. That was already past 4:00 oclock in the morning of January 13. After Giovan had closed the door, she and Bryan continued playing blackjack. After some ten minutes, Gina put down the playing cards and said that she just wanted to talk with Bryan. She lay down on her left side facing Bryan with her left hand supporting her head. Bryan moved up on the bed until his face was on the same level as Ginas. Their heads were more than a foot but less than two feet away from each other. While they were talking Gina was stroking Bryans head, maybe six times. Bryan just kept silent as he did not know what to do. On the other hand, Gina was smiling at him. He then smacked her on the lips. She kissed him back and they started kissing each other. Gina inquired if he had had sex before and he replied, yes, although it was not true because he was afraid that Gina might laugh at him if he told the truth that he has no experience in lovemaking. Bryan shot back a similar question to her and she answered that she has not had sex yet and is still a virgin as she wanted to preserve her virginity for her future husband. At this point they again kissed each other. Then, Gina asked if Bryan had a condom and the latter said, none. She remarked that she was worried about AIDS and he told her that he is not afflicted with the disease. Thereupon, Gina said that if they are to do it, he should not tell it to anyone to which he commented that he is not the kiss-and-tell type. She then undressed and he did the same. They

went back to bed and resumed kissing each other. Gina went on top of Bryan and then she slid down and kissed the area around his organ and later did a fellatio on him. After he had climaxed, Gina moved up and wanted to kiss him but he did not react. She then asked him to enter her and he replied, yes, and touched her breasts. However, he was turned off when, upon feeling her genitals, his hand was smeared with transparent liquid with something like brown or dark brown or red substance in it which smelled awful. He concluded that it was menstrual fluid because earlier when they were playing cards something fell from Ginas jogging pants which he picked up. When he handed it to her, she commented that it was tampon used for menstruation. He told her that he could not do the act anymore to which she replied, never mind. They then put back their clothes on. Bryan went to the comfort room where he washed his smeared hand. When he came out, he saw Gina lying in bed with her eyes closed. He switched off the lights and laid beside her but he could not sleep. He later on got up and went down to see if Giovan and Rizal had already arrived. However, the security guard told him that the two had not yet gone back. He returned to their room and, again, lay down beside Gina. This time he fell asleep. The sun was already somewhat up. He went to the porch to see if their car was already there and he saw it there. He went down to the car and found both Giovan and Rizal sleeping inside the car; Rizal on the drivers seat with Giovan beside him. xliv[4] Giovan claimed that he and Rizal bought food for Gina at the Kowloon Restaurant. When Giovan returned to the room, however, he found Bryan and Gina sleeping. So he just ate the food that they bought. He slept in the car with Rizal until Bryan woke them up. Bryan related to Giovan what had transpired between him and Gina. Giovan teased Bryan that he might get AIDS. Giovan told Bryan that he would like to go home to his wife. Bryan ordered breakfast, then the he and Giovan went upstairs to their room. Gina was still there. They asked her if she would like some breakfast, but she said no. Bryan and Giovan then got their things and went downstairs. Bryan finished his breakfast. Bryan told Giovan that they should wait for the girls to wake up before leaving Baguio. They went first to the driving range at Camp John Hay, but it was full, so they just went back to the hotel. It was 8:00 in the morning. Bryan wrote his phone number on a piece of paper to give to the girls, since he had promised to show them around Manila. They went upstairs to the girls room and found Gina there. Both girls were still sleeping. Bryan roused Gina and asked her if it was alright for them to leave. Gina said, Yes. Before leaving, Brian left the paper with his phone number. Gina testified that she passed out after doing oral sex on Bryan. She woke up at 3:00 in the afternoon feeling groggy and confused. She was shocked to realize what time it was, since she normally sleeps only seven and a half to eight hours a day. She also felt tired. She could not remember how she was able to get back to their room. She also felt that her hair, pillow and underwear, which was on the floor, were wet. She remembered that check-out time at the hotel was at 12:00 noon. She opened her purse to get money to pay for the room, but found that her US$290.00, P2,000.00, 300 yuan and US$200.00 travellers check were all missing. Only her US $100.00 travellers check was left. She tried to wake Helen up but the latter only rolled over.

She got up and went out of the room, but she had difficulty balancing herself. She walked to the boys room but found that the door was already open and the beddings had been changed. She ran downstairs and met Hilda, a hotel desk girl, who asked her if she was alright. Gina cried and told her that she had been robbed. Hilda said she will call the police. Gina returned to their room to wake up Helen but the latter still did not wake up. After sometime, Gina again went downstairs and was introduced to five or six members of the Criminal Investigation Service (CIS). She told them that she was robbed and sexually molested and narrated to them what had happened. Two CIS agents drove Gina to look for the house of Bryans uncle but Gina could not find it. The hotel owner, Mrs. Delos Santos, asked two hotel guests, Mariano Robles, Jr. and Rizza Lao, for assistance in helping Gina. Together, they went upstairs and found Helen still asleep. She was wearing black tights and a green sweatsuit. A bra lay on the table. Mrs. Delos Santos tried to wake her up. It took a while before Helen opened her eyes and gazed around her. Mrs. Delos Santos introduced Mariano and Rizza. Helen said nothing. Rizza propped her up with a pillow on her back. Helen appeared sleepy, helpless and unable to move. When Rizza asked her what happened, she just cried. They thought she was drunk but her breath did not smell of alcohol. Someone brought in a bowl of soup and Rizza let her sip from it a little at a time. Helen tried to eat it with a spoon but her hands trembled and she could not put the spoon properly into her mouth. It took her about 30 minutes to finish the soup. Mariano and Rizza decided to take Helen for a walk to let her blood circulate. Rizza helped her into her sandals and pulled her to the side of the bed. Helen tried to stand up but she fell back. Mariano held her on both arms and pulled her up. He stood on Helens right side, held her right arm with his right hand and placed his left arm around her waist. Rizza held Helens left arm. Mariano and Rizza tried to move forward but Helen could not take a single step. Mariano dragged her forward and she made shaky steps. On the stairway, Mariano had to remind Helen that they were going downstairs. He guided her every step until they reached the hotel lobby. From the hotel, they walked around Burnham Park for about fifty (50) minutes to an hour. Everytime they came upon a stairway, Mariano had to instruct Helen how to go down step by step. Whenever Helen got tired, they sat on a bench. They did this four (4) or five (5) times. Mariano had to support Helens back every time they sat down on the park benches to prevent her from falling over. When they returned to the hotel, they saw Gina. Mariano and Rizza invited the two girls to have dinner with them. Gina declined. They took Helen to the Barrio Fiesta Restaurant along Session Road. Again, they had to assist Helen in getting out of Marianos car. At the restaurant, Helen hardly ate. On the witness stand, Helen recounted that at that time she felt as if the effects of anesthesia was wearing out. She was disoriented and groggy. She was dizzy and did not feel like waking up. She had difficulty focusing on a single object. The act of walking was itself an ordeal.

The following morning, Helen still felt groggy and had difficulty concentrating and walking. She and Gina decided to go to Baguio General Hospital for a urinalysis and pelvic examination. Dr. Mildred Torres, who conducted the tests, made the following findings: Perineal Exam.: Positive erythema at the lateral aspect of vaginal wall. No lacerations; no bleeding noted. Internal Exam.: Nulliparous introitus. Vagina admits two fingers with difficulty. Uterus: small. Adnexae: negative. Bleeding: negative. Discharge: minimal; whitish. Specimen taken for sperm analysis and gram straining. Urinalysis and pregnancy test requested. Result: Pregnancy Test: Negative. Urinalysis: Epithelial cells: occasional. Amorphous Urates: moderate. Pus cells: 0-3. RBC:0-2 Gram Stain: Smear shows gram (-) reds. Pus cells: Epithelial cells: many. Smear Identification: Negative for sperm cell. Dr. Torres also found erythema on both the lateral aspects of the inner part of the labia minora which could have been caused by infection, scratching or insertion of any foreign object into the introitus. Ruling out infection due to the absence of purulent or yellowish discharge, she supposed that it could have been caused by scratching or coitus. On cross-examination, she opined that it could also have been caused by the use of tampon during menstruation. She concluded that no force could have been applied on Ginas hymen as it did not have any laceration or bleeding. Gina likewise underwent urinalysis and her urine sample yielded negative of sperm cell. She did not, however, undergo drug testing as there were no facilities for such anywhere in Baguio City. The prosecution presented Dr. Francisco Hernandez, a neuro-surgeon, as expert witness to corroborate Ginas testimony that she was drugged. Dr. Hernandez testified that in the practice of his profession, he uses sedative-hypnotic drugs belonging to the benzodiazepine family of drugs. According to him, he uses these drugs as tools, such that whenever he sees a patient, he can form an opinion on whether he or she has been drugged.

Based on the set of facts provided by the private prosecutor, the entries in Ginas journal and the transcript of stenographic notes taken during the preliminary examination conducted by the trial court in the afternoon of January 26 and 27, 1994, Dr. Hernandez opined that Gina and Helen were drugged, possibly with lorazepam or ativan, which is a benzodiazepine. The defense presented two expert witnesses to counter Dr. Hernandezs opinion. Dr. Rey San Pedro, a psychiatrist, opined that Gina and Helen could not have been drugged because they have not been medically examined for the presence of drugs in their system. Neither were the cups used by Gina and Helen examined if they were indeed laced with drugs. Instead, the condition described by the girls based on the documents given by the defense could have been caused by the alcoholic drinks. He added, though, that while Ginas behavior as described in her journal might have been caused by ativan, he did not have any basis to conclude the same in much the same way that he concluded that said behavior was caused by alcohol. He conceded that if ativan were to be taken with alcohol, there would be a potentiating effect, meaning, that because of the alcohol, the effect of the ativan would last longer or there would be sedation. The second expert witness, Dr. Pedro Solis, testified that a person who imbibes alcohol goes through three stages, namely: (a) stage of excitement; (b) stage of intoxication or the proprioception stage; and (c) stage of being dead drunk or the toxic stage. On the basis of the statement of facts and documents provided him by the defense, Gina was only at the first stage, the stage of excitement due to her alcohol intake for the following reasons: she had the power to coordinate when she caught the room key thrown to her by Helen with one hand; she could properly walk; and she could properly reason out when she decided to do oral sex on Bryan in order to avoid sexual intercourse. Dr. Solis explained that the rather long sleep experienced by Gina and Helen was due to fatigue brought about by their activities the previous day, their alcohol intake, their youth and the cool ambience of Baguio City. He said it could not be definitely concluded that the girls were drugged because no drug test was conducted. He added that mere observance of the clinical symptoms can not be a basis for concluding that they were drugged. He conceded, though, that ativan and some other benzodiazepines are relatively new drugs and, as yet, he has had no experience observing its effects except from what he has read. Like Dr. San Pedro, he stated that if alcohol is ingested with any of the psychotropic drugs like ativan, a potentiating effect would be produced in the sense that the pharmacologic effect of the drug is increased. The trial court gave credence to the version of the prosecution. On March 16, 1994, it rendered a decision the dispositive portion of which is as follows: WHEREFORE, the Court hereby finds and declares both the accused BRYAN FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA guilty beyond reasonable doubt of the crimes of rape and acts of lasciviousness as charged and (a) In Crim. Case No. 12600-R, for rape, DY is sentenced, after appreciating in his favor the privileged mitigating circumstance of minority and the generic mitigating circumstance of voluntary surrender, to suffer an indeterminate penalty of EIGHT (8) YEARS of prision mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal, as

maximum; while BERNARDINO is sentenced, likewise after appreciating in his favor the mitigating circumstance of voluntary surrender, to suffer an indeterminate penalty of TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as minimum, to TWENTY (20) YEARS and ONE (1) DAY of reclusion perpetua, as maximum. Both accused are ordered to pay the offended party GINA MARIE MOBLEY in the amounts of: P50,000.00 for her being raped, P12,195.00 (the equivalent of US$450.00 dollars at the exchange rate of P27.10 to US$1.00) as actual damages, and P500,000.00 as moral damages, plus costs. (b) In Crim. Case No. 12601-R, for acts of lasciviousness, DY is sentenced, after applying in his favor the same mitigating circumstances mentioned above, to suffer a straight penalty of TWO (2) MONTHS of arresto mayor; and BERNARDINO is sentenced, likewise after applying to him the same mitigating circumstance stated above, to suffer an indeterminate penalty of TWO (2) MONTHS OF arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum. Both accused shall also indemnify, jointly and severally, the offended party, GINA MARIE MOBLEY, in the amount of P100,000.00 for and as moral damages, plus costs. Both accused shall furthermore pay, jointly and severally, the offended party attorneys fees in the amount of P100,000.00 in the two cases. The accused BERNARDINO shall be credited with his preventive imprisonment under the terms and conditions prescribed in Article 29 in relation to Article 70 of the Revised Penal Code, as amended. SO ORDERED.xlv[5] Accused-appellants filed separate appeals. Accused-appellant Bryan Dy assigned the following errors: A. Errors of Law

I. THE DECISION RENDERED BY THE TRIAL COURT SHOULD BE REVERSED AND SET ASIDE ON THE GROUND THAT NO VALID ARRAIGNMENT TOOK PLACE DURING THE TRIAL BELOW. II. EVEN ASSUMING THAT THE PROCEEDINGS BELOW WERE VALIDLY CONDUCTED, THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF RAPE AND OF ACTS OF LASCIVIOUSNESS BECAUSE: a. THE CHARGE OF ACTS OF LASCIVIOUSNESS SHOULD HAVE BEEN DEEMED INCLUDED IN THE CHARGE OF RAPE. b. THE LOWER COURT ERRED IN USING THE TESTIMONY OF DR. PEDRO SOLIS, THE EXPERT WITNESS FOR THE DEFENSE, GIVEN BY HIM MORE THAN TWENTY YEARS AGO IN THE CASE OF PEOPLE V. CESAR GUY, 12

C.A. REP. 2nd 258, TO DISCREDIT THE TESTIMONY GIVEN BY HIM DURING THE TRIAL BELOW. B. Errors of Fact III. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF RAPE BECAUSE: a. THERE WAS IN FACT NO CARNAL KNOWLEDGE;

b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS; c. THERE WAS NO FORCE OR INTIMIDATION.

IV. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF ACTS OF LASCIVIOUSNESS BECAUSE: a. THERE WAS NO ACT OF LEWDNESS COMMITTED;

b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS; and c. THERE WAS NO FORCE OR INTIMIDATION.

V. THE TRIAL COURT ERRED IN NOT FINDING THAT THE SUBSEQUENT ACTS OF APPELLANT ARE NOT CONSISTENT WITH THE ACTS OF A PERSON WHO HAD JUST COMMITTED AN OFFENSE. VI. THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE COMPLAINANTS SUBSEQUENT ACTS AND STATEMENTS MADE AS PART OF THE RES GESTAE SHOW THAT SHE HAD NOT BEEN MOLESTED. VII. THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE COMPLAINANTS CREDIBILITY HAS BEEN IMPEACHED. VIII. THE TRIAL COURT ERRED IN NOT FINDING THAT THE CREDIBILITY OF THE OTHER PROSECUTION WITNESSES HAS BEEN IMPEACHED.xlvi[6] Accused-appellant Giovan Bernardino, on the other hand, assigns the following errors: I. THE TRIAL COURT FAILED TO ACCORD THE CONSTITUTIONAL RIGHTS OF THE ACCUSED TO DUE PROCESS OF LAW THUS DEPRIVING THEM OF A FAIR TRIAL.

II. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-CONSPIRATOR IN THE CRIME OF RAPE BECAUSE THERE WAS NO CARNAL KNOWLEDGE BETWEEN BRYAN DY AND PRIVATE COMPLAINANT. III. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-CONSPIRATOR IN THE CRIME OF RAPE BECAUSE NEITHER FORCE NOR INTIMIDATION WAS EMPLOYED NOR WAS THE PRIVATE COMPLAINANT DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS. IV. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-CONSPIRATOR IN THE CRIME OF RAPE BECAUSE BRYAN DY LACKED THE REQUISITE DOLO OR CRIMINAL INTENT TO COMMIT THE SAID INTENTIONAL FELONY. V. THE TRIAL COURT ERRED IN CONCLUDING THAT GIOVAN BERNARDINO WAS A CO-CONSPIRATOR IN THE CRIME OF RAPE BY REASON OF CONSPIRACY OR THAT HE PARTICIPATED IN ANY WAY IN THE ALLEGED CRIME. VI. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY OF THE CRIME OF ACTS OF LASCIVIOUSNESS BEYOND REASONABLE DOUBT. VII. THE TRIAL COURT ERRED IN DECLARING THAT THE CRIME ALLEGEDLY COMMITTED WAS QUALIFIED RAPE, AND IN FAILING TO CREDIT ACCUSEDAPPELLANT GIOVAN BERNARDINO WITH THE MITIGATING CIRCUMSTANCE OF MINORITY. VIII. THE TRIAL COURT ERRED IN ORDERING BOTH ACCUSED-APPELLANTS IN CRIMINAL CASE No. 12600-R TO PAY THE PRIVATE COMPLAINANT FIFTY THOUSAND PESOS FOR THE ALLEGED RAPE, ACTUAL AND MORAL DAMAGES PLUS COSTS; AND IN CRIMINAL CASE No. 12601 TO MORAL DAMAGES PLUS COSTS.xlvii[7] The defense contends that there was no valid arraignment since they were not furnished a copy of the complaint or information. Moreover, the complaint or information was not read in a dialect or language known to them. While they waived their right to enter a plea, they claim that they never waived their right to be informed of the nature and cause of the accusation against them. Concededly, the right to be informed of the nature and cause of the accusation may not be waived. Indeed, the defense may waive their right to enter a plea and let the court enter a plea of not guilty in their behalf. However, it becomes altogether a different matter if the accused themselves refuse to be informed of the nature and cause of the accusation against them. The defense can not hold hostage the court by their refusal to the reading of the complaint or information.

The reason proffered by accused-appellants for their refusal to be arraigned, i.e., that to do so would supposedly constitute a waiver of their right to appeal the resolutions of the prosecutor to the Secretary of Justice,xlviii[8] appears to be specious. Evidently, accused-appellants only wanted the trial court to suspend the arraignment to enable them to exhaust their remedy of appeal to the Secretary of Justice. However, accused-appellants had no valid ground to move that their arraignment be held in abeyance, considering that at that time they had not filed a petition for review of the prosecutors resolution before the Department of Justice. In Solar Team Entertainment, Inc. v. How, xlix[9] this Court has held that: Procedurally speaking, after the filing of an information, the court is in complete control of the case and any disposition therein is subject to its sound discretion. The decision to suspend arraignment to await the resolution of an appeal with the Secretary of Justice is an exercise of such discretion. xxx xxx xxx

It bears stressing that the court is however, not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case. As the Solicitor General correctly observed, thus: x x x [A]ssuming, arguendo, that appellants were not validly arraigned, such defect, if any, was waived when appellants, without objection, proceeded to trial as if they have been duly arraigned (22 C.J.S. 626). Any irregularity in an arraignment, such as failure to deliver a copy of the indictment, or to read the same to accused, or delivering the same to the attorney of the accused, instead of to the accused himself, is waived by failure to object thereto in the trial court (Ibid., p. 628). xxx xxx xxx

It is also important to stress that to nullify the proceedings had before the court a quo would set a dangerous precedent. For, all that an accused would do is to refuse to be arraigned and then proceed to trial, and if found guilty would just invoke the absence of arraignment to set aside the proceedings had in the trial court. Such practice would run counter to the purpose and spirit of our rules of procedure which is: to help achieve an orderly and speedy disposition of cases.l[10] Nonetheless, accused-appellants were substantially informed of the nature and cause of the accusation against them when their counsel received a copy of the Prosecutors resolution maintaining the charge for rape and acts of lasciviousness.li[11] The failure to read the complaint or information in a language or dialect known to them was essentially a procedural infirmity that was eventually non-prejudicial to accused-appellants. Not only did they receive a copy of the information, they likewise participated in the trial, cross-examined the complainant and her witnesses and presented their own witnesses to debunk and deny the charges against them. The

conduct of the defense, particularly their participation in the trial, clearly indicates that they were fully aware of the nature and cause of the accusations against them. Interestingly, after the arraignment, the defense never brought up the supposed invalidity or defect thereof. Rather, accused-appellants and their counsel vigorously and fully participated in the trial of the case. Accused-appellants are clearly estopped to question the alleged invalidity of or infirmity in their arraignment. By actively participating in the trial of the case, they have effectively waived whatever procedural error there was in their arraignment. In short, whatever was the defect in their arraignment was substantially cured by their own omission and subsequent actions. Accused-appellants next submit that the crime of acts of lasciviousness should have been absorbed by the crime of rape. The Office of the Solicitor General disagreed arguing, thus: While it may be true that in certain cases, the crime of acts of lasciviousness may be considered absorbed by the crime of rape, in the instant case, it cannot be so because the two crimes were committed by two different persons acting in conspiracy. Such being the case, there is no occasion for the application of the procedural rule that one crime whose elements are identical with another crime is absorbed by the more serious crime. There being conspiracy, what is applicable is the rule that the crime committed by one conspirator is added to the crime committed by his co-conspirator and vice-versa. This is so because in conspiracy, the act of one is considered as the act of the other co-conspirator. In the case under consideration, while appellant Bernardino has committed the crime of acts of lasciviousness, his co-conspirator appellant Bryan Dy, committed the crime of rape. They are, therefore, liable for both offenses in view of the presence of conspiracy. Appellants, in insisting that the crime of acts of lasciviousness should have been absorbed by the crime of rape, misappreciated the application of Section 5, Rule 120 (when an offense includes or is included in another) of the Rules on Criminal Procedure and the principle of conspiracy.lii[12] The position of the Solicitor General is well-taken. As will be shown hereunder, both accusedappellants acted in conspiracy, especially in their act of offering the girls alcoholic drinks at the Songs Jazz Bar and in administering drugs in their cola drinks. Under the principle of conspiracy, the act of one is the act of all. Consequently, Bryan should also be held criminally liable for the acts of lasciviousness committed by Giovan on Gina, made possible by his convenient absence in the room. Corollarily, Giovan should be held equally guilty for the rape committed by Bryan. Accused-appellants dispute the factual findings of rape made by the trial court, arguing that: (1) that there was no carnal knowledge; (2) complainant was not deprived of reason or otherwise unconscious; and (3) there was no force or intimidation.

In rape cases, courts are guided by the following principles: (1) to accuse a man of rape is easy, but to disprove it is difficult though the accused may be innocent; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merit and not be allowed to draw strength from the weakness of the evidence for the defense.liii[13] Accused-appellant Dy insists there was no carnal knowledge between him and complainant. He avers that the only intimate contact between them consisted merely of Mobleys kissing him, holding his penis and eventually sucking it, and of him in turn kissing her and placing his fingers in her vagina.liv[14] He claims that Dr. Torres and Dr. Solis findings as well as complainants journal confirmed his testimony. Dr. Torres, in particular, testified that complainants cervix merely showed reddening and irritation indicating positive erythema at the lateral aspect of the vaginal wall. Said erythema could have been caused by coitus, infection, scratching, or the use of a tampon. She added that erythema could not be caused solely by sex. The presence of erythema, however, cannot give a definitive conclusion as to its cause. She also found complainants hymen to be intact and that there was no laceration, bleeding or spermatozoa. Dr. Solis, on the other hand, submits that erythema or reddening could not have been caused by intercourse as said act would have produced not only irritation on the vaginal wall but also irritation, swelling and reddening of complainants outer genital area. He added that coitus is a blind act and would have caused irritation to the labia majora, labia minora and hymen in addition to the vaginal wall, suggesting that erythema on the vaginal wall was more consistent with scratching or the insertion of a foreign object such as a tampon. Accused-appellant Dys contention fails to persuade. The medical opinions he cites do not totally rule out penetration or contact of penis with the vagina. In fact, Dr. Torres could not give a definitive conclusion that the reddening of the vaginal walls was not caused by sexual intercourse. Even if we were to follow Dr. Solis line of reasoning, he was not likewise categorical in stating that the reddening of the vaginal walls was not caused by penetration by a penis. Rather, he stated that such reddening was more consistent with scratching or the use of a tampon.lv[15] Further, lack of lacerated wounds does not negate sexual intercourse. A freshly broken hymen is not an essential element of rape. Even the fact that the hymen of the victim was still intact does not negate rape. As explained by Dr. Maximo Reyes, medico-legal officer of the NBI, there are hymens that may admit without necessarily producing laceration and there are hymens that may admit injuries that will produce such laceration.lvi[16] Even the presence or absence of spermatozoa is immaterial in the prosecution of a rape case. It is well settled that penetration of the womans vagina, however slight, and not ejaculation, constitutes rape. The Court rejects the argument that the absence of sperm in the vaginal area is a good defense in a rape case.lvii[17] For rape to be consummated, full penetration is not necessary. Penile invasion necessarily entails contact with the labia. It suffices that there is proof of the entrance of the male organ with

the labia of the pudendum of the female organ. Penetration of the penis by entry into the lips of the vagina, even without rupture or laceration of the hymen, is enough to justify a conviction for rape. To repeat, the rupture of the hymen or laceration of any part of the womans genitalia is not indispensable to a conviction for rape.lviii[18] Accused-appellant Dy also insists that complainant could not have been drugged, relying on the opinion of his expert witnesses, namely, Dr. San Pedro and Dr. Solis. The reasoning that complainant could not have been drugged as there was no drug test taken is at least speculative and at most non sequitur. The trial court found that: The proven reaction of Gina and Helen to the cola drinks given them by the accused unmistakably indicates that they were indeed drugged. Dr. Francisco Hernandez, the prosecution expert witness, opined that the sedative-hypnotic drug known as ativan or lorazepam could probably be the one used. As explained by him, ativan is a dose-related drug. A dosage of from 0.5 milligram to 4 milligrams could produce in a person of average built or with a weight of 130 pounds anxiolytic effect, visual hallucination, amnesia, confusion, disorientation, gait unsteadiness and sedation. At a 4-milligram dosage, the imbiber would experience sedation and excessive sleepiness (See Exhibit G). The onset of the action of the drug is within 15 to 45 minutes from the time it is ingested; it peaks after 2 hours; and the action will last for 6 to 8 hours. The effects of ativan manifested themselves in Gina and Helen but they were more profound in Helen because she drank all the cola drink spiked with drug and she is slimmer than the 165pound Gina who did not finish her cola drink because when she felt something gritty that stuck into her teeth, she spat back into her cup the cola in her mouth and dumped out the rest of her drink. Accused-appellant Dy can not take comfort in the fact that Gina failed to undergo a drug test. In People v. Villanos,lix[19] the issue of whether the laced softdrink should have been presented in evidence to prove that complainant felt dizzy and unconscious after drinking the same was resolved thus: True, there was no test conducted to determine the presence of any sedative or drug in the drinks given to the victims which caused them to lose momentary control of their faculties. But this is of little consequence as the same is not an indispensable element in a prosecution for rape. Under the circumstances, it suffices that the victim was found to have been unconscious at the time the offender had carnal knowledge of her. Accused-appellant Dys submission that the ativan is an anxiety-reducing drug and not a sedative which would not normally produce sleep unless taken in massive quantities is belied by the undisputed fact that Gina slept for approximately thirteen hours while Helen slept for almost eighteen hours. Gina testified that she normally sleeps from seven and a half hours to eight hours. The trial court correctly appreciated the clinical and academic assessment of the potency and effect of ativan which, according to Dr. Hernandez, is a benzodiazepine or a sedativehypnotic drug. More specifically, the trial court found that:

Gina experienced patchy amnesia, i.e., she could remember some of the events happening to her and in front of her but forget the others, like her inability to recall that she went back to their room and even bathed. She also had disorientation and confusion because she did not know why she went to the boys room and why she was naked. Disorientation and confusion, in turn, produce hypnotic effect, making the one drugged easily suggestible, easily manipulated and easily taken advantaged of. Gina likewise had visual hallucination since she had the sensation that it was as if her head was detached from her body. She could resist but she had no means of resisting because ativan is a muscle relaxant and all her muscles were flaccid or lax. Quite significantly, Dr. San Pedro, one of the defense expert witnesses, stated that ativan could also cause Ginas feeling that she was falling in and out of consciousness during the incident in question. Significantly, too, Dr. San Pedro further testified that Ginas behavior could be consistent with her taking alcoholic drinks and ativan on the same occasion. Dr. Solis, the other defense expert witness, also gave the view that imbibing alcohol together with ativan would produce potentiation or increase the pharmacologic effect of the drug.lx[20] Accused-appellant Dy asserts that: (a) the combination of drugs and alcohol normally produces a potentiating effect in that the subject can either fall into a coma or do the opposite which is to act aggressively and with extreme hostility, and (b) the effects described by complainant and Helen Tennican are more consistent with alcohol use rather than the effect of drugs. These assertions are not in accord with the trial courts findings of fact, and when combined with the adverbs normally and more consistent, are not definitive. Even so, the trial court did not err in its assessment of the credibility of Dr. Hernandezs testimony. The fact that Dr. Hernandez has not been accredited as an expert by the Dangerous Drugs Board does not necessarily mean that he is not an expert on the effects of drugs, as accused-appellant Dy would like this Court to believe. Accreditation by the Board is not an essential element of expertise. More properly, expertise pertains to knowledge and experience as well as relevant exposure to a particular field of discipline. It appears that Dr. Hernandez has met these latter requisites. Since complainant was drugged, she was effectively deprived of reason if not effectively rendered unconscious. Under Article 335 of the Revised Penal Code, as amended by RA No. 7659, rape is committed by having carnal knowledge of a woman who is unconscious. In such a case, the fact of sexual assault and the identity of the assailant can be established from the events preceding or following the victims loss of consciousness.lxi[21] Here, complainant was not totally unconscious but was physically helpless to resist or effectively communicate her refusal to the lewd desires of accused-appellants. She was aware of the fact of sexual assault and the identity of her assailants despite her patchy amnesia, disorientation and confusion. In People v. Lintag,lxii[22] this Court held that: [I]f the ability to resist is taken away by administering drugs, even though the woman may be conscious, sexual intercourse with her is rape. (Citation omitted) If the womans will is affected

by the anesthetic so that the connection is had without her consent, though she may be more or less conscious, the act will be rape. (Citation omitted) In this regard, the trial court observed: Gina has positively and steadfastly and unrelentingly claimed that after the effects of the drug had taken on her and she lay down on the beds put together in the boys room, Giovan lay alongside her and forcibly kissed her with his tongue inside her mouth, kissed her breasts and inserted his index and middle fingers into her vagina followed by Bryan having sexual intercourse with her and just to prevent Bryan from penetrating her further, she did oral sex on him.lxiii[23] Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The agreement may be deduced from the manner in which the offense was committed. It must be shown that all participants performed specific acts with such closeness and coordination as to indicate a common purpose or design to commit the felony.lxiv[24] Accused-appellants joint participation in the crime of rape is clear from the trial courts findings as follows: (a) Bryan and Giovan were both at the Angeles Flying Club when Bryan spotted Gina and Helen; (b) The two boys and their driver sat at a table next to the girls and immediately Bryan and later on Giovan struck up a conversation with the girls, initially with Helen whom they invited to their table which she declined, and then with Gina after the latter came out of the washroom who accepted the boys invitation to their table and Helen then followed suit; (c) Upon learning that the girls were coming up to Baguio City, the boys intimated that they, too, were coming up as they had planned two weeks earlier and offered the girls a ride with them. The boys pretension could not be true otherwise Bryan, who came from Manila, would have prepared at least a jacket and some clothes for their well-planned Baguio trip; instead, they had to go first to a residential area in Angeles City where Bryan borrowed a jacket (two according to Helen) before driving to Baguio City; xxx xxx xxx

(e) At the Songs Jazz Bar, Bryan and Giovan kept on offering and giving Gina and Helen alcoholic drinks; (f) As they left, Giovan suggested that he was thirsty and wanted cola drink;

(g) Notably, Helen declined any further cola drink since she had already drunk enough water at the Songs;

(h) But Bryan and Giovan, who went to buy the drinks at Kowloon Restaurant, saw to it that the two plastic cups of Sprite carried by Bryan be given to Gina and Helen. They were the drugged cola drinks; (i) As heretofore stated, they detoured through Club John Hay to let Gina and Helen drink their drug-laced Sprite and have the drug take its initial effect; (j) When Giovan was satiating his lust on Gina, Bryan was not around to let Giovan freely do what he wanted. When Bryans turn came, Giovan also left. Accused-appellant Bernardinos contention that he could not have been a co-conspirator in the crime of rape because Bryan Dy lacked the requisite dolo or criminal intent to commit said intentional felony is unmeritorious. Complainant was found to have been drugged. The obvious implication of drugging complainant was to render her unconscious or at least unable to resist the malicious and sexual designs of accused-appellants on the former. By doing so, accusedappellants ensured that complainant would be in no position to resist or to effectively say no. The fact of drugging complainant betrays both accused-appellants intent to sexually assault complainant or engage in sexual intercourse with her. In addition, accused-appellant Dy submits that he would not have acted the way he did had he committed the crime of rape. His argument is non sequitur. While an accused-appellants postincident behavior is never proof of guilt, neither is it of innocence. By the same token, accused-appellant submits that complainants acts and statements, which are allegedly part of the res gestae, indicate that she had not been raped or molested. This contention is, likewise, unmeritorious. The behavior and reaction of every person cannot be predicted with accuracy. It is an accepted maxim that different people react differently to a given situation or type of situation and there is no standard form of behavioral response when one is confronted with a strange or startling experience. Not every rape victim can be expected to act conformably to the usual expectations of every one. Some may shout; some may faint; and some may be shocked into insensibility, while others may openly welcome the intrusion.lxv[25] Behavioral psychology teaches us that people react to similar situations dissimilarly. There is no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when placed under emotional stress are unpredictable. This Court indeed has not laid down any rule on how a rape victim should behave immediately after she has been abused. This experience is relative and may be dealt with in any way by the victim depending on the circumstances, but her credibility should not be tainted by any modicum of doubt.lxvi[26] Accused-appellant Dy also avers that the credibility of complainant and her other witnesses was impeached. In effect, accused-appellants question the trial courts assessment of complainants credibility. Credible witness and credible testimony are the two essential elements for the determination of the weight of a particular testimony. This principle could not ring any truer where the prosecution relies mainly on the testimony of the complainant, corroborated by the medico-legal findings of a physician. Be that as it may, the accused may be convicted on the basis of the lone,

uncorroborated testimony of the rape victim, provided that her testimony is clear, convincing and otherwise consistent with human nature.lxvii[27] Needless to say, this is a matter best assigned to the trial court which had the first-hand opportunity to hear the testimonies of the witnesses and observe their demeanor, conduct, and attitude during cross-examination. Such matters cannot be gathered from a mere reading of the transcripts of stenographic notes. Hence, the trial courts findings carry great weight and substance.lxviii[28] In any case, well-settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand while testifying, which opportunity is denied to the appellate courts. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath all of which are useful aids for an accurate determination of a witness honesty and sincerity. The trial courts findings are accorded finality, unless there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated and which, if properly considered, would alter the results of the case.lxix[29] Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they are lying.lxx[30] This Court does not agree that the trial court overlooked or misappreciated any fact of substance or value. In assessing the credibility of complainant, the trial court commented thus: The Court had observed her demeanor when she was testifying and she was direct, spontaneous and straightforward, even crying in narrating the sensitive details of her horrible experience; she had also demonstrated much care and concern about her obligation to tell the truth and nothing but the truth under the oath which she had taken before sitting on the witness chair.lxxi[31] The victims act of crying during her testimony bolsters the credibility of the rape charge with the verity born out of human nature and experience.lxxii[32] Besides, no woman would concoct a story of defloration, allow examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek justice for the wrong done to her. It is settled jurisprudence that when a woman says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed.lxxiii[33] A woman would think twice before she concocts a story of rape unless she is motivated by a patent desire to seek justice for the wrong committed against her.lxxiv[34] No decent woman in her right mind would tell a tale that could sully her reputation and bring undue embarrassment and shame to herself and expose her family to all sorts of public aspersions if it is not the truth.lxxv[35] If her story had only been contrived, she would not have been so composed and consistent throughout her entire testimony in the face of intense and lengthy interrogation.lxxvi[36] Indeed, if an accused had really nothing to do with the crime, it is

against the natural order of events and human nature and against the presumption of good faith that the prosecution witness would falsely testify against the former.lxxvii[37] In this case, accused-appellants could not even come up with a credible motive for complainant to charge them with rape. At any rate, ill motive is never an essential element of a crime. It becomes inconsequential in a case where there are affirmative, nay, categorical declarations towards the accused-appellants accountability for the felony.lxxviii[38] It is doctrinally settled that the lone testimony of a rape victim, by itself, is sufficient to convict if credible. Equally settled is the principle that when a woman declares that she has been raped, she says in effect all that is necessary to mean that she has been raped, and where her testimony passes the test of credibility, the accused can be convicted on the basis thereof. This is because from the nature of the crime, the only evidence that can be offered to establish the guilt of the accused is the complainants testimony.lxxix[39] Accused-appellant Bernardino assails the trial courts failure to credit him with the mitigating circumstance of minority. There is no merit to this contention. Accused-appellant Bernardino was already nineteen when the crime was committed. Moreover, in the case of People v. Abad,lxxx[40] which accused-appellant Bernardino cites, the circumstances and immaturity of accused in said case did not allow him the freedom of initiative and action which should be expected of a person who is aware of the full consequences and responsibility for his acts. Accused-appellant Bernardino was not under similar circumstances and neither was there any clinical basis to show he was immature. Under the second paragraph of Article 335 of the Revised Penal Code, rape is punished by reclusion perpetua. Although Section 17 of R.A. No. 7659 fixed the duration of reclusion perpetua from 20 years and 1 day to 40 years, the penalty has remained indivisible. At the time of the commission of the crime, accused-appellant Dy was 17 years old, hence a minor. Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower to that prescribed by law shall be imposed, but always in the proper period. Minority being a privileged mitigating circumstance, the proper imposable penalty in this case for accused-appellant Dy is reclusion temporal, which ranges from 12 years and 1 day to 20 years. Appreciating the ordinary generic mitigating circumstance of voluntary surrender in favor of Dy, the imposable penalty should be within minimum period of reclusion temporal, i.e., 12 years and 1 day to 14 years and 8 months. Applying the Indeterminate Sentence Law, the minimum term of the penalty should be within the range of prision mayor in any of its periods, i.e., from 6 years and 1 day to 12 years. Considering the foregoing, accused-appellant Dy is hereby sentenced to suffer the penalty of 8 years of prision mayor, as minimum up to 14 years and 8 months of reclusion temporal, as maximum.

