Rule 122 - Appeal

Sec. 1 - Who may Appeal

PHILIPPINE SAVINGS BANK, PETITIONER, VS.
SPOUSES PEDRITO BERMOY AND GLORIA BERMOY,
RESPONDENTS.
G.R. NO. 151912, September 26, 2005, FIRST
DIVISION, CARPIO, J.
Crime: Estafa through falsification of a public
document - Location: Manila
Facts
Based on a complaint filed by petitioner Philippine
Savings Bank (PSB), respondents Pedrito and Gloria Bermoy
were charged with estafa thru falsification of a public
document in the RTC, Manila, Branch 38. According to the
complaint, the said accused prepared, forged and falsified or
caused to be prepared, forged and falsified an owner's copy
of TCT No. 207434, which is an imitation of, and similar to
the TCT No. 2074341 issued by the Register of Deeds for the
City of Manila pertaining to a parcel of land containing an
area of 350 sqm., located in Malate 2. After the prosecution
presented its case and rested, the defense, instead of
presenting its evidence, the defense filed, with leave of court,
a demurrer to evidence on the ground that the prosecution
failed to identify respondent spouses as the accused3.
The trial court ruled in favor of the accused
dismissing the case, reasoning that there is nothing in the
transcript (of the testimonies presented by the prosecution)
which would slightly indicate that they identified the accused
as the persons who obtained a loan from the PSB and
executed the corresponding documents. The decision was
affirmed by the CA, stating that the failure of the prosecution
to point in open court to the persons of the accused as the
same persons who presented themselves to the Bank is a
fatal omission, even if the trial court erred in granting the
demurrer, the same can no longer be reviewed either on
appeal or on petition for certiorari for it would violate the
right of the accused against double jeopardy.
Issue
WON double jeopardy had attached in the case herein
barring appeal
Decision
Yes, for double jeopardy to apply, Section 7 Rule 117 requires
the following elements in the first criminal case:
a

b
c

The complaint or information or other formal charge

was sufficient in form and substance to sustain a
conviction;
The court had jurisdiction;
The accused had been arraigned and had pleaded;
and

He was convicted or acquitted or the case was

dismissed without his express consent.

On the last element, the rule is that a dismissal with

the express consent or upon motion of the accused does not
result in double jeopardy. However, this rule is subject to two
exceptions, namely, (1) if the dismissal is based on
insufficiency of evidence or (2) on the denial of the right to
speedy trial. A dismissal upon demurrer to evidence falls
under the first exception. Since such dismissal is based on
the merits, it amounts to an acquittal. As the CA correctly
held, the elements required in Section 7 were all present in
Criminal Case No. 96-154193. Thus, the Information for
estafa through falsification of a public document against
respondent spouses was sufficient in form and substance to
sustain a conviction. The trial court had jurisdiction over the
case and the persons of respondent spouses. Respondent
spouses were arraigned during which they entered "not
guilty" pleas. Finally, the criminal case was dismissed for
insufficiency of evidence. Consequently, the right not to be
placed twice in jeopardy of punishment for the same offense
became vested on respondent spouses.
The right against double jeopardy can be invoked if
(a) the accused is charged with the same offense in two
separate pending cases, or (b) the accused is prosecuted
anew for the same offense after he had been convicted or
acquitted of such offense, or (c) the prosecution appeals
from a judgment in the same case. The last is based on
Section 2 (Sec. 1), Rule 122 of the Rules of Court which
provides that "any party may appeal from a final judgment or
order, except if the accused would be placed thereby in
double jeopardy."
Here, petitioner seeks a review of the April 1998
Order dismissing the criminal case for insufficiency of
evidence. It is in effect appealing from a judgment of
acquittal. In terms of substantive law, the Court will not pass
upon the propriety of the order granting the Demurrer to
Evidence on the ground of insufficiency of evidence and the
consequent acquittal of the accused, as it will place the latter
in double jeopardy. Generally, the dismissal of a criminal
case resulting in acquittal made with the express consent of
the accused or upon his own motion will not place the
accused in double jeopardy.
However, this rule admits of two exceptions, namely:
insufficiency of evidence and denial of the right to a speedy
trial. In the case herein, the resolution of the Demurrer to
Evidence was based on the ground of insufficiency of
evidence. Hence, it clearly falls under one of the admitted
exceptions to the rule. Double jeopardy therefore, applies to
this case and this Court is constitutionally barred from
reviewing the order acquitting the accused4. Petition Denied.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. NILO LEONES, ACCUSED-APPELLANT.
FACTS

1 in possession of the spouses EDGAR and ELVIRA ALAMO

2 To obtain a 1 million loan from the said bank.
3 Nowhere in the pre-trial conference minutes could it be
found that the accused did it state that any of the accused
made any stipulation or admission

