HEIRS OF SARAH MARIE PALMA BURGOS, Petitioners,

G.R. No. 169711 Present: Carpio, J., Chairperson, Brion,

- versus Del Castillo, Abad, and Perez, JJ. COURT OF APPEALS and JOHNNY CO y YU, Respondents.

Promulgated:

February 8, 2010 x --------------------------------------------------------------------------------------- x DECISION ABAD, J.:

This case is about the legal standing of the offended parties in a criminal case to seek, in their personal capacities and without the Solicitor Generals intervention, reversal of the trial courts order granting bail to the accused on the ground of absen ce of strong evidence of guilt. The Facts and the Case On January 7, 1992 a number of assailants attacked the household of Sarah Marie Palma Burgos while all were asleep, killing Sarah and her uncle Erasmo Palma (Erasmo). Another uncle, Victor Palma (Victor), and a friend, Benigno Oquendo (Oquendo), survived the attack. The theory of the police was that a land transaction gone sour between Sarahs live -in partner, David So (David), and respondent Johnny Co (Co) motivated the assault. Four months after the incident, the police arrested Cresencio Aman (Aman) and Romeo Martin (Martin) who executed confessions, allegedly admitting their part in the attack. They pointed to two others who helped them, namely, Artemio Pong Bergonia and Danilo Say, and to respondent Co who allegedly masterminded the whole thing. The Regional Trial Court (RTC) of Manila, Branch 51, tried the case against Aman and Martin in Criminal Cases 92-104918-21. The three others remained at large. After trial, the RTC acquitted them both. After 10 years or on September 5, 2002 respondent Co surrendered to the National Bureau of Investigation. The prosecution charged [1] [2] him with two counts of murder for the deaths of Sarah and Erasmo and two counts of frustrated murder committed against [3] [4] Oquendo and Victor. Upon arraignment, Co pleaded not guilty to the charges. On September 25, 2002 respondent Co filed a petition for admission to bail. After hearing or on April 14, 2004, the RTC granted bail on the ground that the evidence of guilt of respondent Co was not strong. The RTC summarized the prosecutions evidence as follows: 1. Aman and Martins extrajudicial confessions that pointed to Co as the one who hired them to kill David and his family.
[5] [6]

2. Davids testimony as alleged witness to the killing of Sarah. Aman supposedly told David later when they met that it was Co who ordered the massacre. 3. Police officer Leopoldo Vasquez, assistant leader of the police team that investigated the case, said that his team conducted two operations to take Co into custody. The first was in a restaurant where they waited for him. But Co got suspicious and when he saw the police, he immediately left the restaurant, got into his car, and sped away. The police also tried to arrest Co at his residence but the police did not find him there. Co also offered to settle the case. The RTC had a low estimate, however, of the above evidence. First, the extrajudicial confessions of Aman and Martin, apart from having been irregularly executed, merely proved their participation in the killing. Neither, however, claimed conspiracy with respondent Co. Further, the prosecution did not present Aman or Martin during the bail hearing, reportedly because Aman was

already dead and Martin could not be located. To admit their sworn statements in evidence would deprive Co of his constitutional right to cross-examine them. Second, Davids narrations were, to the RTC, contradictory, uncorroborated, and self -serving, thus lacking in evidentiary weight. Third, police officer Vasquezs story was likewise uncorroborated. Besides, while flight is often indicative of guilt, it requires a clear showing of the identity of the offender and his evasion of arrest. Here, said the RTC, theprosecution failed to establish Cos identity as the assailant and his reason for fleeing from the police. Fourth, the prosecution failed to prove that the offer of settlement came from Co. Petitioner heirs of Sarah moved for reconsideration but the RTC, now presided over by another judge, denied the same in its [9] Order of May 18, 2005. This prompted the victims heirs to file a special civil action ofcertiorari with prayer for a temporary [10] restraining order or preliminary injunction before the Court of Appeals (CA) in CA-G.R. SP 90028. The CA dismissed the petition, however, for having been filed without involving the Office of the Solicitor General (OSG) , in [12] violation of jurisprudence and the law, specifically, Section 35, Chapter 12, Title III, Book IV of the Administrative Code which states that: Sec. 35. Powers and Functions.The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceedings, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government-owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers. It shall have the following specific powers and functions: xxxx (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. Petitioner heirs of Sarah moved for reconsideration [14] 2005, hence, the heirs recourse to this Court. The Issue The case raises one issue: whether or not the CA correctly dismissed the special civil action of certiorari, which questioned the RTCs grant of bail to respondent Co, for having been filed in the name of the offended parties and without the OSGs intervention. The Courts Ruling Generally, a criminal case has two aspects, the civil and the criminal. The civil aspect is borne of the principle that every person [15] criminally liable is also civilly liable. The civil action, in which the offended party is the plaintiff and the accused is the defendant, is deemed instituted with the criminal action unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil [17] action prior to the criminal action. The law allows the merger of the criminal and the civil actions to avoid multiplicity of suits. Thus, when the state succeeds in prosecuting the offense, the offended party benefits from such result and is able to collect the damages awarded to him. But, when the trial court acquits the accused or dismisses the case on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished since liability under such an action can be determined based on mere preponderance of evidence. The offended party may peel off from the terminated criminal action and [21] appeal from the implied dismissal of his claim for civil liability. The purpose of a criminal action, in its purest sense, is to determine the penal liability of the accused for having outraged the state with his crime and, if he be found guilty, to punish him for it. In this sense, the parties to the action are the People of
[19] [20] [18] [16] [13] [11] [7] [8]

but the CA denied it for lack of merit in its Resolution of September 16,

the Philippines and the accused. The offended party is regarded merely as a witness for the state. Also in this wise, only the [24] state, through its appellate counsel, the OSG, has the sole right and authority to institute proceedings before the CA or the [25] Supreme Court. As a general rule, the mandate or authority to represent the state lies only in the OSG. Thus It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term shall x x x. xxxx The Court is firmly convinced that considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter [26] requiring the services of a lawyer.
[27]

[22]

[23]

rule,

For the above reason, actions essentially involving the interest of the state, if not initiated by the Solicitor General, are, as a [28] summarily dismissed.

Here, the question of granting bail to the accused is but an aspect of the criminal action, preventing him from eluding punishment in the event of conviction. The grant of bail or its denial has no impact on the civil liability of the accused that depends on conviction by final judgment. Here, respondent Co has already been arraigned. Trial and judgment, with award for civil liability when warranted, could proceed even in his absence. In Narciso v. Sta. Romana-Cruz, this Court allowed the offended party to challenge before it the trial courts order grantin g bail. But in that case, the trial court gravely abused its discretion amounting to lack of jurisdiction in granting bail without conducting any hearing at all. Thus, to disallow the appeal on the basis of lack of intervention of the OSG would leave th e private [30] complainant without any recourse to rectify the public injustice. It is not the case here. The trial court took time to hear the parade of witnesses that the prosecution presented before reaching the conclusion that the evidence of guilt of respondent Co was not strong. WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals Decision in CA-G.R. SP 90028 dated June 29, 2005 and its Resolution dated September 16, 2005. SO ORDERED.
[29]

PACIFICO R. CRUZ, Petitioner,

G.R. Nos. 174599-609 Present: Carpio, J., Chairperson, Brion,

- versus Del Castillo, Abad, and Perez, JJ. THE SANDIGANBAYAN (Fourth Division), OFFICE OF THE OMBUDSMAN, OFFICE OF THE SPECIAL PROSECUTOR AND SPECIAL PRESIDENTIAL TASK FORCE 156, Respondents.

Promulgated:

February 12, 2010

x ---------------------------------------------------------------------------------------- x DECISION

ABAD, J.:

This case is about a public prosecutors unilateral withdrawal of a motion to drop an accused from the information after a reinvestigation by his office found no probable cause against such accused and the effect of being relieved of liability in a tax case upon the accuseds criminal liability in a related case.

The Facts and the Case In 2001, acting on reports of irregularities, respondent Special Presidential Task Force 156 (Task Force) investigated the OneStop Shop Inter-Agency Tax Credit and Duty Drawback Center (the One-Stop Center) of the Department of Finance (DOF). The Task Force found that certain officials of the One-Stop Center had been issuing tax credit certificates (TCCs) to entities that did not earn them through tax overpayments. According to respondent Task Force, the Diamond Knitting Corporation (DKC), a Board of Investments-registered textile manufacturer, completely shut down its operations in 1993 yet the DOFs One-Stop Center issued to it TCCs totaling P131,205,391.00 from 1994 to 1997. DKC in turn sold a number of these TCCs to Pilipinas Shell Petroleum Corporation (Pilipinas Shell) with the approval of the One-Stop Center. Pilipinas Shell then used these TCCs to pay off its excise tax obligations to the Bureau of Internal Revenue (BIR). Believing that petitioner Pacifico R. Cruz, the General Manager of Pilipinas Shells Treasury and Taxation Department, was a party to [1] the fraud, respondent Task Force included him in its complaint for plunder against certain officials of DKC and of the One-Stop [2] [3] Center before respondent Office of the Ombudsman (OMB). On July 25, 2002 respondent OMB dismissed the plunder charge but caused the filing on August 7, 2002 of separate [4] informations for multiple violations of Section 3(e) of the Anti-Graft and Corrupt Practices Act against petitioner Cruz and the others [5] [6] with him. Before being arraigned, however, Cruz sought the reinvestigation of the cases, claiming that he had been unable to seek reconsideration because of the hasty filing of the informations. The Sandiganbayan granted his motion and ordered the OMB to [7] submit a report of its reinvestigation within 60 days. After reinvestigation, on October 7, 2002 respondent Office of the Special Prosecutor (OSP) submitted a memorandum to the [8] OMB, recommending the dropping of the charges against Cruz for lack of evidence that he supplied the false documents used for processing the transfers to Pilipinas Shell of the subject fraudulently issued TCCs. The OSP found that Cruz could not have known that [9] DKC had long stopped its business operations. Indeed, the OSP had in two similar cases recommended the dropping of charges against Cruz for the same reason. Upon review, the OMB approved respondent OSPs recommendation. Respondent Task Force sought the reconsideration of respondent OSPs new stand on the case, which Cruz opposed. But [12] the OSP did not resolve the motion. Instead, on November 28, 2002 it filed a motion with the Sandiganbayan, for the dropping of Cruz from the informations. Apparently, however, the Sandiganbayan sat long on this motion and did not act on it. More than five months later or on May 9, 2003 respondent OSP, acting through Prosecutor Warlito F. Galisanao, filed a [13] motion with the Sandiganbayan to hold in abeyance action on the OSPs motion to drop petitioner Cruz from the charges . At the hearing of the motion on May 15, 2003, when neither Cruz nor his counsel was present, Prosecutor Humphrey T. Monteroso orally moved to withdraw the OSPs motion to drop Cruz from the informations. The Sandiganbayan promptly granted Monterosos oral motion. Yet, on May 26, 2003 the OSP still filed a motion to withdraw its motion to drop Cruz from the informations . The OSP set its [14] withdrawal motion for hearing on June 4, 2003. Meanwhile, unaware of the Sandiganbayans May 15, 2003 order, petitioner Cruz opposed Galisanaos now abandoned motion to defer action on the withdrawal of the criminal charges. On May 30, 2003 Cruz eventually received the Sandiganbayans May 15, [16] 2003 order that already allowed the withdrawal of respondent OSPs dropping of Cruz from the informations. On June 16, 2003 petitioner Cruz filed a motion for reconsideration of the Sandiganbayans May 15, 2003 order on the ground that he had no notice of the hearing set on that date . He also complained of lack of notice respecting the formal withdrawal
[17] [15] [10] [11]

motion set on June 4, 2003. Cruz also challenged Galisanao and Monterosos authority to countermand the OMBs approval of the dropping of the charges against him. The Sandiganbayan gave the prosecution 15 days from June 20, 2003 or until July 5, 2003 within which to comment on petitioner Cruzs motion for reconsideration. It gave the latter the same period of time to file a reply and the prosecution 10 days [18] from receipt of the reply to file its rejoinder. Surprisingly, before the various periods could play out or on July 3, 2003 Cruz received a June 4, 2003 order from the Sandiganbayan, denying Cruzs motion for reconsideration. This prompted him to file a motion seeking clarification but the Sandiganbayan never got to resolve this last motion. At any rate, on February 10, 2004 the Sandiganbayan required Ombudsman Simeon V. Marcelo to tell the court whether or not [19] he is upholding the action taken by his subordinates. It was Special Prosecutor Dennis M. Villa-Ignacio who affirmed the actions of Galisanao and Monteroso. He said that the prosecutors acted on verbal orders of Ombudsman Marcelo. Apparently, [20] Ombudsman Marcelo later inhibited himself from the TCC cases and designated Villa-Ignacio to act on his behalf. On July 17, 2006 the Sandiganbayan resolved to deny petitioner Cruzs motion for reconsideration. The court held that Cruz was not entitled to notice since it was the OSPs prerogative to withdraw its earlier motion to drop him from the charges. The Sandiganbayan also pointed out that Cruz ultimately had the opportunity to ventilate his objections since he filed a motion for reconsideration of the courts order granting the withdrawal. Consequently, any defect in earlier proceedings had been cured. As to Galisanao and Monterosos lack of authority to act the way they did, the court ruled that the Special Prosecutor eventually affirmed their acts. Unsatisfied, Cruz filed the present petition for certiorari under Rule 65. Meanwhile, on December 21, 2007, this Court rendered judgment in Pilipinas Shell Petroleum Corporation v. Commissioner of [22] Internal Revenue. The BIR assessed deficiency income taxes against Pilipinas Shell, given that it used for payment the fraudulently issued TCCs subject of this case. This Court nullified the assessment, finding that Pilipinas Shell was a transferee in good faith and for value and may thus not be unjustly prejudiced by the transferors fraud committed in procuring the transfer of those TCCs. Petitioner Cruz filed a manifestation invoking the Courts ruling in the above tax case as res judicata with respect to his alleged criminal liabilities relating to the subject TCCs. The Issues Presented Petitioner Cruz presents the following issues: 1. Whether or not the Sandiganbayan gravely abused its discretion in allowing respondent OSP to withdraw its earlier motion to drop petitioner Cruz from the criminal informations even after the OMB had approved such withdrawal on ground of lack of probable cause; and 2. Whether or not the findings of the Court in Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue that Pilipinas Shell was a transferee in good faith and for value of the TCCs in question bar the prosecution of Cruz in the criminal cases subject of this petition. The Rulings of the Court FIRST. The Sandiganbayan pointed out that it was respondent OSPs prer ogative, as public prosecutor, to withdraw the earlier motion it filed for the dropping of the charges against petitioner Cruz. Giving him notice of such motion, said the Sandiganbayan, was therefore not indispensable. But respondent OSP did not ask the Sandiganbayan to drop petitioner Cruz from the charges filed in court out of pure whim or simply because the OSP changed its mind regarding his case. On motion of Cruz and upon orders of the Sandiganbayan, the OSP conducted a reinvestigation of the case. By its nature, a reinvestigation is nothing more than a continuation of the OMBs duty to conduct a preliminary investigation for the purpose of determining probable cause against a person charged with an offense falling under its jurisdiction. Here, after respondent OSP considered the evidence anew at reinvestigation, it ruled that such evidence did not establish probable cause against petitioner Cruz. Said the OSP in its October 7, 2002 memorandum to the OMB: Upon re-evaluation, a close scrutiny of the records revealed that the evidences at hand will not be sufficient to justify the inclusion of movant [Cruz] as one of the accused/co-conspirators in the above captioned cases. There is no evidence on record
[21]

that movant has knowledge, consent nor participation in the preparation and submission of the falsified documents purportedly showing deliveries by PSPC to DKC of large volume of oil products and which documents were used as supporting documents in the processing for the transfer of subject TCCs from DKC to PSPC. More so the allegations of movant appeared to have remained unrebutted during the entire proceedings in the Preliminary Investigation stage and as a matter of fact evidences (encashed checks and vouchers) later on gathered and attached by the Task Force 156 in their motion dated September 4, 2002 bolstered the position of herein movant. Said documents clearly showed that [23] PSPC acquired subject TCCs thru purchase with ten (10%) discount and not with alleged supply of oil/fuel products. Respondent OSP, therefore, recommended the dropping of petitioner Cruzs name from the charges already filed in court. And the OMB approved this recommendation. The necessary implication of this is that the OMB had, after reinvestigation, found no probable cause against Cruz. Based on its finding, therefore, the State did not have the right to prosecute him. With this result, it was a matter of duty for respondent OSP to apply with the Sandiganbayan for the withdrawal of the charges against Cruz. And this they did. Respondent Task Force of course filed a motion for reconsideration of the new OMB resolution in the case. But the OMB implicitly denied the same when it nonetheless caused the filing of the motion to drop petitioner Cruz from the charges. The Task Force did not further pursue its remedies to oppose such dropping of charges. Respondent OSP, therefore, acted in violation of petitioner Cruzs right to due process of law when it impulsively and arbitrarily disregarded its previous finding of lack of probable c ause without hearing. And respondent OSP did not even pretend that it found new evidence that established Cruzs guilt. It offered no excuse for its turnabout. For its part, the Sandiganbayan did not bother to require the OSP to present a new finding with the OMBs approval that overruled, after appropriate hearing, the previous determination of lack of probable cause that they made. Apparently, the Sandiganbayan forgot that, in ordering the reinvestigation of the charges against petitioner Cruz, it effectively acknowledged that he had not been accorded his full right to a preliminary investigation. And so it ordered a reinvestigation. Of course, the Sandiganbayan had, after the informations were filed with it, the discretion to assess the evidence on its own and [24] determine what to do with the case before it. But the fact is that it opted to let the OMB conduct a reinvestigation, a power that the latter had. As it happened, the OMB found after reinvestigation that no probable cause existed against petitioner Cruz. Under the circumstances, this entitled Cruz to the dismissal of the charges against him. Unfortunately, acting with grave abuse of discretion, the Sandiganbayan ignored Cruzs right to such a dismissal. It simply allowed respondent OSP to withdraw its motion to drop Cruz from those charges even if the OSP made no claim that the state of evidence had changed after it submitted its memorandum. SECOND. Having reached the above conclusion, the Court would ordina rily be satisfied with annulling the Sandiganbayans ruling that granted respondent OSPs motion to withdraw its application for the dropping of petitioner Cruz from the charges. And, as a result, the Court would then just direct the Sandiganbayan to pass upon the merits of the OSPs move to drop Cruz. But this Courts recent ruling in Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue that Pilipinas Shell, of which petitioner Cruz was the responsible officer, was a transferee in good faith and for value of the same TCCs subject of the criminal casesraises the issue of whether or not such ruling bars the prosecution of Cruz in the criminal cases subject of this petition. The res judicata rule bars the re-litigation of facts or issues that have once been settled by a court of law upon a final judgment on the merits. Section 47 (b) and (c) of Rule 39 of the Rules of Court establishes two rules: (a) a judgment on the merits by a court of competent jurisdiction bars the parties and their privies from bringing a new action or suit involving the same cause of action before either the same or any other tribunal; and (b) any right, fact or matter directly adjudged or necessarily involved in the determination of an action before a competent court that renders judgment on the merits is conclusively settled and cannot be litigated again between the parties and their privies, regardless of whether the claims, purposes or subject matters of the two suits are the same. The first is commonly referred to as bar by former judgment; the second as conclusiveness of judgment. It is the second that is relevant to this case.
[25]

Conclusiveness of judgment or auter action pendent ordains that issues actually and directly resolved in a former suit cannot be raised anew in any future case involving the same parties although for a different cause of action. Where the rule applies, there [26] must be identity of issues but not necessarily identity in causes of action. In the present case, the OMB charged petitioner Cruz, acting in conspiracy with others, of violating Section 3(e) of Republic Act [27] 3019 in connection with the transfer of fraudulently issued TCCs to Pilipinas Shell. The main issue in this case is whether or not Cruz, Pilipinas Shells Treasury head, connived with the officials of the One-StopCenter and others in unlawfully giving, through manifest partiality and bad faith, unwarranted benefits to DKC by processing and approving such transfers to Pilipinas Shell, knowing that DKC, the transferee, had been a dormant company. This Court resolved substantially the same issue in Pilipinas Shell Petroleum Corporation v. Commissioner of Internal [28] Revenue. There, the Court categorically found that Pilipinas Shell, represented in its acquisition of the TCCs in question by petitioner Cruz, was a transferee in good faith and for value of those TCCs. This means that neither Pilipinas Shell nor Cruz was a party to the fraudulent issuance and transfer of the TCCs. Indeed, there existed, said the Court, no evidence that Pilipinas Shell was involved in the processing of the One-Stop Centers approval of the transfer of those TCCs to Pilipinas Shell. The parties in the tax case and in the criminal cases are substantially the same. Although it was respondent Task Force that investigated the irregularities in the issuance and transfers of the TCCs, the ultimate complainant in the criminal case the party that suffered the injurywas the government, represented by the Commissioner of Internal Revenue. The latter also represented the government in the tax case against Pilipinas Shell. Petitioner Cruz, on the other hand, represented Pilipinas Shell in all the transactions in question. In short, the parties in the tax case and in the criminal cases represent substantially identical interests. The principle of res judicata through conclusiveness of judgment applies to bar the criminal actions against Cruz. WHEREFORE, the Court GRANTS the petition and DIRECTS the Sandiganbayan Fourth Division toDISMISS Criminal Cases 27657, 27658, 27677, 27678, 27694, 27695, 27704, 27705, 27715, 27725 and 27736 against petitioner Pacifico R. Cruz. SO ORDERED.