As regards accused-appellant Bernardino, he is not entitled to the privileged mitigating circumstance of minority considering that at the time of the commission of the crime, he was already nineteen years old.lxxxi[41] Hence, as to him, the proper imposable penalty is reclusion perpetua, an indivisible penalty. Under Article 63, first paragraph, of the Revised Penal Code, this penalty shall be imposed regardless of the attendance of the mitigating circumstance of voluntary surrender. The trial court erred in sentencing accused-appellant Bernardino to an indeterminate penalty. Since the penalty of reclusion perpetua is imposed on him, accused-appellant Bernardino can not enjoy the benefit of the Indeterminate Sentence Law.lxxxii[42] Accused-appellant Bernardinos act of kissing Ginas breasts and inserting his finger into her vagina constituted acts of lasciviousness.lxxxiii[43] The penalty for this felony, under Article 336 of the Revised Penal Code, is prision correccional. The penalty to be imposed on accusedappellant Dy, after appreciating the privileged mitigating circumstance of minority and the generic mitigating circumstance of voluntary surrender, is arresto mayor in its minimum period. Inasmuch as the Indeterminate Sentence Law is not applicable,lxxxiv[44] the trial court correctly imposed on him the straight penalty of two months of arresto mayor. On the other hand, the penalty to be imposed on accused-appellant Bernardino, considering the generic mitigating circumstance of voluntary surrender, is prision correccional in its minimum period. The trial court, therefore, correctly imposed on him the indeterminate penalty of two months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. Finally, in the matter of the damages awarded by the trial court, this Court reduces the award of moral damages from P500,000.00 to P50,000.00 in line with prevailing jurisprudence. Moral damages are not awarded to punish the accused but to compensate for the mental anguish, serious anxiety, and moral shock suffered by the victim or his family as the proximate result of the wrongful act. The award is not meant to enrich the victim at the expense of the accused.lxxxv[45] Likewise, the award of P12,195.00 or the equivalent of US$450.00 as actual damages is deleted for lack of factual basis. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party.lxxxvi[46] WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Baguio City, Branch 5, in Criminal Case No. 12600-R, finding accused-appellant BRYAN FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA guilty of Rape, and sentencing accused-appellant Bryan Dy to suffer an indeterminate penalty of eight years of prision mayor, as minimum, up to fourteen years and eight months of reclusion temporal, as maximum, is AFFIRMED. The said decision, insofar as accused-appellant Giovan Bernardinos penalty is concerned, is MODIFIED in that he is sentenced to suffer the penalty of reclusion perpetua.

The decision of the trial court in Criminal Case No. 12601-R, finding accused-appellants guilty of Acts of Lasciviousness and sentencing accused-appellant Dy to suffer the straight penalty of two months of arresto mayor, and accused-appellant Bernardino to suffer the indeterminate penalty of two months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, is AFFIRMED. Accused-appellants Dy and Bernardino are further ORDERED, jointly and severally, to pay complainant, Gina Marie Mobley, the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P100,000.00 as attorneys fees, and to pay the costs of the suit. The award of P12,195.00 or US$450.00 as actual damages is DELETED. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan and Pardo, JJ., concur.

i[1] Pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. No. 7659, entitled An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and for Other Purposes, which took effect on 31 December 1993 (People v. Simon, 234 SCRA 555 [1994]). ii[2] Original Record (OR), Vol. 1, 140-153; Rollo, 69-82. Per Judge Fernando M. Paclibon, Jr. iii[3] OR, Vol. 1, 23. iv[4] TSN, 6 November 1997, 4-7. v[5] Exhibit I, OR, Vol. 1, 14; Exhibit L, OR, Vol. 4, 16. vi[6] Exhibit P, OR, Vol. 2, 11. vii[7] TSN, 4 December 1997, 5-9. viii[8] Exhibit Q, OR, Vol. 3, 12. ix[9] TSN, 4 December 1997, 9. x[10] TSN, 5 February 1998, 2-6. xi[11] Id., 7.

xii[12] Id., 9-10. xiii[13] OR, Vol. 1, 72. xiv[14] Id., 76-79. xv[15] OR, Vol. 1, 87. xvi[16] Id., 90. xvii[17] Id., 94-95. xviii[18] Id., 103-104. xix[19] Id., 133-136. xx[20] TSN, 23 September 1998, 3-5. xxi[21] Id., 13-23 xxii[22] OR, Vol. 1, 120. xxiii[23] Supra note 2. xxiv[24] Rollo, 87. xxv[25] Id., 83-84. xxvi[26] I Arturo M. Tolentino, Civil Code of the Philippines 29-30 (Third Edition, 1990). xxvii[27] Borja v. Mendoza, 77 SCRA 422, 428 [1977]. xxviii[28] U.S. v. Guendia, 37 Phil. Reports 337, 345 [1917]. xxix[29] OR, Vol. 1, 102, quoted earlier in this ponencia. xxx[30] Id., 33. xxxi[31] Supra note 14. xxxii[32] OR, Vol. 1, 120. xxxiii[33] Id.,

xli[1]

Decision, Records, p. 2918. Ibid., pp. 2919-2920. Ibid., pp. 2918-2919. Ibid., pp. 2920-2921. Penned by Judge Salvador J. Valdez, Jr. Rollo, pp. 142-143. Ibid., pp. 321-322. Records, pp. 1-16.

xlii[2]

xliii[3]

xliv[4]

xlv[5]

xlvi[6]

xlvii[7]

xlviii[8]

xlix[9]

338 SCRA 511 [2000].

l[10]

Appellees Brief, Rollo, pp. 511-522. TSN, February 14, 1994, pp. 9-10. Consolidated Rejoinder for Plaintiff-Appellee, Rollo, pp. 796-797. People v. Belga, G.R. No. 129769, January 19, 2001. Appellants Brief, Rollo, p. 181. Ibid., p. 182. People v. Balora, 332 SCRA 403 [2000]. Ibid.

li[11]

lii[12]

liii[13]

liv[14]

lv[15]

lvi[16]

lvii[17]

lviii[18]

People v. Manuel, 298 SCRA 184 [1998].

lix[19]

337 SCRA 78 [2000]. RTC Decision, p. 23. People v. Villanos, supra. 126 SCRA 511 [1983].

lx[20]

lxi[21]

lxii[22]

EN BANC

[G.R. No. 122764. September 24, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO PEREZ, accused-appellant. DECISION

REGALADO, J.: Before us for automatic review is the decisionlxxi[1] of the Regional Trial Court, Branch 32, Calbayog City, Samarlxxi[2] Criminal Case No. 1899 convicting accused-appellant Ernesto Perez, also known as Erning, of the felony of rape committed against his stepdaughter, sentencing him to the supreme penalty of death, and ordering him to pay his victim the amount of P50,000.00 as moral damages and the costs of the criminal action. On the basis of a complaintlxxi[3] subscribed by Maribel Perez, an information was filed in the court a quo against appellant for allegedly raping Maribel, his stepdaughter. The indictment alleges:

That on or about the 21st day of February, 1994, at about 9:00 o'clock in the evening, at Barangay Ilo, Municipality of Sta. Margarita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with (sic) MARIBEL PEREZ against her will; that in the commission of the said offense, the accused acted with grave abuse of confidence, he being the stepfather of the complainant, by enticing her to leave their house located at 159 J. Fegiras (sic) St., Sampaloc, Manila and was brought to Barangay Ilo, Sta. Margarita, Samar where the above-mentioned offense was committed.lxxi[4] On being duly arraigned, appellant pleaded not guilty to the accusation against him.lxxi[5] Thereafter, a full-blown trial was conducted in the court below, wherein the People and appellant were afforded full opportunity to establish their respective versions of the criminal charge. Under meticulous examination by the public prosecutor and appellant's counsel de oficio, complainant Maribel candidly and innocently related in open court the circumstances surrounding the rape, together with the unfortunate antecedents which culminated in its commission. According to Maribel,lxxi[6] appellant brought her to Samar from their residence in Sampaloc, Manila sometime in February 1994, supposedly to separate her from her siblings who were drug users or addicts. Maribel was only thirteen years old then. Appellant is her stepfather, he being the second husband of her mother, Anacleta de la Cruz. When they arrived in Samar, they stayed in the house of the spouses Raul and Nida Nieva at Barangay Ilo in the town of Sta. Margarita. While appellant and the Nievas were drinking in the kitchen on he night of February 21, 1994, complainant proceeded to the bedroom to sleep. The kitchen, wherein the Nievas would be spending the night was about one arm's length away from the bedroom. At around nine o'clock that evening, Maribel was awakened by the presence of someone pulling down her panties. Complainant soon realized that it was appellant who was removing her underwear. Appellant spread her legs, went on top of her and started thrusting his genital organ toward her private parts. Complainant cried in pain when appellant's penis penetrated into her vagina. To stifle Maribel's outcries, appellant covered her mouth with his hand and warned her that he would box her if she again shouted or resisted his bestial advances. Faced with that threat, complainant no longer struggled against appellant as he continued with his lechery. After a while, appellant withdrew from Maribel and masturbated in front of her. Semen, which complainant later naively referred to as water, was thereafter ejaculated by appellant toward her vagina. Eventually, appellant proceeded to sleep beside the victim. The following morning, Nida Nieva asked Maribel why she was crying the night before. After complainant revealed to Nida the sexual assault committed by appellant, the two immediately went to the capitan of Barangay Ilo and then to the police headquarters of Sta. Margarita to

report the incident. On the same day, Maribel was brought to the Calbayog District Hospital for physical examination. Dr. Flora M. RosaleSlxxi[7] examined Maribel on February 22, 1994 and found a fresh laceration on her hymen at a 3 o'clock position. She later explained before the trial court that said laceration could have been caused by the insertion of a male sex organ within twenty-four hours prior to the examination. Maribel, on her part, recounted in vivid detail the antecedents which led to her coming to Samar and the facts of the rape committed against her, as hereinbefore narrated. She explained that she was able to identify appellant as her assailant due to the illumination coming from the light on the electric post outside the house. Appellantlxxi[8] denied the charge against him and claimed that nothing felonious happened on the night of February 21, 1994. He testified that he slept on the terrace near the stairs of the Nieva house at 9 o'clock in the evening of February 21, 1994. On that same night, Raul's brother, Lito, together with his four children, came and spent the night in the house of the Nievas. Because the house is small, the four daughters of Lito slept with appellant on the terrace while Raul, Nida, Lito and Maribel slept in the bedroom, When appellant arose at midnight to urinate, he was surprised to see Maribel lying and sleeping beside him on the terrace. Appellant proceeded. to the river nearby, here he urinated and then went back to sleep beside Maribel. In the morning of the following day, Maribel told appellant that she was having her menstruation. Like a good father, appellant. claims that he gave complainant money to buy sanitary napkins. Appellant admitted that he married Anacleta de la Cruz in a civil ceremony before a judge when Maribel was only five years old. He treated Maribel as his own child and provided for her support. When asked for complainant's age, he answered at she was thirteen years old. He went to Samar on February f994 to visit Raul, the son of his kumadre Maria Nieva. He brought Maribel along with him because he wanted to keep her away from the two other sons of his wife who were drug addicts. He surmised that Maribel probably suspected him to be her assailant because he was the one lying beside her when she woke up in the morning. He gave no other reason or explanation why she would impute to him such a heinous and capital offense. To impeach the credibility of Maribel, the defense presented Rodolfo Francisco,lxxi[9] a detention prisoner who came to know appellant at the Municipal Jail of Sta. Margarita. Francisco declared that while he was sweeping the floor near the investigation room of the police headquarters on February 23, 1994, he heard Maribel denying before the Chief of Police of Sta. Margarita that her father raped her. He also heard her saying that appellant was just being suspected by the people in Barangay Ilo as the rapist who attacked her.

On February 13, 1995, the presiding judge of the lower court conducted an ocular inspectionlxxi[10] of the locus criminis and ascertained the presence of the electric post near the Nieva house as testified to by Maribel. In the course of his inspection, he also asked the present occupant of the house, Francisca Cajurao, and a barangay councilor, Jovito de los Santos, a number of questions seeking clarification of some matters concerning the crime. Finding the testimony of complainant credible and trustworthy, the trial court declared appellant guilty beyond reasonable doubt of the charge lodged against him. Since Maribel was less than eighteen years of age at the time of the rape and her attacker is her stepfather, appellant was condemned by the lower court to suffer the death penalty. After a conscientious review of the records and an objective evaluation of the evidence, we agree with the lower court that Maribel is indeed telling the truth. The trial court drew its conclusion from the direct, positive and categorical assertions made by complainant on the witness stand on the material occurrences of the criminal incident. Her testimony palpably bears the, earmarks of truth and jibes with the material points involved. Maribel did not waver during her testimony when asked by the judge a quo, the public prosecutor and the defense counsel to describe how she was sexually abused. Her detailed narration before the lower court was given in a straightforward and candid manner. We have heretofore concluded that a rape victim who testifies in a categorical, straightforward, spontaneous and frank manner, and remains consistent, is a credible witness.lxxi[11] Moreover, when the testimony of a rape victim is simple and straightforward, unshaken by a rigid cross-examination and unflawed by any inconsistency or contradiction, as in the present case, the same must be given full faith and credit.lxxi[12] Maribel's testimony gives no impression whatsoever that her story is a mere fabrication. If her story had only been contrived, she would not have been so composed and consistent throughout her entire testimony in the face of intense and lengthy interrogation.lxxi[13] We also note that her account of the rape in her affidavitlxxi[14] during the investigation by the police and her testimony during the trial are concordant with each other. There is no material deficiency or substantial inconsistency between such testimony and affidavit of Maribel. Furthermore, being young and immature, the testimony of this complainant deserves full credence.lxxi[15] It has long been firmly settled that an unmarried teenage lass would not ordinarily file a complaint for rape against anyone if it were not true.lxxi[16] We repeat once again that a woman would not admit that she has been raped, make public the offense, allow the examination of her private parts, undergo the trouble and humiliation of public trial, and endure the ordeal of testifying to all its sordid details if she had not in fact been raped.lxxi[17] It is her instinct to protect her honor.lxxi[18] We also find her prompt report of the crime to the authorities, and her persistent efforts to have appellant brought to justice, as convincing indications that she has been truly wronged. A

complainant's act in immediately reporting the commission of rape has been considered by this Court as a factor strengthening her credibility.lxxi[19] Finally, the willingness of Maribel to face police investigators and to submit to a physical examination is a mute but eloquent testimony of the truth of her charge against her own stepfather. If she had merely been prodded to relate a fabricated story to build up that serious charge, she would have recoiled at the possibility of being caught in prevarication, inexperienced as she was in such matters. She would have been deterred by the grave consequences of such willful falsehoods which could easily be unmasked by the medical findings that she would be made after a thorough examination of her body.lxxi[20] Appellant nonetheless questions before us the credence accorded by the trial court to Maribel and seeks to overturn the case established against him by the prosecution in the court below. He insists that the trial court should have doubted the unbelievable testimony of complainant which contains narrations of facts contrary to human experience, thus negating Maribel's claims of having been raped by him. Catalogued from appellant's brief,lxxi[21] these are the supposedly unusual and queer circumstances: (1) if appellant merely wanted to rape Maribel, he could have easily raped her in Manila with its abundance of hotels and motels, rather than go to the trouble of taking her to Samar; (2) it was unusual for appellant not to ejaculate inside Maribel's vagina if his purpose was to satisfy his lust; (3) it was impossible for appellant to rape Maribel because the house of the Nievas was small and overcrowded, with the spouses sleeping only one arm's length away from them; (4) considering that distance between them, the spouses should have been awakened by Maribel's cries; and (5) for the same reason, Maribel could have easily sought the assistance of the spouses, especially since only a curtain separated the bedroom and the kitchen. The above litany of arguments conjured by appellant does not persuade us. Suffice it to say that his contentions do not necessarily lead to the conclusion that no rape was committed or that he was not the one who raped Maribel. The elements of the rape and the identity of the malefactor were adequately proven beyond moral certainty by the testimony of Maribel, not to mention the admissions of appellant himself. We find undeserving of any consideration the first and second assertions of appellant. Their hypothetical and self-serving nature destroys their viability. They beg for a conclusion without providing the premises which, whether from behavioral science or from settled jurisprudence, would support his claim of improbabilities. Only appellant can give the answer to his own assumptions which, sad to say, he did not present during the trial. While we can hazard some rationalizations, we decline from doing so lest we also be guilty of speculation, As we have earlier ruled, this Court this not tasked to delve into the workings of the mind of the accused and to determine why he did not previously rape his victim even if he could have done solxxi[22]and, in a manner of speaking anent the instant case, why he opted out when he could have stayed in.

The fact that the rape took place in a room not far from the Nievas does not diminish the credibility of Maribel. The nearby presence of people in a certain place is no guarantee that rape will not and cannot be committed.lxxi[23] Up to now, there is nor rule that rape can be committed only in seclusion. lxxi[24]

We reiterate the dictum, drawn from judicial experience, that lust is no respecter of time and place. Rape, we have often held, can be committed even in places where people congregate, in parks, along the roadside, within school premises and even inside a house where there are other occupants or where other members of the family are also sleeping.lxxi[25] Thus, it is an accepted rule in criminal law that rape may be committed even when the rapist and the victim are not alone. Rape was held to have been committed in the same room while the rapist's spouse was asleep, or in a small room where other family members also slept.lxxi[26] Whether or not the sleeping Nievas were awakened by the cries of Maribel and why they did not help her will not and cannot affect complainant's credibility. As maintained by the public prosecutor and correctly sustained by the trial court, Maribel is incompetent to know whether Raul and Nida were awakened by her crying.lxxi[27] Be that as it may, the questioning of Maribel by Nida the following morning indicates that she was awakened by and heard the cries of Maribel. But why she did not help complainant is again foreign to Maribel's perception, and would be pure conjecture for us to deal with. Maribel's failure to shout or seek the assistance of the nearby spouses cannot also yield the inference that no rape was committed. It will be recalled that when complainant began to cry, appellant covered her mouth with his hand and uttered some menacing words.lxxi[28] With those threats in mind, it becomes easy to understand why complainant did not call for help. The continuing intimidation by appellant was sufficient to cow complainant into submission without any protest, as has been the fate of a multitude of' rape victims. Through the numerous cases brought before this Court, we leave learned to adopt the rule in psychology that different people react differently to a given type of situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience. One person's spontaneous or unthinking, or even instinctive, response to a horrid and repulsive stimulus may be aggression, while another person's reaction may be cold indifference.lxxi[29] Complainant, therefore, cannot be expected to solicit the aid of the spouses in the presence of her fearsome molester. As we have stated earlier, appellant's hollow submissions cannot stand against the positive testimony and identification made by Maribel. He was not able to overcome through his feeble defense the overwhelming weight of the case established by the People against him. His insipid attempt to impeach complainant, therefore, is unavailing for failure on his part to lay the proper predicate thereforelxxi[30] Thus, neither can appellant's alibi overwhelm the positive identification of appellant's rape victim.lxxi[31] Maribel's positive identification of appellant at the trial was made with no trace of hesitation or uncertainty, which fact was obviously not lost upon the court below. Parenthetically, appellant would attack such identification and posit that it was impossible for Maribel to identify the person who raped her because the bulb on the electric post allegedly did

not illuminate the house of the Nievas. He refers to the observations of De los Santos and Cajurao during the ocular inspection. It should be pointed out, however, that both De los Santos and Cajurao never stated that the bedroom was dark when the rape was committed on the night of February 21, 1994, since there was a 10-watt electric bulb attached to the lamp post at the time of the incident. More importantly, no reliance can be reposed on what these two persons said because they were not put under oath, they did not testify as witnesses in court,lxxi[32] and their statements were not formally offered as evidence thereinlxxi[33] Even if the lamp post did not directly illuminate the interior of the house, however, it does not mean that there was total, darkness in the bedroom where the crime was committed. The records reveal that the lamp post lit the bedroom through its open window as bright as a candlelight. lxxi[34] Such luminosity, together with the familiarity of Maribel with appellant, was more than sufficient to enable her to identify the felon. When the conditions of visibility are favorable, the eyewitness identification of appellant as the malefactor and the specific acts constituting the crime should be accepted. lxxi[35] Withal, all is not lost for appellant. Article 335 of the Revised Penal Code provides for the penalty of' reclusion perpetua for the carnal knowledge of a woman procured through force or intimidation and without any other attendant circumstance. With the advent of Republic Act No. 7659 on December 31, 1993, and in addition to the two instances theretofore introduced by Republic Act No. 4111, seven new special circumstances of rape were added to Article 335 calling for the single indivisible penalty of death. The first of such additional circumstances, upon which the trial court based its judgment of conviction against herein appellant, is the conjoined factual requirement, which must be alleged and proved, that the victim is under eighteen years of age and that the offender inter alia is the stepparent of the victim, which quality and concurrence of circumstances could warrant the imposition of the death penalty. The modality of the rape above stated, as well as the other six modes introduced by Republic Act No. 7659, partakes of the nature of a qualifying circumstance under the Revised Penal Code since it increases the penalty for rape by ore degree. It cannot be considered as equivalent to an aggravating circumstance because aggravating circumstances affect only the period of the penalty and do not increase the penalty to a higher degree. lxxi[36] Also, under the rules of criminal procedure, a qualifying circumstance to be considered as such must be so alleged in the information, which is not required of aggravating circumstances. The information filed against appellant in the present case does not support or justify the penalty of death imposed upon him by the trial court. A reading of the information discloses that, contrary to the findings of said court, only the crime of simple rape was charged against appellant and no attendant special circumstance, which would in effect qualify the crime, was alleged as such in the information.
While the fact that appellant is the stepfather of complainant was pleaded in the information, it was mentioned therein merely as the basis for the allegation that appellant acted with grave abuse of confidence. On the other hand, and of significant importance, the circumstance that Maribel was less than

eighteen years of age at the time of the rape was never, in any manner, stated in the information. For that matter, the allegations in the victim's complaintlxxi[37] are substantially the same as those in the information, including the omission of her age at the time of the rape. As we have explained in People vs. Garcia, lxxi[38] it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified from punishable by death, although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned. Procedurally, then, while the minority of Maribel and the relationship of appellant and his victim were established during the trial, appellant can only be convicted of simple

rape because he cannot be punished for a graver offense than that with which he was chargedlxxi[39] It may be contended that such a rule, if applied to the instant case would appear to be unduly resorting to sheer technicality. The requirement for complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charge against him, so that he may adequately prepare for this defense pursuant to the due process clause of the Constitution. But, then, herein appellant cannot be unaware that he is the stepfather of the complainant and that the latter was only thirteen years of age at the time of the commission of the crime charged. It then seems to be illogical to fault the information for not stating that the victim here was less than eighteen years old, a fact known to and even admitted by appellant, hence he could not have been denied the right to be informed of the real nature of the charge. The fact, however, is that it is the prosecution which determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information. It is not for the accused, usually a layman, to speculate upon the purposes and strategy of the prosecution and be thereafter prejudiced through erroneous guesswork. Thus, since the People dictate what he should be charged with, fairness demands that he should not be convicted of a crime with which he is not charged or which is not necessarily included therein. Thus, where an accused killed his father, but is charged with homicide, it would be absurd to convict him of parricide just because of his inevitable knowledge of his relation to the victim. Such potential prejudice to the accused would be more apparent in the matter of modifying circumstances since some of them may be used either as qualifying or as aggravating circumstances, hence the technical rules on pleadings by way of procedural regulation. Law, after all, is a technical science; it must perforce observe the necessary technicalities to avoid an injustice. We cannot even justly rule that the circumstance of grave abuse of confidence can aggravate the liability for the simple rape charged in this case. There was no showing by the prosecution that the abuse of confidence facilitated the attainment of the rape. It was not established that appellant took advantage of complainant's belief that he would not abuse the trust she reposed in himlxxi[40] However, even considering arguendo that abuse of confidence was present in the commission of the crime, it cannot also affect the penalty to be imposed. As already discussed, herein appellant can be convicted only of simple rape and the imposable penalty therefore is reclusion perpetua.

Where the law prescribes a single indivisible penalty, it shall be applied regardless of the mitigating or aggravating circumstances attendant to the crime.lxxi[41] On the matter of appellant's civil liability ex delicto, and it, in view of the lower court's award of P50,000.00 to Maribel in the concept of moral damages, we digress at this juncture to once again elaborate on and clarify the nature and amount of damages for which appellant is liable. It has been the policy of this Court to outrightly award an amount not exceeding P50,000.00 to victims of rape upon indubitable showing of its commission. However, trial courts, and even this Court, have at times referred to such amount as moral damages. As pointed out in People vs. Gementiza,lxxi[42] that mandatory award of P50,000.00 relates to and should be categorized as actual or compensatory damages. In response to the rising incidence of heinous crimes against chastity, this Court recently established a distinction between the amounts of compensatory damages to be awarded in simple and qualified rape cases. In People vs. Victorlxxi[43] we laid down the rule that if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by law, the indemnity for the victim shall be increase to the amount of P75,000.00. While there is ample proof before us that Maribel was minor at the time she was raped by appellant, we cannot increase the civil indemnity in her favor because, as explained earlier, the death penalty is not imposable on appellant due to the deficiency in the allegations of the information against him. Now, the conventional rule in the past was also that moral damages can be awarded only upon sufficient showing that the complainant in a rape case suffered the different forms of pain or suffering provided in Article 2217 of the Civil Code.lxxi[44] However, this doctrine has been effectively abandoned with the recent promulgation of People vs. Prades.lxxi[45] In the said case, we dispensed with the requirement of proof of mental and physical suffering and recognized the victim's injury as being inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se an award for moral damages. With this jurisprudential evolution, appellant should therefore pay Maribel moral damages in the amount subject to the discretion of this Court. WHEREFORE, the appealed judgment of the court a quo is AFFIRMED, with the MODIFICATION that accused-appellant Ernesto Perez is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the additional amount of P50,000.0 as moral damages to complainant Maribel Perez. The amount of P50,000.00 granted to complainant by the trial court is maintained but should be considered and designated as actual or compensatory drainages. Costs against accused-appellant. SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur. Vitug, J., in the result.

FIRST DIVISION

[G.R. No. 125080. September 25, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEMESTOCLES LOZANO @ TOMMY, accused-appellant. DECISION PANGANIBAN, J.: Alibi and denial cannot prevail over the clear and positive identification of the appellant as the perpetrator of the crime and the victims detailed narration of the events on that fateful day. Aside from civil indemnity, a rape victim may be awarded moral and exemplary damages. The appreciation of ignominy as a generic aggravating circumstance, absent any mitigating ones to offset it, entitles the victim to exemplary damages.
The Case

Temestocles Lozano seeks the reversal of the February 29, 1996 Decisionlxxi[1] of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, in Criminal Case No. 1471, convicting him of rape, sentencing him to reclusion perpetua and ordering him to pay civil indemnity of P50,000. Provincial Prosecutor Iego A. Gorduiz charged appellant with rape in an Information dated October 24, 1990, which reads as follows: The undersigned, acting upon a sworn complaint originally signed and filed by the offended party, Lilia L. Montederamos, hereby accuses TEMESTOCLES LOZANO, alias Tommy, a resident of Ibarra, Maasin, Southern Leyte and is presently detained at the Provincial Jail, Maasin, Southern Leyte of the crime of RAPE, committed by him as follows: That sometime in the afternoon of August 29, 1990, in [B]arangay Ibarra, [M]unicipality of Maasin, [P]rovince of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with lustful intent and lewd design and by means of force, threats, intimidation and/or violence did then and there willfully, unlawfully and feloniously

sexually attack, assault and ravish the offended party, Lilia L. Montederamos, and had carnal intercourse without her consent and against her will, to her damage and [to the prejudice of the] social order.lxxi[2] Upon his arraignment on March 13, 1991, appellant, assisted by Counsel de Parte Porfirio P. Siayngco, pleaded not guilty.lxxi[3] Trial on the merits ensued in due course. On February 29, 1996, the trial court rendered its Decision,lxxi[4] the dispositive portion of which reads: WHEREFORE, IN VIEW OF THE FOREGOING CONSIDERATION, the Court hereby renders judgment finding the accused Temestocles Lozano, guilty beyond reasonable doubt of the crime of Rape as defined and punished by Art. 335 of the Revised Penal Code, as amended, and is accordingly sentenced: 1. To suffer the penalty of reclusion perpetua; 2. To indemnify the offended party [in] the amount of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency; and 3. To pay the costs.

The preventive imprisonment undergone by the accused Temestocles Lozano shall be fully credited [to] the service of his sentence if he voluntarily agrees in writing to abide by the same disciplinary rules and regulations imposed upon convicted prisoners, otherwise, he shall be credited with only four-fifths (4/5) of the time during which he underwent preventive imprisonment.lxxi[5]
The Facts Evidence for the Prosecution

In the Appellees Brief,lxxi[6] the solicitor generallxxi[7] presents the following narration of the facts: On August 29, 1990 at about 4:30 oclock in the afternoon, private complainant, Lilia Montederamos, a resident of Barangay Sta. Rosa, Maasin, Southern Leyte, was requested by her mother, Catalina Montederamos to buy rice at the neighboring barangay of Ibarra (pp. 3-4. TSN, July 23, 1991). On her way to Ibarra, Lilia passed by the coconut plantation of Luding Bandibas where she saw appellant Temestocles Lozano (p.5, TSN, Ibid.). When Lilia resumed walking to her destination, Lilia noticed that appellant was following her. As she was alone, Lilia got frightened and started to run. Eventually, however, appellant caught up with Lilia (p. 6, TSN, Ibid.).

Once astride each other, appellant suddenly covered Lilias mouth, poked a sharp-pointed stick on her side and warned her not to make any noise or else she [would] die (p. 7, TSN, Ibid.). Lilia pleaded to appellant not to do anything to her because she was pregnant but the plea fell on deaf ears. Instead, appellant forcibly brought her to a banana plantation at the lower portion of the road (p. 11, TSN, Ibid.). When Lilia tried to shout, appellant boxed her thrice on her right cheek causing her to feel dizzy (p. 5, TSN, September 18, 1991). After delivering the fist blows, appellant ordered Lilia to take off her clothes and threatened her with death if she refused. When Lilia finished undressing, appellant took off his clothes but his pants and brief[s] were only pulled down xxx to his knees (pp. 12-13, TSN, May 23, 1991). He then ordered Lilia to [lie] down on the stony ground (p. 16, TSN, October 23, 1991) after which, he lay on top of Lilia and inserted his penis into her vagina (p. 15, TSN, Ibid.). Thereafter, appellant pulled out his penis from the vagina of Lilia, wound it up with banana fiber and inserted it again [in] to Lilias vagina. Then, he pulled out again his penis and forced Lilia to suck it (pp. 20-21, TSN, October 23, 1991). After he was through, appellant brought Lilia with him. As they proceeded to the Bodega of Montalbo, Lilia saw persons coming towards their direction. Lilia seized this as an opportunity for escape especially so that the left arm of appellant was no longer holding her neck. She then pushed appellant and ran to the persons coming towards their way. She recognized these persons as Aniceto Malasaga, Diony Malasaga and Juanito Bandibas (p. 18, TSN, July 23, 1991). Lilia ran directly to Diony Malasaga and told his group that somebody wanted to kill her. The three (3) brought Lilia home and upon arrival thereat, she informed her parents that appellant raped her. On the same night, Lilias father reported the incident to the Maasin Police Station (pp. 4-6, TSN, February 19, 1992). On the following day, August 30, 1990, Lilia went to [the] Maasin Police Station to report the incident[; there] she executed a sworn statement (pp. 3-6, Record). Lilia subjected herself to physical examination at the Integrated Provincial Health Office, Maasin, Southern Leyte. Dr. Evelyn Cabal conducted the physical examination and issued a medical certification with the following findings: Face - swelling and hematoma at R cheek bone - tenderness with abrasion at the back R lumbar region Pelvic exam: - Ext. genitalia grossly normal - introitusm- nulliparous SE: Cervix is bluish closed with scanty, whitish, mucoid vaginal discharges

IE: cervix is closed, soft BME: uterus is enlarged compatible to 5 months AOG For sperm determination - positive (Exh. A) (p. 8, Record) Prosecution witness Aniceto Malasaga testified that while he was walking on his way home, together with Juanito Bandibas and his wife, he saw Lilia running towards his direction, crying (p. 4, TSN, February 19, 1992). When he asked what happened to her, Lilia kept on crying and asked him to bring her home (p. 5, Ibid.). Thereafter, Aniceto brought Lilia to her house. Upon arrival thereat, Lilia was still crying. When asked by her parents what happened to her, Lilia reported that appellant raped her (pp. 6-7, Ibid.).
Evidence for the Defense

In his nine-page Brief,lxxi[8] appellant alleges alibi and presents this version of the facts: Accused TEMESTOCLES LOZANO testified that on August 29, 1990 at about 4:00 oclock in the afternoon, he was drinking Tanduay 65 with his friend Alfred Yap at the store of Purok Kalamanggam, Ibarra, Maasin, Southern Leyte. Pacita Biton joined them and they conversed on various topics - benefit dance, basketball. At about 6:00 oclock in the evening, Pacita Biton, went home to Bugnay while he and his companion proceeded to his home in Purok Seaside. Together with his parents and sister Malony, they ate their supper. At 7:00 P.M., he conducted Alfredo Yap on the road and he went home to sleep. He testified that Lilia Montederamos was introduced to him during a benefit dance at Sta. Rosa. He courted her, she accepted his proposal and they were sweethearts. During the time, they had a relationship, he and Lilia met cland[e]stinely, usually about 7:00 P.M. at Purok Estrella in Ibarra and they would proceed to the premises of Ibarra Elementary School where they would talk and kiss each other as lovers would normally do. On August 14, 1990, about 4:00 P.M., he met the victim at the park center of Estrella. The victim was breaking their relationship as she was to be married. He did not accede to said request. On August 27, 1990, he met the victim again. The latter told him that she was pregnant, her fianc[ was] the father of her unborn child. (TSN. November 5, 1992, pp. 12-15.)
The Ruling of the Trial Court

In ruling for the prosecution, the trial court gave credence to the victims testimony, which we quote:

The evidence of the prosecution clearly show[s] that accused Temestocles Lozano succeeded in having carnal knowledge with victim Lilia Montederamos by using force and intimidation. While its evidence rest[s] mainly on the testimony of victim Lilia Montederamos, yet her testimony bear[s] much weight and is conclusive and probable. Testifying in court, victim went through the agonizing experience of relating the incident of how [the] accused in the afternoon of August 29, 1990 waylaid her and succeeded in ravishing her, using force and intimidation. [De]spite the embarrassment and humiliation she must have felt at the time she was giving her testimony, [the] victim vividly recalled and narrated the savage acts that the accused did to her. xxx The testimony of the victim leaves Lilia Montederamos no room for doubt as to the identity of the perpetrator of the dastardly act. She positively identified accused Temestocles Lozano as the one who sexually abused her.lxxi[9] Hence, this appeal.lxxi[10]
Assignment of Error

In assailing the trial courts Decision, appellant interposes this assignment of error: The trial court erred in not acquitting the accused for the crime of rape despite failure of the prosecution to prove his guilt beyond reasonable doubt. The resolution of the present appeal revolves around the sufficiency of the prosecution evidence and the credibility of witnesses.
The Courts Ruling

The appeal is devoid of merit.

Sufficiency of the Prosecution Evidence

Appellant argues that the prosecution failed to categorically and morally ascertain that the elements of rape were in attendance in the case at bar.lxxi[11] Lozada claims that the victim and he knew each other very well; he even alleges that they were sweethearts. He maintains that the victim willingly and voluntarily submitted to the sexual act, and that he helped her remove her clothes. Allegedly, he even placed his jacket on the stony ground where she lay, in order to cushion her back. These arguments do not persuade. Beyond any reasonable doubt, the prosecution established appellants guilt.

No Proof That They Were Sweethearts

Appellants contention that he and the victim were sweethearts must fail. Lilia Montederamos specifically denied the existence of such a relationship, and appellant utterly failed to substantiate his bare allegation. No one took the witness stand to confirm independently that the victim and the appellant were sweethearts. Nobody testified ever seeing the two together. Furthermore, no love notes, photographs or mementos of their alleged love affair were offered. In view of the foregoing, appellants insistence that he and the victim were lovers must be swept aside for being both dubious and unsubstantiated. Even granting arguendo that the two were sweethearts, appellant cannot evade criminal liability. A man does not have an unbridled license to subject his beloved to his carnal desires. By asserting the existence of such a relationship, appellant seeks to prove that the victim willingly participated in the sexual act. But she did not. The evidence in this case clearly shows that appellant employed force and intimidation. In her testimony, Lilia Montederamos clearly described how appellant chased her, covered her mouth, poked a sharpened stick at her side and threatened to kill her if she were to make any noise. The victim was obviously cowed and, for this reason, the appellant was able to lead her to the nearby banana plantation. She testified: Q: A: Q: A: Q: A: When you noticed that accused was following you, what did you do? I ran fast. You ran fast? Why did you run fast? I was afraid. Why were you afraid of him? Because he was running and following me. xxx Q: A: xxx xxx

Was the accused able to overtake you? I was overtaken. xxx xxx xxx

Prosecutor Gorduiz:

x x x [W]hat happened next? A: His left hand he used to cover my mouth and his right hand was holding a stick [which he] poked [at] my side. xxx Prosecutor Gorduiz: Can you say what the accused said to you while poking at your right side? A: He said that: Dont make any noise so that you will not die. xxx Prosecutor Gorduiz: After hearing those threatening words, what did you feel? A: I was afraid. xxx Q: A: Q: A: Then what did he do next[?] He brought me towards the lower portion of the road. While bringing you to the lower portion, where was his left hand? His left hand was holding [sic] around my neck. xxx Q: A: xxx xxx xxx xxx xxx xxx xxx xxx

And while the accused placed his left hand on your neck, he forced you to go down? He brought me to the lower portion of the road at the banana plantation.lxxi[12]

There, appellant ordered the victim to take off her clothes: Q: A: Then when you reached the banana plantation, what did he do to you? He let me undress. xxx xxx xxx

Q: A:

You said he let you undress, did you obey what he told you to do? I took off my clothes because he said, If I would not do so, he [would] kill me.lxxi[13]

Thereafter, appellant succeeded in sexually assaulting the victim in the following manner: Prosecutor Gorduiz: Immediately after you were made to lie down, where did the accused place himself? A: He lay on top of me. xxx Q: A: Then after those acts, what did he do? After that he inserted his penis into my vagina. xxx Prosecutor Gorduiz: Was the accused able to finish the act of sexual intercourse? A: Q: A: He finished. After he finished his intercourse with you, what did he do? He let me suck his penis. xxx Prosecutor Gorduiz: You said that accused got a banana stalk and wound [it] around his penis[;] when was this act of the accused [--] before or after the first intercourse? A: After he finished his first act of sexual intercourse, it was then [and] there that he stripped [a] banana stalk and tied his penis and he again inserted [it] into my vagina.lxxi[14] Appellants contention that the complainant failed to resist or to shout is erroneous. From the above testimony, it is clear that the victim feared for her life, as appellant not only verbally threatened to kill her, but held her neck and poked a sharp stick at her side. Likewise, appellants claim that the victim undressed herself voluntarily is negated by her testimony that appellant threatened to kill her if she did not take off her clothes. She further testified that while xxx xxx xxx xxx xxx xxx

appellant was bringing her downhill, she tried to shout but appellant punched her three times.lxxi[15] Indeed, she was terrorized into submission. We must emphasize that forcibly does not mean violently, but with that description of force which must be exercised in order to accomplish the act.lxxi[16] In the present case, the force exerted by appellant was sufficient to attain his purpose.
Victims Testimony Credible and Convincing

In fine, Lilia Montederamos clearly described how appellant pursued her, covered her mouth, poked a sharpened stick at her side, threatened to kill her, forcibly brought her to the nearby banana plantation, punched her and finally ravished her. The trial court, which had the opportunity to observe the manner and demeanor of the victim In the witness stand, was convinced of her credibility. Appellant, however, asks the Court not to believe the victims testimony. We find no reason to reverse or alter the holding of the trial court. It is a time-tested doctrine that a trial courts assessment of the credibility of a witness is entitled to great weight -- even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence.lxxi[17] The victims credibility is further bolstered by her subsequent acts. As observed by the trial court, the act of [the] victim in filing the complaint against the accused is an indication of her desire to seek xxx justice.lxxi[18] Furthermore, that she immediately reported the matter to the authorities and submitted herself to physical examination on the same day is another indication of the truth of her accusation.
Physical Evidence Supports the Victims Allegations

Moreover, the medical report of Dr. Evelyn Cabal corroborates the victims testimony that appellant used physical force against her. In her report and testimony, Dr. Cabal observed swelling and hematoma at the right cheekbone of the victim and abrasion at the back of her lumbar region. The doctor also testified that the swelling and hematoma at the right cheekbone were indicative of a strong punch. Finally, she noted that the tenderness and abrasions at the lumbar region could have been due to a stone that had hit the back of the victim, thereby corroborating the latters testimony that she had been forced to lie down on a stony ground. Alibi

Appellants defense of alibi is unpersuasive. It is well-settled that alibi cannot overcome the positive identification of the appellant as the perpetrator of the crime or the victims detailed narration of the events that transpired on that fateful day. Indeed, alibi is one of the weakest defenses because it is easy to fabricate and difficult to refute. In the present case, the victim positively pointed to the appellant as the malefactor. As stated earlier, we find no reason to reject the trial courts assessment of her credibility. In the same vein, we find no basis to discard her testimony and accept appellants alibi.
Appellant Liable for One Count of Rape Only

Although the prosecutions evidence tended to prove that appellant had carnal knowledge of the victim at least twice, he cannot be held liable for two counts of rape, because the Information charged him with only one count. This Court has ruled that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.lxxi[19] In People v. De Guzman,lxxi[20] appellant was convicted of only one count of rape because the Information charged him with only one, despite the fact that evidence presented during the trial showed that there were at least two acts of attempted rape and one consummated rape: What is clear to us is that there were, at least, two acts of attempted rape and one consummated rape, committed in light of the testimony of x x x. The information, however, charged the accused with only one act of rape; hence, consistent with the constitutional right of the accused to be informed of the nature and cause of the accusation against him, he cannot be held liable for more than what he was charged [with]. There can only be one conviction of rape if the information only charges one offense, even if the evidence shows three separate acts of sexual intercourse.lxxi[21]
Damages

The trial court ordered the appellant to pay the victim an indemnity of P50,000. In view of the peculiar facts of this case, the solicitor general prays that the amount be increased to P150,000.lxxi[22] There is some merit to the solicitor generals submission. It is a sad commentary on our times that rape has become so commonplace. But even by the modern standards of morality, the acts of appellant were particularly bestial. The victim was pregnant, and she pleaded with the appellant on this ground. However, her plea went unheeded and appellant went on to force his

lust on her. But appellant was not yet through. He then tied a banana fiber around his penis and inserted it Again into her vagina. Thereafter, he pulled out his organ and forced the victim to suck it. Clearly, the Court will not be doing enough if it merely affirmed the ruling of the trial court. Accordingly, in addition to the award of indemnity in the amount of P50,000, the Court orders the appellant to pay moral damages in the amount of P50,000 plus exemplary damages of P25,000. Under the Civil Code, moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.lxxi[23] In People v. Prades,lxxi[24] the Court ruled that moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice. In any event, the physical suffering that the victim went through because Appellant Lozano tied a banana fiber around his penis is obvious. But more than that, the mental anguish and moral shock will remain etched in her psyche for a long time. Her description of her ravishment is proof enough of her moral sufferings. Exemplary damages should also be awarded because the crime was committed with the aggravating circumstance of ignominy.lxxi[25] This aggravating circumstance is evident from the acts of the appellant, which made the effects of the crime more humiliating and subjected the offended party to degradation and ridicule. This Court will not stand idle while scoundrels wage war against civilized society. WHEREFORE, the assailed Decision is hereby AFFIRMED, with the MODIFICATION that appellant is ordered to pay moral damages of P50,000 and exemplary damages of P25,000, in addition to the civil indemnity of P50,000, or a total of P125,000. Costs against appellant. SO ORDERED. Davide, Jr., (Chairman), Bellosillo, Vitug and Quisumbing, JJ. concur.

