Rule 120 - Judgment

Sec. 1 - Definition and Form

THE PEOPLE OF THE PHILIPPINES v. JERRY
FERRER
G. R. No. 148821, July 18, 2003, EN BANC,
(DAVIDE JR., C.J.)
Jerry Ferrer was the stepfather of the victim.
Sometime in October 1995, when Mary Grace was
already 11 years old, experienced the first of a series
of sexual abuses from appellant. Around 2:00 p.m.,
appellant called Mary Grace to go upstairs at their
house. With appellant's previous lascivious acts etched
in her mind, Mary Grace hesitated but she had no
choice except to obey because appellant had placed a
scythe on her neck. She resisted and covered her
private parts with her hands. Her efforts, however,
proved futile. Still threatening her with the scythe,
appellant pushed her to lie down, pulled out his penis,
placed himself on top of her and then inserted his
penis into her vagina. Thus, from October 1995 to 11
December 1997, appellant sexually abused Mary
Grace, repeatedly and continuously. Ferrer was
convicted for the crime of Rape and was sentenced to
death in the Regional Trial Court of Lanao del Sur.
Hence, an automatic review.
ISSUE: Did the trial court failed to comply with
comply with the requirements of due process and the
constitutional provisions?
HELD: YES.
Violating the Constitutional requirements, the
five-page decision failed to express therein clearly and
distinctly the facts and the law on which it is based.
After a summation of the evidence presented, which
consisted only of the prosecution's considering that
the defense failed to adduce evidence in its behalf, the
trial court immediately declared, in a most sweeping
manner, the guilt of appellant.
In Yao v. Court of Appeals, we had occasion to
caution magistrates to be more circumspect and
diligent in heeding the demand of Section 14, Article
VIII of the Constitution which states:
Section 14. No decision shall be rendered by
any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
and its statutory expression in Section 1, Rule 120
of the Rules of Court, viz.:
Section 1. Judgment; definition and form.
- Judgment is the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition on him of the proper
penalty and civil liability, if any. It must be
written in the official language, personally and
directly prepared by the judge and signed by him
and shall contain clearly and distinctly a
statement of the facts and the law upon which it
is based.
We reiterate
Appeals, thus:

our

ruling

in Yao

v.

Court

of

We have sustained decisions of lower courts as

having substantially or sufficiently complied with the
constitutional injunction notwithstanding the laconic

and terse manner in which they were written and even

if "there (was left) much to be desired in terms of
(their) clarity, coherence and comprehensibility"
provided that they eventually set out the facts and the
law on which they were based, as when they stated
the legal qualifications of the offense constituted by
the facts proved, the modifying circumstances, the
participation of the accused, the penalty imposed and
the civil liability; or discussed the facts comprising the
elements of the offense that was charged in the
information, and accordingly rendered a verdict and
imposed the corresponding penalty; or quoted the
facts narrated in the prosecution's memorandum but
made their own findings and assessment of evidence,
before finally agreeing with the prosecution's
evaluation
of
the
case.
We therefore reiterate our admonition in Nicos
Industrial Corporation v. Court of Appeals, in that
while we conceded that brevity in the writing of
decisions is an admirable trait, it should not and
cannot be substituted for substance; and again
in Francisco v. Permskul, where we cautioned that
expediency alone, no matter how compelling, cannot
excuse non-compliance with the constitutional
requirements.
WHEREFORE, the decision dated 28 November 2000
of the Regional Trial Court of Lanao del Sur, Branch 9,
Marawi City, in Criminal Case No. 2969-98, finding
accused-appellant JERRY FERRER guilty beyond
reasonable doubt of the crime of rape is hereby SET
ASIDE. The records are hereby REMANDED to said
court for further proceedings and for the proper
rendition of judgment in accordance with Section 14,
Article VIII of the Constitution and Section 1, Rule 120
of the Rules of Court. Judge Abdulhakim Amer R.
Ibrahim
is
hereby ADMONISHED to
observe
faithfully the provisions of Article VIII, Section 14 of
the Constitution and Rule 120, Section 1 of the Rules
of Court (Revised Rules of Criminal Procedure as
amended).
Requirements for a valid judgment
PETER BEJARASCO, JR. AND ISABELITA
BEJARASCO v. JUDGE ALFREDO BUENCONSEJO,
et al.
A.M. No. MTJ-02-1417, May 27, 2004, SECOND
DIVISION (Callejo, Sr., J.)
Bejarasco alleged that they were charged by
Fonghe with grave threats and grave oral defamation
before the MTC. According to them, Buenconsejo
inhibited himself from the said cases on the ground of
delicadeza and that Judge Llanos of the RTC
designated Judge Calderon of the MTC to hear and try
the said cases. Judge Calderon conducted continuous
and simultaneous trials, and the cases were submitted
for decision. Unfortunately, Calderon died on without
having rendered judgment on the said cases.
Bejarasco alleged that they were surprised to receive
a notice from the MTC that the criminal cases had
been set for promulgation by Buenconsejo, who was
then designated as presiding judge of the said court.
Bejarasco,
received
another
notice
of
promulgation. The complainants counsel argued that
Buenconsejo could not promulgate the decision since
he had earlier inhibited himself from trying the said

cases, and that the judge who actually heard the case
had already died. Buenconsejo ignored these
arguments and proceeded with the promulgation,
convicting both complainants. The complainants
counsel filed a motion to nullify the decision but it was
denied. During the pendency of their petition, the
complainants requested for an expert examination of
the signatures of Calderon in his decisions. The
document examiner of PNP found that the signatures
of Calderon were forged in the questioned document.
The complainants contended that Buenconsejo is
guilty of ignorance of the law, grave misconduct and
serious irregularity, and is presumed to be the author
of the forged signature of Calderon. The favorable
resolution of their petition for certiorari in Cebu RTC
further showed Buencosejos ignorance of the law and
misconduct.
ISSUE:
Is
the
administratively liable?

respondent

judge

HELD:
YES. A judgment, to be valid, must have been
personally and directly prepared by the judge, and
duly signed by him. Corollarily, a decision or
resolution of the court becomes such, for all legal
intents and purposes, only from the moment of its
promulgation. Promulgation of judgment, in turn,
signifies that on the date it was made, the judge or
judges who signed the decision continued to support
it. If at the time of the promulgation, a judge or
member of a collegiate court has already vacated his
office, his vote is automatically withdrawn. In criminal
cases, promulgation of judgment is made by reading it
in the presence of the accused and any judge of the
court in which it was rendered. Judgment may be
promulgated by the clerk of court only when the judge
is absent or outside the province or city.
It is clear then, that a judge who takes over
the sala of another judge who died during office
cannot validly promulgate a decision penned by the
latter. In fact, decisions promulgated after the judge
who penned the same had been appointed to and
qualified in another office are null and void. To be
binding, a judgment must be duly signed and
promulgated during the incumbency of the judge
whose signature appears thereon. In single courts like
the RTCs and the MTCs, a decision may no longer be
promulgated after the ponente has vacated his office.
Buenconsejo cannot, likewise, claim that his
only participation in the promulgation of the
questioned decision was merely an exercise of a
ministerial duty to enforce the said decision which was
already long rendered by the judge who actually and
completely heard the above-mentioned criminal cases
on the merits. It must be stressed that Buenconsejo
had earlier inhibited himself from the cases in
question, and that Judge Calderon was designated to
hear and try the cases in his stead. The mere fact that
Buenconsejo was designated as Presiding Judge of
Branch 26 following the death of Judge Calderon does
not necessarily mean that his previous inhibition in
relation to the criminal cases in question has been
lifted. That would be an absurdity, as a valid
designation presupposes that the judge so designated
has
not
inhibited
himself
from
the
cases
assigned/raffled to the said branch.