LYNN PAZ T. DELA CRUZ, FERNANDO SERRANO, NATHANIEL LUGTU, and JANET S. PINEDA, Petitioners, - versus -

G.R. No. 161929

Present: CARPIO, J., Chairperson, ** LEONARDO-DE CASTRO, BRION, DEL CASTILLO, and ABAD, JJ.
*

SANDIGANBAYAN, THE SPECIAL PROSECUTOR and THE PEOPLE OF THE PHILIPPINES, Promulgated: Respondents. December 8, 2009 x-------------------------------------------------------------------x

DECISION DEL CASTILLO, J.: The principle of the law of the case is an established rule in this jurisdiction. Thus, when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. The court reviewing the succeeding appeal will not re-litigate the case but instead apply the ruling in the previous appeal. This enables the appellate court to perform its duties satisfactorily and efficiently which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case and upon any and subsequent [1] appeal. While the applicability of this principle in this case is straightforward, the cunning attempt of the parties to evade the application thereof is what we unequivocally deplore here. The accused often decry the snail pace of the administration of justice but when they themselves give cause for the delay, they have no reason to complain. We again remind the parties and their counsels to act with candor and not to test the patience of this Court.

This is a Petition for Certiorari and Prohibition assailing the Sandiganbayans (1) December 8, 2003 Resolution in Criminal Case No. [3] 26042, which ordered petitioners suspension pendente lite and its (2) February 5, 2004 Resolution, which denied petitioners motion for reconsideration. Factual Antecedents The instant criminal complaint arose from the construction and/or renovation project involving several multi-purpose halls located in various barangays in the City of Tarlac. Upon post audit, the Provincial Auditor of the Commission on Audit (COA) issued Notice of Disallowance No. 99-001-100(98) dated January 29, 1999 and Notice of Disallowance No. 99-003-101(98) dated July 22, 1999 on the [4] ground that what were actually constructed and/or renovated were barangay chapels in violation of Section 29(2), Article VI of the [5] [6] Constitution and Section 335 of the Local Government Code prohibiting public expenditure for religious purposes. On February 6, 1998, private complainants Jesus B. David and Ana Alamo Aguas filed a complaint with the Office of the Ombudsman in connection with the approval and implementation of the aforesaid projects against several local government officials of the City of Tarlac, namely: Gelacio R. Manalang- Mayor Alfredo D. Baquing- Engineer Nathaniel B. Lugtu- Accountant Lynn Paz T. Dela Cruz- Assistant Accountant Fernando L. Serrano- Budget Officer Janet S. Pineda- Planning & Development Officer for violation of Section 3(e) of Republic Act (RA) No. 3019 or The Anti-Graft and Corrupt Practices Act. In his July 13, 1999 [9] Resolution, the Ombudsman dismissed the complaint for insufficiency of evidence and prematurity. On September 8, 1999, private complainants moved for reconsideration. As a result, the Ombudsman referred the case to the Office of the Chief Legal Counsel for [10] review and recommendation. In its April 13, 2000 Memorandum, the Office of the Chief Legal Counsel recommended that the corresponding information be filed against the aforesaid local officials because there is probable cause to hold them liable for [11] violation of the anti-graft law. Acting favorably thereon, on May 16, 2000, the Ombudsman issued an Order directing the Office of the Special Prosecutor to file the necessary information with the Sandiganbayan, viz: That sometime on 6 February 1998 or thereabouts, in the City of Tarlac, province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, accused Gelacio R. Manalang, Alfredo D. Baquing, Lynn Paz T. dela Cruz, Fernando Serrano, Nathaniel Lugtu and Janet S. Pineda, accused Gelacio R. Manalang being the mayor of Tarlac City, Tarlac, a high ranking officer pursuant to R.A. 8249 in relation to Sec. 455(d) of R.A. 7160, and all the other accused then occupying different positions in the government of Tarlac City, conspiring and confederating with one another, committing the crime herein charged in relation to their office, taking advantage of their official position, acting with evident bad faith and manifest partiality, or gross inexcusable negligence, did then and there, wilfully, unlawfully and criminally, cause undue injury to the government and give unwarranted benefits, advantage or preference to a specific group of constituents by approving and releasing the amount of Five Hundred Forty Three Thousand Eight Hundred Pesos (P543,800.00) for the construction of the multi-purpose halls in barangays Sapang Tagalog, Sapang Maragul and Dalayap in Tarlac City despite the fact, as Accused knew fully well, that what were being constructed are in truth chapels which would serve private [12] purposes, and not barangay multi-purpose halls and, thereafter, proceeded to implement such construction. The case was docketed as Criminal Case No. 26042 and raffled to the Fourth Division. The accused then moved for reinvestigation on the ground that they were not given an opportunity to be heard when the Ombudsman reversed his earlier finding of lack of probable cause. In its July 17, 2000 Order, the Sandiganbayan granted the motion and gave the prosecution 20 days to re-evaluate the evidence [14] and submit a report to the court. On July 31, 2001, the prosecution filed a Manifestation with the Sandiganbayan that after conducting its reinvestigation, it found probable cause to charge the accused with violation of the anti-graft law and prayed that the [15] case be set for arraignment. As a consequence, the Sandiganbayan in its August 8, 2001 Resolution set the case for arraignment and pre-trial. Undeterred, the accused filed separate motions to quash the information and/or to dismiss the case. On April 24, 2003, [17] the Sandiganbayan issued a Resolution which denied all of the aforesaid motions and upheld the validity of the subject information. It ruled that the information contained sufficient allegations to charge the accused with violation of Section 3(e) of RA No. 3019, that there exists probable cause to indict the accused and that the motions raise factual issues that cannot be resolved without an adversarial proceeding.
[16] [13] [7] [8]

[2]

The accused then moved for reconsideration which was denied by the Sandiganbayan in its June 2, 2003 Resolution. In addition to the reasons stated in its April 24, 2003 Resolution, the Sandiganbayan held that there was no violation of the right of the accused to due process based on the records forwarded to the court by the Ombudsman. On May 12, 2003, the accused were arraigned and pleaded not guilty. suspend the accused pendente lite.
[19]

[18]

The prosecution subsequently filed a motion

[20]

to

On June 10, 2003, the accused filed a consolidated petition for certiorari and prohibition before this Court against public respondents Fourth Division of the Sandiganbayan, the Ombudsman and the People of the Philippines. They ascribed grave abuse of discretion on the public respondents for filing the information and upholding the validity of the same despite the violation of the right of the accused to due process and the patent lack of probable cause. On June 17, 2003, we resolved to dismiss the petition for lack of merit. Sandiganbayans Ruling On December 8, 2003, the Sandiganbayan issued the assailed Resolution which granted the prosecutions motion and ordered the preventive suspension of the accused for a period of 90 days. It ruled that the validity of the information has been previously settled in its April 24, 2003 Resolution. Thus, under Section 13 of RA No. 3019, the preventive suspension of the accused becomes mandatory. Petitioners thereafter filed a motion for reconsideration which was denied by the Sandiganbayan in its February 5, 2004 Resolution. From the aforesaid adverse rulings, only accused Dela Cruz, Serrano, Lugtu and Pineda (petitioners) sought review before this Court via the instant petition for prohibition and certiorari under Rule 65 of the Rules of Court. Issues Petitioners raise the following issues for our resolution: 1. Whether the subject criminal case was prematurely instituted considering the pendency of petitioners appeals before the COA En Banc. 2. Whether the Ombudsman may still reconsider his Resolution dated July 13, 1999, dismissing the complaint, after the same has already become final and executory. 3. Whether the subject information is fatally defective.

4. Whether, on the basis of the admitted or undisputed facts, there is probable cause to prosecute petitioners and their co[21] accused for violation of Section 3(e) of RA No. 3019. Petitioners Arguments First, petitioners claim that they have been exonerated by the COA En Banc, thus, there is no more basis to prosecute them for violation of the anti-graft law. The filing of the subject criminal case against them was based on the results of a post-audit showing the alleged illegal disbursement of public funds for religious purposes. Consequently, the Provincial Auditor issued notices of disallowance against petitioners and their co-accused Manalang and Baquing. Petitioners thereafter appealed from said notices. Considering that these cases were still on appeal before the COA En Banc, the Ombudsman gravely abused his discretion when he ordered the filing of the subject criminal case against petitioners and their co-accused. Moreover, in the interim and after a series of separate appeals, petitioners Lugtu, Dela Cruz and Serrano were exonerated by the COA En Banc on the common ground that as Accountant, Assistant Accountant and Budget Officer, respectively, they did not take part in the review of the plans and specifications as well as in the implementation, prosecution and supervision of the subject construction and/or renovation project. As for petitioner Pineda, no notice of disallowance was ever issued to her. Thus, with more reason subject criminal case should be dismissed in order to save petitioners from an expensive and vexatious trial. In the same vein, there is no probable cause to hold petitioners liable for violation of the anti-graft law because the Ombudsman himself admitted that what were built were multi-purpose halls and not chapels in his November 16, 1999 Decision in OMB-ADM-199-0759 which absolved petitioners co-accused Baquing from administrative liability.

Second, petitioners contend that the subject information is fatally defective because of the irregularities and due process violations committed during the preliminary investigation of this case. The Ombudsman acted without jurisdiction when he reversed his July 13, 1999 Resolution, which dismissed the criminal complaint, considering that this resolution had long become final and executory. Assuming that private complainants timely moved for reconsideration, the same was defective for failure to furnish all [22] the accused with copies of said motion. The information should, thus, have been quashed under Section 3(d) of Rule 117 of the Rules of Court for lack of authority of the Ombudsman to file the same. Finally, petitioners argue that the allegations in the subject information do not constitute an offense because the alleged specific group that was benefited by the construction and/or renovation of the barangay chapels as well as the alleged private purposes served thereby were sufficiently identified and described. Hence, the right of the accused to be informed of the nature and cause of the accusation against them was violated. Respondents Arguments First, respondents counter that the COA is not vested with jurisdiction to determine the criminal liability of petitioners. Its power is limited to the determination of the violation of its accounting and auditing rules and regulations. Hence, the COA En Bancs exclusion of petitioners from liability under the notices of disallowance only relates to the administrative aspect of their accountability . This, however, does not foreclose the Ombudsmans authority to investigate and determine whether there is a crime to be prosecuted. For similar reasons, the exoneration of Baquing from administrative liability by the Ombudsman in his November 16, 1999 Decision in OMB-ADM-1-99-0759, specifically, the finding therein that what were constructed were multi-purpose halls and not chapels is not binding on the subject criminal case against petitioners and their co-accused. The dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. Second, respondents aver that there was no denial of due process during the preliminary investigation stage . Private complainants timely moved for reconsideration from the July 13, 1999 Resolution of the Ombudsman. They received a copy of the aforesaid Resolution on August 25, 1999 and filed a letter seeking reconsideration on September 8, 1999 or within the 15-day reglementary period under the Rules of Procedure of the Ombudsman. TheSandiganbayan also found that there was no due process violation as borne out by the records forwarded to said court by the Ombudsman . Further, any defect in the preliminary investigation should be deemed cured because theSandiganbayan ordered the reinvestigation of this case in its July 17, 2000 Order. After the reinvestigation, the Ombudsman maintained that there is probable cause to indict petitioners and their co-accused. This was affirmed by theSandiganbayan when it set the case for arraignment and pre-trial. Finally, respondents assert that the identity of the specific group and the private purposes served by the subject construction and/or renovation project are evidentiary matters that should be threshed out during the trial on the merits of this case. Our Ruling The petition lacks merit. The preventive suspension of the accused under Section 13 of RA No. 3019 is mandatory upon a finding that the information is valid. Section 13 of RA No. 3019 provides: Section 13. Suspension and loss of benefits - Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. Pursuant to this provision, it becomes mandatory for the court to immediately issue the suspension order upon a proper [23] determination of the validity of the information. The court possesses no discretion to determine whether a preventive suspension is necessary to forestall the possibility that the accused may use his office to intimidate witnesses, or frustrate his prosecution, or continue committing malfeasance. The presumption is that unless the accused is suspended, he may frustrate his prosecution or [24] commit further acts of malfeasance or do both. In Luciano v. Mariano,
[25]

we laid down the guidelines for the exercise of the courts power to suspend the accused:

(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to Section 13 of said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary . What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withholding such suspension in the contrary case. (d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. The mandatory suspension decreed by the Act upon determination of the pendency in court of a criminal prosecution for violation of the Anti-graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the [26] validity of the information and setting the same for trial on the merits. The issues proper for a pre-suspension hearing are, thus, limited to ascertaining whether: (1) the accused had been afforded due preliminary investigation prior to the filing of the information against him, (2) the acts for which he was charged constitute a violation of the provisions of RA No. 3019 or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) the information [27] against him can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court. While ordinarily we would proceed to determine whether the ruling of the Sandiganbayan upholding the validity of the information and directing the preventive suspension suffer from the vice of grave abuse of discretion, the peculiar circumstances of this case constrain us to dismiss the petition outright. As will be discussed hereunder, all of the above issues proper in a pre-suspension hearing were previously passed upon by the Sandiganbayan and then by us via G.R. No. 158308. Petitioners conveniently failed to reveal that this is the second time that they are appealing before us, raising the same issues and arguments, via the instant petition. The present recourse is, thus, but a futile attempt to reopen settled rulings with the deplorable consequence of delaying the prompt disposition of the main case. The validity of the subject information has been raised and resolved in G.R. No. 158308. Under the principle of the law of the case, this issue can no longer be re-litigated. Upon a review of the records of this case, we find that the issue as to the validity of the information, inclusive of all matters proper for a pre-suspension hearing, has already been passed upon by us. As stated earlier, the records indicate that on June 10, 2003, petitioners, along with their co-accused Manalang and Baquing, filed a consolidated petition for certiorari and prohibition before this Court against public respondents Fourth Division of theSandiganbayan, the Ombudsman and the People of the Philippines. This case was docketed as G.R. No. 158308. Petitioners, Manalang and Baquing assailed therein, for having been issued with grave abuse of discretion, the following: (1) Sandiganbayans April 24, 2003 Resolution which upheld the validity of the information charging them with violation of Section 3(e) of RA No. 3019, (2) Sandiganbayans June 2, 2003 Resolution which denied petitioners, Manalang and Baquings separate motions for reconsideration and (3) Ombudsmans May 16, 2000 Order which directed the Office of the Special Prosecutor to file the aforesaid information. In its April 24 and June 2, 2003 Resolutions, the Sandiganbayan had earlier ruled, among others, that the subject information contains sufficient allegations to charge the accused with violation of the anti-graft law; that there was no denial of due process during the preliminary investigation stage; that there exists probable cause to indict the accused; and that the accuseds ot her arguments, including the pendency of petitioners separate appeals before the COA En Banc, lacked merit. On June 17, 2003, the Court En Banc issued a Resolution dismissing the petition for failure to sufficiently show that the public respondents committed grave abuse of discretion in rendering the assailed issuances and for having raised factual issues. This Resolution became final and [28] executory on July 31, 2003 as per the entry of judgment. The issues and arguments in the instant petition were already included in the issues and arguments raised and resolved in G.R. No. [29] 158308. The Court En Bancs June 17, 2003 Resolution should, thus, have put to rest the issue of the validity of the subject information. Yet, petitioners would have us now revisit the same issue in the instant petition. This cannot be done. Under the principle of the law of the case, when a question is passed upon by an appellate court and the case is subsequently remanded to the

lower court for further proceedings, the question becomes settled upon a subsequent appeal. Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of [30] the case before the court. Thus, considering that the validity of the information has long been settled in G.R. No. 158308, the Sandiganbayanproperly granted the motion to suspend the accused pendente lite. In conclusion, we note with deep disapproval the failure of petitioners to properly apprise this Court of the proceedings previously taken in G.R. No. 158308. Petitioners did not act forthrightly when they omitted in their statement of facts that they had earlier challenged the validity of the subject information before the Sandiganbayan and this Court, which issue they now seek to resuscitate in the instant petition. That the accused should be allowed to arduously and zealously defend his life, liberty and property is not in question. But this is so only within the permissible limits of the framework of our criminal laws and rules of procedure. Indubitably, the accused should not give ground for delay in the administration of criminal justice, much less, hide from this Court the patent unworthiness of his cause. WHEREFORE, the petition is DISMISSED. The Sandiganbayans December 8, 2003 Resolution, which ordered petitioners suspension pendente lite and February 5, 2004 Resolution, which denied petitioners motion for reconsideration, are AFFIRMED. This case is REMANDED to the Sandiganbayan for further proceedings. Treble costs against petitioners. SO ORDERED.

HILARIO P. SORIANO, Petitioner, - versus -

G.R. No. 162336

Present:

PEOPLE OF THE PHILIPPINES, CARPIO, J., Chairperson, * BANGKO SENTRAL NG CORONA, PILIPINAS (BSP), PHILIPPINE BRION, DEPOSIT INSURANCE DEL CASTILLO, and CORPORATION (PDIC), PUBLIC PEREZ, JJ. PROSECUTOR ANTONIO C. BUAN, and STATE PROSECUTOR ALBERTO R. Promulgated: FONACIER, [1] Respondents. February 1, 2010 x-------------------------------------------------------------------x

DECISION DEL CASTILLO, J.:

[2]

A bank officer violates the DOSRI law when he acquires bank funds for his personal benefit, even if such acquisition was facilitated by a fraudulent loan application. Directors, officers, stockholders, and their related interests cannot be allowed to interpose the fraudulent nature of the loan as a defense to escape culpability for their circumvention of Section 83 of Republic Act [3] (RA) No. 337. [4] Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the September 26, [5] [6] 2003 Decision and the February 5, 2004 Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 67657. The challenged Decision disposed as follows: WHEREFORE, premises considered, the instant petition for certiorari is hereby DENIED. Factual Antecedents
[7]

Sometime in 2000, the Office of Special Investigation (OSI) of the Bangko Sentral ng Pilipinas (BSP), through its [8] [9] officers, transmitted a letter dated March 27, 2000 to Jovencito Zuo, Chief State Prosecutor of the Department of Justice [10] (DOJ). The letter attached as annexes five affidavits, which would allegedly serve as bases for filing criminal charges for Estafa [11] thru Falsification of Commercial Documents, in relation to Presidential Decree (PD) No. 1689, and for Violation of Section 83 of RA [12] 337, as amended by PD 1795, against, inter alia,petitioner herein Hilario P. Soriano. These five affidavits, along with other documents, stated that spouses Enrico and Amalia Carlos appeared to have an outstanding loan of P8 million with the Rural Bank of San Miguel (Bulacan), Inc. (RBSM), but had never applied for nor received such loan; that it was petitioner, who was then president of RBSM, who had ordered, facilitated, and received the proceeds of the loan; and that the P8 million loan had never been authorized by RBSM's Board of Directors and no report thereof had ever been submitted to the Department of Rural Banks, Supervision and Examination Sector of the BSP. The letter of the OSI, which was not subscribed under oath, ended with a request that a preliminary investigation be conducted and the corresponding criminal charges be filed against petitioner at his last known address. Acting on the letter-request and its annexes, State Prosecutor Albert R. Fonacier proceeded with the preliminary investigation. He issued a subpoena with the witnesses affidavits and supporting documents attached, and required petitioner to file his counter-affidavit. In due course, the investigating officer issued a Resolution finding probable cause and correspondingly filed [13] two separate informations against petitioner before the Regional Trial Court (RTC) of Malolos, Bulacan. The first Information, dated November 14, 2000 and docketed as Criminal Case No. 237-M-2001, was for estafa through falsification of commercial documents, under Article 315, paragraph 1(b), of the Revised Penal Code (RPC), in relation to Article 172 of the RPC and PD 1689. It basically alleged that petitioner and his co-accused, in abuse of the confidence reposed in them as RBSM officers, caused the falsification of a number of loan documents, making it appear that one Enrico Carlos filled up the same, and [15] thereby succeeded in securing a loan and converting the loan proceeds for their personal gain and benefit. The information reads: That in or about the month of April, 1997, and thereafter, in San Miguel, Bulacan, and within the jurisdiction of this Honorable Court, the said accused HILARIO P. SORIANO and ROSALINDA ILAGAN, as principals by direct participation, with unfaithfulness or abuse of confidence and taking advantage of their position as President of the Rural Bank of San Miguel (Bulacan), Inc. and Branch Manager of the Rural Bank of San Miguel San Miguel Branch [sic], a duly organized banking institution under Philippine Laws, conspiring, confederating and mutually helping one another, did then and there, willfully and feloniously falsify loan documents consisting of undated loan application/information sheet, credit proposal dated April 14, 1997, credit proposal dated April 22, 1997, credit investigation report dated April 15, 1997, promissory note dated April 23, 1997, disclosure statement on loan/credit transaction dated April 23, 1997, and other related documents, by making it appear that one Enrico Carlos filled up the application/information sheet and filed the aforementioned loan documents when in truth and in fact Enrico Carlos did not participate in the execution of said loan documents and that by virtue of said falsification and with deceit and intent to cause damage, the accused succeeded in securing a loan in the amount of eight million pesos (PhP8,000,000.00) from the Rural Bank of San Miguel San Ildefonso branch in the name of Enrico Carlos which amount of PhP8 million representing the loan proceeds the accused thereafter converted the same amount to their own personal gain and benefit, to the damage and prejudice of the Rural Bank of San Miguel San Ildefonso branch, its creditors, the Bangko Sentral ng Pilipinas, and the Philippine Deposit Insurance Corporation. CONTRARY TO LAW.
[16] [14]

The other Information dated November 10, 2000 and docketed as Criminal Case No. 238-M-2001, was for violation of Section 83 of RA 337, as amended by PD 1795. The said provision refers to the prohibition against the so-called DOSRI loans. The information alleged that, in his capacity as President of RBSM, petitioner indirectly secured an P8 million loan with RBSM, for his personal use and benefit, without the written consent and approval of the bank's Board of Directors, without entering the said transaction in the bank's records, and without transmitting a copy of the transaction to the supervising department of the bank. [18] His ruse was facilitated by placing the loan in the name of an unsuspecting RBSM depositor, one Enrico Carlos . The information reads: That in or about the month of April, 1997, and thereafter, and within the jurisdiction of this Honorable Court, the said accused, in his capacity as President of the Rural Bank of San Miguel (Bulacan), Inc., did then and there, willfully and feloniously indirectly borrow or secure a loan with the Rural Bank of San Miguel San Ildefonso branch, a domestic rural banking institution created, organized and existing under Philippine laws, amounting to eight million pesos (PhP8,000,000.00), knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors of the said bank, and which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the said bank, as required by the General Banking Act, by using the name of one depositor Enrico Carlos of San Miguel, Bulacan, the latter having no knowledge of the said loan, and one in possession of the

[17]

said amount of eight million pesos (PhP8,000,000.00), accused converted the same to his own personal use and benefit, in flagrant violation of the said law. CONTRARY TO LAW.
[19]

Both cases were raffled to Branch 79 of the RTC of Malolos, Bulacan.