SECOND DIVISION

[G.R. No. 124342. December 8, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN LADRILLO, accusedappellant. DECISION
BELLOSILLO, J.:

It is basic that the prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense.lxxiv[1] The prosecution must demonstrate the culpability of the accused beyond reasonable doubt for accusation is not synonymous with guilt. Only when the requisite quantum of proof necessary for conviction exists that the liberty, or even the life, of an accused may be declared forfeit. Correlatively, the judge must examine with extreme caution the evidence for the state to determine its sufficiency. If the evidence fails to live up to the moral conviction of guilt the verdict must be one of acquittal, for in favor of the accused stands the constitutional presumption of innocence; so it must be in this prosecution for rape. Jane Vasquez, the eight (8) year old complaining witness, could not state the month and year she was supposedly abused by her cousin Edwin Ladrillo. She could narrate however that one afternoon she went to the house of accused-appellant in Abanico, Puerto Princesa City, which was only five (5) meters away from where she lived. There he asked her to pick lice off his head; she complied. But later, he told her to lie down in bed as he stripped himself naked. He removed her panty and placed himself on top of her. Then he inserted his penis into her vagina. He covered her mouth with his hand to prevent her from shouting as he started gyrating his buttocks. He succeeded in raping her four (4) times on the same day as every time his penis softened up after each intercourse he would make it hard again and insert it back into her vagina. After successively satisfying his lust accused-appellant Edwin Ladrillo would threaten to "send her to the police" if she would report the incident to anyone.lxxiv[2] Sometime in 1994 Salvacion Ladrillo Vasquez, mother of Jane, noticed that Jane had difficulty urinating and kept pressing her abdomen and holding her private part. As she writhed in discomfort she approached her mother and said, "Ma, hindi ka maniwala sa akin na yung uten ni Kuya Edwin ipinasok sa kiki ko (Ma, you wont believe that Kuya Edwin inserted his penis into my vagina).lxxiv[3] Perturbed by her daughters revelation, Salvacion immediately brought her to their church, the Iglesia ni Kristo, where she was advised to report to the National Bureau of Investigation (NBI). At the NBI Salvacion was referred to the Puerto Princesa Provincial Hospital so that Jane could be physically examined. Dr. Danny O. Aquino, the examining physician, reported in his medico-legal certificate that Jane had a "non-intact hymen."lxxiv[4] He later testified that a "non-intact hymen" could mean either of two (2) things: it could be congenital, i.e., the victim was born without a fully developed

hymen,lxxiv[5] or it could be caused by a trauma, as when a male organ penetrated the private organ of the victim.lxxiv[6] On 3 February 1995 Jane Vasquez with the assistance of her mother Salvacion Ladrillo Vasquez filed a criminal complaint against accused-appellant Edwin Ladrillo. The defense is anchored on alibi and denial. Accused-appellant claims that in 1992, the year he allegedly raped Jane as stated in the Information, he was still residing in Liberty, Puerto Princesa City, and did not even know Jane or her mother at that time. That it was only in 1993, according to him, that he moved to Abanico, Puerto Princesa City. To corroborate his testimony, the defense presented as witnesses, Wilfredo Rojas and Teodoro Aguilar, both of whom were neighbors of accused-appellant in Liberty, Puerto Princesa City. They testified that in 1992 accused-appellant was still their neighbor in Liberty and it was only in 1993 when accusedappellant and his family moved to Abanico.lxxiv[7] Edito Ladrillo, accused-appellants father, testified that his family lived in Abanico for the first time only in 1993; that when he and his sister Salvacion, mother of Jane, had a quarrel, he forbade his son Edwin from attending church services with Salvacion at the Iglesia ni Kristo, which caused his sister to be all the more angry with him; and, the instant criminal case was a means employed by his sister to exact revenge on him for their past disagreements.lxxiv[8] The trial court found accused-appellant Edwin Ladrillo guilty as charged, sentenced him to reclusion perpetua, and ordered him to indemnify Jane Vasquez the amount of P100,000.00, and to pay the costs.lxxiv[9] Thus, the court rationalized The crux of accuseds defense is that he was not in the place of the alleged rape in Abanico, Puerto Princesa City when this allegedly happened. He denied committing the crime of rape against the young girl, Jane Vasquez. After having carefully examined and calibrated the evidence on record, the Court is convinced more than ever that the accused Edwin Ladrillo indeed repeatedly raped or sexually abused Jane Vasquez, a girl who was then only five (5) years old. This Court has no reason to doubt the veracity of the testimony of Jane Vasquez given the straightforward clarity and simplicity with which it was made. It is highly improbable that a young, 8-year old girl would falsely testify that her own cousin, the accused herein, raped her. She told her mother: Ma, hindi ka maniwala sa akin na ang utin ni Kuya Edwin ay ipinasok sa kiki ko. Jane also described that after the intercourse and as the penis of the accused softened, the latter would make it hard again and then inserted it again into her vagina and this was made four (4) times. Janes testimony has all the characteristics of truth and is entitled to great weight and credence. The Court cannot believe that the very young victim is capable of fabricating her story of defloration. Accused-appellant contends in this appeal that the trial court erred in: (a) not giving credence to his defense that at the supposed time of the commission of the offense he was not yet residing in Abanico, Puerto Princesa City, and did not know the complainant nor her family; (b) finding him guilty of rape considering that the prosecution failed to prove his guilt beyond reasonable doubt; (c) not finding that the prosecution failed to sufficiently establish with particularity the date of

commission of the offense; (d) giving great weight and credence to the testimony of the complainant; and, (e) failing to consider the mitigating circumstance of minority in imposing the penalty of reclusion perpetua, assuming for the sake of argument that indeed the crime of rape was committed.lxxiv[10] A careful study of the records sustains accused-appellants plea that the verdict should have been one of acquittal. Preliminarily, the crime was alleged in the Information to have been committed "on or about the year 1992" thus That on or about the year 1992 at Abanico Road, Brgy. San Pedro, Puerto Princesa City x x x x the said accused, with the use of force and intimidation did then and there willfully, unlawfully, and feloniously have carnal knowledge with the undersigned five (5) years of age, minor, against her will and without her consent. The peculiar designation of time in the Information clearly violates Sec. 11, Rule 110, of the Rules Court which requires that the time of the commission of the offense must be alleged as near to the actual date as the information or complaint will permit. More importantly, it runs afoul of the constitutionally protected right of the accused to be informed of the nature and cause of the accusation against him.lxxiv[11] The Information is not sufficiently explicit and certain as to time to inform accused-appellant of the date on which the criminal act is alleged to have been committed. The phrase "on or about the year 1992" encompasses not only the twelve (12 ) months of 1992 but includes the years prior and subsequent to 1992, e.g., 1991 and 1993, for which accusedappellant has to virtually account for his whereabouts. Hence, the failure of the prosecution to allege with particularity the date of the commission of the offense and, worse, its failure to prove during the trial the date of the commission of the offense as alleged in the Information, deprived accused-appellant of his right to intelligently prepare for his defense and convincingly refute the charges against him. At most, accused-appellant could only establish his place of residence in the year indicated in the Information and not for the particular time he supposedly committed the rape. In United States v. Dichao,lxxiv[12] decided by this Court as early as 1914, which may be applied by analogy in the instant case, the Information alleged that the rape was committed "on or about and during the interval between October 1910 and August 1912. This Court sustained the dismissal of the complaint on a demurrer filed by the accused, holding that In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October 1910 and August 1912, is too indefinite to give the accused an opportunity to prepare for his defense, and that indefiniteness is not cured by setting out the date when a child was born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near

to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference thereto as amounts to the same thing. Moreover, there are discernible defects in the complaining witness testimony that militates heavily against its being accorded the full credit it was given by the trial court. Considered independently, the defects might not suffice to overturn the trial courts judgment of conviction, but assessed and weighed in its totality, and in relation to the testimonies of other witnesses, as logic and fairness dictate, they exert a powerful compulsion towards reversal of the assailed judgment. First, complainant had absolutely no recollection of the precise date she was sexually assaulted by accused-appellant. In her testimony regarding the time of the commission of the offense she declared Q: This sexual assault that you described when your Kuya Edwin placed himself on top of you and had inserted his penis on (sic) your private part, when if you could remember, was (sic) this happened, that (sic) month? A: I forgot, your Honor. Q: Even the year you cannot remember? A: I cannot recall. Q: But is there any incident that you can recall that may draw to a conclusion that this happened in 1992 or thereafter? A: None, your Honor. Q: About the transfer of Edwin from Abanico to Wescom Road? A: I dont know, your Honor (underscoring supplied).lxxiv[13] In People v. Clemente Ulpindolxxiv[14] we rejected the complaining witness testimony as inherently improbable for her failure to testify on the date of the supposed rape which according to her she could not remember, and acquitted the accused. We held in part While it may be conceded that a rape victim cannot be expected to keep an accurate account of her traumatic experience, and while Reginas answer that accused-appellant went on top of her, and that she continuously shouted and cried for five (5) minutes may have really meant that accused-appellant had carnal knowledge of her for five (5) minutes despite her shouts and cries, what renders Reginas story inherently improbable is that she could not remember the month or year when the alleged rape occurred, and yet, she readily recalled the incident when

she was whipped by accused-appellant with a belt that hit her vagina after she was caught stealing mangoes. Certainly, time is not an essential ingredient or element of the crime of rape. However, it assumes importance in the instant case since it creates serious doubt on the commission of the rape or the sufficiency of the evidence for purposes of conviction. The Information states that the crime was committed "on or about the year 1992," and complainant testified during the trial that she was sexually abused by accused-appellant in the latters house in Abanico, Puerto Princesa City.lxxiv[15] It appears however from the records that in 1992 accused-appellant was still residing in Liberty, Puerto Princesa City, a town different from Abanico, Puerto Princesa City, and had never been to Abanico at any time in 1992 nor was he familiar with the complainant and her family. He only moved to Abanico, Puerto Princesa City, in 1993.lxxiv[16] It was therefore impossible for accused-appellant to have committed the crime of rape in 1992 at his house in Abanico, Puerto Princesa City, on the basis of the prosecution evidence, as he was not yet residing in Abanico at that time and neither did his family have a home there. The materiality of the date cannot therefore be cursorily ignored since the accuracy and truthfulness of complainants narration of events leading to the rape practically hinge on the date of the commission of the crime. The ruling of the trial court to the effect that it was not physically impossible to be in Abanico from Liberty when the crime charged against him was committed, is manifestly incongruous as it is inapplicable. The trial court took judicial notice of the fact that Liberty and Abanico were not far from each other, both being within the city limits of Puerto Princesa, and could be negotiated by tricycle in less than thirty (30) minutes.lxxiv[17] But whether or not it was physically impossible for accused-appellant to travel all the way to Abanico from Liberty to commit the crime is irrelevant under the circumstances as narrated by complainant. Truly, it strains the imagination how the crime could have been perpetrated in 1992 at the Ladrillo residence in Abanico when, to repeat, accused-appellant did not move to that place and take up residence there until 1993. To complicate matters, we are even at a loss as to how the prosecution came up with 1992 as the year of the commission of the offense. It was never adequately explained nor the factual basis thereof established. The prosecutor himself admitted in court that he could not provide the specific date for the commission of the crime COURT: Wait a minute. (To witness) How many times did your Kuya Edwin placed (sic) himself on top of you and inserted (sic) his penis to (sic) your private organ? A: Four (4) times, your Honor. COURT: You demonstrate that with your fingers. A: Like this, your Honor (witness raised her four (4) fingers). COURT: Fiscal, did you charge the accused four (4) times?

PROS. FERNANDEZ: No, your Honor because we cannot provide the dates (underscoring supplied). lxxiv[18] Indeed, the failure of the prosecution to prove its allegation in the Information that accusedappellant raped complainant in 1992 manifestly shows that the date of the commission of the offense as alleged was based merely on speculation and conjecture, and a conviction anchored mainly thereon cannot satisfy the quantum of evidence required for a pronouncement of guilt, that is, proof beyond reasonable doubt that the crime was committed on the date and place indicated in the Information. Second, neither did the testimony of Dr. Danny O. Aquino, the medico-legal officer, help complainant's cause in any way. In his medico-legal certificate, Dr. Aquino concluded on examination that complaining witness' hymen was not intact. When asked by the trial court what he meant by "non-intact hymen," Dr. Aquino explained that it could be congenital, i.e., natural for a child to be born with a "non-intact hymen."lxxiv[19] However, he said, he could not distinguish whether complainants "non-intact hymen" was congenital or the result of a trauma.lxxiv[20] When asked further by the public prosecutor whether he noticed any healed wound or laceration in the hymen, Dr. Aquino categorically answered: "I was not able to recognize (healed wound), sir," and "I was not able to appreciate healed laceration, sir."lxxiv[21] The answers of Dr. Aquino to subsequent questions propounded by the prosecutor were very uncertain and inconclusive. To questions like, "Is she a virgin or not?" and "So you are now saying that Jane Vasquez was actually raped?" the answers of Dr. Aquino were, "I cannot tell for sure, your Honor." "That is a big probability," and, "Very likely." It is clear from the foregoing that the prosecution likewise failed to establish the medical basis for the alleged rape. The failure of Dr. Aquino to make an unequivocal finding that complainant was raped and that no healed wound or laceration was found on her hymen seriously affects the veracity of the allegations of the prosecution. Third, from her testimony, complainant would have this Court believe that while she was being raped accused-appellant was holding her hand, covering her mouth and gripping his penis all at the same time. Complainants narration is obviously untruthful. It defies the ordinary experience of man. The rule is elementary that evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself. And fourth, complainant reported the alleged rape to her mother only in 1994 or two (2) years after its occurrence. It hardly conforms to human experience that a child like complainant could actually keep to herself such a traumatic experience for a very long time. Perhaps it would have been different if she were a little older and already capable of exercising discretion, for then, concealment of the rape committed against her would have been more readily explained by the fact, as in this case, that she was probably trying to avoid the embarrassment and disrepute to herself and her family. Children, on the other hand, are naturally more spontaneous and candid, and usually lack the same discretion and sensibility of older victims of the same offense. Thus, the fact that complainant, who was only five (5) years old when the supposed rape happened,

concealed her defilement to her mother for two (2) years seriously impairs her credibility and the authenticity of her story. We are not unmindful of the fact that a child of tender years, like complaining witness herein, could be so timid and ignorant that she could not narrate her ordeal accurately. But the mind cannot rest easy if this case is resolved against accused-appellant on the basis of the evidence for the prosecution which, as already discussed, is characterized by glaring inconsistencies, missing links and loose ends that refuse to tie up. The rule that this Court should refrain from disturbing the conclusions of the trial court on the credibility of witnesses, does not apply where, as in the instant case, the trial court overlooked certain facts of substance or value which if considered would affect the outcome of the case; or where the disputed decision is based on misapprehension of facts. Denial and alibi may be weak but courts should not at once look at them with disfavor. There are situations where an accused may really have no other defenses but denial and alibi which, if established to be the truth, may tilt the scales of justice in his favor, especially when the prosecution evidence itself is weak. Let it be made clear, however, that this opinion does not necessarily signify acceptance of accused-appellants version of the incident. If complainant was indeed sexually abused, this view should not be considered a condonation of what was done, as it was indeed reprehensible. This only indicates that reasonable doubt has been created as to accused-appellants guilt. Consequently, under the prevailing judicial norm, accused-appellant is entitled to acquittal. To reiterate, there is in his favor the constitutional presumption of innocence, which has not been sufficiently dented. Rape is a very emotional word, and the natural human reactions to it are categorical: sympathy for the victim and admiration for her in publicly seeking retribution for her outrageous misfortune, and condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges must look at a rape charge without those proclivities and deal with it with extreme caution and circumspection. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused and demanding punishment for the abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, judges should equally bear in mind that their responsibility is to render justice based on the law.lxxiv[22] WHEREFORE, the assailed decision of RTC-Br. 47, Palawan and Puerto Princesa City, is REVERSED. Accused-appellant EDWIN LADRILLO is ACQUITTED of rape based on insufficiency of evidence and reasonable doubt. Consequently, his immediate release from confinement is ORDERED unless he is otherwise detained for any other lawful or valid cause. Costs de oficio. SO ORDERED. Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

SECOND DIVISION
[G.R. No. 102706. January 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEON LUMILAN, ANTONIO GARCIA and FRED ORBISO, accused-appellants. DECISION
DE LEON, JR., J.: Before us is an appeal from the Decisionlxxvii[1] dated September 20, 1990 of the Regional Trial Court (RTC) of Ilagan, Isabela, Branch 16, in Criminal Case No. 955, finding accused-appellants Leon Lumilan and Antonio Garcia guilty beyond reasonable doubt of three (3) counts of murder, two (2) counts of frustrated murder, and three (3) counts of attempted murder, under an Information charging them and accused Fred Orbisolxxvii[2] with the crime of Qualified Illegal Possession of Firearms Used in Murder, in violation of Presidential Decree (P.D.) No. 1866. The Informationlxxvii[3] reads as follows: "The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violation of Presidential Decree No. 1866, committed as follows: That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the

same, and that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong dela Cruz inflicting upon them gunshot wounds which directly caused their deaths; and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths. CONTRARY TO LAW."lxxvii[4] Upon being arraigned, appellants Leon Lumilan and Antonio Garcia entered the plea of "not guilty." The evidence of the prosecution reveals that in the early evening of October 12, 1987, Meliton Asuncion, Modesto Roque, Eliong dela Cruz, Jerry Palomo, Simeon Pacano, Benito Alonzo, Nolasco Estrada, Mario Palomo and Romeo Pacho were drinking liquor inside the house of Policarpio Palomo when it was sprayed with bullets. The successive gunshots emanated from the fence about six (6) meters away from where they were drinking, killing Meliton Asuncion, Modesto Roque, and Eliong dela Cruz and seriously wounding Jerry Palomo, Simeon Pacano, Nolasco Estrada, Mario Palomo and Romeo Pacho. Prosecution eyewitness Simeon Pacano was hit in the left leg causing him to fall on his face. When the firing ceased, he remained in the said position pretending to be dead, as he recognized accused Fred Orbiso who entered the house and checked the bodies of the victims for survivors. Pacano also claims to have also recognized appellants Leon Lumilan and Antonio Garcia who joined Orbiso inside the house. They were purportedly after a certain Ben Estrada who was the barangay captain of GayongGayong Sur, Ilagan, Isabela.lxxvii[5] Prosecution eyewitness Benito Alonzo corroborated the eyewitness account of Simeon Pacano on the shooting incident. Benito Alonzo recalled that they were drinking at the house of Policarpio Palomo when successive gunshots were fired by three persons outside the fence of Palomos house. He identified appellants Leon Lumilan and Antonio Garcia as two of the alleged assailants.lxxvii[6]

Both Lumilan and Garcia interposed the defense of alibi. Appellant Garcia testified that he was in the company of Atty. Benjamin Olalia who stood as sponsor in the wedding of the daughter of a certain Hilario Lagua in Gayong-Gayong Sur, Ilagan, Isabela. They had late lunch at the house of Hilario Lagua and stayed there until 4:00 oclock in the afternoon. Thereafter, Garcia and Atty. Olalia returned to the latters house in Osmenia, Ilagan, Isabela, together with Martin Lagua, Juan Lorenzo, Felix Aguda, Romeo Callo, Rodrigo Junio, a driver, and two other individuals. They spent the rest of the day at the house of Atty. Olalia who corroborated Garcias testimony.lxxvii[7] On the other hand, appellant Lumilan testified that he was in Alibagu, Ilagan, Isabela the whole day of October 12, 1987.lxxvii[8] After an assessment of the evidence, the trial court declared that no proof beyond reasonable doubt was adduced by the prosecution to justify the conviction of appellants for Qualified Illegal Possession of Firearms Used in Murder. However, the trial court convicted the appellants for Murder, Frustrated Murder and Attempted Murder as it ruled that: "x x x The eyewitness account of Simeon Pacano which was corroborated by Benito Alonzo can not be discounted. Both testified in a straitforward and candid manner, leaving no doubt as to their veracity. "x x x "From the evidence adduced, it is clear that the accused moved in concert, driven by a pre-conceived design that made each of them is (sic) liable in equal degree with the others for each of the three killings and for wounding five others. x x x "As heretofore alluded to, the killing and wounding of the victims constituted the crime of Murder, Frustrated Murder and Attempted Murder, qualified by treachery. x x x "In view of the eyewitness account of Pacano and Alonzo, the defense of alibi interposed by the (sic) both accused can not hold water. "What crime or crimes were committed? "1. There is no sufficient evidence to prove Illegal Possession of Firearms. 2. Relative to the death of Meliton Asuncion, Modesto Roque and Eliong dela Cruz, the crime committed was Murder. 3. Relative to the injuries sustained by Jerry Palomo and Simeon Pacano, the crime committed was Frustrated Murder while as to Romeo Pacho,

Nolasco Estrada, and Mario Palomo, the crime committed is Attempted Murder. [4]. As to the charge of Illegal Possession of Firearms, no evidence has been adduced to p[rove the charge. The guns were never presented. x x x."lxxvii[9] Accordingly, appellants were meted out the following penalties: "WHEREOF, in view of all the foregoing, the Court finds the accused Antonio Garcia and Leon Lumilan guilty beyond reasonable doubt of the crime of 1) MURDER as defined and penalized under Article 248 of the Revised Penal Code in conjunction with Article 6 of the Revised Penal Code and in view of the absence of any mitigating or aggravating circumstances attending the commission of the crime, hereby sentences Antonio Garcia and Leon Lumilan to suffer the penalty of RECLUSION PERPETUA on three counts each for the killing of Meliton Asuncion, Modesto Roque and Eliong dela Cruz; 2) FRUSTRATED MURDER and are sentenced to a prison term of 8 years and 20 days as minimum to 14 years, 10 months, and 21 days as maximum on two counts each for the wounding of Jerry Palomo and Simeon Pacano and; 3) ATTEMPTED MURDER and are sentenced to a prison term of 5 years as minimum to 8 years and 21 days as maximum on three counts each for the wounding of Nolasco Estrada, Mario Palomo and Romeo Pacho, and to indemnify the heirs of the deceased MELITON ASUNCION damages in the amount of P30,000.00, moral damages of P10,000.00 each, actual damages of P4,150.00 and lost earning of P27,000.00 for one year as farmer; the deceased MODESTO ROQUE damages of P30,000.00, moral damages of P10,000.00 each actual damages of P8,00.00 and lost earning of P10,000.00 for one year as farmer; and the deceased ELIONG DELA CRUZ, damages of P30,000.00 and moral damages of P10,000.00 each; for the wounding of SIMEON PACANO and JERRY PALOMO, moral damages of P10,000.00 each and actual damages of P11,550.00 for JERRY PALOMO; and for an attempt on the life of NOLASCO ESTRADA and MARIO PALOMO, an actual damages of P100.00 for NOLASCO ESTRADA and actual damages of P200.00 and lost earning of P 10,500.00 for one year as farmer for MARIO PALOMO, with costs. SO ORDERED"lxxvii[10] Appellants file a motion for reconsideration which was, however, denied by the trial court in its Resolutionlxxvii[11] dated October 24, 1991. Hence, the instant appeal.

Appellants Leon Lumilan and Antonio Garcia raise the following errors:
I

THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN FINDING THAT THE GUILT OF APPELLANTS WAS PROVEN BEYOND REASONABLE DOUBT.
II

THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN NOT GIVING CREDENCE TO THE EVIDENCE OF APPELLANTS. The important first question We must answer is whether or not appellants may be properly convicted of murder, frustrated murder and attempted murder under an Information that charges them with qualified illegal possession of firearms used in murder in violation of Section 1 of Presidential Decree (P.D.) No. 1866, as amendedlxxvii[12] At the time the trial court promulgated its judgment of conviction in September 1990, it had already been six (6) months since We held in People v. Tac-anlxxvii[13] that the unlawful possession of an unlicensed firearm or ammunition, whether or not homicide or murder resulted from its use, on one hand, and murder or homicide, on the other, are offenses different and separate from and independent of, each otherlxxvii[14]. While the former is punished under a special law, the latter is penalized under the Revised Penal Code. Consequently, the prosecution for one will not bar prosecution for the other, and double jeopardy will not lielxxvii[15] Tac-an was reiterated in People v. Tiozonlxxvii[16], People v. Calinglxxvii[17], People v. Jumamoylxxvii[18], People v. Deunidalxxvii[19], People v. De Gracialxxvii[20], People v. Tiongcolxxvii[21], People v. Fernandezlxxvii[22], People v. Somooclxxvii[23] and People v. Quijadalxxvii[24]. Under Sec. 7 of Rule 117 of the Revised Rules of Court, double jeopardy lies when after the accused has pleaded to the first offense charged in a valid complaint or information and he is subsequently convicted or acquitted or the case against him is dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, he is prosecuted for a second offense or any attempt to commit the same or frustration thereof or any other offense, which necessarily includes or is necessarily included in the offense charged in the former complaint or information. It cannot be said that murder or homicide necessarily includes or is necessarily included in qualified illegal possession of firearms used in murder or homicide. To state otherwise is to contradict Tac-an and its progeny of cases where We categorically ruled out the application of double jeopardy in the simultaneous prosecution for murder or

homicide and qualified illegal possession of firearms used in murder or homicide against same accused involving the same fatal act. Sec. 4, Rule 120 of the Revised Rules of Court provides that an accused may not be convicted of an offense other than that with which he is charged in the Information, unless such other offense was both established by evidence and is included in the offense charged in the Information. Since murder or homicide neither includes or is necessarily included in qualified illegal possession of firearms used in murder or homicide, the trial court may not validly convict an accused for the former crime under an Information charging the latter offense. Conversely, an accused charged in the Information with homicide or murder may not be convicted of qualified illegal possession of firearms used in murder or homicide, for the latter is not included in the former. As We have amplified in Quijada: "The unequivocal intent of the second paragraph of Section 1 of P.D. 1866 is to respect and to preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty for illegal possession of firearm where such firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in the first paragraph of Section 1reclusion temporal in its maximum period to reclusion perpetuato death, seemingly because of the accuseds manifest arrogant defiance and contempt of law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the victim. Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term penalty in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. x x x xxx

Evidently, the majority did not x x x create two offenses by dividing a single offense into two. Neither did it resort to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former. The majority has always maintained that the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form."lxxvii[25] Since Quijada, however, many changes have been introduced to Sec. 1 of P.D. No. 1866 by Republic Act (R.A.) No. 8294lxxvii[26]. Said section now reads: "Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; Provided, that no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the

firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor."lxxvii[27] Without doubt, the foregoing amendments blur the distinctions between murder and homicide, on one hand, and qualified illegal possession of firearms used in murder or homicide, which we have enunciated beginning in Tac-an and culminating in Quijada. In People v. Molinalxxvii[28], We already declared that the intent of Congress to treat as a single offense the illegal possession of firearms and the commission of murder or homicide with the use of an unlicensed firearm, is clear from the unequivocal wording of the third paragraph of Sec. 1 of P.D. No. 1866, as amended by R.A. No. 8294, which reads: "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." Where an accused uses an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be the two separate offenses of homicide or murder under the Revised Penal Code and qualified illegal possession of firearms used in homicide or murder under P.D. No. 1866. As amended by R.A. No. 8294, P.D. No. 1866 now mandates that the accused will be prosecuted only for the crime of homicide or murder with the fact of illegal possession of firearms being relegated to a mere special aggravating circumstance. To obviate any doubt, R.A. No. 8294 expressly restricts the filing of an information for illegal possession of firearms to cases where no other crime is committed. Thus, illegal possession of firearms may now be said to have taken a dual personality: in its simple form, it is an offense in itself, but when any killing attends it, illegal possession of firearms is reduced to a mere aggravating circumstance that must be alleged in the information in order to be appreciated in the determination of the criminal liability of the accused. Now We observe that the Information charging appellants with Qualified Illegal Possession of Firearms Used in Murder, violates Sec. 1 of P.D. No. 1866, as amended by R.A. No. 8294, which obliterated the now obsolete concept of qualified illegal possession of firearms or illegal possession of firearms in its aggravated form, i.e., where the penalty for illegal possession is increased to reclusion perpetua or death by the attendance of homicide or murder. In fact, qualified illegal possession of firearms, which used to be a distinct offense, no longer exists in our statute books.

We come to the conclusion, thus, that whether considered in the light of our ruling in Tac-an and its progeny of cases or in the context of the amendments introduced by R.A. No. 8294 to P.D. No. 1866, the Information charging appellants with Qualified Illegal Possession of Firearms Used in Murder, is defective, and their conviction for Murder, Frustrated Murder and Attempted Murder, is irregular. The decisive question, however, is: do such defect in the Information and the irregular conviction of appellants, invalidate the criminal proceedings had in the trial court? No. Appellants waived their right to quash the Information, and they effectively defended themselves against the charges for murder, frustrated murder and attempted murder. The Information in the instant case reads: "The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violaiton of Presidential Decree No. 1866, committed as follows: "That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the same, and that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths; and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said

Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths. CONTRARY TO LAW." While the Information specifically states that appellants are being accused of the crime of Qualified Illegal Possession of Firearms Used in Murder in violation of P.D. No. 1866, its text is so worded that it describes at least three (3) crimes: Illegal Possession of Firearms "the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the same, and" Murder "that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths; and" Frustrated/Attempted Murder "further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths." The Information is undeniably duplicitous. Sec. 13, Rule 110 of the Revised Rules of Court provides that a complaint or information must charge but one offense, except only

in cases where the law prescribes a single punishment for various offenses. Duplicity or multiplicity of, charges is a ground for a motion to quash under Sec. 2 (e), Rule 117 of the Revised Rules of Court. The accused, however, may choose not to file a motion to quash and be convicted of as many distinct charges as are alleged in the information and proved during the trial.lxxvii[29] In the same vein, failure to interpose any objection to the defect in the information constitutes waiver.lxxvii[30] In the instant case, appellants did not file any motion to quash the Information. More significantly, the bulk of the evidence that they presented during the trial was intended to disprove their complicity in the murder, frustrated murder and attempted murder of the victims. Appellants were undeniably defending themselves, not so much with the charge of qualified illegal possession in mind, as it was common knowledge even in the beginning of the trial that no weapon was retrieved from the crime scene and it was evident that the prosecution was never going to present any weapon in evidence against them, but with the full awareness that they were as well and more vigorously being prosecuted for murder, frustrated murder and attempted murder. As such, appellants cannot pretend that the Information did not fully apprise them of the charges against them as to cause them surprise in the event of conviction. The appellation of the crime charged as determined by the provincial fiscal may not exactly correspond to the actual crimes constituted by the criminal acts described in the Information to have been committed by the accused, but what controls is the description of the said criminal acts and not the technical name of the crime supplied by the provincial fiscallxxvii[31]. Since appellants defended themselves not only against the offense of Qualified Illegal Possession of Firearms Used in Murder as specified in the Information, but also, and more seriously against the crimes of Murder, Frustrated Murder and Attempted Murder as described in the body of the Information, it cannot be said that their conviction for the latter crimes is infirm and invalid. This now leads us to the main business of every criminal appeal: the determination of the liability of appellants for the crimes they have been convicted of. The appeal is meritorious. Appellants must be acquitted on the ground of reasonable doubt. The trial court found appellants guilty of three (3) counts of murder, two (2) counts of frustrated murder, and three (3) counts of attempted murder on the strength of the direct testimonies of prosecution eyewitnesses Simeon Pacano and Benito Alonzo. Simeon Pacano testified, thus: "Q And while you and the persons you mentioned were drinking, do you recall if there was anything unusual which happened? A There was, sir. That was the time when I heard a gun report.

And from what direction did the gun report emanate?

A Outside the fence, sir. On the road outside the fence or road leading to Salindingan. x x x

Q And do you know what happened to you and your companions when as you stated you heard firings? A Q I know, sir, because my companions died during that incident. Who of your companions died?

A Meliton Asuncion, Modesto Roque, and Eliong dela Cruz. Three of them, sir. Q A Q About you, did you suffer any injuries or not? Yes, sir. What part of your body was hit?

A My left leg, sir. (Witness pointed to his left leg which was already amputated). Q Besides you and three others whose names you mentioned as having died, do you know if any of your other companions suffered any injury or inmjuries? A Romeo Pacho was injured, sir. Francisco Macugay and the two brothers of Policarpio Palomo, Mario Palomo and Oly Estrada. x x x

Q And while you were in that position as you have stated face downwrd on the ground, do you know what later happened? A When I was in that position, sir, face downward, I heard no gun reports and that was the time that one of the gunmen went to the place where we were and that was the time that I was able to recognize him. Q A What did that gunman whom you recognized do, if he did anything? He turned us around, sir, to see if we were already dead.

Q A

And can you tell the Court who is the person you recognized? Fred Orbiso.

Q Will you look into the persons inside the courtroom who are seated there in the benches and tell the Court if that Fred Orbiso is here in Court or not? A He is not in Court.

Q And after you recognized Fred Orbiso as you stated, what else happened? A What I heard, sir, that other companion of the gunman said that they are looking for Boy Estrada. x x x

Q And you said that persons entered including the person you earlier recognized. Did you come to know how many persons entered? A Q A I remember, sir. How many of them? Three (3), sir.

Q Now, you recognized one of them as Fred Orbiso. About the other persons, were you able to recognize them or not? A I also recognized them, sir.

Q Can you tell the Court the name or the persons whom you recognized other than Fred Orbiso? A Manong Tony Garcia. (Witness pointed to a man seated at the third row of the benches of the Court, and when asked, he gave his name as Antonio Garcia). Q A Q About the third person? The man seated beside Antonio Garcia, sir. What is his name?

A That I know is Leon Lumilan. (Witness pointed to a man seated beside Antonio Garcia, and when asked, he gave his name as Leon Lumilan."lxxvii[32] And Benito Alonzo corroborated him in this wise: "Q What was that unusual incident that happened?

A While we were drinking inside the houdse, we heard gun reports firing at the door of the house of Poling. x x x

Q You stated that while you were inside the house of Poling Policarpio you heard gun reports. Are you in a psition to tell the Court from what direction did these gun reports come or emanate? A Q It is possible, sir. Where did the firing emanate or originate?

A Coming from the gate of the fence of Mang Poling and the other firings took place on the fence because there were three(3) persons who fired. Q How did you come to know that there were three (3) persons who fired? A I can see the flame of the firings coming from the firearms going toward us. Q Are you in a position to tell the Court if you were able to identify these three (3) persons? A Q A Yes, sir. Please name the persons? Leon Lumilan, Tony Garcia, and Fred Orbiso, sir.

Q You have mentioned as one of the persons you saw that evening as Leon Lumilan. Please look around the courtroom and tell the Court if that person is here now in the courtroom? A Yes, sir.