The accused Nilo Leones was convicted by the trial court of 3

counts of rape and 3 counts of acts of lasciviousness. The

4 The rule barring appeals from Judgments of acquittal

admits of an exception. Such, however, is narrowly drawn
and is limited to the case where the trial court "acted with
grave abuse of discretion amounting to lack or excess
of jurisdiction due to a violation of due process i.e. the
prosecution was denied the opportunity to present its case or
that the trial was a sham.

accused did not appeal the said decision and thereafter

started to serve sentence, but the prosecution filed a notice
of appeal. The prosecution contends that the penalties for the
3 counts of rape imposed upon the accused are not in accord
with R.A. No. 7659 and should each be increased to death;
while the penalties meted out for the 3 counts of acts of
lasciviousness are erroneous pursuant to R.A. No. 7610 and
should each be increased.
ISSUE
Can the prosecution validly appeal to increase the
penalty imposed upon the accused without running afoul to
the right of the accused against double jeopardy
RULING
NO. Section 1, Rule 122 of the Revised Rules of
Criminal Procedure provides:
"Section 1. Who may appeal.- Any party may appeal
from a judgment or final order, unless the accused will
be placed in double jeopardy."
We held in Heirs of Tito Rillorta v. Hon. Romeo N.
Firme, et al.,viz:
"Section 2 of Rule 122 of the Rules of Court provides that
'the People of the Philippines cannot appeal if the defendant
would be placed thereby in double jeopardy.' This provision is
based on the old case of Kepner v. United States, where the
U.S. Supreme Court, reviewing a decision of the Philippine
Supreme Court in 1904, declared by a 5-4 vote that appeal of
the prosecution from a judgment of acquittal (or for the
purpose of increasing the penalty imposed upon the convict)
would place him in double jeopardy. It has been consistently
applied since then in this jurisdiction."
Even assuming that the penalties imposed by the trial
court were erroneous, these cannot be corrected by this
Court on appeal by the prosecution. As we held in the Heirs
of Rillorta case, viz:
". . . whatever error may have been committed by the lower
court was merely an error of judgment and not of
jurisdiction. It did not affect the intrinsic validity of the
decision. This is the kind of error that can no longer be
rectified on appeal by the prosecution no matter how obvious
the error may be."
The prosecution-appellant cited several cases in
support of its appeal. The Solicitor General points out that in
these cases, the Court consistently ruled that an appeal in a
criminal proceeding opens the whole case for review,
including the review of the penalty. The prosecution,
however, sorely misses an important point. It is true that said
cases enunciate the doctrine that an appeal in a criminal
proceeding throws the whole case open for review. However,
in all these cases, it was the accused, not the prosecution,
who brought the case to this Court on appeal. These cases,
therefore, do not lend support to the prosecution's cause
which must fall on the ground of double jeopardy.

Sec. 3 - How appeal taken

PEOPLE OF THE PHILIPPINES v. JOSE PAJO & IMELDA
LIQUIGAN
G.R. No. 135109-13, 18 December 2000, EN BANC, (Per
Curiam)
Jose Pajo was found guilty beyond reasonable doubt
of 3 counts of rape and 2 counts of acts of lasciviousness
while his co-accused, Imelda Liquigan, was found guilty
beyond reasonable doubt as an accomplice of the crime of

rape. The victims are Pajos daughters, AAA (14 y/o) and
BBB (12 y/o), assisted by their aunt, CCC.
Due to the imposition of the death penalty in the 3
criminal cases, the Decision of the RTC imposing the death
penalty therein is now before us on automatic review.
ISSUE:
May the court consider through automatic appeal all
the convictions even if the penalty of some of the convictions
is not death?
RULING:
NO. The Court resolves to dismiss the appeals
wherein the RTC convicted PAJO of two counts of acts of
lasciviousness and sentenced him to ten (10) years and one
(1) day of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum for
each count, considering that PAJO failed to file notices of
appeal for said cases.
We likewise dismiss the appeal of PAJO's co-accused,
LIQUIGAN, for the reason that she similarly failed to file a
notice of appeal of the judgment convicting her as an
accomplice to the crime of rape. The appeal to the
Supreme Court in cases where the penalty imposed is
life imprisonment or where a lesser penalty is imposed
but involving offenses committed on the same occasion
or arising out of the same occurrence that gave rise to
the more serious offense for which the penalty of death
or life imprisonment is imposed shall be by filing a
notice of appeal with the court which rendered the
judgment or order appealed from, and by serving a copy
thereof upon the adverse party. Inasmuch as both PAJO
and LIQUIGAN have taken no appeal with respect to these
cases, they became final and executory after the lapse of
fifteen (15) days, the period for perfecting an appeal. On the
other hand, Criminal Cases Nos. 97-233, 97-664 and 97-665
are now before this Court on automatic review in view of the
imposition of the death penalty. It is only in cases where
the accused is sentenced to death when the appeal of
the decision to the Supreme Court is automatic. We thus
limit our discussion to Criminal Cases Nos. 97-233, 97-664
and 97- 665 where the death penalty was imposed on PAJO.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ANTONINE B. SALEY a.k.a. ANNIE B. SALEY, accusedappellant.
G.R. No. 121179, July 2, 1998
TOPIC: How appeal is taken
committed on the same occasion

