1. ANTONIO M. CARANDANG V. HONORABLE ANIANO A.

DESIERTO
G. R. NO. 148076, January 12, 2011
Petitioner Antonio M. Carandang (Carandang) challenges the
jurisdiction over him of the Ombudsman and of the Sandiganbayan on the
ground that he was being held to account for acts committed while he was
serving as general manager and chief operating officer of Radio Philippines
Network, Inc. (RPN), which was not a government-owned or -controlled
corporation; hence, he was not a public official or employee.
In G.R. No. 148076, Carandang seeks the reversal of the
decision1[1] and resolution2[2] promulgated by the Court of Appeals (CA)
affirming the decision3[3] of the Ombudsman dismissing him from the
service for grave misconduct.
In G.R. No. 153161, Carandang assails on certiorari the resolutions
dated October 17, 20014[4] and March 14, 20025[5] of the Sandiganbayan
(Fifth Division) that sustained the Sandiganbayans jurisdiction over the
criminal complaint charging him with violation of Republic Act No. 3019
(Anti-Graft and Corrupt Practices Act).
Antecedents
Roberto S. Benedicto (Benedicto) was a stockholder of RPN, a
private corporation duly registered with the Securities and Exchange
Commission (SEC).6[6] In March 1986, the Government ordered the
sequestration of RPNs properties, assets, and business. On November 3,
1990, the Presidential Commission on Good Government (PCGG) entered
into a compromise agreement with Benedicto, whereby he ceded to the
Government, through the PCGG, all his shares of stock in RPN.
Consequently, upon motion of the PCGG, the Sandiganbayan (Second
Division) directed the president and corporate secretary of RPN to transfer
to the PCGG Benedictos shares representing 72.4% of the total issued and
outstanding capital stock of RPN.
However, Benedicto moved for a reconsideration, contending that
his RPN shares ceded to the Government, through the PCGG, represented
only 32.4% of RPNs outstanding capital stock, not 72.4%. Benedictos
motion for reconsideration has remained unresolved to this date. 7[7]
Administrative Complaint for Grave Misconduct

On July 28, 1998, Carandang assumed office as general manager

and chief operating officer of RPN.8[8]
On April 19, 1999, Carandang and other RPN officials were
charged with grave misconduct before the Ombudsman. The charge
alleged that Carandang, in his capacity as the general manager of RPN,
had entered into a contract with AF Broadcasting Incorporated despite his
being an incorporator, director, and stockholder of that corporation; that
he had thus held financial and material interest in a contract that had
required the approval of his office; and that the transaction was prohibited
under Section 7 (a) and Section 9 of Republic Act No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees), thereby
rendering him administratively liable for grave misconduct.
Carandang sought the dismissal of the administrative charge on
the ground that the Ombudsman had no jurisdiction over him because RPN
was not a government-owned or -controlled corporation. 9[9]
On May 7, 1999, the Ombudsman suspended Carandang from his
positions in RPN.
On September 8, 1999, Carandang manifested that he was no
longer interested and had no further claim to his positions in RPN. He was
subsequently replaced by Edgar San Luis.10[10]
In its decision dated January 26, 2000,11[11] the Ombudsman
found Carandang guilty of grave misconduct and ordered his dismissal
from the service.
Carandang moved for reconsideration on two grounds: (a) that the
Ombudsman had no jurisdiction over him because RPN was not a
government-owned or -controlled corporation; and (b) that he had no
financial and material interest in the contract that required the approval of
his office.12[12]
The Ombudsman denied Carandangs motion for reconsideration on
March 15, 2000.13[13]
On appeal (CA G.R. SP No. 58204), 14[14] the CA affirmed the
decision of the Ombudsman on February 12, 2001, stating:
The threshold question to be resolved in the present case is
whether or not the Office of the Ombudsman has jurisdiction over the
herein petitioner.

10

11

12

13

14

It is therefore of paramount importance to consider

the definitions of the following basic terms, to wit: A public
office is the right, authority and duty, created and
conferred by law, by which for a given period, either fixed
by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign
functions of the state to be exercised by him for the benefit
of the public. (San Andres, Catanduanes vs. Court of
Appeals, 284 SCRA 276: Chapter I, Section 1, Mechem, A
Treatise on Law of Public Offices and Officers). The
individual so invested is called the public officer which
includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation,
even nominal, from the government as defined in xxx [Sec.
2 (a) of Republic Act No. 3019 as amended]. (Sec. 2 (b) of
Republic Act No. 3019 as amended. Unless the powers
conferred are of this nature, the individual is not a public
officer.
With these time-honored definitions and the
substantial findings of the Ombudsman, We are
constrained to conclude that, indeed, the herein petitioner
(Antonio M. Carandang) is a public officer. Precisely, since
he (Antonio M. Carandang) was appointed by then
President Joseph Ejercito Estrada as general manager and
chief operating officer of RPN-9 (page 127 of the Rollo). As
a presidential appointee, the petitioner derives his
authority from the Philippine Government. It is luce clarius
that the function of the herein petitioner (as a presidential
appointee), relates to public duty, i.e., to represent the
interest of the Philippine Government in RPN-9 and not
purely personal matter, thus, the matter transcends the
petitioners personal pique or pride.
xxx
Having declared earlier that the herein petitioner is a
public officer, it follows therefore that, that jurisdiction over
him is lodged in the Office of the Ombudsman.
It is worth remembering that as protector of the
people, the Ombudsman has the power, function and duty
to act promptly on complaints filed in any form or manner
against officers or employees of the Government, or of
any, subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations,
and enforce their administrative, civil and criminal liability
in every case where the evidence warrants in order to
promote efficient service by the Government to the people.
(Section 13 of Republic Act No. 6770).

xxx
Accordingly, the Office of the Ombudsman is,
therefore, clothed with the proper armor when it assumed
jurisdiction over the case filed against the herein petitioner.
xxx
xxx
It appears that RPN-9 is a private corporation
established to install, operate and manage radio
broadcasting and/or television stations in the Philippines
(pages 59-79 of the Rollo). On March 2, 1986, when RPN-9
was sequestered by the Government on ground that the
same was considered as an illegally obtained property
(page 3 of the Petition for Review; page 2 of the
Respondents Comment; pages 10 and 302 of the Rollo),
RPN-9 has shed-off its private status. In other words, there
can be no gainsaying that as of the date of its
sequestration by the Government, RPN-9, while retaining
its own corporate existence, became a government-owned
or controlled corporation within the Constitutional precept.
Be it noted that a government-owned or controlled
corporation refers to any agency organized as a stock or
non-stock corporation, vested with functions relating to
public needs whether government or proprietary in nature,
and owned by the Government directly or through its
instrumentalities either wholly, or, where applicable as in
the case of stock corporations, to the extent of at least
fifty-one (51) percent of its capital stock; Provided, That
government-owned or controlled corporations may be
further categorized by the department of Budget, the Civil
Service, and the Commission on Audit for purposes of the
exercise and discharge of their respective powers,
functions and responsibilities with respect to such
corporations. (Section 2 [13], Executive Order No. 292).
Contrary to the claim of the petitioner, this Court is of
the view and so holds that RPN-9 perfectly falls under the
foregoing definition. For one, the governments interest to
RPN-9 amounts to 72.4% of RPNs capital stock with an
uncontested portion of 32.4% and a contested or litigated
portion of 40%. (page 3 of the Petition for Review; pages 89 of the Respondents Comment). On this score, it ought to
be pointed out that while the forty percent (40%) of the
seventy two point four percent (72.4%) is still contested
and litigated, until the matter becomes formally settled,
the government, for all interests and purposes still has the
right over said portion, for the law is on its side. Hence, We

can safely say that for the moment, RPN-9 is a government

owned and controlled corporation. Another thing, RPN 9,
though predominantly tackles proprietary functionsthose
intended for private advantage and benefit, still, it is
irrefutable that RPN-9 also performs governmental roles in
the interest of health, safety and for the advancement of
public good and welfare, affecting the public in general.
xxx
Coming now to the last assignment of error- While it
may be considered in substance that the latest GIS clearly
shows that petitioner was no longer a stockholder of record
of AF Broadcasting Corporation at the time of his
assumption of Office in RPN 9 x x x (Petitioners Reply [to
Comment]; page 317 of the Rollo), still severing ties from
AF Broadcasting Corporation does not convince this Court
fully well to reverse the finding of the Ombudsman that
Antonio Carandang appears to be liable for Grave
Misconduct (page 10 of the Assailed Decision; page 36 of
the Rollo). Note that, as a former stockholder of AF
Broadcasting Corporation, it is improbable that the herein
petitioner was completely oblivious of the developments
therein and unaware of the contracts it (AF Broadcasting
Corporation) entered into. By reason of his past (Antonio
Carandang) association with the officers of the AF
Broadcasting Corporation, it is unbelievable that herein
petitioner could simply have ignored the contract entered
into between RPN-9 and AF Broadcasting Corporation and
not at all felt to reap the benefits thereof. Technically, it is
true that herein petitioner did not directly act on behalf of
AF Broadcasting Corporation, however, We doubt that he
(herein petitioner) had no financial and/or material interest
in that particular transaction requiring the approval of his
officea fact that could not have eluded Our attention.

After the denial of his motion for reconsideration, 17[16] Carandang

commenced G.R. No. 148076.
Violation of Section 3 (g), Republic Act No. 3019
On January 17, 2000, the Ombudsman formally charged
Carandang in the Sandiganbayan with a violation of Section 3 (g) of RA
3019 by alleging in the following information, 18[17] viz:
That sometime on September 8, 1998 or thereabouts, in Quezon
City, Philippines and within the jurisdiction of this Honorable Court,
accused ANTONIO M. CARANDANG, a high ranking officer (HRO) being then
the General Manager of Radio Philippines Network, Inc. (RPN-9), then a
government owned and controlled corporation, did then and there willfully,
unlawfully and criminally give unwarranted benefits to On Target Media
Concept, Inc. (OTMCI) through manifest partiality and gross inexcusable
negligence and caused the government undue injury, by pre-terminating
the existing block time contract between RPN 9 and OTMCI for the telecast
of Isumbong Mo Kay Tulfo which assured the government an income of
Sixty Four Thousand and Nine Pesos (P 64,009.00) per telecast and
substituting the same with a more onerous co-production agreement
without any prior study as to the profitability thereof, by which agreement
RPN-9 assumed the additional obligation of taking part in the promotions,
sales and proper marketing of the program, with the end result in that in a
period of five (5) months RPN-9 was able to realize an income of only
Seventy One Thousand One Hundred Eighty Five Pesos (P 71,185.00), and
further, by waiving RPN-9s collectible from OTMCI for August 1-30, 1998 in
the amount of Three Hundred Twenty Thousand and Forty Five Pesos (P
320,045.00).
Carandang moved to quash the information,19[18] arguing that
Sandiganbayan had no jurisdiction because he was not a public official due
to RPN not being a government-owned or -controlled corporation.
The Sandiganbayan denied Carandangs motion to quash on
October 17, 2001.20[19]
After the denial by the Sandiganbayan of his motion for
reconsideration,21[20] Carandang initiated G.R. No. 153161. 22[21]
On May 27, 2002, Carandang moved to defer his arraignment and
pre-trial, citing the pendency of G.R. No. 153161. 23[22]

xxx
WHEREFORE, premises considered and pursuant to
applicable laws and jurisprudence on the matter, the
present Petition for Review is hereby DENIED for lack of
merit. The assailed decision (dated January 26, 2000) of
the Office of the Ombudsman in OMB-ADM-0-99-0349 is
hereby AFFIRMED in toto. No pronouncement as to costs.
SO ORDERED.1516[15]

17
18
19
20
21

15

22

16

23

On July 29, 2002, the Court directed the parties in G.R. No. 153161
to maintain the status quo until further orders.24[23]
On November 20, 2006, G.R. No. 148076 was consolidated with
G.R. No. 153161.25[24]
Issue
Carandang insists that he was not a public official considering that
RPN was not a government-owned or -controlled corporation; and that,
consequently, the Ombudsman and the Sandiganbayan had no jurisdiction
over him. He prays that the administrative and criminal complaints filed
against him should be dismissed. Accordingly, decisive is whether or not
RPN was a government-owned or -controlled corporation.
Ruling
We find the petitions to be meritorious.
It is not disputed that the Ombudsman has jurisdiction over
administrative cases involving grave misconduct committed by the officials
and employees of government-owned or -controlled corporations; and that
the Sandiganbayan has jurisdiction to try and decide criminal actions
involving violations of R.A. 3019 committed by public officials and
employees, including presidents, directors and managers of governmentowned or -controlled corporations. The respective jurisdictions of the
respondents are expressly defined and delineated by the law. 26[25]
Similarly, the law defines what are government-owned or
-controlled corporations. For one, Section 2 of Presidential Decree No. 2029
(Defining Government Owned or Controlled Corporations and Identifying
Their Role in National Development) states:
Section 2. A government-owned or controlled corporation is a
stock or a non-stock corporation, whether performing governmental or
proprietary functions, which is directly chartered by a special law or if
organized under the general corporation law is owned or controlled by the
government directly, or indirectly through a parent corporation or
subsidiary corporation, to the extent of at least a majority of its
outstanding capital stock or of its outstanding voting capital
stock.

(13) government-owned or controlled corporations

refer to any agency organized as a stock or non-stock
corporation vested with functions relating to public needs
whether governmental or proprietary in nature, and owned
by the government directly or indirectly through its
instrumentalities either wholly, or where applicable as in
the case of stock corporations to the extent of at
least 51% of its capital stock.
It is clear, therefore, that a corporation is considered a
government-owned or -controlled corporation only when the Government
directly or indirectly owns or controls at least a majority or 51% share of
the capital stock. Applying this statutory criterion, the Court ruled in
Leyson, Jr. v. Office of the Ombudsman:28[27]
But these jurisprudential rules invoked by petitioner in support of
his claim that the CIIF companies are government owned and/or controlled
corporations are incomplete without resorting to the definition of
government owned or controlled corporation contained in par. (13), Sec.2,
Introductory Provisions of the Administrative Code of 1987, i.e., any agency
organized as a stock or non-stock corporation vested with functions
relating to public needs whether governmental or proprietary in nature,
and owned by the government directly or indirectly through its
instrumentalities either wholly, or where applicable as in the case of stock
corporations to the extent of at least fifty-one (51) percent of its capital
stock. The definition mentions three (3) requisites, namely, first, any
agency organized as a stock or non-stock corporation; second, vested with
functions relating to public needs whether governmental or proprietary in
nature; and, third, owned by the Government directly or through its
instrumentalities either wholly, or, where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) of its capital stock.
In the present case, all three (3) corporations
comprising the CIIF companies were organized as stock
corporations. The UCPB-CIIF owns 44.10% of the
shares of LEGASPI OIL, xxx. Obviously, the below
51% shares of stock in LEGASPI OIL removes this
firm from the definition of a government owned or
controlled corporation. x x x The Court thus concludes
that the CIIF are, as found by public respondent, private
corporations not within the scope of its jurisdiction. 29[28]

Section 2 (13) of Executive Order No. 292 (Administrative Code of 1987)27

[26] renders a similar definition of government-owned or -controlled
corporations:
Section 2. General Terms Defined. Unless the specific words of the
text or the context as a whole or a particular statute, shall require a
different meaning:
xxx

25

Consequently, RPN was neither a government-owned nor a

controlled corporation because of the Governments total share in RPNs
capital stock being only 32.4%.
Parenthetically, although it is true that the Sandiganbayan (Second
Division) ordered the transfer to the PCGG of Benedictos shares that
represented 72.4% of the total issued and outstanding capital stock of

26

28

27

29

24

RPN, such quantification of Benedictos shareholding cannot be controlling

in view of Benedictos timely filing of a motion for reconsideration whereby
he clarified and insisted that the shares ceded to the PCGG had accounted
for only 32.4%, not 72.4%, of RPNs outstanding capital stock. With the
extent of Benedictos holdings in RPN remaining unresolved with finality,
concluding that the Government held the majority of RPNs capital stock as
to make RPN a government-owned or -controlled corporation would be
bereft of any factual and legal basis.
Even the PCGG and the Office of the President (OP) have
recognized RPNs status as being neither a government-owned nor
-controlled corporation.
In its Opinion/Clarification dated August 18, 1999, the PCGG
communicated to San Luis as the president and general manager of RPN
regarding a case involving RPN and Carandang:30[29]
MR. EDGAR S. SAN LUIS
President & General Manager
Radio Philippines Network, Inc.
Broadcast City, Capitol Hills
Diliman, Quezon City
Sir:
This refers to your letter dated August 4, 1999,
seeking PCGGs position on the following:
1. Whether RPN-9 is a GOCC x x x or a private
corporation outside the scope of OGCC and COAs control
given 32% Government ownership x x x.
xxx
It appears that under the RP-Benedicto Compromise
Agreement dated November 3, 1990 validity of which has
been sustained by the Supreme Court in G.R. No. 96087,
March 31, 1992, (Guingona, Jr. vs. PCGG, 207 SCRA 659)
Benedicto ceded all his rights, interest and/or participation,
if he has any, in RPN-9, among others, to the government
which rights, interest and/or participation per PCGGs
understanding, include 9,494,327.50 shares of stock, i.e,
about 72.4% of the total issued and outstanding capital
stock of RPN-9.
Accordingly, the Sandiganbayan (Second Division),
on motion of the government through PCGG, ordered the
president and corporate secretary of the RPN-9 to effect
the immediate cancellation and transfer of the
9,494,327.50
shares
corresponding
to
Benedictos
proprietary interest in RPN-9 to the Republic of the
Philippines c/o PCGG (Sandiganbayans Resolution of
30

February 3, 1998 in Civil Case No. 0034, RP vs. Roberto

Benedicto, et. al.) Benedicto, however, filed a motion for
reconsideration of said Resolution, contending that the
number of RPN-9 shares ceded by him embraces only his
personal holdings and those of his immediate family and
nominees totaling 4,161,207.5 shares but excluding the
RPN-9 shares in the name of Far East Managers and
Investors, Inc. (FEMIE), which is about 40%, as they are
corporate properties/assets of FEMIE and not his personal
holdings. Said motion for reconsideration is still pending
resolution by the Sandiganbayan.
xxx
We agree with your x x x view that RPN-9 is not
a government owned or controlled corporation
within the contemplation of the Administrative Code
of 1987, for admittedly, RPN-9 was organized for
private needs and profits, and not for public needs
and was not specifically vested with functions
relating to public needs.
Neither
could
RPN-9
be
considered
a
government-owned or controlled corporation under
Presidential Decree (PD) No. 2029 dated February 4,
1986, which defines said terms as follows:
Sec.2. Definition. A government owned- or
controlled corporation is a stock or non-stock
corporation, whether performing governmental
or proprietary functions which is directly
chartered by special law or organized under the
general corporation law is owned or controlled by
the government directly, or indirectly through a
parent corporation or subsidiary corporation, to
the extent of at least a majority of its
outstanding capital stock or of its outstanding
voting capital stock;
Provided, that a corporation organized under
the general corporation law under private
ownership at least a majority of the shares of
stock of which were conveyed to a government
corporation in satisfaction of debts incurred with
a government financial institution, whether by
foreclosure or otherwise, or a subsidiary
corporation of a government corporation
organized exclusively to own and manage, or
lease, or operate specific physical assets
acquired by a government financial institution in
satisfaction of debts incurred therewith, and

which in any case by enunciated policy of the

government is required to be disposed of to
private ownership within a specified period of
time, shall not be considered a governmentowned or controlled corporation before such
disposition and even if the ownership or control
thereof is subsequently transferred to another
government-owned or controlled corporation.
A government-owned or controlled corporation is
either parent corporation, i.e., one created by special law
(Sec. 3 (a), PD 2029) or a subsidiary corporation, i.e, one
created pursuant to law where at least a majority of the
outstanding voting capital stock of which is owned by
parent government corporation and/or other governmentowned subsidiaries. (Sec. 3 (b), PD 2029).
RPN-9 may not likewise be considered as an acquired
asset corporation which is one organized under the general
corporation law (1) under private ownership at least a
majority of the shares of stock of which were conveyed to a
government corporation in satisfaction of debts incurred
with a government financial institution, whether by
foreclosure or otherwise, or (2) as a subsidiary corporation
of a government corporation organized exclusively to own
and manage, or lease, or operate specific physical assets
acquired by a government financial institution in
satisfaction of debts incurred therewith, and which in any
case by enunciated policy of the government is required to
be disposed of to private ownership within a specified
period of time (Sec 3 c, PD 2029), for the following reasons:
1.

as noted above, the uncontested (not

litigated) RPN-9 shares of the government is
only 32.4% (not a majority) of its capital
stock;

2.

said 32.4% shares of stock, together with the

contested/litigated 40%, were not conveyed
to a government corporation or the
government in satisfaction of debts incurred
with
government
financial
institution,
whether by foreclosure or otherwise;

3.

RPN-9 was not organized as a subsidiary

corporation of a government corporation
organized exclusively to own and manage, or
lease, or operate specific physical assets
acquired
by
a
government
financial
institution in satisfaction of debts incurred
therewith.

It should be parenthetically noted that the 32.4% or

72.4% shares of stocks were turned over to the
government by virtue of a compromise agreement
between the government and Benedicto in Civil Case No.
0034 which is a civil action against Defendants Roberto S.
Benedicto, Ferdinand E. Marcos, Imelda R. Marcos and
others, to recover from them ill-gotten wealth (Amended
Complaint, Aug. 12, 1987, Civil Case No. 0034, p. 2.) As the
case between the government and Benedicto, his family
and
nominees
was
compromised,
no
judicial
pronouncement was made as to the character or nature of
the assets and properties turned over by Benedicto to the
government whether they are ill-gotten wealth or not.31[30]
The PCGGs Opinion/Clarification was affirmed by the OP itself on
February 10, 2000: 32[31]
February 10, 2000
Mr. Edgar S. San Luis
President and General Manager
Radio Philippines Network Inc.
Broadcasting City, Capitol Hills, Diliman
Quezon City
Dear President San Luis,
xxx
Relative thereto, please be informed that we
affirm the PCGGs opinion that RPNI is not a
government-owned and/or controlled corporation
(GOCC). Section 2 (13), Introductory Provisions of the
Administrative Code of 1987 defines a GOCC as an agency
organized as a stock or non-stock corporation vested with
functions relating to public needs whether governmental or
proprietary in nature, and owned by the government
directly or indirectly through its instrumentalities either
wholly, or where applicable as in the case of stock
corporations to the extent of at least 51% of its capital
stock. As government ownership over RPNI is only
32.4% of its capital stock, pending the final judicial
determination of the true and legal ownership of
RPNI, the corporation is deemed private.33[32]
Even earlier, a similar construction impelled the Ombudsman to
dismiss a criminal complaint for violation of R.A. 3019 filed against certain

31
32
33

RPN officials, as the Ombudsmans resolution dated December 15, 1997

indicates,34[33] a pertinent portion of which is quoted thus:
This is not to mention the fact that the other
respondents, the RPN officials, are outside the jurisdiction
of this Office (Office of the Ombudsman); they are
employed by a private corporation registered with the
Securities and Exchange Commission, the RPN, which is
not a government owned or controlled corporation x
x x3536[34]
Considering that the construction of a statute given by
administrative agencies deserves respect, 37[35] the uniform administrative
constructions of the relevant aforequoted laws defining what are
government-owned or -controlled corporations as applied to RPN is highly
persuasive.
Lastly, the conclusion that Carandang was a public official by
virtue of his having been appointed as general manager and chief
operating officer of RPN by President Estrada deserves no consideration.
President Estradas intervention was merely to recommend Carandangs
designation as general manager and chief operating officer of RPN to the
PCGG, which then cast the vote in his favor vis--vis said positions.38[36]
Under the circumstances, it was RPNs Board of Directors that appointed
Carandang to his positions pursuant to RPNs By-Laws.39[37]
In fine, Carandang was correct in insisting that being a private
individual he was not subject to the administrative authority of the
Ombudsman and to the criminal jurisdiction of the Sandiganbayan. 40[38]
WHEREFORE, we grant the petitions in G.R. No. 148076 and G.R.
No. 153161.
We reverse and set aside the decision promulgated on February
12, 2001 by the Court of Appeals in C.A.-G.R. SP No. 58204, and dismiss
the administrative charge for grave misconduct against the petitioner.
We annul and set aside the resolutions dated October 17, 2001
and March 14, 2002, as well as the order dated March 15, 2002, all issued
by the Sandiganbayan (Fifth Division) in Criminal Case No. 25802, and
dismiss Criminal Case No. 25802 as against the petitioner.
SO ORDERED.
2. LUZ M. ZALDIVIA VS. HON. ANDRES B. REYES, JR., IN HIS
CAPACITY AS ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL
34

35
36
37
38
39
40

COURT, FOURTH JUDICIAL REGION, BRANCH 76, SAN MATEO, RIZAL,

AND PEOPLE OF THE PHILIPPINES
G.R. No. 102342, July 3, 1992
The Court is asked to determine the applicable law specifying the
prescriptive period for violations of municipal ordinances.
The petitioner is charged with quarrying for commercial purposes without a
mayor's permit in violation of Ordinance No. 2, Series of 1988, of the
Municipality of Rodriguez, in the Province of Rizal.
The offense was allegedly committed on May 11, 1990. 1 The referralcomplaint of the police was received by the Office of the Provincial
Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was
filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3
The petitioner moved to quash the information on the ground that the
crime had prescribed, but the motion was denied. On appeal to the
Regional Trial Court of Rizal, the denial was sustained by the respondent
judge. 4
In the present petition for review on certiorari, the petitioner first argues
that the charge against her is governed by the following provisions of the
Rule on Summary Procedure:
Sec. 1. Scope This rule shall govern the procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts, and
the Municipal Circuit Trial Courts in the following cases:
xxx xxx xxx
B. Criminal Cases:
1. Violations of traffic laws, rules and regulations;
2. Violations of rental law;
3. Violations of municipal or city ordinances;
4. All other criminal cases where the penalty prescribed by
law for the offenses charged does not exceed six months
imprisonment, or a fine of one thousand pesos (P1,000.00),
or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising
therefrom. . . . (Emphasis supplied.)
xxx xxx xxx
Sec. 9. How commenced. The prosecution of criminal
cases falling within the scope of this Rule shall be either by
complaint or by information filed directly in court without
need of a prior preliminary examination or preliminary
investigation: Provided, however, That in Metropolitan
Manila and chartered cities, such cases shall be
commenced only by information; Provided, further, That
when the offense cannot be prosecuted de oficio, the
corresponding complaint shall be signed and sworn to
before the fiscal by the offended party.
She then invokes Act. No. 3326, as amended, entitled "An Act to Establish
Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin to Run,"
reading as follows:
Sec. 1. Violations penalized by special acts shall, unless
provided in such acts, prescribe in accordance with the

following rules: . . . Violations penalized by municipal

ordinances shall prescribe after two months.
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and
punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not
constituting jeopardy.
Sec. 3. For the purposes of this Act, special acts shall be
acts defining and penalizing violations of law not included
in the Penal Code. (Emphasis supplied)
Her conclusion is that as the information was filed way beyond the
two-month statutory period from the date of the alleged commission of the
offense, the charge against her should have been dismissed on the ground
of prescription.
For its part, the prosecution contends that the prescriptive period was
suspended upon the filing of the complaint against her with the Office of
the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor
General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal
Procedure, providing as follows:
Sec. 1. How Instituted For offenses not subject to the
rule on summary procedure in special cases, the institution
of criminal action shall be as follows:
a) For offenses falling under the jurisdiction
of the Regional Trial Court, by filing the
complaint with the appropriate officer for
the purpose of conducting the requisite
preliminary investigation therein;
b) For offenses falling under the jurisdiction
of the Municipal Trial Courts and Municipal
Circuit Trial Courts, by filing the complaint
directly with the said courts, or a complaint
with the fiscal's office. However, in
Metropolitan Manila and other chartered
cities, the complaint may be filed only with
the office of the fiscal.
In all cases such institution interrupts the period of
prescription of the offense charged. (Emphasis supplied.)
Emphasis is laid on the last paragraph. The respondent maintains that the
filing of the complaint with the Office of the Provincial Prosecutor comes
under the phrase "such institution" and that the phrase "in all cases"
applies to all cases, without distinction, including those falling under the
Rule on Summary Procedure.
The said paragraph, according to the respondent, was an adoption of the
following dictum in Francisco v. Court of Appeals: 5
In view of this diversity of precedents, and in order to
provide guidance for Bench and Bar, this Court has reexamined the question and, after mature consideration,

has arrived at the conclusion that the true doctrine is, and
should be, the one established by the decisions holding
that the filing of the complaint in the Municipal Court, even
if it be merely for purposes of preliminary examination or
investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court
where the complaint or information is filed can not try the
case on its merits. Several reasons buttress this
conclusion: first, the text of Article 91 of the Revised Penal
Code, in declaring that the period of prescription "shall be
interrupted by the filing of the complaint or information"
without distinguishing whether the complaint is filed in the
court for preliminary examination or investigation merely,
or for action on the merits. Second, even if the court where
the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the
initial step of the proceedings against the offender. Third, it
is unjust to deprive the injured party of the right to obtain
vindication on account of delays that are not under his
control. All that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite
complaint.
It is important to note that this decision was promulgated on May 30, 1983,
two months before the promulgation of the Rule on Summary Procedure on
August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having
been incorporated therein with the revision of the Rules on Criminal
Procedure on January 1, 1985, except for the last paragraph, which was
added on October 1, 1988.
That section meaningfully begins with the phrase, "for offenses not subject
to the rule on summary procedure in special cases," which plainly signifies
that the section does not apply to offenses which are subject to summary
procedure. The phrase "in all cases" appearing in the last paragraph
obviously refers to the cases covered by the Section, that is, those offenses
not governed by the Rule on Summary Procedure. This interpretation
conforms to the canon that words in a statute should be read in relation to
and not isolation from the rest of the measure, to discover the true
legislative intent.
As it is clearly provided in the Rule on Summary Procedure that among the
offenses it covers are violations of municipal or city ordinances, it should
follow that the charge against the petitioner, which is for violation of a
municipal ordinance of Rodriguez, is governed by that rule and not Section
1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under
the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial
Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in
such courts:
(2) Exclusive original jurisdiction over all offenses
punishable with imprisonment of not exceeding four years
and two months, or a fine of not more than four thousand
pesos, or both such fine and imprisonment, regardless of
other imposable accessory or other penalties, including the

civil liability arising from such offenses or predicated

thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving
damage to property through criminal negligence they shall
have exclusive original jurisdiction where the imposable
fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rule on Summary Procedure.
Under Section 9 of the Rule on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." 6 Both parties agree
that this provision does not prevent the prosecutor from conducting a
preliminary investigation if he wants to. However, the case shall be
deemed commenced only when it is filed in court, whether or not the
prosecution decides to conduct a preliminary investigation. This means
that the running of the prescriptive period shall be halted on the date the
case is actually filed in court and not on any date before that.
This interpretation is in consonance with the afore-quoted Act No. 3326
which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings
referred to in Section 2 thereof are "judicial proceedings," contrary to the
submission of the Solicitor General that they include administrative
proceedings. His contention is that we must not distinguish as the law does
not distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule on
Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal
Procedure, the former should prevail as the special law. And if there be a
conflict between Act. No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in the exercise of
its rule-making power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5(5) of the Constitution.
Prescription in criminal cases is a substantive right. 7
Going back to the Francisco case, we find it not irrelevant to observe that
the decision would have been conformable to Section 1, Rule 110, as the
offense involved was grave oral defamation punishable under the Revised
Penal Code with arresto mayor in its maximum period to prision
correccional in its minimum period. By contrast, the prosecution in the
instant case is for violation of a municipal ordinance, for which the penalty
cannot exceed six months, 8 and is thus covered by the Rule on Summary
Procedure.
The Court realizes that under the above interpretation, a crime may
prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary
judicial proceedings until it is too late. However, that possibility should not
justify a misreading of the applicable rules beyond their obvious intent as
reasonably deduced from their plain language. The remedy is not a
distortion of the meaning of the rules but a rewording thereof to prevent
the problem here sought to be corrected.
Our conclusion is that the prescriptive period for the crime imputed to the
petitioner commenced from its alleged commission on May 11, 1990, and
ended two months thereafter, on July 11, 1990, in accordance with Section
1 of Act No. 3326. It was not interrupted by the filing of the complaint with

the Office of the Provincial Prosecutor on May 30, 1990, as this was not a
judicial proceeding. The judicial proceeding that could have interrupted the
period was the filing of the information with the Municipal Trial Court of
Rodriguez, but this was done only on October 2, 1990, after the crime had
already prescribed.
WHEREFORE, the petition is GRANTED, and the challenged Order dated
October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal
Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of
prescription. It is so ordered.
G.R. No. L-53373 June 30, 1987
3. MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL
COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE
PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO
BAUTISTA, ET AL., respondents.
The issue raised in this ease is whether the trial court acting on a motion to
dismiss a criminal case filed by the Provincial Fiscal upon instructions of
the Secretary of Justice to whom the case was elevated for review, may
refuse to grant the motion and insist on the arraignment and trial on the
merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of
the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo
in the Circuit Criminal Court of Lucena City which was docketed as Criminal
Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment
the accused filed a motion to defer arraignment on the ground that there
was a pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the
information. In an order of August 1, 1977, the presiding judge, His Honor,
Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of
the order was denied in the order of August 5, 1977 but the arraignment
was deferred to August 18, 1977 to afford nine for petitioner to elevate the
matter to the appellate court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ of
injunction was filed by the accused in the Court of Appeals that was
docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the
Court of Appeals restrained Judge Mogul from proceeding with the
arraignment of the accused until further orders of the Court. 5 In a
comment that was filed by the Solicitor General he recommended that the
petition be given due course. 6 On May 15, 1978 a decision was rendered
by the Court of Appeals granting the writ and perpetually restraining the
judge from enforcing his threat to compel the arraignment of the accused
in the case until the Department of Justice shall have finally resolved the
petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig,
Jr., resolving the petition for review reversed the resolution of the Office of
the Provincial Fiscal and directed the fiscal to move for immediate
dismissal of the information filed against the accused. 8 A motion to
dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated

April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of
Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition thereto. 10 On November
24, 1978 the Judge denied the motion and set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the
procuting fiscal premised on insufficiency of evidence, as
suggested by the Undersecretary of Justice, evident from
Annex "A" of the motion wherein, among other things, the
Fiscal is urged to move for dismissal for the reason that the
check involved having been issued for the payment of a
pre-existing obligation the Hability of the drawer can only
be civil and not criminal.
The motion's thrust being to induce this Court to resolve
the innocence of the accused on evidence not before it but
on that adduced before the Undersecretary of Justice, a
matter that not only disregards the requirements of due
process but also erodes the Court's independence and
integrity, the motion is considered as without merit and
therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for
December 18, 1978 at 9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the Court of Appeals that was docketed as
CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was
issued by the Court of Appeals against the threatened act of arraignment
of the accused until further orders from the Court. 13 In a decision of
October 25, 1979 the Court of Appeals dismissed the petition and lifted the
restraining order of January 23, 1979. 14 A motion for reconsideration of
said decision filed by the accused was denied in a resolution of February
19, 1980. 15
Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set aside,
respondent judge be perpetually enjoined from enforcing his threat to
proceed with the arraignment and trial of petitioner in said criminal case,
declaring the information filed not valid and of no legal force and effect,
ordering respondent Judge to dismiss the said case, and declaring the
obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from
notice. In the comment filed by the Solicitor General he recommends that
the petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent to
the petition asking that the petition be dismissed. In the resolution of
February 5, 1981, the Second Division of this Court resolved to transfer this
case to the Court En Banc. In the resolution of February 26, 1981, the Court
En Banc resolved to give due course to the petition.

Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon
the sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. 18 The reason
for placing the criminal prosecution under the direction and control of the
fiscal is to prevent malicious or unfounded prosecution by private persons.
19 It cannot be controlled by the complainant. 20
Prosecuting officers under the power vested in them by law, not only have
the authority but also the duty of prosecuting persons who, according to
the evidence received from the complainant, are shown to be guilty of a
crime committed within the jurisdiction of their office. 21 They have equally
the legal duty not to prosecute when after an investigation they become
convinced that the evidence adduced is not sufficient to establish a prima
facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal
determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's
discretion and control of the criminal prosecution. It is not prudent or even
permissible for a Court to compel the fiscal to prosecute a proceeding
originally initiated by him on an information, if he finds that the evidence
relied upon by him is insufficient for conviction. 24 Neither has the Court
any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscal's discretion
and control of criminal prosecutions. 25 Thus, a fiscal who asks for the
dismissal of the case for insufficiency of evidence has authority to do so,
and Courts that grant the same commit no error. 26 The fiscal may reinvestigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt
may not be established beyond reasonable doubt. 27 In a clash of views
between the judge who did not investigate and the fiscal who did, or
between the fiscal and the offended party or the defendant, those of the
Fiscal's should normally prevail. 28 On the other hand, neither an injunction,
preliminary or final nor a writ of prohibition may be issued by the courts to
restrain a criminal prosecution 29 except in the extreme case where it is
necessary for the Courts to do so for the orderly administration of justice or
to prevent the use of the strong arm of the law in an op pressive and
vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any limitation
or control. The same is subject to the approval of the provincial or city
fiscal or the chief state prosecutor as the case maybe and it maybe
elevated for review to the Secretary of Justice who has the power to affirm,
modify or reverse the action or opinion of the fiscal. Consequently the
Secretary of Justice may direct that a motion to dismiss the rase be filed in
Court or otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal action.

The Court thereby acquires jurisdiction over the case, which is the
authority to hear and determine the case. 32 When after the filing of the
complaint or information a warrant for the arrest of the accused is issued
by the trial court and the accused either voluntarily submited himself to
the Court or was duly arrested, the Court thereby acquired jurisdiction over
the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. 34 While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the rase
thereafter should be addressed for the consideration of the Court, 35 The
only qualification is that the action of the Court must not impair the
substantial rights of the accused. 36 or the right of the People to due
process of law. 36a
Whether the accused had been arraigned or not and whether it was due to
a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? A state prosecutor to handle the
case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be
expected to handle the prosecution of the case thereby defying the
superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is
to see that justice is done and not necessarily to secure the conviction of
the person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its
own independent judgment as to whether the accused should be convicted
or acquitted. The fiscal should not shirk from the responsibility of
appearing for the People of the Philippines even under such circumstances
much less should he abandon the prosecution of the case leaving it to the
hands of a private prosecutor for then the entire proceedings will be null
and void. 37 The least that the fiscal should do is to continue to appear for
the prosecution although he may turn over the presentation of the
evidence to the private prosecutor but still under his direction and control.
38

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case as its dismissal or

the conviction or acquittal of the accused rests in the sound discretion of

the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation.
In order therefor to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should be left entirely for the determination
of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs.
SO ORDERED.
4. STATE PROSECUTOR RINGCOR B. PINOTE V. JUDGE ROBERTO L.
AYCO
A.M. No. RTJ 05 1944, December 13, 2005
On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26, Regional
Trial Court (RTC) of South Cotabato allowed the defense in Criminal Case
No. 1771 TB, People v. Vice Mayor Salvador Ramos, et al., for violation of
Section 3 of Presidential Decree (P.D.) No. 1866, to present evidence
consisting of the testimony of two witnesses, even in the absence of State
Prosecutor Ringcar B. Pinote who was prosecuting the case.
State Prosecutor Pinote was on August 13 and 20, 2004 undergoing
medical treatment at the Philippine Heart Center in Quezon City, hence, his
absence during the proceedings on the said dates.
On the subsequent scheduled hearings of the criminal case on August 27,
October 1, 15 and 29, 2004, State Prosecutor Pinote refused to crossexamine the two defense witnesses, despite being ordered by Judge Ayco,
he maintaining that the proceedings conducted on August 13 and 20, 2004
in his absence were void.
State Prosecutor Pinote subsequently filed a Manifestation on November
12, 2004 before the trial court, he restating why he was not present on
August 13 and 20, 2004, and reiterating his position that Judge Aycos act
of allowing the defense to present evidence in his absence was erroneous
and highly irregular. He thus prayed that he should not be coerced to crossexamine those two defense witnesses and that their testimonies be
stricken off the record.
By Order issued also on November 12, 2004, Judge Ayco, glossing over the
Manifestation, considered the prosecution to have waived its right to crossexamine the two defense witnesses.

Hence, arose the present administrative complaint lodged by State

Prosecutor Pinote (complainant) against Judge Ayco (respondent), for Gross
Ignorance of the Law, Grave Abuse of Authority and Serious Misconduct.
By Comment dated March 18, 2005, respondent proffers that complainant
filed the complaint to save his face and cover up for his incompetence and
lackadaisical handling of the prosecution of the criminal case as in fact
complainant was, on the request of the Provincial Governor of South
Cotabato, relieved as prosecutor in the case by the Secretary of Justice.
And respondent informs that even after complainant was already relieved
as the prosecutor in the case, he filed a motion for his inhibition without
setting it for hearing.
On the above-said Manifestation filed by complainant before the trial court
on November 12, 2004, respondent brands the same as misleading and
highly questionable, complainants having undergone medical treatment at
the Philippine Heart Center on August 13 and 20, 2004 having been
relayed to the trial court only on said date.
On his Order considering the prosecution to have waived presenting
evidence, respondent justifies the same on complainants failure to formally
offer the evidence for the prosecution despite several extensions of time
granted for the purpose.
Finally, respondent proffers that no substantial prejudice was suffered by
the prosecution for complainant was permitted to cross examine the two
defense witnesses but he refused to do so.
By way of counter-complaint, respondent charges complainant with
Contempt of Court and Grave Misconduct and/or Conduct Unbecoming of a
Member of the Bar and as an Officer of the Court.
On evaluation of the case, the Office of the Court Administrator (OCA),
citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, finds
respondent to have breached said rule and accordingly recommends that
he be reprimanded therefor, with warning that a repetition of the same or
similar act shall be dealt with more severely.
Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads:
Sec. 5. Who must prosecute criminal actions. - All criminal
actions commenced by a complaint or information shall be
prosecuted under the direction and control of the
prosecutor. In case of heavy work schedule or in the event
of lack of public prosecutors, the private prosecutor may
be authorized in writing by the Chief of the Prosecution
Office or the Regional State Prosecution Office to prosecute
the case subject to the approval of the Court. Once so
authorized to prosecute the criminal action, the private
prosecutor shall continue to prosecute the case up to the
end of the trial even in the absence of a public prosecutor,
unless the authority is revoked or otherwise withdrawn.
x x x (Underscoring supplied)
Thus, as a general rule, all criminal actions shall be prosecuted under the
control and direction of the public prosecutor.