Q Please stand and point to the Court the persons of Leon Lumilan and that of Antonio Garcia. A That is Leon Lumilan,sir. (The witness pointing to a man in the courtroom and when asked, he gave his name as Hermenegildo Lumilan). And that is Tony Garcia. (The witness pointing to another man in the courtroom and when asked, he gave his name as Antonio Garcia)."lxxvii[33] This Court does not ordinarily interfere with the trial courts judgment on the trustworthiness of witnesses. However, when there appear on record, as in this case, facts or circumstances of real weight which might have been overlooked or misapprehended,lxxvii[34] We can not shirk from our duty to apply the law and render justice. We entertain serious doubt as to whether prosecution eyewitness Simeon Pacano did see the assailants. He testified that he was about to leave the house of Policarpio Palomo together with Romeo Pacho at around 7:00 oclock in the evening when successive gunshots emanated from the fence which was more or less six (6) meters away from the doorway of the house. He was hit in the left leg and fell to the ground on his face as he felt terrible pain that almost immobilized him. After the firing had ceased and while he was in the said position pretending to be dead , the alleged assailants entered the premises. He recognized Fred Orbiso when the latter turned the bodies of the victims to ascertain if they were already dead. He also claimed to have seen appellants enter the premiseslxxvii[35] and noticed appellant Lumilan holding an armalite rifle.lxxvii[36] A nexus of logically related circumstances, however, render Pacanos testimony as doubtful. First, it was already 7:00 oclock in the evening when the shooting incident occurred. It was dark outside the house of Policarpio Palomo where he was shot near the doorway. Inside the house, the only source of light was the illumination coming from the two improvised kerosene lamps made of bottle and wick. One was placed on the second floor while the other was placed at the groundfloor inside the house where they were drinking.lxxvii[37] Pacano admitted that he did not notice the presence of the assailants on the other side of the fence.lxxvii[38] Likewise, no evidence was shown that he actually saw the assailants while they were in the act of firing their guns. Second, the incident occurred so fast and he was admittedly very afraid. He pretended to be dead by closing his eyes and holding his breath, avoiding any sign of life, so to speak, to avoid detection by the assailants when they entered the premises and inspected the bodies for survivors.lxxvii[39] Third, after the shooting incident, Pacano was treated in the Isabela Provincial Hospital for six (6) days after which he was transferred to the National Orthopedic Hospital in

Manila. Upon his discharge on December 8, 1987, he returned to Ilagan, Isabela and since then stayed in the house of Bonifacio Uy who was the OIC Mayor of Ilagan, Isabela. On March 2I, 1988, more than five (5) months after the incident, Pacano executed his sworn statementlxxvii[40] before the Ilagan, Isabela police authorities implicating appellants and Fred Orbiso.lxxvii[41] It is true that initial reluctance to volunteer information regarding the crime due to fear of reprisal is common enough that it has been judicially declared as not affecting a witness credibility.lxxvii[42] However, Pacano can not really claim to be afraid for his life inasmuch as he was under the custody of then OIC Mayor Bonifacio Uy after the shooting incident. During the political rally of Bonifacio Uy on January 16, 1988 in Centro Ilagan, Isabela, Pacano even delivered a speech implicating Fred Orbiso, Leon Lumilan, Antonio Garcia, Juan Lorenzo and Martin Lagua, who were identified with the camp of Uys opponents as the authors of the shooting incident on October 12, 1987.lxxvii[43] We also can not subscribe reliability to the testimony of prosecution eyewitness Benito Lorenzo. First, he claims to have recognized appellants and Fred Orbiso with the help of the light of the flames coming out of their respective firearms when they were firing them.lxxvii[44] This is patently unbelievable, considering that he was drinking liquor inside the house of Policarpio Palomo when the shooting occurred. It was already 7:00 oclock in the evening and the only light there came from inside the house, not outside. Second, Benito Alonzo went to the police authorities on October 13, 1987 to give his sworn statement regarding the shooting incident the day before. In said sworn statementlxxvii[45], Alonzo categorically admitted that he did not see the assailants. However, he suspected Atty. Benjamin Olalia, whom he allegedly had a misunderstanding over the latters cow, and his men as perpetrators of the crime considering that they were the only persons who went to their barangay in GayongGayong Sur on October 12, 1987 armed with long firearms. He stated that he saw Atty. Olalia together with other persons including appellants Lumilan and Garcia at the house of Hilario Lagua at about 4:00 oclock of the same date attending the wedding of Laguas son. Upon seeing appellant Lumilan and two others whom he did not know carrying armalite rifles, he left the place and proceeded to the house of Policarpio Palomo. This isolated circumstance is certainly not sufficient to hold appellants liable for the shooting incident. In the light of all the foregoing, this Court is constrained to acquit the appellants on the ground of reasonable doubt. The constitutional presumption of innocence in favor of the appellants was not over-turned by the evidence adduced by the prosecution. WHEREFORE, the Decision of Branch 16 of the Regional Trial Court of Ilagan, Isabela in Criminal Case No. 995 is REVERSED and SET ASIDE. The accused-appellants, Leon Lumilan and Antonio Garcia, are hereby ACQUITTED on the ground that their alleged guilt was not proven beyond reasonable doubt. Costs de officio. SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

FIRST DIVISION
[G.R. Nos. 108135-36. August 14, 2000]

POTENCIANA M. EVANGELISTA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, (FIRST DIVISION), respondents. RESOLUTION
YNARES-SANTIAGO, J.: On September 30, 1999, we rendered a Decision in this case acquitting petitioner of the charge of violation of then Section 268 (4) of the National Internal Revenue Codelxxvii[1] but affirming her conviction for violation of Republic Act No. 3019, Section 3 (e),lxxvii[2] thus imposing on her an indeterminate sentence of imprisonment for six (6) years and one month as minimum to twelve (12) years as maximum, and the penalty of perpetual disqualification from public office. The basic facts are briefly restated as follows: On September 17, 1987, Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an application for tax credit in the amount of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes from January 1, 1986 to August 31, 1987. Tanduay claimed that it is a rectifier of alcohol and other spirits, which per previous ruling of the BIR is only liable to pay specific taxes and not ad valorem taxes. Upon receipt of the application, Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue Accounting Division (RAD), headed by petitioner, requesting the said office to check and verify whether the amounts claimed by Tanduay were actually paid to the BIR as ad valorem taxes. Larins memorandum was received by the Revenue Administrative Section (RAS), a subordinate office of the RAD. After making the necessary verification, the RAS prepared a certification in the form of a 1st Indorsement to the Specific Tax Office, dated September 25, 1987, which was signed by petitioner as RAD chief. The 1st Indorsement states that Tanduay made tax payments classified under Tax Numeric Code (TNC) 3011-0001 totalling P102,519,100.00 and payments

classified under TNC 0000-0000 totalling P78,182,582.00. Meanwhile, Teodoro Pareo, head of the Tax and Alcohol Division, certified to Justino Galban, Jr., Head of the Compounders, Rectifiers and Repackers Section, that Tanduay was a rectifier not liable for ad valorem tax. Pareo recommended to Larin that the application for tax credit be given due course. Hence, Larin recommended that Tanduays claim be approved, on the basis of which Deputy Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00. Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was irregular and anomalous. Based on this, Larin, Pareo, Galban and petitioner Evangelista were charged before the Sandiganbayan with violation of Section 268 (4) of the National Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and Corrupt Practices Act. Larin, Pareo and petitioner were later convicted of both crimes, while Galban was acquitted inasmuch as his only participation in the processing of Tanduays application was the preparation of the memorandum confirming that Tanduay was a rectifier. The three accused filed separate petitions for review. Pareos and Larins petitions were consolidated and, in a decision dated April 17, 1996, both were acquitted by this Court in Criminal Cases Nos. 14208 and 14209.lxxvii[3] In this petition, on the other hand, we acquitted petitioner in Criminal Case No. 14208, for violation of Section 268 (4) of the NIRC. However, we found petitioner guilty of gross negligence in issuing a certification containing TNCs which she did not know the meaning of and which, in turn, became the basis of the Bureaus grant of Tanduays application for tax credit. Thus, we affirmed petitioners conviction in Criminal Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act. Petitioner seasonably filed a Motion for Reconsideration,lxxvii[4] wherein she asserts that there was nothing false in her certification inasmuch as she did not endorse therein approval of the application for tax credit. Rather, her certification showed the contrary, namely, that Tanduay was not entitled to the tax credit since there was no proof that it paid ad valorem taxes. Petitioner also claims that she was neither afforded due process nor informed of the nature and cause of the accusation against her. She was found guilty of an offense different from that alleged in the information; consequently, she was unable to properly defend herself from the crime for which she was convicted. The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in fine that they caused undue injury to the Government and gave unwarranted benefits to Tanduay when they endorsed approval of the claim for tax credit by preparing, signing and submitting false memoranda, certification and/or official communications stating that Tanduay paid ad valorem taxes when

it was not liable for such because its products are distilled spirits on which specific taxes are paid, by reason of which false memoranda, certification and/or official communications the BIR approved the application for tax credit, thus defrauding the Government of the sum of P107,087,394.80, representing the difference between the amount claimed as tax credit and the amount of ad valorem taxes paid by Tanduay to the BIR.lxxvii[5] According to petitioner, instead of convicting her of the acts described in the Information, she was convicted of issuing the certification without identifying the kinds of tax for which the TNCs stand and without indicating whether Tanduay was really entitled to tax credit or not. The Solicitor General filed his Commentlxxvii[6] wherein he joined petitioners cause and prayed that the motion for reconsideration be granted. In hindsight, even the Solicitor Generals comment on the petition consisted of a "Manifestation and Motion in lieu of Comment,"lxxvii[7] where he recommended that petitioner be acquitted of the two charges against her. We find that the Motion for Reconsideration is well-taken. After a careful re-examination of the records of this case, it would appear that the certification made by petitioner in her 1st Indorsement was not favorable to Tanduays application for tax credit. Far from it, petitioners certification meant that there were no payments of ad valorem taxes by Tanduay in the records and hence, it was not entitled to tax credit. In other words, the certification was against the grant of Tanduays application for tax credit. It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes according to their kinds and rates, in order to facilitate the preparation of statistical and other management reports, the improvement of revenue accounting and the production of tax data essential to management planning and decision-making. These codes include TNC No. 3011-0001 for specific tax on domestic distilled spirits, TNC No. 3023-2001 for ad valorem tax on compounded liquors, and TNC No. 0000-0000 for unclassified taxes. Petitioners 1st Indorsement dated September 25, 1987 lists down the confirmation receipts covering tax payments by Tanduay for the period January 1, 1986 to August 31, 1987, during which Tanduay alleges that it made erroneous ad valorem tax payments, classified according to TNC numbers. The tax payments therein are described only as falling under TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-0000, i.e., unclassified taxes. There are no tax payments classified as falling under TNC No. 3023-2001, the code for ad valorem taxes. The import of this, simply, is that Tanduay did not make any ad valorem tax payments during the said period and is, therefore, not entitled to any tax credit.

Further, petitioner contends that she was convicted of a supposed crime not punishable by law.lxxvii[8] She was charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, which states: SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx..................................xxx..................................xxx. (e)....Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, judicial or administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. xxx..................................xxx..................................xxx. The elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they cause undue injury to any party, whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence.lxxvii[9] R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3, paragraph (e), or as aptly held in Santiago,lxxvii[10] as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.lxxvii[11] In the instant case, we find that petitioner, in issuing the certification, did not cause any undue injury to the Government. She also did not give unwarranted benefits, advantage or preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor act with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioners certification was against the interest of

Tanduay. It did not advocate the grant of its application for tax credit. The certification can even be read as a recommendation of denial of the application. Petitioner further argues that her conviction was merely based on her alleged failure to identify with certainty in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for, which acts were different from those described in the Information under which she was charged. This, she claims, violated her constitutional right to due process and to be informed of the nature and cause of the accusation against her. It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.lxxvii[12] In the case at bar, we find merit in petitioners contention that the acts for which she was convicted are different from those alleged in the Information. More importantly, as we have discussed above, petitioners act of issuing the certification did not constitute corrupt practices as defined in Section 3 (e) of R.A. 3019. Employees of the BIR were expected to know what the TNCs stand for. If they do not, there is a "Handbook of Tax Numeric Code of Revenue Sources" which they can consult. With this, petitioner should not be required to describe in words the kinds of tax for which each TNC used stands for. Precisely, the purpose of introducing the use of tax numeric codes in the Bureau was to do away with these descriptive words, in order to expedite and facilitate communications among the different divisions therein. We find that petitioners omission to indicate what kind of taxes TNC Nos. 3011-0001 and 0000-0000 stand for was not a criminal act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it. On the whole, therefore, we find that petitioner was not guilty of any criminal offense. The prosecutions evidence failed to establish that petitioner committed the acts described in the Information which constitute corrupt practices. Her conviction must, therefore, be set aside. For conviction must rest no less than on hard evidence showing that the accused, with moral certainty, is guilty of the crime charged. Short of these constitutional mandate and statutory safeguard --that a person is presumed innocent until the contrary is proved --- the Court is then left without discretion and is duty bound to render a judgment of acquittal.lxxvii[13] WHEREFORE, the Motion for Reconsideration is GRANTED. This Courts Decision dated September 30, 1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of the charge against her.

SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

FIRST DIVISION [G.R. Nos. 137051-52. May 30, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE VALDESANCHO Y DELMO, accused-appellant. DECISION PUNO, J.: This Court has many times declared that the date of commission of the rape is not an essential element of the crime.lxxvii[1] While this is true in the cases at bar, the dates when the rapes were committed are nonetheless essential to the accused Vicente Valdesanchos defense of alibi. Thus, for failure of the prosecution to allege in the information and prove during trial the correct dates of the rapes allegedly committed against the victim, Elvie Basco, the accused will be let off the hook on due process considerations. On March 27, 1996, two informations were filed against the accused Valdesancho. In Criminal Case No. S-1964, the information reads, viz: "That on or about August 15, 1994 at Sitio Mahabang Parang, Barangay Nanguma, Municipality of Mabitac, Province of Laguna and within the jurisdiction of this Honorable Court, the abovenamed accused with lewd designs and by means of force and violence, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one Elvie B. Basco, 15 years old, single (,) against her will and consent and to her damage and prejudice. CONTRARY TO LAW."lxxvii[2] In Criminal Case No. S-1965, the information reads, viz: "That on or about the evening of August 16, 1994 at Sitio Mahabang Parang, Barangay Nanguma, Municipality of Mabitac, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs and by means of force and

violence, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one Elvie B. Basco, 15 years of age, single (,) against her will and consent and to her damage and prejudice. CONTRARY TO LAW."lxxvii[3] The prosecution evidence shows that the accused Valdesancho is the husband of Elvie's sister, Erlinda Valdesancho. Elvie and her two younger brothers, Erick and Eddie, lived with their brother in the mountains of Barangay Minayutan, Famy, Laguna. In 1994, however, Elvie's mother, Leonida Basco, requested the spouses Erlinda and the accused Valdesancho to let Elvie, Erick and Eddie live in their house in San Antonio, Mabitac, Laguna. The three were going to study in Barangay San Antonio. They resided with the accused from June 24, 1994 to June 1995. Elvie was then fourteen years old and in Grade 1 at the Barangay San Antonio School.lxxvii[4] The first incident of rape happened in the early morning of August 15, 1994. Elvie was in the house of the accused Valdesancho while Erlinda was then in Manila. The accused called Elvie into his room and ordered her to powder his back. After a while, Elvie asked the accused to excuse her because she had to cook breakfast. The accused held her and refused to release her. He tied her hands at her back and laid her on the bed. He removed Elvie's shorts and panty and then took off his pants. Elvie pleaded with the accused not to violate her. She tried to keep her legs together, but the accused forcibly spread her legs. He succeeded in having carnal knowledge of Elvie. The painful experience caused her to bleed. Having satisfied his lust, the accused stood up and put on his clothes. He untied Elvie's hands and she dressed up. The accused warned her not to reveal the dastardly act to anybody, otherwise he would kill her and her family. All this time, Elvie's brothers were sleeping in the other room.lxxvii[5] The second incident of rape happened in the evening of August 16, 1994. Elvie was in the house of the accused Valdesancho studying. He called Elvie to his room and ordered her to look under the bed for a chick. She did so, and while she was on her way out of the room, the accused blocked her path. The accused laid her on the bed, removed her shorts and panty, kissed her on the cheeks and lips, and again had carnal knowledge of her against her will. She hurt. After succumbing to his beastly instinct, the accused put on his brief and pants. Elvie also put on her clothes. Again, the accused threatened Elvie not to report the incident to anybody, otherwise he would kill her and her family. Elvie kept her harrowing experience to herself for fear that the accused would carry out his threat.lxxvii[6] In September 1995, however, when Elvie was already residing with her brother and mother in Barangay Minayutan, Famy, Laguna, she reported the rape incidents to her Tiya Soling. She was fearful that the accused might rape her again. Although she no longer lived with the accused, the latter stayed in their (Elvie's) house in Barangay Minayutan for less than a month in September, 1995 and he gave her malicious looks. Tiya Soling reported the rape incidents to Elvie's mother who verified the story from Elvie herself. On January 15, 1996, Elvie executed a sworn statement at the Mabitac Police Station narrating the rape incidents.lxxvii[7]

Elvie's mother, Leonida Basco, testified that in 1994, she requested her three children, Elvie, Erick and Eddie to live with her daughter, Erlinda, and the accused Valdesancho in Mahabang Parang. Elvie was then fourteen years old. Consistent with Elvie's testimony, Leonida declared that it was Soledad Nero (Elvie's Tiya Soling) who first told her that the accused raped Elvie. Elvie confirmed to her that she had been raped twice by the accused in August 1994. Leonida did not immediately take action on the matter as the accused was her son-in-law. But after she was convinced of Elvie's story, she accompanied her to the police station in the Municipal Building of Mabitac. Upon advice by a certain Mayor Carpio, Elvie was medically examined. Thereafter, they filed a criminal complaint for rape against the accused.lxxvii[8] She averred that she did not have any misunderstanding with Erlinda and the accused Valdesancho.lxxvii[9] Dra. Nimfa Pastrana, Medico-Legal Officer at the General Cailles Memorial Hospital, examined Elvie on January 13, 1996. On January 19, 1996, she issued a medical certificate stating her findings, viz: "Old hymenal incomplete lacerations noted at 12, 5 and 4 o'clock position. . . Old hymenal complete lacerations at 3 and 7 o'clock positions."lxxvii[10] She opined that the lacerations could have been caused by a man's private part or fingers inserted in the vagina months or years before she examined Elvie. Elvie told her she had been raped. Dra. Pastrana noted in a logbook that according to Elvie, the rape took place on August 4, 1994.lxxvii[11] Erlinda Valdesancho, wife of the accused, testified for the defense. She declared that on August 15 and 16, 1994, she was in their house at Mahabang Parang, San Antonio, Mabitac, Laguna. Her husband was not home on those days because he was in J. Rizal St., Sta. Maria, Laguna helping his friends cook food for the town fiesta. The distance between that place and their house is about five kilometers. Erlinda was then with her brothers Erick and Eddie and her sister Elvie. On August 15, 1994, Erlinda awoke at about 3:00 or 4:00 a.m. She woke up Elvie, Erick, and Eddie to get ready for school. The three children went to school at San Antonio, Mabitac, Laguna, and nothing unusual happened that date. Elvie was then thirteen nearing fourteen years old and in Grade 1. The whole day of August 15, 1994, Erlinda made candies, crocheted, and cleaned the house. On August 16, 1994, Erlinda testified that she woke up at about 5:00 a.m. In the subsequent part of her testimony, however, Erlinda surprisingly said that on August 16, 1994, she did not see Elvie. Allegedly, Elvie no longer lived with her and the accused by the summer vacation of 1994. It was in 1993 that Elvie, Erick, and Eddie were entrusted to her and her husband, accused Valdesancho. They shouldered the school expenses of the three who went to San Antonio Elementary School. The siblings stayed with them until summer vacation in 1994. Thereafter, they were brought to Barangay Minayutan, Famy, Laguna, then to Saksak, Sta. Maria, Laguna, and finally to Ilog Putol, Siniloan, Laguna.lxxvii[12] Erlinda further testified that her father died on July 4, 1991. Her mother, Leonida, did not remarry but lived in with a lesbian named Melita Flores. This was the source of animosity

between them. On January 4, 1995, prior to the filing of the instant rape cases, her mother berated her. Her mother was mad because she advised her to separate from Melita. The latter had children of her own and their relationship was an embarrassment. Erlinda knew that Melita was a lesbian because the latter left her husband for Leonida.lxxvii[13] On additional direct examination, about a month after her initial testimony where she stated that Elvie lived with them on August 15 and 16, 1994, Erlinda testified that Elvie could not have possibly been raped by her husband. She explained that Elvie was no longer living with them at the time of the alleged rape incidents.lxxvii[14] By then, Elvie was already residing with her brothers Elmer and Edgar in Barangay Minayutan, Famy, Laguna. Elvie was then studying in Barangay Minayutan and was in Grade 2. The school was about twelve meters from Elmer's residence and 150 meters from the house of Edgar. To buttress her claim, she presented to the court a certification stating that Elvie Basco studied and finished Grade 1 from 1993 to 1994 at the Paaralang Elementarya ng San Antonio, Mabitac, Laguna. The certification was signed by Victoria Cuevas, a Grade 1 and 2 teacher and Ma. Rona Aguja, the Gurong Namamahala.lxxvii[15] She also presented a certification dated February 12, 1997, stating that Elvie Basco studied Grade 2 at Minayutan Elementary School in Barangay Minayutan, Famy, Laguna during the school year 1994-1995. This was signed by a certain Edgardo Planillo.lxxvii[16] Erlinda also presented a certification dated February 25, 1997, stating that Elvie attended her classes in Minayutan Elementary School from August 1 to 31, 1994. It was signed by Elvie's teacher, Mercedita Ramos.lxxvii[17] Erlinda denied going to Manila occassionally during the year Elvie lived with her and her husband. She also testified that she and her husband did not have any misunderstanding with Elvie before the latter lodged a complaint for rape against the accused.lxxvii[18] Aquilino Agustin also testified for the accused. He is a retired PNP member and farmer residing in Sta. Maria, Laguna. He owned a riceland in Sitio Mahabang Parang, Barangay San Antonio, Mabitac, Laguna and had known the accused Valdesancho for about five years. On August 14, 1994, Agustin went to the house of the accused and asked tha latter to help him butcher a pig for the town fiesta the next day. The accused went to Sta. Maria before lunch time on August 15, 1994. He helped butcher a pig and stayed there the whole day. The following day, or on August 16, 1994, the accused again went to Agustin's house. He arrived at about 6:00 in the morning and helped cook food. He sliced meat and other ingredients. He left Agustin's house early morning the following day. On cross-examination, however, Agustin testified that the accused left his house in the afternoon of August 16, 1994, and not the following day. A year after or on August 15 and 16, 1995, the accused again helped prepare food for the town fiesta. In 1996, Agustin asked his neighbors, among whom were his godchildren in marriage, to help prepare the food.lxxvii[19] Mercedita Ramos likewise took the witness stand for the accused. She is a teacher at the Famy Central Elementary School. Previously, she taught in Barangay Minayutan, Famy, Laguna beginning school year 1994-1995. Elvie Basco was her pupil in Grade 2 from June 6, 1994 to March, 1995. She identified the certification she issued on February 25, 1997 upon request of

Erlinda Valdesancho. It stated that Elvie attended classes in Minayutan Elementary School on August 1 to 31, 1994. She based her certification on Form 18-E which was in the custody of Mr. Edgardo Planillo, the District Supervisor of the Department of Education, Culture and Sports in Famy, Laguna. Form 18-E does not contain the exact month of attendance, but it states that Erlinda was absent for only one (1) day during school year 1994-1995.lxxvii[20] Edgardo Planillo also testified for the accused. At the time he testified on May 21, 1997, he had been the District Supervisor for only ten months. He identified the certification he issued to Erlinda Valdesancho based on Form 18-E-1 which was submitted prior to his assumption of office. It stated that during the school year 1994-95, Elvie Basco was in Grade 2 at the Minayutan Barrio School.lxxvii[21] The accused Valdesancho then took the witness stand. He testified that in 1993, Elvie Basco's mother entrusted Elvie to him and his wife to study. Elvie was then in Grade 1 at the San Antonio Elementary School in Mabitac, Laguna. Subsequently, she studied Grade 2 in Minayutan, Famy, Laguna. The accused denied the rape charges leveled against him. He contends that Elvie, with the assistance of her mother Leonida, filed the instant cases against him because of the serious quarrel between his wife, Erlinda, and Leonida spurred by Leonida's relationship with a lesbian named Melita Flores. He knew that Melita was a lesbian because Leonida and Melita lived for one month in his house in 1995. Melita herself admitted to him that she was a lesbian. Leonida told him one time, "Darating ang araw luluha ng dugo ang aking asawa at gagapang kami parang ahas sa hirap."lxxvii[22] He alleged another reason why Leonida harbored ill feelings against him.
Allegedly, Leonida burned his house. This prompted him to file a case against Leonida. In 1991, he likewise filed a complaint against Leonida's husband, Carlito Basco, for the burning of the house of the accused's employer. The accused, however, declared he had no misunderstanding or quarrel with Elvie.

On August 15, 1994, the accused alleged he was in Sta. Maria, helping Ka Usting (Aquilino Agustin) prepare for the town fiesta. Sta. Maria is about two kilometers away from Mabitac where the accused lives. He arrived in Agustin's house at 5:00 in the morning and stayed there up to 5:00 in the afternoon. He spent the night at the house of his compadre, Nestor Flores. On August 16, 1994, he went home. His wife was at home. He stayed in his house up to the evening. He averred that on August 15 and 16, 1994, Elvie was no longer living with them. She was staying in Minayutan and was in Grade 2 at Barangay Minayutan, about 30 kilometers from Mabitac. The following year's fiesta or on August 15 and 16, 1995, the accused was also in Sta. Maria helping prepare for the town fiesta. He could not remember, however, where he was on August 14, 15, and 16, 1993 nor on August 15 and 16, 1992. The trial court upheld the prosecution's story. It convicted the accused, viz: "WHEREFORE, premises considered, judgment is hereby rendered finding accused VICENTE VALDESANCHO y DELMO guilty beyond reasonable doubt of the crime of "RAPE" committed against private complainant Elvie Basco, in the two (2) informations for rape, hereby sentences him to two (2) Reclusion Perpetua; to pay the victim the sum of P100,000.00 for moral damages in the two (2) cases; and to pay the cost.

Accused Vicente Valdesancho y Delmo being a detained prisoner, it is hereby ordered that he be credited with the full length of his preventive imprisonment if he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoner, otherwise, he shall be credited with 4/5 of the period he had undergone preventive imprisonment, in accordance with Art. 29 of the Revised Penal Code as amended."lxxvii[23] Hence, this appeal with the following assignment of errors: "I. The trial court erred in giving full weight and credence to the version of the prosecution and in disregarding the version of the defense. II. The lower court erred in convicting the accused-appellant on two (2) counts of rape alleged in the information to have been committed on the 15th and 16th of August 1994 whereas the decision stated that the two (2) counts of rape were committed on the 15th and 16th of August 1993, thus depriving the accused of the right to be informed of the nature and cause of accusation against him." In the cases at bar, the informations charged that the crimes were committed on August 15 and 16, 1994. The entire evidence of the prosecution, including the testimony of Elvie, showed that Elvie was allegedly raped by the accused on said dates while living in the latters house. Contrary to the prosecutions evidence, the defense convincingly showed that in August 1994, Elvie was already in Grade 2 at the Barangay Minayutan Elementary School and living with her brothers in Minayutan. Nonetheless, the trial court convicted the accused of two counts of rape committed on August 15 and 16, 1993, instead of August 15 and 16, 1994 as alleged in the information and in the prosecution's evidence. It explained: "In the informations, the incidents happened allegedly on August 15, and 16, 1994. Considering as adverted to that private complainant is of tender age, only fourteen (14) years old, and her educational attainment, only Grade I, she could not possibly remember the dates when she was raped, and these cases were filed two (2) years thereafter. But as adverted to, she is certain that she was sexually molested when she was residing in the house of accused located at Sitio Mahabang Parang, Brgy. Nanguma, Mabitac, Laguna, and studying at Brgy. San Antonio Elementary School, Mabitac, Laguna, that is in the year 1993."lxxvii[24] The accused cries foul over his conviction for two counts of rape committed on August 15 and 16, 1993 when the informations filed against him alleged August 15 and 16, 1994 as the dates when the crimes were committed. He contends that he was denied due process to defend himself. His whole defense of alibi centered around August 15 and 16, 1994, the alleged dates of the rape incidents.lxxvii[25]

We agree. Article III, Section 14 of the 1987 Constitution mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of accusation against him and shall enjoy the right to be heard by himself and counsel. Similarly, the Revised Rules of Criminal Procedure, as amended, which took effect on December 1, 2000, provides that in all criminal prosecutions, it is the right of the accused to be informed of the nature and cause of the accusation against him. To convict an accused for an offense not alleged in the complaint or information violates such right.lxxvii[26] The rationale behind informing the accused in writing of the charges against him was explained by this Court as early as 1904 in U.S. v. Karelsen,lxxvii[27] viz: "First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had (United States vs. Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstances necessary to constitute the crime charged."lxxvii[28] In the cases at bar, the informations in Criminal Case No. S-1964 and Criminal Case No. S-1965 charged the accused with rape committed against Elvie Basco on August 15, 1994 and August 16, 1994, respectively. All evidence of the prosecution tried to prove that the victim was raped by the accused on these dates. The accused interposed the defense of alibi. He proved that on these dates he was in the town of Sta. Maria helping a friend butcher a pig for the town fiesta. He also proved that on said dates, the victim, Elvie, was no longer living with them in Mabitac, Laguna. She already transferred to Minayutan, Famy, Laguna where she was in Grade 2. Despite the parties evidence, the trial court convicted the accused for allegedly raping Elvie on August 15 and 16, 1993. Without doubt, the accused was not given any chance to prove where he was on August 15 and 16, 1993. What he did was to prove where he was on August 15 and 16, 1994 for the informations charged him with rapes on those specific dates. He had no opportunity to defend himself on the rapes allegedly committed on the earlier dates. This is plain denial of due process. WHEREFORE, the impugned decision is REVERSED. The accused Vicente Valdesancho y Delmo is ACQUITTED of the two charges of rape leveled against him in Criminal Cases No. S1964 and S-1965. SO ORDERED. Davide, Jr., C.J., (Chairman), Pardo, and Ynares-Santiago, JJ., concur.

Kapunan, J., on leave.

EN BANC [G.R. Nos. 139225-28. May 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALCALDE y PASCASIO, accused-appellant. DECISION
DAVIDE, JR., C.J.:

For automatic reviewlxxvii[1] is the Consolidated Judgmentlxxvii[2] of 30 April 1999 of the Regional Trial Court, Branch 28, Santa Cruz, Laguna, in Criminal Cases Nos. SC-6651 to SC6654, convicting accused-appellant Arnel Alcalde y Pascasio (hereafter ARNEL) of two counts of parricide committed against his wife WENDY and his 11-month-old son ARWIN and two counts of frustrated parricide committed against his two daughters BERNALYN and ERICA. On 24 September 1997, the Office of the Provincial Prosecutor of Laguna filed before the trial court two informations for parricide and two informations for frustrated parricide. Upon his arraignment on 22 October 1997,lxxvii[3] ARNEL, who was assisted by a counsel de parte, refused to speak. Pursuant to Section 1(c) of Rule 116 of the Rules of Court, the trial court entered for him a plea of not guilty in each of the cases. On the same occasion, the defense waived pre-trial. The cases were then consolidated and jointly tried. The witnesses initially presented by the prosecution were SPO2 Nicanor Avendao, Dr. Nilo Pempengco, Dr. June Mendoza, and Salud Suillan. SPO2 Nicanor Avendao testified that upon his arrival at the house of ARNEL in Barangay Bubukal, Santa Cruz, Laguna, at about 1:00 p.m. of 29 August 1997, he found the house in disarray. He saw a naked woman lying dead on a wooden bed with both hands and feet tied from behind, as well as a dead child on a crib. The dead woman was WENDY, and the dead child was ARWIN. Some clothes and a puppy were also burned. Avendao and his team recovered a piece of steel near WENDYs face and empty bottles of gin and Royal Tru-Orange on top of the cabinet. They took pictures of the dead bodies and caused the entry of the incident in the police blotter. He learned later that ARNEL's two daughters, BERNALYN and ERICA, had been rushed to the provincial hospital for treatment before he and his team arrived at the crime scene.lxxvii[4]

Dr. Nilo Pempengco, the physician who conducted an examination of the dead bodies of WENDY and ARWIN, testified that the cause of their death was cardio-respiratory arrest due to severe traumatic head injury and multiple contusion hematoma.lxxvii[5] The injuries could have been caused by any hard and blunt object like a piece of metal, piece of wood, or even a hand. Dr. June Mendoza, a physician-surgeon of the Laguna Provincial Hospital, testified that he treated BERNALYN and ERIKA on 29 August 1997. He found in BERNALYN multiple contusion hematoma,lxxvii[6] which could have been inflicted by a blunt and hard object and by a rope but which would not have caused immediate death even if not properly treated.lxxvii[7] He found in ERIKA contusions and lacerated and incised wounds,lxxvii[8] which would not have caused death even if no immediate medical attention had been given.lxxvii[9] Salud Suillan, WENDYs mother, declared that WENDY and ARNEL lived with her at her residence in Banca-Banca, Victoria, Laguna, for nine months after their marriage and that during their sojourn at her house she noticed ARNELs uncontrollable jealousy. ARNEL used drugs, which frequently caused his tantrums.lxxvii[10] When asked whether she knew who killed WENDY and ARWIN, Salud answered that according to Jose Alcalde, ARNEL was the killer.lxxvii[11] On cross-examination, she admitted that ARNEL had been continuously treated at the University of Sto. Tomas Hospital in Manila from 1993 up to 1997. However, she did not know whether he was treated for a mental illness.lxxvii[12] After the prosecution rested its case and formally offered its exhibits, the defense filed a motion for leave of court to file a demurrer to evidence,lxxvii[13] which was granted. On 27 April 1998, the defense, through counsel de parte Atty. Renato B. Vasquez, Sr., filed a demurrer to evidencelxxvii[14] based on the following grounds: (a) The accused has not been adequately informed of the nature and cause of accusation against him during the arraignment; (b) Not an iota of incriminatory evidence, direct or circumstantial, has been adduced and presented by the prosecution during the trial; and (c) The constitutional presumption of innocence of the accused has not been overcome by any evidence or contrary presumption. In support thereof, the defense alleged that ARNEL was afflicted with psychosis and could not comprehend, and that despite his strange behavior characterized by his deafening silence, motionless appearance, and single direction blank stare the trial court insisted on his arraignment. Thus, ARNEL was not adequately apprised of the nature and cause of the accusation against him. Moreover, no concrete evidence pointing to ARNEL as the culprit was presented by the prosecution. Hence, the constitutional presumption of innocence of an accused prevails. In its Order of 22 May 1998,lxxvii[15] the trial court denied the demurrer to evidence and set the dates for the presentation of the evidence for the defense. However, in a Manifestation dated 4

June 1998,lxxvii[16] Atty. Vasquez informed the court that the defense opted not to present evidence for ARNELs defense, as the prosecution failed to prove his guilt beyond reasonable doubt. On 16 July 1998, the prosecution filed its Commentlxxvii[17] on the manifestation and prayed for the re-opening of the presentation of prosecutions evidence for the purpose of proving that ARNEL was at the scene of the crime. In its Order of 21 August 1998,lxxvii[18] the trial court allowed the prosecution to present additional evidence. The defense questioned the propriety of the said order before the Court of Appeals in a petition for certiorari. In its resolution of 17 December 1998,lxxvii[19] the Court of Appeals dismissed the petition for non-compliance with Section 1, Rule 65, Rules of Court, and for the further reason that the order sought to be set aside was interlocutory in character and could not, therefore, be the subject of a petition for certiorari; and that even granting that the exception applied, the trial court committed no capriciousness in issuing the assailed order. The prosecution thereafter presented SPO1 Neptali de la Cruz and Jose Alcalde as additional witnesses. SPO1 Neptali dela Cruz, testified that at around 1:30 p.m. of 29 August 1997, while he was on duty at the Police Assistance Center Base, Barangay Bubukal, Santa Cruz, Laguna, he received a report of a killing incident at the house of ARNEL. He proceeded to the place with SPO2 Edilberto Apuada. There, he saw ARNEL seated outside the house while being held by two persons. He and Apuada entered the house and saw the dead bodies of WENDY and ARWIN. He noticed that ARNEL was motionless and silent when the dead bodies were being brought out of their house.lxxvii[20] Jose Alcalde, father of ARNEL, testified that at 1:30 p.m. of 29 August 1997 he heard the news that ARNELs house was burning. Along with one Martin, his carpenter, Jose proceeded to ARNELs house. Upon entering the house, he saw ARNEL with raging eyes, holding a kitchen knife and a hammer. Jose tried to pacify and convince ARNEL to surrender his weapons to him. Joses effort proved futile. It was only upon the intervention of ARNELs two brothers that ARNEL was successfully disarmed. Jose left ARNEL to the care of his brothers because he had to bring to the hospital the almost lifeless bodies of BERNALYN and ERIKA. lxxvii[21] After the prosecution finally rested its case, the trial court set on 8 October 1998 the presentation of the evidence for the defense. However, on 7 October 1998, counsel for ARNEL, Atty. Vasquez Sr., informed the trial court of his inability to communicate with ARNEL because of ARNELs out of touch of the world behavior. Atty. Vasquez manifested that the defense was constrained to submit the case for decision.lxxvii[22] In its decision of 30 April 1999,lxxvii[23] the trial court found that the prosecutions evidence has duly established a succession of circumstantial evidence that leads to the inescapable conclusion that ARNEL committed the crimes charged. It gave due credence to the testimony of Jose Alcalde. It found significant the fact that right from the start of the investigation of the incident

up to the time the cases were submitted for decision, no other person was suspected of having anything to do with the gruesome family massacre. The trial court added that ARNELs culpability was further bolstered by his failure to offer any evidence for his defense despite ample opportunity to do so. In determining the appropriate penalty in Criminal Case Nos. SC-6651 and SC-6654 for the killing of WENDY and ARWIN, the trial court applied Article 246 of the Revised Penal Code, as amended by Section 5, R.A. No. 7659, which reads: ART. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Taking into account the two aggravating circumstances of treachery and abuse of superior strength, it imposed the death penalty in both cases. As for Criminal Cases Nos. SC-6652 and SC-6653, the trial court found ARNEL guilty of the crime of frustrated parricide after considering the severity of the wounds suffered by his daughters BERNALYN and ERIKA, which clearly showed his intent to kill them. In the Appellants Brief, the defense, through a new counsel, Atty. Eduardo A. Cagandahan, states that the trial court committed the following errors: 1. in proceeding with the case against the accused who had not been duly informed of the nature and cause of accusation against him during the arraignment or trial. 2. when it failed to have the accused medically examined to ascertain whether he was in possession of his mental faculties when he allegedly committed the acts imputed to him, or that he was suffering from mental aberration at the time the crime was committed, and when he entered the plea and during the trial on the merits despite the observation of the court a quo, as contained in the order dated August 21, 1998. In support thereof, the defense assails the validity of ARNELs arraignment, and asserts that with ARNELs questionable mental state he could not have understood the proceedings. It then cites the trial courts Order dated 21 August 1998, wherein the trial court made its own observation regarding ARNELs strange behavior at the time of arraignment. The Order reads in part: Finally, it is worthwhile to recall that when the accused was arraigned in all the four cases, the Court was constrained to enter for him a PLEA OF NOT GUILTY in all said cases as the accused acted strangely in a manner as if he [was] out of touch with the world and would not utter any word. But since the defense opted not to present any evidence, no defense whatsoever could be entertained for the accused. Furthermore, the defense calls our attention to the Medical Certificatelxxvii[24] issued by Dr. Ramon S. Javier, M.D., FPPA, FPNA, of Sto. Tomas University Hospital, stating that ARNEL

was first brought to his clinic on 3 December 1993, and was confined at the psychiatric ward several times for bipolar mood disorder (manic-depressive psychosis). His last confinement in that hospital was from 12 to 24 February 1997, or six months before the family massacre. The medical abstractlxxvii[25] issued by Dr. Ma. Corazon S. Alvarez, which was also submitted by the defense, likewise shows the several hospitalizations of ARNEL while in detention at the Bureau of Corrections, Muntinlupa City, and the finding that ARNEL was suffering from bipolar mood disorder with psychotic features. The defense then prays for ARNELs acquittal or, in the alternative, the remand of the case to the lower court for further proceedings and for the determination of ARNELs mental state. In the Brief for the Appellee, the Office of the Solicitor General (OSG) maintains that under Section 11, paragraph (a), Rule 116 of the Rules of Criminal Procedure, suspension of arraignment on the ground that accused appears to be suffering from an unsound mental condition, which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto, may be granted upon motion by the party. In these cases neither accused nor his counsel de parte asked for the suspension of the arraignment on that ground. Such failure was tantamount to an admission that ARNEL was not suffering from any mental disorder or to a waiver of the right to move for suspension of arraignment. Besides, for the defense of insanity to prosper, it must be proved that the accused was insane at the very moment when the crime was committed. The trial court was not duty-bound to initiate the determination of ARNELs alleged mental incapacity. Finally, the OSG agrees with the trial court that the chain of circumstances in these cases proved beyond reasonable doubt that ARNEL committed the crimes charged. It, however, submits that ARNEL should be meted the penalty of reclusion perpetua only, instead of death, in Criminal Cases Nos. SC-6651 and SC-6654 because the aggravating circumstances of treachery and abuse of superior strength cannot be appreciated against ARNEL. It agreed with the trial court insofar as Criminal Cases Nos. SC-6652 and SC-6653 are concerned. After a painstaking scrutiny of the records of these cases, we rule for ARNEL. We cannot subscribe to the claim of the OSG that the failure of ARNELs counsel de parte to ask for the suspension of his arraignment on the ground that ARNEL was suffering from an unsound mental health amounted to a waiver of such right. It must be recalled that ARNELs arraignment was on 22 October 1997. At the time, what was applicable was Section 12(a) of Rule 116 of the 1985 Rules on Criminal Procedure, which reads: SEC. 12. Suspension of arraignment. The arraignment shall be suspended, if at the time thereof: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose.