when

CRIME: Estafa, Illegal Recruitment,

Recruitment In Large Scale

offenses
And

are

Illegal

PLACE OF COMMISSION: Benguet

FACTS:
In this appeal from the 3rd March 1995 decision of
the Regional Trial Court of La Trinidad, Benguet, Branch
10, appellant Antonine B. Saley, a.k.a. Annie B. Saley, seeks a
reversal of the verdict finding her guilty beyond reasonable
doubt of eleven counts of ESTAFA punishable under the
Revised Penal Code and six counts of ILLEGAL
RECRUITMENT, one committed in large scale,
proscribed by the Labor Code.
The appellant has been consistently representing
herself as a duly authorized or licensed recruiter for overseas
employment, when in truth and in fact she was not, thereby
inducing the offended party to give and deliver to her a
certain amount of money for placement abroad and after
having received it, she appropriated and misappropriated the
same for her own use and benefit and despite repeated
demands made upon (her) to return the same, she refused,

failed, neglected, and still refuses, fails and neglects to

comply therewith, all to the damage and prejudice of the
offended party.
RTC rendered its decision finding appellant guilty
beyond reasonable doubt of the crimes charged.
Appellant filed a motion for reconsideration of the
decision. Finding no merit in the motion, the trial court, on
03 April 1995, denied a reconsideration of its decision.
Appellant filed an instant appeal to the Supreme
Court, reiterating her assertion that the trial court has erred
in giving credence to the testimonies of the complaining
witnesses and in finding her guilty beyond reasonable doubt
of the various offenses she has been charged with by the
prosecution
ISSUE:
WON an instant appeal to the Supreme Court is proper
in this case
RULING:
YES. The appeal made directly to this Court of
the seventeen cases, each of which incidentally should
have been assigned a separate docket number in this
Court, is properly taken.
At the outset, it might be explained that this appeal
involves the conviction of appellant not only for the crime of
illegal recruitment in large scale for which the penalty
of life imprisonment is imposed but also for other offenses
for which lesser penalties have been meted by the trial court
upon appellant. This Court has appellate jurisdiction
over ordinary appeals in criminal cases directly from
the Regional Trial Courts when the penalty imposed is
reclusion perpetua or higher. The Rules of Court,
allows, however,
the
appeal
of
criminal
cases
involving penalties lower than reclusion perpetua or
life imprisonment under the circumstances stated in
Section 3, Rule 122, of the Revised Rules of Criminal
Procedure. Thus (c) The appeal to the Supreme Court
in cases where the penalty imposed is
life imprisonment, or where a lesser
penalty is imposed but involving
offenses committed on the same
occasion or arising out of the same
occurrence that gave rise to the more
serious offense for which the penalty
of death or life imprisonment is
imposed shall be by filing a notice of
appeal in accordance with paragraph
(a) of this Section.
In giving due course to the notice of appeal filed by
appellant, the trial court has directed that the entire records
of the seventeen cases should be forwarded to this Court. It
might be observed that this appeal, which has been
assigned only one docket number, involves cases, although
spawned under different circumstances could be said to
somehow be linked to the incident giving rise to the
case for illegal recruitment in large scale. The cases
have thus been correctly consolidated and heard jointly
below. The appeal made directly to this Court of the
seventeen cases, each of which incidentally should have
been assigned a separate docket number in this Court,
is properly taken.