[21]

[20]

On June 8, 2001, petitioner moved to quash these informations on two grounds: that the court had no jurisdiction over the offense charged, and that the facts charged do not constitute an offense. On the first ground, petitioner argued that the letter transmitted by the BSP to the DOJ constituted the complaint and hence was defective for failure to comply with the mandatory requirements of Section 3(a), Rule 112 of the Rules of Court, such as the [22] statement of address of petitioner and oath and subscription . Moreover, petitioner argued that the officers of OSI, who were the signatories to the letter-complaint, were not authorized by the BSP Governor, much less by the Monetary Board, to file the complaint. According to petitioner, this alleged fatal oversight violated Section 18, pars. (c) and (d) of the New Central Bank Act (RA 7653). On the second ground, petitioner contended that the commission of estafa under paragraph 1(b) of Article 315 of the RPC is [23] [24] inherently incompatible with the violation of DOSRI law (as set out in Section 83 of RA 337, as amended by PD 1795), hence a person cannot be charged for both offenses. He argued that a violation of DOSRI law requires the offender to obtain a loan from his bank, without complying with procedural, reportorial, or ceiling requirements. On the other hand, estafa under par. 1(b), Article 315 of the RPC requires the offender to misappropriate or convert something that he holds in trust, or on commission, or for [25] administration, or under any other obligation involving the duty to return the same . Essentially, the petitioner theorized that the characterization of possession is different in the two offenses. If petitioner acquired the loan as DOSRI, he owned the loaned money and therefore, cannot misappropriate or convert it as contemplated in the offense of estafa. Conversely, if petitioner committed estafa, then he merely held the money in trust for someone else and therefore, did not acquire a loan in violation of DOSRI rules. Ruling of the Regional Trial Court In an Order dated August 8, 2001, the trial court denied petitioner's Motion to Quash for lack of merit . The lower court agreed with the prosecution that the assailed OSI letter was not the complaint-affidavit itself; thus, it need not comply with the requirements under the Rules of Court. The trial court held that the affidavits, which were attached to the OSI letter, comprised the complaint-affidavit in the case. Since these affidavits were duly subscribed and sworn to before a notary public, there was adequate compliance with the Rules. The trial court further held that the two offenses were separate and distinct violations, hence the [27] prosecution of one did not pose a bar to the other. Petitioners Motion for Reconsideration was likewise denied in an Order dated September 5, 2001. Aggrieved, petitioner filed a Petition for Certiorari Ruling of the Court of Appeals The CA denied the petition on both issues presented by petitioner. On the first issue, the CA determined that the BSP letter, which petitioner characterized to be a fatally infirm complaint, was not actually a complaint, but a transmittal or cover letter only. This transmittal letter merely contained a summary of the affidavits which were attached to it. It did not contain any averment of personal knowledge of the events and transactions that constitute the elements of the offenses charged. Being a mere transmittal letter, it need not comply with the requirements of Section 3(a) of Rule [30] 112 of the Rules of Court. The CA further determined that the five affidavits attached to the transmittal letter should be considered as the complaintaffidavits that charged petitioner with violation of Section 83 of RA 337 and for Estafa thru Falsification of Commercial Documents. These complaint-affidavits complied with the mandatory requirements set out in the Rules of Court they were subscribed and sworn to before a notary public and subsequently certified by State Prosecutor Fonacier, who personally examined [31] the affiants and was convinced that the affiants fully understood their sworn statements.
[29] [28] [26]

with the CA, reiterating his arguments before the trial court.

Anent the second ground, the CA found no merit in petitioner's argument that the violation of the DOSRI law and the commission of estafa thru falsification of commercial documents are inherently inconsistent with each other. It explained that the test in considering a motion to quash on the ground that the facts charged do not constitute an offense, is whether the facts alleged, when hypothetically admitted, constitute the elements of the offense charged. The appellate court held that this test was sufficiently met because the allegations in the assailed informations, when hypothetically admitted, clearly constitute the elements of Estafa [32] thru Falsification of Commercial Documents and Violation of DOSRI law. Petitioners Motion for Reconsideration Hence, this petition. Issues Restated, petitioner raises the following issues I Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653. II Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could also be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code. III Is a petition for certiorari under Rule 65 the proper remedy against an Order denying a Motion to Quash? IV Whether petitioner is entitled to a writ of injunction.
[34] [33]

was likewise denied for lack of merit.

for our consideration:

Our Ruling The petition lacks merit. First Issue: Whether the complaint complied with the mandatory requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of Republic Act No. 7653

Petitioner moved to withdraw the first issue from the instant petition
[35]

On March 5, 2007, the Court noted petitioner's Manifestation and Motion for Partial Withdrawal of the [36] Petition dated February 7, 2007. In the said motion, petitioner informed the Court of the promulgation of a Decision [37] entitled Soriano v. Hon. Casanova, which also involved petitioner and similar BSP letters to the DOJ. According to petitioner, the said Decision allegedly ruled squarely on the nature of the BSP letters and the validity of the sworn affidavits attached thereto. For this reason, petitioner moved for the partial withdrawal of the instant petition insofar as it involved the issue of whether or not a court can legally acquire jurisdiction over a complaint which failed to comply with the mandatory requirements provided under [38] Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653. Given that the case had already been submitted for resolution of the Court when petitioner filed his latest motion, and that all respondents had presented their positions and arguments on the first issue, the Court deems it proper to rule on the same. In Soriano v. Hon. Casanova, the Court held that the affidavits attached to the BSP transmittal letter complied with the mandatory requirements under the Rules of Court.

To be sure, the BSP letters involved in Soriano v. Hon. Casanova are not the same as the BSP letter involved in the instant case. However, the BSP letters in Soriano v. Hon. Casanova and the BSP letter subject of this case are similar in the sense that they are all signed by the OSI officers of the BSP, they were not sworn to by the said officers, they all contained summaries of their attached affidavits, and they all requested the conduct of a preliminary investigation and the filing of corresponding criminal charges against petitioner Soriano. Thus, the principle of stare decisis dictates that the ruling in Soriano v. Hon. Casanova be applied in the instant case once a question of law has been examined and decided, it should be deemed settled and closed to further [40] argument. We held in Soriano v. Hon. Casanova, after a close scrutiny of the letters transmitted by the BSP to the DOJ, that t hese were not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these affidavits, not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were subscribed under oath by the witnesses who executed them before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court. Anent the contention that there was no authority from the BSP Governor or the Monetary Board to file a criminal case against Soriano, we held that the requirements of Section 18, paragraphs (c) and (d) of RA 7653 did not apply because the BSP did not institute the complaint but merely transmitted the affidavits of the complainants to the DOJ. We further held that since the offenses for which Soriano was charged were public crimes, authority holds that it can be initiated by any competent person with personal knowledge of the acts committed by the offender. Thus, the witnesses who executed the affidavits clearly fell within the purview of any competent person who may institute the complaint for a publi c crime. The ruling in Soriano v. Hon. Casanova has been adopted and elaborated upon in the recent case of Santos-Concio v. Department of [41] Justice. Instead of a transmittal letter from the BSP, the Court in Santos-Concio was faced with an NBI-NCR Report, likewise with affidavits of witnesses as attachments. Ruling on the validity of the witnesses sworn affidavits as bases for a preliminary investigation, we held: The Court is not unaware of the practice of incorporating all allegations in one document denominated as complaint -affidavit. It does not pronounce strict adherence to only one approach, however, for there are cases where the extent of ones perso nal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. The Rules do not in fact preclude the attachment of a referral or transmittal letter similar to that of the NBI-NCR. Thus, in Soriano v. Casanova, the Court held: A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ shows that these were notintended to be the complaint envisioned under the Rules. It may be clearly inferred from the tenor of the letters that the officers merely intended to transmit the affidavits of the bank employees to the DOJ. Nowhere in the transmittal letters is there any averment on the part of the BSP and PDIC officers of personal knowledge of the events and transactions constitutive of the criminal violations alleged to have been made by the accused. In fact, the letters clearly stated that what the OSI of the BSP and the LIS of the PDIC did was to respectfully transmit to the DOJ for preliminary investigation the affidavits and personal knowledge of the acts of the petitioner. These affidavits were subscribed under oath by the witnesses who executed them before a notary public. Since the affidavits, not the letters transmitting them, were intended to initiate the preliminary investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was substantially complied with. Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of Appeals correctly held that a complaint for purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. The crime of estafa is a public crime which can be initiated by any competent person. The witnesses who executed the affidavits based on their personal knowledge of the acts committed by the petitioner fall within the purview of any competen t person who may institute the complaint for a public crime. x x x (Emphasis and italics supplied) A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person, without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an

[39]

investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which [42] may warrant the eventual prosecution of the case in court. Following the foregoing rulings in Soriano v. Hon. Casanova and Santos-Concio v. Department of Justice, we hold that the BSP letter, taken together with the affidavits attached thereto, comply with the requirements provided under Section 3(a), Rule 112 of the Rules of Court and Section 18, paragraphs (c) and (d) of RA 7653. Second Issue: Whether a loan transaction within the ambit of the DOSRI law (violation of Section 83 of RA 337, as amended) could be the subject of Estafa under Article 315 (1) (b) of the Revised Penal Code The second issue was raised by petitioner in the context of his Motion to Quash Information on the ground that the facts charged do [43] not constitute an offense. It is settled that in considering a motion to quash on such ground, the test is whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense charged as defined by law . The trial court may not consider a situation contrary to that set forth in the criminal complaint or informatio n. Facts that constitute the defense of the petitioner[s] against the charge under the information must be proved by [him] during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the [44] offense. We have examined the two informations against petitioner and we find that they contain allegations which, if hypothetically admitted, would establish the essential elements of the crime of DOSRI violation and estafa thru falsification of commercial documents. In Criminal Case No. 238-M-2001 for violation of DOSRI rules, the information alleged that petitioner Soriano was the president of RBSM; that he was able to indirectly obtain a loan from RBSM by putting the loan in the name of depositor Enrico Carlos; and that he did this without complying with the requisite board approval, reportorial, and ceiling requirements. In Criminal Case No. 237-M-2001 for estafa thru falsification of commercial documents, the information alleged that petitioner, by taking advantage of his position as president of RBSM, falsified various loan documents to make it appear that an Enrico Carlos secured a loan of P8 million from RBSM; that petitioner succeeded in obtaining the loan proceeds; that he later converted the loan proceeds to his own personal gain and benefit; and that his action caused damage and prejudice to RBSM, its creditors, the BSP, and the PDIC. Significantly, this is not the first occasion that we adjudge the sufficiency of similarly worded informations. InSoriano v. [45] People, involving the same petitioner in this case (but different transactions), we also reviewed the sufficiency of informations for DOSRI violation and estafa thru falsification of commercial documents, which were almost identical, mutatis mutandis, with the subject informations herein. We held in Soriano v. People that there is no basis for the quashal of the informations as they contain material allegations charging Soriano with violation of DOSRI rules and estafa thru falsification of commercial documents. Petitioner raises the theory that he could not possibly be held liable for estafa in concurrence with the charge for DOSRI violation. According to him, the DOSRI charge presupposes that he acquired a loan, which would make the loan proceeds his own money and which he could neither possibly misappropriate nor convert to the prejudice of another, as required by the [46] statutory definition of estafa. On the other hand, if petitioner did not acquire any loan, there can be no DOSRI violation to speak of. Thus, petitioner posits that the two offenses cannot co-exist. This theory does not persuade us. Petitioners theory is based on the false premises that the loan was extended to him by the bank in his own name, and that he became the owner of the loan proceeds. Both premises are wrong. The bank money (amounting to P8 million) which came to the possession of petitioner was money held in trust or administration by him for the bank, in his fiduciary capacity as the President of said bank. It is not accurate to say that petitioner became the owner of the P8 million because it was the proceeds of a loan. That would have been correct if the bank knowingly extended the loan to petitioner himself. But that is not the case here. According to the information for estafa, the loan was supposed to be for another person, a certain Enrico Carlos; petitioner, through falsification, made it appear that said Enrico Carlos applied for the loan whe n in fact he (Enrico Carlos) did not. Through such fraudulent device, petitioner obtained the loan proceeds and converted the same. Under
[47]

these circumstances, it cannot be said that petitioner became the legalowner of the P8 million. Thus, petitioner remained the banks fiduciary with respect to that money, which makes it capable of misappropriation or conversion in his hands. The next question is whether there can also be, at the same time, a charge for DOSRI violation in such a situation wherein the accused bank officer did not secure a loan in his own name, but was alleged to have used the name of another person in order to indirectly secure a loan from the bank. We answer this in the affirmative. Section 83 of RA 337 reads: Section 83. No director or officer of any banking institution shall, either directly or indirectly, for himself or as the representative or agent of others, borrow any of the deposits of funds of such bank, nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or in any manner be an obligor for moneys borrowed from the bank or loaned by it, except with the written approval of the majority of the directors of the bank, excluding the director concerned. Any such approval shall be entered upon the records of the corporation and a copy of such entry shall be transmitted forthwith to the Superintendent of Banks. The office of any director or officer of a bank who violates the provisions of this section shall immediately become vacant and the director or officer shall be punished by imprisonment of not less than one year nor more than ten years and by a fine of not less than one thousand nor more than ten thousand pesos. x x x The prohibition in Section 83 is broad enough to cover various modes of borrowing. It covers loans by a bank director or officer (like herein petitioner) which are made either: (1) directly, (2) indirectly, (3) for himself, (4) or as the representative or agent of others. It applies even if the director or officer is a mere guarantor, indorser or surety for someone else's loan or is in any manner an obligor for money borrowed from the bank or loaned by it. The covered transactions are prohibited unless the approval, reportorial and ceiling requirements under Section 83 are complied with. The prohibition is intended to protect the public, especially the [49] depositors, from the overborrowing of bank funds by bank officers, directors, stockholders and related interests, as such [50] overborrowing may lead to bank failures. It has been said that banking institutions are not created for the benefit of the directors [or officers]. While directors have great powers as directors, they have no special privileges as individuals. They cannot use the assets of the bank for their own benefit except as permitted by law. Stringent restrictions are placed about them so that when acting both for the bank and for one of themselves at the same time, they must keep within certain prescribed lines regarded by the legislature as [51] essential to safety in the banking business. A direct borrowing is obviously one that is made in the name of the DOSRI himself or where the DOSRI is a named party, while [52] an indirect borrowing includes one that is made by a third party, but the DOSRI has a stake in the transaction. The latter type indirect borrowing applies here. The information in Criminal Case 238-M-2001 alleges that petitioner in his capacity as President of Rural Bank of San Miguel San Ildefonso branch x x x indirectly borrow[ed] or secure[d] a loan with [RBSM] x x x knowing fully well that the same has been done by him without the written consent and approval of the majority of the board of directors x x x, and which consent and approval the said accused deliberately failed to obtain and enter the same upon the records of said banking institution and to transmit a copy thereof to the supervising department of the said bank x x x by using the name of one depositor Enrico Carlos x x x, the latter having no knowledge of the said loan, and once in possession of the said amount of eight million pesos [53] (P8 million), [petitioner] converted the same to his own personal use and benefit. The foregoing information describes the manner of securing the loan as indirect; names petitioner as the benefactor of the indirect [54] loan; and states that the requirements of the law were not complied with. It contains all the required elements for a violation of Section 83, even if petitioner did not secure the loan in his own name. The broad interpretation of the prohibition in Section 83 is justified by the fact that it even expressly covers loans to third parties where the third parties are aware of the transaction (such as principals represented by the DOSRI), and where the DOSRIs int erest does not appear to be beneficial but even burdensome (such as in cases when the DOSRI acts as a mere guarantor or surety). If the law finds it necessary to protect the bank and the banking system in such situations, it will surely be illogical for it to exclude a case like this where the DOSRI acted for his own benefit, using the name of an unsuspecting person. A contrary interpretation will effectively allow a DOSRI to use dummies to circumvent the requirements of the law. In sum, the informations filed against petitioner do not negate each other. Third Issue: Is a Rule 65 petition for certiorari the proper remedy against an Order denying a Motion to Quash? This issue may be speedily resolved by adopting our ruling in Soriano v. People,
[55] [48]

where we held:

In fine, the Court has consistently held that a special civil action for certiorari is not the proper remedy to assail the denial of a motion to quash an information. The proper procedure in such a case is for the accused to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion to quash and if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Thus, petitioners should not have forthwith filed a special civil action for certiorari with the CA and instead, they should have gone to trial and reiterated the special defenses contained in their motion to quash. There are no special or exceptional circumstances in the present case that would justify immediate resort to a filing of a petition for certiorari. Clearly, the CA did not commit any reversible error, much less, grave abuse of discretion in dismissing the [56] petition. Fourth Issue: Whether petitioner is entitled to a writ of injunction The requisites to justify an injunctive relief are: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. A clear legal right means one clearly founded in or granted by law or is enforceable as a matter of law. Absent any clear and unquestioned legal right, the issuance of an injunctive writ would constitute grave abuse of [57] discretion. Caution and prudence must, at all times, attend the issuance of an injunctive writ because it effectively disposes of the [58] [59] main case without trial and/or due process. In Olalia v. Hizon, the Court held as follows: It has been consistently held that there is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of an injunction. It is the strong arm of equity that should never be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. Every court should remember that an injunction is a limitation upon the freedom of action of the [complainant] and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it. Given this Court's findings in the earlier issues of the instant case, we find no compelling reason to grant the injunctive relief sought by petitioner. WHEREFORE, the petition is DENIED. The assailed September 26, 2003 Decision as well as the February 5, 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 67657 are AFFIRMED. Costs against petitioner. SO ORDERED.

SAMUEL U. LEE and MAYBELLE LEE LIM, Petitioners,

G.R. No. 164673 Present: CARPIO, J., Chairperson, * VELASCO, JR., BRION, DEL CASTILLO, and PEREZ, JJ.

KBC BANK N.V., Promulgated: Respondent. January 15, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION CARPIO, J.:

The Case This is a petition for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 10 February 2004 [2] [3] Decision and 27 July 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 78004. The Court of Appeals set aside the 26 [4] March 2003 Order of the Regional Trial Court (RTC), National Capital Judicial Region, Branch 58, Makati City, in Criminal Case Nos. 02-344-45. The Facts Midas Diversified Export Corporation (MDEC) obtained a $1,400,000 loan from KBC Bank N.V. (KBC Bank). KBC Bank is a Belgian corporation licensed to do business in the Philippines. On 12 August 1997, Samuel U. Lee (Lee), assistant treasurer and director of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment transferring all of MDECs rights over Confirmed Purchase Order No. MTC-548 to KBC Bank. Confirmed Purchase Order No. MTC-548 was allegedly dated 15 July 1997, issued by Otto Versand, a company based in Germany, and covered a ship ment of girls basic denim jeans amounting to $1,863,050. MDEC obtained another loan, amounting to $65,000, from KBC Bank. On 14 November 1997, Maybelle L. Lim (Lim), treasurer and assistant secretary of MDEC, executed a promissory note in favor of KBC Bank and a deed of assignment transferring all of MDECs rights over Confirmed Purchase Order No. WC -128 to KBC Bank. Confirmed Purchase Order No. WC-128 was allegedly dated 1 October 1997, issued by Otto Versand, and covered a shipment of boys bermuda jeans amounting to $841,500. On 23 December 1997, Lim renewed the 12 August 1997 promissory note and issued a notice of renewal and drawdown certificate to KBC Bank. On 29 December 1997, Lim executed an amended deed of assignment transf erring all of MDECs rights over Confirmed Purchase Order No. MTC-548 to KBC Bank.
[1]

MDEC was considered in default in paying the $65,000 loan on 30 January 1998. Under a facility agreement between KBC Bank and MDEC, any default in payment of any obligation under the agreement would render MDEC in default with regard to the $65,000 loan MDEC defaulted in paying two other obligations under the agreement. MDEC also failed to pay the $1,400,000 loan when it became due on 9 February 1998. On 17 March 1998, KBC Bank sent a letter to Otto Versand verifying the validity of Confirmed Purchase Order Nos. MTC-548 and WC-128. On 19 March 1998, Otto Versand sent a facsimile message to KBC Bank stating that (1) it did not issue the purchase orders, (2) it did not order or receive the items covered by the purchase orders, and (3) it would not pay MDEC any amount. In a complaint-affidavit dated 21 April 1998, Liza M. Pajarillo, manager of the corporate division of KBC Bank, charged Lee and [6] Lim of estafa. In his Resolution dated 27 November 2001, State Prosecutor Josefino A. Subia (State Prosecutor Subia) found the existence of probable cause and recommended that two counts of estafa be filed against Lee and Lim. State Prosecutor Subia stated that: After a careful evaluation of the evidence presented by the Bank, as well as of the respondents, we find the existence of a probable cause to indict respondents Samuel Lee and Maybelle Lee Lim. It is an established fact that the confirmed purchase order nos. MTC-548 and WC-128 presented with the Bank by the Midas thru respondents Samuel Lee and Maybelle Lee Lim were false and spurious, having been unequivocably repudiated and/or disowned by Otto Versand, Germany, the foreign buyer who allegedly issued the same, as evidenced by a telefax message sent to the Bank by Otto Versand. Evidently, respondent Samuel Lee signed the following documents, to wit: the conforme portion of the US$2.0 million short-term trade facility, the promissory note and the corresponding deed of assignment both dated August 12, 1997, covering the confirmed purchase order no[.] MTC-548, while respondent Maybelle Lee Lim signed in the promissory note and the corresponding deed of assignment both dated Nov. 14, 1997, the renewed promissory note and the notice of renewal and drawdown certificate both dated Dec. 23, 1997. Respondents Samuel Lee and Maybelle Lee Lim, thus cannot escape indictment, aside from signing those relevant loan documents, as they also clearly helped one another in fraudulently representing to the Bank that indeed said confirmed two (2) purchased [sic] orders does [sic] exists [sic] and that Midas have [sic] their [sic] rights, titles and interests thereto. With their fraudulent representation, they were able to entice or induce the Bank to extend [to] them the loan of [7] USD$1.4 million and USD$ 65,000 under the short-term trade facility previously granted to them.
[5]

Accordingly, two informations for estafa against Lee and Lim were filed with the RTC. After finding probable cause, Judge Winlove M. Dumayas (Judge Dumayas) of the RTC issued warrants of arrest against Lee and Lim. Lee and Lim filed a petition for review dated 26 April 2002 with the Department of Justice. Lee and Lim challenged State Prosecutor Subias 27 November 2001 Resolution and 17 Apr il 2002 Order denying their motion for reconsideration. They claimed that: I. THE RESOLUTIONS OF 27 NOVEMBER 2001 AND 17 APRIL 2002 MERELY RELIED ON HEARSAY EVIDENCE WHICH CANNOT BE THE BASIS FOR A FINDING OF A PROBABLE CAUSE. II. THE ASSAILED RESOLUTIONS WERE ISSUED BASED ONLY ON THE UNCORROBORATED ALLEGATIONS OF PAJARILLO THAT LEE AND LIM MADE FRAUDULENT REPRESENTATIONS TO [KBC BANK]. III. THE ASSAILED RESOLUTIONS ERRED IN HOLDING LEE AND LIM TO BE CRIMINALLY LIABLE DESPITE THE TWO LOANS CREATING [9] MERELY CIVIL LIABILITY ON THE PART OF MIDAS.
[10] [8]

In his Resolution dated 12 July 2002, Secretary Hernando B. Perez (Secretary Perez) directed the withdrawal of the informations filed against Lee and Lim. Secretary Perez held that the facsimile message constituted hearsay evidence: The twin charges of estafa are primarily anchored on respondents alleged fraudulent representations to *KBC Bank+ that the two purchase orders were fake or sham. To prove this point, Ms. Pajarillo of [KBC Bank] claims that she received a fax message from a representative of Otto Versand, stating that the latter company did not issue the purchase orders mentioned. There was no sworn statement from a responsible officer of Otto Versand presented to attest to the allegation that the subject purchase orders were fake. Since Ms. Pajarillo did not have personal knowledge of the fact that the subject purchase orders were in fact fake, her testimony cannot be the basis for finding probable cause against respondents. Ms. Pajarillo can testify only to those facts that she knew of her personal knowledge. Admittedly, she derived knowledge of the supposed spurious character of the purchase orders from a mere fax copy of a message that [KBC Bank] received from a certain representative of Otto Versand in Germany, someone who she did not even know personally. Unfortunately, this fax copy is hearsay evidence and therefore, inadmissible to [11] prove the truth of what it contains(Pastor vs. Gaspar, 2 Phil 592). (Emphasis supplied) KBC Bank filed a motion
[12]

for reconsideration dated 2 August 2002 with the Department of Justice.