Nowhere in that Section was it required that a motion by the accused be filed for the suspension of arraignment. Hence, the absence of such motion could not be considered a waiver of the right to a suspension of arraignment. True, Section 11(a) of the Revised Rules of Criminal Procedure, which was invoked by the OSG, requires a motion by the proper party, thus: SEC. 11. Suspension of arraignment. -- Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. [Emphasis supplied]. This new requirement of motion by the proper party could not be applied to these cases because the Revised Rules of Criminal Procedure, which prescribes such requirement, took effect only on 1 December 2000. Besides, a waiver must be knowingly and intelligently made by the person possessing such right.lxxvii[26] Unfortunately, ARNEL was apparently deprived of such mental faculties. Thus, no waiver, impliedly or expressly, could have been made by ARNEL at the time of his arraignment by reason of his mental condition.lxxvii[27] Settled is the rule that when a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter. If it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered.lxxvii[28] Moreover, the aforementioned Section 12(a) of Rule 116 mandates the suspension of the arraignment and the mental examination of the accused should it appear that he is of unsound mind. In these cases, the trial court should have ascertained ARNELs mental state instead of proceeding with his arraignment and its subsequent proceedings. The following were enough for the trial court to take seriously the issue of whether ARNEL was in full possession of his mental faculties at the time of the arraignment and trial: (a) At his arraignment, the trial court observed that ARNEL acted strangely in a manner as if he [was] out of touch with the world and would not utter any word.lxxvii[29] (b) In its Motion and Waiver of Presence [of the Accused] During the Trial,lxxvii[30] the defense expressed its apprehension that ARNEL might explode into another violence while in transit to attend his trial or while in the courtroom. (c) ARNELs continued strange behavior characterized by his deafening silence, motionless behavior and blank stares was raised as an issue by the defense in its demurrer to evidence.lxxvii[31]

(d) The persistent out of touch with the world behavior of ARNEL, which prevented his counsel from effectively communicating with him for his defense was pointed out in the Manifestation and Motion submitted by the defense.lxxvii[32] (e) ARNELs questionable mental state was reiterated by the defense in its memorandum.lxxvii[33] The physical and outward manifestations of ARNEL at the time of his arraignment, which were brought to the attention of the trial court, indicated substantial demonstration of a mental disorder that rendered ARNEL unfit to be arraigned or tried in the four criminal cases at bar. The trial court failed to exercise utmost circumspection in assuming that ARNEL was in full possession of his mental faculties and understood the proceedings against him. The constitutional right to be informed of the nature and cause of the accusation against him under the Bill of Rightslxxvii[34] carries with it the correlative obligation to effectively convey to the accused the information to enable him to effectively prepare for his defense.lxxvii[35] At the bottom is the issue of fair trial. While not every aberration of the mind or exhibition of mental deficiency on the part of the accused is sufficient to justify suspension of the proceedings, the trial court must be fully satisfied that the accused would have a fair trial with the assistance the law secures or gives.lxxvii[36] Under the circumstances in these cases, the trial court gravely failed in this regard. While at first glance, the remarkable enthusiasm by which the trial court adjudicated these cases should earn emulation, it however cannot be countenanced considering its disregard of the constitutional rights of ARNEL. Courts should be mindful of their responsibility to see to it that the paramount interests of justice are not sacrificed for the sake of speed and efficiency.lxxvii[37] It is also worthy to mention Atty. Vasquezs apparent lackadaisical attitude in these cases which amounted to disregard of the strict demands of fidelity to his oath as a lawyer, duty to his client, and responsibility as an officer of the court.lxxvii[38] He knew, or ought to know, from the very beginning that ARNEL was hospitalized for mental disorder. The latters strange appearance at his arraignment was enough reason for a counsel to ask for the deferment of arraignment and for leave of court to have ARNEL subjected to psychological examination and psychiatric evaluation. Then, too, he should have, at the very least, presented the doctor who treated ARNEL in the University of Santo Tomas Hospital for his recurring mental illness. Irrefutably, Atty. Vasquezs behavior in the defense of ARNEL fell short of the demanding duty to present every defense that the law permits to the end that no person may be deprived of life or liberty but by due process of law.lxxvii[39] Even if Atty. Vasquezs zeal for ARNELs cause fell short of that required of him, that is, for him to have asked the court to suspend the arraignment of ARNEL on the ground of the latters unsound mental health, the greater demand of due process overwhelms such inadequate zeal. Solemn and inflexible is the constitutional behest that no person shall be deprived of life, liberty or property without due process of law. Absolute heedfulness of this constitutional injunction is

most pronounced in criminal cases where the accused is in the gravest jeopardy of losing his life. It constantly behooves every court to proceed with utmost care in each of such cases before it, and nothing can be more demanding of judges in that respect than when the possible punishment would be in its severest form like death -- a penalty that, once carried out, is irreversible and irreparable.lxxvii[40] In light of the foregoing fatal infirmities committed by the trial court, as well as by the defense counsel, we have no other alternative except to set aside the joint decision in question and remand the cases to the trial court for further proceedings to allow the defense to present evidence to prove that ARNEL was either unfit for arraignment and trial or was insane at the time the crimes charged were committed. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Consolidated Judgment of the Regional Trial Court, Branch 28, Santa Cruz, Laguna, in Criminal Cases Nos. SC-6651 to SC6654 promulgated on 30 April 1999 is hereby SET ASIDE. These cases are ordered REMANDED to the trial court for further and appropriate proceedings in accordance with the foregoing observations. Costs de oficio. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

EN BANC [G.R. No. 131804. February 26, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO OSTIA @ ROBERT, accused-appellant. DECISION CALLEJO, SR., J.: The Spouses Ponciano Onato and Edita Onato resided with their four-year old daughter,lxxvii[1] Beverly Onato, in Sitio Mactang, Barangay Ilo, Sto. Nio, Samar. Ponciano was a fisherman and a farmer but was employed by Tito Soria in his buy-and-sell of fish business. Roberto Ostia, a co-worker of Ponciano, resided in the poblacion of Sto. Nio. Rufo Legaspi, a carpenter and a Barangay Tanod, was a neighbor of Ponciano.

On May 13, 1995, a Saturday, at about 7:00 p.m., Rufo was seated near his house and resting before retiring for the evening. Momentarily, Rufo saw Roberto, with Beverly perched on his right shoulder, walking towards the direction of the poblacion. Robertos left hand was holding the right hand of Mary Donoso, a nine-year old playmate of Beverly. The trio were in animated conversation on their way towards the poblacion. After the lapse of an hour or so, Edita noticed that Beverly had not yet returned to their house. She went out of the house to look for her daughter. Rufo told Edita that earlier he saw Beverly perched on the shoulder of Roberto on their way towards the direction of the poblacion. Thereafter, Roberto sauntered by. However, Beverly was no longer with him. Puzzled, Edita inquired from Roberto where Beverly was. Instead of responding, Roberto fled. Edita was flustered. Rufo, who witnessed the incident, advised Edita to report the incident to the police authorities. Edita rushed back home and woke up Ponciano. She told her husband that Beverly had been taken by Roberto and that Beverly had not yet returned home. The couple rushed from their house and reported the incident to the police authorities. With the help of their neighbors and police officers Manuel Toribio and Dodong Espino, the couple looked for Beverly but failed to locate her. They resumed their search the next day, May 14, 1995, and, at 3:00 p.m., they found Beverly sprawled in a grassy portion below a copra kiln about 120 meters away from the house of the Onato couple and about 15 meters from the nearest house. Beverly was already dead. Pictures of Beverly were taken where her body was found. lxxvii[2] Ponciano and the policemen then looked for Dr. Renato Ortiz, the Municipal Health Officer, to conduct an autopsy on the cadaver of Beverly but the doctor was in Calbayog City. Lorenzo Bernabe, the Municipal Sanitary Inspector who had been trained by the District Hospital to perform autopsies in the absence of the Municipal District Officer, performed the autopsy on the cadaver of Beverly. Bernabe drew a sketch depicting the human body indicating the number and locations of the injuries sustained by Beverly.lxxvii[3] Bernabe then prepared the autopsy report. Dr. Renato Ortiz validated the report of Bernabe and signed a Medico-Legal Necropsy Report on May 24, 1995 showing the injuries sustained by Beverly and the cause of her death: FINDINGS 1. Wound, lacerated, 3.5 cm. long, running downward from posterior vaginal wall to the anus. 2. Wound, lacerated, 2 cm. long, running upward from the vagina to mons pubis.

3. Contusion, purplish in color, 5.0 cm. in diameter lateral side of lumbar area, left, below the costal margin. 4. Presence of blood clots, left ear.

USE OF DEATH: Cardio-Respiratory Arrest

2ndary to severe hemorrhagelxxvii[4] According to Dr. Ortiz, the lacerated wounds sustained by Beverly from the posterior wall of her vagina to her anus and from her vagina to the mons pubis were caused by a blunt instrument shoved violently into her vagina.lxxvii[5] Such an instrument could be a penis. The doctor also signed the Certificate of Death of Beverly.lxxvii[6] Earlier on May 18, 1995, a criminal complaint for rape with homicide was filed by Ponciano against Roberto with the Municipal Circuit Trial Courtlxxvii[7] and after the requisite preliminary investigation, an Information charging Roberto with Rape with Homicide was filed on December 7, 1995 with Branch 32 of the Regional Trial Court of Calbayog City which reads: That on or about the 13th day of May, 1995, at about 7:00 oclock in the evening, at Sitio Mactang, Barangay Ilo, Municipality of Sto. Nio, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge against a minor four (4) years old girl, BEVERLY ONATO, without the latters consent and against her will, and thereafter, with deliberate intent to kill, did then and there wilfully, unlawfully and feloniously inflict upon the said Beverly Onato fatal wounds on the different parts of her body, which caused her untimely death. CONTRARY TO LAW. lxxvii[8] On the date set for his arraignment, Roberto appeared without counsel. The court issued an order appointing Atty. Artemio Apostol as counsel de oficio of Roberto.lxxvii[9] Said counsel prayed for the resetting of the arraignment to January 30, 1996 to enable him to secure a copy of the necropsy report and study the case intelligently. The court granted the motion. During the arraignment of Roberto on January 30, 1996, he, through his counsel de oficio, manifested to the court that he was willing to plead guilty to the lesser offense of murder. However, the public prosecutor prayed for a continuance so that he could consult the provincial prosecutor and the father of the victim, Ponciano, on the offer of Roberto. The arraignment of Roberto was reset to February 29, 1996, on which date, he, through his counsel de oficio, moved that a reinvestigation be conducted by the public prosecutor. The motion was granted by the trial court.lxxvii[10] However, despite notice from the office of the public prosecutor, Roberto failed to adduce controverting evidence. On motion of the prosecution, the arraignment of Roberto was set on August 9, 1996. When arraigned on said date, Roberto, with the assistance of his counsel de oficio, entered a plea of Not Guilty to the charge of rape with homicide.lxxvii[11] Trial ensued. The prosecution presented Dr. Renato Ortiz as its first witness. Before the trial resumed on February 24, 1997, the counsel de oficio of Roberto manifested that the latter was intending to plead guilty to murder and prayed for the deferment of the trial. The public prosecutor manifested to the court that he had no objection to Robertos pleading guilty to

murder as he did not have sufficient evidence to prove that the latter raped Beverly but that he had sufficient evidence to prove that he killed her. During the trial set on May 6, 1997, Roberto, through counsel, moved that he be allowed to withdraw his plea of not guilty to rape with homicide and to enter a plea of guilty to murder. Ponciano, the father of Beverly, and the public prosecutor agreed to Robertos pleading guilty to murder. On May 19, 1997, Roberto, per Certificate of Re-arraignment signed by the Branch Clerk of Court,lxxvii[12] was re-arraigned for the lesser offense of murder and pleaded guilty thereto.lxxvii[13] The court then informed Roberto that the penalty for murder was reclusion perpetua to death, two indivisible penalties, and that the court may impose the death penalty on him depending on the circumstances found by the trial court. When trial resumed on May 22, 1997, for the prosecution to continue presenting its evidence, Roberto took the witness stand to answer more questions from the court. He testified that he killed Beverly by smashing a piece of rock bigger than the size of his fist, about seven inches in diameter, on her head and chest and on the other parts of her body because, in the meantime, he lost control of himself. He further stated that he was not forced or coerced in so testifying before the court. He admitted that he caused the death of the victim. During the trial on May 26, 1997, the prosecution formally offered its documentary evidence. The court admitted all the prosecutions documentary evidence without any objection from Roberto. The latter did not anymore adduce any testimonial and documentary evidence in his behalf and on said date, the court issued an order declaring that the case was submitted for its decision.lxxvii[14] On August 25, 1997, the trial court rendered judgmentlxxvii[15] finding Roberto guilty beyond reasonable doubt of murder with the qualifying circumstance of evident premeditation and with the generic aggravating circumstances of (a) abuse of confidence considering that Roberto and Ponciano were co-workers, (b) nighttime considering that Beverly was killed in the evening and (c) despoblado considering that the nearest house to the situs criminis was fourteen meters. The decretal portion of the decision reads: WHEREFORE, the Court, accepting the plea of guilt of the accused ROBERTO OSTIA alias ROBERT to the crime of Murder, and likewise considering that the evidence has sufficiently proved that the crime has been committed, finds and declares the said accused guilty of Murder beyond reasonable doubt[s], as principal, and considering three aggravating circumstances which are not offset by any mitigating circumstances, hereby sentences the accused to suffer the penalty of DEATH, to be carried out in accordance with law, and to pay the costs. Likewise, the Court hereby condemns the accused to indemnify the heirs of the victim Beverly Onato in the amount of P50,000.00. Let the entire records of the case, together with the stenographic transcripts and exhibits be forwarded to the honorable Supreme Court for automatic review of this decision.

SO ORDERED.lxxvii[16] The case was brought to the Court on automatic appeal the death penalty having been imposed on Roberto by the trial court. Accused-appellant Roberto assails the decision of the trial court with the following assignments of error: I THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF MURDER DESPITE HIS IMPROVIDENT PLEA OF GUILTY. II THE COURT A QUO ERRED IN RULING THAT EVIDENT PREMEDITATION QUALIFIED THE KILLING TO MURDER. III ON THE ASSUMPTION THAT ACCUSED-APPELLANT COMMITTED THE CRIME MURDER (SIC) THE COURT A QUO ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON HIM.lxxvii[17] On the first assignment of error, accused-appellant avers that the trial court failed to comply with its mandatory duties when he pleaded guilty to murder, a capital offense, the imposable penalty for which is reclusion perpetua to death. More specifically, the trial court allegedly failed to comply with Section 3, Rule 116 of the Rules of Court when it failed to conduct a searching inquiry into the voluntariness and full comprehension of accused-appellant of the consequences of his plea of guilty to murder and to inquire from him if he wished to adduce evidence on his behalf and allow him to do so if he wished. Accused-appellant contends that his plea of guilty to murder was improvidently made and prays that his arraignment for murder and all proceedings as well as the decision of the trial court convicting him of said crime and imposing on him the supreme penalty of death be nullified. He further prays for the remand of the case to the trial court for appropriate proceedings. For its part, the Office of the Solicitor General asserts that as gleaned from the decision of the trial court, it complied with fealty with the mandatory requirements of Section 3, Rule 116 of the 1985 Rules of Criminal Procedure, as amended. The OSG quotes the following portion of the trial courts decision: x x x On May 19, 1997, the accused was re-arraigned upon the information. He was assisted by his counsel and the information was read and translated to him in the waray dialect which he claims he understands and speaks. After thus reading and translating the information to him in the waray dialect, the accused entered a plea of guilt to murder.

The Public Prosecutor, Hon. Feliciano Aguilar, gave his consent to this plea of guilt of the accused to murder, manifesting again to the Court that he has no direct evidence to establish rape. The complainant, Ponciano Onato who is the father of the victim Beverly Onato, after conferring with the Public Prosecutor, also gave his consent to this plea of the accused to the lesser offense of murder. The Court conducted searching and clarificatory questions to the accused to determine whether the latter understood his plea of guilt as well as realized the consequences thereof. He was informed by the Court that as a result of his plea of guilt, he admitted all the facts alleged in the information which were already read and translated to him in the waray dialect during the re-arraignment; that the Court will no longer conduct any trial but would just impose upon him the penalty that is proper under the law; that the penalty provided for murder, a heinous crime under Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 is Reclusion Perpetua to death, and that either of these two indivisible penalties may be imposed upon him depending upon the circumstances which may ultimately be appreciated by the Court (see TSN dated May 19, 1997, pages 1-3; 4-5). He was asked whether he was earnest and sincere in his plea of guilt to murder, and he answered the Court in the affirmative. Furthermore, the Court asked him whether he was threatened, forced, coerced by anybody or somebody suggested to him to plea guilty to murder but he answered that he was not, and that his plea was all his own free will and volition. (see TSN dated May 22, 1997, pages 1-4). The accused was asked by the Court how he killed the victim and he stated that he used a piece of rock about the size of his fist which was measured to have an approximate diameter of four inches and elongated in shape about seven inches long which he smashed on the victim, whereby he hit the victim on the chest, on the head, as well as other parts of her body. Although after conducting searching and clarificatory questions as anteriorly already mentioned, the Court was without doubts that the accused was not improvident in his plea of guilt to murder and that he realized the consequences thereof, consistent with the rules and considering the fact that the crime of murder to which the accused pleaded guilty is a capital offense, the Court required the prosecution to present its evidence. Aside from the testimony of Dr. Renato M. Ortiz, M.D., the prosecution presented Ponciano Onato, the father of the victim, and Rufo Legape who is a Barangay Kagawd (sic) of Brgy. Ilo, Sto. Nino, Samar. (pp. 2-5, Decision) Appellants claimed absence of an inquiry by the trial court as to his interest to present evidence is of no moment.lxxvii[18] This Court agrees with accused-appellant. Section 3, Rule 116 of the Rules of Court cited by accused-appellant reads: SEC. 3. Plea of guilty to capital offense, reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and

full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. The rule applies only where the accused pleads guilty to a capital offense charged in the Information or complaint or amended Information or complaint. Section 4 of Rule 114 of the said rules defines a capital offense as that which under the law existing at the time of its commission may be punished with death. Irrefragably, murder punishable by reclusion perpetua to death is a capital offense because, with the presence of aggravating circumstances absent any mitigating circumstance, the death penalty may be imposed conformably with Article 63 of the Revised Penal Code. Under the Information, accused-appellant was charged with murder qualified by treachery. Although the Information does not specifically allege treachery as a qualifying circumstance in the commission of the crime, however, the Information alleges that the victim Beverly was four years old at the time of the killing. Such allegation is sufficient compliance with Section 6, Rule 110 of the Revised Rules of Criminal Procedure, as amended. Case law has it that killing a child by an adult constitutes treachery even if the mode of attack by the assailant is not proved by the prosecution because a child of tender years could not be expected to put up a defense and hence, at the mercy of his or her assailant.lxxvii[19] When an accused enters a plea of guilty to a capital offense, the trial court is mandated to do the following: x x x (1) conduct a searching inquiry into the voluntariness of the plea and the accuseds full comprehension of the consequences thereof; (2) require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. x x xlxxvii[20] The procedure in said rule is mandatory and a judge who fails to observe with fealty the said rule commits grave abuse of discretion.lxxvii[21] This Court had cautioned trial judges to proceed with meticulous care whenever the imposable penalty for the crime charged is death: x x x The execution of a death sentence is irrevocable and experience has shown that innocent persons have, at times, pleaded guilty. In capital offenses, the essence of judicial review is anchored on the principle that while society allows violent retribution for heinous crimes committed against it, it always must make certain that the blood of the innocent is not spilled, or that the guilty are not made to suffer more than their just measure of punishment and retribution. The prudent course to follow is to take testimony not only to satisfy the trial judge but also to aid the Supreme Court in determining whether the accused understood the significance and consequences of his plea. This is to preclude any room for reasonable doubt in the mind of the trial court, or this Court on review, as to the possibility that there might have been some misunderstanding by the accused of the nature of the charge to which he pleaded guilty, and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of a greater or lesser degree of severity in the imposition of the prescribed penalties.lxxvii[22] This Court likewise outlined the duties of the trial court in conducting searching questions, thus:

x x x What is essential is that the judge should, first of all, consider the age, personality, educational background, socio-economic status and other personal circumstances of the accused confessing his guilt. The trial judge should determine whether the accused had been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters, or by mistaken impressions given, wittingly or unwittingly, by authorities or parties; whether the accused had the assistance of competent counsel during the custodial and preliminary investigations; and whether he understood the charges against him. The court should inquire if the accused knows the crime with which he is charged and explain to him the elements of the crime and the corresponding penalty therefor. The court may require the accused to fully narrate the incident that spawned the charges against him, or make him reenact the manner in which he perpetrated the crime, or cause him to furnish and explain missing details of significance about his personal circumstances, about the commission of the crime and events during the custodial and preliminary investigation. In doing so, all questions posed by the judge to the accused should be in a language known and understood by the latter. Still, the inquiry need not stop with the accused. The court may also propound questions to accuseds counsel to determine whether or not said counsel had conferred with, and completely explained to accused the meaning of a plea and its consequences. x x xlxxvii[23] The trial court is also required to probe thoroughly into the reasons as well as the facts and circumstances for the change of plea of the accused and his comprehension of his plea; explain to him the elements of the crime for which he is charged as well as the nature and effect of qualifying circumstances, generic aggravating circumstances and mitigating circumstances in the commission thereof; and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to. In this case, the Information was merely read and translated to accused-appellant in the waray dialect which he understood. The trial court informed accused-appellant that by pleading guilty, he admitted all the facts alleged in the Information and that the court would no longer conduct any trial but that it would impose on him the proper penalty for the crime of murder under Article 248 of the Revised Penal Code, a heinous crime under Republic Act 7659 punishable by two indivisible penalties, namely, reclusion perpetua to death and that either of said penalties may be imposed on him depending upon the circumstances which may ultimately be appreciated by the court. When asked by the trial court if he pleaded guilty on his own volition, and if nobody forced, threatened or coerced him into admitting having killed Beverly, accusedappellant answered that he admitted having killed Beverly on his own free will. This Court is convinced that the trial court failed to comply with its duties under Section 3, Rule 116 of the Rules of Court. It bears stressing that accused-appellant did not even know how to read and write. In fact, he merely affixed his thumbmark on the Waiver of Right to a Preliminary Investigation.lxxvii[24] The trial court failed to explain to accused-appellant (a) the nature of murder and the elements thereof; (b) that killing Beverly, a four-year old girl, constituted treachery, a qualifying circumstance; accused-appellant being unlettered could not be presumed to understand the requisites of treachery, a highly technical legal term;lxxvii[25] (c) the nature and effect of a qualifying aggravating circumstance in the killing of Beverly and its effect on the penalty that may be imposed on him; (d) what heinous crimes are and the meaning and

import of indivisible penalties; (e) the specific circumstances which may be considered by the court in the imposition of reclusion perpetua or death penalty; (f) whether his plea of guilty after the prosecution had commenced presenting its evidence may still be considered by the trial court as a mitigating circumstance;lxxvii[26] (g) the nature of civil liabilities that he may be ordered to pay and the amounts thereof. The trial court even failed to probe into the reasons for accusedappellants change of plea from not guilty of rape with homicide to guilty of murder and for his failure to adduce evidence during the reinvestigation of the case despite having been granted the right to do so by the trial court. The trial court did not even bother inquiring from accusedappellant whether he sought the advice of his counsel before pleading guilty to murder and whether he wanted to adduce evidence in his behalf to prove any mitigating circumstances in the commission of the crime to warrant the imposition of the lesser penalty of reclusion perpetua.lxxvii[27] Notwithstanding the improvident plea of guilty of accused-appellant, this Court finds it unnecessary to remand the case to the trial court. This is so because independent of accusedappellants plea of guilty and his testimony admitting liability for Beverlys death, the evidence adduced by the prosecution, albeit circumstantial, established the guilt of accused-appellant for murder beyond reasonable doubt. As this Court held in People v. Jabien: To be sure, accused-appellant did not only give an informed plea of guilt. His guilt was proved by the evidence presented by the prosecution. In People vs. Derilo we held: While it may be argued that appellant entered an improvident plea of guilty when re-arraigned, we find no need, however, to remand the case to the lower court for further reception of evidence. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment. However, where the trial court receives evidence to determine precisely whether or not the accused has erred in admitting his guilt, the manner on which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on evidence proving the commission by the accused of the offense charged. Thus, even without considering the plea of guilty of appellant, he may still be convicted if there is adequate evidence on record on which to predicate his conviction. As already observed, the prosecution had already rested when appellant decided to change his plea. The prosecution then had all the opportunity to verify the material allegations in the information . . . (Italics supplied). In People vs. Tahop we also ruled that even if [the] accused[s] x x x plea was improvidently made, if the evidence presented thereafter by the prosecution is sufficient to prove his guilt beyond reasonable doubt, the courts verdict of guilt based solely on the hard evidence presented can be sustained. At this point then, the improvidence of the plea of guilt is irrelevant.lxxvii[28] On the second assignment of error, the trial court convicted accused-appellant of murder on its finding that the killing of Beverly was qualified by evident premeditation. While we agree with the ruling of the trial court that accused-appellant is guilty of murder, however, the appropriate

qualifying circumstance in the commission of the crime is treachery, not evident premeditation. Treachery was alleged in the Information and duly proved. On the other hand, evident premeditation was not alleged in the Information. An accused cannot be convicted of murder where a qualified circumstance is not alleged in the Information, otherwise the accused would be deprived of his right to be informed of the nature of the offense with which he is charged. In People v. Gallarde,lxxvii[29] we held that: x x x In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged. It is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right. Moreover, evident premeditation was not proved by the prosecution. There is no evidence to prove when accused-appellant decided to kill Beverly and that he clung to his determination to kill her and a sufficient lapse of time between his determination and the actual killing of Beverly.lxxvii[30] On the third assignment of error, the trial court likewise erred in appreciating nighttime, despoblado and abuse of confidence as generic aggravating circumstances in the commission of the crime. The prosecution failed to prove that accused-appellant purposely sought or took advantage of nighttime in killing Beverly.lxxvii[31] There is no evidence that accused-appellant sought or took advantage of the solitude of the situs criminis in committing the crime.lxxvii[32] Abuse of confidence could not be appreciated as generic aggravating circumstance because the prosecution failed to prove that (a) accused-appellant enjoyed the trust and confidence of Beverly or her parents; (b) and that even if accused-appellant enjoyed said confidence, he took advantage of said trust or confidence to kill Beverly.lxxvii[33] The barefaced fact that the accusedappellant and Ponciano were co-workers does not constitute evidence that the latter reposed trust and confidence in accused-appellant. In the absence of any generic aggravating or mitigating circumstances in the commission of the crime, the accused-appellant is meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code.

The trial court ordered accused-appellant to pay to the heirs of the victim the amount of P50,000.00 by way of civil indemnity. However, the trial court failed to order accused-appellant to pay the amount of P50,000.00 by way of moral damages.lxxvii[34] The decision of the trial court shall be modified accordingly. IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court of Calbayog City, Branch 32 is hereby AFFIRMED WITH MODIFICATION. Accused-appellant is found guilty of murder defined in Article 248 of the Revised Penal Code as amended by Republic Act 7659 and there being no modifying circumstances in the commission of the crime is hereby meted the penalty of reclusion perpetua. He is also ordered to pay the heirs of the victim Beverly Onato the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ., concur. Vitug, J., believe the attendance of the qualifying circumstance of Treachery, should warrant the grant of exemplary damages. Ynares-Santiago, J., on leave.

EN BANC [G. R. No. 128823-24. December 27, 2002] PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES, JR., y FLORES ALIAS PESIONG, accused-appellant. DECISION CARPIO-MORALES, J.: An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an accuseds right to be informed of the nature and cause of the accusation against him.

For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accused-appellant Pedro Flores Jr. y Flores alias Pesiong guilty of two counts of rape of his then 11 year old daughter and sentencing him to suffer the penalty of death in each. The complaints against accused-appellant filed on February 3, 1997 read as follows: Criminal Case No. U-9184: CRIMINAL COMPLAINTlxxvii[1] The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of RAPE, committed as follows: That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her will. x x x (Emphasis supplied). Criminal Case No. U-9185: CRIMINAL COMPLAINTlxxvii[2] The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS PESYONG, committed as follows: That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp pointed bladed weapon and all against her will. x x x (Emphasis supplied). Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.lxxvii[3] Culled from the records of the case are the following facts established by the prosecution:

On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine were left to the care of their father, herein accused-appellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract worker. After partaking of supper on the night of December 9, 1996,lxxvii[4] accused-appellant asked Filipina to accompany him to the comfort room situated outside their house,lxxvii[5] claiming that he was afraid of ghosts.lxxvii[6] Albeit Filipina did not believelxxvii[7] him, she acquiesced because her mother had told her to always obey her father.lxxvii[8] When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death if she disobeyed,lxxvii[9] and made her lie down.lxxvii[10] He then removed his short pants and brief and, against her will, he inserted his finger and later his penis into Filipinas vaginalxxvii[11] where she later felt hot fluid.lxxvii[12] Accused-appellant thereafter wiped Filipinas vagina and his hand, threatened to kill her if she reported what he did, directed her to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her Inang Lorie whose full name is Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would have him detained. Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant touched her right foot.lxxvii[13] Armed with a knife lxxvii[14], accused-appellant told her not to talklxxvii[15] and ordered her to remove her short pants and panty. She complied. Accused-appellant thereupon removed his short pants and brief and went on top of her chest during which she tried to push him away but failed. Accused-appellant then inserted his finger into Filipinas vagina for some time,lxxvii[16] wiped his hands, and then inserted his penis for a long time as he was sucking her breast. Filipina felt accused-appellants semen drop into her private organ where she noticed the presence of blood and a bit of whitish substance. Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to her grandaunt Norielyn,lxxvii[17] and to her playmate Carla Salvador.lxxvii[18] On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driverneighbor, reported the matter to the Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in a medical certificatelxxvii[19] showing the following: (-) Negative menarche

- Multiple deep healed lacerations all over the labia majora. - Admits examining finger with ease. - (+) sticky whitish discharge. Dr. Jeanna B. Nebril, the examining physician, found the presence of deep-healed lacerations all over the labia majoralxxvii[20] which deep-healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination. Denying the accusations, accused-appellant claimed as follows: Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December that year and for having received money from her classmate,lxxvii[21] was not in their house on the night of December 9, 1996 because she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his mother Margarita Floreslxxvii[22] in Cafloresan. Accused-appellants testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores who were staying in his mothers house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the house of accused-appellants mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.lxxvii[23] Jocelyn added that Filipina had intimated to her that she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused-appellant, jailed as he begrudged him for having eloped with their mother,lxxvii[24] and that Lourdes threatened her with abandonment or detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire. After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April 7, 1997 Joint Decision, the dispositive portion of which reads: WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows: CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs.

Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review of this Decision. In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-appellant assigns as errors the following: I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED. II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT. It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.lxxvii[25] It is at once apparent, from a reading of the above-quoted complaints, that accused-appellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives: lxxvii[26] 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause; 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy.lxxvii[27] Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed.lxxvii[28] For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.lxxvii[29] The court a quo found accused-appellant guilty of Statutory Rape under Article 335lxxvii[30] of the Revised Penal Code, as amended by R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides:

Article 335. When and how rape is committed.--- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. 2. 3. By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and When the woman is under twelve years of age or is demented.

The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances enumerated in the penal code.lxxvii[31] Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal knowledge of or sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation was made. The allegation that accused-appellant did sexually abuse Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiaolxxvii[32], this Court ruled that although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge.lxxvii[33] Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse.lxxvii[34] The allegation in the instant criminal complaints that accused-appellant sexually abuse[d] the private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant. This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal Procedure which reads: SEC. 4. Judgment in case of variance between allegation and proof.When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.lxxvii[35] The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply does not properly charge rape, sexual abuse not being an essential element or ingredient thereof. Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is settled that what characterizes the charge is the actual recital of facts lxxvii[36] in the complaint or information. For every crime is made up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime chargedlxxvii[37], the accused being presumed to have no independent knowledge of the facts that constitute the offense.lxxvii[38]

And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act),lxxvii[39] accused-appellant cannot be held liable. Section 5 of said Act provides: SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) (4) Taking advantage of influence or relationship to procure a child as a prostitute; Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Emphasis and underscoring supplied). Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Caseslxxvii[40], issued pursuant to Section 32 of Republic Act No. 7610, defines sexual abuse by inclusion as follows:

Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person to engage in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring supplied) From this broad, non-exclusive definition, this Court finds that the phrase sexually abuse in the criminal complaints at bar does not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the crime. Notably, the phrase sexual abuse is not used under R.A. No. 7610 as an elemental fact but as an altogether separate offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant. The case of People v. Cruz lxxvii[41] is instructive. There the information in Criminal Case No. 15368-R read: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW. (Emphasis supplied) Finding the above-quoted information void, this Court held: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accusedappellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), either by raping her or committing acts of lasciviousness. It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: Designation of the offense.The complaint or information shall state the designation of the offense given by the statue, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The allegation in the information that accused-appellant willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required

under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants constitutionallyguaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied)

This Court in Acebedo vs. Sarmiento (36 SCRA 247 [1970]) stated that the right to a speedy trial means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation . . .

As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts. Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellants constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state the acts or omissions complained of as constituting the offense as exemplified by the present case. The foregoing disquisition leaves it unnecessary to dwell on accused-appellants assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are hereby declared null and void for being violative of the constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias Pesiong, for Rape to be informed of the nature and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED. The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within 10 days from notice. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., and Azcuna, JJ., concur.

epublic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-28025 December 16, 1970 DAVID ACEBEDO Y DALMAN, petitioner, vs. HON. MALCOLM G. SARMIENTO, as Judge of the Court of First Instance of Pampanga and THE PROV. FISCAL OF PAMPANGA, respondents. Filemon Cajator for petitioner. Judge Malcolm G. Sarmiento in his own behalf. Provincial Fiscal Regidor Y. Aglipay for and in his own behalf as respondent.

FERNANDO, J.: This Court not so long ago reaffirmed the doctrine that where a dismissal of a criminal prosecution amounts to an acquittal, even if arising from a motion presented by the accused, the ban on being twice put in jeopardy may be invoked, especially where such dismissal was predicated on the right to a speedy trial. 1 The specific question then that this certiorari and prohibition proceeding presents is whether on the undisputed facts, an order of dismissal given in open court by respondent Judge falls within the operation of the above principle, precluding its reconsideration later as the defense of double jeopardy would be available. Here respondent Judge did reconsider, and his actuation is now assailed as a grave abuse of discretion. As will be made apparent, petitioner has the law on his side. The writs should be granted. It was shown that on August 3, 1959, respondent Provincial Fiscal filed in the Court of First Instance of Pampanga a criminal information for damage to property through reckless imprudence against petitioner and a certain Chi Chan Tan. As there were no further proceedings in the meantime, petitioner on May 19, 1965 moved to dismiss the criminal charge. Respondent Judge was not in agreement as shown by his order of denial of July 10, 1965. Then, after two more years, came the trial with the complainant having testified on direct examination but not having as yet been fully cross-examined.

At the continuation of the trial set for June 7, 1967 such witness did not show up. The provincial fiscal moved for postponement. Counsel for petitioner, however, not only objected but sought the dismissal of the case based on the right of the accused to speedy trial. Respondent Judge this time acceded, but would likewise base his order of dismissal, orally given, on the cross-examination of complainant not having started as yet. Later that same day, respondent Judge did reconsider the order and reinstated the case, his action being due to its being shown that the cross-examination of the complainant had already started. On the above facts, there can be no dispute as to the applicable law. It is not to be lost sight of that the petition on its face had more than its fair share of plausibility, thus eliciting an affirmative response to the plea for a writ of preliminary injunction, duly issued by this Court. For it was all too evident that petitioner could rely on his constitutional right to a speedy trial. For more than six years the threat of his being subjected to a penal liability did hang over his head, with the prosecution failing to take any step to have the matter heard. He did ask that the case be dismissed, but respondent Judge turned him down. When the trial did at long last take place after two more years and again postponement was sought as the complainant was not available for cross- examination, petitioner, as could have been expected, did again seek to put an end to his travail with a motion for dismissal grounded once more on the undeniable fact that he was not accorded the speedy trial that was his due. This time respondent Judge was quite receptive and about time too. The order of dismissal given in open court had then the effect of an acquittal. For the respondent Judge to give vent to a change of heart with his reconsideration was to subject petitioner to the risk of being put in jeopardy once more. Nor could respondent Judge's allegation that he could do so as he acted under a misapprehension be impressed with the quality of persuasiveness. The decisive fact was the absence of that speedy trial guaranteed by the Constitution. This petition then, to repeat, possesses merit. 1. The right to a speedy trial means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatever legitimate defense he may interpose. 2 The remedy in the event of a non-observance of this right is by habeas corpus if the accused were restrained of his liberty, or by certiorari, prohibition, or mandamus for the final dismissal of the case. 3 In the first Supreme Court decision after the Constitution took effect, an appeal from a judgment of conviction, it was shown that the criminal case had been dragging on for almost five years. When the trial did finally take place, it was tainted by irregularities. While ordinarily the remedy would have been to remand the case again for a new trial, the appealed decision of conviction was set aside and the accused acquitted. Such a judgment was called for according to the opinion penned by Justice Laurel, if this constitutional right were to be accorded respect and deference. Thus: "The Government

should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused came to an end and that they be immediately discharged from the custody of the law." 4 Conformably to the above ruling as well as the earlier case of Conde v. Rivera, 5the dismissal of a second information for frustrated homicide was ordered by the Supreme Court on a showing that the first information had been dismissed after a lapse of one year and seven months from the time the original complaint was filed during which time on the three occasions the case was set for trial, the private prosecutor twice asked for postponements and once the trial court itself cancelled the entire calendar for the month it was supposed to have been heard. As pointed out in such decision: "The right of the accused to have a speedy trial is violated not only when unjustified postponements of the trial are asked for and secured, but also when, without good cause or justifiable motive, a long period of time is allowed to elapse without having his case tried." 6 It did not matter that in this case the postponements were sought and obtained by the private prosecution, although with the consent and approval of the fiscal. Nor was there a waiver and abandonment of the right to a speedy trial when there was a failure on the part of the accused to urge that the case be heard. "Such a waiver or abandonment may be presumed only when the postponement of the trial has been sought and obtained [by him]". 7 A finding that there was an infringement of this right was predicated on an accused having been criminally prosecuted for an alleged abuse of chastity in a justice of the peace court as a result of which he was arrested three times, each time having to post a bond for his provisional liberty. Mandamus to compel the trial judge to dismiss the case was under the circumstances the appropriate remedy. 8 In Mercado v. Santos, 9 the second occasion Justice Laurel had to write the opinion for the Supreme Court in a case of this nature, the transgression of this constitutional mandate came about with petitioner having in a space of twenty months been arrested four times on the charge of falsifying his deceased wife's will, the first two complaints having been subsequently withdrawn only to be refiled a third time and thereafter dismissed after due investigation by the justice of the peace. Undeterred the provincial fiscal filed a motion for reinvestigation favorably acted on by the Court of First Instance which finally ordered that the case be heard on the merits. At this stage the accused moved to dismiss but was rebuffed. He sought the aid of the Court of Appeals in a petition for certiorari but did not prevail. It was then that the matter was elevated to the Supreme Court which reversed the Court of Appeals, the accused "being entitled to have the criminal proceedings against him quashed." It was stressed in Justice Laurel's opinion: "An accused person is entitled to a trial at the earliest opportunity. ... He cannot be oppressed by delaying the commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court." 10 The opinion likewise considered as not decisive the fact that the provincial fiscal did not

intervene until an information was filed charging the accused with the crime of falsification the third time. Thus: "The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced." 11 2. More specifically, this Court has consistently adhered to the view that a dismissal based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at continuing the prosecution or starting a new one would fall within the prohibition against an accused being twice put in jeopardy. The extensive opinion of Justice Castro in People v. Obsania noted earlier made reference to four Philippine decisions, People v. Diaz, 12 People v. Abano, 13 People v. Robles, 14 and People v. Cloribel. 15 In all of the above cases, this Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the disregard of his right to a speedy trial was tantamount to an acquittal. In People v. Diaz, it was shown that the case was set for hearing twice and the prosecution without asking for postponement or giving any explanation failed to appear. In People v. Abano, the facts disclosed that there were three postponements. Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case was absent; this Court held that respondent Judge was justified in dismissing the case upon motion of the defense and that the annulment or setting aside of the order of dismissal would place the accused twice in jeopardy of punishment for the same offense. People v. Robles likewise presented a picture of witnesses for the prosecution not being available, with the lower court after having transferred the hearings on several occasions denying the last plea for postponement and dismissing the case. Such order of dismissal, according to this Court "is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense." 16 This is a summary of the Cloribel case as set forth in the above opinion of Justice Castro: "In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held 'that the dismissal here complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistense on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial.' (Emphasis supplied.)" 17 There is no escaping the conclusion then that petitioner here has clearly made out a case of an acquittal arising from the order of dismissal given in open court. 3. Respondent Judge would rely on Cabarroguis v. San Diego 18 to lend support to the reconsideration of his order of dismissal. The case is not applicable; the factual setting is different. The order of dismissal set aside in that case arose from the belief of the court that the crime of estafa was not committed as the liability was civil in character. At

no stage then was there a plea that the accused was denied his right to a speedy trial. The reconsideration was granted as there was documentary evidence to show that the intention to defraud on the part of the accused could be shown. Under such circumstances, this Court saw no grave abuse of discretion in the actuation of the trial judge. To repeat, the proceeding now before this Court is anything but that. Petitioner not once but twice did seek to have the prosecution for damage to property against him terminated as the matter was pending for at least six years, the first time he sought to put an end to it. When at last, the trial stage was reached, the complaining witness testified on direct examination but made no appearance when his cross-examination was to be continued. A clear case of a denial of the right to a speedy trial was thus made out. There was an order of dismissal that amounted to an acquittal. No reconsideration could therefore be had without offending the provision on double jeopardy. WHEREFORE, the writ of certiorari is granted annulling the order of respondent Judge of June 7, 1967 reconsidering his order of dismissal and reinstating the criminal case against petitioner. The writ of prohibition is likewise granted, respondent Judge and respondent Provincial Fiscal of Pampanga being restrained and precluded from continuing with this case against petitioner, now adjudged definitely dismissed. The writ of preliminary injunction issued is made permanent. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo and Villamor, JJ., concur. Concepcion C.J., Dizon and Makasiar, JJ., are on leave.