Sec. 11 - Effect of appeal by any of several

Segundo S. Lim vs. Court of Appeals, Hon. Simeon P.
Dumdum, Jr., Presiding Judge, Regional Trial Court,
Branch 7. Cebu City, The People of the Philippines, and
Cirse Choy Torralba
G.R. No. 147524; June 20, 2006; Austira-Martinez, J.
Facts:
On May 17, 1994, Segundo Lim, together with Boy
BG Guingging, were found guilty of libel by the RTC of
Cebu City. The case was filed by Cirse Choy Torralba after
petitioner caused the publication of records of criminal cases
filed against Torralba, including photographs of his arrest,
through a one-page advertisement paid for by petitioner in
the Sunday Post, a weekly publication edited and published
by Guingging. The CA affirmed the conviction. Petitioners
petition for review with the Court was denied in a Resolution
due to his failure to comply with Revised Circular No. 1-88
since it did not contain a certified true copy of the resolution
denying petitioners motion for reconsideration. Meanwhile,
Guingging filed with the Court a petition for review.
Thereafter, the trial court granted the motion filed by the
private prosecutor for the promulgation of the judgment of
conviction against Lim. His motion for reconsideration was
denied same with his special civil action and prohibition with
the CA.
However, the Court granted his prayer for the
issuance of a TRO enjoining the trial court from enforcing its
order during the pendency of Guinggings petition. The Court
then rendered a decision acquitting Guingging of the charge
of libel. Torralba hosts a public affairs program which he in
effect gave the public a legitimate interest in his life. If the
statements made against a public figure are true, then no
conviction for libel can be had. The Court found that the
publication of the subject advertisement by Guingging and
Lim cannot be deemed to have been done with actual malice.
Issue:
Whether Lim should benefit from the acquittal of Guingging
Ruling:
Yes, Lim should benefit from Guinggings acquittal.
Rule 122, Sec. 11(a) of the Revised Rules of Criminal
Procedure states:
a

An appeal taken by one or more of several accused

shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
favorable and applicable to the latter.

It was contended by the respondent that said

provision is not applicable to the petitioner because he
appealed his conviction and that it applies only to those who
did not appeal. However, the Court has applied it without
regard as to the filing or non-filing of an appeal by a coaccused, so long as the judgment was favorable to him. It
should be read in its entirety so as to give effect to its
purpose and that is to benefit an accused who did not join in
the appeal of his co-accused in case where the appellate
judgment is favorable. In the case of People v. Artellero, the
Court extended the acquittal of Rodriguezs co-accused to
him despite the withdrawal of his appeal. Applying Sec. 11 of
Rule 122, the Court said that although it is only the appellant
who persisted with the present appeal, the rule is that an
appeal in a criminal proceeding throws the whole case open
for review of all its aspects, including those not raised by the
parties. The evidence against and the conviction of both
appellant and Rodriguez are inextricably linked. Hence,
appellants acquittal, which is favorable and applicable to
Rodriguez, should benefit the latter.

In several cases, all the accused appealed from their

judgments of conviction but the conviction became final and
executory. Nevertheless, the Court still applied to them the
favorable judgment in favour of their co-accused. Although
the verdict of guilt with respect to Lim had already became
final and executory, the acquittal of Guingging should be
applied to him given that it is a favorable judgment.
PEOPLE OF THE PHILIPPINES vs. JULIAN ESCAO y
DEEN, VIRGILIO USANA y TOME, and JERRY LOPEZ
CASABAAN
(G.R. Nos. 129756-58, January 19, 2001)

judgment of the appellate court is favorable and applicable to

the latter.
The acquittal of Usana and Lopez based on
reasonable
doubt
should
benefit
movant
Escao
notwithstanding the fact that he withdrew his appeal. The
decision of the Court on the appeal of Usana and Lopez
rendered that the factual findings therein equally support the
conclusion that not all the elements of the offense charged
have been proved and that no criminal liability can, thus, be
imputed to him.

Crimes: violation of the dangerous drug act and illegal

possession of firearms and ammunition

Sec. 12 - Withdrawal of appeal

Place: Makati City

AMADO B. TEODORO vs. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES

RTC: all of the accused were guilty

G.R. No. 103174 July 11, 1996 SECOND DIVISION

(MENDOZA, J.)

SC on the appeal of Usana and Lopez for violation of the

dangerous drug act: acquitted Usana and Lopez
FACTS:
Escao, together with accused-appellants Usana and
Lopez, was charged before the RTC of Makati City in
Criminal Case No. 95-936 with violation of RA 6425 (The
Dangerous Drug Act), for the possession of 3.314 kilograms
of Hashish. Escao and Usana were also charged with
violation of PD 1866 or illegal possession of firearms and
ammunition in Criminal Cases Nos. 95-937 and 95-938,
respectively. The trial court convicted all three in Criminal
Case No. 95-936, Escao in Criminal Case No. 95-937, and
Usana in Criminal Case No. 95-938. Escao filed a Notice of
Appeal but he withdrew the same by motion, which was
granted by the trial court. While Usana and Lopez filed their
notice of appeal to the SC for the Criminal Case No. 95-936
(violation of The Dangerous Drug Act), thereupon the Court
acquitted them for the said crime.
Hence this present motion of Escao, praying that
the Court's Decision acquitting Virgilio T. Usana and Jerry C.
Lopez in Criminal Case No. 95-936 be applied to him as coaccused, on the ground of Section 11(a), Rule 122 of the New
Rules on Criminal Procedure. He then prays that an order be
issued by the Court acquitting him and directing his
immediate release from confinement at the New Bilibid
Prison. He argued that the appeal interposed by his coaccused is applicable and favorable to him and entitles him to
an acquittal pursuant to the said provision.
ISSUE:

Facts:
Topic: Withdrawal of appeal Sec. 12
Crime: grave slander by deed
Petitioner Amado B. Teodoro was vice-president and
corporate secretary of the DBT-Marbay Construction, Inc.,
while complainant, Carolina Tanco-Young, was treasurer of
the same corporation. Petitioner is the brother of the
president of the corporation, Donato Teodoro, while
complainant is the daughter of the chairman of the board of
the corporation, Agustin Tanco. The Board Treasurer,
Carolina Tanco-Young questioned the propriety of having the
document signed as there was, according to her, no such
meeting that ever took place as to show a supposed
resolution to have been deliberated upon. A verbal exchange
of words and tirades took place between the accused
Secretary and the Treasurer. One word led to another up to
the point where Carolina Tanco-Young, the treasurer, either
by implication or expressed domineering words, alluded to
the accused as a "falsifier" which blinded the accusedappellant to extreme anger and rage, thus leading him to slap
Tanco-Young the alleged name caller.
The MeTC found petitioner guilty of simple slander
by deed and sentenced him to pay a fine of P110.00.
Petitioner appealed. It appears that the parties were required
to file their memoranda by the RTC, but petitioner filed
instead a motion to withdraw his appeal and paid the fine of
P110.00 imposed in the judgment of the MTC. RTC denied his
motion and gave petitioner ten (10) days within which to file
his memorandum, but petitioner insisted on the withdrawal
of his appeal, filing for this purpose a motion for
reconsideration of the order denying his motion to
withdrawal appeal. RTC denied reconsideration and rendered
a decision finding petitioner guilty of grave slander by deed.
Petitioner filed a petition for review, which the Court of
Appeals dismissed. Hence this petition.
Issue:
Is the CA correct in dismissing the petition for review?

Whether or not the acquittal of Usana and Lopez can be

applied to Escao.
HELD: YES
Section 11. Effect of appeal by any of several accused.
(a) An appeal taken by one or more of several accused shall
not affect those who did not appeal, except insofar as the

Held: Yes
The Court of Appeals correctly ruled, the withdrawal
of appeal is not a matter of right, but a matter which lies in
the sound discretion of the court and the appellate court. In
this case, petitioner filed a motion to withdraw his appeal
only on June 6, 1985, after he had been required to file his
memorandum and after his counsel had received the
memorandum of the prosecution. Apparently, he realized that
his appeal was likely to result in the imposition of a higher
penalty and he wanted to avoid that possibility. The
prosecution in fact urged in its memorandum that petitioner

be held guilty of grave slander by deed (not just simple

slander as did the MeTC) and demanded that the maximum
of the penalty be imposed on him considering the
aggravating circumstances. Under the present Rule, the
withdrawal of appeal may be allowed "before judgment of the
case on appeal." However, as the Regional Trial Court said,
even if no similar limitation as to the period for the
withdrawal of appeal is provided in the new Rule, after the
parties in this case had been required to file their
memoranda and the memorandum of the prosecution had
been filed and a copy served on appellant, it was too late for
petitioner to move for the withdrawal of the appeal. It was
apparent that petitioner's motion was intended to frustrate a
possible adverse decision on his appeal. That is what exactly
happened in this case. Withdrawal of the appeal at that stage
would allow an apparent error and possibly an injustice to go
uncorrected. Justice is due as much to the State the People
of the Philippines as to the accused.
Rule 124