[13]

Lee and Lim had not been arraigned. In a motion dated 18 October 2002 and filed with the RTC, Assistant City Prosecutor Nora C. Sibucao (Assistant City Prosecutor Sibucao) prayed for the withdrawal of the informations filed against Lee and Lim. Assistant City Prosecutor Sibucao stated that: The Prosecution, through the undersigned Trial Prosecutor, unto the Honorable Court, most respectfully moves and prays for the withdrawal of Information filed in the above-entitled cases in view of the resolution of the Department of Justice promulgated [14] on July 12, 2002 reversing the resolution of the City Prosecutor of Makati City.

The RTCs Ruling In his one-page Order dated 26 March 2003, Judge Dumayas granted Assistant City Prosecutor Sibucaos motion to withdraw the informations against Lee and Lim. Judge Dumayas held that: This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious. Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for [16] the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court. KBC Bank filed with the Court a petition I. The court a quo committed reversible error in issuing the questioned Order without specifying its legal basis.
[17] [15]

for review on certiorari under Rule 45 of the Rules of Court. KBC Bank claimed that:

II. The court a quo committed reversible error in prematurely acting upon the Makati Prosecutors Motion to Withdraw of Informati on. III. The court a quo committed reversible error in finding that no probable cause exists to hold respondents for trial for estafa under [18] Article 315, par. 2(a) and in granting the Makati Prosecutors Motion to Withdraw Information.
[19] [20]

In a Resolution dated 23 June 2003, the Court referred the petition to the Court of Appeals pursuant to Section 6, Rule 56 [21] of the Rules of Court. In his Resolution dated 19 November 2003, Secretary Simeon A. Datumanong denied KBC Banks 2 August 2002 motion for reconsideration. The Court of Appeals Ruling In its 10 February 2004 Decision, the Court of Appeals set aside Judge Dumayas 26 March 2003 Order. The Court of Appeals held that: It has long been established that the filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information, a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. xxxx The trial judge practically concurred with the findings of the Secretary of Justice that the fax copy is hearsay evidence an d therefore, inadmissible to prove the truth that it contains, contrary to the well -reasoned findings of the investigating prosecutor. It is emphasized that a preliminary investigation is not the occasion for the full and exhaustive display of the parties e vidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. The issue of admissibility or inadmissibility of evidence is a matter of defense that is best ventilated in a full-blown trial; [22] preliminary investigation is not the occasion for the exhaustive display of presentation of evidence. Hence, the present petition. The Issues In their petition, Lee and Lim raised as issues that: I THE COURT EXCEEDED ITS AUTHORITY IN PASSING UPON THE ISSUE OF WHETHER OR NOT THERE WAS PRIMA FACIE EVIDENCE OF ESTAFA AGAINST THE PETITIONERS, AN ISSUE THAT WAS PENDING BEFORE THE SECRETARY OF JUSTICE xxxx

II QUESTION IS NOT ONE OF ADMISSIBILITY OF EVIDENCE BUT THE NEED IN PRELIMINARY INVESTIGATION FOR EVIDENCE OF VALUE TO ESTABLISH PROBABLE CAUSE xxxx III

RESPONDENT COURT DID NOT PREMATURELY ALLOW THE WITHDRAWAL OF THE INFORMATIONS xxxx IV THE TRIAL COURT DID NOT ABDICATE ITS DUTY TO DETERMINE THE SUFFICIENCY OF THE PROSECUTIONS REASON FOR [23] WITHDRAWING THE INFORMATIONS. The Courts Ruling The petition is unmeritorious. Lee and Lim claim that the Court of Appeals erred when it reviewed the findings of Secretary Perez. They stated that: [T]he Court of Appeals cannot indirectly review the findings of the Secretary under the pretext of correcting the actuation of the trial court. x x x [T]he only ruling before the Court of Appeals is the ruling of the trial court x x x. But the Court of Appeals ignored the fact that the case before it is not one for the review of the final order of the Secretary of Justice, acting as a quasi-judicial officer, which is governed by Rule 43 of the Rules of Court. The actual case filed with it was rather a [24] petition for review on certiorari of the dismissal order of the trial court under Rule 45.

The Court is not impressed. The Court of Appeals reviewed Judge Dumayas 26 March 2003 Order, not Secretary Perezs 12 July 2002 Resolution. The Court of Appeals held that Judge Dumayas erred when he failed to make his own evaluation and merely relied on Secretary Perezs recommendation that there was no probable cause. The Court of Appeals stated that: In a more recent case, the Supreme Court ruled that: A judge acts with grave abuse of discretion when he grants a prosecutors motion to dismiss the criminal charges against an accused on the basis solely of the recommendation of the Secretary of Justice his reliance on the prosecutors averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner is an abdication of the trial courts duty and jurisdiction to determine a prima facie case in blatant violation of the Courts pronouncement in Crespo vs. Mogul. When the trial judge issued its Order of February 14, 2002 directing the issuance of warrants of arrest against the respondents, he clearly found probable cause to sustain the filing of criminal complaints against the latter. The issuance of a warrant of arrest is not a ministerial function of the court it calls for the exercise of judicial discretion on the part of the issuing magistrate.

If the trial court judge finds it appropriate to dismiss the Informations, the same should be based upon his own personal individual conviction that there is no case against the accused/respondents. To rely solely on the recommendation of the Secretary of Justice, to say the least, is an abdication of the judge*+s duty and jurisdiction to determine a prima facie case. What was imperatively required was the trial judges own assessment of just evidence, it not being sufficient for the valid and proper exercise [25] of judicial discretion merely to accept the prosecutions word for its supposed insufficie ncy. Lee and Lim claim that the Court of Appeals erred when it ruled that the admissibility of the facsimile message is a matter best ventilated in a full-blown trial. They stated that: At any rate, the Court of Appeals also said in its decision that the issue of admissibility of evidence assailed as hearsay is a matter of defense to be ventilated in a full blown trial. It held that preliminary investigation is not the occasion for exhaustive display of evidence and the issue of admissibility or inadmissibility of evidence is a matter of defense to be ventilated at the trial. But the Secretary of Justices rejection of the fax copy of Otto Versands letter as hearsay evidence merely affirmed petitioners right to due process in a preliminary investigation. x x x

xxxx Ms. Pajarillo authenticated it by stating under oath that she received it. The cause for its rejection is the fact that its contents are purely hearsay since Ms. Pajarillo who testified about them had no personal knowledge of the fact that the purchase orders were false. The author of the fax message did not swear under oath to the truth of the statement in the document contrary to what section 3 (e) of Rule 112 mandates. The Office of the Solicitor General agreed with the petitioners. In the comment dated October 28, 2003 that it filed with the Court of Appeals, it said: xxxx 20. In this case, the Secretary of Justices realistic judicial appraisal of the merits of petitioners complaint -affidavit show that its evidence of estafa is insufficient for lack of proof of the requisite element of deceit. So much so that if the case were tried, the [26] trial court would be bound to order an acquittal. The Court is not impressed. Whether the facsimile message is admissible in evidence and whether the element of deceit in the crime of estafa is present are matters best ventilated in a full-blown trial, not in the preliminary investigation. In Andres v. Justice [27] Secretary Cuevas, the Court held that: *A preliminary investigation+ is not the occasion for the full and exhaustive display of *the prosecutions+ evidence. The presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a fullblown trial on the merits. In fine, the validity and merits of a partys defense or accusation, as well as the admissibility of testimonies and evidence, are [28] better ventilated during trial proper than at the preliminary investigation level . (Emphasis supplied) Lee and Lim claim that the Court of Appeals erred when it ruled that Judge Dumayas failed to make his own evaluation and merely relied on Secretary Perezs recommendation that there was no probable cause. They stated that: Contrary to the Court of Appeals*+ ruling, the trial court made an effort to evaluate the merit of the prosecutions motion to withdraw the informations. It evaluated the merits of both the prosecutions motion and respondent banks opposition to the motion. x x x Clearly, it cannot be said that the trial court abandoned its responsibility of making an independent assessment of the sufficiency of the prosecution motion [sic]. Indeed, it scrutinized the arguments of respondent bank just as it did the arguments of [29] the prosecution in order to determine for itself whether or not the withdrawal of the informations was warranted. The Court is not impressed. Judge Dumayas failed to make his own evaluation in granting the motion to withdraw the informations. Judge Dumayas 26 March 2003 Order states in full: This Court, after an in-depth scrutiny of the arguments raised by the prosecution and private complainant, finds the contentions of the prosecution to be sufficient and meritorious. Accordingly, the Motion to Withdraw Information filed by the Prosecution is hereby granted and the two (2) informations for the crime of Estafa penalized under par. 2 (a) of the Revised Penal Code are hereby withdrawn from the docket of this court. In Co v. Lim,
[30]

the Court held that:

Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is mandated to independently evaluate or assess the merits of the case. Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case. The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor, which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. XXXX

[T]HE TRIAL JUDGE DID NOT POSITIVELY STATE THAT THE EVIDENCE PRESENTED AGAINST THE RESPONDENTS WAS INSUFFICIENT FOR A PRIMA FACIE CASE, NOR DID THE AFOREQUOTED ORDER INCLUDE A DISCUSSION OF THE MERITS OF THE CASE BASED ON AN EVALUATION OR ASSESSMENT OF THE EVIDENCE ON RECORD . IN OTHER WORDS, THE DISMISSAL OF THE CASE WAS BASED UPON CONSIDERATIONS OTHER THAN THE JUDGES OWN PERSONAL INDIVIDUAL CONVICTION THAT THERE WAS NO CASE AGAINST THE RESPONDENTS. THUS, THE TRIAL JUDGE IMPROPERLY RELINQUISHED THE DISCRETION THAT HE WAS BOUND TO EXERCISE, AND THE ORDERS DATED 11 FEBRUARY 2004 AND 29 JUNE 2004 ARE INVALID FOR HAVING BEEN ISSUED IN GRAVE ABUSE OF DISCRETION. (EMPHASIS SUPPLIED) IN BALTAZAR V. CHUA,
[31]

THE COURT HELD THAT:

CONSIDERING THAT THE TRIAL COURT HAS THE POWER AND DUTY TO LOOK INTO THE PROPRIETY OF THE PROSECUTIONS MOTION TO DISMISS, WITH MUCH MORE REASON IS IT FOR THE TRIAL COURT TO EVALUATE AND TO MAKE ITS OWN APPRECIATION AND CONCLUSION, WHETHER THE MODIFICATION OF THE CHARGES AND THE DROPPING OF ONE OF THE ACCUSED IN THE INFORMATION, AS RECOMMENDED BY THE JUSTICE SECRETARY, IS SUBSTANTIATED BY EVIDENCE. THIS SHOULD BE THE STATE OF AFFAIRS, SINCE THE DISPOSITION OF THE CASE SUCH AS ITS CONTINUATION OR DISMISSAL OR EXCLUSION OF AN ACCUSED IS REPOSED IN THE SOUND DISCRETION OF THE TRIAL COURT. IN THE CASE UNDER CONSIDERATION, THE CITY PROSECUTOR INDICTED JAIME AND JOVITO FOR THE CRIMES OF MURDER AND FRUSTRATED MURDER. HOWEVER, UPON REVIEW, THE SECRETARY OF JUSTICE DOWNGRADED THE CHARGES TO HOMICIDE AND FRUSTRATED HOMICIDE. THE SECRETARY ALSO DROPPED JAIME FROM THE CHARGES. THIS RESOLUTION PROMPTED THE CITY PROSECUTOR TO FILE A MANIFESTATION AND MOTION FOR THE WITHDRAWAL OF THE INFORMATIONS FOR MURDER AND FRUSTRATED MURDER AND FOR THE ADMISSION OF NEW INFORMATIONS FOR HOMICIDE AND FRUSTRATED HOMICIDE AGAINST JOVITO ONLY, WHICH WAS GRANTED BY JUDGE CRUZ IN HIS ORDER DATED 18 NOVEMBER 1997. JUDGE CRUZ, HOWEVER, FAILED TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE CASES AND THE EVIDENCE ON RECORD OR IN THE POSSESSION OF THE PUBLIC PROSECUTOR. IN GRANTING THE MOTION OF THE PUBLIC PROSECUTOR TO WITHDRAW THE INFORMATIONS, THE TRIAL COURT NEVER MADE ANY ASSESSMENT WHETHER THE CONCLUSIONS ARRIVED AT BY THE SECRETARY OF JUSTICE WAS SUPPORTED BY EVIDENCE. IT DID NOT EVEN TAKE A LOOK AT THE BASES ON WHICH THE JUSTICE SECRETARY DOWNGRADED THE [32] CHARGES AGAINST JOVITO AND EXCLUDED JAIME THEREFROM. (EMPHASIS SUPPLIED) IN ARK TRAVEL EXPRESS V. THE PRESIDING JUDGE OF MAKATI,
[33]

THE COURT HELD THAT:

IT IS SETTLED THAT WHEN CONFRONTED WITH A MOTION TO WITHDRAW AN INFORMATION ON THE GROUND OF LACK OF PROBABLE CAUSE BASED ON A RESOLUTION OF THE SECRETARY OF THE DEPARTMENT OF JUSTICE, THE BOUNDEN DUTY OF THE TRIAL COURT IS TO MAKE AN INDEPENDENT ASSESSMENT OF THE MERITS OF SUCH MOTION. HAVING ACQUIRED JURISDICTION OVER THE CASE, THE TRIAL COURT IS NOT BOUND BY SUCH RESOLUTION BUT IS REQUIRED TO EVALUATE IT BEFORE PROCEEDING FURTHER WITH THE TRIAL AND SHOULD EMBODY SUCH ASSESSMENT IN THE ORDER DISPOSING THE MOTION. THE SUBJECT MTC ORDERS DO NOT SHOW THAT THE MTC MADE AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE MOTION TO WITHDRAW INFORMATIONS. X X X THE MTC SHOULD HAVE MADE AN INDEPENDENT EVALUATION AND EMBODIED ITS ASSESSMENT IN AT LEAST ONE OF ITS [34] ASSAILED ORDERS. (EMPHASIS SUPPLIED)

IN LEDESMA V. COURT OF APPEALS,

[35]

THE COURT HELD THAT:

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, ANY DISPOSITION OF THE CASE SUCH AS ITS DISMISSAL OR ITS CONTINUATION RESTS ON THE SOUND DISCRETION OF THE COURT. TRIAL JUDGES ARE THUS REQUIRED TO MAKE THEIR OWN ASSESSMENT OF WHETHER THE SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING OR DENYING THE APPEAL, SEPARATELY AND INDEPENDENTLY OF THE PROSECUTIONS OR THE SECRETARYS EVALUATION THAT SUCH EVIDENCE IS INSUFFICIENT OR THAT NO PROBABLE CAUSE TO HOLD THE ACCUSED FOR TRIAL EXISTS. THEY SHOULD EMBODY SUCH ASSESSMENT IN THEIR WRITTEN ORDER DISPOSING OF THE MOTION. XXXX

THE TRIAL COURTS ORDER IS INCONSISTENT WITH OUR REPETITIVE CALLS FOR AN INDEPENDENT AND COMPETENT ASSESSMENT OF THE ISSUE(S) PRESENTED IN THE MOTION TO DISMISS. THE TRIAL JUDGE WAS TASKED TO EVALUATE THE SECRETARYS RECOMMENDATION FINDING THE ABSENCE OF PROBABLE CAUSE TO HOLD PETITIONER CRIMINALLY LIABLE FOR LIBEL. HE FAILED TO DO SO. HE MERELY RULED TO PROCEED WITH THE TRIAL WITHOUT STATING HIS REASONS FOR DISREGARDING THE [36] SECRETARYS RECOMMENDATION. (EMPHASIS SUPPLIED) IN THE PRESENT CASE, JUDGE DUMAYAS, IN HIS 26 MARCH 2003 ORDER, DID NOT (1) POSITIVELY STATE THAT THE EVIDENCE AGAINST LEE AND LIM IS INSUFFICIENT, (2) INCLUDE A DISCUSSION OF THE MERITS OF THE CASE, (3) ASSESS WHETHER SECRETARY PEREZS CONCLUSION IS SUPPORTED BY EVIDENCE, (4) LOOK AT THE BASIS OF SECRETARY PEREZS RECOMMENDATION, (5) EMBODY HIS ASSESSMENT IN THE ORDER, AND (6) STATE HIS REASONS FOR GRANTING THE MOTION TO WITHDRAW THE INFORMATIONS. JUDGE DUMAYAS FAILURE TO MAKE HIS OWN EVALUATION OF THE MERITS OF THE CASE VIOLATES KBC BANKS RIGHT TO DUE PROCESS AND CONSTITUTES GRAVE ABUSE OF DISCRETION. JUDGE DUMAYAS 26 MARCH 2003 ORDER GRANTING THE MOTION TO [37] WITHDRAW THE INFORMATIONS IS VOID.

WHEREFORE, THE PETITION IS DENIED. THE COURT AFFIRMS THE 10 FEBRUARY 2004 DECISION AND 27 JULY 2004 RESOLUTION OF THE COURT OF APPEALS IN CA-G.R. SP NO. 78004. THE CASE IS REMANDED TO THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH 58, MAKATI CITY FOR EVALUATION ON WHETHER PROBABLE CAUSE EXISTS TO HOLD THE ACCUSED FOR TRIAL. SO ORDERED.

ENRIQUE V. VIUDEZ II, Petitioner,

G.R. No. 152889

Present: YNARES-SANTIAGO, J., Chairperson, * CARPIO, ** CORONA, NACHURA, and PERALTA, JJ.

-versus-

THE COURT OF APPEALS and HON. BASILIO R. GABO, JR., in his capacity as Presiding Judge of Branch 11, Regional Trial Court, Malolos, Bulacan, Respondents.

Promulgated: June 5, 2009

x-----------------------------------------------------------------------------------------x

DECISION PERALTA, J.:

This is a petition for review on certiorari under Section 1, Rule 45 of the 1997 Rules of Civil Procedure, with prayer for the issuance of [1] a temporary restraining order and/or writ of preliminary injunction of the Decision of the Court of Appeals (CA) in CA-G.R. SP No.