Footnotes
1 People v. Obsania, L-24447, June 29, 1968, 23 SCRA 1249. In the exhaustive opinion penned by Justice Castro, People v. Diaz, 94 Phil. 714 (1954); People v. Abano, 97 Phil. 28 (1955); People v. Robles, 105 Phil. 1016 (1959) and People v. Cloribel, L-20314, Aug. 31, 1964, 11 SCRA 805 were cited in support of such a view. 2 Cf. Justice Malcolm's words in a pre-Commonwealth leading case: "Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. ... By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays." Conde v. Rivera, 45 Phil. 650 at p. 651 (1924). 3 Kalaw v. Apostol, 64 Phil. 852 (1937) citing the Conde v. Rivera decision. 4 People v. Castaeda, 63 Phil. 480, at p. 486 (1936). 5 45 Phil. 650 (1924). 6 Kalaw v. Apostol, 64 Phil. 852 at pp. 858-859 (1937). 7 Ibid., at p. 859. 8 Esguerra v. De la Costa, 66 Phil. 134 (1938).

9 66 Phil. 215 (1938). 10 Ibid., at pp. 234-235. 11 Ibid., at p. 324. 12 94 Phil. 714 (1954). 13 97 Phil. 28 (1955). 14 105 Phil. 1016 (1959). 15 L-20314, August 31, 1964, 11 SCRA 805. 16 105 Phil. 1016, 1021 (1959). 17 People v. Obsania, L-24447, June 29, 1968, 23 SCRA 1249, 1273. 18 L-19517, November 30, 1962, 6 SCRA 866.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-53873 May 13, 1988 PEOPLE OF THE PHILIPPINES, LORETO M. DURANO, MANUEL R. POTOT, ANDRES D. AMIL, in their capacities as Provincial Fiscal, 3rd Assistant Provincial Fiscal, Acting 5th Assistant Provincial Fiscal respectively, of Cebu, petitioners, vs. HONORABLE ALFREDO C. LAYA, in his capacity as Presiding Judge of Branch XV of the Court of First Instance of Cebu, SOLEDAD CASTRO and CRISOLOGO ABINES, respondents. The Solicitor General or petitioners. Leon Gonzaga, Sr. for respondents.

GUTIERREZ, JR., J.: The petitioners seek the review and setting aside of the order of the then Court of First Instance of Cebu, Branch 15 which dismissed the criminal case against accused

Soledad Castro and Crisologo Abines on the ground that their constitutional right to speedy trial was violated. The private respondents were charged with the crime of grave coercion in an information filed by the petitioners, Third Assistant Provincial Fiscal Manuel R. Potot on January 15, 1980 with the Court of First Instance of Cebu, Branch 15 and docketed as Criminal Case No. AR-645. The crime was allegedly committed as follows:
xxx xxx xxx That on the 29th day of December, 1978, at 9:00 o'clock in the morning, more or less in the Barangay of Looc, Municipality of Santander, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating and helping one another, without authority of law and by means of violence, did then and there willfully, unlawfully and feloniously present the spouses Leoncio Wenceslao and Valeria B Wenceslao and their laborers from fencing a piece of land owned by the Wenceslaos, the fencing not being prohibited by law. In violation of Article 286 of the Revised Penal Code.(p 3, Rollo)

Upon arraignment on February 13, 1980, the accused pleaded "NOT GUILTY." In an order dated the same day, the trial of the case was set on March 14 and 25, 1980 both at 8:30 in the morning "as requested by the prosecution and defense." Representing the prosecution during the arraignment was Assistant Provincial Fiscal Sotero R. Camello, the prosecutor assigned to the sala of the respondent judge. Fiscal Camello inhibited himself from prosecuting the case because when he originally investigated the case, he recommended its dismissal. However, he was reversed by the Provincial Fiscal. The case was, therefore, assigned to Assistant Provincial fiscal Potot. On March 12, 1980, Fiscal Potot received notice of the hearing scheduled for March 14, 1980. On this same day, Fiscal Potot filed an urgent ex-parte motion for postponement stating among others that before learning of the scheduled March 14, 1980 hearing, he was already committed to appear in Branch 3 and Branch 12 of the Court of First Instance of Cebu and that on March 14, 25, and 26, 1980, all in the afternoon, he, as special prosecutor of the Tanodbayan, had already set for clarificatory examination the Toledo City Highways Engineering District cases for estafa and violation of Republic Act 3019. On the scheduled March 14,1980 hearing, the defense counsel objected to the postponement on the ground that the prosecution represented by Fiscal Camello had agreed to the scheduled hearings of March 14 and 25,1980 and manifested that on said dates Fiscal Potot will be available. The Court granted the motion for postponement of the scheduled March 14,1980 hearing but ordered the hearing on March 25, 1980 at 8:30 in the morning to be held as scheduled "on the ground that if other lawyers from Cebu City taking the ordinary

means of transportation can appear in this Court during its morning session and still have sufficient time to return to Cebu City for their afternoon court engagements, then there is no reason why Fiscal Potot cannot return on time for his afternoon hearing in the City." The Court also stated in its order granting the postponement. "However, if Fiscal Potot cannot really make it and considering that there are many assistants in the Provincial Fiscal's Office, then, any of the Assistant Provincial Fiscals must appear on said date and hour." On March 18, 1980, Fiscal Potot requested the Provincial Fiscal that the case be assigned to Assistant Provincial Fiscal Andres Amil. The case was transferred to Fiscal Amil on March 21, 1980. Fiscal Amil then filed a motion to postpone the scheduled March 25, 1980 hearing on the following grounds:
xxx xxx xxx 3. That the undersigned has long been committed to appear before the Municipal Circuit Court of Barili, Cebu which date was personally chosen by the undersigned and besides the undersigned is not prepared to enter a trial of the above-entitled case considering that he is not familiar with the facts of the case since the records of this case is with Assistant Provincial Fiscal Sotero R. Camello; 4. That it is physically impossible for the undersigned to be appearing on two courts in a distance about fifty kilometers apart. (p. 22, Rollo)

Fiscal Amil prayed that the hearing of the case be transferred to another date in the month of May, 1980. During the scheduled healing of March 25, 1980, the accused objected to the motion for postponement on the following grounds:
xxx xxx xxx ... .(1) that the motion was presented not in accordance with the Rules of Court and the three- day period as provided by the rules was not observed; (2) that one of the accused being an incumbent Municipal Mayor of Santander, Cebu, has to attend to many official duties within this jurisdiction; (3) that the grounds alleged in the motion for postponement are flimsy; and (4) that the accused are entitled to a speedy public trial. (p. 24, Rollo)

The accused also manifested their readiness for trial. They insisted on proceeding with the hearing. In an order dated March 25, 1980, the court, finding the grounds advanced by the accused meritorious, denied the motion for postponement and sustained the objections of the accused. The case was ordered dismissed for failure to prosecute. A motion for reconsideration filed by the People of the Philippines was denied.

Hence, this petition. The petitioners contend that the respondent court acted with grave abuse of discretion in the exercise of its judicial functionsa) in dismissing the information for Grave Coercion; b) in refusing arbitrarily and capriciously to reconsider his order of dismissal; c) by reason of which, the prosecution without due process of law was deprived of its day in court-which would be a stall (sic) in the machinery of justice. (p. 8, Rollo)

We have defined the light to a speedy trial in the following manner:

xxx xxx xxx ... [T]hat the accused is free from vexatious, capricious, and oppressive delays, its salutary objective being to assure that an innocent person may be free from anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatever legitimate defense he may interpose. (People v. Jardin, 124 SCRA 167,173; See Andres v. Cacdac, 113 SCRA 216). xxx xxx xxx ... [W]hether or not one has been denied speedy trial is not susceptible to precise quantification. At best, the constitutional right of speedy trial is relative, consistent with reasonable delays, taking into account the circumstances of each case. As expressed in Barket v. Wingo, 33 L., Ed 2d 101: ... [T]he right to a speedy trial is a more vague and generically different concept than other constitutional rights guaranteed to accused persons and cannot be quantified into a specified number of days or months, and it is impossible to pinpoint a precise time in the judicial process when the right must be asserted or considered waived. "[A] claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which the conduct of both the prosecution and the defendant are weighed, and courts should consider such factors as length of the delay, the defendant's assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, in determining whether defendant's right to a speedy tried has been denied..". (Martin v. Ver, 123 SCRA 746, 751) (Emphasis supplied)

Applying the foregoing principles, we sustain the dismissal order of the court below. The manner the prosecution handled a simple case of coercion is deplorable. It must be noted that after Fiscal Camello inhibited himself from the case because he could not in conscience prosecute the case considering that he had recommended its dismissal as its initial investigator and after prosecuting Fiscal Potot asked that he be relieved from the case because of his tight schedule, the court below specifically ordered that the case be assigned to another fiscal furnishing a copy of said order to the Provincial Fiscal himself.

The Provincial Fiscal assigned another Fiscal, Fiscal Amil, but it turned out that the latter like Fiscal Potot was not also available during the scheduled March 25,1980 healing because of previous commitments on the very same day. It must be stressed that in the March 14, 1980 order, after the motion for postponement of the scheduled hearing was approved, the court below categorically stated that the March 25, 1980 schedule must be maintained. And yet, the provincial fiscal's office despite notice of such order kept on changing the fiscals and assigned the case to prosecutors who at the time of their assignment to the case already had previous commitments. The cavalier attitude of the Provincial Fiscal's Office not only towards a more efficient management of its work but, more important, a greater respect for the rights of the accused greatly prejudiced the constitutional right to speedy trial of the private respondents. The case was a simple one. It did not need lengthy and tedious preparation for trial. This familiar ground for postponement previous and tight schedules of the prosecuting fiscal is so hackneyed and overused that it is time the Prosecution Service takes remedial measures. The excuse should be used sparingly and proof must be adduced that every honest effort to avoid botching the court's schedule has been taken. The provincial fiscal was aware of the court's order denying the motion to postpone the March 25, 1980 hearing. The trial court stated in its March 14, 1980 order" ... if Fiscal Potot cannot really make it and considering that there are many assistants in the provincial fiscal's office, then any of the assistant provincial fiscals must appear on the said date and hour." The two-months' delay of the trial from March 25, 1980 to May 1980, if requested for sound reasons may not be unreasonable. However, owing to the nature of the case, the reasons for the postponements, and the fact that one of the accused is a municipal mayor, who had to leave his work everytime he was haled to court only to be told to return another day, the delay became vexatious because the lower court stated "the delay is not only prejudicial to him but also to the people of Santander, Cebu." WHEREFORE, the instant petition is DISMISSED for lack of merit. The order of the then Court of First Instance of Cebu, Branch 15 dismissing Criminal Case No. AR-645 is AFFIRMED. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101302 January 25, 1995 JAIME C. DACANAY, Petitioner, vs. PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, Respondents.

QUIASON, J.: This is a "Petition for Review on Certiorari" which we treated as a petition under Rule 65 of the Revised Rules of Court to set aside the Resolutions dated April 24, 1991 and August 6, 1991 of the Sandiganbayan in Criminal Case No. 11957. I In 1985, petitioner was the vice-president of the National Sugar Trading Corporation (NASUTRA). In 1986, a criminal complaint for economic sabotage through smuggling, with regard to the importation of raw sugar in 1983 and 1984 by NASUTRA, was filed with the Tanodbayan against the principal officers of the said corporation including petitioner. On October 10, 1986, the Tanodbayan approved the resolution of the team of Special Prosecutors who investigated the case. it found sufficient prima facie evidence against petitioner and hi coaccused to warrant the filing of an information with respondent Sandiganbayan for violation of Section 3(e) of Republic Act No. 3019, as amended. The corresponding information was filed with the Sandiganbayan. On November 20, petitioner filed a motion to quash but he later withdrew the same. On October 14, 1988, a resolution was issued by Special Prosecutors Margarito P. Gervacio and Robert E. Kallos, recommending the dismissal of the complaint against petitioner and his coaccused for lack of sufficient evidence and the withdrawal of the information filed in court. The resolution was approved by Acting Special Prosecutor Jose Ferrer. On January 6, 1989, the resolution issued by Prosecutors Gervacio and Kallos was reviewed by special Prosecutor Wilfredo Orencia, who recommended its disapproval. The recommendation of

Prosecutor Orencia was approved by Acting Special Prosecutor Jose F. Guerrero and by Ombudsman Conrado Vasquez. On February 22, Jose Unson, a co-accused of petitioner, filed a motion to quash the information in the Sandiganbayan. The motion was adopted by petitioner. On December 12, the Sandiganbayan denied the motion to quash. Likewise, the motion for reconsideration filed by Unson and adopted by petitioner was denied. On April 3, 1991 petitioner filed a motion for immediate and separate trial invoking his constitutional right to a speedy trial (Rollo, p. 25). On April 23, respondent People of the Philippines opposed the said motion on the ground that a separate trial for petitioner would entail a lengthy and repetitious proceeding (Rollo, p. 28). In a resolution dated April 24, 1991, the Sandiganbayan denied petitioner's motion (Rollo, p. 20). On June 6, petitioner filed a motion for reconsideration setting forth as grounds therefor his advanced age and the protection of his reputation. On July 9, respondent People of the Philippines filed a comment to petitioner's motion for reconsideration and alleged that the parties should first await the resolution of the petition for certiorari filed by his co-accused Jose Unson with the Supreme Court. On July 17, petitioner filed a reply to the said comment. In a resolution dated August 6, 1991, the Sandiganbayan denied petitioner's motion for reconsideration (Rollo, p. 21). Hence, this petition. II The pivotal issue of this petition is whether or not petitioner is entitled to a separate trial. The petition is impressed with merit. Section 8, Rule 119 of the 1985 Rules on Criminal Procedure explicitly states: "When two or more accused are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the fiscal or any accused orders separate trials for one or more accused." The main objection of respondent People of the Philippines to he separate trial asked by Petitioner is that such a procedure would entail a repetitive presentation of evidence. A separate trial necessarily requires a repetition of the presentation of the same evidence. But the resulting

inconvenience and expense on the part of the Government cannot be given preference over the right to speedy trial and the protection to a person's life, liberty or property accorded by the Constitution. This is particularly true in the case of petitioner where the prosecutors' opposition to the request for separate trial was based on the ground that the principal accused in the case, the former President of NASUTRA, was abroad and was not yet arrested. If an accused cannot be placed under arrest because he remains outside the territorial jurisdiction of the Philippines, with more reason should his co-accused, who are under arrest, be entitled to a separate trial. However, the principal accused has since returned to the country and even entered into a compromise agreement with the Presidential Commission on Good Government, which we approved on March 31, 1992 in G.R. No. 96087. If the compromise agreement included the dropping of the criminal case against the principal accused, with more reason should petitioner be entitled to a separate trial in criminal Case No. 11957 of the Sandiganbayan. A separate trial is in consonance with the right of an accused to a speedy trial as guaranteed to him by the 1987 Constitution, more specifically under Section 14(2) of Article III thereof. As defined in the case of Flores v. People, 61 SCRA 331 (1974), a speedy trial is one "conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious and oppressive delays." The primordial purpose of this constitutional right is to prevent the oppression of an accused by delaying criminal prosecution for an indefinite period of time. Likewise, it is intended to prevent delays in the administration of justice by requiring judicial tribunals to proceed with reasonable dispatch in the trial of criminal prosecutions (Shepherd v. U.S., 163 F. 2d. 974 [1947]). It has been eight years since the information against petitioner was filed, but the case against him has yet to be tried. The long delay has clearly prejudiced petitioner, who is now more than seventy-three yeas of age. WHEREFORE, respondents are ORDERED to proceed with the trial of petitioner in Criminal Case No. 11957, separately if it need be. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur

EN BANC [G.R. No. 139180. July 31, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO RIVERA, accusedappellant. DECISION

MENDOZA, J.:

This is a review pursuant to Rule 122, 10 of the Rules of Criminal Procedure of the decision,lxxxii[1] dated June 22, 1999, of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant Rolando Rivera guilty of rape and sentencing him to suffer the penalty of death and to pay the offended party, Erlanie Rivera, the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages. The information against accused-appellant charged That sometime in the month of March 1997, in barangay Santiago, municipality of Lubao, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO RIVERA, by means of violence, threat and intimidation, did then and there willfully, unlawfully and feloniously, and maliciously succeeded in having carnal knowledge [of] his 13 year old daughter, Erlanie D. Rivera, against the latters will and without her consent. Contrary to law.lxxxii[2] When the information was read to him in the local dialect (Pampango) during his arraignment on September 30, 1997, accused-appellant, duly assisted by counsel de oficio, pleaded not guilty to the crime charged,lxxxii[3] whereupon trial was held. The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who conducted the physical examination of complainant. Complainant Erlanie Rivera testified that sometime in March 1997, her younger sister, Zaira,lxxxii[4] was taken by their parents to the Escolastica Romero Memorial Hospital in Lubao, Pampanga. Complainants mother stayed with her sister in the hospital, but her father, herein accused-appellant, went back home to Santiago, Lubao, Pampanga. At around 11 oclock in the evening of the same day, complainant was awakened as accused-appellant started kissing her and fondling her breasts. Complainant tried to resist by kicking and pushing accused-appellant, but her efforts were to no avail. Accused-appellant removed her shorts and panty, touched her private parts, and then had sexual intercourse with her. After he was through with her, accusedappellant told complainant not to tell anyone what had happened or he would kill complainants mother and sister. Hence, when her mother came home the following day, Erlanie did not tell her what had happened because she was afraid of accused-appellant. On April 9, 1997, however, Erlanie, in the presence of her mother, told her aunt, Marietta Pagtalunan, and her grandmother, Maxima Payumo, that she had been raped by accused-

appellant. For this reason, she was referred to Dr. Barin for physical examination. She also executed a sworn statement before the police of Lubao, Pampanga.lxxxii[5] Erlanie testified that she became pregnant as a result of the rape committed against her by accused-appellant, but the pregnancy was aborted.lxxxii[6] On cross-examination, she said she was 13 years old at the time of her testimony, the second child in the family. She said that her parents were not on good terms with each other and that she knew that her father had a mistress. Atty. Mangalindan, then defense counsel, questioned Erlanie about other supposed acts of molestation committed by accused-appellant against her previous to the rape subject of the present case, but, upon objection of the prosecution, the trial court disallowed the question on the ground that it concerned matters not covered by her direct examination.lxxxii[7] Erlanie testified that her mother, grandmother, aunt, and a certain Nora Baluyut were present when she made her sworn statement before the police. She said that her father raped her only once, sometime in March 1997. She could not remember the exact date when she was raped by accused-appellant, but she did remember that the same took place in March as her sister, Zaira, was hospitalized at the time. When the rape occurred, her younger brother and sister were in their house asleep. She did not tell her mother after the latter had returned home that she had been raped by accused-appellant because she was afraid of her father who had threatened her. After the rape, accused-appellant would only come home on Sundays.lxxxii[8] Questioned further on cross-examination, Erlanie said that she gave her sworn statement before the police and that her answers to questions asked during her direct examination were freely given without coaching by anyone. She could understand Tagalog, the language used in her sworn statement. She told the court that she struggled against accused-appellant, kicking and pushing him, but she was overpowered by her father. At that time, Erlanies younger sister, Corazon, was lying beside her, but Erlanie did not shout even when her father succeeded in penetrating her. Erlanie could not remember how long the sexual act took place, but she felt something like urine come out of her fathers penis after he was finished with her. Erlanie testified that she was 12 years old when she was raped by her father.lxxxii[9] On re-direct examination, when asked about the discrepancy between her testimony that her mother returned home only the day after the rape and her statement in her affidavit that accusedappellant slept beside her mother after the rape, Erlanie replied that she made a mistake as the incident narrated in her affidavit referred to a different occasion when no rape was committed against her by accused-appellant.lxxxii[10] The next witness for the prosecution was Marietta Pagtalunan, complainants aunt and the sister of complainants mother, Evangeline. Marietta corroborated Erlanies testimony that the latter told her sometime in April 1997 that she had been raped by accused-appellant. Marietta said she took complainant to Dr. Barin, who examined complainant.lxxxii[11] Dr. Demetria Barin was Chief Physician of the Escolastica Romero District Hospital. Her findings are as follows:

P.E. FINDINGS: - No signs of external Physical Injuries I.E. FINDINGS: HYMEN - healed laceration at 3:00 oclock VAGINA - Admits one finger with ease two fingers with difficulty UTERUS - not enlarged LMP - March 3, 1997 Pregnancy Test (+)lxxxii[12] Dr. Barin testified that on April 10, 1997, she examined complainant Erlanie Rivera and found that the victim had an injury in the hymen at the 3 oclock position which could possibly have been caused by the insertion of a hard object, such as a male organ. Dr. Barin testified that complainant Erlanie went back to see her on May 2, 1997 because she suffered from vaginal bleeding indicative of a threatened abortion. She said that she found that complainant was then pregnant. Upon examination of the patient at that time, Dr. Barin found that abortion had not yet taken place and prescribed medicines for the complainant. Erlanie was subjected to another pregnancy test on May 13, 1997, but the result was negative. Dr. Barin stated that the vaginal bleeding suffered by complainant could have caused the abortion of the fetus.lxxxii[13] Thereafter, the defense presented its evidence. Accused-appellant, his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, were presented as witnesses. Accused-appellant denied that he raped Erlanie Rivera. He alleged that the rape charge was filed against him because his wife, Evangeline, had a paramour and resented him because he hurt her. He explained that he saw his wife talking with another man in their house and beat her up on April 1, 1997 because he heard that she had a lover. He also said that his wife was angry with him because he had a mistress who stayed in their house for three weeks. He further stated that his wifes relatives were likewise angry with him because he caused the lot owned by his fatherin-law in Santiago, Lubao, Pampanga to be registered in his name. He said that he was compelled to sign a waiver of his rights over the land owned by his parents-in-law.lxxxii[14] The defense presented a letter to accused-appellant written by his wife, who was asking him to sign a document so that she could attend to it before he got out of prison.lxxxii[15] The defense also offered as evidence a document, designated as Waiver of Rights,lxxxii[16] signed by accused-appellant, in which he acknowledged that he was a tenant of a parcel of land and that he waived and voluntarily surrendered his right over the said landholding to the SMPCI, recommending that a certain Ponciano Miguel be given the land to work on the same.

The document was identified by accused-appellant in open court. He said that Ponciano Miguel was a first cousin of his wife and that he signed the document because his wifes relatives promised him that he would get out of prison after signing the document.lxxxii[17] Another witness for the defense was Concepcion Sayo, accused-appellants sister, who testified that in March 1997, accused-appellant lived with her family in Malawak, Bustos, Bulacan, to help her husband operate a fishpond. She said that accused-appellant stayed in their house during the entire month of March, except in March 19, 1997 when he stayed with their sister, Perla, in Tibagan, Bustos, Bulacan.lxxxii[18] The last defense witness was Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, who identifiedlxxxii[19] a certification, dated April 29, 1999, in which it was stated that Zaira Rivera was confined at that hospital from March 1 to March 2, 1997.lxxxii[20] On June 22, 1999, the trial court rendered a decision, the dispositive portion of which stated: WHEREFORE, the court finding the accused guilty beyond reasonable doubt of the crime of rape as charged. For having violated Article 335 of the Revised Penal Code, as amended by Republic Act 7659, with the attendant circumstances that the victim is under eighteen (18) years of age and the offender is the father of the victim and absent any circumstance that could mitigate the commission thereof, accused is hereby sentenced to suffer the supreme penalty of death by lethal injection. In line with established jurisprudence, said accused is also ordered to indemnify the offended party Erlanie Rivera in the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages. SO ORDERED.lxxxii[21] Hence, this appeal. Accused-appellant contends that: 1. The lower court failed to observe the constitutional right of the Accused-Appellant to due process and right to counsel; 2. The lower court failed to consider the evidence of the Accused-Appellant.lxxxii[22] I. Accused-appellant invokes his right to due process of law. He claims that he was denied the same because: (a) the trial judge disallowed his lawyer from cross-examining Erlanie Rivera concerning the latters sworn statements on the ground of irrelevance and immateriality; (b) the trial court denied the motion made by accused-appellants counsel de oficio to postpone the cross-examination of Dr. Barin, the examining physician, because of which the said counsel consequently waived the cross-examination of Dr. Barin; (c) the judge propounded numerous questions to accused-appellant during his cross-examination by the prosecutor; and (d) the trial courts decision was promulgated just one day after accused-appellant submitted his memorandum.

Procedural due process simply means that a person must be heard before he is condemned. The due process requirement is a part of a persons basic rights, not a mere formality that may be dispensed with or performed perfunctorily.lxxxii[23] Considering both the evidence and the law applicable to this case, we hold that accused-appellant has been accorded his right to due process. A. One basis for accused-appellants contention that he was denied due process is the refusal of the trial judge to allow Atty. Mangalindans questions concerning the other alleged acts of molestation committed by accused-appellant against complainant. Accused-appellant argues that no legal ground exists for the trial courts ruling. The transcript of stenographic notes concerning this incident shows the following: ATTY. MANGALINDAN: Q You mentioned in your testimony that you were molested by your father since 1996.

COURT: Are you referring to a chain of events because police station you are referring is something there are two places this girl testified that she was raped, you referred to us Acts of Lasciviousness and she did not testified about that, that is another case with another Court, we are only trying here a rape case that is only they you never mention. Only on the matters that she testified (sic). ATTY. MANGALINDAN: But this is also related to the rape case your Honor because I will confront it with another form of a question. ATTY. MANGALINDAN: Q Prior to this incident, were you molested by your father?

PROSECUTOR SANTOS: Immaterial, your Honor, whatever acts w[ere] done by the accused is not a subject of the case at bar. COURT: Let us confine [questioning] to the complaint at bar which is a rape case. ATTY. MANGALINDAN:

This is related to the incident because we are here your Honor to prove, we are trying to discredit her testimony. We will just direct our question touching on the direct examination. COURT: Only on the matters that she only testified that is only thing you can cross-examine. Only matters testified which is only a rape case let us not dwell the Court knows there are other cases Acts of Lasciviousness pending in the lower Court at the proper Court otherwise if I will allow you to ask questions on other matters specially I know you are pinpointing the Acts of Lasciviousness you are prolonging this case here (sic). ATTY. MANGALINDAN: I am trying to discredit the witness as one where the credibility as witness here your Honor is very important. I stated before our main cross-examination is the accused is not a plan in such case, although I do sympathize (sic). We would like to propound question that will discredit her as witness and a complainant not with her testimony alone. Our center of crossexamination is to discredit her as complaining witness that is why our question may not be limited to be accepted under the rule of cross-examination your Honor the cross-examination your Honor the cross-examiner is not limited on the direct-testimony of the witness but he can propound questions which may petition or destroy the credibility of the witness that is our view point (sic). PROSECUTOR SANTOS: We cannot dispute the right of accused to discredit or to adopt our credibility of our witness, but it should be done in the proper way, not to ask immaterial questions which are not related. ATTY. MANGALINDAN: The rule for cross-examination insofar as to destroy the credibility of the witness is not only limited to what the Honorable Fiscal we came approach of so many cross-examinations goes allow your Honor under the rules of Court insofar as this case is related to the present case we are trying, this is very related because even the witness I have transcript in my hand, testified not only the rape case your Honor she had testified by direct-examination the preparatory acts before the testimony of rape that she was been molested early, finger of the father, this were testified through by the witness, it is here direct-testimony it is not limited (sic). PROSECUTOR SANTOS: Prior to this incident were you molested by your father, obviously your Honor the question is not relevant. ATTY. MANGALINDAN:

Your Honor please Im very disagreeable (sic), I have not with me the transcript but I have read that you [can] ask questions concerning the rape case. COURT: A question referring to events prior to the complaint at bar.lxxxii[24] The trial court later issued an order, dated December 9, 1997, the pertinent parts of which provided: After private complainant testified on direct-examination, counsel for accused attempted to cross-examine her on matters relevant to the complaint for Acts of Lasciviousness which was objected to by Asst. Provincial Prosecutor Arturo G. Santos on the ground that private complainant did not testify on that matter but limited her testimony on the rape case only. Counsel for the accused argued that although that is correct nonetheless because [of] the sworn statement executed by private complainant identified by said witness in her direct examination and marked as Exhibit C for the prosecution, he is at liberty to cross-examine the witness on all matters stated in her sworn statement including that portion touching on the acts of lasciviousness subject matter of another case before another court. The Court sustained the objection. Section 6, Rule 132, Revised Rules on Evidence provides that the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue. The witness testified only on the rape case. She did not testify anything about acts of lasciviousness committed upon her person. She may not therefore be questioned on this matter because it is not connected with her direct testimony or has any bearing upon the issue. To allow adverse party to cross-examine the witness on the acts of lasciviousness which is pending trial in another court and which the witness did not testify is improper. Questions concerning acts of lasciviousness will not in any way test the accuracy and truthfulness and freedom from interest or bias or the reverse. On the contrary such questions, if allowed, will unduly burden the court with immaterial testimonies.lxxxii[25] In another order, dated January 13, 1998, the trial court gave accused-appellants counsel 20 days within which to elevate its ruling to the appellate court.lxxxii[26] The records reveal, however, that no such petition was filed by Atty. Mangalindan as regards this particular matter. The question, therefore, is whether the trial court correctly disallowed accused-appellants counsel from questioning complainant as regards the other supposed acts of lasciviousness contained in her sworn statement. On this point, Rule 132, 6 of the Revised Rules on Evidence provides:

Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest, bias or the reverse and to elicit all important facts bearing upon the issue. The right of a party to cross-examine a witness is embodied in Art. III, 14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, 1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him.lxxxii[27] The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the accused to confront the witnesses against him.lxxxii[28] The right of the accused to cross-examine a witness is, however, not without limits but is subject to the rules on the admissibility and relevance of evidence. Thus, in People v. Zheng Bai Hui,lxxxii[29] this Court upheld the ruling of the trial judge disallowing the questions propounded by the accuseds counsel on the ability of the arresting officer to distinguish between tawas and shabu without a laboratory examination, the academic degree of his training instructor, and the officers authorship of books on drug identity and analysis for being irrelevant, improper, and impertinent. In this case, accused-appellants counsel argued that his questions to Erlanie on the other acts of lasciviousness supposedly committed by accused-appellant against her were for the purpose of testing her credibility. There was, however, no showing on his part how these questions had any bearing on complainants credibility or on the truth of her claims. One is led to suspect that the purpose of these questions was to confuse complainant into committing mistakes in her answers during cross-examination that accused-appellants counsel could later use to possibly put complainants credibility, not to mention her character, in question. Accused-appellant insists that his counsel should have been allowed to ask questions in relation to the sworn statement executed by complainant. He cites Rule 132, 17 of the Revised Rules of Evidence which provides that: When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject matter may be inquired into by the other. Neither can this rule be invoked to justify the questioning of complainant which the trial court did not allow. As the above provision states, this rule applies to parts of an act, declaration, conversation, writing or record which is given in evidence. Indeed, the records show that after Erlanie had finished with her direct examination on November 25, 1997, the trial judge granted the motion made by Atty. Anselmo Mangalindan, accused-appellants private counsel, to postpone Erlanie Riveras cross-examination to allow

him time to secure copies of the transcript of stenographic notes of Erlanies testimony and thus enable him to fully question complainant.lxxxii[30] Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on January 13, 1998,lxxxii[31] February 10, 1998,lxxxii[32] March 12, 1998,lxxxii[33] March 31, 1998,lxxxii[34] April 7, 1998,lxxxii[35] May 12, 1998,lxxxii[36] May 26, 1998,lxxxii[37] May 28, 1998,lxxxii[38] and June 11, 1998,lxxxii[39] on Erlanies cross-examination took place because of the failure of Atty. Mangalindan to appear on the said trial dates. Erlanies cross-examination was continued on July 14, 1998 and July 23, 1998. Her cross-examination by accused-appellants counsel was thorough and covered various subjects, such as the nature of the relationship between her parents, who were present during the execution of her sworn statement, whether the same had been executed by her voluntarily, the date when she was raped by accused-appellant the reason for her delay in reporting the rape committed by accused-appellant, her understanding of Tagalog, who were with her in the house at the time of the rape, the details surrounding the rape committed against her, and her age. It is evident that accused-appellant and his counsel were given ample opportunity to conduct the cross-examination of Erlanie Rivera in order to test her truthfulness. B. The record shows that because accused-appellants private counsel was not present when Dr. Barin testified, Atty. Eddie Bansil was appointed by the trial court as accused-appellants counsel de oficio for that particular hearing. Atty. Bansil moved for the postponement of the witness cross-examination, but the trial court denied his request because, on the one hand, accused-appellant was a detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard the testimony of the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin.lxxxii[40] Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for postponement because he was biased against him. Accused-appellant claims that the counsel de oficio was not familiar with the facts of his case and was thus in no position to cross-examine Dr. Barin. While the Constitution recognizes the accuseds right to competent and independent counsel of his own choice, his option to secure the services of a private counsel is not absolute. For considering the States and the offended partys right to speedy and adequate justice, the court may restrict the accuseds option to retain a private counsel if the accused insists on an attorney he cannot afford, or if the chosen counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason.lxxxii[41] The trial court appointed Atty. Bansil a counsel de oficio to represent accused-appellant on October 6, 1998 because his regular counsel, Atty. Anselmo Mangalindan, was absent without any explanation. Atty. Mangalindan had previously been granted several postponements. As this Court ruled in another case: . . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels

who were not shown to be negligent, incompetent or otherwise unable to represent him.lxxxii[42] Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that day. Dr. Barins testimony on direct examination was simple, containing primarily a discussion of her findings on the hymenal laceration sustained by complainant. Her testimony did not require considerable study and extraordinary preparation on the part of defense counsel for the purpose of cross-examination. It seems Atty. Bansil no longer found it necessary to crossexamine Dr. Barin. Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated what questions his counsel wanted to ask from Dr. Barin. It may well be that these questions do not exist at all and that the importance given by accused-appellant to counsel de oficios failure to cross-examine the witness is exaggerated. Indeed, a medical examination of the victim, together with the medical certificate, is merely corroborative and is not an indispensable element of rape.lxxxii[43] The primordial issue in this case remains to be whether the complainants testimony, not Dr. Barins, established beyond reasonable doubt the crime of rape. C. Accused-appellant likewise points to the trial judges questions propounded to him during his cross-examination as an indication of the latters partiality for the prosecution. We find no merit in this contention. Where the trial court is judge both of the law and of the facts, it is oftentimes necessary in the due and faithful administration of justice for the presiding judge to re-examine a witness so that his judgment, when rendered, may rest upon a full and clear understanding of the facts.lxxxii[44] Our reading of the transcript of stenographic notes in this case shows that the trial judge merely wanted to clarify certain points relating to the defense of accused-appellant and not to establish his guilt. It is a judges prerogative to ask questions to ferret out the truth.lxxxii[45] It cannot be taken against him if the questions he propounds reveals certain truths which, in turn, tend to destroy the theory of one party.lxxxii[46] As this Court held: In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. . .lxxxii[47]