Indeed, it is the duty of a judge to so behave at

all times as to promote public confidence in the
integrity and impartiality of the judiciary. He should
avoid impropriety and the appearance of impropriety
in all activities. Having previously inhibited from the
criminal cases, Buenconsejo should have refrained
from acting thereon, to avoid tainting the Courts good
name and standing as a temple of justice.
Sec. 3 - Judgement for two offenses
PEOPLE OF THE PHILIPPINES v. GLENN DE LOS
SANTOS
FACTS.
Glenn Delos Santos and his 3 friends went to
Bukidnon on his Isuzu Elf truck. On their way, they
decided to pass by a restaurant where Glenn had 3
bottles of beer. On their way to Cagayan de Oro City
from Bukidnon, Glenns truck, hit, bumped, seriously
wounded and claimed the lives of several members of
the PNP who were undergoing an endurance run on
the right lane of the highway wearing black shirts and
shorts and green combat shoes. Twelve trainees were
killed on the spot, 12 were seriously wounded, 1 of
whom eventually died and 10 sustained minor injuries.
At the time of the occurrence, the place of the incident
was very dark as there was no moon. Neither were
there lampposts that illuminated the highway. The trial
court convicted Glenn of the complex crime of
multiple murders, multiple frustrated murders
and multiple attempted murders, with the use of
motor vehicle as the qualifying circumstance.
ISSUE.
HELD.
The Court did not consider the incident as a
product of a malicious intent but rather the result of a
single act of reckless driving, Glenn should be held
guilty of the complex crime of reckless imprudence
resulting in multiple homicide with serious physical
injuries and less serious physical injuries.
Article 48 of the Revised Penal Code provides
that when the single act constitutes two or more grave
or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty
for the most serious crime shall be imposed, the same
to be applied in its maximum period. Since Article 48
speaks of felonies, it is applicable to crimes through
negligence in view of the definition of felonies in
Article 3 as acts or omissions punishable by law
committed either by means of deceit (dolo) or fault
(culpa). In Reodica v. Court of Appeals, we ruled that
if a reckless, imprudent, or negligent act results in two
or more grave or less grave felonies, a complex crime
is committed. Thus, in Lapuz v. Court of Appeals, the
accused was convicted, in conformity with Article 48
of the Revised Penal Code, of the complex crime of
homicide with serious physical injuries and damage
to property through reckless imprudence, and was
sentenced to a single penalty of imprisonment, instead
of the two penalties imposed by the trial court. Also,
in Soriao v. Court of Appeals, the accused was
convicted of the complex crime of multiple homicide
with
damage
to
property
through
reckless
imprudence for causing a motor boat to capsize,

thereby
drowning
passengers.

to

death

its

twenty-eight

The slight physical injuries caused by GLENN

to the ten other victims through reckless imprudence,
would, had they been intentional, have constituted
light felonies. Being light felonies, which are not
covered by Article 48, they should be treated and
punished as separate offenses. Separate informations
should have, therefore, been filed.
It must be noted that only one information (for
multiple murder, multiple frustrated murder and
multiple attempted murder) was filed with the trial
court. However, nothing appears in the record that
GLENN objected to the multiplicity of the information
in a motion to quash before his arraignment. Hence,
he is deemed to have waived such defect. Under
Section 3, Rule 120 of the Rules of Court, when two
or more offenses are charged in a single
complaint or information and the accused fails to
object to it before trial, the court may convict the
accused of as many offenses as are charged and
proved, and impose on him the penalty for each
of them.
WHEREFORE, the decision of the
Regional Trial Court, Branch 38,
Cagayan de Oro City, is hereby SET
ASIDE, and another one is rendered
holding herein accused-appellant
GLENN DE LOS SANTOS guilty
beyond reasonable doubt of (1) the
complex
crime
of
reckless
imprudence resulting in multiple
homicide
with
serious
physical
injuries and less serious physical
injuries, and sentencing him to suffer
an indeterminate penalty of four (4)
years
of prision
correccional,
asminimum, to ten (10) years
of prision mayor, as maximum; and
(2) ten (10) counts of reckless
imprudence
resulting
in
slight
physical injuries and sentencing him,
for each count, to the penalty of two
(2)
months
of arresto
mayor. Furthermore, the awards of
death indemnity for each group of
heirs of the trainees killed are
reduced to P50,000; and the awards
in favor of the other victims are
deleted. Costs
against
accusedappellant.
Sec. 4 - When there is a variance between
PEOPLE OF THE PHILIPPINES, APPELLEE, VS.
JIMMY AQUINO Y VIOLA, APPELLANT.
G.R. No. 139181, October 27, 2003, EN BANC,
DAVIDE JR., C.J.
Crime: Rape Location: Bulacan
Facts
According to the prosecution, Jimmy raped the
daughter of his cousin Lolita, Analyn Dela Cruz from
9am to 11am on May 24, 1996. According to the
Analyn, who was 10 years old at that time, Jimmy
raped her at knife point in the house of the latters
sister. After the incident, Analyn went to her mother to

report
the
incident.
Under
interrogation
by
Councilman Ismael Julian, Jimmy admitted to having
asked Analyn to undress. The statement which was
signed by Jimmy and Lolita, wherein it was stated that
the nature of the complaint was that Jimmy had asked
Analyn to remove her clothes because he wanted to
see what her vagina looked like. Even if the statement
did not mention rape, Lolita signed it thinking it would
merely be used as evidence that she had made a
complaint. However, due to the frustration of Lolita to
the lack of action of the Barangay, they only filed a
criminal complaint against Jimmy on 1997.
In his defense, Jimmy denies having raped
Analyn and claims that he asked the victim to undress
due to his curiosity of the rumors he heard that the
victim had a beautiful vagina. He presented several
witnesses namely Antonio Clemente, Rolando Viola,
Alberto Viola, and Teresita Bacuan. All of which,
testified that they saw the accused together with the
victim in the house of the formers sister at different
intervals from 9-11am on the date of the alleged rape.
All of them testified that because of the houses wall
being dilapidated, they were able to see that there was
no rape that occurred during those times. The defense
also claimed that the victim was simply motivated by
her mother due to a settlement that the latter was
asking from the accused-appellant and due to a land
dispute.
The trial court convicted Jimmy for statutory
rape and sentenced him to death by lethal injection.
Issue
WON the trial court erred in convicting Jimmy
for statutory rape
Decision
Yes, as a general rule the trial court's findings
as to the credibility of witnesses are entitled to great
weight and should largely remain undisturbed. On
review, an appellate court may reverse these findings
when there appears on record some fact or
circumstance of weight and influence which has been
overlooked or misinterpreted that could affect the
result of a case. It is on this ground that the court
finds that the trial court committed a reversible error
in completely disregarding all other evidence contrary
to what was deemed as the irrefutable testimony of
the complainant.
It is true that a woman would not make a
charge of rape for reasons other than to seek justice
for what is the truth. It must be considered, however,
a principle equally fundamental: that evidence to be
worthy of credit must not only proceed from a credible
source but must, in addition, be credible in itself. In
this case, Analyn was unyielding on the point that
Jimmy did the pumping motion while on top of her for
two hours, from 9:00 to 11:00 a.m. Ordinarily, this
improbability would be attributable to confusion or
perhaps a failure to communicate her sense of time or
the sequence of events, especially when accounting
for Analyn's age. The trial judge, therefore,
disregarded this improbability by factoring in the

probability of Jimmy's sexual prowess 1. However, the

adamancy of Analyn as to the continuity of the rape,
when confronted with the presence of children in the
same cramped one-room house, as well as the
declarations of the other witnesses who saw Analyn
and Jimmy at intervals during that time, creates an
uncertainty as to whether a rape could have occurred
during that time.
While the appellant cannot be held guilty of
the charge of rape on the ground of reasonable doubt,
we find that his act of directing Analyn to remove her
lower apparel constitutes an act of lasciviousness
under Article 336 of the Revised Penal Code. Section
4, Rule 120 of the Revised Rules of Criminal
Procedure authorizes, in cases of variance between
the offense charged and that proved, the conviction of
an accused of the offense proved which is included in
the offense charged, or of the offense charged which is
included in that which is proved. In People v.
Caralipio, the court ruled that although an accused is
charged in the information with the crime of rape, he
can be convicted of acts of lasciviousness 2, which is
included in rape.
In this case, the accused-appellant was alone
with Analyn when he ordered her to remove her
clothes. He claimed that his purpose was to see her
private organ because of the alleged rumours that it
(Analyn's genitalia) was "beautiful and big." Such act
was not out of sheer curiosity but rather out of
lascivious curiosity. Notably, on cross-examination, he
testified that he never tried "to peep to see the private
organs" of his sisters to confirm whether they were big
and beautiful. He also acknowledged that it is "very
immoral for a man to look and stare at the private
organ of a lady.
DECISION OF RTC MODIFIED, accused appellant
found guilty of Acts of lasciviousness
PEOPLE OF THE PHILIPPINES, ACCUSEDAPPELLEE, VS. PEDRO FLORES, JR., Y FLORES
ALIAS "PESIONG", ACCUSED-APPELLANT.
FACTS
In December 1996, private complainant Filipina, 11
years old at the time, and her younger sister Catherine
were left to the care of their father, herein accusedappellant, at their family residence in, Urdaneta,
Pangasinan, their mother Marcelina L. Flores having

1 On Analyn's claim that Jimmy raped her for two

hours, the court attributed this to Jimmy's youth and
strong physical condition as a probable "sexual
athlete," or else to a condition called satyriasis, which
describes excessive sexual desire.

