Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. Nos.

74989-90 November 6, 1989 JOEL B. CAES, Petitioner, vs. Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon. ALFREDO M. GORGONIO, in his capacity as the Presiding Judge of the Regional Trial Court of Caloocan City, Branch CXXV, National Capital Region and PEOPLE OF THE PHILIPPINES, Respondents.

On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduled for October 13, 1982, but this was reset upon agreement of the parties. 5 chanrobles virtual law library On November 15, 1982, the trial was again postponed for reasons that do not appear in the record. 6 chanrobles virtual law library On December 20, 1982, the trial was again postponed because the prosecution witnesses were absent. 7 chanrobles virtual law library On January 19, 1983, the third resetting of the case was also canceled, no reason appearing in the record. 8 chanrobles virtual law library On February 21, 1983, no trial could be held again, the because witnesses being absent. 9 chanrobles virtual law library On March 21, 1983, the trial was reset once more, again because the prosecution witnesses were absent. 10 chanrobles virtual law library On April 19, 1983, the trial of the case had not yet started. It was reset because the prosecution witnesses were again absent. 11 chanrobles virtual law library On June 3, 1983, a sheriffs return informed the trial court that the prosecution witnesses, namely, Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had been personally served with subpoena to appear and testify at the hearing scheduled on June 6, 1983. 12 chanrobles virtual law library On June 6, 1983, the trial was again postponed, this time because there was no trial fiscal. 13 chanrobles virtual law library

CRUZ, J.: We deal with a simple matter that should not detain us too long. Fittingly, we shall decide it in favor of individual liberty rather than upon rebuttable presumptions and dubious implications.chanroblesvirtualawlibrary chanrobles virtual law library The facts are simple and mostly undisputed.chanroblesvirtualawlibrary chanrobles virtual law library On November 21, 1981, petitioner Joel Caes was charged in two separate informations with illegal possession of firearms and illegal possession of marijuana before the Court of First Instance of Rizal. 1 The cases were consolidated on December 10, 1981. 2 chanrobles virtual law library Arraignment was originally scheduled on January 11, 1982, but was for some reason postponed. 3 chanrobles virtual law library

On July 12, 1983, trial was reset for lack of material time. chanrobles virtual law library On September 6, 1983, The trial was once more reset by agree-judgment of the parties. 15 chanrobles virtual law library On October 19, 1983, the trial was reset to November 14, 1983. 16 chanrobles virtual law library

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same is granted.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in the morning. 19 chanrobles virtual law library A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied on October 9, 1984, and the revived cases were set from hearing on November 19, 1984. 20 chanrobles virtual law library The petitioner questioned the judge's order on certiorari with this Court, which reffered his petition to the respondent court. The petition there was dismissed for lack of merit on May 20, 1986, and reconsideration was denied on June 17, 1986. 21 Caes then came to us again.chanroblesvirtualawlibrary chanrobles virtual law library The present petition is based on two arguments, to wit: (a) that the motion to revive the cases was invalid because it was riot filed by the proper party nor was a copy served on the petitioner; and (b) the revival of the cases would place the petitioner double jeopardy in violation of the Bill of Rights.chanroblesvirtualawlibrary chanrobles virtual law library We sustain the petitioner on both counts.chanroblesvirtualawlibrary chanrobles virtual law library It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. 22 This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. 23The witnesses, even if they are the complaining witnesses, cannot act for the prosecutor in the handling of the case. Although they may ask for the filing of the case, they have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent

On November 14, 1983, the prosecution moved for the provisional dismissal of the case because its witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonio issued the following order: In view of the failure of the prosecution witnesses to appear on several scheduled hearing and also for the hearing today which is an indication of lack of interest, upon motion of the trial fiscal for the provisional dismissal of these cases and with the conformity of the accused, the above-entitled cases are hereby ordered Provisionally Dismissed, with costs de oficio. 17 chanrobles virtual law library On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he had been promoted in the meantime) and Sgt. Lustado who alleged that they could not attend the hearing scheduled on November 14, 1983, for lack of notice. 18 Copy of the motion was furnished the City Fiscal of Caloocan City but not the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library On May 18, 1984, the respondent judge issued the following order: Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by the complaining witnesses to which no opposition has been filed either by the Fiscal or the defense, and considering that the dismissal of these cases was only provisional, for reasons stated in the motion, the