67115 dismissing the petition for certiorari filed by herein petitioner against Judge Basilio R. Gabo, Jr., in his capacity as Presiding Judge of Branch 11, Regional Trial Court (RTC) of Malolos, Bulacan. The factual and procedural antecedents are as follows: Honorato Galvez and his driver were fatally shot on June 9, 2000 in Barangay San Juan, San Ildefonso, Bulacan. On June 26, 2000, a rd complaint for the alleged murder of the said victims was filed by the 303 Philippine National Police Criminal Investigation Division (PNP CID) Team with the Office of the Provincial Prosecutor against the following: Cirilo de la Cruz, Guilberto Chico, Edmund Fernando, two persons named Ronald and Gerry, three (3) John Does, and Eulogio Villanueva. Likewise, on July 14, 2000, a complaint for murder against petitioner Enrique Viudez II was filed by Estrella Galvez, widow of Mayor Honorato Galvez, for the [2] killing of the latter and his driver. On March 31, 2001, a Resolution was issued by the Investigating State Prosecutor finding probable cause to indict the petitioner [3] and others for the crime of murder. On September 19, 2001, two (2) Informations for murder were filed with the RTC of Malolos, [4] Bulacan, which then issued warrants of arrest on the same day. On September 21, 2001, petitioner filed a Motion to Suspend Proceedings and to Suspend the Implementation [5] of the Warrant of Arrest, Pursuant to Department Circular No. 70 of the Department of Justice (DOJ) arguing that all the accused [6] in the said criminal cases had filed a timely petition for review with the Secretary of Justice and, pursuant to Section 9 of Department Circular No. 70, the implementation of the warrant of arrest against petitioner should be suspended and/or recalled pending resolution of the said petition for review. In an Order dated September 28, 2001, the RTC denied petitioners Motion stating that, insofar as the implementation of the warrant of arrest against petitioner was concerned, said warrant had already been issued for his apprehension. The court also added that there was no way for it to recall the same in the absence of any compelling reason, and that jurisdiction over his person had not yet been acquired by it; hence, petitioner had no personality to file any pleading in court relative to the case until he was arrested or voluntarily surrendered himself to the court. Thus, petitioner filed a motion for reconsideration of the said Order, but was denied in an Order dated October 10, 2001. Thereafter, petitioner filed with the CA on October 11, 2001, a petition for certiorari with prayer for the issuance of a temporary [8] restraining order (TRO) and/or writ of preliminary injuction claiming the following: x x x The Order of September 28, 2001 and the Order of October 10, 2001 denying the Motion for Reconsideration were issued with grave abuse of discretion amounting to lack of jurisdiction. This is because of the following reasons: (a) The fact that the petitioner has not voluntarily surrendered nor arrested is not a legal impediment or obstacle to the suspension of the implementation of the warrant of arrest issued against the petitioner. (b) Precisely, the petitioner has prayed for the suspension of the implementation of the warrant of arrest because if he is arrested or voluntarily surrenders to the Court, the issues on the suspension of the implementation of the warrant of arrest would become moot and academic. It is for this reason that the petitioner has prayed for the suspension of the implementation of the warrant of arrest. The petitioner is merely availing of his rights under the law. There would be a waiver on the part of the petitioner if he surrenders to the lower court. Meantime, he would be deprived of his provisional liberty pending the resolution of his petition for review. The clear intention of Department Circular No. 70 is to suspend all proceedings including the implementation of the warrant of arrest pending resolution by the Secretary of Justice of the petition for review. (c) The authority of the Secretary of Justice to entertain the petition for review even after the filing of the informations is settled. In Solar Team Entertainment, Inc. v. Hon. Rolando How, the High Court ruled, 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 30-day period prescribed by Section 7 of the Speedy Trial Act. (d) Moreover, the authority of the Secretary of Justice to review resolutions of the Chief State Prosecutor, Provincial or City Prosecutors is recognized by Sec. 4 of Rule 112 of the Revised Rules of Criminal Procedure. (e) Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure expressly recognizes the authority and power of the Department of Justice to prescribe the rules to be followed in cases of a petition for review of a resolution of the Chief State Prosecutor, Provincial or City Prosecutors. The rules provide if upon petition by a proper party under such rules as the Department of Justice may
[7]

prescribe, clearly recognizing the power of the Secretary of Justice to promulgate rules to be followed in petitions for rev iew of appeals from resolutions of the Chief State Prosecutor, Provincial or City Prosecutor. (f) Pursuant to the rule-making power of the Secretary of Justice, Department Circular No. 70 was promulgated by the Secretary of Justice providing that the appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance. (g) The implementation of the warrant of arrest issued against the petitioner is part of the proceedings in court. Since the circular unequivocally provides that the proceedings in court are held in abeyance pending resolution of the petition for review or appeal , it follows that the lower court committed grave abuse of discretion amounting to lack of jurisdiction when it denied the motion to suspend the implementation of the warrant of arrest. There is even no opposition by the trial prosecutor to the motion to suspend [9] the implementation of the warrant of arrest against the petitioner.
[10]

In a Resolution dated October 16, 2001, the CA found that the verified petition of petitioner sufficiently showed that unless the implementation of the warrants of arrest dated September 19, 2001 in Criminal Case Nos. 2492-M-2001 and 2693-M-2001 were temporarily enjoined before the application for a writ of preliminary injunction could be heard on notice, great or irreparable injury would be visited upon the petitioner, as he could momentarily be arrested and detained upon non-bailable charges. Thus, the CA granted a TRO, commanding respondent RTC Judge Gabo to enjoin the implementation of the said warrants of arrest. Respondents RTC Judge Basilio R. Gabo, Jr., in his capacity as Presiding Judge of the RTC, Branch II of Malolos, Bulacan, and the Office of the Solicitor General (OSG) argued in their Comment (with motion to lift temporary restraining order and opposition to [11] the application for the issuance of a writ of preliminary injunction) dated November 12, 2001, that the determination of whether to issue a warrant of arrest after the filing of an information was a function that was exclusively vested in respondent Judge. Respondent Judge, therefore, was in no way obligated to defer the implementation of the service of the warrant of arrest simply because a petition for review was filed by petitioner before the Secretary of Justice to question the filing of the information against the same petitioner. As to their Opposition to the application for issuance of preliminary injunction with motion to lift temporary restraining order, the public respondents contended that the issue proposed by petitioner was the mere suspension of the implementation of the warrant of arrest to await the resolution of the Department of Justice; hence, respondent Judge was under no obligation to suspend the proceedings, because the issuance of the warrant of arrest was his exclusive function. On December 19, 2001, the CA promulgated its Decision dismissing the petition for certiorari for lack of merit and found no whimsicality or oppressiveness in the exercise of the respondent Judge's discretion in issuing the challenged Orders. The court added that, since the premise of petitioner's conclusion was erroneous for said circular and the cases cited did not make it obligatory for respondent Judge to grant petitioner's motion petitioner's cause was lost. It also stated that nowhere in the Revised Rules of Criminal Procedure, or in any circular of this Court, even in any of its decision was it ever pronounced that when a petition for review of the resolution of the investigating prosecutor -- finding probable cause to indict a respondent -- is filed with the Office of the Secretary of Justice, the court which earlier issued warrants of arrest, should suspend their enforcement. In an Order dated January 9, 2002, respondent Judge ordered the issuance of an alias warrant of arrest for the apprehension of petitioner by virtue of the expiration of the effectivity of the TRO issued by the CA. Petitioner filed with the CA a Motion for Reconsideration dated January 3, 2002 of the Decision dated December 19, 2001, which [15] was eventually denied by the same court in its Resolution dated April 11, 2002, stating, among others, that it found nothing to justify a modification, much less a reversal, of its judgment. The court further stated that the motion for reconsideration had not presented any fresh argument or raised any new matter that would need an extended discussion, and that the points stressed were the same as those already discussed in the petition and other papers of the petitioner which were fully considered in the decision. Hence, the instant petition. Petitioner claimed, among others, that the Decision of the CA was issued with grave abuse of discretion amounting to lack of jurisdiction when it ruled that Department Circular No. 70 of the Department of Justice promulgated on July 3, 2000 was plainly a directive of the Secretary of Justice to the accused and the trial prosecutor to ask the Court to suspend the proceedings thereon during the pendency of the appeal. According to petitioner, the said department circular had the force and effect of law. He cited [16] cases wherein this Court ruled that administrative regulations adopted pursuant to law had the force and effect of law. Petitioner also pointed out that the same department circular stated that its promulgation was in line with recent jurisprudence. Anent the prayer for the issuance of a TRO, petitioner argued that unless a TRO was issued enjoining the
[14] [13] [12]

implementation of the warrant of arrest dated September 19, 2001 and the alias warrant of arrest issued by virtue of the Order of January 9, 2002, he stood to suffer great and irreparable injury, as he would be deprived of his liberty without due process of law. In a Resolution dated May 6, 2002, this Court resolved to issue the TRO prayed for by petitioner and to direct respondent Judge to cease and desist from implementing the warrant of arrest dated September 19, 2001 against petitioner and the alias warrant of arrest issued pursuant to the Order of January 9, 2002 in Criminal Case Nos. 2492-M-2001 and 2493-M-2001, entitled People of the Philippines vs. Enrique V. Viudez II, et al., effective immediately until further orders from the same Court. In its Comment dated June 13, 2002, the OSG stated that the determination of whether to issue a warrant of arrest after the filing of an information was a function that was exclusively vested in respondent Judge. Respondent Judge, therefore, was in no way obliged to defer the implementation of the service of the warrant simply because a petition for review was filed by petitioner before the Secretary of Justice to question the filing of the information against him. The OSG further argued that the respondent Judge did not need to wait for the completion of the preliminary investigation before issuing a warrant of arrest, for Section 4, Rule 113 of the Rules of Criminal Procedure provides that the head of the office to whom the warrant of arrest has been delivered for execution shall cause the warrant to be executed within ten (10) days from receipt thereof. As an opposition to the application for issuance of preliminary injunction and as a motion to lift the temporary restraining order, the OSG stated that the petitioner did not challenge the finding of probable cause of respondent Judge in the issuance of the warrant of arrest against him. Petitioner simply wanted a deferment of its implementation by virtue of Section 9 of Department Circular No. 70; hence, according to the OSG, the issuance of the TRO was tantamount to an abatement of the criminal proceedings. Petitioner, in its Opposition to the motion to lift temporary restraining order dated September 5, 2002 stated that the discussion of the evidence of the prosecution by the OSG was way off the mark, because the only issue to be resolved in the present petition was whether the implementation of the warrant of arrest issued by the RTC should be suspended pending resolution by the Secretary of Justice of the petition for review filed by petitioner. He also reiterated that the lifting of the TRO would cause grave and irreparable injury to his rights because no bail had been recommended for his provisional liberty. On September 19, 2002, petitioner filed a Manifestation informing this Court that the Secretary of Justice had already sustained [21] his petition for review. A photocopy of the Resolution of the Secretary of Justice, promulgated on September 13, 2002, was attached to the said manifestation, the dispositive portion of which reads, among others: [t]he Chief State Prosecutor is directed to move, with leave of court, for the withdrawal of the information for murder (2 counts) against Mayor Enrique V. Viudez II and Eulogio Villanueva immediately. In view of the same resolution, according to petitioner, the motion of the OSG for the lifting of the TRO issued by this Court has no more legal basis and should be denied for lack of merit. In his Reply to the Comment of the OSG, dated November 6, 2002, petitioner reiterated that the Secretary of Justice had already issued a resolution on the petition for review that he filed with the said office, and that the State Prosecutor had already filed with the RTC a motion to withdraw the information against him and his co-accused; hence, the instant petition may already be moot and academic because of the said developments. On December 2, 2002, this Court resolved to give due course to the present petition and required the parties to submit their [23] [24] respective memoranda. Petitioner eventually filed his Memorandum dated February 4, 2003, while the OSG filed its Memorandum on March 24, 2003. Before this Court shall delve into its disquisition on the issue propounded by petitioner, it is worth noting that in his [25] Memorandum dated February 4, 2003, petitioner reiterated that the Secretary of Justice had already resolved the petition for review and ordered the withdrawal of the informations for murder filed against the same petitioner with the RTC of Malolos, Bulacan, ruling that there was no probable cause for the filing of the said informations. Accordingly, as contained in the same [26] Memorandum, the Office of the State Prosecutor filed a Motion to Withdraw the Informations, which the RTC granted on [27] October 23, 2002. Furthermore, in a Resolution dated May 6, 2002, this Court already resolved to issue a TRO as prayed for by petitioner. These developments would necessarily render the instant petition moot and academic; however, as implored by petitioner, this Court will render its decision on the merits of the case in the interest of justice. The basic issue propounded by petitioner is whether a pending resolution of a petition for review filed with the Secretary of Justice concerning a finding of probable cause will suspend the proceedings in the trial court, including the implementation of a warrant of arrest. Petitioner cites DOJ Department Circular No. 70, specifically paragraph 2 of Section 9 thereof, which provides that the appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance. Somehow, petitioner is of the opinion that the suspension of proceedings in court, as provided in the said circular, includes the suspension of the implementation of warrants of arrest issued by the court. Petitioner's contention is wrong.
[22] [20] [19] [18] [17]

It is well to remember that there is a distinction between the preliminary inquiry, which determines probablecause for the issuance of a warrant of arrest; and the preliminary investigation proper, which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing a warrantof arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the [28] function of the investigating prosecutor. As enunciated in Baltazar v. People, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than [30] suspicion; it requires less than evidence that would justify conviction. The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very [31] start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial. The function of the judge to issue a warrant of arrest upon the determination of probable cause is exclusive; thus, the consequent implementation of a warrant of arrest cannot be deferred pending the resolution of a petition for review by the Secretary of Justice as to the finding of probable cause, a function that is executive in nature. To defer the implementation of the warrant of arrest would be an encroachment on the exclusive prerogative of the judge. It must be emphasized that petitioner filed with the trial court a motion to suspend proceedings and to suspend the implementation of the warrant of arrest in pursuance of a DOJ circular, and not a motion to quash the warrant of arrest questioning the issuance thereof. Thus, there is no contest as to the validity or regularity of the issuance of the warrant of arrest. Petitioner merely wanted the trial court to defer the implementation of the warrant of arrest pending the resolution by the Secretary of Justice of the petition for review that he filed citing the following directive contained in Section 9 of DOJ Department Circular: xxxx The appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in [32] abeyance.
[29]

The above provision of the Department Circular is directed specifically at the appellant and the trial prosecutor, giving them latitude in choosing a remedy to ensure that the proceedings in court are held in abeyance. However, nowhere in the said provision does it state that the court must hold the proceedings in abeyance. Therefore, the discretion of the court whether or not to suspend the proceedings or the implementation of the warrant of arrest, upon the motion of the appellant or the trial prosecutor, remains [33] unhindered. This is in consonance with the earlier ruling of this Court that once a complaint or information is filed in court, any disposition of the case as to its dismissal, or the conviction or acquittal of the accused, rests on the sound discretion of the said court, as it is the best and sole judge of what to do with the case before it. In the instant case, the judge of the trial court merely exercised his judicial discretion when he denied petitioner's motion to suspend the implementation of the warrant of arrest. Consequently, the CA was correct when it found no whimsicality or oppressiveness in the exercise of the trial judge's discretion in issuing the challenged orders. Neither does this Court find any applicability of the cases cited by the petitioner to the instant case. Petitioner has put emphasis on his argument that the suspension of the proceedings in court, including the suspension of the implementation of a warrant of arrest pending a resolution of an appeal by the Secretary of Justice, is in consonance with [34] [35] jurisprudence laid down by this Court in Marcelo v. Court of Appeals, Roberts, Jr. v. Court of Appeals, Ledesma v. Court of [36] [37] [38] Appeals, Dimatulac v. Villon, and Solar Team Entertainment, Inc. v. How. A close reading of the factual antecedents in Ledesma, Solar Team Entertainment, Inc., Dimatulac and Marceloclearly show that a common issue among them is whether the arraignment of an accused may be deferred pending resolution by the Secretary of Justice of a petition for review on the finding of probable cause, to which this Court ruled in the affirmative. Nowhere in the said decisions did it state that the implementation or enforcement of the warrant of arrest was also deferred or suspended, as herein [39] petitioner prays for. Thus, as ruled in Ledesma:

Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case. It was also decided in Solar Team Entertainment, Inc.
[40]

that:

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. The decision to suspend arraignment to await the resolution of an appeal with the Secretary of Justice is an exercise of such discretion. The ruling in Dimatulac,
[41]

as well, reads:

We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignmentof the Yabuts on the assailed information for homicide. Again, the State and the offended parties were deprived of due process.
[42]

And in Marcelo,

this Court enunciated that:

Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's 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 prosecutor's 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.

Finally, in Roberts, petitioner claimed that this Court, in the dispositive portion of its decision, clearly directed the deferment of the issuance of the warrant of arrest pending resolution of the petition for review by the Secretary of Justice when it ruled that, in the meantime, respondent Judge Asuncion was directed to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioner. According to petitioner, the said dispositive portion is borne out by the finding of this Court that: x x x [I]t was premature for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds: This case is already in this Court for trial. To follow whatever the opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The real and ultimate test of the independence and integrity of his court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on a basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Once a motion to dismiss or withdraw the information is filed the trial judge may [43] grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative.

However, the above observation of petitioner is inaccurate, if not erroneous. What this Court adjudged as premature in Roberts was the respondent judge's denial of the motions to suspend proceedings and to defer arraignment on the ground that the case was already in his court for trial and to follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of his court, which was still capable of administering justice. In dispelling the ground relied upon by the respondent judge, this Court ruled that the filing of a motion to dismiss or to withdraw the information, on the basis of a resolution of the petition for review reversing the finding of the investigating prosecutor, was the real and ultimate test of the independence and integrity of his court. Therefore, what was disapproved by this Court was not the denial per se of the motions, but the reasoning behind it. It was from that premise that this Court ordered in the dispositive portion of its decision to defer the issuance of the warrants of arrest. Of more importance still was the fact that, whereas the questioned motions in Roberts were for the suspension of proceedings and deferment of arraignment, the issue in the instant case is the suspension of the implementation of a warrant of arrest, which this Court did not rule upon in the former case.

WHEREFORE, the petition for review on certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction dated April 25, 2002 is DENIED -- the petition for review, for lack of merit; and the issuance of TRO and/or preliminary injunction, for being moot and academic. SO ORDERED.

APRIL JOY ASETRE, BENJIE EBCAS, GALINZCHEL GAMBOA, AND BUENAVENTURA GAMBOA, Petitioners,

G.R. No. 171536 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

JUNEL ASETRE, CHARITY DAINE ALAGBAN, COURT OF APPEALS (SPECIAL FORMER EIGHTEENTH DIVISION), Respondents.

Promulgated:

April 7, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.: [1] This petition for review on certiorari assails the Decision dated October 18, 2005 of the Court of Appeals in CA-G.R. SP No. [2] 78493. Said decision had reversed the Resolution dated December 17, 2002 of the Department of Justice (DOJ) which ordered the withdrawal of an information for parricide against petitioner April Joy Asetre and for murder against petitioners Benjie Ebcas, Galinzchel Gamboa and Buenaventura Gamboa. The facts, based on the findings of the Court of Appeals, are as follows: On December 27, 2000, Hanz Dietrich Asetre was found dead in his residence, which also housed his printing press business. He was 26 years old. Petitioner April Joy Gonzaga-Asetre, Hanzs wife, alleged that her husband committed suicide by hanging himself using bedcovers. She said Hanz was depressed, suicidal, a drug dependent, an alcoholic and violent even before they got married. She also claimed that when Hanz got high on drugs and alcohol, he would break things. When his mother contracted cancer, he became despondent, losing concentration in his work as well as lacking sleep at night. Then, after his mother died of cancer, he started writing letters expressing his desire to follow his mother. He also became depressed because they were left with huge debts and he had to assume payments. It was recommended that Hanz undergo rehabilitation in Cebu City, but he stayed there only for two [3] weeks. However, respondent Junel Asetre, Hanzs brother, claimed that the mark on Hanzs neck was not that of bedspreads but of a rope. He claimed that petitioner Buenaventura Gamboa knew who killed Hanz, but was reluctant to divulge it lest he be charged or harmed by Aprils father. On her part, respondent Charity Asetre-Alagban, Hanzs sister, claimed that Hanz confided to her a few days before his death that [4] April issued checks without his knowledge, and that Hanz died without reconciling his differences with April. [5] In a Resolution dated October 3, 2001, the Office of the City Prosecutor of Bacolod found proba ble cause against April, Hanzs first cousins Galinzchel and Buenaventura Gamboa, and printing press worker Benjie Ebcas. The investigating prosecutor held that from the evidence adduced by the parties, herein petitioners were physically and actively interacting with Hanz shortly before he was found dead. Moreover, from the actuations of petitioners and the events that took place, it can be gleaned that they connived in killing Hanz and later tried to cover up the crime. Further, the prosecutor rejected petitioners suicide theory because it is inconsistent with the medico-legal findings that while Hanz might have wanted to end his life, the circumstances of his death proved he could not have done it himself. The prosecutor explained that the possibility of murder is not negated even if Hanz sustained no wounds or injuries, since he had been drinking shortly before his death which could have rendered him too drunk to be aware that [6] he was being strangled. Thus, the prosecutor recommended that murder charges under Article 248 of the Revised Penal Code be [7] filed against Ebcas and the Gamboas and a parricide charge under Article 246 of the Revised Penal Code be filed against April. The [8] cases were filed with the Regional Trial Court (RTC) of Negros Occidental, Branch 50. Subsequently, on November 26, 2001, the four accused asked the DOJ for a review of the prosecutors findings. In a Resolution dated December 17, 2002, DOJ Acting Secretary Ma. Merceditas N. Gutierrez absolved petitioners and reversed the investigating prosecutors resolution, not because she believed the suicide theory of the petitioners, but rather because s he did not find sufficient evidence to sustain the theory of the prosecution of conspiracy to commit murder. Secretary Gutierrez

explained that while there is overwhelming proof that Hanz might not have committed suicide, there is no direct or circumstantial evidence that could link petitioners as the authors of the crime. She reasoned in this wise: (1) the prosecution failed to establish petitioners motive to kill Hanz; (2) the alleged quarrel incident of the spouses was not substantiated; (3) Aprils actuat ions during the incident should not be taken against her as there is no standard human behavioral response when one is confronted with a strange or frightful experience; (4) even her actuations after the incident, like burning the bed sheets and alleged suicide letters of Hanz, and her opposition to the exhumation/autopsy of Hanzs body because they could only traumatize her and her children, could not cast doubt on Aprils innocent intentions. An ordinary person like her could believe that the police investigation done a t the time of the incident and the initial post-mortem examination on Hanzs body were more than enough to conclude and close the investigation; (5) even the apparent inconsistent testimonies of the other petitioners on their participation during the incident could not be taken against them because witnesses to a stirring incident could see differently some details thereof due in large part to excitement and confusion that such an incident usually brings. Accordingly, Secretary Gutierrez directed the prosecutor to withdraw the information against petitioners in Criminal Case No. 0123021. The dispositive portion of the ruling reads: WHEREFORE, premises considered, the assailed resolution is REVERSED. The City Prosecutor of Bacolod City is hereby directed to withdraw the information filed against April Joy Asetre, Benjie Ebcas, Galinzchel Gamboa and Buenaventura Gamboa for murder in Criminal Case No. 01-23021 and to report the action taken therein within five (5) days from receipt hereof. [9] SO ORDERED. Pursuant to the ruling, the prosecutor filed a Motion to Withdraw Information in Criminal Case No. 01-23021, which was granted by [10] the RTC on January 21, 2003. The trial court also recalled the warrant of arrest issued against the accused, and later denied [11] private respondents motion for reconsideration in an Order dated February 27, 2003. [12] On June 16, 2003, the DOJ denied the Asetre siblings motion for reconsideration of the Secretarys Order dated December 17, 2002. Thereafter, respondent Asetres filed a petition for certiorari and mandamus before the Court of Appeals, arguing that the DOJ Secretary acted with grave abuse of discretion in issuing the December 17, 2002 Resolution despite the circumstantial evidence against petitioners. In its Decision dated October 18, 2005, the appellate court found that the DOJ Secretary committed grave abuse of discretion amounting to lack or excess of jurisdiction in reversing the investigating prosecutors finding of probable cause. According to the Court of Appeals, the congruence of facts and circumstances of the case strongly shows a reasonable ground of suspicion that crimes of murder and parricide had been committed by the petitioners. It agreed with the investigating prosecutor that the physical evidence at hand negates the suicide theory of petitioners. It further held that the medical findings of the three medical doctors that it was improbable for Hanz to have committed suicidewere credible, impartial and unbiased. It added that when an information has already been filed in court, the latter acquires jurisdiction over the case until its termination, and any relief desired by any party should be addressed to the trial court. The dispositive portion of the Court of Appeals decision reads: WHEREFORE, premises considered, the petition for certiorari and mandamus is granted. Accordingly, the Resolutions dated December 17, 2002 and June 16, 2003 of the Secretary/Acting Secretary of Justice of the Department of Justice, in Criminal Case No. 01-23021, are hereby REVERSED and SET ASIDE. No pronouncement as to costs. [13] SO ORDERED. [14] On February 13, 2006, the Court of Appeals denied the petitioners motion for reconsideration. Hence, the instant petition before us. Petitioners raise the following issues:

I. WHETHER THE PURPORTED OPINIONS OF DR. SAMSON GONZAGA, DR. LUIS GAMBOA, AND DR. NICASIO BOTIN, THAT HANZ ASETRE DID NOT COMMIT SUICIDE HAVE SUFFICIENT WEIGHT, AS COMPARED TO THE DIRECT TESTIMONIES OF THE PETITIONERS, THEIR WITNESSES, AND THE CIRCUMSTANTIAL EVIDENCE SHOWING THAT INDEED HANZ ASETRE COMMITTED SUICIDE. II. WHETHER THE CONCLUSION OF THE RESPONDENT COURT OF APPEALS, THAT THERE IS PROBABLE CAUSE TO CHARGE PETITIONERS FOR PARRICIDE IS SUPPORTED BY SUFFICIENT EVIDENCE, AND IN ACCORD WITH JURISPRUDENCE AND LAW. III. WHETHER THE [CONCLUSION] OF THE RESPONDENT COURT THAT THE SECRETARY OF JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION AND HAS EXCEEDED HIS JURISDICTION IS CORRECT AND IN ACCORDANCE WITH LAW AND PROCEDURE. IV. WHETHER THE PETITION FOR CERTIORARI FILED BY PRIVATE RESPONDENTS BEFORE THE RESPONDENT COURT, SHOULD HAVE BEEN DISMISSED CONSIDERING THAT THE REGIONAL TRIAL COURT BR. 50, WAS NOT IMPLEADED AND THE INFORMATION WAS ALREADY ORDERED WITHDRAWN, AND SUCH FACT WAS NOT REVEALED BY THE PRIVATE RESPONDENTS IN THEIR PETITION FOR CERTIORARI [15] BEFORE THE COURT OF APPEALS EVEN IN THEIR DISCLAIMER OF FORUM SHOPPING. Briefly stated, the main issue presented for our resolution is whether the Court of Appeals erred in reversing the ruling of the DOJ Secretary and in finding probable cause to indict petitioners for murder and parricide.

In their brief and memorandum, petitioners insist that the Court of Appeals should not have relied on the opinion of the three medical doctors, who executed affidavits stating that it was improbable that Hanz killed himself, because they are not forensic [17] experts. Petitioners also argue that there are forensic yardsticks in this case consistent with suicide: total absence of stains, injuries, defense wounds on the bodies of Hanz and petitioners; a chair in the premises where Hanz committed suicide; no sign of strugg le in Hanzs body; Hanz attempted suicide twice sometime in the middle of 2000; Hanz wrote letters indicative of his frustrations in life; the material used in hanging was accessible to Hanz; he had a history of reverses in life like drug addiction, losing his mother and financial problems; he was hooked on drugs and he had an unpredictable personality. They also criticize the appellate court for its failure to specifically point out a portion in the Resolution of the DOJ Secretary that showed that she acted with grave abuse of discretion. They insist that the Secretary of Justices reversal of the investigating [18] prosecutors resolution was within her authority as the head of the DOJ. They stress that mere abuse of discretion is not [19] sufficient to justify the issuance of a writ of certiorari as the abuse of discretion must be grave, patent, arbitrary and despotic. They further aver that after the DOJ Secretary reversed her subordinate prosecutor, the motion to withdraw information filed by the prosecutor was granted by the RTC on January 21, 2003, and private respondents motion for reconsideration was denied on February 27, 2003. This means that the DOJ Secretarys ruling was not attended with grave abuse of discretion. Petitioners argue that private respondents failure to question the aforementioned orders shoul d have been fatal to their petition before the appellate court, and private respondents are guilty of forum-shopping for not informing the Court of Appeals that the RTC had [20] already issued an order granting the withdrawal of the information. [21] In their Memorandum, private respondents argue that the petition, filed under Rule 45 of the Rules of Court, should be limited to questions of law but petitioners raised pure questions of fact. They argue that the evidentiary weight of the opinion of expert witnesses, the weighing of facts to determine probable cause, and the determination of whether there is sufficient evidence to [22] support the same are all factual questions. They enumerated circumstantial evidence which warrant the finding of probable cause against the petitioners, to wit: (a) the victim died at around 2:00 p.m. on December 27, 2000; (b) the victim was brought to the hospital dead; (c) respondent Junel Asetre was not informed of the victims death and became aware of it through a friend; (d) at the hospital, April already hired a counse l; (e) Hanz was hurriedly buried on December 29, 2000 even before an autopsy could be conducted and despite the prior request of private respondents for an autopsy; (f) the following day, December 30, 2000, April, despite the request of a police investigator to keep the bedspreads allegedly used by the victim in hanging himself, burned them; (g) she also burned the alleged suicide note of the victim; (h) April objected to the suggestion of private respondents to have the body exhumed to determine the cause of death, and even threatened them with trouble; (i) April and her counsel objected to the authority granted by the city prosecutor to exhume the body and conduct an autopsy; (j) when private respondents filed a petition in court for the exhumation of the body, April objected; (k) when the petition was granted, April filed a multi-million damage suit before the RTC against private respondents and the NBI agents who conducted the examination, although the case against the NBI agents was later withdrawn by April; (l) April also filed a criminal case, which was later dismissed, against private respondents and the NBI agents before the city prosecutors office for exhuming the victim to determine the cause of death; (m) she also filed another case, which was also dismissed, against the NBI agents before the Office of the Ombudsman; (n) petitioners went into hiding after the information was filed; (o) the first to arrive at the crime scene were the policemen of Bago City where Aprils father was vice mayor at the time of the incident, and not the policemen of Bacolod City; (p) the suicide theory was debunked by the NBI medico-legal officer, the investigating prosecutor and the acting Secretary of Justice as it was contrary to physical evidence; (q) all the petitioners were present at the scene shortly before, [23] during, and after the victim died and they were the last persons seen with the victim. After serious consideration of the circumstances in this case, we are agreed that the petition is impressed with merit. A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to direct and control criminal actions. He is, however, subject to the control of the Secretary of Justice. Thus, Section 4, Rule 112 of the Revised Rules of Criminal Procedure provides: SEC. 4. Resolution of Investigating Prosecutor and its Review. xxxx If upon petition by a proper party under such Rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. The Secretary of Justice, upon petition by a proper party, can reverse his subordinates (provin cial or city prosecutors and their [24] assistants) resolutions finding probable cause against suspects of crimes. The full discretionary authority to determine probable cause in a preliminary investigation to ascertain sufficient ground for the filing of information rests with the executive branch. Hence, judicial review of the resolution of the Secretary of Justice is limited to a determination whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts cannot [25] substitute the executive branchs judgment.

[16]

Grave abuse of discretion is defined as such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to [26] perform the duty enjoined by or to act at all in contemplation of law. The determination of probable cause to warrant the prosecution in court should be consigned and entrusted to the DOJ, as reviewer [27] of the findings of the public prosecutors; to do otherwise is to usurp a duty that exclusively pertains to an executive official. As department head, the Secretary of Justice has the power to alter, modify, 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. While it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Secretary of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecutions. He would be committing a serious dereliction of duty if he orders or sanctions the filing of charge sheets based on complaints where he is not convinced that the evidence would warrant the filing of an action in court. He has the ultimate power to decide which as between [28] the conflicting theories of the parties should be believed. The Secretary is empowered to order or perform the very acts [29] questioned in this case. [30] In Joaquin, Jr. v. Drilon, this Court affirmed the DOJ Secretarys power of control over the authority of a state prosecutor to conduct preliminary investigations on criminal actions. Thus, we held: In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. He must make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary investigation. Moreover, his findings are not subject [31] to review unless shown to have been made with grave abuse. It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules [32] of Civil Procedure. The Court of Appeals decision may then be appealed to this Court by way of a petition for review on certiorari. In this case, however, the Secretary of Justice committed no grave abuse of discretion. Based on the totality of the evidence presented by both parties, it is clear that there is a dearth of proof to hold petitioners for trial. The disquisition of the Secretary of Justice deserves more credence than that of the Court of Appeals, because of the following reasons: First, Dr. Samson Gonzaga, the private physician who signed the death certificate, and Dr. Luis Gamboa, the medico-legal officer of Bacolod City who conducted the post-mortem autopsy on Hanzs body, are not expert witnesses, nor were they offered to testify as medico-legal experts. Dr. Nicasio Botin, medico-legal officer, NBI-IloiloCity, who prepared the exhumation report is also not a forensic expert. They never opined that it was improbable for the deceased to have committed suicide. The death certificate signed by Dr. Gonzaga indicated asphyxia secondary to strangulation as the cause of death, without explaining whether it was suicide or not. It pointed to depression as the antecedent cause, implying that Hanz committed suicide. Thus, the appellate court lacks sufficient basis to conclude that it was improbable for Hanz to commit suicide based on the opinions of the three doctors. Dr. Gamboas post-mortem findings, we note, also did not categorically state foul play as the cause of death: xxxx 9. Q: Was the death of HANZ DIETRICH ASETRE, based on your findings, suicidal or there was (sic) foul play? [33] A: I cannot determine that but based on my findings the cause of death was strangulation. xxxx Second, we note also that while there is physical evidence to buttress private respondents assertion that there was foul play, that evidence is inconclusive. The ligature that was seen on December 27 or 28, 2000 was no longer the same ligature seen on March 1, 2001. Since Hanz was obese, the entire ligature will not be very conspicuous. Further, the absence of an upward direction ligature did not necessarily mean that Hanz was strangled. If the bedsheet was tightly wound around Hanzs neck, it is possible that t here will be no room for the bedsheet to form an upward direction ligature because of the fatty folds in the skin of Hanz at his neck. Third, the finding that there was conspiracy to kill Hanz is not supported by any evidence on record and hence must be discarded. [34] Under Article 8 of the Revised Penal Code, there is conspiracy if two or more persons agree to commit a felony and decide to commit it. Conspiracy must be proven during trial with the same quantum of evidence as the felony subject of the agreement of the parties. Conspiracy may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged [35] conspirators before, during and after the commission of the felony to achieve a common design or purpose. The Bacolod City Prosecutors Office, in this case, ruled that conspiracy can be deduced from petitioners actuations before, during and after the incident, pointing to a joint purpose of killing Hanz: they were physically and actively interacting with Hanz shortly before he was found dead; they tried to cover up the crime by n arrating stories which border on the impossible to the bizarre; nowhere in their counter-affidavits is it stated that Hanz had gone wild when drinking Tanduay that day; Hanz was very quiet at the childrens room and even partook lunch with his cousins; it was unusual for April to call a specific person to pacify Hanz who had allegedly gone wild earlier on the day he died, and unusual for her not to shout for help when she saw Hanz hanging; if she was shocked, her voice could have impelled other people to immediately come upstairs and respond; but it was only Ebcas who came up; Buenaventura Gamboa came up later only when told to call for a taxi; the other employees just continued with their work as if nothing unusual was happening. The Bacolod City Prosecutors Office further ruled that April, as the widow, should have demanded

full and exhaustive investigation surrounding Hanzs death to put an end to the questions and speculations on the real cause of death. Also, according to said office, her reason in opposing the exhumation, e.g., that her prior consent was not secured, is flimsy. All circumstances considered, we find that the DOJ Secretary correctly held that the circumstantial evidence presented by private respondents to prove probable cause against petitioners, does not support the theory of conspiracy to commit murder. Such circumstantial evidence in our view, would not sufficiently warrant a conclusion that private respondents are responsible for the death of Hanz. Petitioners mere presence at the death scene, without more, does not suffice to establish probable cause against them. It is noteworthy that complainants failed to establish conclusively that April, Hanzs cousins, and his workers had an ax to grind against Hanz. The alleged quarrel of the couple the night before the incident is hearsay and could not establish enough credible motive on the part of April, contrary to the opinion of the investigating prosecutor, because the same witness who testified about the alleged fight also stated that the couple had a good relationship and that it was not unusual for the couple to have verbal altercations occasionally. Equally worth stressing is the positive proof that the accused were not the only persons present inside the couples house; and that the door of the gate of the house, including the door of the room where the victim was found hanging, were not so well secured as to exclude the possibility that the act was committed by other persons who were also then present in the house, or even by intruders. April was not attempting to reduce the number of possible witnesses as stated by the investigating prosecutor when she sent her children to Iloilo as it was the victims decision to send their children to Iloilo upon his cousins invitation. Likewise, concerning the act of burning the bedsheets, we find no grave abuse of discretion in the ruling of the DOJ that an ordinary person like April could have believed that the police investigation made at the death scene and the post-mortem examination conducted on the body of the victim were already more than enough to conclude and close the investigation. Thus, we find no grave abuse of discretion on the part of the Secretary of Justice. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated October 18, 2005 in CA-G.R. SP No. 78493 is REVERSED and the Resolution dated December 17, 2002 of the Department of Justice isAFFIRMED. SO ORDERED.

G.R. No. 177727 January 19, 2010 HAROLD V. TAMARGO, Petitioner, vs. ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents. DECISION CORONA, J.: 1 2 3 This is a petition for review on certiorari of the November 10, 2006 decision and May 18, 2007 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely 4 resembled Columna. After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor issued a 6 resolution dated December 5, 2003 finding probable cause against Columna and three John Does. On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 7 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle. Columna was 8 arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial. On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He 9 also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda. The former was the exmayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by 10 Columna in the Office of the City Prosecutor of Manila. On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor who subjected him to clarificatory 12 questions.
11 5

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the 13 elections and Licerio was acquitted by the Sandiganbayan. During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had 14 no participation in the killings. Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any 15 violence had been employed to obtain or extract the affidavit from him. 1avvphi1 Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the 16 threats to his life inside the jail. He requested that he be transferred to another detention center. 17 Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ). On May 30, 2005, the DOJ, 18 through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder. He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was 19 enough evidence to prove the probable guilt of respondents. Accordingly, the Informations were filed and the cases were 20 consolidated and assigned to the RTC of Manila, Branch 29. However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the 21 withdrawal of the Informations. This time, he declared that the extrajudicial confession of Columna was inadmissible against 22 respondents and that, even if it was admissible, it was not corroborated by other evidence. As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied pet itioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 23 2005. Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006. Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for 24 certiorari of respondents Antiporda. Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition.

The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation. Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta. We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the 25 merits of the motion. It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution 26 of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case. The court must 27 itself be convinced that there is indeed no sufficient evidence against the accused. We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 whe rein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file t he 28 murder charges. She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. 29 We declared in Jimenez v. Jimenez that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to 30 uphold. (Emphasis supplied) Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informationseffectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the 31 public prosecutor. Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavi t was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by 32 an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not 33 34 admissible against his or her co-accused and is considered as hearsay against them. The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their 35 acts or conduct be used as evidence against him. An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. 1avvphi1 This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial 36 confession. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary

that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object 37 and (c) it has been made while the declarant was engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross38 examine them. Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be 39 relieved from the pain of going through a full blown court case. When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint 40 should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation. The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the 41 warrant of arrest issued by Judge Daguna. Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. No pronouncement as to costs. SO ORDERED.

G.R. No. 145176 March 30, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y GRANADOS (at large), ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI, accused, ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI, appellants. DECISION PANGANIBAN, J.: The right of the accused to counsel demands effective, vigilant and independent representation. The lawyers role cannot be reduced to being that of a mere witness to the signing of an extra-judicial confession. The Case 1 Before the Court is an appeal from the August 21, 2000 Decision of the Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused -- Santiago Peralta y Polidario and Armando Datuin Jr. y Granados -- were convicted therein of qualified theft. The dispositive portion of the Decision reads: "WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, are hereby convicted of the crime of qualified theft of P194,190.00 and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law, and to pay the costs. Moreover, all the accused are ordered to pay the Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, actual damages in the sum of P194,190.00 with interest thereon at the legal rate from the date of the filing of this action, November 9, 1992, until fully 2 paid." In an Information dated November 9, 1992, appellants and their co-accused were charged as follows: "That sometime in the year 1990 and including November 4, 1992, in the City of Manila, Philippines, the said accused, conspiring and confederating with others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to gain and without the knowledge and consent of the owner thereof, take, steal and carry away punctured currency notes due for shredding in the total amount of P194,190.00, belonging to the Central
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Bank of the Philippines as represented by Pedro Labita y Cabriga, to the damage and prejudice of the latter in the aforesaid sum of P194,190.00 Philippine currency; "That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and Antonio Loyola y Salisi committed said offense with grave abuse of confidence they being at the time employed as Currency Reviewers, Driver, Currency Assistant I and Money Counter of the offended party and as such they had free access to the property 4 stolen." Garcia was arrested on November 4, 1992; and his co-accused, on November 9, 1992. Appellants, however, obtained two Release Orders from RTC Vice Executive Judge Corona Ibay-Somera on November 9 and 10, 1992, upon their filing of a cash bond to secure 5 their appearance whenever required by the trial court. 6 During their arraignment on May 4, 1993, appellants, assisted by their respective counsels, pleaded not guilty. On September 30, 7 1998, the trial court declared that Datuin Jr. and Peralta were at large, because they had failed to appear in court despite notice. After trial in due course, they were all found guilty and convicted of qualified theft in the appealed Decision. The Facts Version of the Prosecution The Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows: "About 10:00 oclock in the morning of November 4, 1992, Pedro Labita of Central Bank of the Philippines (CBP) *now Bangko Se ntral ng Pilipinas (BSP)] went to the Theft and Robbery Section of Western Police District Command (WPDC), and filed a complaint for Qualified Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia, Miguelito de Leon, Librando Flores and Antonio S. Loyola. "Pedro Labita submitted to SPO4 Cielito Coronel, the investigating officer at WPDC, punctured currency notes in P100.00 and P500.00 bills with a face value of Php194,190.00. Said notes were allegedly recovered by the BSP Cash Department during its cash counting of punctured currency bills submitted by different banks to the latter. The punctured bills were rejected by the BSP money counter machine and were later submitted to the investigation staff of the BSP Cash Department. As a result of the investigation, it was determined that said rejected currency bills were actually punctured notes already due for shredding. These currency bills were punctured because they were no longer intended for circulation. Before these notes could be shredded, they were stolen from the BSP by the above-named accused. "On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was apprehended in front of Golden Gate Subdivision, Las Pias City, while he was waiting for a passenger bus on his way to the BSP. Garcia was brought to the police station for investigation. "On November 4, 5 and 6, 1992, while in the custody of the police officers, Garcia gave three separate statements admitting his guilt and participation in the crime charged. He also identified the other named accused as his cohorts and accomplices and narrated the participation of each and everyone of them. "On the basis of Garcias sworn statements, the other named accused were invited for questioning at the police station and we re 8 subsequently charged with qualified theft together with Garcia." (Citations omitted) Version of the Defense The defense states its version of the facts in the following manner: "Accused-appellant Garcia served as a driver of the armored car of the Central Bank from 1978 to 1994. "On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who had identified himself as a police officer arrested accusedappellant Garcia while waiting for a passenger bus in front of the Golden Gate Subdivision, Las Pias City. He was arrested without any warrant for his arrest. The police officer who had arrested accused-appellant Garcia dragged the latter across the street and forced him to ride x x x a car. "While inside the car, he was blindfolded, his hands were handcuffed behind his back, and he was made to bend with his chest touching his knees. Somebody from behind hit him and he heard some of the occupants of the car say that he would be salvaged if he would not tell the truth. When the occupants of the car mentioned perforated notes, he told them that he does not know anything about those notes. "After the car had stopped, he was dragged out of the car and x x x up and down x x x the stairs. While being dragged out of the car, he felt somebody frisk his pocket. "At a safe house, somebody mentioned to him the names of his co-accused and he told them that he does not know his co-accused x x x. Whenever he would deny knowing his co-accused, somebody would box him on his chest. Somebody poured water on accusedappellant Garcias nose while lying on the bench. He was able to spit out the water that had been poured on his nose [at first], but somebody covered his mouth. As a result, he could not breath[e].