2 The elements of the crime of acts of

lasciviousness are as follows: (1) The offender
commits an act of lasciviousness or lewdness; (2) The
act is done (a) by using force or intimidation, (b) when
the offended party is deprived of reason or otherwise
unconscious, or (c) when the offended party is under
12 years of age; and (3)The offended party is another
person of either sex

departed for Singapore to work as an overseas

contract worker. During this period, accused raped
Filipina on two separate occasions. A criminal
complaint was filed against the accused which states:
On the evening of December 1996 at Urdaneta,
Pangasinan, and within the jurisdiction of this
Honorable Court, the above- named accused, with
deliberate intent and by means of force and
intimidation, did then and there, willfully, unlawfully,
criminally and feloniously sexually abuse the herein
complaining witness x x x
After trial, accused was found guilty of statutory
rape and was sentenced to death. Hence, this
automatic review.
ISSUE
WON the case at bar is one of variance between
allegation and proof
RULING
NO. Section 4 of Rule 120 of the Revised Rules
of Criminal Procedure provides:
SEC. 4. Judgment in case of variance between
allegation and proof.When there is variance
between the offense charged in the complaint or
information and that proved, and the offense as
charged is included in or necessarily includes the
offense proved, the accused shall be convicted of
the offense proved which is included in the
offense charged, or of the offense charged which
is included in the offense proved.
The gravamen of the crime of rape is carnal
knowledge or sexual intercourse between a man
and a woman under the circumstances enumerated in
the penal code. In the criminal complaints at bar,
however, no such allegation was made.
In People v. Lito Egan alias Akiao, the Court
ruled that "although the prosecution has proved that
Lenie was sexually abused, the evidence proffered is
inadequate to establish carnal knowledge." Hence,
sexual abuse cannot be equated with carnal
knowledge or sexual intercourse. The allegation in the
instant criminal complaints that accused-appellant
"sexually abused the private complainant cannot thus
be read to mean that accused-appellant had carnal
knowledge or sexual intercourse with the private
complainant. In People v. Cruz, the allegation in the
information that the therein accused-appellant
sexually abused the therein private complainant by
either raping or committing acts of lasciviousness on
her "is not a sufficient averment of the acts
constituting the offense as required under Section 8
[of Rule 110], for these are conclusions of law, not
facts."
The recital of facts in the criminal complaints
simply does not properly charge rape, "sexual abuse"
not being an essential element or ingredient thereof. It
is settled that what characterizes the charge is the
actual recital of facts in the complaint or
information.
Nothing less can be said of the criminal
complaints in the cases at bar. They are void for being
violative of the accused-appellants constitutional right
to be informed of the nature and cause of the
accusation against him.

Case dismissed.

Sec. 5 - When an offense includes or is

EDGAR & TERESITA TEVES v. THE
SANDIGANBAYAN
G.R. No. 154182, 17 December 2004, EN BANC,
(Davide, Jr., C.J.)
Edgar Y. Teves, former Mayor of Valencia,
Negros Oriental, and his wife Teresita Z. Teves was
convicted of violation of Section 3(h) of the Anti-Graft
Law for possessing direct pecuniary interest in the
Valencia Cockpit and Recreation Center in Valencia.
The Sandiganbayan ruled that since Mayor Teves and
Teresita remained married to each other from 1983
until 1992, their property relations as husband and
wife, in the absence of evidence to the contrary, was
that of the conjugal partnership of gains. Hence, the
cockpit is a conjugal property over which Spouses
Teves have pecuniary interest.
ISSUE:
1.

2.

Even if the ownership of Edgar Teves over the

cockpit were transferred to his wife, still he would
have a direct interest thereon because, as correctly
held by respondent Sandiganbayan, they remained
married to each other from 1983 up to 1992, and as
such their property relation can be presumed to be
that of conjugal partnership of gains in the absence of
evidence to the contrary.
The offense proved, therefore, is the second
mode of violation of Section 3(h) of the Anti-Graft Law,
which is possession of a prohibited interest. The
Spouses Teves be convicted thereof, even if it was not
charged in the information as per the variance
doctrine embodied in Section 4, in relation to Section
5, Rule 120, Rules of Criminal Procedure.
The elements of the offense charged in this
case, which is unlawful intervention in the issuance of
a cockpit license in violation of Section 3(h) of the
Anti-Graft Law, are
1.
2.

3.
Can Edgar Teves be convicted of the second
mode of violating Sec. 3 (h) which was the
offense proved despite the fact that the offense
charged was of the first mode?
Is Teresita Teves guilty of violating Sec. 3 (h)
by mere reason of marriage with Mayor Teves?

RULING:
YES, There are, therefore, two modes by which
a public officer who has a direct or indirect financial
or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of the Anti-Graft
Law. The first mode is if in connection with his
pecuniary interest in any business, contract or
transaction, the public officer intervenes or takes part
in his official capacity. The second mode is when he is
prohibited from having such interest by the
Constitution or any law.
The Sandiganbayan correctly absolved the
Spouses Teves of the charge based on the first mode.
However, the evidence for the prosecution has
established that Edgar Teves, then mayor of Valencia,
Negros Oriental, owned the cockpit in question. In his
sworn application for registration of cockpit with the
Philippine Gamefowl Commission, and in his renewal
application, he stated that he is the owner and
manager of the said cockpit. Absent any evidence that
he divested himself of his ownership over the cockpit,
his ownership thereof is rightly to be presumed
because a thing once proved to exist continues as long
as is usual with things of that nature. His affidavit
declaring that he turned over the management of the
cockpit to Mrs. Teresita Z. Teves for the reason that he
could no longer devote a full time as manager of the
said entity due to other work pressure is not
sufficient proof that he divested himself of his
ownership over the cockpit. Only the management of
the cockpit was transferred to Teresita Teves. Being
the owner of the cockpit, his interest over it was
direct.

The accused is a public officer;

He has a direct or indirect financial or
pecuniary interest in any business, contract, or
transaction, whether or not prohibited by law;
and
He intervenes or takes part in his official
capacity in connection with such interest.

On the other hand, the essential ingredients of the

offense proved, which is possession of prohibited
interest in violation of Section 3(h) of the Anti-Graft
Law, are as follows:
1.
2.
3.

The accused is a public officer;

He has a direct or indirect financial or
pecuniary interest in any business, contract or
transaction; and
He is prohibited from having such interest by
the Constitution or any law.

It is clear that the essential ingredients of the

offense proved constitute or form part of those
constituting the offense charged. Put differently, the
first and second elements of the offense charged, as
alleged in the information, constitute the offense
proved. Hence, the offense proved is necessarily
included in the offense charged, or the offense
charged necessarily includes the offense proved,
thereby warranting the conviction of Edgar Teves for
the offense proved.
NO. Certainly, there is no conspiracy in just being
married to an erring spouse. For a spouse or any
person to be a party to a conspiracy as to be liable for
the acts of the others, it is essential that there be
intentional participation in the transaction with a view
to the furtherance of the common design. Except when
he is the mastermind in a conspiracy, it is necessary
that a conspirator should have performed some overt
act as a direct or indirect contribution in the execution
of the crime planned to be committed. The overt act
must consist of active participation in the actual
commission of the crime itself or of moral assistance
to his co-conspirators.
Since no conspiracy was proved, the acquittal of
Teresita Teves is in order.
PEOPLE OF THE PHILIPPINES, Appellee vs.
JOSELITO NOQUE y GOMEZ, Appellant.
G.R. No. 175319, January 15, 2010