the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else.chanroblesvirtualawlibrary chanrobles virtual law library It follows that the motion for the revival of the cases filed by prosecution witnesses (who never even testified) should have been summarily dismissed by the trial judge. The mere fact that the government prosecutor was furnished a copy of the motion and he did not interpose any objection was not enough to justify the action of these witnesses. The prosecutor should have initiated the motion himself if he thought it proper. The presumption that he approved of the motion is not enough, especially since we are dealing here with the liberty of a person who had a right at least to be notified of the move to prosecute him again. The fact that he was not so informed made the irregularity even more serious. It is curious that the motion was granted just the same, and ex parte at that and without hearing, and the petitioner's subsequent objection was brushed aside.chanroblesvirtualawlibrary chanrobles virtual law library On the second issue, the position of the public respondent is that double jeopardy has not attached because the case was only provisionally dismissed and it was with the conformity of the accused. The petitioner denies that he consented to the dismissal and submits that the dismissal was final notwithstanding its description.chanroblesvirtualawlibrary chanrobles virtual law library Fittingly described as "res judicata in prison grey," the right against double jeopardy prohibits the prosecution of a person for a crime of which he has been previously acquitted or convicted. The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense.chanroblesvirtualawlibrary chanrobles virtual law library

It has been held in a long line of cases 24 that to constitute double jeopardy, there must be: (a) a valid complaint or information; (b) filed before a competent court; (c) to which the defendant had pleaded; and (d) of which he had been previously acquitted or convicted or which was dismissed or otherwise terminated without his express consent.chanroblesvirtualawlibrary chanrobles virtual law library There is no question that the first three requisites are present in the case at bar. What we must resolve is the effect of the dismissal, which the petitioner contends finally and irrevocably terminated the two cases against him. His submission is that the dismissal was not provisional simply because it was so designated, more so since he had not expressly consented thereto.chanroblesvirtualawlibrary chanrobles virtual law library It is settled that a case may be dismissed if the dismissal is made on motion of the accused himself or on motion of the prosecution with the express consent of the accused. 25 Such a dismissal is correctly denominated provisional. But a dismissal is not provisional even if so designated if it is shown that it was made without the express consent of the accused. This consent cannot be presumed nor may it be merely implied from the defendant's silence or his failure to object. As we have held in a number of cases, such consent must be express, so as to leave no doubt as to the defendant's conformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice to the refiling of the case.chanroblesvirtualawlibrary chanrobles virtual law library There are instances in fact when the dismissal will be held to be final and to dispose of the case once and for all even if the dismissal was made on motion of the accused himself. The first is where the dismissal is based on a demurrer to the evidence filed by the accused after the prosecution has rested. Such dismissal has the effect of a judgment on the merits and operates as an acquittal. In People v. City of Silay, 27 for example, the trial court dismissed the case on motion of the accused on the ground of insufficiency of the prosecution

evidence. The government came to this Court on certiorari, and the accused pleaded double jeopardy. Our finding was that the case should not have been dismissed because the evidence submitted by the prosecution was not insufficient. Even so, the petitioner had to be denied relief because the dismissal amounted to an acquittal on the merits which was therefore not appealable. Justice Muoz-Palma said: "However erroneous the order of the respondent Court is, and although a miscarriage of justice resulted from said order, such error cannot now be lighted because of the timely plea of double jeopardy." chanrobles virtual law library The other exception is where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial. This is in effect a failure to prosecute. Concerning this right, the ruling in the old case of Conde v. Rivera 28 is still valid doctrine. Here the prosecution was dismissed because the accused was made to "dance attendance on courts" and subjected to no less than eight unjustified postponements extending over a year that unduly delayed her trial. In dismissing the charges against her, Justice Malcolm declared for a unanimous Supreme Court: On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law.chanroblesvirtualawlibrary chanrobles virtual law library We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief ... The case at bar is not much different from Conde. As the record shows, the petitioner was arraigned on August 31,