If the schedule of the public prosecutor does not permit, however, or in

case there are no public prosecutors, a private prosecutor may be
authorized in writing by the Chief of the Prosecution Office or the Regional
State Prosecution Office to prosecute the case, subject to the approval of
the court. Once so authorized, the private prosecutor shall continue to
prosecute the case until the termination of the trial even in the absence of
a public prosecutor, unless the authority is revoked or otherwise
withdrawn.
Violation of criminal laws is an affront to the People of the Philippines as a
whole and not merely to the person directly prejudiced, he being merely
the complaining witness.[1] It is on this account that the presence of a
public prosecutor in the trial of criminal cases is necessary to protect vital
state interests, foremost of which is its interest to vindicate the rule of law,
the bedrock of peace of the people.[2]
Respondents act of allowing the presentation of the defense witnesses in
the absence of complainant public prosecutor or a private prosecutor
designated for the purpose is thus a clear transgression of the Rules which
could not be rectified by subsequently giving the prosecution a chance to
cross-examine the witnesses.
Respondents intention to uphold the right of the accused to a speedy
disposition of the case, no matter how noble it may be, cannot justify a
breach of the Rules. If the accused is entitled to due process, so is the
State.
Respondents lament about complainants failure to inform the court of his
inability to attend the August 13 and 20, 2004 hearings or to file a motion
for postponement thereof or to subsequently file a motion for
reconsideration of his Orders allowing the defense to present its two
witnesses on said dates may be mitigating. It does not absolve respondent
of his utter disregard of the Rules.
WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to pay
a fine FIVE THOUSAND PESOS (P5,000.00) with warning that a repetition of
the same or similar acts in the future shall be dealt with more severely.
Respecting the counter-complaint against complainant State Prosecutor
Ringcar B. Pinote, respondent is advised that the same should be lodged
before the Secretary of Justice.
SO ORDERED.
5. PEOPLE OF THE PHILIPPINES V. RENANDANG MAMARUNCAS,
PENDATUM 5. AMPUAN, AND BAGINDA PALAO
G. R. No. 179497, January 25, 2012
The assessment of the credibility of witnesses by the trial court is the
center of this controversy. The well-known rule, though subject to certain
recognized exceptions, is that findings of facts and assessment of
credibility of witnesses are matters best left to the trial court. Hence,
[u]nless certain facts of substance and value were overlooked which, if

considered, might affect the result of the case, the trial courts assessment
must be respected.1
Assailed in the present appeal is the June 30, 2006 Decision 2 of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 00196 which affirmed with
modification the July 19, 1999 Decision 3 of the Regional Trial Court (RTC) of
Iligan City, Branch 06 in Criminal Case No. 06-6150 convicting Renandang
Mamaruncas (Mamaruncas) and Pendatum Ampuan (Ampuan) (appellants)
of the crime of murder.
On February 9, 1996, the following Information4 for murder was filed
against Mamaruncas, Baginda Palao (Palao) alias Abdul Wahid Sultan and
Ampuan.5
That on or about February 1, 1996, in the City of
Iligan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, except for others
whose cases are still under preliminary investigation,
conspiring with and confederating together and mutually
helping each other, armed with deadly weapon, to wit: a
caliber .45 pistol, by means of treachery and evident
premeditation, and with intent to kill, did then and there
willfully, unlawfully and feloniously attack, shoot and
wound one Baudelio R. Batoon, thereby inflicting upon him
the following physical injuries, to wit:
Cardio respiratory arrest
Hypovolemic shock
Multiple gunshot wound
which caused his death.
Contrary to and in violation of Article 248 of the Revised
Penal Code with the aggravating circumstances of
treachery and evident premeditation.
Only Mamaruncas and Ampuan appeared at the scheduled arraignment on
May 20, 1996. Their co-accused, Palao alias Abdul Wahid Sultan (Abdul),
remains at large. Appellants pleaded not guilty 6 and trial proceeded
against them.
Factual Antecedents
The facts of the case, as summarized by the Office of the Solicitor General
(OSG) in its brief and substantiated by the transcripts of stenographic
notes of the proceedings, are as follows:
Around noontime on February 1, 1996, Baudelio
Batoon, Richard Batoon, Juanito Gepayo and a certain
Nito were working on vehicles inside Baudelio Batoons
auto repair shop situated along the highway in Tubod,
Baraas, Iligan City.
Baginda Palao then entered the shop accompanied
by appellants Renandang Mamaruncas and Pendatum
Ampuan. Baginda Palao wore desert camouflage fatigues;
while his two (2) companions wore Philippine Army tropical
green fatigues. Baginda Palao showed Baudelio Batoon an
arrest warrant and told the latter he was serving it against
Batoon.

The arrival of Baginda Palaos group prompted

Juanito Gepayo and Richard Batoon to stop their work and
observe what was happening.
Baudelio Batoon told Baginda Palao to just wait
awhile, as they would settle the matter after he [Batoon]
[finishes] tuning-up an engine he had been working on.
Baginda Palao reacted by slapping the victims
stomach and pointing a .45 caliber pistol at him. Baudelio
Batoon then tried to grab Palaos gun, causing the two of
them to grapple for the same. As these two wrestled for
control of the gun, Renandang Mamaruncas, who was
behind Baudelio Batoon, shot from behind Batoons right
thigh with a .38 cal. homemade gun. Pendatum Ampuan,
who was also standing behind Baudelio Batoon, followed
up by shooting Batoons left arm pit with a .45 cal.
[homemade] pistol. Baudelio Batoon fell to the ground and
Baginda Palao finished [him off] with a single .45 cal. shot
to the back. Juanito Gepayo and Richard Batoon saw the
entire scene, stunned and unable to do anything. From
their vantage points three (3) to four (4) meters away,
these witnesses had a clear and unobstructed view of the
entire incident.
Meanwhile, Police Inspector Graciano Mijares, then
Commanding Officer of the Iligan City PNP Mobile Force
Company, was riding a civilian car along the highway,
heading towards Iligan City proper. He was accompanied
by his driver, SPO3 William Yee, and SPO3 George Alejo.
They heard the gunshots emanating from the auto repair
shop at Baraas, prompting Inspector Mijares to order his
driver to stop the car. They alighted and proceeded to the
source of the gunshots. At the repair shop, they saw three
(3) men in camouflage gear with guns drawn and pointed
at a person already lying on the ground. Inspector Mijares
group shouted at the camouflaged gunmen to stop what
they were doing and to drop their firearms, at the same
time announcing that they (Mijares group) were
policemen.
The camouflaged gunmen reacted by firing at the
policemen. The latter fired back. During the exchange of
gunfire, Baginda Palao ran behind the Batoon house, while
Renandang Mamaruncas and Pendatum Ampuan ran
towards the road and a nearby car. Inspector Mijares was
able to hit Mamaruncas and Ampuan, while SPO3 Yee
likewise hit Ampuan. Mamaruncas, who managed to get
inside the car, and Ampuan were then captured by the
policemen. The lawmen also gave chase to Baginda Palao;
but he escaped.
Other responding policemen brought Mamaruncas
and Ampuan to the hospital for treatment and they were
eventually placed under detention. Baudelio Batoon was

brought to the hospital by his wife; but he was pronounced

dead on arrival.
Based on the necropsy examination of the victims
body, Dr. Leonardo Labanen established that the three (3)
gunshot wounds found on the body of Baudelio Batoon
(i.e., at the right thigh, left armpit and back) were inflicted
at close range due to the presence, or at least traces, of
gunpowder burns.7
Only appellants testified for their defense. Their testimonies, as
narrated by the trial court, are as follows:
Accused Renandang Mamaruncas testified that he
is 34 years old, married, carpenter and a resident of
Piagapo, Lanao del Sur. On the morning of February 1,
1996, he was in Marawi City. He decided to come down to
Iligan City to see a movie. He left Marawi at 7:00 a.m. and
upon arrival at the Tambacan terminal in Iligan City, he
went to the house of his cousin. Later, he changed his mind
about going to a movie and returned to the Tambacan
terminal in order to go back to Marawi City. At about 11:30
a.m., Abdul Wahid Sultan arrived with Pendatum Ampuan
on board a car driven by Aminola. Abdul Wahid invited him
to go with them because he will collect some money and
afterwards they will have some enjoyment. He agreed and
sat at the rear seat behind the driver. Abdul Wahid was at
the front seat with Pendatum behind at the back seat. They
drove to Baraas. They stopped at a crossing and Abdul
Wahid and Pendatum Ampuan alighted. Before walking
away, Abdul Wahid handed to Renandang a .38 cal[.]
revolver with instructions to remain in the car and [keep]
watch. At first he refused but Abdul Wahid insisted so he
accepted the gun. Abdul Wahid and Pendatum walked to
the shop leaving the rear right door open. About ten
minutes later, he heard three gunshots. He moved to the
rear seat where the door was open and saw policemen,
who arrived and surrounded the car. He placed the gun on
the seat and raised his hands as a sign of surrender. Then
with his right hand, he closed the car door. Just as the door
closed, the policemen shot him on the forearm and chest
below the right nipple. He lost consciousness and regained
it only at the hospital.
He further testified that Abdul Wahid Sultan is an
old friend. He is also known as Baginda Palao. Pendatum
Ampuan is not known as Abdul Wahid Sultan.
He also declared that the statement of Juanito
Gepayo that only Abdul Wahid Sultan and Pendatum
Ampuan entered the shop and shot Baudelio Batoon is true
and that the testimony of P/Insp. Mijares that he also shot
the victim is not true. He denied any part in the shooting to
death of Baudelio Batoon.
Accused Pendatum Ampuan testified that he is 20
years old, single, student and a resident of Piagapo, Lanao

del Sur. On January 31, 1996 at about 6:00 a.m., he left

Marawi City for Iligan City on board a passenger Armak
jeepney. He alighted at the terminal behind the Gaisano
Superstore and at exactly 7:00 a.m., he entered the store
and went to the upper storey to shop. When he came out,
he met a friend name[d] Bessah. Together they walked to
the Maharlika Theater but then Bessah expressed the
intention to go home to Marawi City. He accompanied
Bessah to the Tambacan terminal. Then he proceeded to
the house of his Uncle Ali in Cabaro. (This is a place North
of the city and at the opposite side from Tambacan which is
South of the city). He arrived there at noon. He stayed
overnight at his Uncle Alis house. At about 9:00 a.m., the
following day, February 1, 1996, he left the house of his
uncle. Outside, he met Baginda Palao, who was looking for
a certain Baser, a policeman. He wanted the latter to help
him collect a debt. They went to the terminal at the back of
Gaisano store but did not find Baser. Baginda told him to
wait while he will look for Baser inside the Gaisano store.
Baginda returned without having found Baser and once
again he told him to wait while Baginda will look for a car. A
little later, Baginda returned on board a car driven by one
Aminola Basar. They went to the Tambacan terminal but
again did not find Baser. Instead, they saw Renandang
Mamaruncas. Baginda invited the latter to go with them to
Baraas to collect a debt. Renandang entered the car and
they proceeded to Baraas. The car stopped at a place near
a shop. Baginda instructed him and Renandang to remain
in the car because he was going out to collect the debt.
Baginda left the car and entered the shop. About ten
minutes later, he heard shouting followed by gunfire. He
stepped out of the car to verify and saw Baginda Palao
[shoot] the victim. He retreated to the car as the police led
by Capt. Mijares arrived. They confiscated the car key and
arrested them except Baginda Palao who escaped. They
were taken to the hospital due to injuries. In his case, the
sustained wounds when mauled by the children of the
victim but in another breath he admitted that his injury
was a gunshot wound when he was caught in the cross fire
as the police shot Renandang Mamaruncas. He was inside
the car when he was hit. He further admitted that Baginda
Palao is known as Abdul Wahid Sultan. He denied shooting
Baudelio Batoon.8
Ruling of the Regional Trial Court
The RTC debunked appellants defense of denial and held them
guilty as principals by direct participation in the killing of Baudelio Batoon
(Baudelio). It gave full faith and credence to the evidence of the
prosecution especially on the presence of conspiracy among the
malefactors and rendered a verdict of conviction, thus:
WHEREFORE, the court finds the accused Renandang
Mamaruncas and Pendatum Ampuan GUILTY beyond

reasonable doubt as principals of the crime of murder

qualified by treachery defined and penalized in Art. 248 of
the Revised Penal Code as amended, without the presence
of any other aggravating circumstances and hereby
sentences each of them to suffer the penalty of RECLUSION
PERPETUA with the corresponding accessory penalties
attached thereto by law and to indemnify the Heirs of
Baudelio Batoon the sums of:
1.
2.
3.
4.

P10,200,000.00 for and as loss of support;

P66,904.00 for and as actual damages;
P50,000.00 as death indemnity and
P100,000.00 for and as moral damages
without subsidiary imprisonment in case of insolvency.
Cost against the accused.
Having been under preventive detention since
February 1, 1996, the period of such detention shall be
credited in full in favor of said accused in the service of
their respective sentences.
SO ORDERED.9
In view of the Notice of Appeal10 filed by the appellants, the RTC forwarded
the records of the case to this Court. By Resolution 11 dated January 31,
2000, the Court resolved to accept the appeal. In view thereof, appellants
were required to file their brief.12 Appellants thus filed their brief on
November 20, 200013 while the OSG submitted the Brief for the PlaintiffAppellee14 on May 2, 2001. Later, however, consonant with this Courts
pronouncement in People v. Mateo15 the case was transferred to the CA for
appropriate action and disposition.16
Ruling of the Court of Appeals
By Decision17 promulgated on June 30, 2006, the appeals court affirmed
with modification the RTC Decision. Said court ruled that the
inconsistencies in the prosecution witnesses testimonies pointed out by
the appellants pertain only to minor and collateral matters which do not
dilute the probative weight of said testimonies. Regarding the erroneous
designation of appellant Ampuans name in the Information, the court went
on to hold that such error was only a formal defect and the proper
correction of which was duly made without any objection on the part of the
defense. The CA likewise held that treachery attended the commission of
the crime.
The decretal portion of the Decision reads:
WHEREFORE, premises considered, the Appeal is
hereby DISMISSED and the questioned Judgment dated July
19, 1999 of the Regional Trial Court is AFFIRMED with
MODIFICATION. Appellants Renandang Mamaruncas and
Pendatum Ampuan are found GUILTY beyond reasonable
doubt of murder as defined in Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659 and are
hereby sentenced to suffer the penalty of reclusion
perpetua. The appellants are to pay, jointly and severally,
the heirs of Baudelio Batoon the amount of P50,000.00 by
way of civil indemnity, P50,000.00 as moral damages, and

P25,000.00 as exemplary damages and P66,904.00 as

actual damages.
SO ORDERED.18
Disgruntled, appellants are now again before this Court in view of their
Notice of Appeal19 from the Decision of the CA.
By Resolution20 dated November 19, 2007, this Court notified the parties
that they may file their respective supplemental briefs within 30 days from
notice. In their respective manifestations, the parties opted to adopt the
briefs they earlier filed as their supplemental briefs. 21
In their brief, appellants assign the following errors:
I.
That the trial court erred in convicting [them] when they
should have been acquitted for failure of the prosecution to
prove its case beyond reasonable doubt; and
II.
The information filed before the trial court was
substantially defective. 22
The basic thrust of appellants first assignment of error is the
credibility of the prosecution witnesses. Appellants contend that the trial
court anchored its finding and conclusion on the testimonies of witnesses
Juanito Gepayo (Gepayo), Richard Batoon (Batoon) and P/Sr. Insp. Graciano
Mijares (Mijares), who appear to be inconsistent in their stand and whose
credibility is therefore assailable. They question the prosecution witnesses
identification of Abdul and Ampuan as one and the same person and aver
that the same only leads to the logical conclusion that said witnesses were
perjured witnesses. They argue that Ampuan failed to grasp the
information read to him as he was arraigned as Abdul Wahid Sultan alias
Pendatum Ampuan.
On the other hand, the OSG in praying for the affirmance of the appealed
Decision, opines that inconsistencies on minor and collateral matters in the
testimony of a prosecution eyewitness do not affect his credibility. It also
contends that whatever defect the information subject of appellant
Ampuans arraignment has had been cured with the latters consent during
the trial.
Our Ruling
The appeal lacks merit.
In support of their quest for acquittal, appellants tried to cast doubt on the
credibility of witness Gepayo anchored on the following grounds: (1) there
was serious inconsistency in his testimony on whether he knew Ampuan
before the incident; (2) his actuation of just watching the incident without
giving any assistance to his fallen employer as well as his immediate
return to work thereafter is contrary to human nature and experience; (3)
while he testified that appellant Mamaruncas was one of the wounded
suspects during the encounter, he failed to identify him in court; and, (4) in
his affidavit, he identified Abdul and Ampuan as one and the same person
but later on testified to the contrary.
Credibility of witnesses not
affected by minor
inconsistencies.
The perceived inconsistency on whether Gepayo knows Ampuan even
before the incident is inconsequential as to discredit the credibility of
Gepayos testimony. The inconsistency pointed out by appellants pertains
only to collateral or trivial matters and has no substantial effect on the

nature of the offense. In fact, it even signifies that the witness was neither
coached nor was lying on the witness stand. What matters is that there is
no inconsistency in Gepayos complete and vivid narration as far as the
principal occurrence and the positive identification of Ampuan as one of
the principal assailants are concerned. 23 The Court has held that although
there may be inconsistencies in the testimonies of witnesses on minor
details, they do not impair their credibility where there is consistency in
relating the principal occurrence and positive identification of the
assailant.24
It could be true that Gepayo did not retreat to a safer place during the
shooting incident and did not render assistance to his wounded employer.
To appellants, this reaction is contrary to human nature. We believe
otherwise. This imputed omission, to our mind, does not necessarily
diminish the plausibility of Gepayos story let alone destroy his credibility.
To us, his reaction is within the bounds of expected human behavior.
Surely, he was afraid that they might kill him because the malefactors
were then armed with guns.25 Thus, he would not dare attempt to stop
them and stake his life in the process. At any rate, it is settled that
different people react differently to a given situation or type of situation,
and there is no standard form of human behavioral response when one is
confronted with a strange or startling or frightful experience. Witnessing a
crime is an unusual experience which elicits different reactions from the
witnesses and for which no clear-cut standard form of behavior can be
drawn.26
The failure of Gepayo to identify Mamaruncas in court does not bolster
appellants cause. As the CA correctly pointed out:
x x x We agree with the prosecutions observation that
although he did not positively identify appellant
Mamaruncas as one of the shooters, he was however, able
to point out that there was a third person who
accompanied assailants Palao and Ampuan in approaching
the victim during the incident. This is also bolstered by
Insp. Mijares[] testimony that he saw three assailants
pointing their guns at the victim who was already lying
prostrate on the ground.27
In any event, even without Gepayos identification of Mamaruncas, the
unrebutted testimony of another prosecution eyewitness, Batoon, clearly
points to Mamaruncas as one of the assailants. Thus:
Q: After these three persons rather Abdul Wahid together
with two companions, presented the warrant of
arrest to your father, what happened thereafter?
A: They pulled their guns and pointed [them at] my father.
Q: Who pulled out .45 caliber gun [and pointed it at] your
father?
A: Abdul Wahid, Sir
Q: And what happened after the .45 pistol [was] pointed
[at] your father?
A: My father tried to [grab] the .45 caliber from Abdul
Wahid, Sir.
Q: What happened after?

A: My father was shot by one of his companion[s], Sir.

Q: Who [first shot] your father?
A: (Witness pointing to a person. [W]hen he was asked x x
x his name[,] he answered that he is Renandang
Mamaruncas)
xxxx
Q: After this Renandang Mamaruncas shot your father,
what happened thereafter?
A: The other companion fired the next shot (witness
pointing to a person sitting at the bench inside the
Courtroom and when he was asked x x x his name,
he answered that he is Pendatum [Ampuan].)28
Undoubtedly, the testimonies of eyewitnesses Gepayo and Batoon on
material details are straightforward and consistent with each other. They
personally saw appellants at the scene of the crime at the time it was
committed. Their combined declarations established beyond reasonable
doubt the identities of both appellants, along with their co-accused Abdul,
as the perpetrators of the crime.
As to the contention that Gepayo referred to Abdul Wahid Sultan and
Pendatum Ampuan as one and the same person in his affidavit 29 and yet
later on testified to the contrary, this Court finds the same inconsequential
and will not outrightly justify the acquittal of an accused. In a very recent
case,30 this Court reiterated that as between an affidavit executed outside
the court and a testimony given in open court, the latter almost always
prevails. It emphasized therein that:
Discrepancies between a sworn statement and testimony
in court do not outrightly justify the acquittal of an
accused. Such discrepancies do not necessarily discredit
the witness since ex parte affidavits are often incomplete.
They do not purport to contain a complete compendium of
the details of the event narrated by the affiant. Thus, our
rulings generally consider sworn statements taken out of
court to be inferior to in court testimony (citation omitted).
The evidence at hand, moreover, clearly points out that it was the police
officers who supplied the names of the suspects in Gepayos affidavit. 31
Any alleged defect in the
Information deemed
waived.
Anent the second assigned error, appellants aver that the Information filed
before the trial court was substantially defective considering that it
accuses Abdul and Ampuan as one and the same person when in fact they
were identified as different persons. As such, Ampuan was not able to
comprehend the Information read to him.
The Court cannot accord merit to this argument. It is well to note that
appellants failed to raise the issue of the defective Information before the
trial court through a motion for bill of particulars or a motion to quash the
information. Their failure to object to the alleged defect before entering
their pleas of not guilty amounted to a waiver of the defect in the
Information. Objections as to matters of form or substance in the
[I]nformation cannot be made for the first time on appeal. 32 Records even

show that the Information was accordingly amended during trial to rectify
this alleged defect but appellants did not comment thereon, viz:
FISCAL ROBERTO ALBULARIO:
Per manifestation and admission of this witness, the
Information be amended from [Renandang]
Mamaruncas and the word and, it should be
Bagindo [sic] Palao alias Abdul Wahid Sultan and
the alias Pendatum Ampuan be erased as
corrected.

In this case, conspiracy was clearly established. All three accused entered
the shop of Baudelio at the same time. Ampuan shot Baudelio from behind,
hitting the latter at his left armpit while Mamaruncas shot Baudelio on the
thigh. When Baudelio fell to the ground face down, Abdul shot him at the
back. These consecutive acts undoubtedly showed appellants unanimity in
design, intent and execution. They performed specific acts with such
closeness and coordination as to unmistakably indicate a common purpose
and design in the commission of the crime.

Treachery correctly appreciated.

The Court thus sees no cogent reason to disturb the findings of the RTC
and the CA considering that they are based on existing evidence and
reasonable
conclusions drawn therefrom. It has been held time and again that factual
findings of the trial court, its assessment of the credibility of witnesses and
the probative weight of their testimonies and the conclusions based on
these factual findings are to be given the highest respect. As a rule, the
Court will not weigh anew the evidence already passed on by the trial court
and affirmed by the CA.36 Though the rule is subject to exceptions, no such
exceptional grounds obtain in this case.

From the evidence and as found by the trial court and affirmed by the
appellate court, the facts sufficiently prove that treachery was employed
by appellants. The attack on Baudelio was so swift and unexpected,
affording the hapless, unarmed and unsuspecting victim no opportunity to
resist or defend himself. As ruled by the trial court:

Against the damning evidence adduced by the prosecution, appellants

could only muster mere denial. As ruled in various cases by the Court,
denial, if unsubstantiated by clear and convincing evidence is inherently a
weak defense as it is negative and self-serving. As between the
categorical testimony that rings of truth on one hand, and a bare denial on
the other, the former is generally held to prevail.37

COURT:
Any comment from the accused.
ATTY. FIDEL MACAUYAG:
No comment, Your Honor.33

In the above situation, treachery was considered to exist.

More so in this case when the victim was completely
without any weapon from the inception of the assault. At
the moment when Pendatum Ampuan and Renandang
Mamaruncas shot him, Baudelio Batoon was not in any
position to defend himself. And when Abdul Wahid shot him
while lying wounded on the ground, he was utterly
defenseless.34
Hence, both lower courts correctly found appellants guilty of murder in
view of the presence of treachery.

The Penalty
Undoubtedly, the crime committed is murder in view of the
attending aggravating circumstance of treachery. Murder, as defined under
Article 24838 of the Revised Penal Code as amended, is the unlawful killing
of a person which is not parricide or infanticide, provided that treachery,
inter alia, attended the killing. The presence of any one of the enumerated
circumstances under the aforesaid Article is enough to qualify a killing as
murder punishable by reclusion perpetua
to death. Since only the qualifying circumstance of treachery is found to be
present, both the RTC and the CA properly imposed the penalty of
reclusion perpetua pursuant to Article 63 of the Revised Penal Code.
Moreover, Section 3 of Republic Act No. 934639 provides:

Conspiracy was duly proven.

We also sustain the finding of conspiracy. Conspiracy exists when two or
more persons come to an agreement concerning the commission of a
felony and decide to commit it. Direct proof of previous agreement to
commit a crime is not necessary x x x [as it] may be shown through
circumstantial evidence, deduced from the mode and manner in which the
offense was perpetrated, or inferred from the acts of the accused
themselves when such lead to a joint purpose and design, concerted action
and community of interest.35

Section 3. Persons convicted of offenses punishable

with reclusion perpetua or whose sentences will be
reduced to reclusion perpetua by reason of this Act, shall
not be eligible for parole under Act No. 4103 otherwise
known as the Indeterminate Sentence Law, as amended.
Pursuant to the above provision, appellants are therefore not
eligible for parole.

Awards of Damages
The Court modifies the award of civil indemnity in the amount of
P50,000.00. In line with prevailing jurisprudence, 40 said award is increased
to P75,000.00. Anent the award of moral damages, the CA correctly
imposed the amount of P50,000.00.41 These awards are mandatory
without need of allegation and proof other than the death of the victim,
owing to the fact of the commission of murder or homicide. 42

Renandang Mamaruncas and Pendatum Ampuan guilty beyond reasonable

doubt of murder is AFFIRMED with further MODIFICATIONS as follows:
1. Appellants are sentenced to suffer the penalty of reclusion perpetua
without eligibility for parole;
2. The award of civil indemnity is increased to P75,000.00;
3. The award of P66,904.00 as actual damages is deleted;

Anent the award of actual damages, the victims widow testified that the
family spent a total of P66,904.00 relative to the wake and burial of the
victim. However, the claim for said amount is supported merely by a list of
expenses43 personally prepared by the widow instead of official receipts. To
be entitled to an award of actual damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable x x x. 44 A list
of expenses cannot replace receipts when the latter should have been
issued as a matter of course in business transactions. 45 Thus the Court
deletes the lower courts award of actual damages. Nonetheless, since
entitlement of the same is shown under the facts of the case, temperate
damages in the amount of P25,000.0046 should be awarded in lieu of actual
damages to the heirs of the victim pursuant to Article 2224 of the Civil
Code which provides that temperate damages may be recovered when
the court finds that pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with certainty.
The CA correctly deleted the indemnity for loss of earning capacity
awarded by the trial court. Such indemnity cannot be awarded in the
absence of documentary evidence except where the victim was either selfemployed or a daily wage worker earning less than the minimum wage
under current labor laws.
As testified to by the widow, Florenda Batoon, the victim was earning a
monthly income of P20,000.00 and P90,000.00 as an auto repair shop and
a six-wheeler truck operator, respectively. The trial court made a
conservative estimate of P500.00 a day as the net income from the truck
alone after making reasonable deductions from its operation. Thus, ranged
against the daily minimum wage then prevailing in Region X which is
P137.00 per day pursuant to Wage Order No. RX-03, this case undoubtedly
does not fall under the exceptions where indemnity for loss of earning
capacity can be given despite the lack of documentary evidence.
The Court sustains the award of exemplary damages in view of the proven
qualifying circumstance of treachery. The CA however awarded exemplary
damages to the heirs of the victim in the amount of P25,000.00. To
conform with prevailing jurisprudence, the Court increases this amount to
P30,000.00.47
WHEREFORE, premises considered, the June 30, 2006 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 00196 which found appellants

4. P25,000.00 as temperate damages is awarded in lieu of actual

damages;
5. The award of exemplary damages is increased to P30,000.00;
and
6. Appellants are further ordered to pay the heirs of the victim interest on
all damages awarded at the legal rate of 6% per annum from the date of
finality of this judgment.
SO ORDERED.
6. HECTOR TREAS V. PEOPLE OF THE PHILIPPINES
G.R. No. 195002, January 25, 2012
Where life or liberty is affected by its proceedings, courts must
keep strictly within the limits of the law authorizing them to take
jurisdiction and to try the case and render judgment thereon. 41[1]
This is a Petition for Review on Certiorari under Rule 45 of the 1997
Revised Rules of Civil Procedure, seeking to annul and set aside the Court
of Appeals (CA) Decision dated 9 July 2010 42[2] and Resolution dated 4
January 2011.
Statement of the Facts and of the Case
The pertinent facts, as found by the CA, are as follows:
Sometime in December 1999, Margarita Alocilja
(Margarita) wanted to buy a house-and-lot in Iloilo City
covered by TCT No. 109266. It was then mortgaged with
Maybank. The bank manager Joselito Palma recommended
the appellant Hector Treas (Hector) to private complainant
Elizabeth, who was an employee and niece of Margarita,
for advice regarding the transfer of the title in the latters
name. Hector informed Elizabeth that for the titling of the
property in the name of her aunt Margarita, the following
expenses would be incurred:
P20,000.00P90,000.0041
42

Attorneys fees,
Capital Gains Tax,

P24,000.00P10,000.00-

Documentary Stamp,
Miscellaneous Expenses.

Thereafter, Elizabeth gave P150,000.00 to Hector

who issued a corresponding receipt dated December 22,
1999 and prepared [a] Deed of Sale with Assumption of
Mortgage. Subsequently, Hector gave Elizabeth Revenue
Official Receipt Nos. 00084370 for P96,000.00 and
00084369 for P24,000.00. However, when she consulted
with the BIR, she was informed that the receipts were fake.
When confronted, Hector admitted to her that the receipts
were fake and that he used the P120,000.00 for his other
transactions. Elizabeth demanded the return of the money.
To settle his accounts, appellant Hector issued in
favor of Elizabeth a Bank of Commerce check No. 0042856
dated November 10, 2000 in the amount of P120,000.00,
deducting from P150,000.00 the P30,000.00 as attorneys
fees. When the check was deposited with the PCIBank,
Makati Branch, the same was dishonored for the reason
that the account was closed. Notwithstanding repeated
formal and verbal demands, appellant failed to pay. Thus,
the instant case of Estafa was filed against him. 43[3]
On 29 October 2001, an Information was filed by the Office of the
City Prosecutor before the Regional Trial Court (RTC), both of Makati City.
The Information reads as follows:
That on or about the 23rd day of December, 1999,
in the City of Makati, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, received in trust from ELIZABETH LUCIAJA the
amount of P150,000.00 which money was given to her by
her aunt Margarita Alocilja, with the express obligation on
the part of the accused to use the said amount for
expenses and fees in connection with the purchase of a
parcel of land covered by TCT No. T-109266, but the said
accused, once in possession of the said amount, with the
intent to gain and abuse of confidence, did then and there
willfully, unlawfully and feloniously misappropriate,
misapply and convert to his own personal use and benefit
the amount of P130,000.00 less attorneys fees and the
said accused failed and refused and still fails and refuses to
do so, to the damage and prejudice of complainant
Elizabeth
Luciaja
and
Margarita
Alocilja
in
the
aforementioned amount of P130,000.00.
CONTRARY TO LAW.44[4]

During arraignment on 26 April 2002, petitioner, acting as his own

counsel, entered a plea of Not Guilty. Allegedly due to old age and poor
health, and the fact that he lives in Iloilo City, petitioner was unable to
attend the pre-trial and trial of the case.
On 8 January 2007, the RTC rendered a Decision 45[5] finding
petitioner guilty of the crime of Estafa under section 1, paragraph (b), of
Article 315 of the Revised Penal Code (RPC), with the dispositive portion as
follows:
WHEREFORE, in view of the foregoing, judgment is
rendered finding accused Hector Trenas guilty of the crime
of Estafa with abuse of confidence as penalized under
Article 315 of the Revised Penal Code, and which offense
was committed in the manner described in the
aforementioned information. As a consequence of this
judgment, accused Hector Trenas is sentenced to suffer a
penalty of Ten (10) Years and One (1) Day of Prision Mayor
to Seventeen (17) Years and Four (4) Months of Reclusion
Temporal. Moreover, he is ordered to indemnify private
complainant Elizabeth Luciaja the amount of P130,000.00
with interest at the legal rate of 12% per annum, reckoned
from the date this case was filed until the amount is fully
paid.
SO ORDERED.46[6]
We note at this point that petitioner has been variably called Treas
and Trenas in the pleadings and court issuances, but for consistency, we
use the name Treas, under which he was accused in the Information.
On 24 August 2007, petitioner filed a Motion for Reconsideration, 47
[7] which was denied by the RTC in a Resolution dated 2 July 2008. 48[8]
On 25 September 2008, petitioner filed a Notice of Appeal before
the RTC.49[9] The appeal was docketed as CA-G.R. CR No. 32177. On 9 July
2010, the CA rendered a Decision 50[10] affirming that of the RTC. On 4
August 2010, petitioner filed a Motion for Reconsideration, which was
denied by the CA in a Resolution dated 4 January 2011. 51[11]
45
46
47
48
49

43

50

44

51

On 25 January 2011, petitioner filed a Motion for Extension of Time

to File Petition for Review on Certiorari 52[12] before this Court. He asked for
a period of 15 days within which to file a petition for review, and the Court
granted his motion in a Resolution dated 9 February 2011.
On 3 February 2011, petitioner filed his Petition for Review on
Certiorari before this Court, with the following assignment of errors:
1.
THE COURT OF APPEALS ERRED IN
RULING THAT AN ACCUSED HAS TO PRESENT EVIDENCE IN
SUPPORT OF THE DEFENSE OF LACK OF JURISDICTION EVEN
IF SUCH LACK OF JURISDICTION APPEARS IN THE EVIDENCE
OF THE PROSECUTION;
2.
THE COURT OF APPEALS ERRED IN
RULING THAT DEMAND MADE BY A PERSON OTHER THAN
THE AGGRIEVED PARTY SATISFIES THE REQUIREMENT OF
DEMAND TO CONSTITUTE THE OFFENSE OF ESTAFA; 53[13]
On the first issue, petitioner asserts that nowhere in the evidence
presented by the prosecution does it show that 150,000 was given to and
received by petitioner in Makati City. Instead, the evidence shows that the
Receipt issued by petitioner for the money was dated 22 December 1999,
without any indication of the place where it was issued. Meanwhile, the
Deed of Sale with Assumption of Mortgage prepared by petitioner was
signed and notarized in Iloilo City, also on 22 December 1999. Petitioner
claims that the only logical conclusion is that the money was actually
delivered to him in Iloilo City, especially since his residence and office were
situated there as well. Absent any direct proof as to the place of delivery,
one must rely on the disputable presumption that things happened
according to the ordinary course of nature and the ordinary habits of life.
The only time Makati City was mentioned was with respect to the time
when the check provided by petitioner was dishonored by Equitable-PCI
Bank in its De la Rosa-Rada Branch in Makati. Petitioner asserts that the
prosecution witness failed to allege that any of the acts material to the
crime of estafa had occurred in Makati City. Thus, the trial court failed to
acquire jurisdiction over the case.
Petitioner thus argues that an accused is not required to present
evidence to prove lack of jurisdiction, when such lack is already indicated
in the prosecution evidence.
As to the second issue, petitioner claims that the amount of
P150,000 actually belongs to Margarita. Assuming there was
misappropriation, it was actually she not Elizabeth who was the offended
party. Thus, the latters demand does not satisfy the requirement of prior
demand by the offended party in the offense of estafa. Even assuming that
the demand could have been properly made by Elizabeth, the demand
referred to the amount of P120,000, instead of P150,000. Finally, there is
no showing that the demand was actually received by petitioner. The

signature on the Registry Return Receipt was not proven to be that of

petitioners.
On 30 May 2011, this Court issued a Resolution directing the Office
of the Solicitor General (OSG) to file the latters Comment on the Petition.
On 27 July 2011, the OSG filed a Motion for Extension, praying for an
additional period of 60 days within which to submit its Comment. This
motion was granted in a Resolution dated 12 September 2011. On 23
September 2011, the OSG filed a Motion for Special Extension, requesting
an additional period of five days. On 29 September 2011, it filed its
Comment on the Petition.
In its Comment, the OSG asserts that the RTC did not err in
convicting petitioner as charged. The OSG notes that petitioner does not
dispute the factual findings of the trial court with respect to the delivery of
P150,000 to him, and that there was a relationship of trust and confidence
between him and Elizabeth. With respect to his claim that the Complaint
should have been filed in Iloilo City, his claim was not supported by any
piece of evidence, as he did not present any. Further, petitioner is, in
effect, asking the Court to weigh the credibility of the prosecution witness,
Elizabeth. However, the trial courts assessment of the credibility of a
witness is entitled to great weight, unless tainted with arbitrariness or
oversight of some fact or circumstance, which is not the case here.
With respect to the second issue, the OSG stresses that the
defense of no valid demand was not raised in the lower court.
Nevertheless, the demand letter sent to Elizabeth suffices, as she is also
one of the complainants alleged in the Information, as an agent of
Margarita. Moreover, no proof was adduced as to the genuineness of
petitioners signature in the Registry Return Receipt of the demand letter.
The OSG, however, submits that the Court may recommend
petitioner for executive clemency, in view of his advanced age and failing
health.
The Courts Ruling
The Petition is impressed with merit.
Review of Factual Findings
While the Petition raises questions of law, the resolution of the
Petition requires a review of the factual findings of the lower courts and the
evidence upon which they are based.
As a rule, only questions of law may be raised in a petition for
review under Rule 45 of the Rules of Court. In many instances, however,
this Court has laid down exceptions to this general rule, as follows:
(1)
(2)

52
53

(3)

When the factual findings of the Court of Appeals

and the trial court are contradictory;
When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures;
When the inference made by the Court of Appeals
from its findings of fact is manifestly mistaken,
absurd or impossible;

(4)

When there is grave abuse of discretion in the

appreciation of facts;
(5)
When the appellate court, in making its findings,
went beyond the issues of the case, and such
findings are contrary to the admissions of both
appellant and appellee;
(6)
When the judgment of the Court of Appeals is
premised on misapprehension of facts;
(7)
When the Court of Appeals failed to notice certain
relevant facts which, if properly considered, would
justify a different conclusion;
(8)
When the findings of fact are themselves
conflicting;
(9)
When the findings of fact are conclusions without
citation of the specific evidence on which they are
based; and
(10)
When the findings of fact of the Court of Appeals
are premised on the absence of evidence but such
findings are contradicted by the evidence on
record.54[14]
In this case, the findings of fact of the trial court and the CA on the
issue of the place of commission of the offense are conclusions without any
citation of the specific evidence on which they are based; they are
grounded on conclusions and conjectures.
The trial court, in its Decision, ruled on the commission of the
offense without any finding as to where it was committed:
Based on the evidence presented by the
prosecution through private complainant Elizabeth Luciaja,
the Court is convinced that accused Trenas had committed
the offense of Estafa by taking advantage of her trust so
that he could misappropriate for his own personal benefit
the amount entrusted to him for payment of the capital
gains tax and documentary stamp tax.
As clearly narrated by private complainant Luciaja,
after accused Trenas had obtained the amount of
P150,000.00 from her, he gave her two receipts
purportedly issued by the Bureau of Internal Revenue, for
the fraudulent purpose of fooling her and making her
believe that he had complied with his duty to pay the
aforementioned taxes. Eventually, private complainant
Luciaja discovered that said receipts were fabricated
documents.55[15]
In his Motion for Reconsideration before the RTC, petitioner raised
the argument that it had no jurisdiction over the offense charged. The trial

court denied the motion, without citing any specific evidence upon which
its findings were based, and by relying on conjecture, thus:
That the said amount was given to [Treas] in Makati
City was incontrovertibly established by the prosecution.
Accused Treas, on the other hand, never appeared in Court
to present countervailing evidence. It is only now that he is
suggesting another possible scenario, not based on the
evidence, but on mere what ifs. x x x
Besides, if this Court were to seriously assay his
assertions, the same would still not warrant a reversal of
the assailed judgment. Even if the Deed of Sale with
Assumption of Mortgage was executed on 22 December
999 in Iloilo City, it cannot preclude the fact that the
P150,000.00 was delivered to him by private complainant
Luciaja in Makati City the following day. His reasoning the
money must have been delivered to him in Iloilo City
because it was to be used for paying the taxes with the BIR
office in that city does not inspire concurrence. The records
show that he did not even pay the taxes because the BIR
receipts he gave to private complainant were fake
documents. Thus, his argumentation in this regard is too
specious to consider favorably. 56[16]
For its part, the CA ruled on the issue of the trial courts jurisdiction
in this wise:
It is a settled jurisprudence that the court will not
entertain evidence unless it is offered in evidence. It bears
emphasis that Hector did not comment on the formal offer
of prosecutions evidence nor present any evidence on his
behalf. He failed to substantiate his allegations that he had
received the amount of P150,000.00 in Iloilo City. Hence,
Hectors allegations cannot be given evidentiary weight.
Absent any showing of a fact or circumstance of
weight and influence which would appear to have been
overlooked and, if considered, could affect the outcome of
the case, the factual findings and assessment on the
credibility of a witness made by the trial court remain
binding on appellate tribunal. They are entitled to great
weight and respect and will not be disturbed on review. 57
[17]
The instant case is thus an exception allowing a review of the
factual findings of the lower courts.
Jurisdiction of the Trial Court

54

56

55

57

The overarching consideration in this case is the principle that, in

criminal cases, venue is jurisdictional. A court cannot exercise jurisdiction
over a person charged with an offense committed outside its limited
territory. In Isip v. People,58[18] this Court explained:
The place where the crime was committed
determines not only the venue of the action but is
an essential element of jurisdiction. It is a
fundamental rule that for jurisdiction to be acquired by
courts in criminal cases, the offense should have been
committed or any one of its essential ingredients should
have taken place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory
where the court has jurisdiction to take cognizance or to try
the offense allegedly committed therein by the accused.
Thus, it cannot take jurisdiction over a person charged with
an offense allegedly committed outside of that limited
territory. Furthermore, the jurisdiction of a court over
the criminal case is determined by the allegations in
the complaint or information. And once it is so shown,
the court may validly take cognizance of the case.
However, if the evidence adduced during the trial
shows that the offense was committed somewhere
else, the court should dismiss the action for want of
jurisdiction. (Emphasis supplied.)
In a criminal case, the prosecution must not only prove that the
offense was committed, it must also prove the identity of the accused and
the fact that the offense was committed within the jurisdiction of the court.
In Fukuzume v. People,59[19] this Court dismissed a Complaint for
estafa, wherein the prosecution failed to prove that the essential elements
of the offense took place within the trial courts jurisdiction. The Court
ruled:
More importantly, we find nothing in the direct or
cross-examination of Yu to establish that he gave any
money to Fukuzume or transacted business with him with
respect to the subject aluminum scrap wires inside or
within the premises of the Intercontinental Hotel in Makati,
or anywhere in Makati for that matter. Venue in criminal
cases is an essential element of jurisdiction. x x x
In the present case, the criminal information
against Fukuzume was filed with and tried by the RTC of
Makati. He was charged with estafa as defined under
Article 315, paragraph 2(a) of the Revised Penal Code, the
elements of which are as follows: x x x

58
59

The crime was alleged in the Information as

having been committed in Makati. However, aside
from the sworn statement executed by Yu on April 19,
1994, the prosecution presented no other evidence,
testimonial or documentary, to corroborate Yu's
sworn statement or to prove that any of the aboveenumerated elements of the offense charged was
committed in Makati. Indeed, the prosecution failed to
establish that any of the subsequent payments made by Yu
in the amounts of P50,000.00 on July 12, 1991, P20,000.00
on July 22, 1991, P50,000.00 on October 14, 1991 and
P170,000.00 on October 18, 1991 was given in Makati.
Neither was there proof to show that the certifications
purporting to prove that NAPOCOR has in its custody the
subject aluminum scrap wires and that Fukuzume is
authorized by Furukawa to sell the same were given by
Fukuzume to Yu in Makati. On the contrary, the testimony
of Yu established that all the elements of the offense
charged had been committed in Paraaque, to wit: that on
July 12, 1991, Yu went to the house of Fukuzume in
Paraaque; that with the intention of selling the subject
aluminum scrap wires, the latter pretended that he is a
representative of Furukawa who is authorized to sell the
said scrap wires; that based on the false pretense of
Fukuzume, Yu agreed to buy the subject aluminum scrap
wires; that Yu paid Fukuzume the initial amount of
P50,000.00; that as a result, Yu suffered damage. Stated
differently, the crime of estafa, as defined and penalized
under Article 315, paragraph 2(a) of the Revised Penal
Code, was consummated when Yu and Fukuzume met at
the latter's house in Paraaque and, by falsely pretending to
sell aluminum scrap wires, Fukuzume was able to induce Yu
to part with his money.
xxx
From the foregoing, it is evident that the
prosecution
failed
to
prove
that
Fukuzume
committed the crime of estafa in Makati or that any
of the essential ingredients of the offense took
place in the said city. Hence, the judgment of the
trial court convicting Fukuzume of the crime of
estafa should be set aside for want of jurisdiction,
without prejudice, however, to the filing of appropriate
charges with the court of competent jurisdiction. (Emphasis
supplied)
In this case, the prosecution failed to show that the offense of
estafa under Section 1, paragraph (b) of Article 315 of the RPC was
committed within the jurisdiction of the RTC of Makati City.
That the offense was committed in Makati City was alleged in the
information as follows:

That on or about the 23rd day of December, 1999,

in the City of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, received in trust from ELIZABETH
LUCIAJA the amount of P150,000.00 x x x. (Emphasis
supplied.)60[20]
Ordinarily, this statement would have been sufficient to vest
jurisdiction in the RTC of Makati. However, the Affidavit of Complaint
executed by Elizabeth does not contain any allegation as to where the
offense was committed. It provides in part:
4. THAT on 23 December 1999, [Elizabeth] personally
entrusted to ATTY. HECTOR TREAS the sum of
P150,000.00 to be expended as agreed and ATTY.
HECTOR TREAS issued to me a receipt, a photo copy of
which is hereto attached as Annex B,
5.