D. We also find no merit in accused-appellants argument that he was denied due process considering the speed with which the trial court rendered judgment against him, which judgment was promulgated one day after he filed his memorandum. The decision rendered by the trial court gives a clear account of the facts and the law on which it is based. It discusses in full the courts findings on the credibility of both the prosecution and defense witnesses and its evaluation of the evidence of both parties. What we said in the analogous case of People v. Mercadolxxxii[48] applies to this case: . . . A review of the trial courts decision shows that its findings were based on the records of this case and the transcripts of stenographic notes during the trial. The speed with which the trial court disposed of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a judge is not supposed to study a case only after all the pertinent pleadings have been filed. It is a mark of diligence and devotion to duty that a judge studies a case long before the deadline set for the promulgation of his decision has arrived. The one-day period between the filing of accused-appellants memorandum and the promulgation of the decision was sufficient time to consider their arguments and to incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering his decision with due dispatch. . . II. Coming now to the merits of this case, we find that the evidence proves beyond reasonable doubt the guilt of accused-appellant. In reviewing rape cases, we have been guided by the following principles: (a) An accusation for rape is easy to make, difficult to prove, and even more difficult to disprove; (b) In view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence for the defense.lxxxii[49] A. Well-settled is the rule that the lone testimony of a rape victim, by itself, is sufficient to warrant a judgment of conviction if found to be credible. It has likewise been established that when a woman declares that she has been raped she says in effect all that is necessary to mean that she has been raped, and where her testimony passes the test of credibility the accused can be convicted on the basis thereof. This is because from the nature of the offense, the sole evidence that can usually be offered to establish the guilt of the accused is the complainants testimony.lxxxii[50] Considering complainants tender age, her shy demeanor, and manner of testifying in court, the trial court found Erlanies testimony to be straightforward, natural, and convincing and accorded the same full faith and credit.lxxxii[51] Complainant told the court how she was awakened because accused-appellant kissed her and fondled her breasts. She narrated that she tried to resist accused-appellants advances by pushing and kicking him, but the latter succeeded in ravishing her. She told of how her father threatened to kill her mother and her siblings if she reported the incident. Despite the lengthy cross-

examination of accused-appellants counsel, she remained firm and steadfast in her story of how she was raped by her father. Her narration not only rings true and sincere but is consistent and unshaken on its material points. Complainants testimony is fully corroborated by the medical findings of Dr. Barin who examined complainant shortly after she had been raped. She found complainant to have suffered a hymenal laceration at the 3 oclock position which could have been caused by the penetration of a hard object, such as a male organ. Complainants failure to remember the date of the commission of the rape cannot be taken against her. The exact date when complainant was sexually abused is not an essential element of the crime of rape.lxxxii[52] Nor does the fact that complainant was sleeping beside her sister when the rape occurred detract from her credibility. The possibility of rape is not negated by the fact that the presence of even the whole family of the accused inside the same room produced the possibility of discovery. For rape to be committed, it is not necessary for the place to be ideal, for rapists respect neither time nor place for carrying out their evil designs.lxxxii[53] In sum, accused-appellant failed to show any reason why this Court should disbelieve complainants testimony. Indeed, the gravity of filing a case for incestuous rape is of such a nature that a daughters accusation must be taken seriously. It is against human experience for a girl to fabricate a story which would drag herself and her family to a lifetime of dishonor, unless it is the truth. More so when her charge could mean the execution of her own father, as in this case.lxxxii[54] Accused-appellants counsel on cross-examination made much of the discrepancy between complainants sworn statement where she stated that accused-appellant slept beside her mother after the rapelxxxii[55] and her testimony that her mother returned home from the hospital only the day after the rape took place.lxxxii[56] It must be pointed out, however, that discrepancies between a witness affidavit and his testimony in open court does not necessarily impair his credibility. Affidavits, which are taken ex parte, are often incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.lxxxii[57] Moreover, whether accused-appellant slept alone or with complainants mother after committing the rape of complainant is of no moment as it is a minor point that does not reflect on the commission of the crime itself. The rule is that discrepancies and inconsistencies on minor matters neither impair the essential integrity of the prosecution evidence as a whole nor reflect on the witness honesty. Such inconsistencies may in fact strengthen rather than weaken the credibility of the witness as they erase any suspicion of rehearsed testimony.lxxxii[58] Accused-appellant contends that complainant could not have been raped on March 1 or 2, 1997, the dates when her sister Zaira was hospitalized, because she had her last menstrual period on March 3, 1998 and thus she could not have gotten pregnant as a result of the rape. He argues that a woman who had her monthly period cannot be impregnated as a result of sexual intercourse five days before or five days after her last menstruation.lxxxii[59] Accused-appellant does not, however, cite any legal or medical authority for his thesis, except what he claims to be common knowledge. On the other hand, we have previously held that it is

hard to ascertain the exact date of fertilization inasmuch as more than two weeks is considered to be the life span of the spermatozoa in the vaginal canal.lxxxii[60] Hence, even granting that complainant could not have been impregnated by accused-appellant during the period alleged by him, it remains possible for complainant to have gotten pregnant afterwards. More importantly, it must be emphasized that pregnancy is not an element of the crime of rape and is, therefore, totally immaterial to the question of accused-appellants guilt.lxxxii[61] In other words, accusedappellant being the cause of complainants pregnancy is a non-issue in the prosecution of the crime of rape. What should not be lost sight of is the fact that complainants testimony constitutes proof beyond reasonable doubt that accused-appellant had carnal knowledge of her without her consent, and such fully established the crime of rape. B. Accused-appellant imputes ill motive on the part of complainants mother and her relatives for bringing charges against him. He claims that complainants mother resented the fact that he used to beat her up out of jealousy and that he had several paramours in the past. He further asserts that his wifes relatives were angry with him because of the land which he caused to be registered in his name to the prejudice of the latter. This allegation is without merit. Accused-appellant makes it appear that complainants mother was responsible for the filing of this case against him. This is not so. For that matter, his wife did not testify against him. It was his daughter, complainant, alone who denounced him in court. Accused-appellants claim that the motivation for the filing of this case was the animosity of his wifes relatives towards him caused by his land-grabbing of their land is likewise without any basis. It may be that his wifes relatives took advantage of his incarceration and made him sign his waiver of rights over the land.lxxxii[62] But this does not necessarily mean they conspired to persecute him. It is noteworthy that accused-appellant never claimed that the document which he signed (Exh. 3) existed before the filing of the criminal complaint against him or that his wifes relatives fabricated the charge against him because of his failure to sign the same. Indeed, what accused-appellants defense cannot explain is the hymenal laceration sustained by complainant or the steadfastness she has exhibited in pursuing the charge against her own father. It is doubtful that complainant would let herself be embroiled in a petty family dispute in exchange for her honor and dignity. We cannot believe that a young girl, like complainant, would invent a sordid tale of sexual abuse by accused-appellant unless it was the truth.lxxxii[63] Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, her testimony is trustworthy.lxxxii[64] Accused-appellant also raises the defense of denial and alibi. But the bare denial of accusedappellant cannot overcome the positive declarations of complainant. Denial, when unsubstantiated by clear and convincing evidence, constitutes negative self-serving evidence which deserves no greater evidentiary value than the testimony of a credible witness who testified on affirmative matters.lxxxii[65]

Accused-appellants sister, Concepcion Sayo, testified that accused-appellant lived with her family in Bulacan at the time of the rape. No other witness not related to accused-appellant, however, was called to corroborate her claim. We have already held that the defense of alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons. It is not improbable that these witnesses would freely perjure themselves for the sake of their loved ones.lxxxii[66] Accused-appellants defense thus fails to convince this Court. C. The foregoing discussion notwithstanding, we think that the imposition of the death penalty by the trial court is erroneous. It is settled that to justify the imposition of the death penalty, both the relationship of the victim and her age must be alleged and proved.lxxxii[67] Thus, in People v. Javier,lxxxii[68] where the victim was alleged to be 16 years old at the time of the commission of the rapes, it was held: . . . Although the victims age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victims age which was then 16 years old is just two years less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year old one insofar as physical features and attributes are concerned. A physically developed 16-year old lass may be mistaken for an 18year old young woman, in the same manner that a frail and young-looking 18-year old lady may pass as a 16-year old minor. Thus, it is in this context that independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established by the prosecution in order for said penalty to be upheld. A duly certified certificate of live birth showing complainants age, or some other official document on record, such as a school record, has been recognized as competent evidence.lxxxii[69] In this case, although complainants minority has been alleged in the information, no independent evidence was presented by the prosecution to prove the same. Complainant did not even state her age at the time of the rape during direct examination; it was only during her crossexamination when she stated that she was 12 years old at the time she was raped by her father.lxxxii[70] Nor was her birth certificate or baptismal certificate or any school record presented by the prosecution to prove the age of Erlanie at the time of the rape. Not even her mother, whose testimony could have been sufficient to prove the age of complainant,lxxxii[71] testified in this case. What was relied upon by the trial court was that fact that the age of the victim was undisputed by the defense.lxxxii[72] It also took judicial notice of the victims minority on account of her appearance.lxxxii[73]

We do not agree with this conclusion. The trial court can only take judicial notice of the victims minority when the latter is, for example, 10 years old or below. Otherwise, the prosecution has the burden of proving the victims age at the time of the rape and the absence of denial on the part of accused-appellant does not excuse the prosecution from discharging its burden.lxxxii[74] In a similar case, People v. Tundag,lxxxii[75] in which the trial court took judicial notice of the minority of the victim who was alleged to be 13 years old, we ruled: In this case, judicial notice of the age of the victim is improper, despite the defense counsels admission, thereof acceding to the prosecutions motion. As required by Section 3 of Rule 129, as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose. The prosecution having failed to present evidence as to complainants age, accused-appellant can be convicted only of simple rape, for which the penalty is reclusion perpetua. Consequently, the award of civil indemnity in the amount of P75,000.00 made by the trial court cannot be sustained. Such amount can only be awarded if the crime of rape was effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.lxxxii[76] Accordingly, the civil indemnity awarded to complainant must be reduced to P50,000.00 in consonance with current rulings.lxxxii[77] The award of moral damages in the amount of P50,000.00 to complainant is correct. Moral damages is awarded in rape cases without need of showing that the victim suffered from mental, physical, and psychological trauma as these are too obvious to require recital by the victim during trial.lxxxii[78] In addition to the damages given by the trial court, exemplary damages in the amount of P25,000.00 should likewise be awarded in favor of complainant. Accused-appellant being the father of complainant, such relationship can be appreciated as a generic aggravating circumstance warranting the award of exemplary damages. In rapes committed by fathers against their daughters, such award may be imposed to serve as a deterrent to other parents similarly disposed to commit the same crime.lxxxii[79] WHEREFORE, the decision of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant guilty of the crime of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay complainant Erlanie Rivera the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. SO ORDERED. Bellosillo, Puno, Vitug, Kapunan, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., Melo, Panganiban, and Buena, JJ., abroad on official business. Sandoval-Gutierrez J., on leave.

THIRD DIVISION [G.R. No. 140863. August 22, 2000] SOLAR TEAM ENTERTAINMENT, INC. and PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. ROLANDO HOW, in his capacity as Presiding Judge of the Regional Trial Court Branch 257 of Paraaque and MA. FE F. BARREIRO, respondents. DECISION GONZAGA-REYES, J.: The question raised in this instant petition for certiorari and mandamus is whether or not the trial court can indefinitely suspend the arraignment of the accused until the petition for review with the Secretary of Justice (SOJ) has been resolved. The facts of this case are not disputed. On May 28, 1999, the City Prosecutor of Paraaque filed an Informationlxxxii[1] for estafa against Ma. Fe Barreiro (private respondent) based on the complaintlxxxii[2] filed by Solar Team Entertainment, Inc. (petitioner). The case was docketed as Criminal Case No. 99-536 entitled People of the Philippines vs. Ma. Fe F. Barreiro before the Regional Trial Court of Paraaque City, Branch 257, presided by public respondent Judge Rolando G. How. Before the scheduled arraignment of private respondent on August 5, 1999 could take place, respondent court issued an Orderlxxxii[3]dated June 29, 1999, resetting the arraignment of private respondent on September 2, 1999 on the ground that private respondent had filed an appeal with the Department of Justice (DOJ).lxxxii[4] Private respondent manifested in the same Order that she would submit a certification from the DOJ granting due course to her appeal on or before the second scheduled arraignment.lxxxii[5] On September 24, 1999, respondent court issued an Orderlxxxii[6] denying petitioners motion for reconsideration of the order that previously reset the

arraignment of private respondent. Said order further rescheduled the arraignment of private respondent to November 18, 1999. On November 10, 1999, private respondent filed another Motion to Defer Arraignment.lxxxii[7] On November 15, 1999, before the scheduled date of the arraignment of private respondent and before the date set for the hearing of private respondents Motion to Defer Arraignment, respondent court issued an Orderlxxxii[8] further deferring the arraignment of private respondent until such time that the appeal with the said office (SOJ) is resolved.lxxxii[9] Petitioners motion for reconsideration of the order was denied by respondent court on November 22, 1999.lxxxii[10] Petitioner bewails the fact that six months have elapsed since private respondent appeared or submitted herself to the jurisdiction of respondent court and up to now she still has to be arraigned.lxxxii[11] Respondent court allegedly violated due process when it issued the assailed order before petitioner received a copy of the Motion to Defer Arraignment of private respondent and before the hearing for the same motion could be conducted.lxxxii[12] Petitioner points out that despite the order of respondent court dated September 26, 1999 which stated that the arraignment of private respondent on November 18, 1999 is intransferable, respondent court, in utter disregard of its own order, issued the now assailed order indefinitely suspending the arraignment of private respondent.lxxxii[13] Petitioner is convinced that the twin orders further delaying the arraignment of private respondent and denying the motion for reconsideration of petitioner violate Section 7, of the Speedy Trial Act of 1998 (RA 8493) and Section 12, Rule 116 of the Revised Rules on Criminal Procedure. Petitioner further submits that this instant petition raises a pure question of law of first impressionlxxxii[14] since it involves the application and interpretation of a law of very recent vintage, namely Republic Act No. 8493, otherwise known as the Speedy Trial Act of 1998.lxxxii[15] Petitioner mainly relies on Section 7 of said law that states that: Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial. The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. xxx By issuing the assailed order, respondent court allegedly committed grave abuse of discretion amounting to lack/excess of jurisdiction.lxxxii[16] Hence, this petition for certiorari and mandamus to nullify and set aside the order of respondent court dated November 15, 1999. Petitioner limits the issues to the following:

I. RESPONDENT COURT ERRED IN REFUSING TO ARRAIGN THE PRIVATE RESPONDENT DESPITE THE LAPSE OF THE TIME LIMIT OF THIRTY (30) DAYS MANDATORILY IMPOSED BY SECTION 7, OF REPUBLIC ACT NO. 8493, OTHERWISE KNOWN AS THE SPEEDY TRIAL ACT OF 1998; AND II. RESPONDENT COURT ERRED IN DEFYING SECTION 12, RULE 116, OF THE REVISED RULES ON CRIMINAL PROCEDURE.lxxxii[17] The instant petition is devoid of merit. The power of the Secretary of Justice to review resolutions of his subordinates even after the information has already been filed in court is well settled. In Marcelo vs. Court of Appeals,lxxxii[18] reiterated in Roberts vs. Court of Appeals,lxxxii[19] we clarified that nothing in Crespo vs. Mogullxxxii[20] forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information already having been filed in court.lxxxii[21] The nature of the Justice Secretarys power of control over prosecutors was explained in Ledesma vs. Court of Appeals lxxxii[22] in this wise: Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code,lxxxii[23] exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include 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; x x x x. Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx xxx Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service. Supervision and control of a department head over his subordinates have been defined in administrative law as follows: In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed.lxxxii[24] Procedurally speaking, after the filing of the information, the court is in complete control of the case and any disposition therein is subject to its sound discretion.lxxxii[25] The decision to suspend arraignment to await the resolution of an appeal with the Secretary of Justice is an exercise of such discretion. Consistent with our ruling in Marcelo,lxxxii[26] we have since then held in a number of cases that a court can defer to the authority of the prosecution arm to resolve, once and for all, the issue of whether or not sufficient ground existed to file the information.lxxxii[27] This is in line with our general pronouncement in Crespolxxxii[28] that courts cannot interfere with the prosecutors discretion over criminal prosecution.lxxxii[29] Thus, public respondent did not act with grave abuse of discretion when it suspended the arraignment of private respondent to await the resolution of her petition for review with the Secretary of Justice. In several cases, we have emphatically cautioned judges to refrain from arraigning the accused precipitately to avoid a miscarriage of justice.lxxxii[30] In Dimatulac vs.

Villon,lxxxii[31] the judge in that case hastily arraigned the accused despite the pending appeal of the accused with the DOJ and notwithstanding the existence of circumstances indicating the probability of miscarriage of justice. Said judge was reminded that he should have heeded our statement in Marcelolxxxii[32] that prudence, if not wisdom, or at least respect for the authority of the prosecution agency, dictated that he (respondent judge therein) should have waited for the resolution of the appeal then pending with the DOJ.lxxxii[33] It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice.lxxxii[34] Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case.lxxxii[35] Petitioner insists that in view of the passage of the Speedy Trial Act of 1998, the review authority of the Secretary of Justice after an information has been already filed in court may possibly transgress the right of a party to a speedy disposition of his case, in light of the mandatory tenor of the Speedy Trial Act of 1998 requiring that the accused must be arraigned within thirty (30) days from the filing of an information against him. Petitioner then impresses upon this Court that there is a need to reconcile the review authority of the Secretary of Justice and the Speedy Trial Act of 1998, and submits that the Secretary of Justice must review the appeal and rule thereon within a period of thirty (30) days from the date the information was filed or from the date the accused appeared in court (surrendered or arrested)lxxxii[36] if only to give meaning to the Speedy Trial Act. We are not persuaded. The authority of the Secretary of Justice to review resolutions of his subordinates even after an information has already been filed in court does not present an irreconcilable conflict with the thirty-day period prescribed by Section 7 of the Speedy Trial Act. Contrary to the urgings of petitioner, Section 7 of the Speedy Trial Act of 1998 prescribing the thirty-day period for the arraignment of the accused is not absolute. In fact, Section 10 of the same law enumerates periods of delay that shall be excluded in computing the time within which trial must commence. The pertinent portion thereof provides that: SEC. 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: xxx (f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the accused or his/her counsel or at the request

of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this subparagraph shall be excludable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial. Accordingly, the view espoused by petitioner that the thirty-day period prescribed by Section 7 of the Speedy Trial Act must be strictly observed so as not to violate its right to a speedy trial finds no support in the law itself. The exceptions provided in the Speedy Trial Act of 1998 reflect the fundamentally recognized principle that the concept of speedy trial is a relative term and must necessarily be a flexible concept.lxxxii[37] In fact, in implementing the Speedy Trial Act of 1998, this Court issued SC Circular No. 38-98, Section 2 of which provides that: Section 2. Time Limit for Arraignment and Pre-trial. The arraignment, and the pretrial if the accused pleads not guilty to the crime charged, shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The period of the pendency of a motion to quash, or for a bill of particulars, or other causes justifying suspension of arraignment shall be excluded. (Emphasis ours) As stated earlier, prudence and wisdom dictate that the court should hold in abeyance the proceedings while the Secretary of Justice resolves the petition for review questioning the resolution of the prosecutor. The delay in such a case is justified because the determination of whether the delay is unreasonable, thus amounting to a transgression of the right to a speedy trial, cannot be simply reduced to a mathematical process. Hence, the length of delay is not the lone criterion to be considered, several factors must be taken into account in determining whether or not the constitutional right to a speedy trial has been violated. The factors to consider and balance are the duration of the delay, reason thereof, assertion of the right or failure to assert it and the prejudice caused by such delay.lxxxii[38] The importance of the review authority of the Secretary of Justice cannot be overemphasized; as earlier pointed out, it is based on the doctrine of exhaustion of administrative remedies that holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts.lxxxii[39] We are not unmindful of the principle that while the right to a speedy trial secures rights to the defendant, it does not preclude the rights of public justice.lxxxii[40] However, in this case, petitioner as private complainant in the criminal case, cannot deprive private respondent, accused therein, of her right to avail of a remedy afforded to an accused in a criminal case. The immediate arraignment of private respondent would have then

proscribed her right as accused to appeal the resolution of the prosecutor to the Secretary of Justice since Section 4 of DOJ Order No. 223 of June 30, 1993 forestalls an appeal to the Secretary of Justice if the accused/appellant has already been arraigned.lxxxii[41] Hence, in this case, the order suspending the arraignment of private respondent merely allowed private respondent to exhaust the administrative remedies available to her as accused in the criminal case before the court could proceed to a fullblown trial. Conversely, in case the resolution is for the dismissal of the information, the offended party in the criminal case, herein petitioner, can appeal the adverse resolution to the Secretary of Justice.lxxxii[42] In Marcelo vs. Court of Appeals, this Court aptly pointed out that: the trial court in a criminal case which takes cognizance of an accuseds motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutors finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice.lxxxii[43] (Emphasis ours) The fact that public respondent issued the assailed order suspending the arraignment of private respondent before the Motion to Defer Arraignment of private respondent could be heard is not tantamount to grave abuse of discretion. It was well within the power of public respondent to grant the continuance since Section 10 (f) of the Speedy Trial Act of 1998 clearly confers this authority. Public respondent substantially complied with the requirement of Section 10 (f) of the Speedy Trial Act when it stated its reasons for the deferment and eventual suspension of the arraignment of private respondent in its orders dated September 24, 1999lxxxii[44] and November 22, 1999lxxxii[45]. In said orders, public respondent reasoned that the suspension of the arraignment of private respondent was to give the opportunity to the accused to exhaust the procedural remedies available,lxxxii[46] to allow the Secretary of Justice to review the resolution of the City Prosecutorlxxxii[47]so as not to deprive the former of his power to review the action of the latter by a precipitate trial of the case,lxxxii[48] and based on the discretionary power of the trial judge to grant or deny the motion to suspend the arraignment of the accused pending determination of her petition for review at the Department of Justice.lxxxii[49] Despite the absence of a law or regulation prescribing the period within which the Secretary of Justice must dispose of an appeal, the presumption still holds true that in the regular performance of his functions, the Secretary of Justice will decide the appeal in the soonest possible time. Recently, the Department of Justice issued Memorandum Order No. 12 dated July 3, 2000 mandating that the period for the disposition of appeals/petitions for review shall be 75 days.lxxxii[50] In view of this memorandum, the indefinite suspension of proceedings in the trial court because of a pending petition for review with the Secretary of Justice is now unlikely to happen.

Section 16 of Rule 110 of the Rules of Court does entitle the offended party to intervene in the criminal case if he has not waived the civil action or expressly reserved his right to institute it separately from the criminal action. However, the prosecution of the criminal case through the private prosecutor is still under the direction and control of the public prosecutorlxxxii[51] and such intervention must be with the permission of the public prosecutor.lxxxii[52] In this case, based on the power of control and supervision of the Secretary of Justice over public prosecutors, the pendency of the appeal of private respondent with the Secretary of Justice should have impelled the public prosecutor to move for the suspension of the arraignment of private respondent. Considering that private respondent had already informed the court of her appeal with the Secretary of Justice and had moved for the suspension of her arraignment, the public prosecutor should have desisted from opposing the abeyance of further proceedings. Lastly, petitioners argument that the suspension of the arraignment in this case was in violation of Section 12, Rule 116 of the Revised Rules on Criminal Procedure is likewise not tenable. Section 12, Rule 116 of the Revised Rules on Criminal Procedure provides that: Section 12. Suspension of Arraignment. The arraignment shall be suspended, if at the time thereof: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the case against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. (b) The court finds the existence of a valid prejudicial question.

There is nothing in the above-quoted provision that expressly or impliedly mandates that the suspension of arraignment shall be limited to the cases enumerated therein. Moreover, jurisprudence has clearly established that the suspension of arraignment is not strictly limited to the two situations contemplated in said provision.lxxxii[53] In fine, no grave abuse of discretion attended the issuance of the assailed order suspending the arraignment of private respondent until her petition for review with the Secretary of Justice is resolved. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

Garcia v Domingo 52 SCRA 143 (1973)

Posted by Evelyn Thursday, March 10, 2011

Facts: For the convenience of the parties the trial was held in the air conditioned chamber of the respondent judge Garcia. The complaint was under the premise that such act is in violation of the right to hold a public trial. Issue: Whether or not such proceeding of holding trial in the chamber of the judge in violation to the principle of right to a public trial. Held: It is not in violation of the right to a public trial since the trial was still open to public and there is no showing that the public was deprived to witness the trial proceeding.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 01-4-03-S.C. June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA. SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors. VITUG, J.: The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings. On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the

Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo. On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition,3 submitting the following exegesis: "3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made aware of. "4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings. "5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to railroad the instant criminal cases against the Former President Joseph Ejercito Estrada."4 Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation. In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read: "The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely. "While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated.

"Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. "In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated: "Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. 1wphi1.nt 'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' "Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. "Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. " Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television

coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated." Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth. 5 Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that would soon culminate in EDSA II. The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial.6 When these rights race against one another, jurisprudence7 tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence,8 and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public's attention9 and where the conclusions reached are induced not by any outside force or influence10 but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded. Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on."11 Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.12 It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion.13

To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create.14 The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15 An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.16 The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process17 which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process."18 This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices: "1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x. "2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is Simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth.

"3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. x x x "4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him -sometimes the difference between life and death -dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice." In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intruding upon the detached atmosphere that should always surround the judicial process.21 The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part of the judge. En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23rd October resolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on the question squarely." But were the cases decided by the U.S. courts and cited in the minority opinion really in point?

In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession or admissions made by the accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper; Inc., vs, Virginia,23 the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses. Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused."26 Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings. The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991 may not appear to be propitious. Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what alone is submitted before them.27 A trial is not a free trade of ideas, Nor is a competing market of thoughts the known test of truth in a courtroom.28 The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. SO ORDERED.1wphi1.nt

Davide, Jr., C.J., Pardo, Buena, and Gonzaga-Reyes, JJ., concur. Bellosillo, J. I join in the dissent of J. Puno. Melo, J. I join the dissents. Puno, J. Please see dissenting opinion. Kapunan, J. See concurring opinion. Mendoza, J. I concur in the majority opinion of Vitug, I. and join the separate opinion of Kapunan, J. Panganiban, J. See dissenting opinion. Quisumbing, J. I join in the dissent of J. Puno. Sandoval-Gutierrez, J. I concur. See my concurring opinion. Ynares-Santiago, J. On leave.

Footnotes:
1

Signed by KBP President Ruperto S. Nicdao, Jr. Letter to Hon. Hilario Davide Jr. by Ruperto Nicdao, 13 March 2001.

"Petition to Allow Live Radio and Television Coverage of the Court Hearings on the Plunder and Other Criminal Cases Filed Against Former President Joseph Ejercito Estrada, et al., Pending Before the Sandiganbayan."
4

Petition, pp. 3-4. Perfecto Fernandez, Law of the Press, 2nd Edition, p. 210.

Re: Live TV and radio coverage of the hearing of President Corazon C. Aquino Libel Case; infra.
7

People vs. Alarcon, 60 Phil 265; Estes vs. Texas, 381 US 532; Sheppard vs. Maxwell, 384 US 333.
8

People vs. Stapleton, 18 Colo. 568, 33 p. 167, 23. L.R.A 787, (1983). 75 American Jurisprudence 2d, p. 569. Patterson vs. Colorado, 205 US 454. Keating, American Jurisdiction 2d, p. 565. US Supreme Court Reports, 14 L ed 2d, p. 552.

10

11

12

13

As Mr. Justice Jackson, dissenting in Craig vs. Harney, 331 U.S. 396, aptly said: "Who does not prefer good to ill report of his work? And if fame -a good public name -is, as Milton said, the "last infirmity of the noble mind," it is frequently the "first infirmity of a mediocre one".
14

"Freedom of the Press vs. Impartial Justice," MLQ Quarterly, Volume 6, No.2, p. 100. Cf. Fay v. New York, 332 US 261; Offut vs. United States, 348 US 11. Ibid., p. 574. Mr. Justice Harran concurring in Estes vs. Texas, supra. Mr. Justice Tom Clark concurring in Estes vs. Texas, supra.

15

16

17

18

19

Re: Live TV and radio coverage of Pres. Corazon Aquino's Libel case, 23 October 1991.
20

381 U.S. 532, 14 L ed 2d 543, 85 S Ct. 1628. Mr. Justice Harlan, concurring in Estes vs. Texas, supra. 427 US 539. 448 US 555. 457 US 596. 449 US 560. Ibid., p. 758 Supra, p. 6. Frankfurter, J., dissenting in Bridges vs. California, 314 U.S. 252, 283.

21

22

23

24

25

26

27

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SECOND DIVISION [G.R. No. 109920. August 31, 2000] CEFERINO A. SORIANO, petitioner, vs. HON. ADORACION C. ANGELES, in her capacity as Presiding Judge of the Caloocan City, Regional Trial Court, Branch CXXI, and RUEL GARCIA, respondents.

DECISION MENDOZA, J.: This is a petition for certiorari to annul the decision rendered by the Regional Trial Court, Branch 121, Caloocan City, on March 15, 1993 in Criminal Case No. C-40740 which acquitted private respondent Ruel Garcia of direct assault. The prosecutions evidence was as follows: Private respondent Ruel Garcia and his uncle, Pedro Garcia, were members of the Caloocan police. Shortly after midnight on November 7, 1991, they barged into the barangay hall of Barangay 56, Zone 5 in Caloocan City, looking for petitioner Ceferino A. Soriano, the barangay captain. Private respondent gave petitioner fist blows on the face four times with his left hand, while he poked a gun at him with his right hand, at the same time cursing him, Putang ina mo cabeza (You son of a bitch chief). Although there were four barangay tanods (Manuel Montoya, Arturo del Rosario, Ramiro Samson, and Francisco Raton) in the barangay hall, they could not come to the aid of petitioner because they were held at bay by Pedro Garcia. The Garcias then left with their companions who had been waiting outside the hall. Petitioner was treated for his injuries in the hospital. Private respondent denied petitioners allegations. He testified that he went to the barangay hall in the evening of November 6, 1991 because his younger brother had been reportedly arrested and beaten up by petitioner. (It appears that the younger Garcia was involved in a brawl with Dennis Mones and a certain Ocampo. They were arrested and taken to the barangay hall. One of the boys, who was apparently drunk, vomitted while their names were recorded. Petitioner, therefore, ordered the three boys to be taken to the Ospital ng Kalookan for a check-up.) As private respondent saw petitioner near the door of the barangay hall, he asked for the whereabouts of his brother and the reason for the latters arrest. Apparently thinking that private respondent was trying to intervene in the case he was investigating, petitioner angrily told private respondent to lay off: Walang pulis pulis dito (Your being a policeman doesnt pull strings here). When private respondent insisted on going inside the barangay hall, petitioner blocked him and then pushed him on the chest. Private respondent also pushed petitioner, causing him to fall on a pile of nightsticks and injure himself. All the time, private respondent claimed he had his gun tucked at his waist. Private respondents uncle, Pedro Garcia, then arrived and took him home. In acquitting private respondent, respondent Judge Adoracion C. Angeles found it incredible that petitioner did not resist or even say anything when private respondent allegedly assaulted him and that none of the four barangay tanods who were near him came to his aid. She thought that if petitioner had indeed been attacked, he would have suffered more serious injuries than a contusion on the forehead, erythema on the chest, and a lacerated wound on the lower lip. Respondent judge also excluded from the evidence the testimonies of petitioner and barangay tanod Manuel Montoya on the

ground that their testimonies had not been formally offered in evidence as required by Rule 132, 34 to 35 of the Revised Rules on Evidence. Hence this petition for certiorari. Petitioner alleges that the decision is void because it was not rendered by an impartial tribunal. He contends that respondent judge was hell-bent on saving the private respondent from conviction and had pre-judged the case as shown by the fact that (1) on August 26, 1992, before private respondents arraignment, she called the parties and their counsels to her chambers and urged them to settle the case, and, when petitioner refused, she did not set the case for hearing until after three weeks allegedly to provide a cooling off period; (2) that at the initial trial on September 15 and 16, 1992, respondent judge again called on the parties to settle the case. Petitioner alleges that, while respondent judge stated in her order of September 15, 1992 cancelling the hearing on that date that this was done to enable Atty. Maria Lelibet Sampaga to study the case as she had been appointed as private respondents counsel only on that day, the same was actually a pretext, the real reason being to give private respondent another opportunity to persuade petitioner to settle the case. The records in fact show that Atty. Sampaga had been private respondents counsel at the arraignment on August 26, 1992; (3) that respondent judge excluded the testimonies of petitioner and his witness, Manuel Montoya, for failure of the prosecution to offer formally the same when the transcript of stenographic notes shows this was not so and that, at any rate, the defense waived the objection based on this ground by cross-examining petitioner and Montoya; and (4) that respondent judge failed to find private respondent guilty despite the testimonies of three eyewitnesses (barangay tanods Montoya, del Rosario, and Samson). Petitioner therefore prays that a mistrial be declared and that the case be ordered retried before another judge. On the other hand, private respondent Ruel Garcia contends that, if at the outset, petitioner doubted respondent judges impartiality, he should have sought her inhibition right then and there; that it was not true respondent judge called the parties to her chambers on August 26, 1992 as only the arraignment took place on that day; that at said arraignment, his counsel, Atty. Emilio Bermas, was absent for which reason respondent judge designated Atty. Maria Lelibet S. Sampaga to assist him; that the schedule of the trial (September 15, 16, and 21, 1992) was not fixed by respondent judge but by the clerk in charge of the matter, taking into account the schedule of the other cases assigned to the court; that it was only on the first day of trial on September 15, 1992 that respondent judge first talked to the parties, and, upon learning that both were public officers, thought it proper to ask them if they were not willing to settle their dispute, and seeing the parties and their counsels to be receptive, she invited them to her chambers; that as petitioner later appeared to have second thoughts and, on the other hand, as Atty. Sampaga needed time to prepare for trial, respondent judge postponed the trial to the next day, September 16, 1992; that on September 16, 1992, respondent judge again called the parties to her chambers to see if they had come to any agreement, but as she was told by petitioner that for him to withdraw his complaint against the private respondent, he must have to transfer his residence first, thus

implying that he wished the case against private respondent to continue, respondent judge proceeded with the trial that morning. Private respondent contends that the instant petition does not have the consent and conformity of the public prosecutor but was instead filed by the private prosecutor who does not have the requisite legal personality to question the decision acquitting him. Required to comment, the Solicitor General argues that this petition should be dismissed: A perusal of the judgment of the trial court showed that the parties were heard conformably to the norms of due process, evidence was presented by both parties and duly considered, their arguments were studied, analyzed, and assessed, and judgment was rendered in which findings of facts and conclusions of law were set forth. These conclusions of fact or law cannot in any sense be characterized as outrageously wrong or manifestly mistaken or whimsically or capriciously arrived at. The worst that may perhaps be said of them is that they are fairly debatable and may even be possibly erroneous. But they cannot be declared to have been made with grave abuse of discretion (Bustamante vs. NLRC, 195 SCRA 1991). Clearly, there was no mistrial in this case which would warrant the nullity of the assailed judgment.lxxxii[1] The preliminary issue in this case is whether the petition should be dismissed outright because it was filed without the intervention of the OSG as counsel for the prosecution. This question is not a novel one. In the case of People v. Santiago,lxxxii[2] this Court held: The question as to whether or not U.P., as the private offended party, can file this special civil action for certiorari questioning the validity of said decision of the trial court should be answered in the affirmative. It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the offense, the complainants role is limited to that of a witness for the prosecution. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused. In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State

and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in name of said complainant.lxxxii[3] The above ruling has been reiterated in De la Rosa v. Court of Appealslxxxii[4] and Perez v. Hagonoy Rural Bank, Inc.,lxxxii[5] in which the legal personality of private complainant to file a special civil action of certiorari questioning the dismissal by the trial court of a criminal case has been upheld subject to the limitation that the accuseds right to double jeopardy is not violated.lxxxii[6] As explained by the Court in People v. Court of Appeals:lxxxii[7] 7 A judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation, and, thus, cannot be the source of an acquittal. However, where the petition demonstrates mere errors in judgment not amounting to grave abuse of discretion or deprivation of due process, the writ of certiorari cannot issue. A review of the alleged errors of judgment cannot be made without trampling upon the right of the accused against double jeopardy.lxxxii[8] In short, petitioner must establish that the judgment of acquittal resulted from a mistrial so as not to place private respondent, as accused, in double jeopardy. In only one case has the Court categorically declared a mistrial, and that is the case of Galman v. Sandiganbayan.lxxxii[9] Petitioner would have the Court draw parallelisms between this case and Galman where the Court nullified the judgment of acquittal of the Sandiganbayan in Criminal Case Nos. 10010 and 10011 entitled People of the Philippines v. General Luther Custodio, et al. This cases is, however, a far cry from Galman. There, it was shown that evidence was suppressed in order to justify the acquittal of the accused. This Court held that the secret Malacaang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan [Manuel Pamaran] and Tanodbayan [Bernardo] Fernandez and the entire prosecution panel headed by Deputy Tanodbayan [Manuel] Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence.lxxxii[10] In contrast, petitioner does not allege any such irregularity in the trial of private respondent. He simply claims that respondent judges bias and partiality denied the prosecution a fair and impartial trial. Why respondent judge was biased for the defense petitioner does not say. It is noteworthy that petitioner does not even dispute private respondents allegation that respondent judge was not personally acquainted with him until she heard the criminal case against him.

It is pertinent at this point to cite certain principles laid down by the Court regarding the disqualification of a judge for lack of the objectivity that due process requires. It is settled that mere suspicion that a judge is partial to one of the parties is not enough; there should be evidence to prove the charge.lxxxii[11] Bias and prejudice cannot be presumed, especially weighed against a judges sacred allegation under oath of office to administer justice without respect to any person and do equal right to the poor and the rich.lxxxii[12] There must be a showing of bias and prejudice stemming from an extrajudicial source resulting in an opinion in the merits on some basis other than what the judge learned from his participation in the case.lxxxii[13] The arguments which petitioner advances by way of proof of respondents judges alleged bias are not persuasive. Respondent judges efforts to have the parties arrive at an amicable settlement is not evidence of partiality for private respondent. She could have been motivated by factors other than a desire to clear private respondent of criminal liability, i.e., the clearing of her court docket or, as pointed out by the OSG in its comment,lxxxii[14] in setting a good example considering that petitioner and private respondent were neighbors occupying public offices charged with the maintenance of peace and order in the community. As for the allegation that the trial was not held until after three weeks to give private respondent more time to persuade petitioner to amicably settle the case, it has been shown that it was not respondent judge but court personnel in charge of scheduling cases who assigned the dates of trial taking into account the court calendar. The cancellation of the September 15, 1992 hearing, on the other hand, was made to give private respondents counsel, Atty. Maria Lelibet Sampaga, time to study the case and prepare for trial. Although Atty. Sampaga had once appeared in behalf of private respondent, it was for the purpose of assisting the latter at the arraignment because the regular counsel was absent. As new counsel, Atty. Sampaga needed to study the case. A postponement to the next day, September 16, 1992, was not an unreasonable request. Indeed, this did not involve resetting the case since September 16, 1992 had been originally designated as one of the initial trial dates. Nor is there any showing that respondent judge decided the criminal case on grounds other than its merits. A reading of her decision acquitting private respondent shows that the same was made on the basis of her evaluation of the evidence of the prosecution and of the defense. Because of the conflicting versions of the parties as to what really happened, her decision was necessarily based on her appreciation of the credibility of the witnesses for the prosecution and the defense. True, petitioner is correct in his argument that respondent judge mistakenly excluded from the evidence his testimony as well as that of prosecution witness Manuel Montoya on the ground that the same had not been formally offered at the time they were called to the witness stand. For the fact was that petitioner and Montoya had been cross-

examined at length by the defense and, therefore, the latter had waived objection to the failure of the prosecution to make an offer of the evidence.lxxxii[15] It has been held in Go v. Court of Appeals,lxxxii[16] however, that divergence of opinion between the trial judge and a partys counsel as to the admissibility of evidence is not proof of bias or partiality. Besides, though respondent judge stated in her decision that the testimonies of petitioner and Montoya cannot be considered by this Court as constituting part of the evidence for the prosecution, her decision shows that she actually considered the testimonies in piecing together the prosecutions version of the events and in evaluating the evidence in the case. The testimonies of petitioner and Montoya were after all referred to by the other witnesses for the prosecution, namely, del Rosario and Samson. Thus respondent judges decision reads in pertinent part: The allegation of the private complainant that he neither resisted the punches of the accused nor said anything to the latter is quite hard to believe. No rational man would allow another to hurt him without offering any form of resistance, for he is instinctively concerned [with] his self-preservation. It is more in consonance with human nature that when one is hurt, especially if the feeling of innocence is within him, to immediately retaliate to an unjust act. Another equally unbelievable allegation is that the four barangay tanods just stood and watched their barangay captain while he was being mauled. There were four of them inside the hall yet no one even dared to defend herein private complainant or stop herein accused. If they could not do it for their barangay captain and inside their hall, how can they be expected to protect the residents of their barangay outside their hall? Furthermore, if herein private complainant was indeed mauled, he should have suffered a lot more serious injuries than he alleged[ly] incurred. Considering their allegation that the barangay tanods were guarded at the point of a gun by Pedro Garcia, herein accused thus had all the time and opportunity to inflict on the private complainant as many serious injuries as he could. But the results of the medical examination belie this point. Well-settled is the rule that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense (People vs. Dennis Mendoza, 203 SCRA 148, G.R. No. 85176, October 21, 1991). After a thorough examination of the pieces of evidence presented by the prosecution, the latter failed to fulfill the test of moral certainty and establish such degree of proof necessary to support conviction. If the inculpatory facts and circumstances are capable of one or more explanations, one of which is consistent with innocence and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. The constitutional presumption of innocence stands until overthrown by strong and convincing evidence, one of which will prove guilt beyond reasonable doubt (People vs. Gina Sahagun, 182 SCRA 91, G.R. No. 62024, February 12, 1990).