TOPIC: When an offense includes or is included

in another
CRIME: CRIMES OF ILLEGAL SALE AND
ILLEGAL POSSESSION OF A REGULATED DRUG
PLACE OF COMMISSION: MANILA
FACTS:
That on or about January 30, 2001, in the City
of Manila, Philippines, Joselito Noque, without being
authorized by law to possess or use any regulated
drug, did then and there willfully, unlawfully and
knowingly have in his possession and under his
custody and control 679.215 grams of white
crystalline substance known as shabu containing
methamphetamine hydrochloride, a regulated
drug,
without
the
corresponding
license
or
prescription thereof.
As the buy-bust operation was successfully
conducted, two Informations were filed before the
RTC of Manila docketed as Criminal Case Nos. 01189458 and 01-189459 charging of the crimes of
illegal sale and illegal possession of a regulated
drug.
The trial court convicted the accused on both
charges. The trial court held that while the
informations alleged methamphetamine hydrochloride
as the drug seized from the appellant, the drug
actually confiscated which was ephedrine, is a
precursor
of
methamphetamine,
i.e.,
methamphetamine is an element of, and is present in
ephedrine.
Ephedrine is the raw material while
methamphetamine is its refined product. Both drugs
have the same chemical formula except for the
presence of a single atom of oxygen which when
removed by means of chemical reaction changes
ephedrine to methamphetamine. Thus, the trial court
ruled that the appellant can be convicted of the
offenses charged, which are included in the crimes
proved. The trial court further held that under
Section 4, Rule 120 of the Rules of Court, a
variance in the offense charged in the complaint
or information and that proved shall result in the
conviction for the offense charged which is
included in the offense proved.
The CA affirmed the trial courts decision. The
CA held that the designations and allegations in the
informations are for the crimes of illegal sale and
illegal possession of regulated drugs. Hence, the
accused appealed the case before the Supreme Court.
ISSUE: WON the fact that what was established
and proven was the sale and possession of
ephedrine warrants the conviction of the
appellant for the sale and possession of
methamphetamine hydrochloride, known as
shabu
RULING:
We agree with the findings of the CA and
the trial court, as well as the testimony of the
forensic chemical officer, that the drug known as
ephedrine has a central nervous stimulating
effect similar to that of methamphetamine. In
fact, ephedrine is an important precursor used in the
clandestine synthesis of methamphetamine, which in

crystallized form is methamphetamine hydrochloride.

The
only
difference
between
ephedrine and
methamphetamine is the presence of a single atom of
oxygen in the former. The removal of the oxygen in
ephedrine will produce methamphetamine.
With
ephedrine
containing
fifty
percent
(50%)
of
methamphetamine hydrochloride if the oxygen content
in the former is removed, the nearly 680 grams of
ephedrine seized from the appellant contains about
340 grams of methamphetamine hydrochloride.
The CA correctly ruled that Sections 4 and
5, Rule 120 of the Rules of Court, can be applied
by analogy in convicting the appellant of the
offenses charged, which are included in the
crimes proved.
Under these provisions, an
offense charged is necessarily included in the
offense proved when the essential ingredients of
the former constitute or form part of those
constituting the latter.
At any rate, a minor
variance between the information and the
evidence does not alter the nature of the offense,
nor does it determine or qualify the crime or
penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for acquittal. In
other words, his right to be informed of the charges
against him has not been violated because where an
accused is charged with a specific crime, he is duly
informed not only of such specific crime but also of
lesser crimes or offenses included therein.
Sec. 6 - Promulgation of judgment
People of the Philippines vs Court of Appeals and
Wilfred N. Chiok
G.R. No. 140285; September 27, 2006; SandovalGutierrez, J.

Facts:
Rufina Chua, sometime in 1989, met Wilfred
Chiok who represented himself as a licensed
stockbroker and an expert in the stock market. She
agreed to invest her money in stocks and to designate
him as her stockbroker. For several years, Rufina
trusted Wilfred in handling her stock investments. In
June 1995, she entrusted to him the amount of
P9,563,900.00 for the purpose of buying shares of
stocks in bulk. After waiting for two weeks, he did not
hear anything from him. When she was able to contact
him, he admitted that he spent the money and issued
two checks as payment but they were dishonored for
insufficient funds. She came to know that respondent
was not a licensed stockbroker but only a telephone
clerk at Bernard Securities, Inc. Immediately, she
caused the filing of an information for estafa against
him with the RTC of Pasig City. During the
arraignment, respondent, assisted by his counsel de
parte, pleaded not guilty and posted bail. The trial
court convicted
him of
estafa. During
the
promulgation of the judgment, respondent and his
counsel failed to appear despite notice. The trial court
issued an Omnibus Order granting the prosecution's
motion for Cancellation of Bail. It also issued a
warrant of arrest against respondent for his failure to
surrender after the lapse of the given period of 5 days.
It was returned unserved because he could not be
found at his given address. The CA issued a TRO
enjoining the implementation of the trial court's

Omnibus Order and issued a writ of preliminary

injunction enjoining the arrest of respondent.
ISSUE: Whether or not the trial court is correct in
cancelling the bail of the respondent and ordering his
arrest
RULING
Yes. The trial court correctly cancelled
respondent's bail because of his failure to appear
during the promulgation of judgment despite notice.
He violated the condition of his bail that he must
appear before the proper court whenever so required
by that court or the Rules. As such, his arrest is proper
in accordance with Section 6, Rule 120 of the Revised
Rules on Criminal Procedure which provides in part,
thus:
SEC. 6. Promulgation of judgment. The judgment
is promulgated by reading it in the presence of the
accused and any judge of the court in which it was
rendered. x x x
The proper clerk of court shall give notice to
the accused personally or through his bondsman or
warden and counsel, requiring him to be present at
the promulgation of the decision. x x x
If the judgment is for conviction and the
failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these
rules against the judgment and the court shall order
his arrest. Within fifteen (15) days from promulgation
of judgment, however, the accused may surrender and
file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at
the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15)
days from notice.
The last paragraph of Section 6 authorizes the
promulgation of judgment in absentia in view of
respondent's failure to appear despite notice. It bears
stressing that the rule authorizing promulgation in
absentia is intended to obviate the situation where the
judicial process could be subverted by the accused
jumping bail to frustrate the promulgation of
judgment. Respondent's absence at the promulgation
of judgment caused him to lose his remedies against
the judgment. In fact, he cannot challenge successfully
the cancellation of his bail by the trial court.
Respondent already demonstrated that he is a fugitive
from justice.
Failure to appear during promulgation
DWARD GARRICK VILLENA vs PEOPLE OF THE
PHILIPPINES
G.R. No. 184092
January 31, 2011
Crime: Robbery Place: Las Pinas City
FACTS:

Edward Garrick Villena, together with six

other policemen3, and Imelda Borcelis were indicted
for the crime of robbery (extortion) before the RTC of
Las Pias City. The RTC rendered its decision
of conviction. However, during the promulgation of
judgment, petitioners failed to appear despite proper
notices to them at their addresses of record. In the
absence of petitioners, the promulgation was made
pursuant to paragraph 4 and 5, Section 6, Rule 120 of
the
Revised
Rules
on
Criminal
Procedure. Consequently, the RTC issued warrants of
arrest against them. Petitioners, through their
separate notices of appeal before the RTC,
explained that they failed to attend because they
did not receive any notice thereof because they
were transferred to another police station. RTC
denied their appeal, stating that the petitioners have
the obligation to inform of the changes in their
address and that their counsels were duly notified.
Moreover, the Court already issued a Warrant of
Arrest which means that they have lost their standing
in court and unless they surrender or submit to the
jurisdiction of the court, they are deemed to have
waived any right to seek relief from the court.
Subsequently, PO3 Macalinao filed his Motion with
Leave of Court while Motion for reconsideration was
jointly filed by Police Inspector Villena, and PO1
Doroja. The RTC granted the motion of PO3 Macalinao
while denied the motion of Villena and Doroja. They
appealed but CA denied the same.
ISSUE: Whether or not the act of filing notices of
appeal was already substantial compliance of Section
6, Rule 120 of the Rules of Court.
HELD: NO
Under Section 6, Rule 120 of the Rules of
Court, the accused who failed to appear at the
promulgation of the judgment of conviction shall
lose the remedies available under the Rules of
Court against the judgment(a) the filing of a
motion for new trial or reconsideration (Rule 121), and
(b) an appeal from the judgment of conviction (Rule
122).
However, the accused is allowed to regain
his standing in court in order to avail of these
remedies by: (a) his surrender, and (b) his filing
of a motion for leave of court to avail of these
remedies, stating therein the reasons for his absence,
within 15 days from the date of promulgation of
judgment. If the trial court finds that his absence was
for a justifiable cause, the accused shall be allowed to
avail of the said remedies within 15 days from notice
or order finding his absence justified and allowing him
the available remedies against the judgment of
conviction.
Thus, petitioners mere filing of notices of
appeal through their new counsel, therein only
explaining
their
absence
during
the
promulgation of judgment, cannot be considered
an act of surrender, despite the fact that said