THAT despite my several follow-ups with ATTY. HECTOR

TREAS, the latter failed to transfer the title of aforesaid
property to MRS. MARGARITA ALOCILJA. He also failed
to pay the capital gains tax, documentary stamps and
BIR-related expenses. What ATTY. HECTOR TREAS
accomplished was only the preparation of the Deed of
Sale covering aforesaid property. A copy of said Deed
of Sale is hereto attached as Annex C,

6.

THAT in view of my persistent follow-ups, ATTY.

HECTOR TREAS issued to me a check for refund of the
sum given to him less the attorneys fee of P20,000.00
and the sum of P10,000.00 allegedly paid to BIR or in
the net sum of P120,000.00. x x x

7.

THAT when said check was deposited at EQUITABLE PCI

BANK dela Rosa-Rada Branch at Makati City, the same
was dishonored by the drawee bank for the reason:
ACCOUNT CLOSED. x x x61[21]

misappropriation or conversion or denial is to the prejudice of another; and

(4) there is demand by the offended party to the offender. 62[22]
There is nothing in the documentary evidence offered by the
prosecution63[23] that points to where the offense, or any of its elements,
was committed. A review of the testimony of Elizabeth also shows that
there was no mention of the place where the offense was allegedly
committed:
Q
After the manager of Maybank referred Atty. Treas
to you, what happened next?
A
We have met and he explained to the expenses
and what we will have to and she will work for the
Deed of Sale.
Q
And did he quote any amount when you got to the
expenses?
A
Yes. I gave him ONE HUNDRED FIFTY THOUSAND.

Aside from the lone allegation in the Information, no other

evidence was presented by the prosecution to prove that the offense or
any of its elements was committed in Makati City.
Under Article 315, par. 1 (b) of the RPC, the elements of estafa are
as follows: (1) that money, goods or other personal property is received by
the offender in trust or on commission, or for administration, or under any
other obligation involving the duty to make delivery of or to return the
same; (2) that there be misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt; (3) that such

60

62

61

63

Q
A
Q
A
Q
A

Q
A
Q
A
Q
A
Q

A
Q
A

What was the amount quoted to you?

ONE HUNDRED FIFTY THOUSAND.
Did he give a breakdown of this ONE HUNDRED
FIFTY THOUSAND?
Yes, sir.
And what is the breakdown of this ONE HUNDRED
FIFTY THOUSAND?
TWENTY THOUSAND is for his Attorneys fee,
NINETY THOUSAND is for the capital gain tax
TWENTY FOUR THOUSAND is intended for
documentary sum (sic) and TEN THOUSAND PESOS
is for other expenses for BIR.
And did you give him this ONE HUNDRED FIFTY
THOUSAND?
Yes, sir.
Did he issue a receipt?
Yes, sir.
If shown to you a receipt issued by Atty. Treas for
this ONE HUNDRED FIFTY THOUSAND, will you be
able to identify it?
Yes, sir.
I am showing to you a document, madam witness,
already identified during the pre-trial as exhibit B.
This appears to be a receipt dated December 22,
1999. Will you please go over this document and
inform this court what relation has this to the
receipt which you said Atty. Treas issued to you?
This is the receipt issued by Atty. Hector Treas.
Now, after the amount of ONE HUNDRED FIFTY
THOUSAND was given to Atty. Treas by you, what
happened next?
We made several follow-ups but he failed to do his
job.64[24]

Although the prosecution alleged that the check issued by

petitioner was dishonored in a bank in Makati, such dishonor is not an
element of the offense of estafa under Article 315, par. 1 (b) of the RPC.
Indeed, other than the lone allegation in the information, there is
nothing in the prosecution evidence which even mentions that any of the
elements of the offense were committed in Makati. The rule is settled that
an objection may be raised based on the ground that the court lacks
jurisdiction over the offense charged, or it may be considered motu proprio
by the court at any stage of the proceedings or on appeal. 65[25] Moreover,
jurisdiction over the subject matter in a criminal case cannot be conferred
upon the court by the accused, by express waiver or otherwise. That
jurisdiction is conferred

by the sovereign authority that organized the court and is given only by
law in the manner and form prescribed by law.66[26]
It has been consistently held by this Court that it is unfair to
require a defendant or accused to undergo the ordeal and expense of a
trial if the court has no jurisdiction over the subject matter or offense or it
is not the court of proper venue. 67[27] Section 15 (a) of Rule 110 of the
Revised Rules on Criminal Procedure of 2000 provides that [s]ubject to
existing laws, the criminal action shall be instituted and tried in the court
of the municipality or territory where the offense was committed or where
any of its essential ingredients occurred. This fundamental principle is to
ensure that the defendant is not compelled to move to, and appear in, a
different court from that of the province where the crime was committed as
it would cause him great inconvenience in looking for his witnesses and
other evidence in another place. 68[28] This principle echoes more strongly
in this case, where, due to distance constraints, coupled with his advanced
age and failing health, petitioner was unable to present his defense in the
charges against him.
There being no showing that the offense was committed within
Makati, the RTC of that city has no jurisdiction over the case. 69[29]
As such, there is no more need to discuss the other issue raised by
petitioner.
At this juncture, this Court sees it fit to note that the Code of
Professional Responsibility strongly militates against the petitioners
conduct in handling the funds of his client. Rules 16.01 and 16.02 of the
Code provides:
Rule 16.01 A lawyer shall account for all money or
property collected or received for or from the client.
Rule 16.02 A lawyer shall keep the funds of each
client separate and apart from his own and those others
kept by him.
When a lawyer collects or receives money from his client for a
particular purpose (such as for filing fees, registration fees, transportation
and office expenses), he should promptly account to the client how the
money was spent.70[30] If he does not use the money for its intended
purpose, he must immediately return it to the client. His failure either to
render an accounting or to return the money (if the intended purpose of
the money does not materialize) constitutes a blatant disregard of Rule
16.01 of the Code of Professional Responsibility. 71[31]
66
67
68

64

69

65

70

Moreover, a lawyer has the duty to deliver his client's funds or

properties as they fall due or upon demand. 72[32] His failure to return the
client's money upon demand gives rise to the presumption that he has
misappropriated it for his own use to the prejudice of and in violation of the
trust reposed in him by the client. 73[33] It is a gross violation of general
morality as well as of professional ethics; it impairs public confidence in the
legal profession and deserves punishment.74[34]
In Cuizon v. Macalino,75[35] this Court ruled that the issuance of
checks which were later dishonored for having been drawn against a
closed account indicates a lawyer's unfitness for the trust and confidence
reposed on him, shows lack of personal honesty and good moral character
as to render him unworthy of public confidence, and constitutes a ground
for disciplinary action.
This case is thus referred to the Integrated Bar of the Philippines
(IBP) for the initiation of disciplinary proceedings against petitioner. In any
case, should there be a finding that petitioner has failed to account for the
funds received by him in trust, the recommendation should include an
order to immediately return the amount of 130,000 to his client, with the
appropriate rate of interest from the time of demand until full payment.
WHEREFORE, the Petition is GRANTED. The Decision dated 9 July
2010 and the Resolution dated 4 January 2011 issued by the Court of
Appeals in CA-G.R. CR No. 32177 are SET ASIDE on the ground of lack of
jurisdiction on the part of the Regional Trial Court, Branch 137, Makati City.
Criminal Case No. 01-2409 is DISMISSED without prejudice. This case is
REFERRED to the IBP Board of Governors for investigation and
recommendation pursuant to Section 1 of Rule 139-B of the Rules of Court.
SO ORDERED.
7. PEOPLE OF THE PHILIPPINES V. ROBERTO P. BALAO, VIRGILIO V.
DACALOS AND SANDIGANBAYAN
G. R. No. 176819
The Case
This is a petition1 for certiorari under Rule 65 of the Rules of Court. The
petition challenges the 2 March 2007 Resolution 2 of the Sandiganbayan in
Criminal Case No. 26583.
The Facts

71
72
73
74
75

On 1 May 2001, Ombudsman Prosecutor II Raul V. Cristoria filed with the

Sandiganbayan an information3 dated 5 March 2001 against respondents
Robert P. Balao (Balao), Josephine C. Angsico (Angsico), Virgilio V. Dacalos
(Dacalos), Felicisimo F. Lazarte, Jr. (Lazarte, Jr.), Josephine T. Espinosa, Noel
A. Lobrido, and Arceo C. Cruz for violation of Section 3(e) of Republic Act
No. 3019 (RA 3019), as amended. The information stated:
The undersigned Ombudsman Prosecutor II of the Office of
the Ombudsman-Visayas, accuses ROBERT P. BALAO,
FELICISIMO F. LAZARTE, JR., VIRGILIO V. DACALOS,
JOSEPHINE C. ANGSICO, JOSEPHINE T. ESPINOSA, NOEL A.
LOBRIDO AND ARCEO C. CRUZ for VIOLATION OF SECTION
3(e) of REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTIGRAFT AND CORRUPT PRACTICES ACT), committed as
follows:
That in or about the month of March, 1992,
at Bacolod City, Province of Negros
Occidental, Philippines, and within the
jurisdiction of this Honorable Court, abovenamed accused, ROBERT P. BALAO,
JOSEPHINE C. ANGSICO, VIRGILIO V.
DACALOS, FELICISIMO LAZARTE, JR.,
JOSEPHINE T. ESPINOSA, and NOEL H.
LOBRIDO, Public Officers, being the General
Manager, Team Head, Visayas Mgt. Office,
Division Manager (Visayas), Manager, RPD,
Project Mgt. Officer A and Supervising
Engineer, respectively, of the National
Housing Authority, Diliman, Quezon City, in
such capacity and committing the offense
in relation to office and while in the
performance of their official functions,
conniving, confederating and mutually
helping with each other and with accused
ARCEO C. CRUZ, a private individual and
General Manager of A.C. Cruz Construction,
with address at 7486 Bagtikan Street,
Makati City, with deliberate intent, with
manifest partiality and evident bad faith,
did then and there willfully, unlawfully and
feloniously cause to be paid to A.C.
Construction public funds in the amount of
TWO HUNDRED THIRTY TWO THOUSAND
SIX HUNDRED TWENTY EIGHT PESOS and
THIRTY FIVE CENTAVOS (P232,628.35)
PHILIPPINE CURRENCY, supposedly for the
excavation and roadfilling works on the
Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such
works were undertaken by A.C.

Construction as revealed by the Special

Audit conducted by the Commission on
Audit, thus accused public officials in the
performance of their official functions had
given unwarranted benefits, advantage and
preference to accused Arceo C. Cruz and
A.C. Construction and themselves, to the
damage and prejudice of the government. 4
In its 22 May 2001 Order,5 the Sandiganbayan found the 5 March 2001
information inadequate. The Sandiganbayan stated that:
This morning the Court expressed its anxiety over the
inadequacy of the Information in that the participation of
each of the accused did not appear clear in the resolution,
much less in the Information.
In view hereof, Pros. Raymundo Julio A. Olaguer will be
given ten (10) days to review the records and to inform this
Court as to the course of action he proposes to take in
order to enlighten the Court and, if necessary, himself so
that a proper Information and a proper prosecution may be
had before this Court.6
On 4 August 2004, Assistant Special Prosecutor II Julieta Zinnia A. Niduaza
(Assistant Special Prosecutor Niduaza) filed with the Sandiganbayan a
memorandum7 dated 27 July 2004. In the memorandum, Assistant Special
Prosecutor Niduaza recommended that the 5 March 2001 information be
maintained.
In their 17 September 2004 motion,8 Balao, Lazarte, Jr., Angsico, and
Dacalos prayed for a reinvestigation of the case. In its 27 March 2005
Resolution,9 the Sandiganbayan granted the motion. The Sandiganbayan
held that:
The Court notes that the issue as to the participation of
accused-movants in the acts complained of in the
Information, as raised by the former First Division, appears
not to have been addressed by the prosecution in the
Memorandum dated July 27, 2004 of the Office of the
Ombudsman, Office of the Special Prosecutor. In the said
Memorandum, the prosecution found no reason to disturb
the findings of probable cause and recommended that the
Information be maintained.

Information. Considering that the memorandum of the

Ombudsman recommended that the Information filed in
Criminal Case No. 26583 be maintained and the
prosecution of this case must proceed accordingly, without
complying with the directive quoted above to clarify the
participation of each of the accused, the Court finds merit
in the accused-movants prayer for reinvestigation.10
On 1 June 2006, Assistant Special Prosecutor Niduaza filed with the
Sandiganbayan a memorandum11 dated 30 May 2006. In the
memorandum, Assistant Special Prosecutor Niduaza recommended that
the 5 March 2001 information be maintained.
In his motion12 dated 2 October 2006, Lazarte, Jr. prayed that the
information be quashed. In their 4 October 2006 motion,13 Balao, Angsico,
and Dacalos prayed that their motion to quash the information be
admitted. In another motion,14 also dated 4 October 2006, Balao, Angsico,
and Dacalos prayed that the information be quashed.
The Sandiganbayans Ruling
In its 2 March 2007 Resolution, the Sandiganbayan denied Lazartes 2
October 2006 motion and granted Balao, Angsico, and Dacalos 4 October
2006 motions. The Sandiganbayan held that:
The Court finds that the above Information and subsequent
memoranda submitted by the prosecution in support of the
said information, with respect to the accused-movants
Balao, Angsico and Dacalos, fail to satisfy the requirements
of Section 6, Rule 110. The Information and the supporting
memoranda, still fail to state the acts or omissions of
accused-movants Balao, Angsico and Dacalos with
sufficient particularity so as to enable them to make a
carefully considered plea to the charges against them.

xxxx

It may be recalled that a reinvestigation of the case was

ordered by this Court because the prosecution failed to
satisfactorily comply with an earlier directive of the former
Chairperson and Members of the first Division, after noting
the inadequacy of the information, to clarify the
participation of each of the accused. In ordering the
reinvestigation, this Court noted the the prosecutions July
27, 2004 Memorandum did not address the apprehensions
of the former Chairperson and Members of the First
Division as to the inadequacy of the allegations in the
information.

The former Chairman and Members of the First Division

expressed anxiety over the inadequacy of the x x x
Information in that the participation of each of the accused
did not appear clear in the resolution, much less in the

This time, despite a reinvestigation, the prosecutions

Memorandum dated May 30, 2006 still failed to specify the
participation of accused-movants Balao, Angsico and
Dacalos. The most recent findings of the prosecution still

do not address the deficiency found by the Court in the

information. The prosecution avers that pursuant to
Section 3, Rule 117 of the rules of Court, in determining the
viability of a motion to quash based on the ground of facts
charged in the information do not constitute an offense,
the test must be whether or not the facts asseverated, if
hypothetically admitted, would establish the essential
elements of the crime as defined by law. The prosecution
contends that matters aliunde should not be considered.
However, in the instant case, the Court has found the
information itself to be inadequate, as it does not satisfy
the requirements of particularly alleging the acts or
omissions of the said accused-movants, which served as
the basis of the allegation of conspiracy between the
aforementioned accused-movants and the other accused,
in the commission of the offense charged in the
information.

the alleged errant private contractor, which is not even the

act imputed against them in the information.

It appears from the prosecutions May 30, 2006

Memorandum that at the time material in this case,
accused Roberto P. Balao was the General Manager of the
NHA; accused Josephine C. Angsico, was the Team Head of
the Visayas Management Office of the NHA; accused
Virgilio V. Dacalos, was the Division Manager of the NHAs
Visayas Management Office and accused Felicisimo F.
Lazarte, Jr., was the Manager of the NHAs Regional Project
Department. All four accused contend that they cannot be
held accountable as they are high-ranking officials based in
Metro Manila and that they relied solely on the
recommendation of their subordinates in affixing their
signatures. The prosecution concedes that high-ranking
officials are not expected to personally examine every
single detail of a transaction. But in this particular case,
the general averment or conclusion of the prosecution in
its memorandum that the accused allegedly had
foreknowledge of the supposed anomalies and yet the
accused did nothing to verify this, does not sufficiently
show the basis of the charge of conspiracy insofar as
accused Balao, Angsico and Dacalos are concerned.

Among the accused-movants, the public officer whose

participation in the alleged offense is specifically
mentioned in the May 30, 2006 Memorandum is accused
Felicisimo Lazarte, Jr., the Chairman of the Inventory and
Acceptance Committee (IAC), which undertook the
inventory and final quantification of the accomplishment of
A.C. Cruz Construction. The allegations of Lazarte that the
IAC, due to certain constraints, allegedly had to rely on the
reports of the field engineers and/or the Project Office as to
which materials were actually installed; and that he
supposedly affixed his signature to the IAC Physical
Inventory Report and Memorandum dated August 12, 1991
despite his not being able to attend the actual inspection
because he allegedly saw that all the members of the
Committee had already signed are matters of defense
which he can address in the course of the trial. Hence, the
quashal of the information with respect to accused Lazarte
is denied for lack of merit.15

The prosecutions May 30, 2006 Memorandum does not

describe how accused Balao, Angsingco [sic] and Dacalos
may have known or when they became aware of the
alleged anomalies, before they allegedly caused payment
to the alleged errant contractor. The said Memorandum
states only that they failed to enforce the contract against

The prosecution contends that the allegation of conspiracy

is sufficient, since there is no need to allege the individual
acts of the conspirators because the act of one is
imputable to all. The allegation of conspiracy in the
information may be adequate if there is no uncertainty in
the acts or omissions imputed against some of the accused
and the findings of the prosecution, such as in the case at
bar. To allow accused Balao, Angsico and Lazarte [sic] to be
arraigned despite the seeming inadequacy of the instant
information as to their actual involvement in the offense
charged, which is not addressed by the mere allegation of
conspiracy, infringes on the constitutional right of the
accused to be informed of the nature and cause of the
accusation against them.

Hence, the present petition. The People of the Philippines, represented by

the Office of the Ombudsman, raises as issue that the Sandiganbayan
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in dismissing the information in Criminal Case No. 26583 which
sufficiently charged repondents Balao, Angsico and Dacalos of violating
Sec. 3(e) of R.A. 3019, as amended.16
The Courts Ruling
The petition is meritorious.

In Lazarte, Jr. v. Sandiganbayan,17 a case involving the same information,

the Court held that the 5 March 2001 information is valid. The Court held
that:
The Court finds that the Information in this case
alleges the essential elements of violation of
Section 3(e) of R.A. No. 3019. The Information
specifically alleges that petitioner, Espinosa and Lobrido
are public officers being then the Department Manager,
Project Management Officer A and Supervising Engineer of
the NHA respectively; in such capacity and committing the
offense in relation to the office and while in the
performance of their official functions connived,
confederated and mutually helped each other and with
accused Arceo C. Cruz, with deliberate intent through
manifest partiality and evident bad faith gave unwarranted
benefits to the latter, A.C. Cruz Construction and to
themselves, to the damage and prejudice of the
government. The felonious act consisted of causing to be
paid to A.C. Cruz Construction public funds in the amount
of P232,628.35 supposedly for excavation and road filling
works on the Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such works were
undertaken by said construction company as revealed by
the Special Audit conducted by COA.18 (Emphasis supplied)
Sections 6 and 8, Rule 110 of the Rules of Court state, respectively:
SEC. 6. Sufficiency of complaint or information. A complaint
or information is sufficient if it states the name of the
accused; the designation of the offense given by the
statute; the acts or omissions complained of as
constituting the offense; the name of the offended party;
the approximate date of the commission of the offense;
and the place where the offense was committed.

Balao, Angsico and Dacalos with sufficient particularity so as to enable

them to make a carefully considered plea to the charges against them.
The Court disagrees. In Cabrera v. Sandiganbayan,19 the Court held that
the fundamental test in determining the adequacy of the averments in an
information is whether the facts alleged, if hypothetically admitted, would
establish the essential elements of the crime. Matters extrinsic or evidence
aliunde should not be considered.20
Section 3(e) of RA 3019, as amended, states:
SEC. 3. Corrupt practices of public officers. In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be
unlawful:
xxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
In Dela Chica v. Sandiganbayan,21 the Court enumerated the essential
elements of Section 3(e) of RA 3019, as amended. The Court held that:
In a number of cases, the elements of this offense have
been broken down as follows:
1.

That the accused are public officers or

private persons charged in conspiracy with
them;

2.

That said public officers committed the

prohibited acts during the performance of
their official duties or in relation to their
public positions;
That they caused undue injury to any
party, whether the Government or a
private party;
That such injury was caused by giving
unwarranted benefits, advantage or
preference to such parties; and

When the offense is committed by more than one person,

all of them shall be included in the complaint or
information.
SEC. 8. Designation of the offense. The complaint or
information shall state the designation of the offense given
by the statute, aver the acts or omissions constitutiing the
offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the
statute punishing it.
In quashing the 5 March 2001 information, the Sandiganbayan held that
the information fail to satisfy the requirements of Section 6, Rule 110. The
Information x x x still fail to state the acts or omissions of accused-movants

3.
4.

5.

That the public officers acted with

manifest partiality, evident bad faith or
gross inexusable negligence.22

Clearly, the allegations in the 5 March 2001 information, if hypothetically

admitted, would establish the essential elements of the crime. The
information stated that (1) Balao, Lazarte, Jr., Angsico, and Dacalos were
the general manager, team head of the Visayas Management Office, and
Visayas division manager, respectively, of the National Housing Authority;
(2) they committed the prohibited acts in or about the month of March,
1992, while in the performance of their official functions; (3) they caused
undue injury to the Government in the amount of P232,628.35, supposedly
for the excavation and roadfilling works on the Pahanocoy Sites and
Services Project in Bacolod City despite the fact that no such works were
undertaken; (4) they gave unwarranted benefits, advantage and
preference to accused Arceo C. Cruz and A.C. Construction and
themselves; and (5) they acted with deliberate intent, with manifest
partiality and evident bad faith.
WHEREFORE, the Court GRANTS the petition. The Court SETS ASIDE the
2 March 2007 Resolution of the Sandiganbayan in Criminal Case No. 26583
and orders that (1) respondents Robert P. Balao, Josephine C. Angsico, and
Virgilio V. Dacalos be reinstated as accused in Criminal Case No. 26583; (2)
the hold departure order against them be reinstated; and (3) they be
arrested or they post a cash bond in sufficient amount.
SO ORDERED.

8. Rodriquez v. Ponferrada, GR # 155531-34, 29 July 2005

Settled is the rule that the single act of issuing a bouncing check may give
rise to two distinct criminal offenses: estafa and violation of Batas
Pambansa Bilang 22 (BP 22). The Rules of Court allow the offended party to
intervene via a private prosecutor in each of these two penal proceedings.
However, the recovery of the single civil liability arising from the single act
of issuing a bouncing check in
__________________
* On official leave.
either criminal case bars the recovery of the same civil liability in the other
criminal action. While the law allows two simultaneous civil remedies for
the offended party, it authorizes recovery in only one. In short, while two
crimes arise from a single set of facts, only one civil liability attaches to it.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court,
seeking to reverse the July 27, 2002 Order 2 of the Regional Court (RTC) of
Quezon City (Branch 104) in Criminal Case Nos. Q-01-106256 to Q-01106259. Also assailed is the August 16, 2002 Order 3 of the RTC denying
petitioners Motion for Reconsideration. The first assailed Order is quoted in
full as follows:

"For consideration is the opposition of the accused, through counsel, to the

formal entry of appearance of private prosecutor.
"Accused, through counsel, contends that the private prosecutor is barred
from appearing before this Court as his appearance is limited to the civil
aspect which must be presented and asserted in B.P. 22 cases pending
before the Metropolitan Trial Court of Quezon City.
"The private prosecutor submitted comment stating that the offended
party did not manifest within fifteen (15) days following the filing of the
information that the civil liability arising from the crime has been or would
be separately prosecuted and that she should therefore be required to pay
the legal fees pursuant to Section 20 of Rule 141 of the Rules of Court, as
amended.
"Considering that the prosecution under B.P. 22 is without prejudice to any
liability for violation of any provision of the Revised Penal Code (BP 22, Sec.
5), the civil action for the recovery of the civil liability arising from the
estafa cases pending before this Court is deemed instituted with the
criminal action (Rule 111, Sec. 1 [a]). The offended party may thus
intervene by counsel in the prosecution of the offense (Rule 110. Sec. 16).
"WHEREFORE, the appearance of a private prosecutor shall be allowed
upon payment of the legal fees for these estafa cases pending before this
Court pursuant to Section 1 of Rule 141 of the Rules of Court, as
amended."4
The Facts
The undisputed facts are narrated by petitioner as follows:
"On 10 December 2001, the Honorable Assistant City Prosecutor Rossana
S. Morales-Montojo of Quezon City Prosecutors Office issued her Resolution
in I.S. No. 01-15902, the dispositive portion of which reads as follows:
Premises considered, there being PROBABLE CAUSE to charge respondent
for ESTAFA under Article 315 paragraph 2(d) as amended by PD 818 and
for Violation of Batas Pambansa Blg. 22, it is respectfully recommended
that the attached Information be approved and filed in Court.
"As a consequence thereof, separate informations were separately filed
against herein [p]etitioner before proper [c]ourts, for Estafa and [v]iolation
of Batas Pambansa Blg. 22.
"Upon payment of the assessed and required docket fees by the [p]rivate
[c]omplainant, the informations for [v]iolation of Batas Pambansa Blg. 22
against herein [p]etitioner were filed and raffled to the Metropolitan Trial
Court of Quezon City, Branch 42, docketed as Criminal Cases Nos. 0108033
to 36.
"On the other hand, the informations for [e]stafa cases against herein
[p]etitioner were likewise filed and raffled to the Regional Trial Court of
Quezon City, Branch 104, docketed as Criminal Cases Nos. 01-106256 to
59.
"On 17 June 2002, petitioner through counsel filed in open court before the
[p]ublic [r]espondent an Opposition to the Formal Entry of Appearance of
the Private Prosecutor dated 14 June 2002.
"The [p]ublic [r]espondent court during the said hearing noted the Formal
Entry of Appearance of Atty. Felix R. Solomon as [p]rivate [p]rosecutor as
well as the Opposition filed thereto by herein [p]etitioner. x x x.
"As ordered by the Court, [p]rivate [c]omplainant through counsel filed her
Comment to the Opposition of herein [p]etitioner.

"On 27 June 2002, the [p]ublic [r]espondent court issued the first assailed
Order allowing the appearance of the [p]rivate [p]rosecutor in the aboveentitled criminal cases upon payment of the legal fees pursuant to Section
1 of Rule 141 of the Rules of Court, as amended.
"On 31 July 2002, [a]ccused through counsel filed a Motion for
Reconsideration dated 26 July 2002.
"On 16 August 2002, the [p]ublic [r]espondent court issued the second
assailed Order denying the Motion for Reconsideration of herein
[p]etitioner."5
Ruling of the Trial Court
Noting petitioners opposition to the private prosecutors entry of
appearance, the RTC held that the civil action for the recovery of civil
liability arising from the offense charged is deemed instituted, unless the
offended party (1) waives the civil action, (2) reserves the right to institute
it separately, or (3) institutes the civil action prior to the criminal action.
Considering that the offended party had paid the corresponding filing fee
for the estafa cases prior to the filing of the BP 22 cases with the
Metropolitan Trial Court (MeTC), the RTC allowed the private prosecutor to
appear and intervene in the proceedings.
Hence, this Petition.6
Issues
Petitioner raises this sole issue for the Courts consideration:
"Whether or not a [p]rivate [p]rosecutor can be allowed to intervene and
participate in the proceedings of the above-entitled [e]stafa cases for the
purpose of prosecuting the attached civil liability arising from the issuance
of the checks involved which is also subject mater of the pending B.P. 22
cases."7
The Courts Ruling
The Petition has no merit.
Sole Issue:
Civil Action in BP 22 Case Not a Bar
to Civil Action in Estafa Case
Petitioner theorizes that the civil action necessarily arising from the
criminal case pending before the MTC for violation of BP 22 precludes the
institution of the corresponding civil action in the criminal case for estafa
now pending before the RTC. She hinges her theory on the following
provisions of Rules 110 and 111 of the Rules of Court:
"SECTION 16. Intervention of the offended party in criminal action. -Where the civil action for recovery of civil liability is instituted in the
criminal action pursuant to Rule 111, the offended party may intervene by
counsel in the prosecution of the offense."
"SECTION 1. Institution of criminal and civil actions. -- (a) When a criminal
action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal
action unless the offended party waives the civil action, reserves the right
to institute it separately or institutes the civil action prior to the criminal
action.
"The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under
circumstances affording the offended party a reasonable opportunity to
make such reservation.

"When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or exemplary damages
without specifying the amount thereof in the complaint or information, the
filing fees therefor shall constitute a first lien on the judgment awarding
such damages.
xxxxxxxxx
"(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to file
such civil action separately shall be allowed.
"Upon filing of the aforesaid joint criminal and civil actions, the offended
party shall pay in full the filing fees based on the amount of the check
involved, which shall be considered as the actual damages claimed. Where
the complaint or information also seeks to recover liquidated, moral,
nominal, temperate or exemplary damages, the offended party shall pay
the filing fees based on the amounts alleged therein. If the amounts are
not so alleged but any of these damages are subsequently awarded by the
court, the filing fees based on the amount awarded shall constitute a first
lien on the judgment.
"Where the civil action has been filed separately and trial thereof has not
yet commenced, it may be consolidated with the criminal action upon
application with the court trying the latter case. If the application is
granted, the trial of both actions shall proceed in accordance with section 2
of this Rule governing consolidation of the civil and criminal actions."
Based on the foregoing rules, an offended party may intervene in the
prosecution of a crime, except in the following instances: (1) when, from
the nature of the crime and the law defining and punishing it, no civil
liability arises in favor of a private offended party; and (2) when, from the
nature of the offense, the offended parties are entitled to civil indemnity,
but (a) they waive the right to institute a civil action, (b) expressly reserve
the right to do so or (c) the suit has already been instituted. In any of these
instances, the private complainants interest in the case disappears and
criminal prosecution becomes the sole function of the public prosecutor. 8
None of these exceptions apply to the instant case. Hence, the private
prosecutor cannot be barred from intervening in the estafa suit.
True, each of the overt acts in these instances may give rise to two
criminal liabilities -- one for estafa and another for violation of BP 22. But
every such act of issuing a bouncing check involves only one civil liability
for the offended party, who has sustained only a single injury. 9 This is the
import of Banal v. Tadeo,10 which we quote in part as follows:
"Generally, the basis of civil liability arising from crime is the fundamental
postulate of our law that Every man criminally liable is also civilly liable
(Art. 100, The Revised Penal Code). Underlying this legal principle is the
traditional theory that when a person commits a crime he offends two
entities namely (1) the society in which he lives in or the political entity
called the State whose law he had violated; and (2) the individual member
of that society whose person, right, honor, chastity or property was
actually or directly injured or damaged by the same punishable act or
omission. However, this rather broad and general provision is among the
most complex and controversial topics in criminal procedure. It can be
misleading in its implications especially where the same act or omission
may be treated as a crime in one instance and as a tort in another or

where the law allows a separate civil action to proceed independently of

the course of the criminal prosecution with which it is intimately
intertwined. Many legal scholars treat as a misconception or fallacy the
generally accepted notion that the civil liability actually arises from the
crime when, in the ultimate analysis, it does not. While an act or omission
is felonious because it is punishable by law, it gives rise to civil liability not
so much because it is a crime but because it caused damage to another.
Viewing things pragmatically, we can readily see that what gives rise to the
civil liability is really the obligation and the moral duty of everyone to
repair or make whole the damage caused to another by reason of his own
act or omission, done intentionally or negligently, whether or not the same
be punishable by law. In other words, criminal liability will give rise to civil
liability only if the same felonious act or omission results in damage or
injury to another and is the direct and proximate cause thereof. Damage or
injury to another is evidently the foundation of the civil action. Such is not
the case in criminal actions for, to be criminally liable, it is enough that the
act or omission complained of is punishable, regardless of whether or not it
also causes material damage to another. (See Sangco, Philippine Law on
Torts and Damages, 1978, Revised Edition, pp. 246-247)."
Thus, the possible single civil liability arising from the act of issuing a
bouncing check can be the subject of both civil actions deemed instituted
with the estafa case and the BP 22 violation prosecution. In the crimes of
both estafa and violation of BP 22, Rule 111 of the Rules of Court expressly
allows, even automatically in the present case, the institution of a civil
action without need of election by the offended party. As both remedies are
simultaneously available to this party, there can be no forum shopping. 11
Hence, this Court cannot agree with what petitioner ultimately espouses.
At the present stage, no judgment on the civil liability has been rendered in
either criminal case. There is as yet no call for the offended party to elect
remedies and, after choosing one of them, be considered barred from
others available to her.
Election of Remedies
Petitioner is actually raising the doctrine of election of remedies. "In its
broad sense, election of remedies refers to the choice by a party to an
action of one of two or more coexisting remedial rights, where several such
rights arise out of the same facts, but the term has been generally limited
to a choice by a party between inconsistent remedial rights, the assertion
of one being necessarily repugnant to, or a repudiation of, the other." 12 In
its more restricted and technical sense, the election of remedies is the
adoption of one of two or more coexisting ones, with the effect of
precluding a resort to the others.13
The Court further elucidates in Mellon Bank v. Magsino14 as follows:
"As a technical rule of procedure, the purpose of the doctrine of election of
remedies is not to prevent recourse to any remedy, but to prevent double
redress for a single wrong.15 It is regarded as an application of the law of
estoppel, upon the theory that a party cannot, in the assertion of his right
occupy inconsistent positions which form the basis of his respective
remedies. However, when a certain state of facts under the law entitles a
party to alternative remedies, both founded upon the identical state of
facts, these remedies are not considered inconsistent remedies. In such
case, the invocation of one remedy is not an election which will bar the

other, unless the suit upon the remedy first invoked shall reach the stage
of final adjudication or unless by the invocation of the remedy first sought
to be enforced, the plaintiff shall have gained an advantage thereby or
caused detriment or change of situation to the other. 16 It must be pointed
out that ordinarily, election of remedies is not made until the judicial
proceedings has gone to judgment on the merits.17
"Consonant with these rulings, this Court, through Justice J.B.L. Reyes,
opined that while some American authorities hold that the mere initiation
of proceedings constitutes a binding choice of remedies that precludes
pursuit of alternative courses, the better rule is that no binding election
occurs before a decision on the merits is had or a detriment to the other
party supervenes.18 This is because the principle of election of remedies is
discordant with the modern procedural concepts embodied in the Code of
Civil Procedure which permits a party to seek inconsistent remedies in his
claim for relief without being required to elect between them at the
pleading stage of the litigation."19
In the present cases before us, the institution of the civil actions with the
estafa cases and the inclusion of another set of civil actions with the BP 22
cases are not exactly repugnant or inconsistent with each other. Nothing in
the Rules signifies that the necessary inclusion of a civil action in a criminal
case for violation of the Bouncing Checks Law20 precludes the institution in
an estafa case of the corresponding civil action, even if both offenses
relate to the issuance of the same check.
The purpose of Section 1(b) of Rule 111 is explained by Justice Florenz D.
Regalado (ret.), former chairman of the committee tasked with the revision
of the Rules of Criminal Procedure. He clarified that the special rule on BP
22 cases was added, because the dockets of the courts were clogged with
such litigations; creditors were using the courts as collectors. While
ordinarily no filing fees were charged for actual damages in criminal cases,
the rule on the necessary inclusion of a civil action with the payment of
filing fees based on the face value of the check involved was laid down to
prevent the practice of creditors of using the threat of a criminal
prosecution to collect on their credit free of charge. 21
Clearly, it was not the intent of the special rule to preclude the prosecution
of the civil action that corresponds to the estafa case, should the latter also
be filed. The crimes of estafa and violation of BP 22 are different and
distinct from each other. There is no identity of offenses involved, for which
legal jeopardy in one case may be invoked in the other. The offenses
charged in the informations are perfectly distinct from each other in point
of law, however nearly they may be connected in point of fact. 22
What Section 1(b) of the Rules of Court prohibits is the reservation to file
the corresponding civil action.1wphi1 The criminal action shall be deemed
to include the corresponding civil action. "[U]nless a separate civil action
has been filed before the institution of the criminal action, no such civil
action can be instituted after the criminal action has been filed as the
same has been included therein."23 In the instant case, the criminal action
for estafa was admittedly filed prior to the criminal case for violation of BP
22, with the corresponding filing fees for the inclusion of the corresponding
civil action paid accordingly. 24
Furthermore, the fact that the Rules do not allow the reservation of civil
actions in BP 22 cases cannot deprive private complainant of the right to

protect her interests in the criminal action for estafa. Nothing in the current
law or rules on BP 22 vests the jurisdiction of the corresponding civil case
exclusively in the court trying the BP 22 criminal case. 25
In promulgating the Rules, this Court did not intend to leave the offended
parties without any remedy to protect their interests in estafa cases. Its
power to promulgate the Rules of Court is limited in the sense that rules
"shall not diminish, increase or modify substantive rights."26 Private
complainants intervention in the prosecution of estafa is justified not only
for the prosecution of her interests, but also for the speedy and
inexpensive administration of justice as mandated by the Constitution. 27
The trial court was, therefore, correct in holding that the private prosecutor
may intervene before the RTC in the proceedings for estafa, despite the
necessary inclusion of the corresponding civil action in the proceedings for
violation of BP 22 pending before the MTC. A recovery by the offended
party under one remedy, however, necessarily bars that under the other.
Obviously stemming from the fundamental rule against unjust
enrichment,28 this is in essence the rationale for the proscription in our law
against double recovery for the same act or omission.
WHEREFORE, the Petition is DISMISSED and the assailed Order
AFFIRMED. Costs against petitioner.
SO ORDERED.
9. Miranda vsTuliao
GR No. 158763March 31, 2006
This is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the 18 December 2002 Decision 1 of the Court of Appeals
in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying
petitioners Motion for Reconsideration. The dispositive portion of the
assailed decision reads as follows:
WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Orders, the instant petition for certiorari,
mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE,
and it is hereby ordered:
1. The assailed Joint Order dated August 17, 2001, Order dated
September 21, 2001, Joint Order dated October 16, 2001 and Joint
Order dated November 14, 2001 dismissing the two (2)
Informations for Murder, all issued by public respondent Judge
Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-3524
are hereby REVERSED and SET ASIDE for having been issued with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and
REINSTATING the Order dated June 25, 2001 and Joint Order dated
July 6, 2001 issued by the then acting Presiding Judge Wilfredo
Tumaliuan;
2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered
REINSTATED in the docket of active criminal cases of Branch 36 of
the Regional Trial Court of Santiago City, Isabela; and
3. Public respondent Judge Anastacio D. Anghad is DIRECTED to
ISSUE forthwith Warrants of Arrest for the apprehension of private
respondents Jose "Pempe" Miranda, SPO3 Alberto P. Dalmacio, PO3

Romeo B. Ocon and accused Rodel T. Maderal in said Criminal

Cases Nos. 36-3523 and 36-3524. 2
The factual and procedural antecedents of the case are as follows:
On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan,
Ramon, Isabela, which were later identified as the dead bodies of Vicente
Bauzon and Elizer Tuliao, son of private respondent Virgilio Tuliao who is
now under the witness protection program.
Two informations for murder were filed against SPO1 Wilfredo Leao, SPO1
Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2
Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of
Santiago City.
The venue was later transferred to Manila. On 22 April 1999, the RTC of
Manila convicted all of the accused and sentenced them to two counts of
reclusion perpetua except SPO2 Maderal who was yet to be arraigned at
that time, being at large. The case was appealed to this Court on
automatic review where we, on 9 October 2001, acquitted the accused
therein on the ground of reasonable doubt.
Sometime in September 1999, SPO2 Maderal was arrested. On 27 April
2001, he executed a sworn confession and identified petitioners Jose C.
Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a certain
Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths
of Vicente Bauzon and Elizer Tuliao.
Respondent Tuliao filed a criminal complaint for murder against petitioners,
Boyet dela Cruz, and Amado Doe, and submitted the sworn confession of
SPO2 Maderal. On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan
issued warrants of arrest against petitioners and SPO2 Maderal.
On 29 June 2001, petitioners filed an urgent motion to complete
preliminary investigation, to reinvestigate, and to recall and/or quash the
warrants of arrest.
In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted
the absence of petitioners and issued a Joint Order denying said urgent
motion on the ground that, since the court did not acquire jurisdiction over
their persons, the motion cannot be properly heard by the court. In the
meantime, petitioners appealed the resolution of State Prosecutor Leo T.
Reyes to the Department of Justice.
On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took
over the case and issued a Joint Order reversing the Joint Order of Judge
Tumaliuan. Consequently, he ordered the cancellation of the warrant of
arrest issued against petitioner Miranda. He likewise applied this Order to
petitioners Ocon and Dalmacio in an Order dated 21 September 2001.
State Prosecutor Leo S. Reyes and respondent Tuliao moved for the
reconsideration of the said Joint Order and prayed for the inhibition of
Judge Anghad, but the motion for reconsideration was denied in a Joint
Order dated 16 October 2001 and the prayer for inhibition was denied in a
Joint Order dated 22 October 2001.
On 25 October 2001, respondent Tuliao filed a petition for certiorari,
mandamus and prohibition with this Court, with prayer for a Temporary
Restraining Order, seeking to enjoin Judge Anghad from further proceeding
with the case, and seeking to nullify the Orders and Joint Orders of Judge
Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and
22 October 2001.