1982, but was never actually tried until the cases were dismissed on November 14, 1983, following eleven postponements of the scheduled hearings, mostly because the prosecution was not prepared. The accused was never absent at these aborted hearings. He was prepared to be tried, but either the witnesses against him were not present, or the prosecutor himself was absent, or the court lacked material time. Meantime, the charges against him continued to hang over his head even as he was not given an opportunity to deny them because his trial could not be held.chanroblesvirtualawlibrary chanrobles virtual law library Under these circumstances, Caes could have himself moved for the dismissal of the cases on the ground of the denial of his right to a speedy trial. This would have been in keeping with People v. Cloribel, 29 where the case dragged for almost four years due to numerous postponements, mostly at the instance of the prosecution, and was finally dismissed on motion of the defendants when the prosecution failed to appear at the trial. This Court held "that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." chanrobles virtual law library The circumstance that the dismissal of the cases against the petitioner was described by the trial judge as "provisional" did not change the nature of that dismissal. As it was based on the "lack of interest" of the prosecutor and the consequent delay in the trial of the cases, it was final and operated as an acquittal of the accused on the merits. No less importantly, there is no proof that Caes expressly concurred in the provisional dismissal. Implied consent, as we have repeatedly held, is not enough; neither may it be lightly inferred from the presumption of regularity, for we are dealing here with the alleged waiver of a constitutional right. Any doubt on this matter must be resolved in favor of the accused.chanroblesvirtualawlibrary chanrobles virtual law library

We conclude that the trial judge erred in ordering the revival of the cases against the petitioner and that the respondent court also erred in affirming that order. Caes having been denied his constitutional right to a speedy trial, and not having expressly consented to the "provisional" dismissal of the cases against him, he was entitled to their final dismissal under the constitutional prohibition against double jeopardy. 30 chanrobles virtual law library The Court expresses its stern disapproval of the conduct in these cases of the Office of the City Prosecutor of Caloocan City which reveals at the very least a lack of conscientiousness in the discharge of its duties. The informations appear to have been filed in haste, without first insuring the necessary evidence to support them. The prosecution witnesses repeatedly failed to appear at the scheduled hearings and all the prosecution did was to perfunctorily move for a resetting, without exerting earnest efforts to secure their attendance. In the end, it moved for the "provisional" dismissal of the cases without realizing, because it had not studied the matter more carefully, that such dismissal would have the effect of barring their reinstatement. Characteristically, it was also non-committal on the motion to revive the cases filed by the prosecution witnesses only, thereby surrendering, by its own silence, its authority in conducting the prosecution.chanroblesvirtualawlibrary chanrobles virtual law library It is possible that as a result of its in attention, the petitioner has been needlessly molested if not permanently stigmatized by the unproved charges. The other possibility, and it is certainly worse, is that a guilty person has been allowed to escape the penalties of the law simply because he may now validly claim the protection of double jeopardy. In either event, the responsibility clearly lies with the Office of the City Prosecutor of Caloocan City for its negligence and ineptitude.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is GRANTED. The challenged decision of the respondent court dated May 20, 1986, and the orders of the trial court dated May 18, 1984, and October 9, 1984, are SET ASIDE. The dismissal of Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as final.chanroblesvirtualawlibrary chanrobles virtual law library Let a copy of this decision be sent to the Secretary of Justice.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., .

FIRST DIVISION G.R. Nos. 113519-20. March 29, 1996 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANILO PANLILIO y FRANCISCO, defendant-appellant. DECISION BELLOSILLO, J.: Danilo Panlilio y Francisco was charged before the Regional Trial Court of Valenzuela, Metro Manila, with kidnapping under Art. 267 of the Revised Penal Code (Crim. Case No. 235 1-V-93) and violation of P.D. 532 known as the "AntiPiracy and Anti-Highway Robbery Law of 1974" (Crim. Case No. 2352-V-93). In the first case, the Information alleged that on or about 17 March 1993 in Valenzuela, Metro Manila, the accused kidnapped Leah Marie Jordan y Villato and detained her for more than an hour. In the second case, the Information alleged that on the same occasion, with intent to gain and by means of force and intimidation, the accused took a pair of gold earrings worth P700.00 from the same complaining witness while they were walking along St. Jude St., Malinta, Valenzuela, a public highway. Ranged against the denial and alibi of the accused, the trial court found the testimony of Leah Marie positive and convincing hence its joint decision of 15 June 1993 convicting the accused in both cases as charged. In the kidnapping case the accused was sentenced to reclusion perpetua and to pay the costs, while in the highway robbery he was sentenced to an indeterminate prison term from ten (10) years and one (1) day of prision mayor as minimum to thirteen (13) years and two (2) months of reclusion temporal as maximum, with the accessory penalties prescribed by law, to pay complainant the value of the pair of earrings and to pay the costs. 1 The evidence shows that at about eleven-forty in the morning of 17 March 1993 Leah Marie Jordan y Villato, a 10-year old student, was waiting for her younger sister outside the