3 Police Inspector Edward Garrick Villena, (PO1)

Percival Doroja, PO2 Nicomedes Lambas, PO3 Dan
Fermalino, Police Chief Inspector Jovem C. Bocalbos,
PO3 Reynaldo Macalinao, PO1 Alvaro Yumang

notices were filed within 15 days. The term

surrender under Section 6, Rule 120 of the
Rules of Court contemplates an act whereby a
convicted accused physically and voluntarily
submits himself to the jurisdiction of the court to
suffer the consequences of the verdict against
him. The filing of notices of appeal cannot suffice as a
physical and voluntary submission of petitioners to the
RTCs jurisdiction. It is only upon petitioners valid
surrender, and only after proper motion, that they can
avail of the remedy of appeal. Absent compliance with
these requirements, their notices of appeal, the
initiatory step to appeal from their conviction, were
properly denied due course.
Moreover, petitioners insist that their failure
to attend the promulgation of judgment was due to the
lack of notice of the date thereof, allegedly because
they
were
transferred
to
another
police
station. However, petitioners did not proffer any
documentary and convincing proof of their supposed
transfer, not even to inform the court as to which
police station they were transferred. In contrast, their
fellow accused PO3 Macalinao submitted to the RTC a
Certification evidencing his transfer from Police
Station (PS-1), Raxa Bago, Tondo Manila to Police
Station 11, Meisic in Binondo, Manila. Petitioners
were duty bound to inform the RTC of their
transfer, assuming its truth, so that notices may
be sent to their respective new mailing
addresses.
FLORITA TEOPE vs.THE PEOPLE OF THE
PHILIPPINES and THE COURT OF APPEALS
G.R. No. 149687 April 14, 2004 FIRST DIVISION,
AZCUNA, J.
Facts:
Topic: Failure to appear during promulgation
Crime: violation of Batas Pambansa Bilang 22
Place of commission: Dumaguete City
Petitioner was charged with 2 counts of
violation of BP 22 before the Regional Trial Court of
Dumaguete City. Petitioner failed to appear at the
April 24, 1995 hearing. Thus, the RTC declared her
bail bonds forfeited and ordered the bondsman to
produce petitioner within 30 days and show cause why
no judgment should be rendered against her for the
amount of the bonds. On April 27, 1995, the RTC
received an urgent motion for postponement from
petitioners counsel, asking for the resetting of the
May 9 and 12, 1995 hearings. The reasons given were
that on May 9, 1995 petitioners counsel was
scheduled to attend to some urgent family
engagement, while on May 12, 1995 her counsel
already had prior engagements with other courts. The
RTC acceded to the motion and reset the hearings to
June 6,7,8,9 and 13, 1995, but declared these hearings
to be "intransferable considering the fact that the
termination of these cases has been much delayed by
the frequent absence and/or postponements made by
the Accused." On July 6, 1995, the RTC rendered
judgment against the bonds for failure of the
bondsman to produce petitioner and submit an
explanation for the latters failure to appear at the
April 24, 1996 hearing. On January 30, 1997, as
prayed for by petitioners counsel, the RTC issued an
order again resetting the hearing to April 7, 1997. On

February 4, 1997, the RTC issued another order

declaring petitioner as a fugitive from justice and a
warrant of arrest was issued against her. Petitioners
counsel then filed an Omnibus Motion. The RTC
denied the Omnibus Motion for lack of merit on
October 30, 1998. In the same order, the criminal
cases were deemed submitted for decision and an
alias warrant of arrest was issued. RTC rendered a
Joint Judgment finding petitioner guilty on both counts
of violation of B.P. 22.
Petitioner then filed a petition for mandamus
with the Court of Appeals. The Court of Appeals
promulgated the assailed Decision and Resolution
dismissing the petition and denying the subsequent
motion for reconsideration. Thus, the present petition
was instituted.
Issue: Whether or not CA erred in dismissing the case
for mandamus.
Held: No, the Court finds no error committed by the
Court of Appeals in dismissing the case for mandamus.
There is no question that petitioner escaped
after her arraignment. Subsequently, the trial was
ordered to continue but after the accused failed to
appear, the RTC terminated the trial and, thereafter,
promulgated the Joint Judgment of conviction. During
that time petitioner was at large. She remains at large
even while her counsel continues to file various
pleadings on her behalf before the RTC, the Court of
Appeals and this Court. Under the Rules of Court,
petitioner is barred from availing of the remedies
allowed by the rules against the judgment of the RTC,
one of which is the right to file an appeal with the
Court of Appeals. The reason for this rule is because
once an accused escapes from prison or confinement,
or jumps bail or flees to a foreign country, he loses his
standing in court and unless he surrenders or submits
to the jurisdiction of the court, he is deemed to have
waived any right to seek relief from the court. Thus,
having no right to appeal the RTC decision to the
Court of Appeals, the petition for mandamus cannot
prosper. Mandamus will only lie to compel the
performance of a ministerial duty and the petitioner
must show a well-defined, clear and certain right to
warrant the grant thereof.
YOLANDA S. REYES v. JUDGE MARVIN B.
MANGINO
A.M. No.MTJ-05-1575. January 31, 2005,
(CALLEJO, SR., J.)
FACTS:
The instant administrative case arose when
Yolanda S. Reyes filed a verified Affidavit-Complaint
dated January 16, 1998 charging Judge Marvin B.
Mangino with gross ignorance of the law, extortion,
graft and corruption, fraud and deception, relative to
Criminal Case No. 200-97 entitled People of the
Philippines v. Spouses Felix and Yolanda Reyes, for
other deceits punishable under Article 318 of the
Revised Penal Code.
The respondent spoke to the complainant
and told her that he wanted to see her regarding
the case, and suggested that they meet at the lobby of
the Manila Hotel. The complainant acquiesced, and
immediately contacted her lawyer, Atty. Wilfredo
Garcia at his office in Intramuros, Manila, to inform

him of the impending meeting with the respondent

Judge.
Complainant agreed to give him that little
representation in the amount of P20,000.00. That
relying in good faith on Judge Marvin Manginos
assurances and promises that he would eventually
dismiss the case. He even suggested not to appear
anymore and just file the manifestation of not
presenting anymore our defense evidence pursuant to
the proposed strategy he laid out. Judge Marvin
Mangino called up and relayed to the spouses not
to appear anymore, as he would be waiting for an
additional sum of money in the amount of P40,000.00
in cash, as part of the goodwill money for the favour
that he would be giving to the latter.
The
respondent
Judge
denied
the
complainants allegations and that due process of law
was applied in the instant case. The respondent Judge
admitted that on the promulgation date of the
decision, only the prosecutor, the complainant, the
private prosecutor and the counsel for the accused
appeared, and agreed among themselves that they
would just receive copies of the decision. The
respondent
insisted
that
he
only
had
the
opportunity to talk with the parties and their
respective counsels at the scheduled pre-trial
conference. He claimed that the complainants
allegations were false, considering that even the
latters counsel would know that the practice of
making assurances to a party is a breach of
professional ethics and worse, a contemptuous one.
ISSUE
WON Judge Mangino is guilty of gross ignorance of
the law.
RULING:
YES, the Court finds that the respondent
Judge is liable for gross ignorance of the law in
not requiring the presence of the accused during the
promulgation of the decision in Criminal Case No.
200-97, as admitted by him in his Comment on the
complaint.
There are two instances when judgment may
be promulgated even without the personal presence of
the accused: (1) when the judgment is for a light
offense, in which case, the counsel for the accused or
a representative may stand for him; and (2) in
cases where despite due notice to the accused or
his bondsman or warden and counsel, the accused
failed to appear at the promulgation of the decision.
The evident purpose of this latter exception is to
afford the offended party the opportunity to
enforce the award of civil indemnity which could not
otherwise be effected if the decision cannot be
pronounced on account of the absence of the
accused. This case does not fall under any of the
exceptions, since the accused therein were charged
and convicted of other deceits under Article 318 of the
Revised Penal Code, which is a less grave felony, the
imposable penalty being arresto mayor.
It bears stressing the importance of the
promulgation of decisions in criminal cases,
considering that a judgment or sentence does not
become a judgment or sentence in law until the same
has been read or announced to the defendant or has

become part of the record of the court.