On 12 November 2001, this Court issued a Resolution resolving to grant

the prayer for a temporary restraining order against Judge Anghad from
further proceeding with the criminal cases. Shortly after the aforesaid
resolution, Judge Anghad issued a Joint Order dated 14 November 2001
dismissing the two Informations for murder against petitioners. On 19
November 2001, this Court took note of respondents cash bond evidenced
by O.R. No. 15924532 dated 15 November 2001, and issued the temporary
restraining order while referring the petition to the Court of Appeals for
adjudication on the merits.
Respondent Tuliao filed with this Court a Motion to Cite Public Respondent
in Contempt, alleging that Judge Anghad "deliberately and willfully
committed contempt of court when he issued on 15 November 2001 the
Order dated 14 November 2001 dismissing the informations for murder."
On 21 November 2001, we referred said motion to the Court of Appeals in
view of the previous referral to it of respondents petition for certiorari,
prohibition and mandamus.
On 18 December 2002, the Court of Appeals rendered the assailed decision
granting the petition and ordering the reinstatement of the criminal cases
in the RTC of Santiago City, as well as the issuance of warrants of arrest
against petitioners and SPO2 Maderal. Petitioners moved for a
reconsideration of this Decision, but the same was denied in a Resolution
dated 12 June 2003.
Hence, this petition.
The facts of the case being undisputed, petitioners bring forth to this Court
the following assignments of error:
FIRST ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in
reversing and setting aside the Joint Order of Judge Anastacio D. Anghad
dated August 17, 2001, September 21, 2001, October 16, 2001 and
November 14, 2001 issued in criminal cases numbered 36-3523 and 363524; and, erred in upholding, affirming and reinstating the Order dated
July 6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on
the alleged rule that an accused cannot seek any judicial relief if he does
not submit his person to the jurisdiction of the court.
SECOND ASSIGNMENT OF ERROR
With all due respect, the Honorable Court of Appeals gravely erred in
directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in
the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court
of Santiago City, Philippines, and in ordering the public respondent to reissue the warrants of arrest against herein petitioners.
THIRD ASSIGNMENT OF ERROR
Wit all due respect, the Honorable Court of Appeals committed a reversible
error in ordering the reinstatement of Criminal Cases No. 36-3523 and No.
36-3524 in the docket of active criminal cases of Branch 36 of the regional
trial court of Santiago City, Philippines, and in ordering the public
respondent to issue warrants of arrest against herein petitioners, the order
of dismissal issued therein having become final and executory.
Adjudication of a motion to quash a warrant of arrest requires neither
jurisdiction over the person of the accused, nor custody of law over the
body of the accused.

The first assignment of error brought forth by the petitioner deals with the
Court of Appeals ruling that:
[A]n accused cannot seek any judicial relief if he does not submit his
person to the jurisdiction of the court. Jurisdiction over the person of the
accused may be acquired either through compulsory process, such as
warrant of arrest, or through his voluntary appearance, such as when he
surrenders to the police or to the court. It is only when the court has
already acquired jurisdiction over his person that an accused may invoke
the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No.
RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in
the custody of the law before the court may validly act on his petition for
judicial reliefs.3
Proceeding from this premise, the Court of Appeals ruled that petitioners
Miranda, Ocon and Dalmacio cannot seek any judicial relief since they were
not yet arrested or otherwise deprived of their liberty at the time they filed
their "Urgent Motion to complete preliminary investigation; to
reinvestigate; to recall and/or quash warrants of arrest." 4
Petitioners counter the finding of the Court of Appeals by arguing that
jurisdiction over the person of the accused is required only in applications
for bail. Furthermore, petitioners argue, assuming that such jurisdiction
over their person is required before the court can act on their motion to
quash the warrant for their arrest, such jurisdiction over their person was
already acquired by the court by their filing of the above Urgent Motion.
In arguing that jurisdiction over the person is required only in the
adjudication of applications for bail, petitioners quote Retired Court of
Appeals Justice Oscar Herrera:
Except in applications for bail, it is not necessary for the court to first
acquire jurisdiction over the person of the accused to dismiss the case or
grant other relief. The outright dismissal of the case even before the court
acquires jurisdiction over the person of the accused is authorized under
Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the
Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno (232
SCRA 192), the case was dismissed on motion of the accused for lack of
probable cause without the accused having been arrested. In Paul Roberts
vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the
issuance of a warrant of arrest in abeyance pending review by the
Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA
1025), the Court ordered the case transferred from the Sandiganbayan to
the RTC which eventually ordered the dismissal of the case for lack of
probable cause.6
In arguing, on the other hand, that jurisdiction over their person was
already acquired by their filing of the above Urgent Motion, petitioners
invoke our pronouncement, through Justice Florenz D. Regalado, in
Santiago v. Vasquez7:
The voluntary appearance of the accused, whereby the court acquires
jurisdiction over his person, is accomplished either by his pleading to the
merits (such as by filing a motion to quash or other pleadings requiring the
exercise of the courts jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is
intended to obtain the provisional liberty of the accused, as a rule the

same cannot be posted before custody of the accused has been acquired
by the judicial authorities either by his arrest or voluntary surrender.
Our pronouncement in Santiago shows a distinction between custody of
the law and jurisdiction over the person. Custody of the law is required
before the court can act upon the application for bail, but is not required
for the adjudication of other reliefs sought by the defendant where the
mere application therefor constitutes a waiver of the defense of lack of
jurisdiction over the person of the accused. 8 Custody of the law is
accomplished either by arrest or voluntary surrender, 9 while jurisdiction
over the person of the accused is acquired upon his arrest or voluntary
appearance. 10 One can be under the custody of the law but not yet subject
to the jurisdiction of the court over his person, such as when a person
arrested by virtue of a warrant files a motion before arraignment to quash
the warrant. On the other hand, one can be subject to the jurisdiction of
the court over his person, and yet not be in the custody of the law, such as
when an accused escapes custody after his trial has commenced. 11 Being
in the custody of the law signifies restraint on the person, who is thereby
deprived of his own will and liberty, binding him to become obedient to the
will of the law. 12 Custody of the law is literally custody over the body of the
accused. It includes, but is not limited to, detention.
The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of
Appeals should not have been separated from the issue in that case, which
is the application for admission to bail of someone not yet in the custody of
the law. The entire paragraph of our pronouncement in Pico reads:
A person applying for admission to bail must be in the custody of the law
or otherwise deprived of his liberty. A person who has not submitted
himself to the jurisdiction of the court has no right to invoke the processes
of that court. Respondent Judge should have diligently ascertained the
whereabouts of the applicant and that he indeed had jurisdiction over the
body of the accused before considering the application for bail. 13
While we stand by our above pronouncement in Pico insofar as it concerns
bail, we clarify that, as a general rule, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the court. 15 As we held in
the aforecited case of Santiago, seeking an affirmative relief in court,
whether in civil or criminal proceedings, constitutes voluntary appearance.
Pico deals with an application for bail, where there is the special
requirement of the applicant being in the custody of the law. In Feliciano v.
Pasicolan, 16 we held that "[t]he purpose of bail is to secure ones release
and it would be incongruous to grant bail to one who is free. Thus, bail is
the security required and given for the release of a person who is in the
custody of law." The rationale behind this special rule on bail is that it
discourages and prevents resort to the former pernicious practice wherein
the accused could just send another in his stead to post his bail, without
recognizing the jurisdiction of the court by his personal appearance therein
and compliance with the requirements therefor. 17
There is, however, an exception to the rule that filing pleadings seeking
affirmative relief constitutes voluntary appearance, and the consequent
submission of ones person to the jurisdiction of the court. This is in the
case of pleadings whose prayer is precisely for the avoidance of the
jurisdiction of the court, which only leads to a special appearance. These
pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of

jurisdiction over the person of the defendant, whether or not other grounds
for dismissal are included; 18 (2) in criminal cases, motions to quash a
complaint on the ground of lack of jurisdiction over the person of the
accused; and (3) motions to quash a warrant of arrest. The first two are
consequences of the fact that failure to file them would constitute a waiver
of the defense of lack of jurisdiction over the person. The third is a
consequence of the fact that it is the very legality of the court process
forcing the submission of the person of the accused that is the very issue
in a motion to quash a warrant of arrest.
To recapitulate what we have discussed so far, in criminal cases,
jurisdiction over the person of the accused is deemed waived by the
accused when he files any pleading seeking an affirmative relief, except in
cases when he invokes the special jurisdiction of the court by impugning
such jurisdiction over his person. Therefore, in narrow cases involving
special appearances, an accused can invoke the processes of the court
even though there is neither jurisdiction over the person nor custody of the
law. However, if a person invoking the special jurisdiction of the court
applies for bail, he must first submit himself to the custody of the law.
In cases not involving the so-called special appearance, the general rule
applies, i.e., the accused is deemed to have submitted himself to the
jurisdiction of the court upon seeking affirmative relief. Notwithstanding
this, there is no requirement for him to be in the custody of the law. The
following cases best illustrate this point, where we granted various reliefs
to accused who were not in the custody of the law, but were deemed to
have placed their persons under the jurisdiction of the court. Note that
none of these cases involve the application for bail, nor a motion to quash
an information due to lack of jurisdiction over the person, nor a motion to
quash a warrant of arrest:
1. In Allado v. Diokno, 19 on the prayer of the accused in a petition for
certiorari on the ground of lack of probable cause, we issued a temporary
restraining order enjoining PACC from enforcing the warrant of arrest and
the respondent judge therein from further proceeding with the case and,
instead, to elevate the records to us.
2. In Roberts, Jr. v. Court of Appeals,20 upon the accuseds Motion to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest on the ground that they filed a Petition for Review with the
Department of Justice, we directed respondent judge therein to cease and
desist from further proceeding with the criminal case and to defer the
issuance of warrants of arrests against the accused.
3. In Lacson v. Executive Secretary, 21 on the prayer of the accused in a
petition for certiorari on the ground of lack of jurisdiction on the part of the
Sandiganbayan, we directed the Sandiganbayan to transfer the criminal
cases to the Regional Trial Court even before the issuance of the warrants
of arrest.
We hold that the circumstances forcing us to require custody of the law in
applications for bail are not present in motions to quash the warrant of
arrest. If we allow the granting of bail to persons not in the custody of the
law, it is foreseeable that many persons who can afford the bail will remain
at large, and could elude being held to answer for the commission of the
offense if ever he is proven guilty. On the other hand, if we allow the
quashal of warrants of arrest to persons not in the custody of the law, it

would be very rare that a person not genuinely entitled to liberty would
remain scot-free. This is because it is the same judge who issued the
warrant of arrest who will decide whether or not he followed the
Constitution in his determination of probable cause, and he can easily deny
the motion to quash if he really did find probable cause after personally
examining the records of the case.
Moreover, pursuant to the presumption of regularity of official functions,
the warrant continues in force and effect until it is quashed and therefore
can still be enforced on any day and at any time of the day and night. 22
Furthermore, the continued absence of the accused can be taken against
him in the determination of probable cause, since flight is indicative of
guilt.
In fine, as much as it is incongruous to grant bail to one who is free, it is
likewise incongruous to require one to surrender his freedom before
asserting it. Human rights enjoy a higher preference in the hierarchy of
rights than property rights,23 demanding that due process in the
deprivation of liberty must come before its taking and not after.
Quashing a warrant of arrest based on a subsequently filed petition for
review with the Secretary of Justice and based on doubts engendered by
the political climate constitutes grave abuse of discretion.
We nevertheless find grave abuse of discretion in the assailed actions of
Judge Anghad. Judge Anghad seemed a little too eager of dismissing the
criminal cases against the petitioners. First, he quashed the standing
warrant of arrest issued by his predecessor because of a subsequently filed
appeal to the Secretary of Justice, and because of his doubts on the
existence of probable cause due to the political climate in the city. Second,
after the Secretary of Justice affirmed the prosecutors resolution, he
dismissed the criminal cases on the basis of a decision of this Court in
another case with different accused, doing so two days after this Court
resolved to issue a temporary restraining order against further proceeding
with the case.
After Judge Tumaliuan issued warrants for the arrest of petitioners,
petitioner Miranda appealed the assistant prosecutors resolution before
the Secretary of Justice. Judge Anghad, shortly after assuming office,
quashed the warrant of arrest on the basis of said appeal. According to
Judge Anghad, "x x x prudence dictates (that) and because of comity, a
deferment of the proceedings is but proper."24
Quashal on this basis is grave abuse of discretion. It is inconceivable to
charge Judge Tumaliuan as lacking in prudence and oblivious to comity
when he issued the warrants of arrest against petitioners just because the
petitioners might, in the future, appeal the assistant prosecutors
resolution to the Secretary of Justice. But even if the petition for review
was filed before the issuance of the warrants of arrest, the fact remains
that the pendency of a petition for the review of the prosecutors resolution
is not a ground to quash the warrants of arrest.
In Webb v. de Leon,25 we held that the petitioners therein cannot assail as
premature the filing of the information in court against them on the ground
that they still have the right to appeal the adverse resolution of the DOJ
Panel to the Secretary of Justice. Similarly, the issuance of warrants of
arrest against petitioners herein should not have been quashed as
premature on the same ground.

The other ground invoked by Judge Anghad for the quashal of the warrant
of arrest is in order if true: violation of the Constitution. Hence, Judge
Anghad asked and resolved the question:
In these double murder cases, did this Court comply or adhere to the
above-quoted constitutional proscription, which is Sec. 2, Article III Bill of
Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the
above-cited decisional cases? To this query or issue, after a deep perusal of
the arguments raised, this Court, through [its] regular Presiding Judge,
finds merit in the contention of herein accused-movant, Jose "Pempe"
Miranda.26
Judge Anghad is referring to the following provision of the Constitution as
having been violated by Judge Tumaliuan:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.27
However, after a careful scrutiny of the records of the case, including the
supporting evidence to the resolution of the prosecutor in his
determination of probable cause, we find that Judge Anghad gravely
abused his discretion.
According to petitioners:
In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the
petitioners is apparent from the face of the order itself, which clearly
stated that the determination of probable cause was based on the
certification, under oath, of the fiscal and not on a separate determination
personally made by the Judge. No presumption of regularity could be
drawn from the order since it expressly and clearly showed that it was
based only on the fiscals certification. 28
Petitioners claim is untrue. Judge Tumaliuans Joint Order contains no such
indication that he relied solely on the prosecutors certification. The Joint
Order even indicated the contrary:
Upon receipt of the information and resolution of the prosecutor, the Court
proceeded to determine the existence of a probable cause by personally
evaluating the records x x x.[29]
The records of the case show that the prosecutors certification was
accompanied by supporting documents, following the requirement under
Lim, Sr. v. Felix30 and People v. Inting.31 The supporting documents are the
following:
1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes;
2. Affidavit dated 22 May 2001 of Modesto Gutierrez;
3. Affidavit dated 19 May 2001 of Romeo B. Ocon;
4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C.
Miranda and Reynaldo de la Cruz;
5. Affidavit dated 19 May 2001 of Alberto Dalmacio;
6. Decision dated 22 April 1999 of the Regional Trial Court of
Manila, Branch 41 in Criminal Case No. 97-160355;
7. Sworn statement dated 27 April 2001 of Rodel Maderal;

8. Information dated 22 June 2001;

9. Affidavit-complaint of Virgilio Tuliao; and
10. Medico-legal Reports of the cadavers of Elezer Tuliao and
Vicente Buazon.
Hence, procedurally, we can conclude that there was no violation on the
part of Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge
Anghad, however, focused on the substantive part of said section, i.e., the
existence of probable cause. In failing to find probable cause, Judge
Anghad ruled that the confession of SPO2 Maderal is incredible for the
following reasons: (1) it was given after almost two years in the custody of
the National Bureau of Investigation; (2) it was given by someone who
rendered himself untrustworthy for being a fugitive for five years; (3) it was
given in exchange for an obvious reward of discharge from the information;
and (4) it was given during the election period amidst a "politically charged
scenario where "Santiago City voters were pitted against each other along
the lines of the Miranda camp on one side and former City Mayor Amelita
S. Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the
other."32
We painstakingly went through the records of the case and found no
reason to disturb the findings of probable cause of Judge Tumaliuan.
It is important to note that an exhaustive debate on the credibility of a
witness is not within the province of the determination of probable cause.
As we held in Webb33:
A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by
the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of
guilt. As well put in Brinegar v. United States, while probable cause
demands more than "bare suspicion," it requires "less than evidence which
would justify x x x conviction." A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of guilt.
x x x Probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part of
trial x x x.
Dismissing a criminal case on the basis of a decision of this Court in
another case with different accused constitutes grave abuse of discretion.
Judge Anghad had quashed the warrant of arrest on the ground, among
other things, that there was a petition for review of the assistant
prosecutors resolution before the Secretary of Justice. However, after the
Secretary of Justice affirmed the prosecutors resolution, Judge Anghad
summarily dismissed the two criminal cases against the petitioners on the
basis of the following explanation:
Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al.,
RTC, Branch 41, Manila, and based from his sworn statements, he
pinpointed to Mr. Miranda the mastermind and with him and the other
police officers as the direct perpetrators, the October 9, 2001 Decision of
the Supreme Court absolving the five cops of murder, certainly makes his
sworn Statements a "narration of falsehood and lies" and that because of
the decision acquitting said officers "who were likewise falsely linked by
said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt

that Rodel Maderal made untruthful, fabricated and perjured statements

and therefore the same is without probable value." This Court agrees with
the defenses views. Indeed, of what use is Maderals statements when the
Supreme Court rejected the prosecutions evidence presented and
adduced in Criminal Case No. 97-160355. Rodel Maderal is supposed to
turn state witness in these two (2) cases but with the Supreme Court
decision adverted to, the probative value of his statements is practically
nil.
xxxx
This Court finds merit to the manifestation of the accused Miranda dated
October 18, 2001, praying for the summary dismissal of the two (2) murder
charges in view of the latest decision of the Supreme Court in People of the
Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the
accused therein and in effect disregarding all the evidence presented by
the prosecution in that case. Accordingly, the two (2) informations [for]
murder filed against Jose Miranda are ordered dismissed. 34
This is a clear case of abuse of discretion. Judge Anghad had no right to
twist our decision and interpret it to the discredit of SPO2 Maderal, who
was still at large when the evidence of the prosecution in the Leao case
was presented. A decision, even of this Court, acquitting the accused
therein of a crime cannot be the basis of the dismissal of criminal case
against different accused for the same crime. The blunder of Judge Anghad
is even more pronounced by the fact that our decision in Leao was based
on reasonable doubt. We never ruled in Leao that the crime did not
happen; we just found that there was reasonable doubt as to the guilt of
the accused therein, since the prosecution in that case relied on
circumstantial evidence, which interestingly is not even the situation in the
criminal cases of the petitioners in the case at bar as there is here an
eyewitness: Rodel Maderal. The accused in Leao furthermore had no
motive to kill respondent Tuliaos son, whereas petitioners herein had been
implicated in the testimony of respondent Tuliao before the Senate Blue
Ribbon Committee.
It is preposterous to conclude that because of our finding of reasonable
doubt in Leao, "it is now beyond doubt that Rodel Maderal made
untruthful, fabricated and perjured statements and therefore the same is
without probable value."35 On the contrary, if we are to permit the use of
our decision in Leao, an acquittal on the ground of reasonable doubt
actually points to the probability of the prosecutions version of the facts
therein. Such probability of guilt certainly meets the criteria of probable
cause.
We cannot let unnoticed, too, Judge Anghads dismissal of the informations
two days after we resolved to issue, upon the filing of a bond, a temporary
restraining order prohibiting him from further proceeding with the case.
The bond was filed the day after the informations were dismissed. While
the dismissal of the case was able to beat the effectivity date of the
temporary restraining order, such abrupt dismissal of the informations
(days after this Courts resolve to issue a TRO against Judge Anghad)
creates wild suspicions about the motives of Judge Anghad.
Nullification of a proceeding necessarily carries with it the reinstatement of
the orders set aside by the nullified proceeding.

In their second assignment of error, petitioners claim that the Court of

Appeals did not recall or reinstate the warrants of arrest issued by Judge
Tumaliuan, but instead directed Judge Anghad to issue apparently new
warrants of arrest.36 According to the petitioners, it was an error for the
Court of Appeals to have done so, without a personal determination of
probable cause.
We disagree. Whether the Court of Appeals ordered the issuance of new
warrants of arrest or merely ordered the reinstatement of the warrants of
arrest issued by Judge Tumaliuan is merely a matter of scrupulous
semantics, the slight inaccuracy whereof should not be allowed to affect
the dispositions on the merits, especially in this case where the other
dispositions of the Court of Appeals point to the other direction. Firstly, the
Court of Appeals had reinstated the 25 June 2001 Order of Judge
Tumaliuan,37 which issued the warrants of arrest. Secondly, the Court of
Appeals likewise declared the proceedings conducted by Judge Anghad
void. Certainly, the declaration of nullity of proceedings should be deemed
to carry with it the reinstatement of the orders set aside by the nullified
proceedings. Judge Anghads order quashing the warrants of arrest had
been nullified; therefore those warrants of arrest are henceforth deemed
unquashed.
Even if, however, the Court of Appeals had directed the issuance of new
warrants of arrest based on a determination of probable cause, it would
have been legally permissible for them to do so. The records of the
preliminary investigation had been available to the Court of Appeals, and
are also available to this Court, allowing both the Court of Appeals and this
Court to personally examine the records of the case and not merely rely on
the certification of the prosecutor. As we have ruled in Allado v. Diokno and
Roberts v. Court of Appeals, the determination of probable cause does not
rest on a subjective criteria. As we had resolved in those cases to overrule
the finding of probable cause of the judges therein on the ground of grave
abuse of discretion, in the same vein, we can also overrule the decision of
a judge reversing a finding of probable cause, also on the ground of grave
abuse of discretion.
There is no double jeopardy in the reinstatement of a criminal case
dismissed before arraignment
In their third assignment of error, petitioners claim that the Court of
Appeals committed a reversible error in ordering the reinstatement of
Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of
dismissal issued therein had become final and executory. According to
petitioners:
It is also worthy to point out at this juncture that the Joint Order of Judge
Anghad dated November 14, 2001 is NOT ONE of those Orders which were
assailed in the private respondent Tuliaos Petition for Certiorari,
Mandamus and Prohibition filed by the private respondent before the Court
of Appeals. As carefully enumerated in the first page of the assailed
Decision, only the following Orders issued by Judge Anghad were
questioned by private respondent, to wit:
1.) Joint Order dated August 17, 2001;
2.) Order dated September 21, 2001;
3.) Joint Order dated October 16, 2001; and
4.) Joint Order dated October 22, 2001.

Obviously, the Joint Order dated November 14, 2001 of Judge Anghad,
which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is
NOT included in the list of the assailed Order/Joint Orders. Hence, the Court
of Appeals should not have passed upon the validity or nullity of the Joint
Order of November 14, 2001.38
Petitioners must have forgotten that respondent Tuliaos Petition for
Certiorari, Prohibition and Mandamus was filed not with the Court of
Appeals, but with this Court. The Court of Appeals decided the case
because we referred the same to them in our 19 November 2001
Resolution. Such petition was filed on 25 October 2001, around three
weeks before the 14 November 2001 Order. Upon receipt of the 14
November 2001 Order, however, respondent Tuliao lost no time in filing
with this Court a Motion to Cite Public Respondent in Contempt, alleging
that Judge Anghad "deliberately and willfully committed contempt of court
when he issued on 15 November 2001 the Order dated 14 November 2001
dismissing the informations for murder." On 21 November 2001, we
referred said motion to the Court of Appeals, in view of the previous
referral of respondent Tuliaos petition for certiorari, prohibition and
mandamus.
Our referral to the Court of Appeals of the Motion to Cite Public Repondent
in Contempt places the 14 November 2001 Order within the issues of the
case decided by the Court of Appeals. In claiming that Judge Anghad
committed contempt of this Court in issuing the 14 November 2001 Order,
respondent Tuliao had ascribed to Judge Anghad an act much more serious
than grave abuse of discretion.
Respondent Tuliao claims that Judge Anghad issued the 14 November 2001
Order on 15 November 2001, antedating it so as to avoid the effects of our
12 November 2001 Resolution. In said 12 November 2001 Resolution, we
resolved to issue a temporary restraining order enjoining Judge Anghad
from further proceeding with the criminal cases upon the respondent
Tuliaos filing of a bond in the amount of P20,000.00. Respondent Tuliao
had filed the bond on 15 November 2005.
While we cannot immediately pronounce Judge Anghad in contempt,
seeing as disobedience to lawful orders of a court and abuse of court
processes are cases of indirect contempt which require the granting of
opportunity to be heard on the part of respondent, 39 the prayer to cite
public respondent in contempt and for other reliefs just and equitable
under the premises should be construed to include a prayer for the
nullification of said 14 November 2001 Order.
In any case, the reinstatement of a criminal case dismissed before
arraignment does not constitute double jeopardy. Double jeopardy cannot
be invoked where the accused has not been arraigned and it was upon his
express motion that the case was dismissed.40
As to respondent Tuliaos prayer (in both the original petition for certiorari
as well as in his motion to cite for contempt) to disqualify Judge Anghad
from further proceeding with the case, we hold that the number of
instances of abuse of discretion in this case are enough to convince us of
an apparent bias on the part of Judge Anghad. We further resolve to follow
the case of People v. SPO1 Leao, 41 by transferring the venue of Criminal
Cases No. 36-3523 and No. 36-3524 to the City of Manila, pursuant to
Article VIII, Section 4, of the Constitution.

WHEREFORE, the petition is DENIED. The Decision dated 18 December

2002 and the Resolution dated 12 June 2003 of the Court of Appeals are
hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523
and No. 36-3524 be transferred to and raffled in the Regional Trial Court of
the City of Manila. In this connection,
1) Let a copy of this decision be furnished the Executive Judge of
the RTC of the City of Santiago, Isabela, who is directed to effect
the transfer of the cases within ten (10) days after receipt hereof;
2) The Executive Judge of the RTC of the City of Santiago, Isabela,
is likewise directed to report to this Court compliance hereto within
ten (10) days from transfer of these cases;
3) The Executive Judge of the City of Manila shall proceed to raffle
the criminal cases within ten (10) days from the transfer;
4) The Executive Judge of the City of Manila is likewise directed to
report to this Court compliance with the order to raffle within ten
(10) days from said compliance; and
5) The RTC Judge to whom the criminal cases are raffled is directed
to act on said cases with reasonable dispatch.
6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith
warrants of arrest for the apprehension of petitioners Jose C.
Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T.
Maderal, conformably with the decision of the Court of Appeals
dated 18 December 2002.
The Temporary Restraining Order issued by this Court dated 4 August 2003
is hereby LIFTED. Costs against Petitioners.
SO ORDERED.
10. Leviste v. Alamedo
GR# 182677, 03 Aug. 2010
Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision76[1] and the
April 18, 2008 Resolution 77[2] of the Court of Appeals in CA-G.R. SP No.
97761 that affirmed the trial courts Orders of January 24, 31, February 7, 8,
all in 2007, and denied the motion for reconsideration, respectively.
Petitioner was, by Information 78[3] of January 16, 2007, charged
with homicide for the death of Rafael de las Alas on January 12, 2007
before the Regional Trial Court (RTC) of Makati City. Branch 150 to which
the case was raffled, presided by Judge Elmo Alameda, forthwith issued a
commitment order79[4] against petitioner who was placed under police
custody while confined at the Makati Medical Center. 80[5]

After petitioner posted a P40,000 cash bond which the trial court
approved,81[6] he was released from detention, and his arraignment was
set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the
conformity of the public prosecutor, an Urgent Omnibus Motion 82[7]
praying, inter alia, for the deferment of the proceedings to allow the public
prosecutor to re-examine the evidence on record or to conduct a
reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 200783[8]
deferring petitioners arraignment and allowing the prosecution to conduct
a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order
of January 31, 200784[9] denying reconsideration of the first order.
Petitioner assailed these orders via certiorari and prohibition before the
Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and
Motion before the trial court to defer acting on the public prosecutors
recommendation on the proper offense until after the appellate court
resolves his application for injunctive reliefs, or alternatively, to grant him
time to comment on the prosecutors recommendation and thereafter set a
hearing for the judicial determination of probable cause. 85[10] Petitioner
also separately moved for the inhibition of Judge Alameda with prayer to
defer action on the admission of the Amended Information. 86[11]
The trial court nonetheless issued the other assailed orders, viz: (1)
Order of February 7, 2007 87[12] that admitted the Amended
Information88[13] for murder and directed the issuance of a warrant of
arrest; and (2) Order of February 8, 200789[14] which set the arraignment
81
82
83
84

76

85

77

86

78

87

79

88

80

89

on February 13, 2007. Petitioner questioned these two orders via

supplemental petition before the appellate court.

accordingly allowed petitioner to post bail in the amount of P300,000 for his
provisional liberty.

The appellate court dismissed petitioners petition, hence, his

present petition, arguing that:

The trial court, absent any writ of preliminary injunction from the
appellate court, went on to try petitioner under the Amended Information.
By Decision of January 14, 2009, the trial court found petitioner guilty of
homicide, sentencing him to suffer an indeterminate penalty of six years
and one day of prision mayor as minimum to 12 years and one day of
reclusion temporal as maximum. From the Decision, petitioner filed an
appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during
the pendency of which he filed an urgent application for admission to bail
pending appeal. The appellate court denied petitioners application which
this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010.

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE

THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO
THE QUESTIONABLE REINVESTIGATION AND ILLEGAL
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY
THIS HONORABLE COURT (sic); [AND]

The Office of the Solicitor General (OSG) later argued that the
present petition had been rendered moot since the presentation of
evidence, wherein petitioner actively participated, had been concluded. 93
[18]
Waiver on the part of the accused must be distinguished
from mootness of the petition, for in the present case, petitioner did
not, by his active participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal
arrest, lack of or irregular preliminary investigation. An
application for or admission to bail shall not bar the accused
from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity
or questioning the absence of a preliminary investigation of
the charge against him, provided that he raises them before
entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the
case.

CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN

HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE
BEING
ADDUCED
DURING
THE
REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.90[15] (emphasis in
the original omitted)
Records show that the arraignment scheduled on March 21, 2007
pushed through during which petitioner refused to plead, drawing the trial
court to enter a plea of not guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent
Application for Admission to Bail Ex Abundanti Cautela91[16] which the trial
court, after hearings thereon, granted by Order of May 21, 2007, 92[17] it
finding that the evidence of guilt for the crime of murder is not strong. It

90

By applying for bail, petitioner did not waive his right to challenge
the regularity of the reinvestigation of the charge against him, the validity
of the admission of the Amended Information, and the legality of his arrest
under the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused
to enter his plea since the issues he raised were still pending resolution by
the appellate court, thus prompting the trial court to enter a plea of not
guilty for him.
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary
investigation applies only if he voluntarily enters his plea and participates

91
92

93

during trial, without previously invoking his objections thereto.94[19] There

must be clear and convincing proof that petitioner had an actual intention
to relinquish his right to question the existence of probable cause. When
the only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of
his conduct is possible.95[20]

the finding of probable cause for murder, there is no practical use or value
in abrogating the concluded proceedings and retrying the case under the
original Information for homicide just to arrive, more likely or even
definitely, at the same conviction of homicide. Mootness would have also
set in had petitioner been convicted of murder, for proof beyond
reasonable doubt, which is much higher than probable cause, would have
been established in that instance.

From the given circumstances, the Court cannot reasonably infer a

valid waiver on the part of petitioner to preclude him from obtaining a
definite resolution of the objections he so timely invoked. Other than its
allegation of active participation, the OSG offered no clear and convincing
proof that petitioners participation in the trial was unconditional with the
intent to voluntarily and unequivocally abandon his petition. In fact, on
January 26, 2010, petitioner still moved for the early resolution of the
present petition.96[21]

Instead, however, of denying the petition outright on the ground of

mootness, the Court proceeds to resolve the legal issues in order to
formulate controlling principles to guide the bench, bar and public. 101[26] In
the present case, there is compelling reason to clarify the remedies
available before and after the filing of an information in cases subject of
inquest.

Whatever delay arising from petitioners availment of remedies

against the trial courts Orders cannot be imputed to petitioner to operate
as a valid waiver on his part. Neither can the non-issuance of a writ of
preliminary injunction be deemed as a voluntary relinquishment of
petitioners principal prayer. The non-issuance of such injunctive relief only
means that the appellate court did not preliminarily find any
exception97[22] to the long-standing doctrine that injunction will not lie to
enjoin a criminal prosecution. 98[23] Consequently, the trial of the case took
its course.

After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four trial
court Orders.
In his first assignment of error, petitioner posits that the
prosecution has no right under the Rules to seek from the trial court an
investigation or reevaluation of the case except through a petition for
review before the Department of Justice (DOJ). In cases when an accused is
arrested without a warrant, petitioner contends that the remedy of
preliminary investigation belongs only to the accused.

The petition is now moot, however, in view of the trial courts

rendition of judgment.

The contention lacks merit.

Section 6,102[27] Rule 112 of the Rules of Court reads:

A moot and academic case is one that ceases to present a

justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value. 99[24]

When a person is lawfully arrested without a

warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by
a prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting
officer or person.

The judgment convicting petitioner of homicide under the

Amended Information for murder operates as a supervening event that
mooted the present petition. Assuming that there is ground 100[25] to annul
94
95

Before the complaint or information is filed, the

person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding

96
97
98
99

101

100

102

the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in
court without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to
adduce evidence in his defense as provided in this Rule.
(underscoring supplied)
A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by
law is at least four years, two months and one day without regard to fine. 103
[28] As an exception, the rules provide that there is no need for a
preliminary investigation in cases of a lawful arrest without a warrant 104[29]
involving such type of offense, so long as an inquest, where available, has
been conducted. 105[30]

The accelerated process of inquest, owing to its summary nature

and the attendant risk of running against Article 125, ends with either the
prompt filing of an information in court or the immediate release of the
arrested person.108[33] Notably, the rules on inquest do not provide for a
motion for reconsideration.109[34]
Contrary to petitioners position that private complainant should
have appealed to the DOJ Secretary, such remedy is not immediately
available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is
by petition by a proper party under such rules as the Department of Justice
may prescribe.110[35] The rule referred to is the 2000 National Prosecution
Service Rule on Appeal,111[36] Section 1 of which provides that the Rule
shall apply to appeals from resolutions x x x in cases subject of preliminary
investigation/ reinvestigation. In cases subject of inquest, therefore, the
private party should first avail of a preliminary investigation or
reinvestigation, if any, before elevating the matter to the DOJ Secretary.

Inquest is defined as an informal and summary investigation

conducted by a public prosecutor in criminal cases involving persons
arrested and detained without the benefit of a warrant of arrest issued by
the court for the purpose of determining whether said persons should
remain under custody and correspondingly be charged in court. 106[31]

In case the inquest proceedings yield no probable cause, the

private complainant may pursue the case through the regular course of a
preliminary investigation.

It is imperative to first take a closer look at the predicament of

both the arrested person and the private complainant during the brief
period of inquest, to grasp the respective remedies available to them
before and after the filing of a complaint or information in court.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules

yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules
of Court and the New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of the victim did in
the present case, a similar right to ask for a reinvestigation.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT,

the private complainant may proceed in coordinating with the arresting
officer and the inquest officer during the latters conduct of inquest.
Meanwhile, the arrested person has the option to avail of a 15-day
preliminary investigation, provided he duly signs a waiver of any objection
against delay in his delivery to the proper judicial authorities under Article
125 of the Revised Penal Code. For obvious reasons, this remedy is not
available to the private complainant since he cannot waive what he does
not have. The benefit of the provisions of Article 125, which requires the
filing of a complaint or information with the proper judicial authorities
within the applicable period,107[32] belongs to the arrested person.

The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall
be prosecuted under the direction and control of the public prosecutor. 112
[37] The private complainant in a criminal case is merely a witness and not
a party to the case and cannot, by himself, ask for the reinvestigation of
the case after the information had been filed in court, the proper party for
that being the public prosecutor who has the control of the prosecution of

103

108

104

109

105

110

106

111

107

112

the case.113[38] Thus, in cases where the private complainant is allowed to

intervene by counsel in the criminal action, 114[39] and is granted the
authority to prosecute,115[40] the private complainant, by counsel and with
the conformity of the public prosecutor, can file a motion for
reinvestigation.

sound discretion of the court. Interestingly, petitioner supports this view. 120
[45] Indeed, the Court ruled in one case that:
The rule is now well settled that once a complaint or
information is filed in court, any disposition of the case,
whether as to its dismissal or the conviction or the acquittal
of the accused, rests in the sound discretion of the court.
Although the prosecutor retains the direction and control of
the prosecution of criminal cases even when the case is
already in court, he cannot impose his opinion upon the
tribunal. For while it is true that the prosecutor has the
quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor
may deem proper thereafter

In fact, the DOJ instructs that before the arraignment of the

accused, trial prosecutors must examine the Information vis--vis the
resolution of the investigating prosecutor in order to make the necessary
corrections or revisions and to ensure that the information is sufficient in
form and substance.116[41]

x x x Since no evidence has been presented at that

stage, the error would appear or be discoverable from a
review of the records of the preliminary investigation. Of
course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor
who can initially determine the same. That is why such
error need not be manifest or evident, nor is it required that
such nuances as offenses includible in the offense charged
be taken into account. It necessarily follows, therefore, that
the prosecutor can and should institute remedial
measures[.]117[42] (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department
of the government whose principal power and responsibility is to see that
our laws are faithfully executed. A necessary component of this power to
execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretion the
discretion of what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors. 118[43]
The prosecutions discretion is not boundless or infinite, however. 119
[44] The standing principle is that once an information is filed in court, any
remedial measure such as a reinvestigation must be addressed to the
113
114
115
116
117
118
119

120

should be addressed to the court for its consideration and

approval. The only qualification is that the action of the
court must not impair the substantial rights of the accused
or the right of the People to due process of law.

court shall state its reasons in resolving the motion and

copies of its order shall be furnished all parties, especially
the offended party.
If it appears at any time before judgment that a
mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information
upon the filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the accused
would not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at
the trial. (emphasis supplied)

xxxx
In such an instance, before a re-investigation of the
case may be conducted by the public prosecutor, the
permission or consent of the court must be secured. If after
such re-investigation the prosecution finds a cogent basis to
withdraw the information or otherwise cause the dismissal
of the case, such proposed course of action may be taken
but shall likewise be addressed to the sound discretion of
the court.121[46] (underscoring supplied)
While Abugotal v. Judge Tiro122[47] held that to ferret out the truth,
a trial is to be preferred to a reinvestigation, the Court therein recognized
that a trial court may, where the interest of justice so requires, grant a
motion for reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecutions motion for
reinvestigation, the former is deemed to have deferred to the authority of
the prosecutorial arm of the Government. Having brought the case back to
the drawing board, the prosecution is thus equipped with discretion wide
and far reaching regarding the disposition thereof, 123[48] subject to the trial
courts approval of the resulting proposed course of action.
Since a reinvestigation may entail a modification of the criminal
information as what happened in the present case, the Courts holding is
bolstered by the rule on amendment of an information under Section 14,
Rule 110 of the Rules of Court:
A complaint or information may be amended,
in form or in substance, without leave of court, at
any time before the accused enters his plea. After the
plea and during the trial, a formal amendment may only be
made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The

In fine, before the accused enters a plea, a formal or substantial

amendment of the complaint or information may be made without leave of
court.124[49] After the entry of a plea, only a formal amendment may be
made but with leave of court and only if it does not prejudice the rights of
the accused. After arraignment, a substantial amendment is proscribed
except if the same is beneficial to the accused. 125[50]
It must be clarified though that not all defects in an information are
curable by amendment prior to entry of plea. An information which is void
ab initio cannot be amended to obviate a ground for quashal. 126[51] An
amendment which operates to vest jurisdiction upon the trial court is
likewise impermissible.127[52]

Considering the general rule that an information may be amended

even in substance and even without leave of court at any time before entry
of plea, does it mean that the conduct of a reinvestigation at that stage is
a mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation be it a
complete disposition or an intermediate modification 128[53] of the charge is
eventually addressed to the sound discretion of the trial court, which must
make an independent evaluation or assessment of the merits of the case.
Since the trial court would ultimately make the determination on the
124
125

121

126

122

127

123

128

proposed course of action, it is for the prosecution to consider whether a

reinvestigation is necessary to adduce and review the evidence for
purposes of buttressing the appropriate motion to be filed in court.

meet the new averment had each been held to be one of

form and not of substance. 130[55] (emphasis and
underscoring supplied)

More importantly, reinvestigation is required in cases involving a

substantial amendment of the information. Due process of law demands
that no substantial amendment of an information may be admitted without
conducting another or a new preliminary investigation. In Matalam v. The
2nd Division of the Sandiganbayan, 129[54] the Court ruled that a
substantial amendment in an information entitles an accused to another
preliminary investigation, unless the amended information contains a
charge related to or is included in the original Information.