Sec. 8 - Dismissal of appeal for abandonment

or failure to prosecute
NIO MASAS y MILAN v. PEOPLE OF THE
PHILIPPINES
G.R. No. 177313, December 19, 2007, (CARPIO, J.)
FACTS:
Petitioner Nio Masas and co-accused Gerry Ong
(Ong) were charged before the Regional Trial Court of
Calamba, Misamis Occidental, Branch 36 (RTC-Branch
36) with violation of the Comprehensive Dangerous Drugs
Act of 2002 for having in their possession one sachet of
shabu and for selling two sachets with two strips of
aluminum foil to the poseur buyer. Upon arraignment,
petitioner, assisted by a lawyer from the Public Attorneys
Office (PAO), pleaded not guilty to the crime charged.
After trial, the RTC rendered judgment finding petitioner
guilty as charged and sentencing him to suffer the penalty of
life imprisonment and a fine of P500,000 without subsidiary
imprisonment in case of insolvency. The RTC acquitted coaccused Ong for failure of the prosecution to prove his guilt
beyond reasonable doubt. Petitioner seasonably appealed to
the Court of Appeals but the latter dismissed the appeal for
failure to file the appellants brief within the required period.
On motion for reconsideration, petitioner, thru the PAO,
contended that Section 8 of Rule 124 admits of an exception,
that is, where the appellant is represented by counsel de
oficio.
ISSUE:
WON the Court of Appeals failed to consider the exception in
dismissing the appeal.
RULING:
YES, We take note of the Resolution dated 22
September 2006 where the Court of Appeals declared that
petitioners
appeal
is
deemed
ABANDONED
and
accordingly DISMISSED for failure to file the required
Appellants Brief. It cited Section 1(e), Rule 50 of the Rules
of Court as its basis for dismissing the appeal. This is
erroneous. Rule 50 is under the Rules of Civil Procedure.

Since the instant case is a criminal case, the appropriate rule

is found in the Revised Rules of Criminal Procedure.
As ground for the petition, petitioner invokes
Section 8 of Rule 124 of the Revised Rules of Criminal
Procedure and contends that he was represented by counsel
de oficio and that he was not furnished a prior notice
to
show cause why his appeal should not be dismissed.
The Court of Appeals outrightly dismissed petitioners
appeal without looking into the merits of the case and
disregarded the exception under Section 8 of Rule 124.
Petitioner points out that a mere reading of the decision of
the RTCwill reveal several glaring errors which necessitate a
review of the case.
Section 8 of Rule 124 of the Revised Rules of Criminal
Procedure provides:
SEC. 8. Dismissal of appeal for abandonment or
failure to prosecute. -The Court of Appeals may,
upon motion of the appellee or motu proprio
and with notice to the appellant in either case,
dismiss the appeal if the appellant fails to file his
brief within the time prescribed by this Rule, except
where the appellant is represented by a counsel de
oficio.
The provision is clear and unambiguous. Section 8
provides for an exception in the dismissal of appeal for
failure to file the appellants brief, that is, where the
appellant is represented by a counsel de oficio. This
notwithstanding, also under Section 8, a criminal case may
be dismissed by the Court of Appeals motu proprio and with
notice to the appellant if the latter fails to file his brief within
the prescribed time. The phrase with notice to the
appellant means that a notice must first be furnished the
appellant to show cause why his appeal should not be
dismissed. No notice was given to petitioner to this effect.
Besides, petitioner, in his motion for reconsideration,
reiterated to the court that it cannot order the dismissal of
the appeal without prior notice to the appellant.
A healthy respect for petitioners rights should
caution courts against motu proprio dismissals of
appeals, especially in criminal cases where the liberty of
the accused is at stake. The rules allowing motu proprio
dismissals of appeals merely confer a power and do not
impose a duty; and the same are not mandatory but merely
directory
which
thus
require
a
great
deal
of
circumspection,
considering
all
the
attendant
circumstances. Courts are not exactly impotent to enforce
their orders, including those requiring the filing of
appellants brief. This is precisely the raison detre for
the courts inherent contempt power. Motu proprio
dismissals of appeals are thus not always called for. Although
the right to appeal is a statutory, not a natural, right, it is an
essential part of the judicial system and courts should
proceed with caution so as not to deprive a party of
thisprerogative, but instead, afford every party-litigant the
amplest opportunity for the proper and just disposition of his
cause, freed from the constraints of technicalities. More so
must this be in criminal cases where, as here, the appellant is
an indigent who could ill-afford the services of a counsel de
parte.