"When accused-appellant Garcia realized that he could not bear the torture anymore, he decided to cooperate with the police, and they stopped the water pouring and allowed him to sit down. "Accused-appellant Garcia heard people talking and he heard somebody utter, may nakikinig. Suddenly his two ears were hit with open palm[s] x x x. As he was being brought down, he felt somebody return his personal belongings to his pocket. Accused-appellant Garcias personal belongings consisted of *his+ drivers license, important papers and coin purse. "He was forced to ride x x x the car still with blindfold. His blindfold and handcuffs were removed when he was at the office of police officer Dante Dimagmaliw at the Western Police District, U.N. Avenue, Manila. "SPO4 Cielito Coronel asked accused-appellant Garcia about the latters name, age and address. The arrival of Mr. Pedro Labita of the Cash Department, Central Bank of the Philippines, interrupted the interview, and Mr. Labita instructed SPO4 Coronel to get accused-appellant Garcias wallet and examine the contents thereof. SPO4 Coronel supposed ly found three pieces of P100 perforated bill in accused-appellant Garcias wallet and the former insisted that they recovered the said perforated notes from accused-appellants wallet. SPO4 Coronel took down the statement of Mr. Labita. "It was actually Mr. Labita, and not accused-appellant Garcia, who gave the answers appearing in accused-appellant Garcias alleged three sworn statements dated November 4, 1992, November 5, 1992 and x x x November 6, 1992. "At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia was brought to the cell of the Theft and Robbery Section of the WPD. At or about 8:00 p.m., he was brought to the office of Col. Alladin Dimagmaliw where his co-accused were also inside. He did not identify his co-accused, but he merely placed his hands on the shoulders of each of his co-accused, upon being requested, and Mr. Labita took x x x pictures while he was doing the said act. "Accused-appellant Garcia came to know Atty. Francisco Sanchez of the Public Attorneys Office on Novem ber 4, 1992, at the office of police officer Dante Dimagmaliw, when SPO4 Coronel introduced Atty. Sanchez to accused-appellant Garcia and told him that Atty. Sanchez would be his lawyer. However, accused-appellant Garcia did not agree to have Atty. Sanchez to be his lawyer. Atty. Sanchez left after talking to SPO4 Coronel, and accused-appellant Garcia had not met Atty. Sanchez anymore since then. He was not present when Atty. Sanchez allegedly signed x x x the alleged three (3) sworn statements. "During the hearing of the case on April 6, 2000, Atty. Sanchez manifested in open court that he did not assist accused-appellant Garcia when the police investigated accused-appellant Garcia, and that he signed x x x the three (3) sworn statements only as a witness thereto. "Accused-appellant Garcia signed the alleged three sworn statements due to SPO4 Coronels warning that if he would not do so, he would again be tortured by water cure. "SPO[4] Coronel caused the arrest without any warrant of accused appellants De Leon, Loyola, [Flores] on the basis of the complaint of Mr. Pedro Labita, and which arrest was effected on November 5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico. "SPO4 Coronel, in his letter dated November 6, 1992, forwarded the case to the Duty Inquest Prosecutor assigned at the WPDC 9 Headquarters." (Citations omitted) Ruling of the Trial Court The trial court found that all the accused used to work for the BSP. Garcia was a driver assigned to the Security and Transport Department; while Peralta, Datuin Jr., De Leon, Flores and Loyola were laborers assigned to the Currency Retirement Division. Their main task was to haul perforated currency notes from the currency retirement vault to the basement of the BSP building for shredding. On several occasions, during the period 1990-1992, they handed to Garcia perforated currency notes placed in a coin sack that he, in turn, loaded in an armored escort van and delivered to someone waiting outside the premises of the building. The trial court held that the coordinated acts of all the accused unerringly led to the conclusion that they had conspired to pilfer the perforated currency notes belonging to the BSP. The RTC rejected the disclaimer by Garcia of his own confessions, as such disclaimer was "an eleventh hour concoction to exculpate himself and his co-accused." The trial court found his allegations of torture and coerced confessions unsupported by evidence. Moreover, it held that the recovery of three pieces of perforated P100 bills from Garcias wallet and t he flight of Peralta and Datuin Jr. were indicative of the guilt of the accused. 10 Hence, this appeal. Issues In his Brief, Garcia raises the following issues:

"1 The trial court erred in admitting in evidence the alleged three Sworn Statements of Accused-appellant Garcia and the alleged three pieces of P100 perforated notes 11 "2 The trial court erred in finding the accused-appellant guilty of qualified theft." In their joint Brief, De Leon, Loyola and Flores interpose this additional assignment of errors: "1 The trial court erred in admitting in evidence the alleged three sworn statements of Accused Ulysses Garcia (Exhibits I, J and K) and the alleged three pieces of P100 perforated notes (Exhibits N to N -2) over the objections of the accused-appellants. "2 The trial court erred in denying the demurrer to evidence of Accused-appellants De Leon, Loyola and Flores; "3 The trial court erred in denying the Motion for Reconsideration of the Order denying the demurrer to evidence; "4 The trial court erred when it failed to consider the evidence adduced by the accused-appellants, consisting of exhibits 1, 2 to 2B, 3 and 4 and the testimony of their witness, State Auditor Esmeralda Elli; 12 "5 The trial court erred in finding the accused-appellants guilty of qualified theft." Simplified, the issues are as follows: (1) the sufficiency of the evidence against appellants, including the admissibility of Garcias confessions and of the three perforated P100 currency notes; and (2) the propriety of the denial of their demurrer to evidence. The Courts Ruling The appeal has merit. First Issue: Sufficiency of Evidence The trial court convicted appellants mainly on the strength of the three confessions given by Garcia and the three perforated P100 currency notes confiscated from him upon his arrest. Appellants, however, contend that these pieces of evidence are inadmissible. Extrajudicial Confessions Appellants aver that the alleged three Sworn Statements of Garcia were obtained without the assistance of counsel in violation of his rights under Article III, Section 12 (1) and (2) of the 1987 Constitution, which provides thus: "Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. "(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incomunicado, or other similar forms of detention are prohibited." On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III of the Public Attorneys Office, duly assisted Garcia during the custodial investigation. It is clear from a plain reading of the three extrajudicial confessions that Garcia was not assisted by Atty. Sanchez. The signature of the latter on those documents was affixed after the word "SAKSI." Moreover, he appeared in court and categorically testified that he had not assisted Garcia when the latter was investigated by the police, and that the former had signed the Sworn Statement only as 14 a witness. The written confessions, however, were still admitted in evidence by the RTC on the ground that Garcia had expressed in writing his willingness and readiness to give the Sworn Statements without the assistance o f counsel. The lower courts action is manifest error. The right to counsel has been written into our Constitution in order to prevent the use of duress and other undue influence in extracting confessions from a suspect in a crime. The basic law specifically requires that any waiver of this right must be made in writing and executed in the presence of a counsel. In such case, counsel must not only ascertain that the confession is voluntarily made and that the accused understands its nature and consequences, but also advise and assist the accused continuously from the time the first question is asked by the investigating officer until the signing of the confession. Hence, the lawyers role cannot be reduced to being that of a mere witness to the signing of a pre-prepared confession, even if it 15 indicated compliance with the constitutional rights of the accused. The accused is entitled to effective, vigilant and independent 16 counsel. A waiver in writing, like that which the trial court relied upon in the present case, is not enough. Without the assistance of a counsel, 17 the waiver has no evidentiary relevance. The Constitution states that "[a]ny confession or admission obtained in violation of [the aforecited Section 12] shall be inadmissible in evidence x x x." Hence, the trial court was in error when it admitted in evidence the uncounseled confessions of Garcia and convicted appellants on the basis thereof. The question of whether he was tortured becomes moot. Perforated Currency Notes Appellants contend that the three P100 perforated currency notes (Exhibits "N" to "N-2") allegedly confiscated from Garcia after his arrest were "fruits of the poisonous tree" and, hence, inadmissible in evidence.
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The solicitor general evades the issue and argues, instead, that appellants waived the illegality of their arrest when they entered a plea. He further contends that the exclusion from the evidence of the three punctured currency bills would not alter the findings of the trial court. The police arrested Garcia without a warrant, while he had merely been waiting for a passenger bus after being pointed out by the Cash Department personnel of the BSP. At the time of his arrest, he had not committed, was not committing, and was not about to commit any crime. Neither was he acting in a manner that would engender a reasonable ground to suspect that he was committing a crime. None of the circumstances justifying an arrest without a warrant under Section 5 of Rule 113 of the Rules of Court was present. Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the matter before entering his plea, he is deemed to have waived the illegality of his arrest. Note, however, that this waiver is limited to the arrest. It does not extend to the search made as an incident thereto or to the subsequent seizure of evidence allegedly found during the search. The Constitution proscribes unreasonable searches and seizures of whatever nature. Without a judicial warrant, these are allowed only under the following exceptional circumstances: (1) a search incident to a lawful arrest, (2) seizure of evidence in plain view, (3) 19 search of a moving motor vehicle, (4) customs search, (5) stop and frisk situations, and (6) consented search. 20 Where the arrest was incipiently illegal, it follows that the subsequent search was similarly illegal. Any evidence obtained in 21 violation of the constitutional provision is legally inadmissible in evidence under the exclusionary rule. In the present case, the perforated P100 currency notes were obtained as a result of a search made without a warrant subsequent to an unlawful arrest; hence, they are inadmissible in evidence. Moreover, untenable is the solicitor generals argument that Appellants De Leon, Flores and Loyola waived the illegality of t he arrest and seizure when, without raising objections thereto, they entered a plea of guilty. It was Garcia who was unlawfully arrested and searched, not the aforementioned three appellants. The legality of an arrest can be contested only by the party whose rights have been impaired thereby. Objection to an unlawful search and seizure is purely personal, and third parties cannot avail themselves of 22 it. Indeed, the prosecution sufficiently proved the theft of the perforated currency notes for retirement. It failed, however, to present sufficient admissible evidence pointing to appellants as the authors of the crime. The evidence presented by the prosecution shows that there were other people who had similar access to the shredding machine 23 area and the currency retirement vault. Appellants were pinpointed by Labita because of an anonymous phone call informing his superior of the people allegedly behind the theft; and of the unexplained increase in their spending, which was incompatible with their income. Labita, however, did not submit sufficient evidence to support his allegation. Without the extrajudicial confession and the perforated currency notes, the remaining evidence would be utterly inadequate to overturn the constitutional presumption of innocence. Second Issue: Demurrer to Evidence Appellants contend that the trial court seriously erred when it denied the demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one of the documents offered by the prosecution and admitted in evidence by the RTC established the alleged qualified theft of perforated notes, and not one of the pieces of evidence showed appellants participation in the commission of the crime. On the exercise of sound judicial discretion rests the trial judges determi nation of the sufficiency or the insufficiency of the evidence presented by the prosecution to establish a prima facie case against the accused. Unless there is a grave abuse of discretion 24 amounting to lack of jurisdiction, the trial courts denial of a mo tion to dismiss may not be disturbed. As discussed earlier, the inadmissibility of the confessions of Garcia did not become apparent until after Atty. Francisco had testified in court. Even if the confiscated perforated notes from the person of the former were held to be inadmissible, the confessions would still have constituted prima facie evidence of the guilt of appellants. On that basis, the trial court did not abuse its discretion in denying their demurrer to evidence. WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants are hereby ACQUITTED and ordered immediately RELEASED, unless they are being detained for any other lawful cause. The director of the Bureau of Corrections is hereby directed to submit his report on the release of the appellant or the reason for his continued detention within five (5) days from notice of this Decision. No costs. SO ORDERED.
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G.R. No. 132042 February 19, 2003 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNOLD BACLA-AN LAPITAJE, MARIO REYES, WENDEL ARELLANO y TANIO and ROMY BALUYOS y Pingki-an, accused-appellants. DECISION AUSTRIA-MARTINEZ, J.: Before us for automatic review is a decision dated September 22, 1997, rendered by the Regional Trial Court of Danao City (Branch 25), the dispositive portion of which reads as follows: "WHEREFORE, the court finds accused Arnold B. Lapitaje, Mario Reyes, Wendel Arellano, and Romy Baluyos GUILTY beyond reasonable doubt of the special complex crime of Robbery with Homicide as charged and defined by the Revised Penal Code, and hereby sentences each to suffer the penalty of reclusion perpetua to death. "Accused are hereby ordered to pay jointly and severally the sum of P1,210.00, the remaining unrecovered stolen money, unto private complainant Domingo Colonia. "No other damages are proved in court. 1 "SO ORDERED." (Emphasis supplied) On January 13, 1994, an Information was filed before the trial court against Arnold Bacla-an Lapitaje, Mario Reyes, Wendell Arellano 2 y Tanio and Romy Baluyos y Pingki-an for Robbery with Frustrated Homicide to which they all pleaded not guilty. Despite timely medical attention, victim Nelson Saavedra died by reason of which the Information was amended to Robbery with Homicide. The Amended Information reads as follows: "That on or about October 31, 1993 at around 7:30 oclock in the evening, at Barangay Catmondaan, Municipality of Catmon, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together with others whose real names and present whereabouts are still unknown and helping one another did then and there willfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to wit: by entering the store of Domingo Colonia, and once inside held up the owner at gun point and thereafter take, steal and carry away cash money worth P2,000.00 belonging to the said Domingo Colonia against his will, to the damage and prejudice of said owner in the sum of P1,210.00 (as the amount of P790.00 was recovered) and shot one NELSON SAAVEDRA in their escape, thereby inflicting wounds and despite timely medical intervention the said wounds caused his death at the Chong Hua Hospital in Cebu City on February 8, 1994 where he was medically treated for several months. 3 "Contrary to law." All accused pleaded not guilty to the Amended Information. Trial ensued. The prosecution presented oral, documentary and real evidence. Offended party Domingo Colonia testified as follows: On October 31, 1993, at about 7:30 oclock in the evening, three unmaske d armed men barged inside his store. Two of the men pointed firearms at him, one at his forehead, the other at his nape. They introduced themselves as members of the New Peoples Army (NPA) asking for aid. He recognized accused Arnold Bacla -an Lapitaje who used to deliver edible oil to his store and was a customer in his tailoring shop. He saw Arnold go to the kitchen and point a firearm at his wife. The man who pointed a firearm at his nape opened the drawer of the table, took the coins amounting to P1,000.00, and took the contents of his wallet which amounted to around P1,000.00. When his wife shouted for help, neighbors came rushing to their aid, prompting the men to leave hastily. After the three men left, they heard gunfires. He learned that the fleeing robbers shot one of his neighbors, Nelson Saavedra, who was rushed by other bystanders to the nearest hospital. The following morning, a dead person was discovered at Sitio Bakhaw in Barangay Catmondaan, Municipality of Catmon, Cebu. Found in the dead mans belongings were assorted coins and bills amounting to P790.00 wrapped in a small towel, a .38 caliber firearm with two live ammunitions and an empty shell. He recognized the deceased as the person who poked a firearm at his forehead the night 4 before. When asked to identify the persons apprehended and detained in jail in Catmon, he recognized accused Arnold Lapitaje. Rizalina Ares testified as follows: At around 7:30 oclock in the evening of October 31, 1993, she met three persons coming f rom the store of Domingo Colonia. One was wearing a colored short sleeve polo, another was wearing a long sleeve fatigue shirt and the last one wore a green shirt. Shortly thereafter, she heard gunfires. She found a neighbor, Nelson Saavedra, who was wounded. She and a brother of the victim rushed the victim to the hospital. The next morning, she learned from Domingo that he was robbed. Later, Rizalina went to the municipal hall. She was able to identify accused Mario Reyes and Arnold Lapitaje, as the two men she met the night before through the t-shirts worn by them. Rizalina said that the person who was found dead the morning after the robbery 5 was the one wearing a green shirt whom she also met that night while she was walking towards Domingos store. Fred Ares testified: On the night in question, he heard a womans voice coming from the highway. When he proceeded towards th e highway, he met some of his neighbors who told him about the fleeing robbers. As he directed his gaze towards the direction pointed by his neighbors, he saw a parked taxi marked "Aaron". A speeding Hi-Ace van then arrived. Military men donning firearms

alighted from the van and approached the taxi. The military men held the driver of the taxi, a man seated in the first seat and another man about to enter the taxi. The three men who were held by the military were recognized by Fred in the courtroom as the 6 accused Romy Baluyos, Wendel Arellano and Arnold Lapitaje. Cesar Roldan testified as follows: On the night of October 31, 1993, he was in the house of his uncle located 50 meters away from the place of Domingo when he heard explosions. He ran towards the road where he saw three persons with pistols, two of whom he identified in the courtroom as accused Mario Reyes and Arnold Lapitaje. The third man happened to be the person found dead the morning after the robbery. He recognized the three men that night because of the illumination coming from the fluorescent lamp along the road. Mario Reyes wore a fatigue shirt, Arnold Lapitaje donned an ordinary shirt the color of which Cesar could no longer recall and the third man was wearing a green shirt. Cesar was more than an arms length from the three men with pistols who proceeded towards the direction of Sitio Bakhaw in Catmondaan coming from the house of Domingo Colonia. As Cesar made his way 7 towards the place of Domingo, he saw Nelson Saavedra lying prostrate on the ground. SPO2 Calixto Nueza testified that: he proceeded to the national highway on his motorcycle upon hearing cries for help from his neighbors, at a distance of around 10 meters, he saw a Hi-Ace van with Air Force men as passengers blocking a taxi marked "Aaron"; when he introduced himself as a person in authority, Mauro Oarga who identified himself as a colonel, turned over to him the persons of accused Romy Baluyos, Arnold Lapitaje and Wendel Arellano; Oarga and his men likewise turned over to him a .22 caliber revolver magnum, five live ammunitions, one empty shell and a hand grenade which was allegedly recovered under the front seat of the taxi much later; he recognized accused Arnold Lapitaje since the latter used to deliver edible oil in their place; he also recognized Wendel Arellano who used crutches, and, Romy Baluyos, as the driver of the taxi; with the help of some barangay tanods, he brought the three men to the police station for proper investigation; early in the morning of the following day, a dead person, recognized by Domingo Colonia as one of the robbers, was found dead; said person may have been killed by the civilian volunteers; in the meantime, the articles recovered by Oarga and his men were submitted to the National Bureau of Investigation (NBI), Central 8 Visayas Regional Office at Cebu City for ballistic examination. A chemical analysis of the paraffin casts taken from the hands of accused Arnold Lapitaje and Mario Reyes yielded the following results: "1 result for the presence of gunpowder residue on both hand POSITIVE result for the presence of gunpowder residues on both hand casts taken from MARIO REYES. 9 "2 NEGATIVE casts taken from ARNOLD LAPITAJE." Bonifacio Ayag, a ballistic expert of the NBI, testified that he had conducted a ballistic examination on the specimens submitted to their office upon letter request of the PNP, Catmon, Cebu and that his findings, contained in his ballistic report, are as follows: "Comparative examinations made between the evidence empty shells marked AS, AS -1, AS-2 and the test shells fired from PALTIK "(COLT) REVOLVER caliber .38 without serial number, marked EF (X on the trigger guard) and paltik (S&W) revolver caliber .22 magnum, SN_11155 (X on the trigger guard) revealed the following results: "a) Evidence empty shells marked AS-A1 and AS-2 and the test shells fired from PALTIK (COLT) REVOLVER CALIBER .38 without serial number, marked EF (X on the trigger guard) gave POSITIVE results; said evidence shells were fired from this particul ar firearm. "b) Evidence empty shells marked AS and the test shells fired from PALTIK (S&W) REVOLVER CALIBER .22 MAGNUM, SN 11155 (X 10 on the trigger guard) gave positive results; said evidence shell was fired from this particular firearm". Dr. Wayben Briones testified: He treated Nelson Saavedra who was admitted at the Chong Hua Hospital in Cebu City for multiple injuries on November 1, 1993. Nelson had a gunshot wound located at the right neck injuring the thyroid gland. The wound penetrated the scapular area and also injured the spinal cord which caused Nelson to be paralyzed from the neck to the lower part of his body. Nelson became bedridden in the hospital and developed bedsores but due to financial constraints, he went home on December 7, 1993. He returned to the hospital on January 27, 1994 but died on February 8, 1994 from multiple organ failures 11 caused primarily by the gunshot wound on the neck. Lt. Col. Mauro Oarga, an officer of the Philippine Air Force, testified: On October 31, 1993, he and his companions had a beach activity at Catmondaan, Catmon, Cebu. On their way to Catmon, they saw "four" persons running towards a waiting taxi. Finding the actuations of the men to be suspicious, he instructed his driver to overtake the taxi and asked his men to disembark for the purpose 12 of conducting a search on the taxi as well as on the "four" persons who had already boarded the taxi. Accused driver Romy Baluyos and Wendel Arellano were among the persons on board the taxicab. Their body search on the "four" persons as well as on the driver of the taxi failed to yield anything but a search conducted on the taxi produced a .22 caliber revolver with five ammunitions and one empty shell found under the front seat of the taxi. A hand grenade was also discovered at the back portion of the vehicle. Although it was already dark at the time, the group was aided in their search by the headlights of the van which were switched on. Upon 13 arrival of PNP operatives, he turned over the five persons as well as the articles recovered from the taxi. Sgt. Rogelio Castro testified that: while they were on their way home from Catmondaan their commanding officer, Lt. Col. Oarga ordered the driver of the vehicle to block a certain taxi; they disembarked from their vehicle upon instructions of Lt. Col. Oarga who told them to conduct a search on the taxi; they found the driver, who he could not recognize because it was dark, and, a person with an amputated leg seated in front of the taxi; during his search, Castro saw a .22 caliber firearm under the front seat of the taxi where