Parenthetically, when there is no valid promulgation of
judgment, no right to appeal accrues.
Sec. 7 Modification of Judgement
ROSARIO T. DE VERA v. GEREN A. DE VERA
G.R. No. 172832 April 7, 2009
Rosario accused her spouse Geren and
Josephine Juliano of Bigamy. Upon arraignment, Geren
pleaded guilty. However, in a motion, he prayed that
he be allowed to withdraw his plea for the meantime
in order to prove the mitigating circumstances of
voluntary surrender. The motion was opposed by
Rosario on the ground that not all the elements of
voluntary surrender were present and that it was
raised only as an afterthought. She posited that since
the case was ready for promulgation, Gerens motion
should no longer be entertained. RTC granted Gerens
motion and appreciated the mitigating circumstance
of voluntary surrender. Thus he was sentenced to
suffer the penalty of 6 months of arresto mayor, as
minimum to 4 years, 2 months of prision correccional,
as maximum.
Issue: May petitioner seek the modification of the
courts judgment against Geren based on alleged
mistake in the application of the mitigating
circumstance of voluntary surrender and move to
increase the penalty imposed?
Held: No. Sec. 7, Rule 120 of the Revised Rules of
Criminal Procedure provides:
Sec. 7. Modification of judgment. A judgment of
conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before
appeal is perfected. Except where the death penalty is
imposed, a judgment becomes final after the lapse of
the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or
served, or when the accused has waived in writing his
right to appeal, or has applied for probation.
Simply stated, in judgments of conviction,
errors in the decision cannot be corrected unless the
accused consents thereto; or he himself, moves for
reconsideration of, or appeals from, the decision.
Records show that after the promulgation of
the judgment convicting green of Bigamy, it was
petitioner (as private complainant) who moved for the
reconsideration of the RTC decision. This was timely
opposed by Geren, invoking his right against double
jeopardy. TC correctly denied the motion for lack of
merit and the same should have been likewise denied
pursuant to Sec. 7, Rule 120 of the Revised Rules of
Criminal Procedure.
As explained in People v. Viernes, the rule on
the modification of judgments of conviction had
undergone significant changes before and after the
1964 and 1985 amendments to the Rules. Prior to the
1964 Rules of Court, we held in various cases that the
prosecution (or private complainant) cannot move to
increase the penalty imposed in a promulgated
judgment, for to do so would place the accused in
double jeopardy. The 1964 amendment, however,
allowed the prosecutor to move for the modification or
the setting aside of the judgment before it became
final or an appeal was perfected. In 1985, the Rules

was amended to include the phrase "upon motion of

the accused," effectively resurrecting our earlier
ruling prohibiting the prosecution from seeking a
modification of a judgment of conviction. Significantly,
the present Rules retained the phrase "upon motion of
the accused." Obviously, the requisite consent of the
accused is intended to protect him from having to
defend himself anew from more serious offenses or
penalties which the prosecution or the court may have
overlooked.
Sec. 9 - Does not affect provisions on
suspension of sentence, probation, and parole

An order placing defendant on "probation" is not a

"sentence" but is rather in effect a suspension of the
imposition of sentence. It is not a final judgment but is
rather an "interlocutory judgment" in the nature of a
conditional order placing the convicted defendant
under the supervision of the court for his reformation,
to be followed by a final judgment of discharge, if the
conditions of the probation are complied with, or by a
final judgment of sentence if the conditions are
violated.
Rule 121 - NEW TRIAL OR RECONSIDERATION
Sec. 2 - Grounds for new trial

BACLAYON VS MUTIA
Topic: Does not affect existing provisions governing
suspension of sentence, probation, and parole
Crime: Serious Oral Defamation
Place: Plaridel, Misamis Occidental
FACTS:
Petitioner, a school teacher, was convicted of
the crime of Serious Oral Defamation by the then
Municipal Court of Plaridel, Misamis Occidental,
presided by respondent Mutia for quarreling and
uttering insulting and defamatory words against
Remedios Estillore, principal of the Plaridel Central
School. It was affirmed by the Court of Appeals (now
Intermediate Appellate) and the appellate court,
taking into account the aggravating circumstance of
disregard of the respect due the offended party on
account of her rank and age and the fact that the
crime was committed in the office of the complainant
in the public school building where public authorities
are engaged in the discharge of their duties during
office hours4.
The day her sentence was promulgated she
also applied for probation with respondent judge who
referred the application to a Probation Officer. Upon
recommendation of petitioner's probation for a period
of three (3) years, respondent Judge issued an order
granting petitioner's probation, but modified the
Probation Officer's recommendation by increasing the
period of probation to five (5) years and by imposing
the following conditions: .. (h) To refrain from
continuing her teaching profession.. Petitioner's plea
for deletion of the last condition was rejected by
respondent judge5 Hence, this petition.

SALUDAGA V SANDIGANBAYAN
Topic: Grounds for new trial
Crime: Violation of RA 3019
Place: Municipality of Lavezares
Petition for certiorari7, prohibition and mandamus
under Rule 65 of the 1997 Rules on Civil Procedure
FACTS:
Saludaga and SPO2 Genio were accused for
violation of Sec 3(e) of the Anti-Graft and Corrupt
Practices Act, both public officials, being the

5 ISSUE: WON respondent judge committed grave

abuse of discretion in the imposition of the condition

that petitioner should "refrain from continuing her
teaching profession." YES, to order the petitioner to
refrain from teaching would deprive the students and
the school in general the benefits that may be derived
from her training and expertise. While it is true that
probation is a mere privilege and its grant rests solely
upon the discretion of the court, this discretion is to
be exercised primarily for the benefit of organized
society and only incidentally for the benefit of the
accused. Equal regard to the demands of justice and
public interest must be observed.
In this case,
teaching has been the lifetime and only calling and
profession of petitioner. The law requires that she
devote herself to a lawful calling and occupation
during probation. Yet, to prohibit her from engaging in
teaching would practically prevent her from complying
with the terms of the probation.

ISSUE:

6 Respondents contend that petitioner's final

Should petitioner suffer the accessory penalties of

suspension from public office and from the right to
follow a profession or calling, and that of perpetual
special disqualification from the right of suffrage.

conviction carries with it the accessory penalties in

addition to the principal penalty of imprisonment; and
since petitioner was sentenced to arresto mayor in its
maximum period to prision correccional in its
minimum period, she must likewise suffer the
accessory penalties of suspension from public office
and from the right to follow a profession or calling,
and that of perpetual special disqualification from the
right of suffrage.

HELD:
No, she should not suffer the accessory penalties since
she was granted probation. The imposition of her
sentence of imprisonment was thereby suspended and
necessarily, the imposition of the accessory penalties
was likewise suspended.6

4 Sentence: one year, 8 months, 21 days of arresto

mayor in its maximum period to 2 years and 4 months
of prision correccional in its minimum period.

7 The special civil action for certiorari under Rule 65

of the Rules of Court is intended to correct errors of
jurisdiction or grave abuse of discretion amounting to
lack or excess of jurisdiction.

Municipal Mayor and PNP Member of Lavezares,

Northern Samar entered into a Pakyaw Contract for
the Construction of Barangay Day Care Centers for
Barangays Mac-arthur and Urdaneta, Lavezares,
Northern Samar, each in the amount of P48,500.00,
without conducting a competitive public bidding, thus
depriving the government the chance to obtain the
best, if not, the most reasonable price, and thereby
awarding said contracts to Olimpio Legua, a nonlicense contractor and non-accredited NGO, to the
damage and prejudice of the government. Third
Division of Sandiganbayan granted petitioners Motion
to Quash and dismissed the information.
When the OSP re-filed the Information with
the Fourth Division of the Sandiganbayan, it charged
the petitioners for violation of Section 3(e) of R.A. No.
3019, by giving unwarranted benefit to a private
person, to the prejudice of the government.

the time of the re-filing of the Information, the

prosecution insists on the finding of probable cause,
an exercise within the exclusive province of the Office
of the Ombudsman.
Soriano v. Marcelo held that case law has it
that the determination of probable cause against
those in public office during a preliminary
investigation is a function that belongs to the
Office of the Ombudsman. The Ombudsman has the
discretion to determine whether a criminal case, given
its attendant facts and circumstances, should be filed
or not. It is basically his call. Without good and
compelling reasons, the Court cannot interfere in
the exercise by the Office of the Ombudsman of
its investigatory and prosecutory powers. The only
ground upon which it may entertain a review of the
Office of the Ombudsmans action is grave abuse of
discretion.