Matalam adds that the mere fact that the two charges are related
does not necessarily or automatically deprive the accused of his right to
another preliminary investigation. Notatu dignum is the fact that both the
original Information and the amended Information in Matalam were
similarly charging the accused with violation of Section 3(e) of the AntiGraft and Corrupt Practices Act.

The question to be resolved is whether the amendment of the

Information from homicide to murder is considered a substantial
amendment, which would make it not just a right but a duty of the
prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.
A substantial amendment consists of the
recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other
matters are merely of form. The following have been held to
be mere formal amendments: (1) new allegations which
relate only to the range of the penalty that the court might
impose in the event of conviction; (2) an amendment which
does not charge another offense different or distinct from
that charged in the original one; (3) additional allegations
which do not alter the prosecutions theory of the case so as
to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which
does not adversely affect any substantial right of the
accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and
not to introduce new and material facts, and merely states
with additional precision something which is already
contained in the original information and which adds
nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by
the amendment is whether a defense under the information
as it originally stood would be available after the
amendment is made, and whether any evidence defendant
might have would be equally applicable to the information
in the one form as in the other. An amendment to an
information which does not change the nature of the crime
alleged therein does not affect the essence of the offense or
cause surprise or deprive the accused of an opportunity to
129

In one case,131[56] it was squarely held that the amendment of the

Information from homicide to murder is one of substance with very serious
consequences.132[57] The amendment involved in the present case
consists of additional averments of the circumstances of treachery, evident
premeditation, and cruelty, which qualify the offense charged from
homicide to murder. It being a new and material element of the offense,
petitioner should be given the chance to adduce evidence on the matter.
Not being merely clarificatory, the amendment essentially varies the
prosecutions original theory of the case and certainly affects not just the
form but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA133[58]
and Pacoy v. Cajigal,134[59] wherein the amendment of the caption of the
Information from homicide to murder was not considered substantial
because there was no real change in the recital of facts constituting the
offense charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already clearly embedded in
the original Information. Buhat pointed out that the original Information for
homicide already alleged the use of superior strength, while Pacoy states
that the averments in the amended Information for murder are exactly the
same as those already alleged in the original Information for homicide.
None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is
required, the fact that what was conducted in the present case was a
reinvestigation does not invalidate the substantial amendment of the
Information. There is no substantial distinction between a preliminary
investigation and a reinvestigation since both are conducted in the same
manner and for the same objective of determining whether there exists
sufficient ground to engender a well-founded belief that a crime has been
130
131
132
133
134

committed and the respondent is probably guilty thereof and should be

held for trial.135[60] What is essential is that petitioner was placed on guard
to defend himself from the charge of murder 136[61] after the claimed
circumstances were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to
present countervailing evidence on the proposed amended charge. Despite
notice of hearing, petitioner opted to merely observe the proceedings and
declined to actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that the rules do not
even require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach
him were made and an opportunity to controvert the complainants
evidence was accorded him.137[62]
In his second assignment of error, petitioner basically assails the
hurried issuance of the last two assailed RTC Orders despite the pendency
before the appellate court of the petition for certiorari challenging the first
two trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt
the course of the principal case unless a temporary retraining order or a
writ of preliminary injunction has been issued. 138[63] The appellate court,
by Resolution

135
136
137
138

of February 15, 2007,139[64] denied petitioners application for a

temporary restraining order and writ of preliminary injunction.
Supplementary efforts to seek injunctive reliefs proved futile. 140[65] The
appellate court thus did not err in finding no grave abuse of discretion on
the part of the trial court when it proceeded with the case and eventually
arraigned the accused on March 21, 2007, there being no injunction order
from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment. 141[66]
Regarding petitioners protestations of haste, suffice to state that
the pace in resolving incidents of the case is not per se an indication of
bias. In Santos-Concio v. Department of Justice,142[67] the Court held:
Speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly attributed to
an injudicious performance of functions. For ones prompt
dispatch may be anothers undue haste. The orderly
administration of justice remains as the paramount and
constant consideration, with particular regard of the
circumstances peculiar to each case.
The presumption of regularity includes the public
officers official actuations in all phases of work. Consistent
with such presumption, it was incumbent upon petitioners
to present contradictory evidence other than a mere
tallying of days or numerical calculation. This, petitioners
failed to discharge. The swift completion of the
Investigating Panels initial task cannot be relegated as
shoddy or shady without discounting the presumably
regular performance of not just one but five state
prosecutors.143[68]
There is no ground for petitioners protestations against the DOJ
Secretarys sudden designation of Senior State Prosecutor Emmanuel
Velasco as Acting City Prosecutor of Makati City for the present case 144[69]
and the latters conformity to the motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the

public prosecutor who will conduct the reinvestigation or preliminary
investigation.145[70] There is a hierarchy of officials in the prosecutory arm
of the executive branch headed by the Secretary of Justice 146[71] who is
vested with the prerogative to appoint a special prosecutor or designate an
acting prosecutor to handle a particular case, which broad power of control
has been recognized by jurisprudence. 147[72]
As for the trial courts ignoring the DOJ Secretarys uncontested
statements to the media which aired his opinion that if the assailant
merely intended to maim and not to kill the victim, one bullet would have
sufficed the DOJ Secretary reportedly uttered that the filing of the case of
homicide against ano against Leviste lintek naman eh I told you to watch
over that case there should be a report about the ballistics, about the
paraffin, etc., then thats not a complete investigation, thats why you
should use that as a ground no abuse of discretion, much less a grave one,
can be imputed to it.
The statements of the DOJ Secretary do not evince a determination
to file the Information even in the absence of probable cause.148[73] On the
contrary, the remarks merely underscored the importance of securing
basic investigative reports to support a finding of probable cause. The
original Resolution even recognized that probable cause for the crime of
murder cannot be determined based on the evidence obtained [u]nless
and until a more thorough investigation is conducted and eyewitness/es
[is/]are presented in evidence[.]149[74]
The trial court concluded that the wound sustained by the victim at
the back of his head, the absence of paraffin test and ballistic examination,
and the handling of physical evidence, 150[75] as rationalized by the
prosecution in its motion, are sufficient circumstances that require further
inquiry.
That the evidence of guilt was not strong as subsequently assessed
in the bail hearings does not affect the prior determination of probable
cause because, as the appellate court correctly stated, the standard of
strong evidence of guilt which is sufficient to deny bail to an accused is

139

145

140

146

141

147

142

148

143

149

144

150

markedly higher than the standard of judicial probable cause which is

sufficient to initiate a criminal case. 151[76]

What the Constitution underscores is the exclusive

and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. But the judge
is not required to personally examine the
complainant and his witnesses. Following established
doctrine and procedure, he shall (1) personally evaluate
the report and the supporting documents submitted by the
prosecutor regarding the existence of probable cause, and
on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if
he is not satisfied that probable cause exists, he may
disregard the prosecutors report and require the
submission of supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence of probable
cause.156[81] (emphasis and underscoring supplied)

In his third assignment of error, petitioner faults the trial court for
not conducting, at the very least, a hearing for judicial determination of
probable cause, considering the lack of substantial or material new
evidence adduced during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive
and judicial. The executive determination of probable cause is one made
during preliminary investigation. It is a function that properly pertains to
the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held for trial.
Otherwise stated, such official has the quasi-judicial authority to determine
whether or not a criminal case must be filed in court. Whether that
function has been correctly discharged by the public prosecutor, i.e.,
whether he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not
be compelled to pass upon.152[77]
The judicial determination of probable cause is one made by the
judge to ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in
order not to frustrate the ends of justice. If the judge finds no probable
cause, the judge cannot be forced to issue the arrest warrant. 153[78]
Paragraph (a), Section 5,154[79] Rule 112 of the Rules of Court outlines the
procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable
cause is a mere superfluity, for with or without such motion, the judge is
duty-bound to personally evaluate the resolution of the public prosecutor
and the supporting evidence. In fact, the task of the presiding judge when
the Information is filed with the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of the
accused. 155[80]

The rules do not require cases to be set for hearing to determine

probable cause for the issuance of a warrant of arrest of the accused
before any warrant may be issued.157[82] Petitioner thus cannot, as a
matter of right, insist on a hearing for judicial determination of probable
cause. Certainly, petitioner cannot determine beforehand how cursory or
exhaustive the [judge's] examination of the records should be [since t]he
extent of the judges examination depends on the exercise of his sound
discretion as the circumstances of the case require. 158[83] In one case, the
Court emphatically stated:
The periods provided in the Revised Rules of
Criminal Procedure are mandatory, and as such, the judge
must determine the presence or absence of probable cause
within such periods. The Sandiganbayans determination of
probable cause is made ex parte and is summary in nature,
not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause
by needless motions for determination of probable
cause filed by the accused.159[84] (emphasis and
underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters,
arguing that no circumstances exist that would qualify the crime from
homicide to murder.

151

The allegation of lack of substantial or material new evidence

deserves no credence, because new pieces of evidence are not

152

156

153

157

154

158

155

159

prerequisites for a valid conduct of reinvestigation. It is not material that

no new matter or evidence was presented during the reinvestigation of the
case. It should
be stressed that reinvestigation, as the word itself implies, is merely a
repeat investigation of the case. New matters or evidence are not
prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already
submitted.160[85]
Moreover, under Rule 45 of the Rules of Court, only questions of
law may be raised in, and be subject of, a petition for review on certiorari
since this Court is not a trier of facts. The Court cannot thus review the
evidence adduced by the parties on the issue of the absence or presence
of probable cause, as there exists no exceptional circumstances to warrant
a factual review.161[86]
In a petition for certiorari, like that filed by petitioner before the
appellate court, the jurisdiction of the court is narrow in scope. It is limited
to resolving only errors of jurisdiction. It is not to stray at will and resolve
questions and issues beyond its competence, such as an error of
judgment.162[87] The courts duty in the pertinent case is confined to
determining whether the executive and judicial determination of probable
cause was done without or in excess of jurisdiction or with grave abuse of
discretion. Although it is possible that error may be committed in the
discharge of lawful functions, this does not render the act amenable to
correction and annulment by the extraordinary remedy of certiorari, absent
any showing of grave abuse of discretion amounting to excess of
jurisdiction.163[88]
11.San Agustin v. People
GR# 158211, 31 Aug. 2004
This is a petition for review on certiorari filed by Ernesto J. San Agustin of
the Decision164[1] of the Court of Appeals in CA-G.R. SP No. 71925
dismissing his petition for certiorari.
The Antecedents
Luz Tan executed a notarized criminal complaint and filed the same with
the National Bureau of Investigation (NBI) charging the petitioner, the
160

Barangay Chairman of Barangay La Huerta, Paraaque City, with serious

illegal detention alleging that the petitioner detained her husband Vicente
Tan, on June 19, 2002, without lawful ground therefor. 165[2]
On June 25, 2002, the petitioner received a subpoena from Ferdinand M.
Lavin, the Chief of the Anti-Organized Crime Division of the NBI, requiring
him to appear before said office the next day, on June 26, 2002, in order to
give his evidence in connection with said complaint and to bring with him
the barangay logbook for June 19, 2002. The petitioner complied with the
subpoena and presented himself at the NBI with the barangay logbook.
However, the petitioner was placed under arrest and prevented from going
back home.
On June 27, 2002, the NBI Director transmitted to the Department of
Justice the findings of the NBI on its investigation of the case:
On June 19, 2002 at around 9:00 oclock in the morning while Victim
RICARDO TAN and Witness ANTONIO GERONIMO were selling their wares of
kitchen utensils along the highway of La Huerta, Paraaque City, Victim TAN
was mistaken as a snatcher by two tricycle drivers, namely, ROMEO C.
ALCANTARA and JOSEFINO FERRER, JR. Victim was turned-over to Subject
SAN AGUSTIN and other Subjects at the Barangay Hall of La Huerta,
Paraaque City; witness GERONIMO followed them. GERONIMO witnessed
that Victim was beaten by Subjects and locked-up at the Barangay jail so
he decided to inform the wife of the Victim (Complainant) who was residing
in San Pedro, Laguna. When Complainant went to the Barangay Hall on the
same day and inquired on the whereabouts of his husband, two female
clerks thereat denied having seen the Victim. Complainant was able to talk
to Subject SAN AGUSTIN the following day but he also denied having seen
Victim, worst Subject SAN AGUSTIN was furious and even shouted at them
and brought out his knife. Up to date, Victim, never resurfaced nor his
whereabouts located. Record at the NBI central file of Subject SAN
AGUSTIN revealed that he has several cases of homicide, murder and
multiple murder.166[3]
The NBI Director stated that the basis for the arrest of the petitioner was:
BASIS OF ARREST:
Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to
controvert allegations filed against him for kidnapping by Ms. Luz Tan. He
was enjoined to come with his Counsel and bring the logbook of the
Barangay. When Subject appeared at the NBI, he presented at once the
logbook of the Barangay. It was noted at the said logbook that there was
no entry on June 19, 2002 that Victim RICARDO TAN was arrested or
transmitted to any law enforcement agency or proper authority. 167[4]
State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on
June 27, 2002 and came out with a Resolution, on the same day, affirmed
by the Assistant Chief State Prosecutor, finding probable cause against the

161
162

165

163

166

164

167

petitioner for serious illegal detention under Article 267 of the Revised
Penal Code.168[5]
On June 28, 2002, an Information was filed before the Regional Trial Court
of Paraaque City, charging the petitioner with kidnapping/serious illegal
detention with no bail recommended. The case was raffled to Branch 258
of the court and docketed as Criminal Case No. 02-0759.
On July 1, 2002, the petitioner filed a Motion to Quash the Information on
the ground that he was illegally arrested and subjected to an inquest
investigation; hence, he was deprived of his right to a preliminary
investigation. He also prayed that he be released from detention and that,
in the meantime, the NBI be ordered to refile the complaint against him
with

168

the Office of the Paraaque City Prosecutor and for the latter to conduct a
preliminary investigation. On July 4, 2002, the petitioner filed a Motion to
Quash the Information, this time, on the ground that the facts alleged
therein do not constitute the felony of kidnapping/serious illegal detention.
He claimed that he was a barangay chairman when the private
complainant was allegedly detained; hence, he should be charged only
with arbitrary detention, the most severe penalty for which is reclusion
temporal.
The prosecution opposed the petitioners motion to quash the Information
on the ground that when he detained the private complainant, he acted in
his private capacity and not as a barangay chairman.169[6]
On July 24, 2002, the RTC issued an Order directing the City Prosecutor to
conduct a reinvestigation within a non-extendible period of forty-five (45)
days.170[7] Assistant City Prosecutor Antonietta Pablo Medina was assigned
to conduct the reinvestigation. The petitioner opposed the reinvestigation
contending that the prosecutor should conduct a regular preliminary
investigation since the inquest investigation was void. He refused to
submit a counter-affidavit.
On July 31, 2002, the petitioner filed a petition for certiorari with the Court
of Appeals assailing the July 24, 2002 Order of the RTC. He raised in his
petition the following issues:
1. Whether or not respondent Judge De Leon acted arbitrarily and in grave
abuse of discretion in not granting petitioners Urgent Motion to Quash
Information dated 01 July 2002.
2. Whether or not respondent Judge De Leon acted arbitrarily and in grave
abuse of discretion in not granting petitioners Urgent Motion to Quash On
The Ground That The Facts Charged Do Not Constitute An Offense dated 04
July 2002.
3. Whether or not respondent Judge De Leon acted arbitrarily and in grave
abuse of discretion in not granting bail as a matter of right in favor of the
petitioner.
4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan
Trial Court of Paraaque, Branch 77, can validly and legally proceed with the
hearing of Criminal Case No. 02-2486. 171[8]
In the meantime, on August 27, 2002, the Assistant City Prosecutor came
out with a Resolution finding probable cause of arbitrary detention against
the petitioner and recommending that the Information for arbitrary
detention and the Motion to Withdraw Information appended thereto be
approved.172[9] The City Prosecutor opposed the said Resolution.
On August 28, 2002, the Assistant City Prosecutor filed with the trial court
a Motion to Withdraw Information.173[10] On August 30, 2002, the RTC

170

issued an Order granting the motion and considered the Information

withdrawn.
On the same day, an Information was filed with the Metropolitan Trial Court
(MeTC) docketed as Criminal Case No. 02-2486, charging the petitioner
with arbitrary detention, viz:
That on or about the 19th day of June 2002 and subsequent thereto, in the
City of Paraaque, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being a Barangay Chairman of Brgy. La
Huerta, Paraaque City, a public officer, committing the offense in relation
to office, did then and there willfully, unlawfully and feloniously detain one
RICARDO TAN, an act done as he well knew, arbitrary and without legal
ground (sic).
CONTRARY TO LAW.174[11]
The case was raffled to Branch 77 of the court. The petitioner posted a
cash bond of P3,000.00 for his provisional release without prejudice to the
outcome of his petition in the Court of Appeals. 175[12]
On April 15, 2003, the Court of Appeals rendered its decision denying due
course and dismissing the petition for certiorari of the petitioner.
The petitioner filed the petition at bar contending that:
4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL
E. DE LEON WHEN HE DENIED PETITIONERS URGENT MOTION TO
QUASH INFORMATION DATED JULY 01, 2002.
4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL
E. DE LEON WHEN HE DENIED PETITIONERS URGENT MOTION TO
QUASH ON THE GROUND THAT THE FACTS CHARGED DO NOT
CONSTITUTE AN OFFENSE DATED 04 JULY 2002.
4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITED BY JUDGE RAUL E.
DE LEON WHEN HE DENIED PETITIONER OF HIS
CONSTITUTIONALLY-GUARANTEED RIGHT TO BAIL.
4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT
JUDGE JOSE S. JACINTO OF THE METROPOLITAN TRIAL COURT OF
PARAAQUE, BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED
WITH THE HEARINGS IN CRIMINAL CASE NO. 02-2486. 176[13]
The petitioner asserts that he was illegally arrested by the NBI; hence, he
was entitled to a regular preliminary investigation, not merely to an
inquest investigation. He contends that since the Information charging him
with kidnapping/serious illegal detention was filed before the Regional Trial
Court without affording him a preliminary investigation, the Information is
void. The RTC, the petitioner avers, should have granted his motion to
quash the Information and ordered the NBI to refile its complaint against
him with the Office of the City Prosecutor of Paraaque for the appropriate
preliminary investigation and that, in the meantime, the RTC should have

171

174

172

175

173

176

169

ordered his release from detention. The petitioner posits that the RTC
committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in denying his motion to quash the Information and directing
the City Prosecutor to conduct a reinvestigation. On the other hand, since
the Assistant City Prosecutor did not conduct a regular preliminary
investigation before filing the Information for arbitrary detention against
him with the MeTC, the Information is void. Hence, the MeTC should be
ordered to quash the Information filed therein.
In its Comment to the petition, the Office of the Solicitor General (OSG)
contends that the petition for certiorari of the petitioner in the Court of
Appeals and in this Court had become moot and academic by the
withdrawal of the Information from the Regional Trial Court and filing of the
Information for arbitrary detention against the petitioner in the MTC. The
inquest investigation conducted by the State Prosecutor was valid because
the petitioner refused to execute a waiver under Article 125 of the Revised
Penal Code. The OSG asserts that the investigation conducted by the
Assistant City Prosecutor, as directed by the RTC, was valid. The petitioner
is estopped from assailing the Resolution of the Assistant City Prosecutor
finding probable cause for arbitrary detention because of his failure to
submit his counter-affidavit.
The Court of Appeals ruled that the petitioner was unlawfully arrested;
hence, he was entitled to preliminary investigation and release from
detention subject to his appearance during the preliminary investigation.
However, the Court of Appeals declared that the lack of preliminary
investigation did not impair the validity of the Information filed with the
RTC. Moreover, the Court of Appeals declared that the petitioner had
already been granted a reinvestigation after which the Information filed
with the RTC was withdrawn. Consequently, the appellate court further
declared that the petition had been mooted by the withdrawal of the
Information from the RTC and the filing of another Information in the MeTC
for arbitrary detention. The appellate court also held that the RTC did not
commit grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the assailed Order. It ruled that even if the
reinvestigation conducted by the City Prosecutor is defective, the
Information filed with the MeTC is valid because under the Revised Rules of
Criminal Procedure, there is no need for a preliminary investigation for
crimes cognizable by the Metropolitan Trial Court.
The petition is partially granted.
We agree with the Court of Appeals that the petitioner was unlawfully
arrested without a warrant of arrest against him for kidnapping/serious
illegal detention. As correctly ruled by the Court of Appeals:
Furthermore, warrantless arrest or the detention of petitioner in the instant
case does not fall within the provision of Section 5, Rule 113, Revised Rules
on Criminal Procedure, as amended, which provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has been committed and he has probable cause to
believe, based on personal knowledge of facts or circumstances, that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail and shall be proceeded against in accordance with Section 7 of Rule
112.
considering that petitioner only went to the Office of the NBI to answer the
subpoena it issued which was seven (7) days after the supposed turning
over of the custody of Ricardo Tan to petitioner who was then the Barangay
Chairman of La Huerta, Paraaque City, and his locking up in the barangay
jail and, thereafter, he was already arrested and detained. Certainly, the
arresting officers were not present within the meaning of Section 5(a) at
the time when the supposed victim, Ricardo Tan, was turned over to
petitioner. Neither could the arrest which was effected seven (7) days after
the incident be seasonably regarded as when the turning over and locking
up in the Barangay jail had in fact just been committed within the meaning
of Section 5(b). Moreover, none of the arresting officers had any personal
knowledge of facts indicating that petitioner was the person to whom the
custody of the victim Ricardo Tan was turned over and who locked up the
latter in the Barangay jail. The information upon which the arresting
officers acted upon had been derived from the statements made by the
alleged eyewitnesses to the incident which information did not, however,
constitute personal knowledge.177[14]
Consequently, the petitioner is entitled to a preliminary investigation
before an Information may be filed against him for said crime. The inquest
investigation conducted by the State Prosecutor is void because under Rule
112, Section 7 of the Revised Rules on Criminal Procedure, an inquest
investigation is proper only when the suspect is lawfully arrested without a
warrant:
SEC. 7. When accused lawfully arrested without warrant. When a person is
lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest
investigation has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the proper court
on the basis of the affidavit of the offended party or arresting officer or
person.178[15]
We also agree with the Court of Appeals that the absence of a preliminary
investigation does not affect the jurisdiction of the trial court but merely
the regularity of the proceedings. It does not impair the validity of the
Information or otherwise render it defective. 179[16] Neither is it a ground to
quash the Information or nullify the order of arrest issued against him or
justify the release of the accused from detention. 180[17] However, the trial

177
178
179

court should suspend proceedings and order a preliminary

investigation181[18] considering that the inquest investigation conducted by
the State Prosecutor is null and void.182[19] In sum, then, the RTC
committed grave abuse of its discretion amounting to excess or lack of
jurisdiction in ordering the City Prosecutor to conduct a reinvestigation
which is merely a review by the Prosecutor of his records and evidence
instead of a preliminary investigation as provided for in Section 3, Rule 112
of the Revised Rules on Criminal Procedure.
However, we do not agree with the ruling of the Court of Appeals that there
was no need for the City Prosecutor to conduct a preliminary investigation
since the crime charged under the Information filed with the MeTC was
arbitrary detention under Article 124, paragraph 1 of the Revised Penal
Code punishable by arresto mayor in its maximum period to prision
correccional in its minimum period, which has a range of four months and
one day to two years and four months. Whether or not there is a need for a
preliminary investigation under Section 1 in relation to Section 9 of Rule
112 of the Revised Rules on Criminal Procedure depends upon the
imposable penalty for the crime charged in the complaint filed with the
City or Provincial Prosecutors Office and not upon the imposable penalty
for the crime found to have been committed by the respondent after a
preliminary investigation. In this case, the crime charged in the complaint
of the NBI filed in the Department of Justice was kidnapping/serious illegal
detention, the imposable penalty for which is reclusion perpetua to death.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED.
The Order of the Regional Trial Court of Paraaque City, dated July 24, 2004,
ordering the City Prosecutor to conduct a reinvestigation is SET ASIDE. The
Regional Trial Court is directed to ORDER the City Prosecutor of Paraaque
City to conduct a preliminary investigation as provided for in Section 3,
Rule 112 of the Revised Rules on Criminal Procedure. In the meantime, the
Metropolitan Trial Court of Paraaque City, Branch 77, is ordered to suspend
the proceedings in Criminal Case No. 02-2486 pending the outcome of said
preliminary investigation.
SO ORDERED.
12. PEOPLE vs. COURT OF APPEALS and ESAM GADI y ABDULLAH
GR#. 116623, 23 March 1995
Petitioners assail a Decision of the Court of Appeals which reversed the
Regional Trial Court, Branch 116, of Pasay city and granted the motion for
reinvestigation of private respondent Esam Gadi.
On 31 December 1993, Esam Gadi, a national of Saudi Arabia, was
apprehended at the Manila International Airport and subsequently detained
for possession of marijuana.
On 3 January 1994, an information was filed and docketed as Criminal Case
No. 94-4826 in the Regional Trial Court, Branch 116, Pasay City charging
180
181
182

Esam Gadi with violation of section 81 Article 11, of the Dangerous Drugs
Act, as amended.
Three (3) days later, on 6 January 1994, Esam Gadi filed an "Ex Parte
Motion to Reduce Bail," from P90,000.00 to P30,000.00. This Motion was
denied. Esam Gadi then posted a cash bond of P90,000.00 which was
approved by the trial court on 10 January 1994.
On 9 February 1994, Esam Gadi filed a motion for "reinvestigation," 1
claiming that the seriousness of the offense charged warranted the grant
of his motion. Admitting that this motion was filed beyond the five-day
period prescribed in Section 7, Rule 112 of the Rules of Court, 2 he
contended that the reglementary period was not mandatory. Section 7,
Rule 112 of the Rules of Court provides:
Sec. 7. When accused lawfully arrested
without a
warrant. When a person is lawfully
arrested without a warrant for an offense
cognizable by the Regional Trial Court the
complaint or information may be filed by
the offended party, peace officer or fiscal
without a preliminary investigation having
first been conducted, on the basis of the
affidavit of the offended party or arresting
officer or person.
However, before the filing of such
complaint or information, the person
arrested may ask for a preliminary
investigation by a proper officer in
accordance with this rule, but he must sign
a waiver of the provisions of Article 125 of
the Revised Penal Code, as amended, with
the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible
person of his own choice. Notwithstanding
such waiver, he may apply for bail as
provided in the corresponding rule and the
investigation must be terminated fifteen
(15) days from its inception.
If the case has been filed in court without a
preliminary investigation having been
conducted, the accused may within five (5)
days from the time he learns of the filing of
the information, ask for a preliminary
investigation with the same right to adduce
evidence in his favor in the manner
prescribed in this Rule. (Emphasis supplied)
The motion for "reinvestigation" was denied by the trial court. A motion for
reconsideration was likewise turned down on 8 March 1994, the date of his
arraignment where Esam Gadi pleaded not guilty. He then challenged the
denial of his motion for "reinvestigation" in a petition for certiorari before
the Court of Appeals.

The Court of Appeals granted the petition and reversed the trial court
Order denying reinvestigation. Citing Tan vs. Securities Exchange
Commission, 3 the Court of Appeals held that the five-day period for asking
reinvestigation was only permissive, considering the use of the word
"may." The appellate court also relied on Go vs. Court of Appeals" and held
that a motion for preliminary investigation may be granted even if trial on
the merits had begun, provided that the motion was filed before
arraignment.
In this Petition for Review, the Solicitor General contends that it is a
mandatory rule that a motion for preliminary investigation be filed within
five (5) days from the time the accused had learned of the filing of the
information. It is also maintained that Esam Gadi had waived his right to
preliminary investigation when he posted bail for his release.
Deliberating on the Petition for Review and the Comment of private
respondent, the Court finds that the Court of Appeals fell into reversible
error in granting the motion for "reinvestigation" of private respondent.
The period for filing a motion for preliminary investigation after an
information has been filed against an accused who was arrested without a
warrant has been characterized as mandatory by the Court. In People vs.
Figueroa, 5 the .Supreme Court applied Section 15, Rule 112 6 of the old
Rules, which is substantially reproduced in Section 7, Rule 112 of the 1985
Rules of Criminal Procedure. The Court held that Section 15 of old Rule 112
granted the accused the right to ask for preliminary investigation within a
period of five (5) days from the time he learned of the filing of the
information. As the accused in that case did not exercise his right within
the five-day period, his motion for "reinvestigation" was denied. 7
Clearly, Section 7 of Rule 112 of the present Rules gives the accused the
right to ask for a preliminary investigation; but it does not give him the
right to do so after the lapse of the five-day period. This is in accord with
the intent of the Rules of Criminal Procedure to make preliminary
investigation simple and speedy. The Supreme Court, elaborating on the
rationale of the rules on preliminary investigation, held:
The new Rules were drafted in the light of
the Court's experience with cases where
preliminary investigations had dragged on
for weeks and even months. The Court had
intended to remove this clog upon the
judicial machinery and to make a
preliminary investigation as simple and
speedy as is consistent with the substantial
rights of the accused. The investigation is
advisedly preliminary, to be followed by the
trial proper. The investigating judge or
prosecuting officer acts upon probable
cause and reasonable belief, not upon
proof beyond reasonable doubt. The
occasion is not for the full and exhaustive
display of the parties' evidence; it is for the
presentation of such evidence only as may
engender well-grounded belief that an
offense has been committed and that the

accused is probably guilty thereof. When

all this is fulfilled, the accused will not be
permitted to cast about for fancied reasons
to delay the proceedings; the time to ask
for more is at the trial. 8 (Emphases
supplied)
The respondent Court of Appeals held, however, that the five-day period
prescribed in Section 7, Rule 112 was not mandatory as the provision uses
the permissive term "may." As already noted, the Court of Appeals cited
Tan vs. Securities and Exchange Commission 9 where the Supreme Court
held that the term "may" as used in adjective rules is only permissive and
not mandatory.
Tan, however, does not really support a ruling that the five-day period for
asking for preliminary investigation of a person accused of crime is only
permissive. Tan was concerned with "may" as used in a provision of the
Corporation Code dealing with the transfer of shares of stock. Two (2)
cases relied upon in Tan are equally inapplicable to the present case. In
Shauf vs. Court of Appeals, 10 "may" was used in a U.S. federal statute on
equal opportunity for civilian employment in U.S. military installations
which enumerated the remedies of an aggrieved party. Holding that
remedial statutes
are to be construed liberally and that the term "may" as used in adjective
rules was only permissive and not mandatory, our Supreme Court held that
the substantive remedies of a party were not limited to those enumerated
in that U.S. legislation. 11 In Legaspi vs. Estrella, 12 the Court had to
interpret "may" as used in section 146 of Batas Pambansa Blg. 337 or the
old Local Government Code. That term, being indicative of a "possibility" or
an 'opportunity," was read as permissive rather than mandatory to avoid
defeating the purpose of the law immediately to include sectoral
representatives in the legislative councils of local government units. 13
While Tan and the cases there cited show that the use of the term "may" is
indicative of an Opportunity or possibility, they cannot be used to support
the proposition that the five-day period under section 7 of Rule 112 is not
mandatory and may be disregarded at will. The "opportunity" or
"possibility" engendered by the use of the term "may" in this rule relates
only to the option of filing a motion for preliminary investigation; it does
not refer to the filing of the motion after the expiration of the five-day
period. This rule grants the accused a right or faculty and not an
obligation. In the sense that he is not obliged to exercise this right, this rule
is permissive only; in the sense that he may exercise this right only within
the five-day period, the rule is mandatory. Put a little differently, Esam
Gadi had the option or faculty of demanding preliminary investigation; if he
wanted to exercise that option, however, he had to exercise it within the
reglementary period. Upon expiration of that period, his option lapsed.
Much the same situation obtains in respect of the period for filing a petition
for review. Section 1, Rule 45 of the Rules of Court provides that:
Sec. 1. Filing of petition with Supreme Court. A party
may appeal by certiorari from a judgment of the Court of
Appeals, by filing with the Supreme Court a petition for
certiorari within fifteen (15) days from notice of judgment
or of the denial of his motion for reconsideration filed in

due time, and paying at the same time, to the clerk of said
court the corresponding docketing fee. The petition shall
not be acted upon without proof of service of a copy
thereof to the Court of Appeals. (Emphasis supplied)
The use of "may" in Section 1 of Rule 45 refers only to the opportunity or
option to file a petition for review. This, however, does not give a party a
license to file a petition for review beyond the fifteen-day period. Hence,
under Rule 45, Section 1, a petition for review filed after lapse of the
fifteen-day period is not to be entertained. Innumerable petitions have
been denied by the Court for having been filed unseasonably.
The reliance of the Court of Appeals on the case of Rolito Go vs. Court of
Appeals 14 is misplaced. In Go, as in the present case, an information was
filed without a prior preliminary investigation of the accused. The accused
in both cases demanded their right to a preliminary investigation before
arraignment. The similarity between the two (2) cases ends there. There
are, upon the other hand, critical differences in the fact situations in one
and the other case which must not be overlooked.
In Go, the accused asked for preliminary investigation on the very day the
information was filed. In the present case, Esam Gadi did so only on 9
February 1994, or a month after he had learned of the filing of the
information against him.
In the present case, Esam Gadi insists on the application of Section 7, Rule
112 in effect claiming or conceding there was a lawful warrantless arrest. It
appears that the accused was apprehended while engaged in the
commission of an offense, i.e, possession of marijuana punishable under
Section 8, Article II of the Dangerous Drugs Act, as amended. In Go, the
Court relied on the general rule that an information may be filed only after
a preliminary investigation has been conducted. The Court did not apply
Section 7, Rule 112 because there had been no arrest at all. The Court
found that accused Rolito Go had merely walked into the police station in
the company of his two lawyers and placed himself at the disposal of the
police authorities. In fact, the Court did not consider his act as surrender
for the accused did not expressly declare that he was surrendering himself,
probably to avoid the implication that he was admitting his guilt.
Further, in Go, the Prosecutor had himself filed with the trial court a motion
for leave to conduct a preliminary investigation. This motion, along with
the application for bail, was in fact initially granted by the trial court. But
the trial court a few days later turned around and inexplicably changed its
mind, cancelled the bail, refused to accord preliminary investigation to the
accused Go and the trial began over the vehement protests of Go. The
court said:
Nonetheless, since petitioner in his
omnibus motion was asking for preliminary
investigation and not for a re-investigation
(Crespo vs. Mogul involved a reinvestigation), and since the Prosecutor
himself did file with the trial court, on the
5th day after filing the information for
murder, a motion for leave to conduct
preliminary investigation (attaching to his
motion a copy of petitioner's omnibus

motion), we conclude that petitioner's

omnibus motion was in effect filed with the
trial court. What was crystal clear was that
petitioner did ask for a preliminary
investigation the very day that the
information was filed without such
preliminary investigation, and that the trial
court was five (5) days later apprised of
the desire of the petitioner such
preliminary investigation. Thus, even on
the (mistaken) supposition apparently
made by the Prosecutor that Section 7 of
Rule 112 of the Revised Rules of Court was
applicable, the 5-day reglementary period
on Section 7 Rule 112 must be held to
have been substantially complied with. 15
(Emphases supplied)
Hence, while the accused in Go was entitled to preliminary investigation as
a matter of right, Esam Gadi is not. His right to demand preliminary
investigation was subject to the condition that he should claim it
seasonably. He did not do so. Esam Gadi, accordingly, effectively waived
his right to a preliminary investigation.
The denial of Esam Gadi's motion for preliminary investigation is also
warranted: by his posting of a cash bail bond without previously or
simultaneously demanding a preliminary investigation. In People vs.
Hubilo, 16 an accused who had posted bail was deemed to have foregone
his right to preliminary investigation. In the present case, Esam Gadi asked
for and was granted bail on 10 January 1994, or one month before he
asked for a preliminary investigation on 9 February 1994. Once more Esam
Gadi in fact waived his right to preliminary investigation.
In Go, in contrast, the accused had asked for preliminary investigation and
the right to post bail at the same time in one omnibus motion. Accordingly,
the Court held that the accused in Go had not waived his right to
preliminary investigation:
Again, in the circumstances of this case, we
do not believe that by posting bail,
petitioner had waived his right to
preliminary investigation. In People v.
Selfaison (110 Phil. 839 [1961]), we did not
hold that appellants there had waived their
right to preliminary investigation because
immediately after their arrest, they filed
bail and proceeded to trial "without
previously claiming that they did not have
the benefit of a preliminary investigation."
In the instant case, petitioner Go asked for
release on recognizance or on bail and for
preliminary investigation in one omnibus
motion. He had thus claimed his right to
preliminary investigation before
respondent Judge approved the cash bond

posted by petitioner and ordered his

release on 12 July 1991. Accordingly, we
cannot reasonably imply waiver of
preliminary investigation on the part of
petitioner. In fact, when the Prosecutor
filed a motion in court asking for leave to
conduct preliminary investigation, he
clearly if impliedly recognized that
petitioner's claim to preliminary
investigation was a legitimate one. 17
(Emphases partly in the original and partly
supplied)
All in all, Esam Gadi's demand for preliminary investigation was an
afterthought merely.
WHEREFORE, the petition for Review is hereby GRANTED and the assailed
Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The
Orders of the Regional Trial Court, Branch 116 of Pasay City dated 14
February 1994 and 8 March 1994 are hereby REINSTATED and the Regional
Trial Court is ORDERED to proceed with the trial of Criminal Case No. 944820, with all deliberate dispatch. Costs against private respondent.
13. PEOPLE OF THE PHILIPPINES V. ODILAO, JR, GR# 155451, 14
April 2004
Before us is a petition for review on certiorari filed by the People of the
Philippines assailing the Decision 183[1] of the Court of Appeals dated
September 27, 2002 in CA-G.R. SP No. 71198 which directed Judge
Caminade of the Regional Trial Court (RTC) of Cebu City (Branch 6), to defer
the proceedings in Criminal Case No. CBU-55283 until the petition for
review of the reinvestigation report of the Office of the City Prosecutor is
resolved by the Department of Justice (DOJ).
The antecedent facts are as follows.
Herein respondent David S. Odilao, Jr. together with Enrique Samonte and
Mario Yares, was charged with Estafa in an Information184[2] filed by the
Asst. City Prosecutor Feliciano with the RTC of Cebu City, to wit:
The undersigned Prosecutor I of Cebu City, accuses David Odilao, Jr.,
Enrique Samonte and Mario Yares of the crime of ESTAFA, committed as
follows:
That sometime during the latter part of 1997, and for sometime prior or
subsequent thereto, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, conniving,
confederating and mutually helping with one another, having received in
trust from Trans Eagle Corporation a luxury car known as Jeep Cherokee
Sport 4wd valued at P1,199,520.00 with the agreement that they would
sign the document of sale if they are interested to buy the same and with
the obligation to return the said car to Trans Eagle Corporation if they are
not interested, the said accused, once in possession of the said luxury car,
far from complying with their obligation, with deliberate intent, with intent
to gain, with unfaithfulness and grave abuse of confidence, did then and

there misappropriate, misapply and convert into their own personal use
and benefit the same or the amount of P1,199,520.00 which is the
equivalent value thereof, and inspite of repeated demands made upon
them to let them comply with their obligation to return the luxury car, they
have failed and refused and instead denied to have received the luxury car
known as Jeep Cherokee Sport 4WD and up to the present time still fail and
refuse to do so, to the damage and prejudice of Trans Eagle Corporation in
the amount aforestated.
CONTRARY TO LAW.
A warrant of arrest against respondent was then issued by the Executive
Judge. Upon motion of respondent, the Executive Judge issued an
Order185[3] dated September 28, 2000 directing the Office of the City
Prosecutor to conduct reinvestigation of the case with a caveat that the
reinvestigation will be terminated within ten days from receipt of the order
and thereafter, submit appropriate recommendation to it. In the meantime
the Executive Judge countermanded the service of the warrant of arrest.
Based on his reinvestigation report186[4] dated October 17, 2000 which
found no probable cause, Asst. City Prosecutor Capacio filed with the trial
court a Motion to Dismiss187[5] dated October 20, 2000. On October 27,
2000, private complainant Carmen G. Bugash filed an urgent motion to
disregard the reinvestigation report.188[6] On November 3, 2000, private
complainant filed with the DOJ a petition for review189[7] seeking the
reversal of the Reinvestigation Report. In an Order dated October 30, 2000,
the trial court deferred the arraignment until the petition for review would
have been finally resolved by the Department of Justice. 190[8] On February
20, 2001, the trial court issued another order holding in abeyance the
resolution of the motion to dismiss until the DOJ shall have resolved the
petition for review.191[9]
More than one year later, private complainant filed with the trial court on
March 14, 2002, a Motion to Suspend Resolution of the Motion to
Dismiss.192[10] Thereafter, the trial court, acting on the prosecutions
motion to dismiss filed on October 20, 2000 and private complainants
motion to disregard the reinvestigation report, issued an Order 193[11] dated

183

192

184

193

185
186
187
188
189
190
191

May 21, 2002, (1) denying the motion to dismiss; and (2) declaring the
motion to disregard the reinvestigation report to be moot and academic,
rationalizing that [t]he Revised Rules of Criminal Procedure which was
approved on December 1, 2000 vests now authority to the trial court to
rule on the presence or absence of probable cause. If the Court finds
probable cause it will issue forthwith a warrant of arrest otherwise it will
dismiss the case. Respondent filed a motion for reconsideration 194[12]
which was denied in the Order195[13] dated June 13, 2002 of the RTC which
likewise directed the implementation of the existing warrant of arrest
against him.
Respondent went up to the Court of Appeals by filing a petition for
certiorari and prohibition,196[14] docketed as CA-G.R. SP No. 91198, against
the People of the Philippines, Presiding Judge Caminade and private
complainant Carmen Bugash. On September 27, 2002, the Court of
Appeals rendered a Decision197[15] granting the petition and directing the
trial court to defer the proceedings until the petition for review before the
DOJ has been resolved.
Hence, the People of the Philippines filed the instant petition for review on
certiorari seeking the reversal of the Court of Appeals decision. Petitioner,
represented by the Office of the Solicitor General (OSG), claims:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT FINDING
THAT THE TRIAL COURT WAS JUSTIFIED IN RESOLVING THE MOTION TO
DISMISS FILED BY THE OFFICE OF THE CITY PROSECUTOR DESPITE THE
PENDENCY OF A PETITION FOR REVIEW BEFORE THE DEPARTMENT OF
JUSTICE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT FINDING
THAT THE TRIAL COURT WAS JUSTIFIED IN DIRECTING THE
IMPLEMENTATION OF THE WARRANT OF ARREST AFTER FINDING PROBABLE
CAUSE.
III
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN GRANTING
THE INJUNCTION SOUGHT BY THE RESPONDENT WHICH ENJOINED THE
TRIAL COURT FROM IMPLEMENTING THE WARRANT OF ARREST AND FROM
FURTHER CONDUCTING PROCEEDINGS IN THE CASE UNTIL THE PETITION
FOR REVIEW OF THE REINVESTIGATION REPORT OF THE CITY PROSECUTOR
IS RESOLVED BY THE DEPARTMENT OF JUSTICE.
On December 11, 2002, we issued a Resolution 198[16] requiring respondent
to file his comment on the petition. In compliance therewith respondent
filed his Comment/Opposition to Petitioners Application for Temporary

Restraining Order and/or Writ of Preliminary Injunction, 199[17] which we

duly noted. Respondent alleges:
a.
The Petition for Review on Certiorari filed by the Office of the
Solicitor General, and wherein the Application for Temporary Restraining
Order and/or Writ of Preliminary Injunction is incorporated, is fatally
defective, hence both Petition and Application should be dismissed and
denied, respectively; and
b.
Petitioner-applicant failed to adequately and sufficiently show that
it is entitled to the issuance of the temporary restraining order and/or writ
of preliminary injunction, while on the other hand, it is undeniable that the
issuance of the temporary restraining order and/or writ of preliminary
injunction would undeniably cause irreparable damage to the person and
rights of herein respondent.
Unknown to us, however, while herein petition was pending our resolution,
private complainant Bugash filed a motion for reconsideration before the
Court of Appeals, seeking reversal of its Decision dated September 27,
2002. The Court of Appeals granted private complainants motion for
reconsideration per its Resolution dated June 12, 2003, thereby reversing
its own Decision dated September 27, 2002. In said Resolution, the Court
of Appeals ruled that the trial courts Orders dated May 21, 2002 and June
13, 2002, denying the prosecutions motion to dismiss together with the
implementation of the warrant of arrest against herein respondent is valid,
pursuant to Section 11, Rule 116 of the Revised Rules of Criminal
Procedure which provides that the suspension of arraignment shall not be
more than sixty days from the filing of the petition for review of the
resolution of the prosecutor.
It should be emphasized that the Resolution of June 12, 2003 was issued by
the Court of Appeals despite the pendency of the petition for review on
certiorari before us. We were only apprised of such development when
respondent furnished us with a copy of his Very Urgent Motion for
Reconsideration200[18] filed with the Court of Appeals, where he sought
reconsideration of its Resolution dated June 12, 2003. The records do not
show whether the Court of Appeals had resolved said motion.
Respondent likewise filed with us an Urgent Manifestation 201[19] dated June
16, 2003, informing us that the DOJ, acting on private complainant Carmen
Bugashs petition for review, has issued a Resolution 202[20] dated May 27,
2003, denying the petition for review; in effect, sustaining the filing of the
motion to dismiss by the Assistant City Prosecutor.
Meanwhile, on October 6, 2003, we received petitioners Consolidated Reply
and Comment,203[21] praying that the Resolution of the Court of Appeals
dated June 12, 2003, finding the trial courts Orders to be valid, be affirmed

194

199

195

200

196

201

197

202

198

203

and that a temporary restraining order and/or preliminary injunction be

issued to restrain respondent and any person acting in his behalf from
implementing the Court of Appeals decision dated September 27, 2002
which directed the trial court to defer the proceedings before it until the
DOJ shall have resolved the petition for review filed before the DOJ.
The main issue brought before us is whether or not the trial court was
correct in denying the prosecutions motion to dismiss the estafa case and
ordering the implementation of the warrant of arrest against herein
respondent.
The petition is impressed with merit.
First, let us dispose of respondents argument that the petition should be
dismissed for failure to comply with the requirements of a proper
verification and proof of service; and that the petition was prematurely
filed because it was filed even before we issued a resolution granting the
motion for extension of time to file the petition.
With regard to the verification, we are convinced that the
verification/certification appearing in the petition for review, although
referring to a motion for extension to file is a valid verification/certification
of the petition for review. The phrase motion for extension to file was
merely a typographical error committed through sheer inadvertence.
As to the requirement of attaching an affidavit of service to the petition, a
perusal of the rollo of this case will readily show that such an affidavit of
service had been attached to the petition. 204[22]
Moreover, the OSG may not be faulted in filing the petition for review
before its receipt of our Resolution dated November 25, 2002 granting the
motion for extension of time. Had petitioner waited to receive a resolution
granting its motion for extension before filing the petition, the extended
period for filing would have, by then, expired. Thus, there was nothing
irregular with the procedure taken by petitioner, rather, such was the most
prudent thing for it to have done.
We now come to the crux of the petition.
Section 6 (a), Rule 112 of the Revised Rules of Criminal Procedure, which
took effect on December 1, 2000, provides thus:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable
cause, he shall issue a warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a warrant issued by the
judge who conducted the preliminary investigation or when the complaint
or information was filed pursuant to section 7 of this Rule. In case of doubt
on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the filing of the
complaint or information.
...
Pursuant to the aforequoted rule, the judge of the trial court is mandated
to personally evaluate the resolution of the prosecutor and its supporting

evidence to determine whether probable cause exists and pursuant to its

own findings, either dismiss the case immediately if no probable cause
exists, or to issue the warrant of arrest in the absence of probable cause.
Even before the effectivity of the aforequoted rule, the Court enunciated
the following ruling in Crespo vs. Mogul,205[23] to wit:
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the substantial
rights of the accused or the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to
a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? . . .
The answer is simple. The role of the fiscal or prosecutor as We all know is
to see that justice is done and not necessarily to secure the conviction of
the person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its
own independent judgment as to whether the accused should be convicted
or acquitted. . . .
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation.