Sec. 11 - Scope of Judgment

LORENZO JOSE v. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES
G.R. No. L-38581 March 31, 1976
On February 8, 1968, at the poblacion of
Floridablanca, Pampanga, petitioner Jose was arrested by the
local police. Several criminal cases against him to wit: illegal
discharge of firearm, robbery and illegal possession of
explosives. Jose was acquitted for illegal discharge of firearm
and robbery, but convicted for illegal possession of the hand
grenade that was found on his person at the time of his
arrest.
After promulgation of the judgment, petitioner on
that same day filed his notice of appeal. Nine days thereafter,
petitioner filed a motion praying that the case be reopened to
permit him to present, pursuant to a reservation he had made
in the course of the trial, a permit to possess the hand
grenade in question. The trial court denied the motion mainly
on the ground that it had lost jurisdiction over the case in
view of the perfection of the appeal by the accused.
The CA affirmed the findings of fact and the
judgment of conviction of the court a quo. Forthwith, Jose
filed with the SC this petition for review which was denied
outright. A motion for reconsideration was filed.
The Solicitor General opposed the granting of the
foregoing motion for reconsideration it being admitted by
petitioner that the evidence sought to be introduced by him
at the new trial is not newly discovered evidence, the denial
of the new trial "visibly papers as correct". However, a
Manifestation was submitted by the Solicitor General after
making pertinent inquiries from the PC Chief, Gen. Fidel V.
Ramos who in reply sent his letter, with enclosures, xerox
copies of which are being attached to the manifestation as
Annexes.
Annex B is the appointment dated January 31, 1968
of petitioner Lorenzo Jose as a PC Agent of the Pampanga
Constabulary Command with Code Number P-36-68 and Code
Nanie "Safari" with expiration on December 31, 1968.
Issue:
Did respondent appellate court commit an error of
law and gravely abuse its discretion when it denied
petitioner's motion for new trial "for the reception of (1) the
written permit of petitioner to possess and use handgrenade,
and (2) the written appointment of petitioner as PC agent
with Code No. P-36-68 and code Name 'Safari' (both
documents
are
dated
31
January
1968)"?

Held:
Yes, The CA is correct in its findings that the
evidence sought to be presented by the petitioner do not fall
under the category of newly-discovered evidence because the
same his alleged appointment as an agent of the Philippine
Constabulary and a permit to possess a handgrenade were
supposed to be known to petitioner and existing at the time
of trial and not discovered only thereafter.
It is indeed an established rule that for a new trial to
be granted on the ground of newly discovered evidence, it
must be shown that (a) the evidence was discovered after
trial; (b) such evidence could not have been discovered and

produced at the trial even with the exercise of reasonable

diligence; (c) the evidence is material, not merely cumulative,
corroborative, or impeaching; and (d) it must go to the merits
as ought to produce a different result if admitted.
However, petitioner herein does not justify his
motion for a new trial on newly discovered evidence, but
rather on broader grounds of substantial justice under Sec.
11, Rule 124 of the Rules of Court which provides:
Power of appellate court on appeal. Upon appeal
from a judgment of the Court of First Instance, the appellate
court may affirm or modify the judgment and increase or
reduce the penalty imposed by the trial court, remand the
case to the Court of First Instance for new trial or retrial, or
dismiss the case.
Petitioner asserts, and correctly so, that the
authority of respondent appellate court over an appealed
case is broad and ample enough to embrace situations as the
instant case where the court may grant a new trial or a
retrial for reasons other than that provided in Section 13 of
the same Rule, or Section 2, Rule 121 of the Rules of Court.
While Section 13, Rule 124, and Section 2, Rule 121, provide
for specific grounds for a new trial, i.e. newly discovered
evidence, and errors of law or irregularities committed
during the trial. Section 11, Rule 124 quoted above does not
so specify, thereby leaving to the sound discretion of the
court the determination, on a case to case basis, of what
would constitute meritorious circumstances warranting a
new trial or re-trial.
Characteristically, a new trial has been described as
a new invention to temper the severity of a judgment or
prevent the failure of justice.
Petitioner cites certain peculiar circumstances
obtaining in the case which may be classified as exceptional
enough to warrant a new trial if only to afford him an
opportunity to establish his innocence of the crime charged.
Thus petitioner was facing a criminal prosecution
for illegal possession of a handgrenade in the court below. He
claimed to be an agent of the Philippine Constabulary with a
permit to possess explosives such as the handgrenade in
question. However, he found himself in a situation where he
had to make a choice reveal his Identity as an undercover
agent of the Philippine Constabulary assigned to perform
intelligence work on subversive activities and face possible
reprisals or even liquidation at the hands of the dissidents
considering that Floridablanca the site of the incident, was in
the heart of "Huklandia", or ride on the hope of a possible
exoneration or acquittal based on insufficiency of the
evidence of the prosecution. Without revealing his Identity as
an agent of the Philippine Constabulary, he claimed before
the trial judge that he had a permit to possess the
handgrenade and prayed for time to present the same. The
permit however could not be produced because it would
reveal his intelligence work activities. Came the judgment of
conviction and with it the staggering impact of a five-year
imprisonment. The competent authorities then realized that
it was unjust for this man to go to jail for a crime he had not
committed, hence, came the desired evidence concerning
petitioner's appointment as a Philippine Constabulary agent
and his authority to possess a handgrenade for the protection
of his person, but, it was too late according to the trial court
because in the meantime the accused had perfected his
appeal.