premises of St. Jude School in Malinta, Valenzuela. There she was approached by Danilo Panlilio who inquired if she knew a certain "Aling Rosa." After she replied that she did not know her and that she was only there to fetch her younger sister, Danilo suddenly poked a knife, which was concealed inside a hat, at the right side of her neck, handed her an empty cigarette pack with a note and ordered her to give it to "Aling Ester." When she told him that she did not know where to find "Aling Ester," he said that he would lead her to the place where "Aling Ester" could be found. While Danilo and Leah Marie were walking side by side the former continued to poke his knife at the latters neck. He told her to be quiet otherwise he would kill her. Then they both boarded a passenger jeepney with the knife still effectively serving as a contrivance to keep her mute. Aside from the driver they were the only passengers on board the jeepney. While in the jeepney Danilo forcibly took Leah Maries pair of earrings. Upon reaching Navotas Danilo and Leah Marie alighted from the jeepney. He dragged her towards a vacant lot where, according to him, every girl he brought there was made to choose between rape and death. Upon hearing this, she struggled hard to free herself from his hold. Luckily, at this juncture, she saw policemen coming towards their direction so she shouted for help. One of the policemen fired a warning shot which prompted Danilo to run away. The policemen pursued him until they caught up with him and brought him together with Leah Marie to the Navotas Police Station for investigation. Meanwhile, policemen from Valenzuela went to the house of Leah and informed her parents that their daughter was in the Navotas Police Station. The couple then rushed to the Station where they saw Leah and brought her to the Valenzuela Police Station to file a complaint against Panlilio. The mother of Leah noticed that the earrings of Leah were missing. When asked about her earrings Leah told her mother that Panlilio forcibly took them from her.

The version of the appellant is that on the day of the incident he left his residence at Barrio Magdaragat, Tondo, Manila, at past ten oclock in the morning to go to Waywan Missionary at San Rafael Village, Tondo, Manila. However he defecated first on a vacant lot in Navotas before proceeding. Then he saw a young girl in the area and warned her not to pass through the garbage because she might sink. It was at this point when policemen arrived and readily accused him of being the rapist in the area. The accused contends in this appeal that the trial court erred (1) in not dismissing the case for highway robbery on the ground of lack of jurisdiction; and, (2) in finding that for the crimes charged his guilt has been proved beyond reasonable doubt. Appellant argues that the robbery, according to the complaining witness herself, was perpetrated in Navotas 2 so that the Regional Trial Court of Valenzuela has no jurisdiction over the case. He also claims that the prosecution failed to present evidence that she indeed owned any pair of earrings. It is his thesis that it is simply incredible that a knife was continually poked at her neck all the way from St. Jude School in Malinta to Navotas for an hour or so without anyone noticing, otherwise, she could have shouted and asked for help; but she did not. Furthermore, he claims that Leah Marie could have only been coached into testifying that she was alone outside the school premises in a feeble attempt to explain the puzzling situation that nobody came to her rescue when he allegedly abducted her at knifepoint in broad daylight during school dismissal time when parents, guardians and others usually converge to fetch their children or wards. Under the circumstances, we are urged to consider as more credible the version of the defense. Section 2, par. (e), of P.D. 532 defines the crime of highway robbery/brigandage as the "seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or

intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine Highway," and under Sec. 2, par. (c), of the same decree, "Philippine Highway" is "any road, street, passage, highway and bridge or other parts thereof or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property of both." We correlate these provisions with Sec. 15, par. (b), of Rule 110 of the Rules of Court which provides that "[w]here an offense is committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival (italics supplied). With the foregoing as guideposts we are now asked: Did the Regional Trial Court of Valenzuela have jurisdiction over the highway robbery? In her direct examination the complaining witness testified that when she and the accused alighted from the jeepney in Navotas he forcibly took her pair of earrings. 3 However, during the cross-examination she changed her testimony thus Q. So you want to impress to the Court that even in front of St. Jude he already asked you to remove your earrings? A. Not yet. When we were already aboard the jeep, that was the time when he told me to remove my earrings. [4 (italics supplied). But thereafter she clung to the same statement for the entire course of her cross-examination which appears to be her correct narration of events Q. And it was there that while you were already in the vacant lot that the accused told you to remove your earrings, is that it? A. We were not yet there.