204

205

Thus, in Perez vs. Hagonoy Rural Bank, Inc.,206[24] the Court held that the
trial court judges reliance on the prosecutors averment that the Secretary
of Justice had recommended the dismissal of the case against the
petitioner was, to say the least, an abdication of the trial courts duty and
jurisdiction to determine a prima facie case, in blatant violation of this
Courts pronouncement in Crespo vs. Mogul . . . This was reiterated in Solar
Team Entertainment, Inc. vs. Hon. Rolando How,207[25] where the Court
held thus:
It bears stressing that the court is however not bound to adopt the
resolution of the Secretary of Justice since the court is mandated to
independently evaluate or assess the merits of the case, and may either
agree or disagree with the recommendation of the Secretary of Justice.
Reliance alone on the resolution of the Secretary of Justice would be an
abdication of the trial courts duty and jurisdiction to determine prima facie
case.
Evidently, when the trial court issued the Orders dated May 21, 2002 and
June 13, 2002, respectively, the trial court judge was merely performing his
mandated duty to personally determine the existence of probable cause
and thus arrive at a resolution of the motion to dismiss. Having found
probable cause, the trial court acted well within its authority in denying
said motion to dismiss and, since in the present case, a warrant of arrest
had already been issued and only the service thereof had been
countermanded, the trial court judge was also correct in ordering the
implementation of the previously issued warrant of arrest.
Verily, the proceedings in the criminal case pending in the trial court had
been held in abeyance long enough. Under Section 11, Rule 116 of the
Revised Rules of Criminal Procedure, the suspension of arraignment of an
accused in cases where a petition for review of the resolution of the
prosecutor is pending at either the Department of Justice or the Office of
the President shall not exceed sixty days counted from the filing of the
petition with the reviewing office. Although in this case, at the time that
the trial court deferred the arraignment in its Order dated October 30,
2000, the Revised Rules of Criminal Procedure had not yet taken effect and
there was as yet no prescribed period of time for the suspension of
arraignment, we believe that the period of one and a half years from
October 30, 2000 to June 13, 2002, when the trial court ordered the
implementation of the warrant of arrest, was more than ample time to give
private complainant the opportunity to obtain a resolution of her petition
for review from the DOJ. Indeed, with more than three years having
elapsed, it is now high time for the continuation of the trial on the merits in
the criminal case below as the sixty-day period counted from the filing of
the petition for review with the DOJ, provided for in Section 11, Rule 116 of
the Revised Rules of Criminal Procedure now applicable to the case at bar,
had long lapsed.
Although it is clear that the Court of Appeals earlier erred in granting the
petition for certiorari and prohibition filed before it by herein respondent,
the Court of Appeals remedied such error by reversing its Decision dated
206
207

September 27, 2002 in its Resolution dated June 12, 2003, and sustained
the trial courts Orders dated May 21, 2002 and June 13, 2002 denying the
prosecutions motion to dismiss.
However, it cannot be avoided that we remind the Court of Appeals of the
provisions of Section 15, Rule VI of the 2002 Internal Rules of the Court of
Appeals (effective August 22, 2002), which explicitly provides thus:
SEC. 15. Effect of Filing an Appeal in the Supreme Court. - No motion for
reconsideration or rehearing shall be acted upon if the movant has
previously filed in the Supreme Court a petition for review on certiorari or a
motion for extension of time to file such petition. If such petition or motion
is subsequently filed, the motion for reconsideration pending in this Court
shall be deemed abandoned.
We are, therefore, quite perplexed why the Court of Appeals did not act in
accord with the aforequoted Rule and instead resolved the motion for
reconsideration of its Decision dated September 27, 2002, filed by private
complainant, despite service on it of a copy of the Motion For Extension To
File Petition For Review dated October 15, 2002, filed by the OSG.
At the very least, prudence dictates that the Court of Appeals should have
first required private complainant to secure the conformity of the OSG; or
required the latter to comment on the motion for reconsideration of the
private complainant. The positions taken by the Office of the Solicitor
General and private complainant Bugash are practically identical.
In any event, the Court of Appeals ought not to have acted on the said
motion for reconsideration of private complainant Bugash. It should have
considered said motion which, in the first place, was without the
conformity of the OSG, the representative of petitioner People of the
Philippines, as having been abandoned by the filing of herein petition by
the OSG, pursuant to the aforequoted Section 15, Rule VI of the 2002
Internal Rules of the Court of Appeals.
Nevertheless, in the interest of speedy and orderly administration of
justice, we deem it expedient to uphold in the present petition, the Orders
dated May 21, 2002 and June 13, 2002, of the RTC denying the motion to
dismiss of the assistant city prosecutor and directing the implementation of
the warrant of arrest against respondent, for being in accordance with our
rulings in Crespo vs. Mogul, Perez vs. Hagonoy Rural Bank, Inc. and Solar
Team Entertainment, Inc. vs. Hon. Rolando How, as we have discussed in
the early part of our decision.
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision
dated September 27, 2002 is REVERSED and SET ASIDE. Its Resolution
dated June 12, 2003 correcting its own error is AFFIRMED with
ADMONITION that the Court of Appeals should act with more
circumspection and comply with its 2002 Internal Rules.
The Orders dated May 21, 2002 and June 23, 2002 of the Regional Trial
Court of Cebu City (Branch 6) are AFFIRMED and the said Regional Trial
Court is directed to proceed, with immediate dispatch, with the
arraignment of herein respondent and trial on the merits of Criminal Case
No. CBU-55283.
SO ORDERED.
15. PETER PAUL DIMATULAC and VERONICA DIMATULAC vs. HON.
SESINANDO VILLON
GR#127107, 12 October 1998

The issues raised by petitioners in their Memorandum208[1] and by the

Office of the Solicitor General in its Comment209[2] in this special civil
action for certiorari, prohibition and mandamus under Rule 65 of the Rules
of Court filed by petitioners, children of the deceased Police Officer 3 (PO3)
Virgilio Dimatulac of Masantol, Pampanga, may be summarized as follows:
A.
WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR
COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO
THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST
WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN

BROUGHT INTO THE CUSTODY OF THE LAW; and (2) FILING THE
INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM
SAID PROSECUTORS RESOLUTION TO THE OFFICE OF THE SECRETARY OF
JUSTICE.
B.
WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING
PETITIONERS MOTIONS TO SET ASIDE ARRAIGNMENT AND
RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE PENDENCY
OF THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE TO PROVE THAT
MURDER AND NOT HOMICIDE WAS COMMITTED BY THE ACCUSED.

208
20918. People vs. Salas
G.R. No. L-66469. July 29, 1986

Mario Abong was originally charged with homicide in the Court of First
Instance of Cebu but before he could be arraigned the case was
reinvestigated on motion of the prosecution. 1 As a result of the
reinvestigation, an amended information was filed, with no bail
recommended, to which he pleaded not guilty. 2 Trial commenced, but while
it was in progress, the prisoner, taking advantage of the first information
for homicide, succeeded in deceiving the city court of Cebu into granting
him bail and ordering his release; and so he escaped. 3 The respondent
judge, learning later of the trickery, cancelled the illegal bail bond and
ordered Abong's re-arrest. 4 But he was gone. Nonetheless, the prosecution
moved that the hearing continue in accordance with the constitutional
provision authorizing trial in absentia under certain circumstances. 5 The
respondent judge denied the motion, however, and suspended all
proceedings until the return of the accused. 6 The order of the trial court is
now before us on certiorari and mandamus. 7
The judge erred. He did not see the woods for the trees. He mistakenly
allowed himself to be tethered by the literal reading of the rule when he
should have viewed it from the broader perspective of its intendment.
The rule is found in the last sentence of Article IV, Section 19, of the 1973
Constitution, reading in full as follows:
Section 19. In all criminal prosecution, the accused shall be
presumed innocent until the contrary is proved and shall
enjoy the right to be heard by himself and counsel, to he
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production
of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused

provided that he has been duly notified and his failure to

appear is unjustified.
The purpose of this rule is to speed up the disposition of criminal cases,
trial of which could in the past be indefinitely deferred, and many times
completely abandoned, because of the defendant's escape. The old case of
People v. Avancea 8 required his presence at certain stages of the trial
which as a result, had to be discontinued as long as the defendant had not
re-appeared or remained at large. As his right to be present at these stages
was then held not waivable even by his escape, such escape thus operated
to the fugitive's advantage, and in mockery of the authorities, insofar as
the trial could not proceed as long as he had not been recaptured.
The doctrine laid down in that case has been modified by Section 19, which
now allows trial in absentia, Now, the prisoner cannot by simply escaping
thwart his continued prosecution and possibly eventual conviction provided
only that: a) he has been arraigned; b) he has been duly notified of the
trial; and c) his failure to appear is unjustified.
The respondent judge was probably still thinking of the old doctrine when
he ruled that trial in absentia of the escapee could not be held because he
could not be duly notified under Section 19. He forgets that the fugitive is
now deemed to have waived such notice precisely because he has
escaped, and it is also this escape that makes his failure to appear at his
trial unjustified. Escape can never be a legal justification. In the past, his
escape "rewarded" him by postponing all further proceedings against him
and in effect ultimately absolving him of the charge he was facing. Under
the present rule, his escape will, legally speaking, operate to Ms
disadvantage by preventing him from attending his trial, which will
continue even in his absence and most likely result in his conviction.
The right to be present at one's trial may now be waived except only at
that stage where the prosecution intends to present witnesses who will
Identify the accused. 9 Under Section 19, the defendant's escape will be
considered a waiver of this right and the inability of the court to notify him
of the subsequent hearings will not prevent it from continuing with his trial.
He will be deemed to have received due notice. The same fact of his

C.
WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE
COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER
FINDING THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE
PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE
TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his
residence in Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the
Municipal Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe,

Pampanga, by SPO1 Renato Layug of the Masantol Police Station against

private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut,
Evelino David, Justino Mandap, Casti David, Francisco Yambao, Juan Magat,
Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3
Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain Danny,
and a certain Koyang/Arding. The complaint was docketed as Criminal Case
No. 95-360. After conducting a preliminary examination in the form of
searching questions and answers, and finding probable cause, Judge
Designate Serafin B. David of the MCTC issued warrants for the arrest of
the accused and directed them to file their counter-affidavits.
G.R. No. L-37933, April 15, 1988

escape will make his failure to appear unjustified because he has, by

escaping, placed himself beyond the pale, and protection, of the law.
Trial in absentia was not allowed in Borja v. Mendoza 10 because it was held
notwithstanding that the accused had not been previously arraigned. His
subsequent conviction was properly set aside. But in the instant case,
since all the requisites are present, there is absolutely no reason why the
respondent judge should refuse to try the accused, who had already been
arraigned at the time he was released on the illegal bail bond. Abong
should be prepared to bear the consequences of his escape, including
forfeiture of the right to be notified of the subsequent proceedings and of
the right to adduce evidence on his behalf and refute the evidence of the
prosecution, not to mention a possible or even probable conviction.
We admonish against a too-literal reading of the law as this is apt to
constrict rather than fulfill its purpose and defeat the intention of its
authors. That intention is usually found not in "the letter that killeth but in
the spirit that vivifieth," which is not really that evanescent or elusive. As
judges, we must look beyond and not be bound by the language of the law,
seeking to discover, by our own lights, the reason and the rhyme for its
enactment. That we may properly apply it according to its ends, we need
and must use not only learning but also vision.
The trial judge is directed to investigate the lawyer who assisted Mario
Abong in securing bail from the city court of Cebu on the basis of the
withdrawn information for homicide and to report to us the result of his
investigation within sixty days.
WHEREFORE, the order of the trial court dated December 22, 1983,
denying the motion for the trial in absentia of the accused is set aside. The
respondent judge is directed to continue hearing the case against the
respondent Mario Abong in absentia as long as he has not reappeared,
until it is terminated. No costs.
SO ORDERED.
19. Gimenez vs. Nazareno

Two basic issues are raised for Our resolution in this petition for certiorari
and mandamus. The first is whether or not a court loses jurisdiction over
an accused who after being arraigned, escapes from the custody of the
law. The other issue is whether or not under Section 19, Article IV of the
1973 Constitution, an accused who has been duly tried in absentia retains
his right to present evidence on his own behalf and to confront and crossexamine witnesses who testified against him.
The following facts are not in dispute:
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando
Cargando, Rogelio Baguio and the herein private respondent Teodoro de la
Vega Jr., were charged with the crime of murder.
On August 22, 1973 all the above-named. accused were arraigned and
each of them pleaded not guilty to the crime charged. Following the
arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the
hearing of the case for September 18, 1973 at 1:00 o'clock in the
afternoon. All the acused including private respondent, were duly informed
of this.
Before the scheduled date of the first hearing the private respondent
escaped from his detention center and on the said date, failed to appear in
court. This prompted the fiscals handling the case (the petitioners herein)
to file a motion with the lower court to proceed with the hearing of the
case against all the accused praying that private respondent de la Vega, Jr.
be tried in absentia invoking the application of Section 19, Article IV of the
1973 Constitution which provides:
SEC. 19. In all criminal prosecution, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process

Only accused Evelino David, Justino Mandap, Juan Magat and Francisco
Yambao were arrested; while only Francisco Yambao submitted his counter
affidavit.210[3]
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution211[4] in Criminal Case No. 95-360 finding reasonable ground to
believe that the crime of murder had been committed and that the
accused were probably guilty thereof. His findings of fact and conclusions
were as follows:
That on or about November 3, 1995, all the accused under the
leadership of Mayor Santiago Docsay Yabut, including two John
Does identified only as Dan/Danny and Koyang/Arding, went to

to the attendance of witnesses and the production of

evidence in his behalf. However, after arraignment trial
may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to
appear is unjustified. (Emphasis supplied.) *
Pursuant to the above-written provision, the lower court proceeded with
the trial of the case but nevertheless gave the private respondent the
opportunity to take the witness stand the moment he shows up in court.

After due trial, or on November 6,1973, the lower court rendered a decision
dismissing the case against the five accused while holding in abeyance the
proceedings against the private respondent. The dispositive portion is as
follows:
WHEREFORE, insofar as the accused Samson Suan Alex
Potot, Rogelio Mula Fernando Cargando and Rogelio Baguio
are concerned, this case is hereby dismissed. The City
Warden of Lapu-Lapu City is hereby ordered to release
these accused if they are no longer serving sentence of
conviction involving other crimes.
The proceedings in this case against the accused Teodoro
de la Vega, Jr. who has escaped on August 30,1973 shall
remain pending, without prejudice on the part of the said
accused to cross-examine the witnesses for the
prosecution and to present his defense whenever the court
acquires back the jurisdiction over his person. 2
On November 16,1973 the petitioners filed a Motion for Reconsideration
questioning the above-quoted dispositive portion on the ground that it will
render nugatory the constitutional provision on "trial in absentia" cited
earlier. However, this was denied by the lower court in an Order dated
November 22, 1973.
Hence, this petition.

Masantol, Pampanga for the purpose of looking for a certain PO3

Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal
Hall of Masantol, Pampanga inquiring about PO3 Virgilio
Dimatulac. Thereafter, they went to the house of Mayor Lacap for
the purpose of inquiring [about] the [the location of the] house of
PO3 Virgilio Dimatulac, until finally, they were able to reach the
house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.

The respondent court, in its Order denying the Motion for Reconsideration
filed by the herein petitioners, expressed the opinion that under Section
19, Article IV of the 1973 Constitution, the private respondent, who was
tried in absentia, did not lose his right to cross-examine the witnesses for
the prosecution and present his evidence. 3 The reasoning of the said court
is that under the same provision, all accused should be presumed
innocent. 4 Furthermore the lower court maintains that jurisdiction over
private respondent de la Vega, Jr. was lost when he escaped and that his
right to cross-examine and present evidence must not be denied him once
jurisdiction over his person is reacquired. 5
We disagree.
First of all, it is not disputed that the lower court acquired jurisdiction over
the person of the accused-private respondent when he appeared during
the arraignment on August 22,1973 and pleaded not guilty to the crime
charged. In cases criminal, jurisdiction over the person of the accused is
acquired either by his arrest for voluntary appearance in court. Such
voluntary appearance is accomplished by appearing for arraignment as
what accused-private respondent did in this case.
But the question is this was that jurisdiction lost when the accused
escaped from the custody of the law and failed to appear during the trial?
We answer this question in the negative. As We have consistently ruled in
several earlier cases,6 jurisdiction once acquired is not lost upon the
instance of parties but continues until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where the
accused appears at the arraignment and pleads not guilty to the crime
charged, jurisdiction is acquired by the court over his person and this
continues until the termination of the case, notwithstanding his escape
from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973 Constitution
aforecited a "trial in absentia"may be had when the following requisites are
present: (1) that there has been an arraignment; (2) that the accused has
been notified; and (3) that he fails to appear and his failure to do so is

Upon reaching the house of PO3 Virgilio Dimatulac, the truck the
accused were all riding, stopped and parked in front of the house
of said PO3 Virgilio Dimatulac, some of the accused descended
from the truck and positioned themselves around the house
while others stood by the truck and the Mayor stayed [in] the
truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside
the house of Virgilio Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to
Virgilio Dimatulac to go down to see the Mayor outside in front of
his house to say sorry.
unjustified.

[W]hen Virgilio Dimatulac went down from his house, suddenly

[a] gun shot was heard and then, the son of Virgilio Dimatulac,
Peter Paul, started to shout the following words: What did you do
to my father?!
One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac,
and as a consequence, he died; and before he expired, he left a
dying declaration pointing to the group of Mayor Docsay Yabut as
the one responsible.
That right after Virgilio Dimatulac was shot, accused Docsay
Yabut ordered his men to go on board the truck and immediately
left away leaving Virgilio Dimatulac bleeding and asking for help.

that crime should not go unpunished.

In this case, all the above conditions were attendant calling for a trial in
absentia. As the facts show, the private respondent was arraigned on
August 22, 1973 and in the said arraignment he pleaded not guilty. He was
also informed of the scheduled hearings set on September 18 and 19, 1973
and this is evidenced by his signature on the notice issued by the lower
Court. 7 It was also proved by a certified copy of the Police Blotter 8 that
private respondent escaped from his detention center. No explanation for
his failure to appear in court in any of the scheduled hearings was given.
Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions of the 1973
Constitution, correctly proceeded with the reception of the evidence of the
prosecution and the other accused in the absence of private respondent,
but it erred when it suspended the proceedings as to the private
respondent and rendered a decision as to the other accused only.
Upon the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the time
until the accused who who escape from custody finally decides to appear
in court to present his evidence and moss e the witnesses against him. To
allow the delay of proceedings for this purpose is to render ineffective the
constitutional provision on trial in absentia. As it has been aptly explained:
. . . The Constitutional Convention felt the need for such a
provision as there were quite a number of reported
instances where the proceedings against a defendant had
to be stayed indefinitely because of his non- appearance.
What the Constitution guarantees him is a fair trial, not
continued enjoyment of his freedom even if his guilt could
be proved. With the categorical statement in the
fundamental law that his absence cannot justify a delay
provided that he has been duly notified and his failure to
appear is unjustified, such an abuse could be remedied.
That is the way it should be, for both society and the
offended party have a legitimate interest in seeing to it

The contention of the respondent judge that the right of the accused to be
presumed innocent will be violated if a judgment is rendered as to him is
untenable. He is still presumed innocent. A judgment of conviction must
still be based upon the evidence presented in court. Such evidence must
prove him guilty beyond reasonable doubt. Also, there can be no violation
of due process since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in absentia retains
his rights to cross-examine and to present evidence on his behalf. By his
failure to appear during the trial of which he had notice, he virtually waived
these rights. This Court has consistently held that the right of the accused
to confrontation and cross-examination of witnesses is a personal right and
may be waived. 10 In the same vein, his right to present evidence on his
behalf, a right given to him for his own benefit and protection, may be
waived by him.
Finally, at this point, We note that Our pronouncement in this case is
buttressed by the provisions of the 1985 Rules on Criminal Procedure,
particularly Section 1 (c) of Rule 115 which clearly reflects the intention of
the framers of our Constitution, to wit:
... The absence of the accused without any justifiable cause
at the trial on a particular date of which he had notice shall
be considered a waiver of his right to be present during
that trial. When an accused under custody had been
notified of the date of the trail and escapes, he shall be
deemed to have waived his right to be present on said date
and on all subsequent trial dates until custody in
regained....
Accordingly, it is Our considered opinion, and We so hold, that an escapee
who has been duly tried in absentia waives his right to present evidence on
his own behalf and to confront and cross-examine witnesses who testified
against him. 11

On their way home to Minalin, accused Santiago Docsay Yabut

gave money to accused John Doe Dan/Danny and Francisco Boy
Yambao was asked to bring the accused John Doe to Nueva Ecija
which he did.
Further, accused Santiago Docsay Yabut told his group to deny
that they ever went to Masantol.
The court, after having conducted preliminary examination on
the complainant and the witnesses presented, [is] satisfied that
there is a [sic] reasonable ground to believe that the crime of

WHEREFORE, in view of the foregoing, the judgment of the trial court in

Criminal Case No. 112-L in so far as it suspends the proceedings against
the herein private respondent Teodoro de la Vega, Jr. is reversed and set
aside. The respondent judge is hereby directed to render judgment upon
the innocence or guilt of the herein private respondent Teodoro de la Vega,
Jr. in accordance with the evidence adduced and the applicable law.
No pronouncement as to costs.
SO ORDERED.
20. PEOPLE VS TABAG
G.R. No. 116511 February 12, 1997

At about 10:00 p.m. of 11 March 1984 in Sitio Candiis, Barangay

Cabidianan, New Corella, Davao, the spouses Welbino Magdasal, Sr., and
Wendelyn Repalda Magdasal, together with their children Welbino, Jr., and
Melisa, were massacred in their home allegedly by members of the
Integrated Civilian Home Defense Force (ICHDF).
On 14 March 1984, Aniceto Magdasal and Marciana Magdasal, parents of
Welbino Magdasal, Sr., reported the incident to the Municipal Mayor of
Asuncion, Davao, and to the police authorities of New Corella. They
executed a joint affidavit on that date to request the authorities concerned
to follow up said incident and to conduct proper investigation to the end in
view that justice will prevail.[1] Later, they, together with one Lucrecio
Dagohoy, executed sworn statements before the police authorities of New
Corella.[2] Yet, the identities of the killers remained unknown.
The first light on the case was shed on 27 February 1985 when Sergio
Doctolero, barangay captain of Buan, Asuncion, Davao, executed a sworn
statement[3] declaring that a member of the ICHDF, Romeo Guipo, had
confessed to him that it was the team led by Sarenas Tabag that
massacred the Magdasals. The real break came three days before the first
anniversary of the massacre when Ernesto Mawang, a member of that
team, gave his sworn statement[4] naming those involved in the massacre.

murder was committed and that the accused in conspiring and

confederating with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of
conspiracy.
That in order not to frustrate the ends of justice, warrants of
arrest were issued against Santiago Yabut, Martin Yabut,
Servillano Yabut, Francisco Yambao, Avelino David, Casti David,
Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and
Juan Magat with no bail recommended.

Not long after, another member thereof, one Pablo Oca, likewise gave a
sworn statement[5] corroborating Mawangs statements.
On 15 July 1985, an information for murder against accused Coloma Tabag,
Sarenas Tabag, Marcelino Tabag, Fernando Maglinte, Jr., Artemio Awod,
Romeo Aguipo, Leopoldo Leoncio, and Ernesto Mawang was filed with the
Municipal Trial Court (MTC) of New Corella, Davao.[6] Accompanying the
information were the abovementioned joint affidavit, sworn statements,
and death certificates of the victims. The information was docketed as
Criminal Case No. 897.[7]
After examining, through searching questions, witnesses Pablo Oca and
Sergio Doctolero, Judge Napy Agayan issued a warrant for the arrest of the
accused. No bond was recommended for their temporary liberty, since they
were charged with a capital offense and the evidence of guilt was strong.
[8]
On 21 August 1985, accused Sarenas Tabag surrendered to Judge Agayan.
[9] The others could not be arrested; hence, an alias warrant for their
arrest was issued.[10]
Sarenas Tabag waived submission of his counter-affidavit and preliminary
investigation. Finding probable cause against him, the MTC ordered on 28
August 1985 the transmittal of the record of the case to the Office of the
Provincial Fiscal and the commitment of Sarenas at the Provincial Jail.[11]
After appropriate proceedings, an information[12] was filed with the
Regional Trial Court (RTC) of Tagum, Davao, charging the abovenamed
accused with the crime of multiple murder. The accusatory portion thereof
reads as follows:
That on or about March 11, 1984, in the Municipality of New Corella,
Province of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, all members of the ICHDF,
conspiring, confederating and mutually helping with Coloma Tabag,
Marcelino Tabag, Fernando Maglinte, Jr., Artemio Awod, Laureo Awod,
Romeo Aguipo, Leopoldo Leoncio and Ernesto Mawang, who are all still at

However, with respect to accused Dan/Danny and

Koyang/Arding, the court directed the police authorities to furnish
the court [a] descriptio personae of the accused for the purpose
of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and
affidavits of witnesses for them to file their counter-affidavits in
accordance to [sic] law.
As of this date, only accused Francisco Boy Yambao filed his
counter-affidavit and all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused
Francisco Yambao which the court finds it [sic] straightforward
large, with treachery and evident premeditation and with intent to kill,
armed with garand, armalite and carbine, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot Welbino Magdasal, Sr.,
Wendelyn Magdasal, Welbino Magdasal, Jr. and Melisa Magdasal, thereby
inflicting upon them injuries which caused their death and further causing
actual, moral and compensatory damages to the heirs of the victims.
The commission of the foregoing offense is attended by the aggravating
circumstance of superior strength, nighttime and in band committed with
the aid of armed men.
Contrary to law.
The case was docketed as Criminal Case No. 6364 and raffled to Branch 2
of the said court.
Since the other accused had remained at large, the court proceeded with
the case against Sarenas Tabag only. At his arraignment on 11 December
1985, he entered a plea of not guilty.[13]
On 3 March 1987, the prosecution filed a motion to dismiss the case as
against Ernesto Mawang because it found after a thorough re-assessment
of the prosecutions evidence that he does not only appear to be less guilty,
but he appears not responsible in any way in the commission of the crime
charged.... [He] has not participated in the killing of the victims, he has not
fired any shot nor has lunged any bolo to the victims, and his presence in
the crime scene was not voluntary on his part.[14] The court granted the
motion and ordered the immediate release of Mawang from detention.[15]
In the meantime, accused Coloma Tabag, Artemio Awod, Laureo Awod, and
Romeo Aguipo were arrested.[16] All of them entered a plea of not guilty at
their arraignment.[17]
On 19 October 1989, accused Laureo Awod and Artemio Awod, together
with three others, escaped from the Provincial Jail. Upon being informed of
this incident,[18] the trial court continued the proceedings as against

and more or less credible and seems to be consistent with truth,

human nature and [the] natural course of things and lack of
motives [sic], the evidence of guilt against him is rather weak
[compared to] the others, which [is why] the court recommends
a cash bond of P50,000.00 for his provisional liberty, and the
courts previous order of no bail for said accused is hereby
reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed
to forward the entire records of the case to the Office of the
Provincial Prosecutor of Pampanga for further action, together

Sarenas Tabag, Coloma Tabag, and Romeo Aguipo only.[19]

The witnesses presented by the prosecution were Pablo Oca, Sergio
Doctolero, Aniceto Magdasal, Pablo Babagonyo (a member of the Philippine
National Police [PNP]), Marciana Magdasal, and Enrique Bermejo
(Administrative Officer of the PNP of New Corella, Davao), with Doctolero
recalled as rebuttal witness. On its part, the defense presented Sarenas
Tabag, Romeo Aguipo, Coloma Tabag, and Alfredo Galocino, with Sarenas
Tabag and one Ricardo Agrade called as sur-rebuttal witnesses.
On 7 January 1992, the trial court promulgated its decision,[20] dated 19
December 1991, the dispositive portion of which reads:
WHEREFORE, finding the accused Sarenas Tabag, Coloma Tabag and
Romeo Aguipo or Guipo guilty beyond reasonable doubt of the crime of
four (4) counts of Murder defined and penalized under Article 248 of the
Revised Penal Code, for the deaths of Welbino Magdasal, Sr., Wendelyn
Magdasal, Welbino Magdasal, Jr. and Melisa Magdasal, each of them is
sentenced to suffer four (4) indivisible prison terms of RECLUSION
PERPETUA, to suffer all the accessory penalties provided for by law and to
pay the costs.
They are further condemned to jointly and severally indemnify the heirs of
their victims in the total sum of FOUR HUNDRED THOUSAND (P400,000.00)
PESOS as moral damages; SIX THOUSAND (P6,000.00) as attorneys fees to
Marciana Magdasal, mother of the late Welbino Magdasal, Sr., and FOUR
THOUSAND (P4,000.00) PESOS as actual and compensatory damages.[21]
The material operative facts established by the evidence for the
prosecution was summarized by the Office of the Solicitor General in the
Brief for the Appellee as follows:
On March 11, 1984, at around 9:00 oclock in the evening, Pablo Oca was in
the CHDF detachment in Barangay Buan, Asuncion, Davao. (p. 5, TSN,
September 10, 1986) Also present were Marcelino Tabag, appellant
Sarenas Tabag, appellant Coloma Tabag, Artemio Awod, Laureo Awod,
Ernesto Mawang, Romeo Guipo and Fernando Maglinte, all members of the

with the bodies of accused Francisco Yambao and Juan Magat to

be remanded to the provincial Jail of Pampanga. 212[5]
(underscoring supplied)
In a sworn statement,213[6] petitioner Peter Paul Dimatulac narrated that
Mayor Santiago Yabut, accompanied by a number of bodyguards, went to
the residence of PO3 Virgilio Dimatulac to talk about a problem between
the Mayor and Peter Pauls uncle, Jun Dimatulac. Virgilio warmly welcomed
the group and even prepared coffee for them. Servillano and Martin Yabut
told Virgilio to come down from his house and apologize to the Mayor, but
hardly had Virgilio descended when Peter Paul heard a gunshot. While
Peter Paul did not see who fired the shot, he was sure it was one of Mayor
Yabuts companions. Peter Paul opined that his father was killed because
CHDF. (p. 6, Ibid.) While there, appellant Sarenas talked to his son,
Marcelino Tabag, and his brother, appellant Coloma Tabag (Ibid.)
Thereafter, Sarenas told the group to go on patrol. (pp. 7 and 14, Ibid.)
Pablo asked Marcelino where they were going but the latter kicked him in
the buttocks, and told him to just keep quiet and follow. (p. 15, Ibid.)
Marcelino led the group to Barangay Cadi-is, Asuncion,* Davao. (p. 7, Ibid.)
The group reached Cadi-is at 11:00 oclock in the evening (p. 17, Ibid.).
Upon reaching the house of Welbino Magdasal, the group stood to observe
for a while. (p. 12, TSN, January 18, 1988) Pablo Oca was posted as lookout
five meters away from the house. (p. 17, Ibid. and p. 18, TSN, September
10, 1986)
After some time, Fernando Maglinte went up the house and knocked at the
door. (p. 17, Ibid.) The door was opened and Welbino Magdasal went out of
the house. (p. 17, TSN, January 13, 1988) Marcelino ordered his
companions to open fire at Welbino. (p. 24, TSN, September 10, 1986) The
children who were inside the house started shouting. (p. 10, Ibid.) Three
men from Marcelinos group went up the house and stabbed to death
Welbinos wife, Wendelyn, and their two children, Welbino, Jr., and Melisa.
(Ibid.)
After the massacre, Marcelinos group went back to their detachment at
Barangay Buan. (Ibid.) Upon arrival, appellant Sarenas asked Marcelino, Is
it finished to which the latter answered, Yes, it is finished. (p. 11, Ibid.)
Sarenas inquired further, Did you gather the CHDF? (Ibid.) Sarenas warned
each member of Marcelino's group to keep quiet about the incident and
threatened to shoot whoever will squeal. (p. 11, and 16, Ibid.)
As a result of the massacre, the entire family of Welbino died. Welbinos
mouth was shattered and his intestines protruded out. (p. 9, TSN, April 12,
1989) Wendelyns left leg and left arm were twisted. (Ibid.) Welbino, Jr.
sustained wounds on his face and stab wounds in his chest. (Ibid.) Melisa
was likewise wounded and died in the hospital. (Ibid.) A total of thirty-two
empty shells of M16 spent bullets were recovered from the scene of the
massacre. (p. 4, TSN, January 5, 1990)

the latter spoke to the people of Minalin, Pampanga, against the Mayor.
Peter Paul added in a supplemental statement (Susog na Salaysay)214[7]
that he heard Mayor Yabut order Virgilio killed.
In his Sinumpaang Salaysay,215[8] Police Officer Leopoldo Soriano of the
Masantol Municipal Police Station in Masantol, Pampanga, declared that on
3 November 1995, between 3:30 and 4:00 p.m., while he was at the police
station, three men approached him and asked for directions to the house of
Mayor Epifanio Lacap. Soriano recognized one of the men as SPO1 Labet
Malabanan of Minalin, Pampanga. The group left after Soriano gave them
directions, but one of the three returned to ask whether PO3 Virgilio
Dimatulac was on duty, to which Soriano replied that Dimatulac was at
This summary is faithfully borne out by the transcripts of the testimonies of
the prosecution witnesses; hence, we adopt it as our own.
It was further established through the testimony of Pablo Oca that after
talking to his son Marcelino and brother Coloma, Sarenas called for the
other members of the ICHDF and instructed them to go on patrol. While on
the way to New Visayas, Marcelino separated from the others. The latter,
nevertheless, followed him to Sitio Candiis and then to the house of the
victims.[22]
Alibi and denial were the defenses interposed by accused Sarenas Tabag,
Coloma Tabag, and Romeo Aguipo.
Sarenas Tabag was the head of the ICHDF team in question. He was
enlisted into it when he was the barangay captain of Buan, Asuncion,
Davao. The team was to serve only in the municipality of Asuncion; its
specific area of operation were the barangays of Buan, New Visayas, and
Sunlon, all in Asuncion. All the members of the team took orders from him.
[23] On 11 March up to 12 March 1984, he was with Cpl. Gafod on a
military operation of the 37th Infantry Battalion in New Visayas and Sunlon,
Asuncion, Davao. Aside from Cpl. Gafod, he was with Laureo Awod, Artemio
Awod, Marcelino Tabag, Ernesto Mawang, Fernando Maglinte, Jr., Pepito
Tabag, and Cortez Tabag. Sarenas asserted that he could not have
conducted a briefing, as some of his men, particularly Coloma Tabag and
Pablo Oca, were in Mawab.[24] Sarenas likewise denied having asked
Marcelino after the killing, Human na? and having threatened those who
patrolled on that fateful night that anybody who squeals would be shot
with a clip of bullets. Sarenas also testified that Pablo Oca could not have
been at the detachment on the night of 11 March 1984, as he was relieved
of his post as a member of the ICHDF as early as 24 December 1983 for
having discharged seven clips from his garand rifle while drunk.[25] This
then provided Ocas motive to testify against him (Sarenas).[26] Sarenas
further declared that members of his family were massacred by suspected
members of the NPA.[27]
Coloma Tabag declared that on 11 March 1984, he was in Mawab, Davao
del Norte, panning for gold. He went there on 4 March 1984 with his two

home. The group left on board a military truck headed for San Nicolas,
Masantol, Pampanga. Later that day, SPO2 Michael Viray received a
telephone call at the police station reporting that someone had shot Virgilio
Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. AlfonsoFlores conducted a reinvestigation. However, it is not clear from the record
whether she conducted the same motu proprio or upon motion of private
respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter
YABUTs). All of the accused who had not submitted their counter-affidavits

children. Mawab is more than twenty kilometers away from Barangay

Buan, Asuncion, Davao del Norte.[28]
Romeo Aguipo testified that at 10:00 p.m. of 11 March 1984, he was at the
copra drier in Barangay Buan watching the copra. He said he was there
from 9 March to 12 March 1984. The copra drier was only two kilometers
away from the ICHDF detachment.[29]
The trial court gave full faith to the version of the prosecution and
disregarded that of the defense. As to the motive of accused Sarenas
Tabag, the trial court stated:
Fourth: Sarenas Tabag also declared that his family, sometime before
March 11, 1984, was massacred and his suspects were the members of the
New Peoples Army.

before the MCTC, except accused Danny and Koyang/Arding, submitted

their counter-affidavits to Assistant Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 216[9] Assistant Provincial
Prosecutor Alfonso-Flores found that the YABUTs and the assailant Danny,
to the exclusion of the other accused, were in conspiracy with one another,
but that the offense committed was only homicide, not murder. In support
of such finding, Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder
qualified by treachery. It must be noted that to constitute
treachery, two conditions must be present, to wit, 1) the

circumstances of either treachery, evident premeditation, or superior

strength having been taken advantage of.[31]
It opted to consider evident premeditation to qualify the killing to multiple
murder and considered treachery, nighttime, and band as generic
aggravating circumstances.[32]
From the judgment of conviction, only accused Sarenas Tabag and Coloma
Tabag filed their notice of appeal.[33]
On 8 August 1995, after filing his Appellants Brief,[34] accused Coloma
Tabag died at the Davao Prison and Penal Farm.[35] Accordingly, in the
resolution of 21 February 1996, we ordered the dismissal of the case
against him.
Only the appeal of accused Sarenas Tabag is left for our determination.