*Judgment of conviction set aside, case remanded to

the court a quo for a new trial only for purpose of allowing
accused to present additional evidence in his defense.
Rule 125 - Procedure in the Supreme Court

Sec. 3 - Decision if opinion is equally divided

PEOPLE OF THE PHILIPPINES v. ROLANDO
ZAMORAGA
G.R. No. 178066 [Formerly G.R. Nos. 150420-21] February 6,
2008

Zamoraga was charged with Rape, as amended by

Section 2 of R.A. No. 7659 and R.A. No. 8353 in two
informations. Appellant is the second cousin of AAAs mother
who frequented, and on occasions spent the night in, their
house. AAA recounted that the first rape occurred sometime
in June 1996a date of which AAA was certain because it
was the opening of school. At 9:00 that night, while she was
fast asleep in her room with her seven-year old sister, she
was surprised to find that appellant was already on top of
her. In that instant, she realized that appellant had no more
clothes on and that he had already removed her own short
pants and panties. Appellant inserted his finger and then his
penis in her vagina and started pumping. AAA felt pain in her
genitalia.
Appellant kept on abusing her many times more
since then. The last time was on 7 November 1997, a date
that she likewise could not forget because it was the eve of
her ninth birthday. AAA confessed her ordeal to her mother
who in turn lost no time in reporting the incident to the
barangay authorities and then submitting her daughter for
medical examination.
Appellant denied the charges. The trial court
dismissed appellants alibi and accordingly sentenced him to
suffer the penalty of reclusion perpetua for each of the two
rapes alleged and proved, as well as to indemnify AAA,
likewise for each count.
The case was directly appealed to the Court
pursuant to Section 3 and Section 10 of Rule 122, Section 13
of Rule 124 and Section 3 of Rule 125 of the Rules on
Criminal Procedure. Pursuant to People v. Mateo, the case
was transferred to the Court of Appeals for intermediate
review. CA affirmed the findings and conclusion of the
court a quo but modifying the award of damages.
ISSUE:
Is there merit to the appeal?

has the unique and unmatched opportunity to observe the

witnesses
and
assess
their
credibility
by
the
various indicia available but not reflected on record. The
demeanor of the person on the stand can draw the line
between fact and fancy, or evince if the witness is lying or
telling the truth. Thus, when the question arises as to which
of the conflicting versions of the prosecution and the defense
is worthy of belief, the assessment of trial courts is generally
given the highest degree of respect if not finality.
Conviction for rape therefore may lie based solely on
the testimony of the victim if the latters testimony is
credible, natural, convincing and consistent with human
nature and the normal course of things. In scrutinizing such
credibility, jurisprudence has established the following
doctrinal guidelines: (1) the reviewing court will not disturb
the findings of the lower court unless there is a showing that
it had overlooked, misunderstood, or misapplied some fact or
circumstance of weight and substance that could affect the
result of the case; (2) the findings of the trial court pertaining
to the credibility of witnesses are entitled to great respect
and even finality as it had the opportunity to examine their
demeanor when they testified on the witness stand; and (3) a
witness who testified in a clear, positive and convincing
manner and remained consistent on cross-examination is a
credible witness.
AAAs account of her harrowing experience is trustworthy
and convincing as there is nary an indication in the records
that her testimony should be seen in a suspicious light. On
the contrary, the records do reveal that AAA testified in a
candid and straightforward manner and in fact remained
resolute and unswerving even on cross-examination, able as
she was to withstand all the rigors of the case including the
medical examination and the trial that followed. Indeed, it is
inconceivable for a child to concoct a sordid tale of so serious
a crime as rape at the hands of a close kin and subject herself
to the stigma and embarrassment of a public trial, if her
motive were other than an earnest desire to seek justice.
Appellant offers an alibi to evade liability. While he
claims the impossibility of his having committed the rapes on
the ground that he was on those dates employed in faraway
places, he nevertheless admitsand so does his witness, BBB
that the place where he retired after work and the place
where the rapes occurred were only two or three kilometers
away from each other. No other principle in criminal law
jurisprudence is more settled than that alibi is the weakest of
all defenses as it is prone to facile fabrication. It is therefore
received in court with much caution and for it to prevail, the
accused must establish by clear and convincing evidence that
it was physically impossible for him to have been at the scene
of the crime when it happened, and not merely that he was
somewhere else. The records show that such is not the case
here as appellant failed to adduce an iota of satisfactory
evidence that it was physically impossible for him to be in
AAAs house at or about the same time the rape occurred.

HELD:
CA Decision affirmed.
None. At the heart of almost all of rape cases is the
issue of credibility of witnesses. This is primarily because the
conviction or acquittal of the accused depends entirely on the
credibility of the victims testimony as only the participants
therein can testify to its occurrence. The manner of assigning
values to declarations of witnesses on the witness stand is
best and most competently performed by the trial judge who