Petitioners filed a Motion for Preliminary

Investigation, contending that the failure of the
prosecution
to
conduct
a
new
preliminary
investigation before the filing of the second
Information constituted a violation of the law because
the latter charged a different offensethat is, violation
of Section 3(e) by giving unwarranted benefit to
private parties. Hence, there was a substitution of the
first Information. They argue that assuming that no
substitution took place, at the very least, there was a
substantial amendment in the new information and
that its submission should have been preceded by a
new preliminary investigation. Further, they claim that
newly discovered evidence mandates re-examination
of the finding of a prima facie cause to file the case.

In the case, no evident indication that

respondent Sandiganbayan acted with arbitrariness,
whim or caprice. It committed no error in refusing to
order
the
conduct
of
another
preliminary
investigation. A new preliminary investigation is not
necessary as there was neither a modification of the
nature of the offense charged nor a new allegation.
Such conduct of preliminary investigation anew will
only delay the resolution of the case and would be an
exercise in futility in as much as there was a complete
preliminary investigation actively participated by both
petitioners.

ISSUE:

FACTS:

Did Sandiganbayan act with grave abuse of

discretion amounting to lack or excess of jurisdiction
when it refused to order the preliminary investigation
of the case a quo, although the newly discovered
evidence mandates due re-examination of the finding
that prima facie cause existed to file the case a quo.

Petitioner Tejano, Jr. was Vice-President of

Philippine National Bank (PNB) and Manager of PNB
Cebu (Casino Unit) Branch; and his co-accused
Dolores Arancillo and Amelia Fufunan were Central
Bank Assistant Regional Administrator and CashierReliever, respectively, of PNB Cebu (Casino Unit)
Branch. They were accused of violating Sec 3. Of RA
3019 (Anti-Graft and corrupt practices Act). That
CAYETANO TEJANO, JR. and AMELIA FUFUNAN in
the discharge of their official, administrative duties
and DOLORES ARANCILLO accommodated and
treated the FEBTC (Far East Bank Trust & Co.) check
issued by Arancillo as cash in the PNB-Casino Vault,
thereby substituting its face value of P200,000.00 in
cash, giving unwarranted benefit with manifest
partiality to Dolores Arancillo and prejudicing the
government or the PNB in terms of foregone interest.
It was found that the manner by which the banks
policy on check accommodation was apparently
utilized to cover up a prohibited transaction. For as it
would appear, the check was placed inside the bank
vault in substitution of the cash that was withdrawn,
without the transaction being properly recorded in the
books which consequently made the check to appear
as operating cash for a number of days to the
detriment of the bank and in violation of the trust
reposed on it by its depositors. The Sandiganbayan
rendered a Decision finding the petitioner guilty
beyond reasonable doubt of violation of the offense
charged in which petitioner Tejano filed a Motion for
Reconsideration but the same was denied. Thereafter,
petitioner filed a Motion for New Trial. However, the
Sandiganbayan issued the assailed Resolution denying

HELD:
No, Sandiganbayan did not act with grave
abuse of discretion. Section 2, Rule 121 of the
Rules of Court provides the requisites for newly
discovered evidence which are: (a) the evidence
was discovered after trial (in this case, after
investigation); (b) such evidence could not have
been discovered and produced at the trial with
reasonable diligence; and (c) that it is material,
not
merely
cumulative,
corroborative
or
impeaching, and is of such weight that, if
admitted, will probably change the judgment.
The Pornelos affidavit, which petitioners claim
as newly-discovered, cannot be considered as newly
found evidence because it was already in existence
prior to the re-filing of the case. It was the sole
annexed document to petitioners Supplement to
Motion for Reinvestigation, offered to dispute the
charge that no public bidding was conducted prior to
the execution of the subject.
Also,
the
prosecution
states
in
its
Memorandum that, "after a careful reevaluation of the
documentary evidence available to the prosecution at
the time of the filing of the initial Information, and at

CAYETANO TEJANO VS SANDIGANBAYAN

GR 161778

the petitioners Amended Motion for New Trial and

directed its Division Clerk of Court to make an entry of
judgment saying that it dismissed petitioners motion
for new trial because such remedy was no longer
available to him; that petitioner was not denied due
process; that the evidence finding him guilty under
Section 3(e) of R.A. 3019 was justified; that there was
no newly discovered evidence which would warrant
the reversal of the disputed ruling; and that the
decision had indeed become final and executory.
Hence, this present petition for certiorari.
ISSUE: Whether Sandiganbayan committed grave
abuse of discretion when it denied due course
petitioners motion for new trial.

food and thereafter having carnal knowledge.

Fitzgerald applied for bail which the RTC denied.
Fitzgerald appealed to the CA which the latter
affirmed the decision of the trial court and modified
the penalty to Reclusion Perpetua. Fitzgerald filed a
Motion for New Trial on the ground that new and
material evidence not previously available had
surfaced. The CA granted the motion. Fitzgerald filed
a Motion to Fix Bail with Manifestation but was denied
because evidence of guilt is strong. People of the
Philippines filed with the Court a Petition for Review
on Certiorari.
ISSUE: Did CA divest its jurisdiction to grant bail
when it granted the motion for new trial?

RULING: The petition has no merit.

HELD: No

Section 1, Rule 121 of the Rules on Criminal

Procedure provides that the remedies of motion for
reconsideration and motion for new trial may be
availed of at any time before a judgment of conviction
becomes final, which is within fifteen (15) days from
the promulgation of the judgment.

When this Court grants a new trial, it vacates

both the judgment of the trial court convicting the
accused and the judgment of the CA affirming it, and
remands the case to the trial court for reception of
newly-discovered evidence and promulgation of a new
judgment, at times with instruction to the trial court to
promptly report the outcome. The Court itself does not
conduct the new trial for it is no trier of facts.

In the present case, petitioner had already

availed of a motion for reconsideration, which was
denied by respondent Sandiganbayan. His next
remedy is set forth under Section 7 of P.D. No. 1606,
as amended by R.A. No. 8249, which provides
that decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by petition
for review on certiorari raising pure questions of law
in accordance with Rule 45 of the Rules of
Court. In Neypes v. Court of Appeals, the Court
allowed a fresh period of 15 days within which to
file a notice of appeal in the Regional Trial Court
to be counted from receipt of the order
dismissing a motion for new trial or motion for
reconsideration. This fresh period rule shall also
apply to Rule 45 governing appeals by certiorari to the
Supreme Court. Without an appeal, the judgment
becomes final upon expiration of the period and
execution should necessarily follow. Unfortunately,
petitioner failed to avail of the said remedy within the
15-day period and, instead, filed a motion for new
trial. The petitioner cannot be allowed to resort to
another remedy as a substitute for an appeal.
The right to appeal is a purely statutory right.
Not being a natural right or a part of due process, the
right to appeal may be exercised only in the manner
and in accordance with the rules provided therefor. As
petitioner failed to exercise this right, he cannot
prevent the execution of judgment against him by
resorting to a certiorari petition.
Sec. 6 - Effects of granting a new trial or
PEOPLE OF THE PHILIPPINES v. VICTOR KEITH
FITZGERALD
G.R. NO. 149723, October 27, 2006, FIRST
DIVISION, (AUSTRIA-MARTINEZ, J.)
Victor Keith Fitzgerald, an Australian citizen,
was charged with Violation of Art. III, Section 5,
paragraph (a), subparagraph (5) of Republic Act (R.A.)
No. 7610 and Rape in RTC of Olongapo City,
Zambales. He induced complainant "AAA," a minor, 13
years of age, to engage in prostitution by then and
there showering said "AAA" with gifts, clothes and