The Magdasals, who first resided in Buan, Asuncion, transferred to Sunlon,

Asuncion, which was infested with members of the New Peoples Army,
according to Sarenas Tabag.

In his Appellants Brief, accused Sarenas Tabag contends that the trial court
erred in

Sunlon being infested with members of the New Peoples Army, Welbino
Magdasal, Sr. and/or his family could easily be suspected or he and his
family must be members of the New Peoples Army.

1. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG NOT BECAUSE

OF THE WEAKNESS OF THE PROSECUTIONS EVIDENCE BUT BECAUSE OF
THE WEAKNESS OF THE DEFENSES EVIDENCE;

Since the family of Sarenas Tabag was a victim of a massacre by the New
Peoples Army, the killing of Welbino Magdasal, Sr. and the members of his
family must be the retaliation of Sarenas Tabag perpetrated through his
men who were CHDF members.[30]

2. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG AS

CONSPIRATOR OR CONFEDERATE, THE ALLEGATION OF CONSPIRACY NOT
HAVING BEEN ESTABLISHED BEYOND REASONABLE DOUBT;

In support of its conclusion that four counts of murder were committed, the
trial court rationalized that

3. NOT ACQUITTING ACCUSED-APPELLANT SARENAS TABAG ON THE

GROUND THAT HE IS EXEMPTED FROM CRIMINAL LIABILITY UNDER ARTICLE
11, (5) & (6), OF THE REVISED PENAL CODE.

the deaths of Welbino Magdasal, Sr., Wendelyn Magdasal, Welbino

Magdasal, Jr. and Melisa Magdasal resulted not [from] a single act
punishable as complex crime under Article 48 of the Revised Penal
Code but [from] a series of acts ... with the qualifying aggravating

The first assigned error is without basis. The trial court convicted him
primarily on the basis of the evidence for the prosecution. If at all the trial
court considered the weakness of the evidence of the defense, it was
merely to show that the massive proof of guilt was not shakened by the

employment of the [sic] means of execution were give [sic] the

person attacked no opportunity to defend himself or to retaliate;
and 2) the means of execution were deliberately or consciously
adopted xxx.
In the instant case, the presence of the first requisite was clearly
established by the evidence, such that the attack upon the victim
while descending the stairs was so sudden and unexpected as to
render him no opportunity to defend himself or to retaliate.
However, the circumstances, as portrayed by witness Peter Paul
Dimatulac, negate the presence of the second requisite.
According to the said witness, the victim was already descending
when Mayor Yabut commanded the assailant to shoot him, and

brazen and unmitigated lies of the accused and their witnesses.[36]

Regarding Tabags second assigned error, we have held time and again that
conspiracy need not be established by direct proof. It may be deduced
from the mode and manner in which the offense was perpetrated, or
inferred from the acts of the accused themselves when such acts point to a
joint purpose and design, concerted action, and community of intent.[37] It
must, however, be shown to exist as clearly and as convincingly as the
offense itself.[38]
Indeed, Sarenas was not at the scene of the massacre at the time it was
committed. His alibi was firmly established not only through his evidence
but also by the testimony of prosecution witness Pablo Oca. That fact,
notwithstanding, we are convinced that Sarenas was not just a coconspirator; he was the mastermind of the massacre or the principal by
inducement. His role was established with moral certainty by weighty
circumstantial evidence.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is
sufficient for conviction if (a) there is more than one circumstance; (b) the
facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. As jurisprudentially formulated, a judgment of
conviction based on circumstantial evidence can be upheld only if the
circumstances proven constitute an unbroken chain which leads to one fair
and reasonable conclusion pointing to the accused, to the exclusion of all
others, as the guilty person, i.e., the circumstances proven must be
consistent with each other, consistent with the hypothesis that the accused
is guilty, and at the same time, inconsistent with any other hypothesis
except that of guilty.[39]

immediately thereafter, he heard the gunshot. This would

therefore show that the assailant did not consciously adopt the
position of the victim at the time he fired the fatal shot. The
command of Mayor Yabut to shoot came so sudden as to afford
no opportunity for the assailant to choose the means or method
of attack. The act of Mayor Yabut in giving the command to shoot
further bolster[s] the fact that the conspirator did not concert the
means and method of attack nor the manner thereof. Otherwise
there would have been no necessity for him to give the order to
the assailant. The method and manner of attack was adopted by
the assailant at the spur of the moment and the vulnerable

2. Before the massacre in question, members of Sarenas family were

massacred by persons whom he believed were members of the NPA.
Sarenas suspected the Magdasals to be members of the NPA.[40]
3. Prosecution witness Pablo Oca and the other accused were members of
Sarenas team; as such, they took orders from Sarenas. On his crossexamination, Sarenas proudly admitted of his authority to give orders.[41]
4. At about 9:00 p.m. of 11 March 1984, Sarenas team met at the ICHDF
Detachment in Barangay Buan where Sarenas gave a briefing to his son
Marcelino and brother Coloma.
5. After the briefing, Sarenas instructed the team to go on patrol in New
Visayas and some distance away. Marcelino and Coloma led the team.
6. The area of operation of Sarenas team is comprised of the barangays of
Buan, New Visayas, and Sunlon, all of Asuncion, Davao.
7. Somewhere along the way, instead of patrolling their area of operation,
Marcelino proceeded toward Sitio Candiis, Barangay Cabidianan, Asuncion,
Davao.
8. Pablo asked Marcelino where they were going, but the latter kicked the
former on his buttocks and told him just to keep quiet and to follow.
9. Upon reaching Sitio Candiis, the team proceeded to the house of the
victims. Marcelino Tabag ordered Pablo Oca to serve as look-out, while
Marcelino, Coloma Tabag, Fernando Maglinte, Laureo Awod, Artemio Awod,
and Romeo Aguipo fired their garands toward the victims house. Then
Marcelino, Coloma, Laureo, and Artemio went up the house and started
stabbing Welbinos wife and children.[42]

In the instant case, the following circumstances were duly proven:

1. Sarenas was the leader of the ICHDF team in Barangay Buan, Asuncion,
Davao.

10. After the massacre, the team returned to its detachment in Barangay
Buan. Upon arrival thereat, Sarenas asked his son Marcelino whether it was
finished, and the latter answered in the affirmative.[43]

position of the victim was not deliberately and consciously

adopted. Treachery therefore could not be appreciated and the
crime reasonably believe[d] to have been committed is Homicide
as no circumstance would qualify the killing to murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
1.
An information be filed with the proper court charging
Santiago, Servillano and Martin all surnamed Yabut,
and one John Doe alias Danny as conspirators in the
crime of Homicide;

11. After Marcelino made the report to his father that it [was] finished, the
members of the team were gathered. Sarenas forthwith warned them
against squealing, otherwise the squealer would be shot.[44]
From the foregoing, it is clear that Sarenas had the motive to eliminate
Welbino Magdasal, Sr., and his family. The briefing was on a matter which
he could neither openly discuss nor entrust to others who were not of his
confidence. He thus chose for the purpose no less than his son Marcelino
and brother Coloma. Then, as the subsequent developments showed, the
briefing turned to none other than an instruction to get rid of the Magdasal
family or to finish them off. If it were otherwise, Marcelino would not have
led the team to a place outside of its area of operation, or to Sitio Candiis
of Barangay Cabidianan, in another municipality, where the house of the
victims was located. Sarenas knew exactly where Marcelino should lead
the team and what it was expected to do. He even waited at the
detachment in Barangay Buan for the teams return, and upon its return he
asked Marcelino whether its finished. When Marcelino assured him that it
was, Sarenas warned the other members of the team not to talk about or
reveal the massacre, otherwise the squealer would be killed. None did, not
until nearly a year later.
All told, the concordant combination and cumulative effect[45] of the
foregoing circumstances more than satisfy the requirements of Section 4,
Rule 133 of the Rules of Court.
In his third assigned error, accused Sarenas Tabag invokes paragraphs 5
and 6, Article 11 of the Revised Penal Code, which provide for justifying
circumstances.[46] He contends that being a member of the ICHDF
involved in the battle against insurgency, he was in the performance of an
official duty or function duly authorized by law[47] and that he is,
therefore, exempt from criminal liability.
This assigned error is not predicated on a hypothesis that even granting
arguendo that he was a co-conspirator with the other accused in the
massacre of the Magdasals he would still be exempt from any criminal
liability because he was in the performance of an official duty or function
duly authorized by law. Not being so, he thus admits that he was a co-

2.

The case be dismissed against accused Evelino David,

Justino Mandap a.k.a. Casti David, Francisco Yambao,
Juan Magat, Arturo Naguit, Bladimir Dimatulac,
Fortunato Mallari, Aniano Magnaye, Gilberto
Malabanan, Jesus dela Cruz and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11
January 1996 and clarificatory questions were propounded only to Peter
Paul Dimatulac.

conspirator. The slip may be showing much, or that the conscience has
unwittingly told the truth. Yet, we shall not put Sarenas on a bind or be too
harsh to him for the imprecise formulation of this assigned error.
In no way can Sarenas claim the privileges under paragraphs 5 and 6,
Article 11 of the Revised Penal Code, for the massacre of the Magdasals
can by no means be considered as done in the fulfillment of a duty or in
the lawful exercise of an office or in obedience to an order issued by a
superior for some lawful purpose. Other than suspicion, there is no
evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children
were members of the NPA. And even if they were members of the NPA,
they were entitled to due process of law. On that fateful night of 11 March
1984, they were peacefully resting in their humble home expecting for the
dawn of another uncertain day. Clearly, therefore, nothing justified the
sudden and unprovoked attack, at nighttime, on the Magdasals. The
massacre was nothing but a merciless vigilante-style execution.
As to the crime committed, we agree with the trial court that in killing
Welbino Magdasal, Sr., his wife Wendelyn, and their children Welbino, Jr.,
and Melisa, the accused committed four separate crimes of murder, which
are charged in the information. There was no challenge thereon on the
ground that the information charges more than one offense.[48]
Accordingly, the accused could be properly convicted of four counts of
murder.
As to the circumstance which qualified the killings to murders, we differ
with the view of the trial court. It should be treachery,[49] not evident
premeditation,[50] as ruled by the latter. The evidence for the prosecution
failed to satisfy two of the three requisites of evident premeditation, viz.,
(a) the time when Sarenas determined to commit the crime, (b) a sufficient
lapse of time between such determination and execution to allow him to
reflect upon the consequences of his act.[51] On the other hand, treachery
was established beyond cavil. Accused Marcelino Tabag, Coloma Tabag,
Fernando Maglinte, Laureo Awod, Artemio Awod, and Romeo Aguipo
suddenly fired their high-powered firearms toward Welbino Magdasal, Sr.,
and thereafter, they went upstairs and stabbed his wife Wendelyn and his
children Welbino, Jr., and Melisa. The victims, all unarmed, were caught by
surprise and were in no position to offer any defense. There can be no

On 23 February 1996, before the Information for homicide was filed,

complainants, herein petitioners, appealed the resolution of Alfonso-Flores
to the Secretary of the Department of Justice (DOJ).217[10] They alleged in
their appeal that:
1.
THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN
RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO
MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF
OTHER QUALIFYING CIRCUMSTANCES, TO WIT:
A.
THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID
OF ARMED MEN AND WITH THE USE OF A PERSON TO
INSURE OR AFFORD IMPUNITY;
doubt in any ones mind that the accused employed means, methods, or
forms in the execution of the killings which tended directly and specially to
ensure their execution, without risk to themselves arising from the defense
which the offended party might make.[52]
The trial court likewise erred in appreciating nighttime and band as generic
aggravating circumstances. Under the facts of this case, nighttime or
nocturnity was absorbed in treachery, since it was evidently an integral
part of the peculiar treacherous means and manner adopted to ensure the
execution of the crimes, or that it facilitated the treacherous character of
the attack.[53] Band or cuadrilla was likewise absorbed in treachery.[54]
Aside from disregarding nighttime and band as aggravating circumstances,
we also give accused Sarenas Tabag the benefit of the mitigating
circumstance of voluntary surrender. For, as evidenced by a certification
issued by Judge Napy Agayan, Sarenas Tabag voluntarily surrendered
himself before the warrant for his arrest was served on him.
The penalty for murder at the time the accused committed the four
separate crimes of murder was reclusion temporal in its maximum period
to death. There being one mitigating circumstance without any
aggravating circumstance to offset it, and applying the Indeterminate
Sentence Law, the penalty imposable in each case is prision mayor in its
maximum period to reclusion temporal in its medium period, as minimum,
to reclusion temporal in its maximum period, as maximum.
As to the civil liabilities, the award of P400,000.00 as moral damages is not
correct. Current case law fixes the indemnity for death at P50,000.00.
Moral damages may also be recovered in criminal cases under Article 2219
of the Civil Code. Marciana Magdasal, mother of Welbino Magdasal, Sr., left
to the discretion of the trial court the quantification of her sufferings
caused by the death of her son, daughter-in-law, and two grandchildren.
Since Marcianas husband did not testify as to his moral suffering, any
award for moral damages must be in favor of Marciana only, and an award
of P10,000.00 in each of the four counts of murder is adequate. Hence, the
total indemnity to be awarded to the heirs of the victims shall be
P200,000.00, and the aggregate moral damages to be awarded to

B.

THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF

A PRICE, REWARD, OR PROMISE;
C.
THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A
DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON
ROSING WAS RAGING ON NOVEMBER 3, 1995;
D.
THAT THE CRIME WAS COMMITTED WITH EVIDENT
PREMEDITATION;
2.
THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR
ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND
FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT

Marciana Magdasal shall be P40,000.00.

Finally, the trial court also erred in not proceeding with the case against
Laureo Awod and Artemio Awod after their successful escape on 19
October 1989 while in preventive detention. They had already been
arraigned. Therefore, pursuant to the last sentence of paragraph (2),
Section 14, Article III of the Constitution,[55] trial against them should
continue and upon its termination, judgment should be rendered against
them notwithstanding their absence unless, of course, both accused have
died and the fact of such death is sufficiently established. Conformably
with our decision in People v. Salas,[56] their escape should have been
considered a waiver of their right to be present at their trial, and the
inability of the court to notify them of the subsequent hearings did not
prevent it from continuing with their trial. They were to be deemed to have
received notice. The same fact of their escape made their failure to appear
unjustified because they have, by escaping, placed themselves beyond the
pale and protection of the law. This being so, then pursuant to Gimenez v.
Nazareno,[57] the trial against the fugitives, just like those of the others,
should have been brought to its ultimate conclusion. Thereafter, the trial
court had the duty to rule on the evidence presented by the prosecution
against all the accused and to render its judgment accordingly. It should
not wait for the fugitives re-appearance or re-arrest. They were deemed to
have waived their right to present evidence on their own behalf and to
confront and cross-examine the witnesses who testified against them.
It is obvious that the trial court forgot our rulings in Salas and Nazareno.
We thus take this opportunity to admonish trial judges to abandon any
cavalier stance against accused who escaped after arraignment, thereby
allowing the latter to make a mockery of our laws and the judicial process.
Judges must always keep in mind Salas and Nazareno and apply without
hesitation the principles therein laid down, otherwise they would court
disciplinary action.
WHEREFORE, the appealed decision of Branch 2 of the Regional Trial
Court of Tagum, Davao, in Criminal Case No. 6364 is AFFIRMED, with the
modification (1) sentencing accused-appellant SARENAS TABAG in each of
the four crimes to an indeterminate penalty of Twelve (12) years and One
(1) day of reclusion temporal, as minimum, to Seventeen (17) years, Four

BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING

FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores finding that the means of execution were not
deliberately adopted, petitioners asserted that the meeting of the accused
and the victim was not accidental as the former purposely searched for the
victim at the height of a typhoon, while accused Mayor Santiago Yabut
even remarked to his co-accused Danny, Dikitan mo lang, alam mo na
kung ano ang gagawin mo, bahala ka na (Just stay close to him, you know
what to do). Thus, Danny positioned himself near the stairs to goad the
victim to come out of his house, while Fortunato Mallari represented to the
deceased that the latter was being invited by a certain General Ventura.

When the victim declined the invitation by claiming he was sick, accused
Servillano Yabut persuaded the victim to come down by saying, [T]o settle
this matter, just apologize to the Mayor who is in the truck. In view of that
enticement, the victim came down, while Danny waited in ambush. To
emphasize the accuseds resolve to kill the deceased, petitioners further
narrated that when the deceased ran away after the first shot, the gunman
still pursued him, while Mayor Santiago Yabut, who was a doctor, kept
away at a safe distance and told everyone in the truck, Tama na, bilisan
ninyo, (Thats enough, move quickly) without giving medical assistance to
the deceased and without exerting any effort to arrest the gunman.
315, Paragraph 2(a) of the Revised Penal Code, alleging as follows:

(4) months, and One (1) day of reclusion temporal, as maximum; and (2)
deleting the award of P400,000.00 as moral damages and awarding, in lieu
thereof, (a) P200,000.00 as indemnity for the deaths of Welbino Magdasal,
Sr., Wendelyn Repalda Magdasal, Welbino Magdasal, Jr., and Melisa
Magdasal, payable to the heirs of the victims; and (b) P40,000.00 as moral
damages, payable to Marciana Magdasal.
The Resolution of 21 February 1996 dismissing the case as against accused
Coloma Tabag because of his death is hereby reiterated.
The trial court is ordered to continue with the proceedings in Criminal Case
No. 6364 as against accused Laureo Awod and Artemio Awod if they are
still alive, in accordance with the principles laid down in People v. Salas and
Gimenez v. Nazareno.
Costs against accused-appellant Sarenas Tabag.
SO ORDERED.
21. ALVA VS. COURT OF APPEALS
G.R. No. 157331 April 12, 2006
Before us is a petition for review on certiorari under Rule 45 of the
Rules of Court, as amended, assailing the twin Resolutions of the Court of
Appeals (CA), dated 18 October 2002[ 1 ] and 19 February 2003,[ 2 ]
respectively, in CA-G.R. CR No. 24077, entitled People of the Philippines v.
Arnold Alva.

The undersigned accuses ARNOLD ALVA of the

crime of ESTAFA, committed as follows:
That in or about and during the period covered
between October 18, 1993 up to December 18, 1993,
inclusive, in the City of Manila, Philippines, the said
accused, did then and there willfully (sic), unlawfully and
feloniously defraud YUMI VERANGA y HERVERA in the
following manner, to wit: the said accused, by means of
false manifestation and fraudulent representation which he
made to said YUMI VERANGA y HERVERA to the effect that
he could process the latters application for U.S. Visa
provided she would give the amount of P120,000.00, and
by means of other similar deceit, induced and succeeded in
inducing said YUMI VERANGA y HERVERA to give and
deliver, as in fact she gave and delivered to said accused
the amount of P120,000.00 on the strength of said
manifestation and representation said accused well
knowing that the same were false and untrue for the
reason that the U.S. Visa is not genuine and were made
solely to obtain, as in fact he did obtain the amount of
P120,000.00 which amount once in his possession with
intent to defraud, he wilfully (sic), unlawfully and
feloniously misappropriated, misapplied and converted the
said amount to his own personal use and benefit, to the
damage and prejudice of the said YUMI VERANGA y
HERVERA in the aforesaid amount of P120,000.00,
Philippine Currency.
CONTRARY TO LAW.

The CA, in the assailed resolutions, dismissed petitioners appeal of

the trial courts judgment of conviction for failing to post a new bail bond to
secure his provisional liberty on appeal.
The Facts
The present petition stemmed from an Information[ 3 ] charging
petitioner with having committed the crime of estafa defined under Article

The resultant criminal case was filed and docketed as Criminal

Case No. 95-143803 and raffled to the Regional Trial Court (RTC) of Manila,
Branch 54, presided by Judge Manuel T. Muro.
On 5 September 1995, the RTC issued a Recall Order[ 4 ] of the
Warrant of Arrest issued on 18 July 1995 against petitioner in view of the

The Office of the Provincial Prosecutor of Pampanga was furnished with a

copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a
Resolution218[11] ordering the release of accused Evelino David, Justino
Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of
the aforementioned resolution of Alfonso-Flores, which, as stated in the
order, the Provincial Prosecutor approved on February 7, 1996.
On 28 February 1996, an Information219[12] for Homicide, signed by
Assistant Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y.
Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in
approval of his bail bond by Hon. William Bayhon, then Executive Judge of
the RTC of Manila.
Upon arraignment on 7 December 1995, petitioner, duly assisted
by counsel,[ 5 ] pleaded not guilty to the crime charged.
After the trial on the merits, in an Order[ 6 ] dated 6 April 1998,
the RTC considered the case submitted for decision.
O n 4 M a y 1 9 9 9 , p e t i t i o n e r s c o u n s e l fi l e d a n U r g e n t
M o t i o n t o C a n c e l P r o m u l g a t i o n [7] praying for the resetting of
t h e 5 M a y 1 9 9 9 s c h e d u l e of p ro m u l g a t i o n o f t h e RTC s d e c i s i o n
t o 1 7 J u n e 1 9 9 9 i n v i e w o f t h e f a c t t h a t s a i d c o u n s e l a l re a d y
h a d a p r i o r c o m m i t m e n t o n s u b j e c t d a t e . T h e RTC g r a n t e d t h e
m o t i o n . T h e p ro m u l g a t i o n , h o w e v e r , w a s d e f e rre d o n l y u n t i l
19 May 1999.
A d a y b e f o re t h e re s c h e d u l e d d a t e o f p ro m u l g a t i o n , o r
on 18 May 1999, petitioners counsel again moved for the
d e f e rm e n t of t h e p ro m u l g a t i o n , d u e t o p r i o r u n d e r t a k i n g s o f
similar importance.[8]
On 19 May 1999, petitioner and counsel both failed to
appear in court despite due notice. In his stead, claiming to
b e p e t i t i o n e r s re p re s e n t a t i v e , a c e r t a i n J o e y P e r e z p e r s o n a l l y
d e l i v e re d t o t h e RTC a h a n d w r i t t e n m e d i c a l c e r t i fi c a t e [ 9 ]
ex p re s s i n g p e t i t i o n e r s i n a b i l i t y t o a t t e n d t h e d a y s h e a r i n g
due to hypertension.
I n re s p o n s e t o t h e a f o re s t a t e d a c t s o f p e t i t i o n e r a n d
counsel,
the
RTC
issued
an
O rd e r [ 1 0 ]
d i re c t i n g
the
p ro m u l g a t i o n o f i t s d e c i s i o n i n a b s e n t i a a n d t h e i s s u a n c e of a
b e n c h w a rr a n t o f a rre s t a g a i n s t p e t i t i o n e r f o r h i s f a i l u re t o
a p p e a r b e f o re i t d e s p i t e d u e n o t i c e .
I n i t s d e c i s i o n d a t e d 2 5 M a rc h 1 9 9 9 , [ 1 1 ] t h e RTC f o u n d
p e t i t i o n e r g u i l t y of t h e c r i m e o f e s t a f a u n d e r A r t i c l e 3 1 5 ,
p a r a g r a p h 2 ( a ) o f t h e Re v i s e d Pe n a l C o d e , t h e d e c re t a l p a r t
o f w h i c h re a d s :

Macabebe, Pampanga, against the YABUTs and John Doe alias Danny
Manalili and docketed as Criminal Case No. 96-1667(M). The accusatory
portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the
municipality of Masantol, province of Pampanga, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually
helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and
feloniously shoot the said PO3 Virgilio A. Dimatulac on his
WHEREFORE,
judgment
is
h e re b y
re n d e re d : fi n d i n g t h e a c c u s e d g u i l t y b e y o n d
re a s o n a b l e d o u b t o f t h e c r i m e o f e s t a f a u n d e r
A r t i c l e 3 1 5 , N o. 2 ( a ) of t h e R P C a n d s e n t e n c e s
h i m t o a n i n d e t e rm i n a t e t e rm o f im p r i s o n m e n t o f
nine (9) years and one (1) day as minimum of
prision mayor to seventeen (17) years as
m a x i m u m o f r e c l u s i o n t e m p o r a l i n a c c o rd a n c e
w i t h t h e p ro v i s i o n s o f A r t i c l e 3 1 5 , fi r s t , a n d t h e
I n d e t e rm i n a t e S e n t e n c e L a w , a n d f u r t h e r f o r t h e
a c c u s e d t o re t u rn t h e P 1 2 0 , 0 0 0 . 0 0 t o t h e
c o m p l a i n a n t w i t h a n i n t e re s t a t t h e r a t e of
t w e l v e p e rc e n t ( 1 2 % ) c o m p o u n d e d a n n u a l l y f ro m
J a n u a r y 1 , 1 9 9 4 ( t h e am o u n t h a s b e e n g i v e n t o
the accused in October and December 1993).
M e a n w h i l e , a s a p p e a r i n g i n t h e re c o rd s o f t h e RTC ,
i m m e d i a t e l y f o l l o w i n g a n o r i g i n a l d u p l i c a t e c o p y of t h e
a f o re q u o t e d d e c i s i o n , a d o c u m e n t e n t i t l e d P e r s o n a l B a i l
B o n d [12] dated 21 May 1999 issued by Mega Pacific
I n s u r a n c e C o r p o r a t i o n , s e e m e d t o h a v e b e e n fi l e d b e f o re a n d
a p p ro v e d b y t h e RTC a s e v i d e n c e d b y t h e s i g n a t u re of J u d g e
M u ro o n t h e f a c e o f s a i d b a i l b o n d . [ 1 3 ] Fo r s u c h re a s o n ,
p e t i t i o n e r a p p e a re d t o h a v e b e e n a d m i t t e d t o b a i l a n e w a ft e r
his conviction.
I n c o n g r u o u s t o t h e a b o v e i n f e re n c e , h o w e v e r , i n a n
O rd e r [ 1 4 ] d a t e d 2 5 M a y 1 9 9 9 , j u d g m e n t w a s re n d e re d a g a i n s t
E a s t e rn I ns u r a n c e a n d S u re t y C o r p o r a t i o n , t h e b o n d i n g
company that issued petitioners original bail bond, in the
a m o u n t o f P 1 7 , 0 0 0 . 0 0 , f o r f a i l u re t o p ro d u c e t h e p e r s o n o f
p e t i t i o n e r w i t h i n t h e 1 0 d a y p e r i o d e a r l i e r p ro v i d e d a n d t o
ex p l a i n w h y t h e am o u n t o f i t s u n d e r t a k i n g s h o u l d n o t b e
forfeited.
In the interregnum, Police Superintendent Ramon Flores De Jesus, Chief of
Warrant and Subpoena Section,[ 1 5 ] manifested to the RTC the return of
the unexecuted Warrant of Arrest issued on 19 May 1999 for the reason
that the address of the accused (petitioner) is not within our area of

abdomen with the use of a handgun, thereby inflicting upon him

a gunshot wound which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on 2/27/96, i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch
55, approved the cash bonds of the YABUTs, each in the amount of
P20,000.00, and recalled the warrants for their arrest. 220[13]
On 29 February 1996, Atty. Amado Valdez, who had entered his
appearance as private prosecutor, filed two (2) motions with the trial court:

(1) a Motion to Issue Hold Departure Order Against All Accuseds 221[14]
[sic]; and an (2) Urgent Motion to Defer Proceedings, 222[15] copies of which
were furnished the Office of the Provincial Prosecutor of Pampanga. The
second motion was grounded on the pendency of the appeal before the
Secretary of Justice and a copy thereof was attached to the motion. Judge
Roura set the motions for hearing on 8 March 1996. 223[16]
On 7 March 1996, Judge Roura ordered the arrest of the remaining
accused, Danny Manalili.224[17]
On 8 March 1996, the YABUTs filed their opposition 225[18] to the Motion to
Issue Hold Departure Order and the Motion to Defer Proceedings. The

responsibility. x x x Nevertheless, De Jesus reassured the RTC that the

name of the accused will be included in our list of wanted persons for our
future reference. Examination of the records of the case revealed that
petitioner already moved out of his address on record without informing
the RTC.

Motion for Reconsideration .

On 15 July 1999, hand delivered by a certain Remedios Caneda, petitioner

wrote[ 1 6 ] the RTC requesting for a certified photocopy of his exhibits
submitted to it during trial.
On 21 July 1999, a Termination of Legal Services was filed by petitioner
before the RTC informing it of his decision to terminate the services of his
counsel and that he was currently in the process of hiring a new one.
On 26 July 1999,[ 1 7 ] petitioner filed a Motion for Reconsideration before
the RTC.
In an Order[ 1 8 ] dated 30 August 1999, the RTC declined to give due
course to said motion for failure to set it for hearing; thus, treating it as a
mere scrap of paper.
O n 2 S e p t e m b e r 1 9 9 9 , p e t i t i o n e r re c e i v e d t h e a b o v e
O rd e r. T h e n ex t d a y , o r o n 3 S e p t e m b e r 1 9 9 9 , p e t i t i o n e r fi l e d
a N o t i c e o f A p p e a l [19] before the RTC.
I n a n O rd e r [ 2 0 ] d a t e d 2 0 S e p t e m b e r 1 9 9 9 , t h e RTC
again declined to give due course to the Notice of Appeal ,
ratiocinating thus:
T h e N o t i c e o f A p p e a l fi l e d b y a c c u s e d
c a n n o t b e g i v e n d u e c o u r s e a s i t w a s fi l e d o u t o f
t i m e . A l t h o u g h a c c u s e d fi l e d a M o t i o n f o r
Re c o n s i d e r a t i o n d a t e d 2 3 J u l y 1 9 9 9 , t h e C o u r t
c o n s i d e re d i t a s a m e re s c r a p o f p a p e r a n d w a s
not acted upon as the same was not set for
h e a r i n g , h e n c e , i t d i d n o t s t o p t h e re g l e m e n t a r y
p e r i o d t o fi l e a p p e a l .
O n 2 5 N o v e m b e r 1 9 9 9 , p e t i t i o n e r fi l e d a n e w a m o t i o n
p r a y i n g f o r t h e RTC s c a t e g o r i c a l re s o l u t i o n o f h i s 2 3 J u l y 1 9 9 9

I n a n O rd e r d a t e d 7 D e c e m b e r 1 9 9 9 , t h e RTC g r a n t e d
t h e a b o v e s t a t e d m o t i o n , t h e f u l l t ex t o f w h i c h s t a t e s :
T h e M o t i o n t o Re s o l v e t h e M o t i o n f o r
Re c o n s i d e r a t i o n o f t h e a c c u s e d , d a t e d N o v e m b e r
2 0 , 1 9 9 9 is g r a n t e d i n t h e i n t e re s t o f j u s t i c e ,
c o n s i d e r i n g t h a t t h e o n e w h o p re p a re d t h e
M o t i o n f o r Re c o n s i d e r a t i o n a p p e a r s t o b e t h e
a c c u s e d h im s e l f , w h o m a y n o t a p p e a r t o b e a
lawyer and may not be conversant with the
r u l e s , a m o n g o t h e r s , g o v e rn i n g m o t i o n s .
Ac t i n g
on
the
said
Motion
for
Re c o n s i d e r a t i o n i t s e l f , s am e i s d e n i e d f o r l a c k o f
m e r i t . T h e D e c i s i o n h a s ex a m i n e d a n d d i s c u s s e d
t h e e v i d e n c e p re s e n t e d a n d t h e m e r i t s o f t h e
case.
Because of the pendency of the Motion for
Re c o n s i d e r a t i o n , t h e a p p e a l i s d e e m e d fi l e d o n
t i m e , a n d t h e a p p e a l is g i v e n d u e c o u r s e .
Le t t h e re c o rd s o f t h e c a s e , t o g e t h e r w i t h
t h re e
(3)
copies
of
the
transcripts
of
s t e n o g r a p h i c n o t e s b e t r a n s m i t t e d t o t h e H o n.
Court of Appeals.
O n a p p e a l b e f o re t h e C o u r t of A p p e a l s , i n a
Re s o l u t i o n [ 2 1 ] d a t e d 1 6 O c t o b e r 2 0 0 1 , t h e a p p e l l a t e c o u r t
re q u i re d p e t i t i o n e r t o s h o w c a u s e w h y h i s a p p e a l s h o u l d n o t
be dismissed it appearing that no new bail bond for his
p ro v i s i o n a l l i b e r t y o n a p p e a l h a d b e e n p o s t e d , t o w i t :
C o n s i d e r i n g t h e a rre s t w a rr a n t i s s u e d b y
the trial court against the accused who failed to
a p p e a r a t t h e p ro m u l g a t i o n o f t h e j u d g m e n t , a n d
i t a p p e a r i n g f rom t h e re c o rd t h a t n o n e w b o n d
f o r h i s p ro v i s i o n a l l i b e r t y o n a p p e a l h a s b e e n

YABUTs asserted that, as to the first, by posting bail bonds, they submitted
to the jurisdiction of the trial court and were bound by the condition therein
to surrender themselves whenever so required by the court, and to seek
permission from the court should any one of them desire to travel; and, as
to the second, the pendency of the appeal before the Secretary of Justice
was not a ground to defer arraignment; moreover, the trial court had to
consider their right to a speedy trial, especially since there was no definite
date for the resolution of the appeal. Then invoking this Courts rulings in
Crespo v. Mogul226[19] and Balgos v. Sandiganbayan,227[20] the YABUTs
further asserted that petitioners should have filed a motion to defer the
posted, appellant is ORDERED to SHOW CAUSE
w i t h i n t e n ( 1 0 ) d a y s f ro m n o t i c e w h y h i s a p p e a l
should not be dismissed outright.
O n 2 9 O c t o b e r 2 0 0 1 , p e t i t i o n e r , t h ro u g h n e w c o u n s e l ,
fi l e d a C om p l i a n c e [ 2 2 ] e s s e n t i a l l y s t a t i n g t h e re i n t h a t :
x x x x
3.
U p o n l e a rn i n g o f t h e c o u r s e o f a c t i o n
t a ke n b y t h e p re s i d i n g j u d g e , a n d f o r p u r p o s e s
of appealing the decision subject of the instant
case, on May 21, 1999, accused immediately
p o s t e d a n e w b o n d f o r h i s p ro v i s i o n a l l i b e r t y.
T h e p re s i d i n g j u d g e o f t h e l ow e r c o u r t , w h i c h
i s s u e d t h e q u e s t i o n e d d e c i s i o n , d u l y a p p ro v e d
t h e n e w b o n d . C e r t i fi e d t r u e c o p y o f t h e b o n d i s
h e re t o a t t a c h e d a s A n n ex 3 a n d m a d e a n
i n t e g r a l p a r t h e re o f ;
x x x x.
I n a Re s o l u t i o n [ 2 3 ] d a t e d 1 8 O c t o b e r 2 0 0 2 , t h e C o u r t
o f A p p e a l s , n o n e t h e l e s s d i s m i s s e d t h e a p p e a l fi l e d b y
p e t i t i o n e r f o r a p p e l l a n t s f a i l u re t o p o s t a n e w b o n d f o r h i s
p ro v i s i o n a l l i b e r t y o n a p p e a l d e s p i t e o u r d i re c t i v e a s
c o n t a i n e d i n o u r Re s o l u t i o n d a t e d O c t o b e r 1 6 , 2 0 0 1 , a n d i n
view of the fact that his personal bail bond posted in the
l o w e r c o u r t h a d a l re a d y ex p i re d , x x x.

filing of the information for homicide with the Office of the Provincial
Prosecutor, or sought, from the Secretary of Justice, an order directing the
Provincial Prosecutor to defer the filing of the information in court.
In a Reply228[21] to the opposition, the private prosecution, citing Section
20 of Rule 114 of the Rules of Court, insisted on the need for a holddeparture order against the accused; argued that the accuseds right to a
speedy trial would not be impaired because the appeal to the Secretary of
Justice was filed pursuant to Department Order No. 223 of the DOJ and
there was clear and convincing proof that the killing was committed with
treachery and other qualifying circumstances not absorbed in treachery;
p e r i o d c o v e re d b y i t s 2 1 M a y 1 9 9 9 b a i l b o n d . At t a c h e d t o s a i d
m o t i o n w a s a B o n d E n d o r s e m e n t [25] extending the coverage
o f t h e b a i l b o n d f rom 2 1 M a y 1 9 9 9 t o 2 1 M a y 2 0 0 3 .
A s ke d t o c o m m e n t o n t h e M o t i o n f o r R e c o n s i d e r a t i o n ,
re s p o n d e n t Pe o p l e o f t h e P h i l i p p i n e s ( Pe o p l e ) , t h ro u g h t h e
O ffi c e o f t h e S o l i c i t o r G e n e r a l ( O SG ) , i n t e r p o s e d o b j e c t i o n s .
I n i t s C o m m e n t , [ 2 6 ] re s p o n d e n t Pe o p l e r a i s e d t w o a rg u m e n t s :
1) that an application for bail can only be availed of by a
p e r s o n w h o i s i n t h e c u s t o d y o f t h e l aw o r o t h e r w i s e d e p r i v e d
of his liberty; and 2) that bail on appeal is a matter of
d i s c re t i o n w h e n t h e p e n a l t y i m p o s e d b y t h e t r i a l c o u r t i s
i m p r i s o n m e n t exc e e d i n g s i x ( 6 ) y e a r s .
On 19 February 2003, the Court of Appeals issued the second assailed
Resolution,[ 2 7 ] disposing of petitioners motion as follows:
Fi n d i n g n o m e r i t i n a p p e l l a n t s m o t i o n f o r
re c o n s i d e r a t i o n
(citation
omitted)
fi l e d
on
N o v e m b e r 1 2 , 2 0 0 2 , t h e s a m e i s h e re b y D E N I E D .
We a g r e e w i t h t h e a p p e l l e e t h a t a p p e l l a n t
h a s f a i l e d t o s u b m i t hi m s e l f u n d e r t h e
jurisdiction of the court or under the
c u s t o d y o f t h e l a w s i n c e hi s c o n v i c t i o n i n
1 9 9 9 a n d t ha t t h e r e wa s n o v a l i d b a i l b o n d
in place when appellant took his appeal .
WHEREFORE,
appellants
motion
for
re c o n s i d e r a t i o n i s D E N I E D . [ E m p h a s i s s u p p l i e d . ]
Hence, this petition.