the man with amputated leg was seated; he gave the firearm to Lt. Col Oarga who handed it over to SPO2 Nueza, a member of the 14 PNP of Catmon, who arrived at the scene. The accused refuted the evidence of the prosecution through the testimonies of their witnesses Arnold Lapitaje testified: He was a hired helper tasked to collect payments from customers of edible oil supplied by his employer. On October 31, 1993 at around 8:30 oclock in the evening, he was at Catmondaan supposedly to collect payments from his regular customers, Domingo Colonia and a certain Fredo. He was not able to meet either of the two because Domingos store was already closed at the time and Fredo was not around. Arnold thought of waiting for Fredo but since he was already hungry, he took his supper at the market place near the seashore. Suddenly, an explosion was heard coming from the highway causing the people to scamper away. Fearing for his safety, he went to one of the houses near the marketplace and continued eating his supper after which he proceeded to the highway to wait for a passenger vehicle bound for Cebu City. It was while waiting for a passenger vehicle that he learned from a group of women about some intruders who barged inside the house of Domingo Colonia and introduced themselves as members of the NPA. When he boarded an Isuzu elf vehicle, a member of the CAFGU (Civilian Armed Forced Geographical Unit) saw him and ordered him to alight from the vehicle. A policeman named Ceniza later arrived and brought him to the municipal hall where he was mauled so as to force him to reveal the identity of the persons involved in the robbery. He had nothing to reveal since he did not know the robbers. As a result of the mauling, he sustained injuries which caused him to have difficulties in standing up and walking. Inside the jail, he met accused Romy Baluyos and Wendel Arellano. Accused Mario Reyes was brought to the jail much later. The policemen told him (Arnold) that Mario identified him as one of the robbers but when confronted, Mario denied having implicated Arnold. The following day, the policemen brought him to Km. 47 where he was again asked to reveal the names of the persons who robbed the house of Domingo Colonia. When he denied any participation in the robbery, he was mauled and tied to an ipil-ipil tree by the policemen, some of whom he recognized as Calixto Nuneza, Bravio and Ares. Although bribed with P5,000.00 to reveal the names of the robbers, he insisted that he did not know the robbers. Much later, he and Mario were brought to the police headquarters at Gorordo Avenue, Cebu City for examination where the policemen poured 15 warm water into their hands. Arnold further testified that Domingo might have implicated him as one of the robbers because of an incident wherein he accidentally spilled some of the edible oil that he was delivering in Domingos store which caused some sacks of rice to get wet; that 16 Domingo asked him to replace the spilled edible oil but he refused which angered Domingo. Accused Wendel Arellano testified: On October 31, 1993, at around 2:30 oclock in the afternoon, after he had just bought a t owel from the White Gold Store in Cebu City, he chanced upon his cousin Mario Albarena. After a brief conversation, he acceded to his cousins invitation to go to Hagnaya so that the latter can catch a boat heading for Bantayan, Cebu. His cousin hired a taxi and upon reaching Hagnaya, the taxi driver was made to wait while they had some snacks. Afterwards, his cousin boarded the boat bound for Bantayan while he went back to the waiting taxi which was to take him back to Cebu City. The taxi left Hagnaya at around 5:45 oclock in the afternoon. When they reached Catmondaan at around 7:30 in the evening, the taxi driver stopped the taxi near a lighted post to fill the overheated engine with water. While the driver opened the hood of the car, three persons suddenly boarded the taxi and told him (Wendel), "Do not be afraid, Bay, because we have here a wounded person and we wanted only this wounded 17 person to board this taxi. We are NPAs". Upon returning to the taxi, the driver was startled to find three other persons on board and he moved backward. Nevertheless, the driver went back to his seat after the man told him that they wanted to load a wounded person. Before the driver could even start moving the taxi, a Hi-Ace van stopped in front of the taxi. Armed persons alighted from the van. One of the supposed NPAs told the driver to start the taxi but in his confusion, the driver maneuvered the taxi towards the rear end of the van. The three men jumped off the taxi and ran away leaving him and the taxi driver behind. The men from the van who identified themselves as members of the Air Force, arrested him and the taxi driver whose name he later came to know as Romy Baluyos. A search conducted on the taxi failed to yield anything. Later, an armed person named Nueza arrived to whom the Air Force men entrusted him and Romy. Nueza then brought them to the police station and locked them inside the jail. Two other persons arrived in jail whose names he later came to know as Arnold Lapitaje and Mario Reyes. They were implicated in the robbery at Catmondaan although they were not among the persons who jumped off the taxi. At around 2:00 oclock in the morning of November 1, 1993, Arnold was fetched by policemen. When Arnold returned, he saw some bruises on Arnold. On the same day, Domingo Colonia happened to be in the municipal hall. Domingo was surprised to see Arnold and asked the latter what he was doing there. Arnold asked for help from Domingo saying that he was being implicated in the robbery but a policeman pulled Domingo 18 away. Wendel further testified that he could not have been seen running towards the taxi because his leg had been amputated in an accident prior to the incident in question; that the case which he had filed in relation to the accident causing his leg to be amputated 19 is still pending in Regional Trial Court, Branch 8, Cebu. Accused Romy Pingkian Baluyos testified: He had been a taxi driver for more than twenty years. On October 31, 1993, at around 2:30 oclock in the afternoon, a man boarded the taxi together with another man whose leg was amputated. They arrived at Hagnaya,

Cebu at around 5:30 oclock in the afternoon. His passengers made him wait while they had a merienda. After thirty minutes, t he man with the amputated leg returned and informed him that they were to proceed back to Cebu City. Before reaching Bogo, Cebu, the taxi had a flat tire. He had the tire vulcanized after which they proceeded on their way. Sometime later, the engine of the taxi overheated, prompting him to park the taxi at a well lit portion of the road. He refilled the radiator with water which he got from the baggage compartment. When he returned to the drivers seat, there were already three men inside. He was told not to worry, th at they were good persons and that they are NPAs with a wounded companion. As Romy started the engine of the taxi, a Hi-Ace van, with armed men on board, stopped in front of the taxi around 25 meters away, prompting the three men who had just boarded the taxi to jump off. The armed men who turned out to be members of the military, alighted from the van, arrested him and his passenger with the amputated leg, identified later as Wendel Arellano. The armed men searched the taxi but their search proved to be fruitless. When a policeman arrived, they turned him and Wendel over to the policeman. The policeman brought him and Wendel to the Municipal Hall of Catmon, Cebu where they were detained. Another man whose name they later came to know as Arnold Lapitaje was brought in jail. Arnold said that he was a suspect in a robbery which occurred in Catmondaan. Later, another person by the name of Mario Reyes was brought inside the jail. Mario had bruises and contusions all over his face. Arnold and Mario were not among the persons who jumped off from the taxi he was driving on the night of his arrest. He came to know Domingo Colonia only 20 on November 1, 1993 when the latter, upon seeing them all in jail said to Arnold, "Nold, you are here?" Accused Mario Reyes testified that: on October 29, 1993, he was at Medellin, Cebu in the company of his employer, Bernardino Sabal, who is engaged in the business of rattan poles; Sabal returned to Cebu City ahead of him instructing him to collect payments from debtors in Mandaue City; on October 31, 1993, he headed for Cebu City on board a passenger jeepney; at around 8:00 oclo ck in the evening, the jeepney stopped at a check point in Catmondaan and all the passengers were made to alight by the members of the PNP and the CAFGU; they were bodily searched and asked to produce a "cedula"; he was held by the PNP despite his protestations and was brought to the police station in Catmon, Cebu after being harmed by angry apprehenders; there were already four persons in jail whose names he later came to know as Jose Jumao-as, Wendel Arellano, Romy Baluyos and Arnold Lapitaje; while he was in jail, he met Domingo Colonia who was surprised to see Arnold in detention; he had fired a gun a number of times, the last of which was on October 15, 1993 when he fired a gun owned by the military in the mountains of Sagaboy, Mati, Davao 21 Oriental. Bernardino Sabal corroborated the testimony of accused Mario Reyes on certain matters. He testified that: he hired Mario as a worker in his rattan business in Davao Oriental; on October 15, 1993, he and Mario went to Cebu City to sell rattan poles; after a week, they received an invitation from Pablo Inot to go to Medellin, Bogo, Cebu where the latter was engaged in selling rattan and fishing business; he and Mario arrived at Medellin at around 2:00 oclock in the afternoon; he had to leave the followin g day for Davao; since Mario was still enjoying himself, he allowed Mario to stay behind but with the instruction that Mario should collect payments without delay from debtors in Mandaue City; unfortunately, Mario was imprisoned and never got to follow him to Davao; he learned from Mario when he visited him in jail that when Mario was on his way to Cebu on board a passenger jeepney, he was told to alight from the vehicle and produce an identification card as well as a community tax receipt at a check point in Catmon, Cebu; although Mario was able to show his community tax receipt, he was ordered to stay and forced to accompany the 22 apprehending officer. The trial court held: "By the evidence so presented by the prosecution, the Court finds that all accused acted in concert in committing the act. The Court is convinced that Arnold B. Lapitaje who is familiar with complainant Domingo Colonia at Catmon Daan, Cebu, was the lead man. The Court portrays a situation that it was the two accused Mario Reyes and Arnold Lapitaje who barged into the house and pointed the gun to complainant and wife. That the two accused Wendel Arellano and Romy Baluyos were watchmen outside and that after the robbery and upon fear of reprisals from neighbors who responded to the shout for help of the wife of complainant, the four accused went hurriedly to the waiting taxi on the highway. Such fact of the four running towards the taxi was duly testified by prosecution witness Col. Oarga who, seeing the four rushing to the waiting taxi in suspicious manner, caused their Hi-Ace Van to block the taxi. Thus, the arrest of the four accused and the search on the taxi. "Both evidence considered, the Court finds overwhelmingly that the four accused acted in concert to commit the act of robbery with homicide, and should be responsible therefore (sic). "xxx xxx xxx. "The Court finds no merit the defense of alibi and general denials of accused. The positive identification by prosecution witnesses upon the persons of the accused as perpetrator of the crime negates all allegations "that accused were at some other place at the 23 time of the commission of the offense or that they did not commit the offense as charged." and found all accused guilty of Robbery with Homicide and imposing a penalty of "reclusion perpetua to death". The imposition of 24 said penalty is erroneous and inappropriate. But because of the possibility that death could be the correct imposable penalty, the Court en banc entertained the automatic review of the decision of the trial court. Hence, herein automatic review pursuant to Article 47 of the Revised Penal Code, as amended.

In their Brief, appellants raise the following Assignment of Errors: "I. The trial court erred in finding that appellants Wendel Arellano and Romy Baluyos were in cahoots with the other appellant Arnold Lapitaje and Mario Reyes in the perpetration of the crime despite the existence of exculpatory evidence warranting the acquittal of the first duo. "II. The trial court erred in relying on the vulnerability of the defense evidence rather than on the strength of the prosecution evidence. "III. The trial court erred in not finding that the arrest of all appellants were illegal and the subsequent alleged recovery of 25 incriminatory evidence presented against the latter was a product of a poisonous tree, hence inadmissible in evidence." The Solicitor General filed the Brief for Plaintiff-Appellee with Manifestation and Motion recommending that the judgment convicting Wendel Arellano and Romy Baluyos be reversed and set aside, their guilt not having been proven beyond reasonable doubt; and, that the judgment convicting Arnold Lapitaje and Mario Reyes be affirmed with the modification that the penalty of reclusion perpetua should be imposed upon them in the absence of any aggravating circumstance in the commission of the crime charged. We uphold appellees recommendations insofar as appella nts Wendel Arellano and Romy Baluyos are concerned, the same being in accordance with the evidence presented by the prosecution and the defense. Both should be absolved from liability. The well-settled rule is that the trial courts findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of any clear showing that some facts or circumstances of weight or substance which could have affected 26 the result of the case have been overlooked, misunderstood or misapplied." After a painstaking review of the prosecution evidence, the Court found certain facts and circumstances of such great weight that the trial court overlooked and misappreciated or misapplied, as follows: 1. The trial court had erroneously given credence to the testimony of Lt. Col. Oarga who testified that he had seen four men running towards a waiting taxicab; and that the four who boarded the taxi were apprehended together with the driver. On this basis, the trial court hastily concluded that Wendel and Romy acted as lookouts while Arnold and Mario robbed Domingos house and that after the robbery, the four ran towards the waiting taxi. The other prosecution witnesses consistently and unequivocably belied the testimony of Lt. Col. Oarga. Prosecution witness Fred Ares categorically testified that Oargas men held only three persons: the driver of the taxi, the m an with 27 crutches and another who was still about to enter the taxi. Fred Ares further clarified that Wendel was just inside the taxi and was 28 not one of the persons who were running towards the taxi. The testimony of Fred Ares is corroborated by Rizalina Ares who 29 testified that she met three persons coming from the store of Domingo Colonia. Another prosecution witness, SPO2 Nueza testified that Oarga turned over to him only three persons, namely, the driver Romy Baluyos, Wendel Arellano and Arnold Lapitaje. 2. The trial court miserably failed to consider that appellant Wendel had a physical disability. Wendel could not have ran together with the other robbers because he had an amputated leg and walked on crutches. 3. The firearm and live ammunitions allegedly found under the front seat of the taxi cannot be used as evidence against Wendel and Romy for they were taken as a result of an illegal search and seizure which will be discussed forthwith. Thus, Oargas testimony of the event leading to the arrest of appellants is not accurate and could not be a valid basis for the conviction of appellants Wendel and Romy. Even if the defense of general denial posited by Wendel and Romy is uncorroborated, the trial court committed an error in disregarding said defense considering that the evidence of the prosecution failed to establish the participation of both accused Wendel and Romy in the commission of the crime charged. As the Court has enunciated in People vs. Ladrillo: "xxx. 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, 30 especially when the prosecution evidence itself is weak." and in People vs. Albao: "xxx denial and alibi, while inherently weak, assume relevance when the evidence of the prosecution linking the accused to the 31 crime is inconclusive."

With respect to appellant Arnold: By the testimonies of prosecution witnesses Fred Ares and SPO2 Nueza, it is established that Arnold was arrested by Lt. Col. Oarga. However, it must be stated that the warrantless arrest of appellant Arnold together with Wendel and Romy was not lawful. Oarga testified that he caused the arrest of "four men" running towards the taxi since they were acting suspiciously. However, Oarga did not elaborate why he thought said men were acting suspiciously. Rule 113 of the Rules on Criminal Procedure provides: "Sec. 5. Arrest without warrant; when lawful --- A peace office or a private person may, without a warrant, arrest a person: "A) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. "B) When an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person to be arrested has committed it; and "C) When the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another." None of the aforesaid circumstances were attendant in the case at bar. The "four men" were not prisoners who had just escaped from a penal establishment. Oarga did not testify that the "four men" he had seen running towards the taxi have earlier committed or were actually committing or attempting to commit an offense in his presence. Nevertheless, considering that appellant Arnold, had entered his plea and actively participated in the trial of the case, he submitted 32 to the jurisdiction of the trial court thereby curing any defect in his arrest. Legality of an arrest affects only the jurisdiction of the 33 court over his person. In spite of said waiver, the firearm and live ammunition taken from the taxi during the search, cannot be admitted in evidence 34 against appellants because they were seized during a warrantless search which was not lawful. A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped 35 prisoners. Thus, the search cannot be justified on the ground that it involves search of a moving vehicle. Warrantless search of a moving vehicle is allowed only when it is not practicable to secure a warrant because the vehicle carrying the prohibited drugs can be quickly moved out of the area or jurisdiction in which the warrant must be sought. We have already clarified in a number of cases that this exception in no way gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of 36 probable cause. When a vehicle is stopped and subjected to an extensive search, such warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe before search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. 1a\^/phi1.net As we have earlier found, Oarga and his men did not have personal knowledge of the crime that had just been committed and therefore had no probable cause to believe that they will find the instruments or evidence pertaining to the crime. Consequently, the firearms, empty shell and live ammunitions as well as the hand grenade allegedly found during the search cannot be admitted as evidence. The above notwithstanding, the trial court did not err in finding both appellants Arnold Lapitaje and Mario Reyes to be the perpetrators of the crime of robbery. Despite the inadmissibility of the guns and ammunitions, both appellants were positively identified by the prosecution witnesses. At the time of the incident, Domingo instantly recognized Arnold who pointed a firearm at his wife. He recognized Arnold although the robbery happened at nighttime because the place was lit by a fluorescent bulb and all three men who entered the store were not wearing masks. Aside from Domingo Colonia, Cesar Roldan positively identified appellants Arnold and Mario as two of the three men, armed with pistols, who he saw fleeing from the store. Cesar had no motive to testify against appellants. He categorically testified that he saw Mario with a pistol in one hand while running towards the direction of Sitio Bakhaw, Domingo Colonias place. This is corroborated by the result of the Che mistry Report conducted on appellant Mario which showed the presence of gunpowder residue on both of his hands. The fact that appellant Arnold did not have any gunpowder residue on both of his hands does not demolish the fact that prosecution witness Domingo Colonia had positively identified Arnold as one of those who robbed his store and the one who pointed a gun at his wife. It simply means that Arnold had not fired the gun he was holding.

However, although appellant Mario may have fired the gun he was holding at the time of robbery, there is no direct or sufficient circumstantial evidence to prove that he or anyone of the appellants had shot deceased Nelson Saavedra or that the latter was shot on the occasion of the robbery. The trial court itself was ambivalent on the matter, to wit: "While prosecution evidence pointed to deceased Nelson Saavedra as one among the three who came from the house of complainant Domingo Colonia, no convincing evidence is shown that the deceased is one among the perpetrators of the robbery as charged. Possibility may rise that said deceased Nelson Saavedra may have responded to the shout for help by the wife of complainant or being one of the perpetrators of the crime. At any rate, no such intervention, criminally or civilly, was ever interposed by relatives of the deceased. But the evidence on record showed that deceased Nelson Saavedra died during the 37 occasion of robbery." While Saavedra was indeed shot on the date of the incident, the only evidence connecting appellants Arnold and Mario to the gunshot wound sustained by Saavedra were the facts that they were seen by prosecution witnesses Rizalina Ares and Cesar Roldan running away from Domingos store with guns; that gunshots were heard and right after that, Rizalina Ares saw a wounded Saavedra. Rizalina did not actually see the shooting. Neither did any of the other prosecution witnesses testify that they saw any of the appellants shoot Saavedra, or that he was shot while the robbers were fleeing from the store. Notwithstanding the presence of the neighbors who rushed to their aid after hearing the cries for help of the wife of Domingo, the prosecution failed to present any one who might have actually seen how the shooting of Saavedra took place. There was no proof that the gunshot wound which caused the subsequent death of Saavedra came from any of the guns used by the robbers. The prosecution failed to connect the results of the ballistic examination of the guns confiscated by Lt. Col. Oarga to the gunshot wound sustained by the victim. Also, the guns were not admissible in evidence. Thus, there is not enough circumstantial evidence to support the finding that appellants Arnold and Mario should be held responsible for the death of Saavedra. The prosecution evidence failed to prove circumstances that constitute an unbroken chain that led to one fair and reasonable conclusion that points to said appellants, to the exclusion of all others, as the persons guilty of homicide perpetuated on the occasion of, before, during, or after the commission of the crime of 38 robbery. Consequently, appellants Arnold Lapitaje and Mario Reyes should have been found guilty only of the simple crime of Robbery under paragraph 5, Article 294 of the Revised Penal Code which prescribes a penalty of prision correccional in its maximum period to prision mayor in its medium period ranging from four years, two months and 1 day up to ten years. That the robbery was committed with the aid of armed men is established by the positive testimonies of prosecution witnesses Domingo Colonia, Rizalina Ares and Cesar Roldan that qppellants Arnold and Mario used firearms. It is a generic circumstance under paragraph 8, Article 14 of the Revised Penal Code. However, the Amended Information did not specifically allege said aggravating circumstance. Although in the narration of how the crime was committed, it is alleged that appellants "held up the owner at gunpoint", the same is not a substantial compliance of Sections 8 & 9, Rule 110 of the Revised Rules on Criminal Procedure, to wit. "SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, 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. "SEC. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment." In People vs. Costales, the Court held that aggravating or qualifying circumstance must be expressly and specifically alleged in the 39 complaint or information; otherwise, it cannot be considered by the trial court, even if proved during the trial. The above-quoted Rules took effect on December 1, 2000, or after the subject crime of Robbery has been committed. In consonance with Article 22 of the Revised Penal Code, the said Rules are given retroactive effect because they are beneficial to the appellants. Thus, the Court will not take into consideration the aggravating circumstance that the crime was committed with the aid of armed men. Applying the Indeterminate Sentence Law, one degree lower is arresto mayor in its maximum period to prision correccional in its medium period or four (4) months and one (1) day to four (4) years and two (2) months. With no mitigating or aggravating circumstance, the imposable penalty may be taken from the period of one (1) year, seven (7) months and eleven (11) days to two (2) years, ten (10) months and twenty (20) days of prision correccional, for the minimum period, and from six (6) years, one (1) month and eleven (11) days to eight (8) years and twenty (20) days of prision mayor, for the maximum period.

Furthermore, appellant Arnold Bacla-an Lapitaje and Mario Reyes should be ordered to pay jointly and severally, to Domingo Colonia, the amount of P1,210.00, representing the unrecovered stolen money. WHEREFORE, the decision of the Regional Trial Court of Danao City (Branch 25) is AFFIRMED WITH MODIFICATIONS: Accused-appellants Arnold Bacla-an Lapitaje and Mario Reyes are found guilty beyond reasonable doubt of the simple crime of Robbery and applying the Indeterminate Sentence Law, without any mitigating or aggravating circumstance, they are sentenced to suffer the penalty of two (2) years and ten (10) months of prision correccional, as the minimum to eight (8) years and twenty (20) days of prision mayor, as the maximum. They are also held jointly and severally liable to pay the sum of P1,210.00 to Domingo Colonia. Accused-appellants Romy Baluyos and Wendel Arellano are ACQUITTED, their guilt not having been proven beyond reasonable doubt. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM the Court within five (5) days from receipt hereof, the date when appellants were actually released from confinement. Costs de oficio. SO ORDERED.