However, when the CA grants a new trial, its

disposition of the case may differ, notwithstanding
Sec. 1, Rule 125 of the 2000 Rules on Criminal
Procedure which provides for uniformity in appellate
criminal procedure between this Court and the CA.
Unlike this Court, the CA may decide questions of fact
and mixed questions of fact and law. Thus, when it
grants a new trial under Sec. 14, Rule 124, it may
either (a) directly receive the purported newlydiscovered evidence under Sec. 12, or (b) refer the
case to the court of origin for reception of such
evidence under Sec. 15. In either case, it does not
relinquish to the trial court jurisdiction over the case;
it retains sufficient authority to resolve incidents in
the case and decide its merits.
Moreover, both the RTC and CA were
unanimous in their findings of the existence of strong
evidence of the guilt of respondent. These findings
were not overturned when the CA granted a new
trial. Under Section 6 (b), Rule 121, the grant of
a new trial allows for reception of newlydiscovered evidence but maintains evidence
already presented or on record. And if there has
been a finding that evidence is strong and
sufficient to bar bail, that too subsists unless,
upon
another
motion
and
hearing,
the
prosecution fails to prove that the evidence
against the accused has remained strong. In the
present case, no new evidence had since been
introduced, nor hearing conducted as would diminish
the earlier findings of the RTC and CA on the
existence of strong evidence against respondent.
In sum, the circumstances of the case are
such, that for respondent, bail was not a matter of
right but a mere privilege subject to the discretion of
the CA to be exercised in accordance with the
stringent requirements of Sec. 5, Rule 114. And Sec.
5 directs the denial or revocation of bail upon
evidence of the existence of any of the circumstances
enumerated
therein such
as
those
indicating
probability of flight if released on bail or undue risk

that the accused may commit another crime during

the pendency of the appeal.
WHEREFORE, the petition is GRANTED and the
August 31, 2001 CA Resolution ANNULLED and SET
ASIDE. The bail bond posted by respondent
is CANCELLED.
Let an ORDER OF ARREST
ISSUE against the person of the accused, Victor Keith
Fitzgerald.
A. RAFAEL DINGLASAN JR., v. COURT OF
APPEALS et al.
G.R. No. 145420, September 19, 2006, FIRST
DIVISION (Chico-Nazario, J.)
Elmyra Trading Corp. represented by its President,
Dinglasan, and Antrom, Inc. represented by its
President, Antonio Garcia Jr., entered into a MOA
whereby the parties agreed that Antrom will extend
credit accommodation in favor of Elmyra to finance its
prawn business. The latter, in turn, will issue checks to
guarantee the payment of its obligations. As initial
payment, Dinglasan issued a check with Antrom as
payee. Upon presentment for payment, the said check
was dishonored for insufficiency of funds. An
information charging Dinglasan with violation of B.P.
Blg. 22 was filed before the Makati RTC which he was
later convicted for. An MR was filed which was denied
by the RTC and later he appealed to the CA but it
sustained the RTCs decision. The case was elevated to
the SC but the same was also denied. The RTC issued
a warrant for the arrest of Dinglasan and a writ of
execution for the enforcement of his civil liability and,
at the same time, enjoining him from leaving the
country. However, he urges the SC to uphold
substantial justice, emphasizing that the newly
discovered evidence he seeks to introduce in this case
is so material and of such weight that, if admitted
would probably change the judgment, hence,
suspension of procedural rules is warranted.
The alleged newly discovered evidence
claimed by Dinglasan are the affidavits of Ma. Elena
Dinglasan, in her capacity as Executive Vice-President
and Treasurer of Elmyra, and Ma. Encarnacion Vda.
De Dinglasan, the wife of Mariano Dinglasan, who,
during his lifetime, was the Cashier and Liaison
Officer of the same company. These affidavits,
together with the transmittal letter attached to
Solidbank Manager's Check sent by Ma. Elena
Dinglasan to Antrom, tends to prove that Dinglasan
made good of the check within 5 banking days from
notice of dishonor. He could not, therefore, be validly
convicted for one of the essential elements of the
offense, that is, the drawer failed and refused to make
good the said check within 5 banking days from the
notice of dishonor, is absent.
ISSUE:
Is the evidence sought to be admitted
within the purview of newly discovered evidence as
contemplated by law?
HELD:
NO. The requisites for newly discovered
evidence are: (a) the evidence was discovered after
the trial; (b) such evidence could not have been
discovered and produced at the trial with reasonable
diligence; and (c) that it is material, not merely
cumulative, corroborative or impeaching, and is of
such weight that, if admitted, will probably change the

judgment. These standards, also known as the "Berry

Rule," trace their origin to the case of Berry v. State of
Georgia.
These guidelines have since been followed by
our courts in determining the propriety of motions for
new trial based on newly discovered evidence. It
should be emphasized that the applicant for new trial
has the burden of showing that the new evidence he
seeks to present has complied with the requisites to
justify the holding of a new trial. The threshold
question in resolving a motion for new trial based on
newly discovered evidence is whether the proferred
evidence is in fact a "newly discovered evidence which
could not have been discovered by due diligence." The
question of whether evidence is newly discovered has
two aspects: a temporal one, i.e., when was the
evidence discovered, and a predictive one, i.e., when
should or could it have been discovered.
Applying the foregoing test, Dinglasan insists,
and the affidavits of Ma. Elena Dinglasan and
Encarnacion Vda. De Dinglasan attest, that the
transmittal letter was discovered recently or just
before the time the affidavits were executed. The
records, however, show otherwise. Verily, the claim of
Dinglasan that the alleged evidence sought to be
presented in this case was recently discovered is a
falsity. It is a desperate attempt to mislead this Court
to give due course to a cause that has long been lost.
Dinglasan appeals for the compassion of this Court but
never did so in good faith. It is contrary to human
experience to have overlooked an evidence which was
decisively claimed to have such significance that might
probably change the judgment.
The records are very clear. The transmittal
letter was already offered as evidence in CA-G.R. CR
No. 14138 and was even annexed to the Petition for
Review filed before the CA as Annex "B." Irrefragably,
the letter dated 8 October 1985 is not newly
discovered. It is an attempt to raise again a defense
which was already weighed by the appellate court. A
contrary ruling may open the floodgates to an endless
review of decisions, where losing litigants, in delaying
the disposition of cases, invoke evidence already
presented, whether through an MR or for a new trial,
in guise of newly discovered evidence.
Rule that order granting or denying motion for new
trial not appealable and not subject to special civil
action - not applicable to criminal cases

PEOPLE OF THE PHILIPPINES AND NICOLAS

SONALAN v. HONORABLE COURT OF APPEALS,
HONORABLE MIDPANTAO ADIL, Judge of CFI of
Iloilo AND ANTONIO CALANZA
FACTS.
Antonio Calanza was charged and convicted
by the RTC of homicide and frustrated homicide for
shooting and killing Ponciano Sonalan and wounding
Virginia Sarrol at the balcony of the Cinema Theatre
in Iloilo City. Calanza appealed to the CA but before
filing his Brief, he filed a Motion for New Trial on the
grounds of 1) new and material evidence consisting of
an affidavit by a new witness named Ofelia Ticzon and
2) errors of law or irregularities have been committed
during trial prejudicial to the substantial rights of the

appellant.8 The Solicitor General commented on the

motion averring that the Affidavit of Ticzon aims
merely to impeach the testimonies of Elizabeth Soliven
and David Sustento, and the settled rule is that
"evidence which merely seeks to impeach the evidence
upon which conviction was base would not constitute
a ground for new trial.
CA however granted
Calanzas Motion.
In this petition for certiorari with preliminary
injunction, petitioners seek to annul CAs resolution
granting Calanzas Motion for New Trial in CA GR No.
19694 entitled People vs. Antonio Calanza for
homicide and frustrated homicide.
ISSUE. WON respondent Court of Appeals acted with
grave abuse of discretion in granting the Motion for
New Trial.
HELD.
NO. It cannot be successfully argued that an
Order granting or denying new trial is an interlocutory
order and cannot be the subject of appeal or of a
special civil action. As enunciated in People vs. Bocar
et al., the rule that order granting or denying
motion for new trial is not appealable and not subject
to special civil action does not apply in a criminal
case because in deciding the case anew the trial Court
may acquit the defendant and thereafter "the
prosecution would have no more opportunity of
bringing before the appellate Court the question of the
legality or illegality of the order granting a new trial
because the defendant acquitted may plead double
jeopardy."

8 The errors of law or irregularities claimed by

Calanza to have been committed by the trial Court
refer to its having given credence to the testimony of
Elizabeth Soliven, an allegedly scorned paramour of
Calanza and to the so-called fabricated testimony of
David Sustento, especially considering that
respondent Judge did not himself hear the evidence
and was unable to observe their demeanor on the
stand.