The testimonies of the prosecution witnesses are merely unfounded accusations insufficient to gain conviction. In the case of People vs. Guinto, 184 SCRA 287, G.R. 88400, April 6, 1990, the Supreme Court held: Accusation is not synonymous with guilt. The accused is protected by the constitutional presumption of innocence which the prosecution must overcome with contrary proof beyond reasonable doubt. Even if the defense is weak, the case against the accused must fail if the prosecution is even weaker. . . . If the prosecution has not sufficiently established the guilt of the accused, he has a right to be acquitted and released even if he presents naught a shred of evidence.lxxxii[17] That respondent judge believed the evidence of the defense more than that of the prosecution does not indicate that she was biased. She must have simply found the defense witnesses to be more credible.lxxxii[18] Indeed, no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of facts and evidence. A writ of certiorari cannot be used to correct a lower tribunals evaluation of the evidence and factual findings. Thus, in People v. Court of Appeals,lxxxii[19] the Court dismissed a petition for certiorari filed by the prosecution from a decision of the Court of Appeals reversing that of the trial court and acquitting the accused of homicide and serious physical injuries on the ground that he acted in self-defense. The Court held: To show grave abuse of discretion, herein petitioner contends that Respondent Court of Appeals committed manifest bias and partiality in rendering the assailed Decision. It claims that Respondent Court ignored and discarded uncontroverted physical evidence which the trial judge had relied upon. Furthermore, it allegedly erred in finding that he had base[d] his decision on the testimony of witnesses whose demeanor he did not personally witness. In addition, it supposedly harped on insignificant inconsistencies in the testimonies of some prosecution witnesses, while unquestioningly accepting the private respondents claim of self-defense. Finally, the solicitor general maintains that the assailed Decision (1) failed to discuss the effect of Maquilings escape from confinement during the pendency of the case; (2) shifted the burden of proof on the prosecution to prove Maquilings guilt, although he admitted killing the victim in self-defense; (3) ignored the physical evidence particularly the downward trajectory of the bullets that had hit the two victims, thereby showing that private respondent was still standing when he shot them; and the shotgun wound sustained by private respondent, which disabled him and rendered him incapable of shooting the victims. It is quite obvious from the foregoing allegations that petitioner imputed grave abuse of discretion to Respondent Court because of the latters supposed misappreciation and wrongful assessment of factual evidence. However, as earlier stressed, the present recourse is a petition for certiorari under Rule 65. It is a fundamental aphorism in law that a review of facts and evidence is not the province of the extraordinary remedy of

certiorari; which is extra ordinem beyond the ambit of appeal. Stated elsewise, factual matters cannot normally be inquired into by the Supreme Court in a certiorari proceeding. This Court cannot be tasked to go over the proofs presented by the parties and analyze, assess and weigh them again, in order to ascertain if the trial and the appellate courts were correct in according superior credit to this or that piece of evidence of one party or the other. The mere fact that a court erroneously decides a case does not necessarily deprive it of jurisdiction. Thus, assuming arguendo that a court commits a mistake in its judgment, the error does not vitiate the decision, considering that it has jurisdiction over the case. An examination of the 65-page Decision rendered by the Court of Appeals shows no patent and gross error amounting to grave abuse of discretion. Neither does it show an arbitrary or despotic exercise of power arising from passion or hostility. . . .lxxxii[20] Finally, petitioners claim that respondent judge was biased is belied by his failure to move for respondent judges inhibition. Petitioners claim that he did not do so because of his belief and desire for said respondent judge to finally return to her normal sense of fairness is a feeble excuse. His failure to file such motion stands as one more stark difference between this case and Galman since the private prosecutors in the latter case lost no time in seeking the disqualification of the members of the Sandiganbayan on grounds of manifest bias and partiality for the defense.lxxxii[21] WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

TUMEY V. OHIO, 273 U. S. 510 (1927)

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U.S. Supreme Court

Tumey v. Ohio, 273 U.S. 510 (1927)

Tumey v. Ohio

No. 527 Argued November 29, 30, 1926 Decided March 7, 1927 273 U.S. 510 ERROR TO THE SUPREME COURT OF OHIO Syllabus 1. To subject a defendant to trial in a criminal case involving his liberty or property before a judge having a direct, personal, substantial interest in convicting him is a denial of due process of law. P. 273 U. S. 522. 2. A system by which an inferior judge is paid for his service only when he convicts the defendant has not become so customary in the common law or in this country that it can be regarded as due process where the costs usually imposed are not so small as to be within the maxim de minimis non curat lex. Pp. 273 U. S. 523, 273 U. S. 531. Page 273 U. S. 511 3. Under statutes of Ohio, offenses against State prohibition, involving a wide range of fines enforceable by imprisonment, may be tried without a jury, before the mayor of any rural village situate in the county (however populous) in which offenses occur; his judgment upon the facts is final and conclusive unless so clearly unsupported as to indicate mistake, bias, or willful disregard of duty; the fines are divided between the State and village; the village, by means of the fines collected, hires attorneys and detectives to arrest alleged offenders anywhere in the county and prosecute them before the mayor; in addition to his salary, the mayor, when he convicts, but not otherwise, receive his fees and cost amounting to a substantial income; the fine offer a means of adding materially to the financial prosperity of the village, for which the mayor, in his executive capacity, is responsible. Held violative of the Fourteenth Amendment. Pp. 273 U. S. 520, 273 U. S. 531. 115 Oh.St. 701, reversed. ERROR to a judgment of the Supreme Court of Ohio which declined to review a judgment of the State Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of the Court of Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.) 580, which reversed a judgment of the Mayor of the Village of North College Hill convicting and fining Tumey for violation of the Ohio Prohibition Act and ordering that he be imprisoned until the fine and costs were paid. Page 273 U. S. 514

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the State, deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal Constitution Page 273 U. S. 515 because of the pecuniary and other interest which those statutes give the mayor in the result of the trial. Tumey, the plaintiff in error, hereafter to be called the defendant, was arrested and brought before Mayor Pugh, of the Village of North College Hill, charged with unlawfully possessing intoxicating liquor. He moved for his dismissal because of the disqualification of the Mayor to try him, under the Fourteenth Amendment. The Mayor denied the motion, proceeded to the trial, convicted the defendant of unlawfully possessing intoxicating liquor within Hamilton County, as charged, fined him $100, and ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and carried the case on error to the Court of Common Pleas of Hamilton County. That court heard the case and reversed the judgment on the ground that the Mayor was disqualified, as claimed. 25 Ohio Nisi Prius (N.S.) 580. The State sought review by the Court of Appeals of the first appellate district of Ohio, which reversed the Common Pleas and affirmed the judgment of the Mayor. 23 Ohio Law Reporter, 634. On May 4, 1926, the State Supreme Court refused defendant's application to require the Court of Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of right, asking that the judgment of the Mayor's Court and of the Appellate Court be reversed on constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed for the reason that no debatable constitutional question was involved in the cause. The judgment was then brought here upon a writ of error allowed by the Chief Justice of the State Supreme Court, to which it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262; Hetrick v. Village of Lindsey, 265 U. S. 384. This brings us to the merits of the case. Page 273 U. S. 516 The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White Oak, another village in Hamilton County, Ohio, on a warrant issued by the Mayor of North College Hill. The Mayor acted under the sections of the State Prohibition Act, and Ordinance No. 125 of the Village of North College Hill adopted in pursuance thereof. Section 6212-15 (Ohio General Code) provides that "No person shall after the passage of this act manufacture possess . . . any intoxicating liquors. . . ." Section 6212-17 provides that

". . . any person who violates the provisions of this act (General Code, Sections 6212-13 to 621220) for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense he shall be fined not less than five hundred dollars nor more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years. . . ." The Mayor has authority, which he exercised in this case, to order that the person sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner received a credit of sixty cents a day for each day's imprisonment. By a recent amendment, that credit has been increased to one dollar and a half a day. Sections 13716, 13717, Ohio Gen.Code. Section 62118 provides, in part, that "Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the county with whom the affidavit is filed charging a violation of any of the provisions of this act (G.C. Sections 6212-13 to 6212-20) when the offense is alleged to have been committed in the county in which such mayor, justice of the peace, or judge Page 273 U. S. 517 may be sitting, shall have final jurisdiction to try such cases upon such affidavits without a jury, unless imprisonment is a part of the penalty, but error may be prosecuted to the judgment of such mayor, justice of the peace, or judge as herein provided." Error from the Mayor's Court lies to the court of Common Pleas of the County, and a bill of exceptions is necessary to present questions arising on the evidence. Sections 10359, 10361, Ohio General Code. The appellate review in respect of evidence is such that the judgment can only be set aside by the reviewing court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake or bias on the part of the trial court, or a willful disregard of duties. Datesh v. State, 23 Ohio Nisi Prius (N.S.) 273. Section 6212-19 provides that "Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to the general revenue fund, one-half to the treasury of the township, municipality or county where the prosecution is held, according as to whether the officer hearing the case is a township, municipal, or county officer." Section 6212-37 provides that "The council of any city or village may by ordinance authorize the use of any part of the fines collected for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose of hiring attorneys, detectives. or secret service officers to secure the

enforcement of such prohibition law. And such council are hereby authorized to appropriate not more than five hundred dollars annually from the general revenue funds for the purpose of enforcing the law prohibiting the manufacture and sale of intoxicating liquors, when there are no funds available from the fines collected for the violation of such prohibitory law." Under the authority of the last section, the Village Council of North College Hill passed Ordinance No. 125, as follows: Page 273 U. S. 518 "An ordinance to provide for compensation to be paid from the secret service funds of the Village of North College Hill, Hamilton County, Ohio, created by authority of Section 62137, of the General Code of Ohio, to detectives, secret service officers, deputy marshals' and attorneys' fees, costs, etc., for services in securing evidence necessary to conviction and prosecuting violation of the law of the state of Ohio prohibiting the liquor traffic." "Be it ordained by the Council of the Village of North College Hill, Hamilton County, Ohio:" "Section I. That fifty percent of all moneys hereafter paid into the treasury of said village of North College Hill, Ohio, that is one-half of the share of all fines collected and paid into and belonging to said village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio prohibiting the liquor traffic, shall constitute a separate fund to be called the Secret Service Fund to be used for the purpose of securing the enforcement of any prohibition law." "Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation for their services in securing the evidence necessary to secure the conviction of persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 percent. of the fine collected, and other fees allowed by law." "Section II. That the attorney at law of record prosecuting persons charged with violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount equal to 10 percent. of the fine collected, in all cases, whether the plea be guilty or not guilty." "Section IV. That detectives and secret service officers shall receive as compensation for their services in securing the evidence necessary to secure the conviction of Page 273 U. S. 519 persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 percent. of the fine collected."

"Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases." "Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the immediate preservation of the public peace and safety, made necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from and after its passage." The duties of the Mayor of a village in Ohio are primarily executive. Sections of the General Code of Ohio provide as follows: "Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer, marshal, street commissioner, and such other officers and departments thereof as are created by law." "Section 4255. . . . He (the Mayor) shall be the chief conservator of the peace within the corporation. . . . He shall be the president of the council, and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie." "Section 4258. . . . He shall see that all ordinances, bylaws and resolutions are faithfully obeyed and enforced." "Section 4259. The mayor shall communicate to council from time to time a statement of the finances of the municipality and such other information relating thereto and to the general condition of affairs of the municipality as he deems proper or as may be required by council." "Section 4262. The mayor shall supervise the conduct of all the officers of the corporation. . . . " Page 273 U. S. 520 The fees which the Mayor and Marshal received in this case came to them by virtue of the general statutes of the state applying to all state cases, liquor and otherwise. The Mayor was entitled to hold the legal fees taxed in his favor. Ohio General Code, 4270; State v. Nolte, 111 O.S. 486. Moreover, the North College Hill village council sought to remove all doubt on this point by providing ( 5, Ord. 125, supra), that he should receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted. There is, therefore, no way by which the Mayor may be paid for his service as judge if he does not convict those who are brought before him, nor is there any fund from which marshals, inspectors and detectives can be paid for their services in arresting and bringing to trial and furnishing the evidence to convict in such cases, except it be from the initial $500 which the village may vote from its treasury to set the court going, or from a fund created by the fines thereafter collected from convicted defendants.

By an Act of 1913 (103 O.L. 290), the Mayor's court in villages in Hamilton County and in half a dozen other counties with large cities was deprived of jurisdiction to hear and punish misdemeanors committed in the county beyond the limits of the corporation. The Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O.L., Pt. 1, 388 and Pt. 2, 1182) changed this, and gave to the Mayor of every village in the State jurisdiction within the county in which it was situate to try violations of that Act. Counsel for the State in their brief explain the vesting by state legislatures of this country of jurisdiction in village courts as follows: "The purpose of extending the jurisdiction in the first instance was to break up places of outlawry that were located on the municipal boundary just outside of the city. The Legislature also Page 273 U. S. 521 faced the situation that, in some of the cities the law enforcement agencies were failing to perform their duty, and therefore, in order that those forces that believe in enforcement and upholding of law might have some courts through which process could be had, it gave to mayors county-wide jurisdiction." It was further pointed out in argument that the system by which the fines to be collected were to be divided between the State and the village was for the proper purpose of stimulating the activities of the village officers to such due enforcement. The Village of North College Hill in Hamilton County, Ohio, is shown by the federal census to have a population of 1104. That of Hamilton County, including the City of Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came to office after ordinance No. 125 was adopted, and that there was a division of public sentiment in the village as to whether the ordinance should continue in effect. A petition opposing it and signed by a majority of the voters was presented to Mayor Pugh. To this, the Mayor answered with the declaration that, if the village was in need of finances, he was in favor of, and would carry on, "the Liquor Court," as it was popularly called, but that, if the court was not needed for village financial reasons, he would not do so. It appears that substantial sums were expended out of the village treasury, from the fund made up of the fines thus collected, for village improvements and repairs. The Mayor was the owner of a house in the village. Between May 11, 1923 and December 31, 1923, the total amount of fines for violation of the prohibition law, collected by this village court, was upwards of $20,000, from which the State received $8,992.50, North College Hill received $4,471.25 for its general uses, $2,697.25 was placed to the credit of the village safety fund, and the balance was put in the secret service fund. Out of this, the person acting as prosecutor in the liquor court received Page 273 U. S. 522

in that period $1,796.50; the deputy marshals, inspectors and other employees, including the detectives, received $2,697.75, and $438.50 was paid for cost in transporting prisoners, serving writs and other services in connection with the trial of these cases. Mayor Pugh received $696.35 from these liquor cases during that period as his fees and costs, in addition to his regular salary. That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided is, of course, the general rule. Dimes v. Grand Junction Canal, 3 H.L.C. 759; Gregory v. Railroad, 4 O.S. 675; Peace v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105 Mass. 225; Kentish Artillery v. Gardiner, 15 R.I. 296; Moses v. Julian, 45 N.H. 52; State v. Crane, 36 N.J.L. 394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich. 341; Findley v. Smith, 42 W.Va. 299; Nettleton's Appeal, 28 Conn. 268; Cooley's Constitutional Limitations, 7th ed., p. 592, et seq. Nice questions, however, often arise as to what the degree or nature of the interest must be. One is in respect of the effect of the membership of a judge in a class of taxpayers or others to be affected by a principle of law, statutory or constitutional, to be applied in a case between other parties and in which the judge has no other interest. Then the circumstance that there is no judge not equally disqualified to act in such a case has been held to affect the question. Wheeling v. Black, 25 W.Va. 266, 280; Peck v. Freeholders of Essex, 20 N.J.L. 457; Dimes v. Grand Junction Canal, 3 H.L.C. 759 (see Baron Parke's Answer for the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s.c. 2 Roll.Abridg. 93; Evans v. Gore, 253 U. S. 245, 253 U. S. 247; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. 496; Ranger v. Railroad, 5 H.L.C. 72. We are not embarrassed by such considerations here, for there were available in this case other judicial officers who had Page 273 U. S. 523 no disqualification either by reason of the character of their compensation or their relation to the village government. All questions of judicial qualification may not involve constitutional validity. Thus, matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case. The Mayor of the Village of North College Hill, Ohio, had a direct, personal, pecuniary interest in convicting the defendant who came before him for trial, in the twelve dollars of costs imposed in his behalf, which he would not have received if the defendant had been acquitted. This was not exceptional, but was the result of the normal operation of the law and the ordinance. Counsel for the State do not deny this, but assert the validity of the practice as an exception to the general rule. The rely upon the cases of Ownbey v. Morgan, 256 U. S. 94; Murray's Lessee v. Hoboken Land and Improvement Company, 18 How. 272, 59 U. S. 276-280. These cases show that, in determining what due process of law is, under the Fifth or Fourteenth Amendment, the Court must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, which were shown not to have been

unsuited to their civil and political condition by having been acted on by them after the settlement of this country. Counsel contend that, in Ohio and in other States, in the economy which it is found necessary to maintain in the administration of justice in the inferior courts by justices of the peace and by judicial officers of like jurisdiction, the only compensation which the State and county Page 273 U. S. 524 and township can afford is the fees and costs earned by them, and that such compensation is so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty, or as prejudicing the defendant in securing justice, even though the magistrate will receive nothing if the defendant is not convicted. We have been referred to no cases at common law in England prior to the separation of colonies from the mother country showing a practice that inferior judicial officers were dependent upon the conviction of the defendant for receiving their compensation. Indeed, in analogous cases, it is very clear that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to decide rendered the decision voidable. Bonham's Case, 8 Coke, 118a; s.c. 2 Brownlow and Goldesborough's Rep. 255; City of London v. Wood, 12 Modern Rep. 669, 687; Day v. Savage, Hobart 85, 87; Hesketh v. Braddock, 3 Burrows 1847, 1856, 1857 and 1858. As early as the 12th Richard II, A.D. 1388, it was provided that there should be a commission of the justices of the peace, with six justices in the county once a quarter, which might sit for three days, and that the justices should receive four shillings a day "as wages," to be paid by the sheriffs out of a fund made up of fines and amercements, and that that fund should be added to out of the fines and amercements from the courts of the Lords of the Franchises, which were hundred courts allowed by the King by grant to individuals. It was required that the justices of the peace should be knights, esquires or gentlemen of the land -- qualifications that were not modified until 1906. The wages paid were used "to defray their common diet," and soon became obsolete. 1 Holdsworth's History of English Law, 288, 289. The wages paid were not dependent on conviction Page 273 U. S. 525 of the defendant. They were paid at a time when the distinction between torts and criminal case was not clear, Holdsworth, Vol. 2, 363, 365; Vol. 3, 328, and they came from a fund which was created by fines and amercements collected from both sides in the controversy. There was always a plaintiff, whether in the action for a tort or the prosecution for an offense. In the latter, he was called the prosecutor. If he failed to prove his case, whether civil or criminal, he was subject to amercement pro falso clamore, while if he succeeded, the defendant was in misericordia. See Comm. v. Johnson, 5 S. & R. (Pa.) 195, 198; Musser v. Good, 11 Id. 247. Thus, in the outcome, someone would be amerced in every case, and the amercements generally went to the Crown, and the fund was considerable. The Statute of Richard II remained on the

statute book until 1855, when it was repealed by the 18th and 19th Victoria. Meantime, the hundred courts by franchise had largely disappeared. The wages referred to were not part of the costs. The costs at common law were the amounts paid either by the plaintiff or prosecutor or by the defendant for the witnesses or services of the court officers. Burn's Justice, Vol. 1, p. 628. Chitty's Criminal Law, 4 ed. 1841, Vol. 1, 829. See also 14 George III, ch. 20, 1774. For hundreds of years, the justices of the peace of England seem not to have received compensation for court work. Instead of that, they were required, upon entering upon the office, to pay certain fees. Holdsworth, Vol. 1, p. 289; 19 Halsbury's Laws of England, 1152. Local judges in towns are paid salaries. There was at the common law the greatest sensitiveness over the existence of any pecuniary interest, however small or infinitesimal, in the justices of the peace. In Hawkins, 2 Pleas of the Crown, we find the following: "The general rule of law certainly is that justices of the peace ought not to execute their office in their own case [citing 1 Salk. 396], and even in cases where such Page 273 U. S. 526 proceeding seems indispensably necessary, as in being publicly assaulted or personally abused, or their authority otherwise contemned while in the execution of their duty, yet if another justice be present, his assistance should be required to punish the offender (Stra. 240)." "And by the common law, if an order of removal were made by two justices, and one of them was an inhabitant of the parish from which the pauper was removed, such order was illegal and bad on the ground that the justice who was an inhabitant was interested, as being liable to the poor's rate. (Rex v. Great Chart, Burr. S.C.194, Stra. 1173.)" And this strict principle, unless there is relief by the statute, is seen in modern cases. Queen v. The Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9 Law Times Reports (N.S.) 423; The Queen v. Rand, Law Reports, 1st Queen's Bench, 230; Queen v. Gafford, 1st Queen's Bench Division, 381; 19 Halsbury's Laws of England 1156. There was, then, no usage at common law by which justices of the peace or inferior judicial officers were paid fees on condition that they convicted the defendants, and such a practice certainly cannot find support as due process of law in English precedent. It may be that the principle, as stated in Blackstone, Book 3rd, page 400, that the King shall neither pay nor receive costs, because it is the King's prerogative not to pay them to a subject and is beneath his dignity to receive them, was misunderstood and led, as suggested by Mr. Lewis in his edition of Blackstone, Vol. 3, p. 400, n. 60, to the practice in some States, in minor cases, of allowing inferior judges no compensation except by fees collected of the convicted defendant; but whether it did or not, the principle relied on did not support the practice. That practice has prevailed, and still prevails, in Arkansas, Kentucky, Nebraska, North Carolina, Georgia, Ohio and Texas, and it seems

Page 273 U. S. 527 at one time to have obtained in Indiana, Oregon, Illinois and Alabama. In two of these States only has the question been considered by their courts, and it has been held that provision for payment to the judge of fees only in case of conviction does not disqualify him. Those are Bennett v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791. There is no discussion in either of the question of due process of law. The existence of a statute authorizing the practice seems to have been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88, the judge was paid a regular salary, fixed by law. The fund out of which this was paid was increased by fees and fines collected in his court, but there is no evidence that payment of his salary was dependent on the amount of his collections or convictions. In Herbert v. Baltimore County, 97 Md. 639, the action was by a justice of the peace against a county for services in criminal cases. A new law limited him to $10 a month. The statement of the case does not distinctly show that, in convictions, he would have had a larger compensation from his costs collected out of the defendant, but this may be assumed from the argument. His contention was that the new law was invalid because it did not give the defendants before him due process. The court held against him, chiefly on the ground that he must be satisfied with the compensation the law afforded him. Responding to his argument that the new law was invalid because justices would be induced to convict when in justice they should acquit, the court said: "We cannot recognize the force of this suggestion, founded as it is upon the assumption that the justices will violate their oaths and the duties of their office, and not upon anything that the law authorizes to be done." So far as the case goes, it is an authority for the contention of the State, but the issue thus raised was not Page 273 U. S. 528 considered at length, and was not one which, in such an action, the court would be patient to hear pressed by the justice whose constitutional rights were not affected. Tyler v. Court, 179 U. S. 405, 179 U. S. 409; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 199 U. S. 318. In the case of Probasco v. Raine, Auditor, 50 O.S. 378, the question arose whether the fee of 4 percent. payable to county auditors for placing omitted property on the duplicate list for taxation, which required investigation and quasi-judicial consideration, was invalid. The court held that it was not, and that the objection urged there could not be based on the argument that a man could not be a judge in his own case; that the auditor had no case to be adjudged, but that, on the contrary, he was the taxing officer before whom other parties were cited to appear and show cause why they should not bear their equal burden of taxation. The court said that the action of the auditor was not final so as to cut off further inquiry, but that the whole case might be gone into anew by proper proceedings in court. An exactly opposite conclusion was reached by the

United States Circuit Court for the Northern District of Ohio in Meyers v. Shields, 61 Fed. 713, 725 et seq. In other States than those above-mentioned, the minor courts are paid for their services by the State or county regardless of acquittal or conviction, except that, in Virginia, the minor courts receive one-half of the usual fees where there is acquittal. Four States have put into their constitutions a provision that the State must pay the costs in such cases in case of acquittal. They are California, Florida, Louisiana and South Carolina. The strict common law rule was adopted in this country as one to be enforced where nothing but the common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against the municipal corporation of which they have been residents. Diveny v. Page 273 U. S. 529 Elmira, 51 N.Y. 506; Corwein v. Names, 11 Johns. 76; Clark v. Lamb, 2 Allen 396; Dively v. Cedar Falls, 21 Iowa 565; Fulweiler v. St. Louis, 61 Mo. 479; Petition of New Boston, 49 N.H. 328; Commonwealth v. McLane, 4 Gray 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and with the legislatures, the strict rule seemed to be inconvenient, impracticable, and unnecessary, and the view was taken that such remote or minute interest in the litigation might be declared by the Legislature not to be a reason for disqualification of a judge or juror. A case, much cited, in which this conclusion was reached and in which the old English corporation cases were considered was that of City Council v. Pepper, 1 Richardson (S.C.) 364. The recorder of the City of Charleston sentenced a nonresident of the city for violation of a city ordinance requiring him to take out a license for what he did or to pay a fine not exceeding $20. The contention was that the defendant was a noncorporator and nonresident, and not subject to the jurisdiction of the city court; that the recorder was a corporator and interested in the penalty, and therefore was not competent to try the cause. The Court said (p. 366) in respect to Hesketh v. Braddock, 3 Burrows 1847, supra: "It will be remarked that that case depends altogether upon the common law, and if the city court depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and jurisdiction of the city court commences with the Act of 1801. By that Act, it is clothed with the power of trying all offences against the by laws of the city, and for that purpose is given concurrent jurisdiction with the court of Sessions. This grant of power is from all the people of the State, through their Legislature, and surely they have the power to dispense with the common law objection that the corporators Page 273 U. S. 530 were interested, and ought not to be intrusted with the enforcement of their laws against others. The authority given to the city court to try all offenders against the city ordinances impliedly declares that, notwithstanding the common law objection, it was right and proper to give it the

power to enforce the city law against all offenders. That there was great reason in this cannot be doubted when it is remembered that the interest of the corporators is so minute as not to be even thought of by sheriff, juror, or judge. It is very much like the interest which similar officers would feel in enforcing a State law the sanction of which was a penalty. The sum thus to be recovered goes in exoneration of some part of the burden of government to which every citizen is subjected, but such an interest has no effect upon the mind. It is too slight to excite prejudice against a defendant. The same thing is the case here. For the judge, sheriff and jurors, are members of a corporation of many thousand members. What interest of value have they in a fine of twenty dollars? It would put a most eminent calculator to great trouble to ascertain the very minute grain of interest which each of these gentlemen might have. To remove so shadowy and slight an objection, the Legislature thought proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors, with authority to try the defendant, and he cannot now object to it." And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v. Reed, 1 Gray 472, 475; Thomas v. Mt. Vernon, 9 Ohio 290; Commissioners v. Lytle, 3 Ohio 289; Wheeling v. Black, 25 W.Va. 266, 280; Board of Justices v. Fennimore, 1 N.J.L.190; Foreman v. Mariana, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104; Commonwealth v. Emery, 11 Cushing 406; Barnett Page 273 U. S. 531 v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791; State v. Craig, 80 Maine 85. Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594, points out that the real ground of the ruling in these cases is that "interest is so remote, trifling and insignificant that it may fairly be supposed to be incapable of affecting the judgment of or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judge or jurors in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest." But the learned judge then proceeds: "But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority." Referring then to a remark in the case of the Matter of Leefe, 2 Barb.Ch. 39, that the people of the State, when framing their constitution, might possibly establish so great an anomaly, if they saw fit, the learned author says: "Even this must be deemed doubtful, since the adoption of the fourteenth article of the amendments to the Federal Constitution, which denies to the state the right to deprive one of life, liberty or property without due process of law."

From this review, we conclude that a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex. The Mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act Page 273 U. S. 532 for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. It is certainly not fair to each defendant, brought before the Mayor for the careful and judicial consideration of his guilt or innocence, that the prospect of such a loss by the Mayor should weigh against his acquittal. These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not that of a small community engaged in enforcing its own local regulations. The court is a state agency imposing substantial punishment, and the cases to be considered are gathered from the whole county by the energy of the village marshals and detectives regularly employed by the village for the purpose. It is not to be treated as a mere village tribunal for village peccadillos. There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it; but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law. But the pecuniary interest of the Mayor in the result of his judgment is not the only reason for holding that due process of law is denied to the defendant here. The statutes were drawn to stimulate small municipalities in the country part of counties in which there are large cities, to organize and maintain courts to try persons accused of violations of the Prohibition Act everywhere in the county. The inducement is offered of dividing between Page 273 U. S. 533 the State and the village the large fines provided by the law for its violations. The trial is to be had before a mayor without a jury, without opportunity for retrial, and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence unless it should appear to be so manifestly against the evidence as to indicate mistake, bias or willful disregard of duty by the trial court. The statute specifically authorizes the village to employ detectives, deputy marshals, and other assistants to detect crime of this kind all over the county, and to bring offenders before the

Mayor's court, and it offers to the village council and its officers a means of substantially adding to the income of the village to relieve it from further taxation. The mayor is the chief executive of the village. He supervises all the other executive officers. He is charged with the business of looking after the finances of the village. It appears from the evidence in this case, and would be plain if the evidence did not show it, that the law is calculated to awaken the interest of all those in the village charged with the responsibility of raising the public money and expending it, in the pecuniarily successful conduct of such a court. The mayor represents the village, and cannot escape his representative capacity. On the other hand, he is given the judicial duty, first, of determining whether the defendant is guilty at all, and second, having found his guilt, to measure his punishment between $100 as a minimum and $1,000 as a maximum for first offenses, and $300 as a minimum and $2,000 as a maximum for second offenses. With his interest as mayor in the financial condition of the village, and his responsibility therefor, might not a defendant with reason say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine? The old English cases, cited above, of the Page 273 U. S. 534 days of Coke and Holt and Mansfield, are not nearly so strong. A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139 Mass. 315; Florida ex rel. Colcord v. Young, 31 Fla. 594. It is, of course, so common to vest the mayor of villages with inferior judicial functions that the mere union of the executive power and the judicial power in him cannot be said to violate due process of law. The minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact. The difference between such a case and the plan and operation of the statutes before us is so plain as not to call for further elaboration. Counsel for the State argue that it has been decided by this Court that the legislature of a State may provide such system of courts as it chooses; that there is nothing in the Fourteenth Amendment that requires a jury trial for any offender; that it may give such territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing sinister or constitutionally invalid in giving to a village mayor the jurisdiction of a justice of the peace to try misdemeanors committed anywhere in the county, even though the mayor presides over a village of 1,100 people and exercises jurisdiction over offenses committed in a county of 500,000. This is true, and is established by the decisions of this Court in Missouri v. Lewis, 101 U. S. 22, 101 U. S. 30; In re Claasen, 140 U. S. 200. See also Carey v. State, 70 Ohio State 121. It is also correctly pointed out that it is completely within the power of the legislature to dispose of the fines collected Page 273 U. S. 535

in criminal cases as it will, and it may therefore divide the fines as it does here, one-half to the State and one-half to the village by whose mayor they are imposed and collected. It is further said with truth that the legislature of a State may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the State and the people. The legislature may offer rewards or a percentage of the recovery to informers. United States v. Murphy & Morgan, 16 Pet. 203. It may authorize the employment of detectives. But these principles do not at all affect the question whether the State, by the operation of the statutes we have considered, has not vested the judicial power in one who, by reason of his interest both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant. It is finally argued that the evidence shows clearly that the defendant was guilty, and that he was only fined $100, which was the minimum amount, and therefore that he cannot complain of a lack of due process, either in his conviction or in the amount of the judgment. The plea was not guilty, and he was convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He seasonably raised the objection, and was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome and because of his official motive to convict and to graduate the fine to help the financial needs of the village. There were thus presented at the outset both features of the disqualification. The judgment of the Supreme Court of Ohio must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed.
Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

January 21, 1918 G.R. No. L-12990 THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER, ET AL., defendants-appellants.

Modesto Castillo, Eusebio Lopez and G. N. Trinidad for appellants. Acting Attorney-General Paredes for appellee. MALCOLM, J.: We find the proven facts as brought out in the trial of this case to be as follows: Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan, Province of Batangas. On the following morning when he went to look after the animal, he found the gate to the corral open and that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez leading the carabao. When the ladrones saw the Constabulary, that scattered in all directions. On the following day, the Constabulary found this carabao tied in front of the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao was identified by Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of the accused. As corroborative of such evidence, we have the well-known legal principle, which as applied to cases of this character is that, although the persons who unlawfully took a certain carabao are not recognized at the time, and their identity remains entirely unknown, nevertheless, if the stolen animal is found in the possession of the accused shortly after the commission of the crime and they make no satisfactory explanation of such possession they may be properly convicted of the crime. (See U. S. vs. Divino [1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified against them falsely because of enmity is hardly believable. The foregoing statement of the facts and the law disposes of all but one assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of sergeant Presa, now deceased, whose signature was identified, before the justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5), which says that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to cross-examine the witnesses against him." With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of the Philippine origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of crossexamination. It was intended to prevent the conviction of the accused upon deposition or ex parte

affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination." In other words, confrontation is essential because crossexamination is essential. A second reason for the prohibition is that a tribunal may have before it the department and appearance of the witness while testifying. (U. S. vs. Anastacio [1906], 6 Phil., 413.) The Supreme Court of the Philippine Islands has applied this constitutional provisions on behalf of accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902], 1 Phil., 374; U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil., 87.) It is for us now to determine whether the present facts entitle the accused to the protection of the Bill of Rights or whether the facts fall under some exception thereto. The sworn statement of Presa was not made by question and answer under circumstances which gave the defense an opportunity to cross-examine the witness. The proviso of the Code of Criminal Procedure as to confrontation is therefore inapplicable. Presa's statement again is not the testimony of a witness deceased, given in a former action between the same parties relating to the same matter. Consequently, the exception provided by section 298, No. 8, of the Code of Civil Procedure and relied upon by the prosecution in the lower court is also inapplicable. Nor is the statement of Presa a dying declaration or a deposition in a former trial or shown to be a part of the preliminary examination. Under these circumstances, not to burden the opinion with an extensive citation of authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.]) occurring in the year 1696. It appears that a deposition of B., examined by the Mayor of Bristol under oath, but not in P's presence, was offered. It was objected that B, being dead, the defendant had lost all opportunity of crossexamining him. The King's Bench consulted with the Common Pleas, and "it was the opinion of both courts that these deposition should not be given in evidence, the defendant not being present when they were taken before the Mayor and so had lost the benefit of a cross-examination." Although we are faced with the alternative of being unable to utilize the statements of the witness now deceased, yet if there has been no opportunity for cross-examination and the case is not one coming within one of the exceptions, the mere necessity alone accepting the statement will not suffice. In fine, Exhibit B was improperly received in evidence in the lower court. With such a resolution of this question, we could, as has been done in other cases, further find this to be reversible error and remand the case for a new trial. We are convinced, however, that this would gain the accused nothing except delay for the testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted by no reasonable evidence on behalf of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt. The facts come under article 518, No. 3, in connection with article 520, as amended, of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and one day of presidio correccional, with the accessory penalties provided by law, and to pay one-third part of costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not already been done. So ordered.

Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

January 21, 1918 G.R. No. L-12990 THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER, ET AL., defendants-appellants. Modesto Castillo, Eusebio Lopez and G. N. Trinidad for appellants. Acting Attorney-General Paredes for appellee. MALCOLM, J.: We find the proven facts as brought out in the trial of this case to be as follows: Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan, Province of Batangas. On the following morning when he went to look after the animal, he found the gate to the corral open and that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez leading the carabao. When the ladrones saw the Constabulary, that scattered in all directions. On the following day, the Constabulary found this carabao tied in front of the house of one Pedro Monterola in the barrio of Santa

Clara, municipality of San Pablo. The carabao was identified by Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of the accused. As corroborative of such evidence, we have the well-known legal principle, which as applied to cases of this character is that, although the persons who unlawfully took a certain carabao are not recognized at the time, and their identity remains entirely unknown, nevertheless, if the stolen animal is found in the possession of the accused shortly after the commission of the crime and they make no satisfactory explanation of such possession they may be properly convicted of the crime. (See U. S. vs. Divino [1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified against them falsely because of enmity is hardly believable. The foregoing statement of the facts and the law disposes of all but one assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of sergeant Presa, now deceased, whose signature was identified, before the justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5), which says that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to cross-examine the witnesses against him." With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of the Philippine origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of crossexamination. It was intended to prevent the conviction of the accused upon deposition or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination." In other words, confrontation is essential because crossexamination is essential. A second reason for the prohibition is that a tribunal may have before it the department and appearance of the witness while testifying. (U. S. vs. Anastacio [1906], 6 Phil., 413.) The Supreme Court of the Philippine Islands has applied this constitutional provisions on behalf of accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902], 1 Phil., 374; U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil., 87.) It is for us now to determine whether the present facts entitle the accused to the protection of the Bill of Rights or whether the facts fall under some exception thereto. The sworn statement of Presa was not made by question and answer under circumstances which gave the defense an opportunity to cross-examine the witness. The proviso of the Code of Criminal Procedure as to confrontation is therefore inapplicable. Presa's statement again is not the testimony of a witness deceased, given in a former action between the same parties relating to the same matter. Consequently, the exception provided by section 298, No. 8, of the Code of Civil Procedure and relied upon by the prosecution in the lower court is also inapplicable. Nor is the statement of Presa a dying declaration or a

deposition in a former trial or shown to be a part of the preliminary examination. Under these circumstances, not to burden the opinion with an extensive citation of authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.]) occurring in the year 1696. It appears that a deposition of B., examined by the Mayor of Bristol under oath, but not in P's presence, was offered. It was objected that B, being dead, the defendant had lost all opportunity of crossexamining him. The King's Bench consulted with the Common Pleas, and "it was the opinion of both courts that these deposition should not be given in evidence, the defendant not being present when they were taken before the Mayor and so had lost the benefit of a cross-examination." Although we are faced with the alternative of being unable to utilize the statements of the witness now deceased, yet if there has been no opportunity for cross-examination and the case is not one coming within one of the exceptions, the mere necessity alone accepting the statement will not suffice. In fine, Exhibit B was improperly received in evidence in the lower court. With such a resolution of this question, we could, as has been done in other cases, further find this to be reversible error and remand the case for a new trial. We are convinced, however, that this would gain the accused nothing except delay for the testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted by no reasonable evidence on behalf of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt. The facts come under article 518, No. 3, in connection with article 520, as amended, of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and one day of presidio correccional, with the accessory penalties provided by law, and to pay one-third part of costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not already been done. So ordered. Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.