Q. Where were you? A. When we boarded the jeep, he instructed me to remove my earrings. [5 (italics supplied). xxx xxx xxx Q. And it was there in the Navotas area when he told you to remove your earrings? A. I do not know, sir. Q. Where? A. From the time we boarded the jeep. Q. That was the time when you removed your earrings and gave it to him? A.. Yes, sir. [6 (italics supplied). The most candid witnesses oftentimes make mistakes and fall into confused and inconsistent statements, but such honest lapses do not necessarily affect their credibility. 7 More importantly, ample margin of error and understanding should be accorded to young witnesses who much more than adults would be gripped with tension due to the novelty of testifying before a court. 8 But the testimony of complainant that upon boarding the jeepney the accused ordered her to remove her earrings and give them to him is material in determining whether the Regional Trial Court of Valenzuela had jurisdiction over the highway robbery. Was Valenzuela their place of departure or the municipality where their jeepney passed during the trip? Here lies the problem. The complainant was uncertain of their place of departure -

Q. If you will be requested to point to the place where you boarded, you could point the place where you boarded the jeepney? A. No, sir, I cannot. I do not know that place because I was (just) instructed to board. [9 xxx xxx xxx Q. You want to impress the Court that you boarded a passenger jeepney and you do not know the place where you boarded the jeep? A. No, sir. [10 xxx xxx xxx Q. When you were already traveling from the place, is (sic) that in Valenzuela where you boarded the jeep? A. I do not know, sir." [11 Neither did Leah Marie mention the place or places where their vehicle passed. We could have relied on the evidence that St. Jude School is in Malinta, Valenzuela, in order to establish the fact that they also boarded the jeepney in Valenzuela. Yet, her other testimony is damaging Q. So you want to impress that from St. Jude you were led by the accused to a place where there was a passenger jeepney? A. Yes, sir. Q. You walked or you took a tricycle because that is the means of transportation available in the place? A. We did not board a tricycle. We just walked. xxx xxx xxx

Q. And from St. Jude, how long did it take you to walk or negotiate the distance? A. A long time because, as a matter of fact, I got tired. [12 From the foregoing, it would seem that the prosecution failed to establish the precise place where the highway robbery was supposedly committed other than Navotas. Hence, we agree with the defense that the Regional Trial Court of Valenzuela had no jurisdiction over the offense of highway robbery, although based on a different ground. As regards the charge of kidnapping, Art. 267 of the Revised Penal Code provides -Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. The poking by appellant of a knife at the complainant could have indeed passed unnoticed because, as mentioned distinctly in her testimony, the knife was concealed in a hat, 13 and that she did not shout for help because all along

he was poking his knife at her 14 and telling her not to resist or shout otherwise she would be killed. 15 The testimony of Leah Marie that she was alone in the vicinity of St. Jude School waiting for her sister is not hard to believe. It is highly probable that she arrived there too early or way beyond dismissal time. Anyway, it is clear that the arguments raised by accused-appellant pertain to the credibility of the complainant, and the appraisal by the trial court of her credibility is entitled to great respect from the appellate courts which do not deal with live witnesses but only with the cold pages of a written record. 16 Hence the appellants denial and alibi were properly rejected by the court a quo. They were inherently weak and could not prevail over the positive testimony of complainant that the accused detained her and took her earrings against her will. 17 WHEREFORE, the decision finding the accused-appellant Danilo Panlilio y Francisco guilty of kidnapping in Crim. Case No. 2351-V-93 and imposing upon him a prison term of reclusion perpetua, and to pay the costs, is AFFIRMED. As regards Crim. Case No. 2352-V-93 for highway robbery, the case is DISMISSED on the ground of lack of jurisdiction of the Regional Trial Court of Valenzuela, without prejudice to its refiling with the court of proper jurisdiction. SO ORDERED. Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.