Undaunted,
petitioner
fi l e d
a
Motion
for
R e c o n s i d e r a t i o n [24] thereto seeking its reversal. According to
p e t i t i o n e r s c o u n s e l , h e w a s of t h e u n d e r s t a n d i n g t h a t t h e
S h o w C a u s e Re s o l u t i o n o f 1 6 O c t o b e r 2 0 0 1 m e re l y s o u g h t a n
ex p l a n a t i o n v i s - - v i s t h e a b s e n c e o f a b a i l b o n d g u a r a n t e e i n g
p e t i t i o n e r s p ro v i s i o n a l l i b e r t y w h i l e h i s c o n v i c t i o n w as o n
a p p e a l . A l l t h e s a m e , p e t i t i o n e r s c o u n s e l m a n if e s t e d t h a t
M e g a Pa c i fi c I ns u r a n c e C o r p o r a t i o n , h a d a l re a d y ex t e n d e d t h e

The Issues
Pe t i t i o n e r n ow c o m e s t o t h i s C o u r t v i a a p e t i t i o n f o r
re v i e w o n c e r t i o r a r i u n d e r Ru l e 4 5 of t h e Ru l e s o f C o u r t
a l l e g i n g t h e f o l l ow i n g e rro r s : [ 2 8 ]

and contended that the accuseds invocation of the right to a speedy trial
was inconsistent with their filing of various dilatory motions during the
preliminary investigation. The YABUTs filed a Rejoinder 229[22] to this
Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a
Hold Departure Order until such time that all the accused who are out on
bail are arraigned, but denied the Motion to Defer Proceedings as he found
no compelling reason therefor, considering that although the appeal was
filed on 23 February 1996, the private prosecution has not shown any
indication that [the] appeal was given due course by the Secretary of

Justice. Judge Roura also set the arraignment of the accused on 12 April
1996.230[23]
It would appear that the private prosecution moved to reconsider the order
denying the Motion to Defer Proceedings since, on 12 April 1996, Judge
Roura issued an Order231[24] giving the private prosecutor ten (10) days
from today within which to file a petition for certiorari questioning the
order of the Court denying his motion for reconsideration of the order of
March 26, 1996. Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura232[25]
from hearing Criminal Case No. 96-1667(M) on the ground that he: (a)

I.
V.
THE
H O N O RA B L E
C O U RT
OF
APPEALS
HAS
D E C I D E D Q U E S T I O N S O F S U BS TA N C E I N A WAY
N O T I N AC C O R D W I T H L AW O R W I T H A P P L I C A B L E
DECISIONS
OF
THIS
H O N O RA B L E
SUPREME
C O U RT ;
II.
T H E H O N O RA B L E C O U RT O F A P P E A L S AC T E D W I TH
G RAV E A B U S E O F DI S C R E T I O N A M O U N T I N G TO
L AC K O R E XC E S S O F J U R I S D I C TI O N W H E N I T
D I S M I S S E D T H E P E T I T I O N D O C K E T E D A S C A G . R.
C R N O. 2 4 0 7 7 O N T H E G R O U N D O F A L L E G E D
FA I LU R E T O P O S T A N E W BO N D F O R P E T I TI O N E R S
P R OV I S I O N A L L I B E RT Y A N D T H AT T H E P E R S O N A L
B A I L BO N D P O S T E D I N T H E LO W E R C O U RT H A D
A L L E G E D LY A L R E A DY E X P I R E D ;
III.
T H E H O N O RA B L E C O U RT O F A P P E A L S G RAV E LY
E R R E D O R AC T E D W I T H G RAV E A B U S E O F
DISCRETION WHEN IT DID NOT CONSIDER AS
S U BS TA N T I A L, T H E C O M P L A I N C E F I L E D BY T H E
P E T I T I O N E R W H I C H S H O W E D T H E FAC T TH AT
I N D E E D T H E R E WA S A B A I L BO N D F I L E D F O R T H E
P R OV I S I O N A L LI B E RT Y O F T H E AC C U S E D D U R I N G
T H E P E N D E N CY O F T H E A P P E A L ;
I V.
T H E H O N O RA B L E C O U RT O F A P P E A L S G RAV E LY
E R R E D O R AC T E D W I T H G RAV E A B U S E O F
DISCRETION WHEN IT IGNORED THE RECENT BAIL
BO N D E XT E N S I O N ATTAC H E D T O T H E M O T I O N F O R
R E C O N S I D E RAT I O N F I L E D BY T H E P E T I TI O N E R ;

T H E H O N O RA B L E C O U RT O F A P P E A L S G RAV E LY
E R R E D O R AC TE D W I T H G RAV E A B U S E O F
D I S C R E TI O N
WHEN
IT
RULED
TH AT
THE
PETITIONER
FA I L E D
TO
SUBMIT
TO
THE
J U R I S D I C TI O N
OF
T H E C O U RT O R
T O TH E
C U S T O DY O F L AW D E S P I T E T H E B A I L BO N D
P O S T E D O N M AY 2 1 , 1 9 9 9 ; a n d
VI.
T H E H O N O RA B L E C O U RT O F A P P E A L S G RAV E LY
E R R E D O R AC TE D W I T H G RAV E A B U S E O F
D I S C R E TI O N W H E N I T R U L E D TH AT TH E R E WA S
N O VA L I D B A I L BO N D I N P L AC E W H E N T H E
P E T I T I O N E R TO O K H I S A P P E A L .
T h e b o m b a rd m e n t o f e rro r s n o t w i t h s t a n d i n g , o n l y t w o
i s s u e s a re r a i s e d i n t h i s p e t i t i o n : 1 ) w i t h t h e exc e p t i o n o f t h e
fi ft h a s s i g nm e n t o f e rro r , a l l s i x c a n b e e n c a p s u l a t e d i n o n e
solitary question, that is, whether or not the Court of Appeals
c o m m i t t e d re v e r s i b l e e rro r i n d i s m is s i n g t h e a p p e a l i n v i e w o f
p e t i t i o n e r s a l l e g e d f a i l u re t o p o s t a v a l i d b a i l b o n d t o s e c u re
h i s p ro v i s i o n a l l i b e r t y o n a p p e a l ; a n d 2 ) w h e t h e r o r n o t
petitioner failed to submit himself to the jurisdiction of the
c o u r t o r t o t h e c u s t o d y o f t h e l a w d e s p i t e t h e p o s t i n g of t h e
subject bail bond.
The Courts Ruling
Petitioner faults the appellate court for expressing x x x in its questioned
resolutions that herein petitioner did not submit to the jurisdiction of the
court or custody of the law, or that there was no valid bail bond when the
appeal was taken when the records of the case would readily prove the
contrary.[ 2 9 ] In issuing said resolution, petitioner concludes that the Court
of Appeals made x x x no careful examination of the records x x x.
Petitioner rationalizes his deduction in the following manner:

hastily set the case for arraignment while the formers appeal in the DOJ
was still pending evaluation; and (b) prejudged the matter, having
remarked in open court that there was nothing in the records of the case
that would qualify the case into Murder. At the same time, petitioners filed
a petition for prohibition233[26] with the Court of Appeals docketed therein
as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding with the
arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation
and Comment234[27] with the trial court wherein he opposed the motion to
inhibit Judge Roura; manifested that there is nothing in the record which

xxx
[T]he records of the case readily reveals
(sic) that several pleadings were filed by the petitioner
before the lower court even after the promulgation of
judgment was made. Right after the promulgation of the
decision in the lower court, herein petitioner went to the
court and posted a bail bond. If the posting of the bond
which was approved by the same Regional Trial Court who
rendered the decision subject of appeal is not yet a
submission to the jurisdiction of the court, then the
respondent Hon. Court of Appeals must have been thinking
of another matter beyond the comprehension of the
petitioner and obviously outside the matters being
contemplated by law and the Rules of Court.
Equally, petitioner further posits that:
x x x Although it is respectfully submitted that an
accused shall be denied bail or his bail shall be cancelled if
sentenced to an imprisonment exceeding six (6) years as
provided in Section 5, Rule 114 of the Rules of Court, just
the same, there must be a showing by the
prosecution with notice to the accused of the fact
that, the accused is a recidivist, has previously escaped
from confinement, evaded sentence, has committed an
offense while under probation, there are circumstances
indicating the probability of flight if released on bail, etc.
But there was none of the said instances that may be
attributable to herein petitioner.[ 3 0 ]
Respondent People, in contrast, counters that x x x [a]lthough a personal
bail bond dated May 21, 1999 was executed in favor of petitioner by Mega
Pacific Insurance Corporation two days after the promulgation of the
Decision, there is nothing on record which shows that petitioner had
surrendered, was arrested or otherwise deprived of his liberty after the
promulgation of the judgment of his conviction in his absence. x x x. To
illustrate its point, respondent People cites the following facts: 1) the return
of the Warrant of Arrest issued on May 19, 1999 signed by

shows that the subject killing is qualified into murder; and announced that
he will no longer allow the private prosecutor to participate or handle the
prosecution of [the] case in view of the latters petition to inhibit Judge
Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the
case transferred to Branch 54 of the RTC, presided over by herein public
respondent Judge Sesinando Villon.235[28]
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC
received the record of Criminal Case No. 96-1667(M).236[29]

P/Superintendent Ramon Flores De Jesus, Chief of Warrant and Subpoena

Section, which states in full:
Respectfully returned this unexecuted Warrant of Arrest for
the reason that the address of the accused is not within our
area of responsibility. Further request that the warrant of
Arrest be forwarded to the Police Station which has
Jurisdiction over the address of the accused.
However, the name of the accused will be included in our
list of wanted persons for our future reference.
2) the fact that six days after the decision of the RTC was promulgated, or
on 25 May 1999, said court rendered judgment against the bail bond
issued by Eastern Assurance and Surety Corporation executed to secure
petitioners provisional liberty during the trial, for the bondsmans failure to
produce petitioner before the court, to wit:
In view of the failure of Eastern Insurance & Surety
Corporation, bondsman of herein accused, to produce the
herein accused within the period granted it by this Court,
judgment is hereby rendered against said bond in the
amount of Seventeen Thousand (P17,000.00) Pesos.[ 3 1 ]
Respondent People explains that the first two facts make it
improbable to conclude that there existed a valid bail bond securing
petitioners provisional liberty even after conviction. Stated in another way,
petitioners admission to bail presumes that the latter surrendered, was
arrested or he had otherwise submitted himself under the custody of the
law.
And, 3) that petitioner belatedly attached a bond endorsement to
his motion for reconsideration dated November 7, 2002 submitted before
the Court of Appeals, purportedly to extend the expired personal bond
dated May 21, 1999 x x x, did not automatically confer on petitioner the
benefits of an effective bail bond,[ 3 2 ] as petitioner made no extension of
the previous personal bond before the same expired.

On 30 April 1996, petitioners filed with the trial court a Manifestation 237[30]
submitting, in connection with their Motion to Defer Proceedings and
Motion to Inhibit Judge Roura, documentary evidence to support their
contention that the offense committed was murder, not homicide. The
documents which they claimed were not earlier submitted by the public
prosecution were the following:
a.
Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b.
Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c.
Counter-Affidavit of Francisco I. Yambao.
d.
Counter-Affidavit of SPO2 Fortunato Mallari.

e.
Sinumpaang Salaysay of Aniano Magnaye.
f.
Sinumpaang Salaysay of Leopoldo Soriano.
g.
Transcript of Stenographic Notes of the Preliminary
Investigation of Criminal Case No. 95-360, containing the
testimony of:
a.
Peter Paul Dimatulac
b.
Vladimir D. Yumul
c.
SPO1 Gilberto Malabanan
d.
PO3 Alfonso Canilao
h.
Investigation Report- dated November 4, 1995.

We d i s a g re e
petition must fail.

the

(c)
That the accused committed the offense while on
probation, parole, or under conditional pardon;

A d e fi n i t i v e d i s p o s i t i o n o f t h e is s u e re l a t i n g t o t h e
ex i s t e n c e a n d v a l i d i t y o f p e t i t i o n e r s b a i l b o n d o n a p p e a l
p re s u p p o s e s t h a t t h e l a t t e r w a s a l l o w e d b y l a w t o p o s t b a i l
n o t w i t h s t a n d i n g t h e RTC s j u d g m e n t of c o n v i c t i o n a n d t h e
imposition
of
the
penalty
of
imprisonment
for
an
i n d e t e rm i n a t e p e r i o d o f n i n e ( 9 ) y e a r s a n d o n e ( 1 ) d a y a s
m i n i m um o f p r i s i o n m a y o r t o s e v e n t e e n ( 1 7 ) y e a r s a s
maximum of reclusion temporal .

(d)
That the circumstances of the accused or his case
indicate the probability of flight if released on bail; or

in

petitioners

assertions;

hence,

Section 5 of Rule 114 of the 1994 Rules of Court, as amended,

intrinsically addresses the foregoing prefatory matter viz:
SEC. 5. Bail, when discretionary. Upon conviction by the
Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment, the court, on
application, may admit the accused to bail.
The court, in its discretion, may allow the accused to
continue on provisional liberty under the same bail bond
during the period to appeal subject to the consent of the
bondsman.
If the court imposed a penalty of imprisonment exceeding
six (6) years, but not more than twenty (20) years, the
accused shall be denied bail, or his bail previously granted
shall be cancelled, upon a showing by the prosecution,
with notice to the accused, of the following or other similar
circumstances:
(a)
That the accused is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the crime
aggravated by the circumstances of reiteration;
(b)
That the accused is found to have previously
escaped from legal confinement, evaded sentence, or has
violated the conditions of his bail without valid justification;

(e)
That there is undue risk that during the pendency
of the appeal, the accused may commit another crime.
T h e a p p e l l a t e c o u r t m a y re v i e w t h e
re s o l u t i o n of t h e Re g i o n a l Tr i a l C o u r t, o n m o t i o n
a n d w i t h n o t i c e t o t h e a d v e r s e p a r t y. [ E m p h a s i s
supplied.]
From the preceding quoted provision, the RTC is given the discretion to
admit to bail an accused even after the latter has been convicted to suffer
the penalty of imprisonment for a term of more than six (6) years but less
than twenty (20) years. However, the same also provides for the
cancellation of bail bonds already granted or the denial of a bail bond
application upon the concurrence of two points: 1) if the judgment of the
Regional Trial Court exceeds six (6) years but not more than twenty (20)
years; and 2) upon a showing by the prosecution, with notice to the
accused, of the presence of any of the five circumstances therein
enumerated or other similar circumstances.
In the case at bar, petitioner was convicted by the RTC to suffer the penalty
of imprisonment for an indeterminate term of nine (9) years and one (1)
day as minimum of prision mayor to seventeen (17) years as maximum of
reclusion temporal. Quite clearly, the approval of petitioners application for
bail was discretionary upon the RTC.
It is incongruous, to say the least, that the posting of a bail
presupposes that the accused and/ or accused-appellant is detained or in
the custody of the law.[ 3 3 ] In the case at bar, the bench warrant issued by
the RTC on 19 May 1999 still remains unserved. Nothing in the records of
the case, neither in the RTC nor the Court of Appeals, demonstrates that
petitioner was ever arrested, as there has been no related Order of Release
issued by any court, or that he voluntarily surrendered or at the very least
placed himself under the custody of the law.

i.
Dying declaration of Virgilio Dimatulac.
j.
Sketch
k.
Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP
No. 40393, a Resolution 238[31] directing respondent therein to file his
comment to the petition within ten days from notice and to show cause
within the same period why no writ of preliminary injunction should be
issued as prayed for in the petition. However, the Court of Appeals
deferred action on the prayer for a temporary restraining order until after
the required comment [was] submitted.

On 3 May 1996, petitioners filed an Ex-Parte Manifestation 239[32] with the

RTC, furnishing the trial court with a copy of the aforementioned resolution
of the Court of Appeals and drawing the attention of the trial court to the
rulings of this Court in Valdez vs. Aquilisan, (133 SCRA 150), Galman vs.
Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of
Appeals as well as the decision in Paul G. Roberts vs. The Court of Appeals.
On 3 May 1996, Judge Villon issued an order resetting arraignment of the
accused to 20 May 1996.240[33] On the latter date, the YABUTs each
entered a plea of not guilty.241[34]

Basic is the principle that that the right to bail can only be availed
of by a person who is in custody of the law or otherwise deprived of his
liberty and it would be premature, x x x, to file a petition for bail for
someone whose freedom has yet to be curtailed.[ 3 4 ]

This is especially true in this case as a close scrutiny of the original records
of the case at bar reveals that petitioner violated the conditions of his bail
without valid justification his failure to appear before the RTC, despite due
notice, on the day of the promulgation of the latters judgment, absent any
justifiable reason. His absence was a clear contravention of the conditions
of his bail bond to say the least. As evidenced by the undertaking printed
on the face of the bond issued by Eastern Insurance and Surety
Corporation and likewise required under Section 6[ 3 5 ] of Rule 120 of the
Rules of Court, petitioner must present himself before the court for the
reading of the judgment of the RTC in order to render himself to the
execution thereof.

All told, no bail should have been granted petitioner. It is beyond dispute
that the subject bail bond issued by Mega Pacific Insurance Corporation
was irregularly approved. Worth noting is the fact that nowhere in the
records of the case is it shown that petitioner applied for bail through a
motion duly filed for such purpose nor is there showing that the RTC issued
an Order of Approval or any other court process acknowledging such
document. Be that as it may, even granting for the sake of argument that it
was indeed approved by Judge Muro, such approval did not render the
subject bail bond valid and binding for it has been established that
petitioner was not entitled to bail on appeal.
That the prosecution appears not to have been given the chance to object,
as evidently required under the quoted rule, to the application or approval
of the subject bail bond (with notice to the accused), fortifies the
declaration as to its invalidity. Nowhere in the original records of the RTC
does it even show that the prosecution was informed of petitioners
application for bail, much less the approval of such application.
Noting that the raison d'tre for such requirement is the discretionary nature
of the admission to bail of an accused after conviction, though
discretionary, such assessment must be exercised in accordance with
applicable legal principles. As when there is a concurrence of the
enumerated circumstances and the range of penalty imposed, the
prosecution must first be accorded an opportunity to object and present
evidence, if necessary, with notice to the accused. It is on this basis that
judicial discretion is balanced in determining whether or not an accusedappellant should be admitted to bail pending appeal of his conviction vis-vis the increased possibility or likelihood of flight.
Approval of an application for bail on appeal, absent the knowledge of the
prosecution of such application or, at the very least, failing to allow it to
object, is not the product of sound judicial discretion but of impulse and
arbitrariness, not to mention violative of respondent Peoples right of
procedural due process.

While, indeed, a medical certificate was hand delivered and filed by a

certain Joey Perez, allegedly a representative of petitioner, stating therein
the reason for the latters absence, the RTC found insubstantial the
explanation proffered. Appropriately, it ordered the promulgation of its
judgment in absentia. It also issued a bench warrant of arrest against
petitioner.
Upon examination, the subject medical certificate[ 3 6 ] merely states that
petitioner was diagnosed to be suffering from hypertension. It failed to
elucidate further any concomitant conditions necessitating petitioners
physical incapability to present himself before the court even for an hour or
two; thus, it considered the absence of petitioner unjustified. What's more,
though notarized, the subject document failed to indicate evidence of
affiants[ 3 7 ] identity making its due execution doubtful.
Further, it should be recalled as well, that as early as 4 May 1999,
petitioner and counsel had already been notified of the 19 May 1999
schedule of promulgation. The first having been postponed in view of the
Urgent Motion to Cancel Promulgation (on 5 May 1999) filed by petitioners
counsel.
Another telling evidence of the violation of petitioners original bail bond is
revealed by the Process Servers Return,[ 3 8 ] indicated at the dorsal
portion of the RTCs Produce Order, indicating petitioners change of address
without prior notice to the RTC, it states:
PROCESS SERVERS RETURN

Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996,

an Urgent Motion to Set Aside Arraignment, 242[35] citing the resolution of
30 April 996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter
alia, deferred resolution on the application for a temporary restraining
order until after the required comment is submitted by the respondent;
stressed that the filing of the information for the lesser offense of homicide
was clearly unjust and contrary to law in view of the unquestionable
attendance of circumstances qualifying the killing to murder; and asserted
that a number of Supreme Court decisions supported suspension of the
proceedings in view of the pendency of their appeal before the DOJ.

This certifies that on the 17th day of May, (sic) 1999,

undersigned return (sic) again to Fersal Apartelle located at
130 Kalayaan Ave. (sic) Diliman, Quezon City for
confirmation and indeed the addressee, Arnold Alva, had
no (sic) longer been residing nor holding office at the
aforementioned address.
By failing to inform the RTC of his change of address, petitioner
failed to hold himself amenable to the orders and processes of the RTC. It
was an unmistakable arrant breach of the conditions of his bail bond.
Prescinding from the above discussion, the conviction of petitioner to a
period beyond six (6) years but less than twenty (20) years in tandem with
attendant circumstances effectively violating his bail without valid
justification should have effectively precluded him from being admitted to
bail on appeal.
The issue of the validity of petitioners bail bond on appeal having been laid
to rest by Section 5 of Rule 114 of the 1994 Rules of Court, as amended,
petitioners alleged failure to post a bail bond on appeal is, therefore,
inconsequential as, under the circumstances, he is disallowed by law to be
admitted to bail on appeal. Thus, for all legal intents and purposes, there
can be no other conclusion than that at the time petitioner filed his notice
of appeal and during the pendency of his appeal even until now he remains
at large, placing himself beyond the pale, and protection of the law.
Inexorably, having jumped bail and eluded arrest until the present,
the issue of whether or not petitioner has lost his right to appeal his
conviction now ensues.
The manner of review of petitioners conviction is governed by the
Rules of Court. Appropriately, Rule 124 of the Rules of Court presents the
procedural requirements regarding appeals taken to the Court of Appeals.
Section 8 of said Rule finds application to the case at bar, viz:
SEC. 8. Dismissal of appeal for abandonment or
failure to prosecute. The appellate court may, upon motion
of the appellee or its own motion and notice to the

On 31 May 1997, Judge Villon issued an Order 243[36] directing the accused
to file their comment on the Urgent Motion to Set Aside Arraignment within
fifteen days from notice.
In a letter244[37] addressed to the Provincial Prosecutor dated 7 June 1996,
public respondent Secretary Teofisto Guingona of the DOJ resolved the
appeal in favor of petitioners. Secretary Guingona ruled that treachery was
present and directed the Provincial Prosecutor of San Fernando, Pampanga
to amend the information filed against the accused from homicide to
murder, and to include Fortunato Mallari as accused in the amended

appellant, dismiss the appeal if the appellant fails to file his

brief within the time prescribed by this Rule, except in case
the appellant is represented by a counsel de oficio.
The court may also, upon motion of the appellee or
on its own motion, dismiss the appeal if the appellant
escapes from prison or confinement or jumps bail or flees
to a foreign country during the pendency of the appeal.
[Emphasis supplied.]
By virtue of the second paragraph of the abovequoted provision,
the act of jumping bail, among otherthings, will result in the outright
dismissal of petitioners appeal. As pointed out by the Court in the case of
People v. Mapalao,[ 3 9 ] the reason for said rule is that:
[O]nce an accused escapes from prison or confinement or
jumps bail or flees to a foreign country, he losses 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, the Court of Appeals committed no reversible error in dismissing
petitioners appeal. Within the meaning of the principles governing the
prevailing criminal procedure, petitioner impliedly withdrew his appeal by
jumping bail and thereby made the judgment of the RTC final and
executory.[ 4 0 ]
By putting himself beyond the reach and application of the legal processes
of the land, petitioner revealed his contempt of the law and placed himself
in a position to speculate at his pleasure his chances for a reversal. This,
we cannot condone. Once more, by jumping bail, petitioner has waived his
right to appeal. In the case of People v. Ang Gioc,[ 4 1 ] we enunciated that:
There are certain fundamental rights which cannot be
waived even by the accused himself, but the right of
appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as he
pleases. He may waive it either expressly or by implication.

information. The findings and conclusions of Secretary Guingona read as

follows:
Contrary to your findings, we find that there is treachery that
attended the killing of PO3 Dimatulac. Undisputedly, the victim
was suddenly shot while he was descending the stairs. The
attack was unexpected as the victim was unarmed and on his
way to make peace with Mayor Yabut, he was unsuspecting so to
speak. From the circumstances surrounding his killing, PO3
Dimatulac was indeed deprived of an opportunity to defend
himself or to retaliate.

Corollarily, we are also convinced that such mode of attack was

consciously and deliberately adopted by the respondents to
ensure the accomplishment of their criminal objective. The
admission of respondent Malabanan is replete with details on
how the principal respondent, Mayor Yabut, in conspiracy with
the assailant and others, had consciously and deliberately
adopted means to ensure the execution of the crime. According
to him, while they were on their way to the victims house, Mayor
Yabut already instructed Danny, the assailant, that, Dikitan mo
lang, alam no na king ano ang gagawin mo, bahala ka na. This

When the accused flees after the case has been submitted
to the court for decision, he will be deemed to have waived
his right to appeal from the judgment rendered against him
x x x.

other hand, one can be subject to the jurisdiction of the

court over his person, and yet not be in the custody of the
law, such as when an accused escapes custody after his
trial has commenced (citation omitted).[ 4 2 ]

Coming now to the second issue of whether or not petitioner failed to

submit himself to the jurisdiction of the court or to the custody of the law,
despite the posting of the subject bail bond, petitioner argues that his act
of filing several pleadings after the promulgation of the RTCs judgment plus
his filing of the application for his admission to bail should be considered a
submission to the courts jurisdiction. He rationalizes that:

Moreover, jurisdiction, once acquired, is not lost at the instance of parties,

as when an accused escapes from the custody of the law, but continues
until the case is terminated.[ 4 3 ] Evidently, petitioner is correct in that
there is no doubt that the RTC already acquired jurisdiction over the person
of the accused petitioner when he appeared at the arraignment and
pleaded not guilty to the crime charged notwithstanding the fact that he
jumped bail and is now considered a fugitive.

[T]he records of the case readily reveals that several

pleadings were filed by the petitioner before the lower
court even after the promulgation of judgment was made.
Right after the promulgation of the decision in the lower
court, herein petitioner went to the court and posted a bail
bond. If the posting of the bond which was approved by the
same Regional Trial Court who rendered the decision
subject of appeal is not yet a submission to the jurisdiction
of the court, then the respondent Hon. Court of Appeals
must have been thinking of another matter beyond the
comprehension of the petitioner and obviously outside the
matters being contemplated by law and the Rules of Court.
For the resolution of the second issue, it should have been sufficient to
state that for reasons stated in the foregoing discussion, the question
posed has now become academic. However, to diminish the confusion
brought about by ostensibly equating the term jurisdiction of the court
(over the person of the accused) with that of custody of the law, it is
fundamental to differentiate the two. The term:
Custody of the law is accomplished either by arrest or
voluntary surrender (citation omitted); while (the term)
jurisdiction over the person of the accused is acquired
upon his arrest or voluntary appearance (citation omitted).
One can be under the custody of the law but not yet
subject to the jurisdiction of the court over his person, such
as when a person arrested by virtue of a warrant files a
motion before arraignment to quash the warrant. On the

As to whether or not petitioner has placed himself under the

custody of the CA, alas, we cannot say the same for [b]eing in the custody
of the law signifies restraint on the person, who is thereby deprived of his
own will and liberty, binding him to become obedient to the will of the law
(citation omitted). Custody of the law is literally custody over the body of
the accused. It includes, but is not limited to, detention.[ 4 4 ] In the case at
bar, petitioner, being a fugitive, until and unless he submits himself to the
custody of the law, in the manner of being under the jurisdiction of the
courts, he cannot be granted any relief by the CA.
Parenthetically, we cannot end this ponencia without calling
attention to a very disturbing fact that petitioner admits of being the
author of a falsified public document was treated nonchalantly by
authorities.
In fine, the petitioner has remained at large even as he hopes that his
appeal, and consequently, this petition, will succeed and he can then
appear before the Court to claim his victory. He hopes in vain.
W H E R E F O R E , t h e i n s t a n t p e t i t i o n is D E N I E D f o r l a c k of
m e r i t . T h e a s s a i l e d Re s o l u t i o n s o f t h e C o u r t o f A p p e a l s , i n
C A- G . R. C R N o. 2 4 0 7 7 , w h i c h d i s m i s s e d p e t i t i o n e r s a p p e a l ,
a re h e re b y A F F I R M E D . I n t h i s c o n n e c t i o n , J u d g e M a n u e l M u ro
i s D I R E C T E D t o is s u e f o r t h w i t h a w a rr a n t o f a rre s t f o r t h e
a p p re h e n s i o n o f Pe t i t i o n e r A rn o l d A l v a a n d f o r p ro p e r
d i s p o s i t i o n of t h e c a s e i n l i n e w i t h t h e f o re g o i n g d i s c u s s i o n .
C o s t s a g a i n s t t h e p e t i t i o n e r.

explains why Danny positioned himself near the stairs of the

victims house armed with a handgun, such positioning was
precisely adopted as a means to ensure the accomplishment of
their evil design and Mayor Yabut ordered nobody else but Danny
to shoot the victim while descending the stairs as his position
was very strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two
conditions must be present, to wit: (1) employment of means of
execution that gives the person [attacked] no opportunity to
defend himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted (People vs. Talaver, 230
SO ORDERED.
22. SPOUSES ALEXANDER TRINIDAD and CECILIA TRINIDAD, vs.
VICTOR ANG
G.R. No. 192898, January 31, 2011
We resolve the motion for reconsideration filed by petitioner spouses
Alexander Trinidad and Cecilia Trinidad (petitioners) to challenge our
Resolution of September 29, 2010. Our Resolution denied the petition for
review on certiorari for its failure to state the material dates of receipt of
the order[1] of the Regional Trial Court (RTC), Branch 44, Masbate City, and
of filing the motion for reconsideration, in violation of Sections 4(b)[2] and
5,[3] Rule 45, in relation to Section 5(d),[4] Rule 56 of the Rules of Court.
Antecedent Facts
On September 3, 2007, the Office of the City Prosecutor, Masbate
City, issued a Resolution recommending the filing of an Information for
Violation of Batas Pambansa Bilang 22 against the petitioners. On October
10, 2007, the petitioners filed with the Department of Justice (DOJ) a
petition for review challenging this Resolution.
On March 3, 2009, the Office of the City Prosecutor filed before the
Municipal Trial Court in Cities (MTCC), Fifth Judicial Region, Masbate City, an
Information for Violation of Batas Pambansa Bilang 22 against the
petitioners. As the case was covered by the Rules on Summary Procedure,
the MTCC ordered the petitioners to submit their counter affidavits and to
appear in court within 10 days from receipt of the said order.
The petitioners filed a Manifestation and Motion to Defer
Arraignment and Proceedings and Hold in Abeyance the Issuance of
Warrants of Arrest[5] praying, among others, for the deferment of their
arraignment in view of the pendency of their petition for review before the
DOJ.
The MTCC, in its Order[6] dated May 28, 2009, granted the motion,
subject x x x to paragraph c[,] Section 11, Rule 116 of the Revised Rules of
Criminal Procedure. On August 10, 2009, the MTCC reconsidered this order,
and set the petitioners arraignment on September 10, 2009.[7]

SCRA 281 [1994]). In the case at bar, these two (2) requisites are
present as established from the foregoing discussion. Hence,
there being a qualifying circumstance of treachery, the crime
committed herein is murder, not homicide (People vs. Gapasin,
231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari
and Francisco Yambao, we find sufficient evidence against Mallari
as part of the conspiracy but not against Yambao. As can be
gleaned from the sworn-statement of Yambao, which appears to
be credible, Mallari tried also to persuade the victim to go with

The petitioners filed a petition for certiorari before the RTC,

docketed as SCA No. 05-2009. The RTC, in its decision[8] of January 6,
2010, denied this petition. The petitioners moved to reconsider this
decision, but the RTC denied their motion in its order[9] dated July 5, 2010.
The RTC held that the MTCC judge did not err in setting the
arraignment of the petitioners after the lapse of one (1) year and ten (10)
months from the filing of the petition for review with the DOJ. It explained
that the cases cited by the petitioners were decided before the
amendment of the Revised Rules of Criminal Procedure. After the
amendment of the Rules on December 1, 2000, the Supreme Court applied
the 60-day limit on suspension of arraignment in case of a pendency of a
petition for review with the DOJ.
The petitioners filed with this Court a petition for review on
certiorari essentially claiming that the 60-day limit on suspension of
arraignment is only a general rule. They cited several cases to show that
the arraignment of an accused should be deferred until the petition for
review with the DOJ is resolved.
As earlier stated, we denied the petition for its failure to state the
material dates of receipt of the assailed RTC order and of filing the motion
for reconsideration.
The Motion for Reconsideration
In the present motion for reconsideration, the petitioners claim that
the date of receipt of the assailed RTC order was stated in the petition. The
petitioners further state that they filed the motion for reconsideration on
January 2, 2010.
The Courts Ruling
We grant the motion for reconsideration and reinstate the petition
for review on certiorari.
A careful examination of the petition reveals that it stated the date
when the petitioners received a copy of the RTCs assailed order. In
addition, the petitioners failure to state the material date of filing the

them, using as a reason that he (victim) was being invited by

General Ventura. He was also seen trying to fix the gun which
was used in killing the victim. These actuations are inconsistent
with the claim that his presence at the crime scene was merely
passive.
On the other hand, we find credible the version and explanation
of Yambao. Indeed, under the obtaining circumstances, Yambao
had no other option but to accede to the request of Mayor Yabut
to provide transportation to the assailant. There being an actual
danger to his life then, and having acted under the impulse of an

motion for reconsideration is only a formal requirement that warrants the

relaxation of the rules in accordance with the liberal spirit pervading the
Rules of Court and in the interest of justice.
Nevertheless, we resolve to deny the petition for its failure
to show any reversible error in the challenged RTC order.
The grounds for suspension of arraignment are provided under
Section 11, Rule 116 of the Rules of Court, which provides:
SEC. 11. Suspension of Arraignment. Upon motion
by the proper party, the arraignment shall be
suspended in the following cases:
(a) The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently
thereto. In such case, the court shall order his
mental examination and, if necessary, his
confinement for such purpose;
(b) There exists a prejudicial question; and
(c)

A petition for review of the resolution of

the prosecutor is pending at either the
Department of Justice, or the Office of the
President; Provided, that the period of
suspension shall not exceed sixty (60)
days counted from the filing of the
petition with the reviewing office.

In Samson v. Daway,[10] the Court explained that while the

pendency of a petition for review is a ground for suspension of the
arraignment, the aforecited provision limits the deferment of the
arraignment to a period of 60 days reckoned from the filing of the
petition with the reviewing office. It follows, therefore, that after
the expiration of said period, the trial court is bound to arraign
the accused or to deny the motion to defer arraignment.

uncontrollable fear, reason dictates that he should be freed from

criminal liability.245[38]
The YABUTs moved to reconsider the resolution, 246[39] citing Section 4 of
Administrative/Administration Order No. 223 of the DOJ. 247[40]
In an Ex-Parte Manifestation248[41] dated 21 June 1996, petitioners called
the trial courts attention to the resolution of the Secretary of Justice, a
copy of which was attached thereto. Later, in a Manifestation and
Motion249[42] dated 1 July 1996, petitioners asked the trial court to grant
their motion to set aside arraignment. Attached thereto was a copy of the

In the present case, the petitioners filed their petition for review
with the DOJ on October 10, 2007. When the RTC set the arraignment of
the petitioners on August 10, 2009, 1 year and 10 months had already
lapsed. This period was way beyond the 60-day limit provided for by the
Rules.
In addition, the cases cited by the petitioners Solar Team
Entertainment, Inc. v. How,[11] Roberts, Jr. v. CA,[12] and Dimatulac v.
Villon[13] were all decided prior to the amendment to Section 11 of
the Revised Rules of Criminal Procedure which took effect on
December 1, 2000. At the time these cases were decided, there was no 60day limit on the suspension of arraignment.
WHEREFORE, premises considered, the Court resolves to:
(1)

GRANT the present motion for reconsideration,

REINSTATE the petition for review on certiorari; and

and

(2) DENY the said petition for petitioners failure to show any
reversible error in the challenged RTC order.
SO ORDERED.
23. PEOPLE OF THE PHILIPPINES vs. ANDRE MARTI,
G.R. No. 81561. January 18, 1991
This is an appeal from a decision * rendered by the Special Criminal Court
of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant
of violation of Section 21 (b), Article IV in relation to Section 4, Article 11
and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant
and his common-law wife, Shirley Reyes, went to the booth of the
"Manila Packing and Export Forwarders" in the Pistang Pilipino
Complex, Ermita, Manila, carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that
he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction,

Manifestation and Motion250[43] of the Solicitor General dated 18 June 1996

filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the
Solicitor General joined cause with petitioners and prayed that in the better
interest of justice, [the] Petition for Prohibition be GRANTED and a writ of
prohibition be ISSUED forthwith. In support of said prayer, the Solicitor
General argued:
2.
There is merit to the cause of petitioners. If the
Secretary of Justice would find their Appeal
meritorious, the Provincial Prosecutor would be
directed to upgrade the Information to Murder and
writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER
FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and
inspect the packages. Appellant, however, refused, assuring her
that the packages simply contained books, cigars, and gloves and
were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown
corrugated box one by two feet in size (1' x 2'). Styro-foam was
placed at the bottom and on top of the packages before the box
was sealed with masking tape, thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or
Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita
(Reyes), following standard operating procedure, opened the
boxes for final inspection. When he opened appellant's box, a
peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the
gloves. He made an opening on one of the cellophane wrappers
and took several grams of the contents thereof (tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the
NBI and requesting a laboratory examination of the samples he
extracted from the cellophane wrapper (tsn, pp. 5-6, October 6,
1987).
He brought the letter and a sample of appellant's shipment to the
Narcotics Section of the National Bureau of Investigation (NBI), at
about 1:30 o'clock in the afternoon of that date, i.e., August 14,
1987. He was interviewed by the Chief of Narcotics Section. Job
Reyes informed the NBI that the rest of the shipment was still in his
office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p.
30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were
placed and, in the presence of the NBI agents, opened the top
flaps, removed the styro-foam and took out the cellophane
wrappers from inside the gloves. Dried marijuana leaves were

extreme prejudice if not gross injustice would thereby

have been avoided.
Consequently, the undersigned counsel interpose no
objection to the issuance of a writ of prohibition
enjoining respondent Judge from holding further
proceedings in Criminal Case No. 96-1667-M,
particularly in holding the arraignment of the accused,
pending resolution of the Appeal with the Secretary of
Justice.

found to have been contained inside the cellophane wrappers (tsn,

p. 38, October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened
by Job Reyes. He discovered that the package contained bricks or
cake-like dried marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars
(tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and
of the contents thereof, after signing a "Receipt" acknowledging
custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail.
Appellant's stated address in his passport being the Manila Central Post
Office, the agents requested assistance from the latter's Chief Security. On
August 27, 1987, appellant, while claiming his mail at the Central Post
Office, was invited by the NBI to shed light on the attempted shipment of
the seized dried leaves. On the same day the Narcotics Section of the NBI
submitted the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering
tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo,
pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA
6425, otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE
FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE
THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE
CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS
CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable
search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held
inadmissible in evidence (Sec. 3 (2), Art. III).

The YABUTs opposed251[44] petitioners Manifestation and Motion dated 1

July 1996 because they had already been arraigned and, therefore, would
be placed in double jeopardy; and that the public prosecutor -- not the
private prosecutor -- had control of the prosecution of the case.
In his letter252[45] dated 1 July 1996 addressed to the Provincial Prosecutor
of Pampanga, the Secretary of Justice set aside his order to amend the
information from homicide to murder considering that the appeal was
rendered moot and academic by the arraignment of the accused for
homicide and their having entered their pleas of not guilty. The Secretary
stated:

Considering that Santiago Yabut, Servillano Yabut and Martin

Yabut had already been arraigned on May 20, 1996 and had
pleaded not guilty to the charge of homicide, as shown by a copy
of the court order dated May 20, 1996, the petition for review
insofar as the respondents-Yabut are concerned has been
rendered moot and academic.
However, the Secretary reiterated that Fortunato Mallari should be
included in the information for homicide.

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.
Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter which,
worded as follows:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched,
and the persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the
United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US
Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]),
this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as
inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in
Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of
evidence was not affected by the illegality of its seizure. The 1973 Charter
(Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule
and has struck down the admissibility of evidence obtained in violation of

the constitutional safeguard against unreasonable searches and seizures.

(Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the
evidence so obtained were invariably procured by the State acting through
the medium of its law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by
a private person, acting in a private capacity and without the intervention
and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise,
may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against the
State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and
seizure) refers to the immunity of one's person, whether citizen or
alien, from interference by government, included in which is his
residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the
access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle.
Thus is outlawed any unwarranted intrusion by government, which
is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048),
the Court there in construing the right against unreasonable searches and
seizures declared that:
(t)he Fourth Amendment gives protection against unlawful
searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities
of sovereign authority, and was not intended to be a limitation

On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to
Amend Information and to Admit Amended Information. 253[46] The
Amended Information254[47] merely impleaded Fortunato Mallari as one of
the accused.
In his Order255[48] of 1 August 1996, Judge Villon denied petitioners motion
to set aside arraignment, citing Section 4, DOJ Department Order No. 223,
and the letter of the Secretary of Justice of 1 July 1996. Petitioners
forthwith moved for reconsideration256[49] of the order, arguing that the
Motion to Defer the Proceedings filed by petitioners was meritorious and
did not violate the accuseds right to speedy trial; and that the DOJ had
ruled that the proper offense to be charged was murder and did not
upon other than governmental agencies; as against such authority
it was the purpose of the Fourth Amendment to secure the citizen
in the right of unmolested occupation of his dwelling and the
possession of his property, subject to the right of seizure by
process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968])
where a parking attendant who searched the automobile to ascertain the
owner thereof found marijuana instead, without the knowledge and
participation of police authorities, was declared admissible in prosecution
for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held
that the search and seizure clauses are restraints upon the government
and its agents, not upon private individuals (citing People v. Potter, 240
Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d
903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The
Court there said:
The search of which appellant complains, however, was made by a
private citizen the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence*** complained of. The search was made on the motel
owner's own initiative. Because of it, he became suspicious, called
the local police, informed them of the bag's contents, and made it
available to the authorities.
The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private
citizen. Rather, the amendment only proscribes governmental
action."
The contraband in the case at bar having come into possession of the
Government without the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent reason why the
same should not be admitted against him in the prosecution of the offense
charged.
Appellant, however, would like this court to believe that NBI agents made
an illegal search and seizure of the evidence later on used in prosecuting
the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two
days. In both instances, the argument stands to fall on its own weight, or
the lack of it.

reverse such finding. Petitioners also cited the Solicitor Generals

stand257[50] in CA-G.R. SP No. 40393 that holding accuseds arraignment in
abeyance was proper under the circumstances. Finally, petitioners
contended that in proceeding with the arraignment despite knowledge of a
petition for prohibition pending before the Court of Appeals, the trial court
violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt.
The YABUTs opposed the motion on the ground that it raised no argument
which had not yet been resolved. 258[51]

First, the factual considerations of the case at bar readily foreclose the
proposition that NBI agents conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly indicate that it was Mr.
Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a
standard operating procedure on the part of Mr. Reyes as a precautionary
measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit
cargo, he took samples of the same to the NBI and later summoned the
agents to his place of business. Thereafter, he opened the parcel
containing the rest of the shipment and entrusted the care and custody
thereof to the NBI agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the postulate of
accused/appellant.
Second, the mere presence of the NBI agents did not convert the
reasonable search effected by Reyes into a warrantless search and seizure
proscribed by the Constitution. Merely to observe and look at that which is
in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v.
State, 429 SW2d 135). Where the contraband articles are identified without
a trespass on the part of the arresting officer, there is not the search that is
prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927];
Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State,
429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that
where the property was taken into custody of the police at the specific
request of the manager and where the search was initially made by the
owner there is no unreasonable search and seizure within the
constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be
invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to
protection. But protection against whom? Commissioner Bernas in his
sponsorship speech in the Bill of Rights answers the query which he
himself posed, as follows:
First, the general reflections. The protection of fundamental
liberties in the essence of constitutional democracy. Protection

On 3 September 1996, petitioners filed a Motion to Defer Arraignment of

Accused Fortunato Mallari,259[52] which the trial court granted in view of
petitioners motion for reconsideration of the courts order denying
petitioners motion to set aside private respondents arraignment. 260[53] As
expected, Mallari moved to reconsider the trial courts order and clamored
for consistency in the trial courts rulings.261[54]
In an order262[55] dated 15 October 1996, Judge Villon denied
reconsideration of the order denying petitioners motion to set aside
arraignment, citing the YABUTs right to a speedy trial and explaining that
the prosecution of an offense should be under the control of the public

prosecutor, whereas petitioners did not obtain the conformity of the

prosecutor before they filed various motions to defer proceedings.
Considering said order, Judge Villon deemed accused Mallaris motion for
reconsideration moot and academic. 263[56]
On 16 October 1996, the Court of Appeals promulgated its decision 264[57]
in CA-G.R. SP No. 40393 dismissing the petition therein for having become
moot and academic in view of Judge Rouras voluntary inhibition, the
arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of
petitioners appeal as it had been mooted by said arraignment.

against whom? Protection against the state. The Bill of Rights

governs the relationship between the individual and the state. Its
concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to
declare some forbidden zones in the private sphere inaccessible to
any power holder. (Sponsorship Speech of Commissioner Bernas ,
Record of the Constitutional Commission, Vol. 1, p. 674; July 17,
1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures
therefore applies as a restraint directed only against the government and
its agencies tasked with the enforcement of the law. Thus, it could only be
invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must
generally be first secured if it is to pass the test of constitutionality.
However, if the search is made at the behest or initiative of the proprietor
of a private establishment for its own and private purposes, as in the case
at bar, and without the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked for only the act of
private individual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935
Constitution has been modified by the present phraseology found in the
1987 Charter, expressly declaring as inadmissible any evidence obtained in
violation of the constitutional prohibition against illegal search and seizure,
it matters not whether the evidence was procured by police authorities or
private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down
the principles of the government and fundamental liberties of the people,
does not govern relationships between individuals. Moreover, it must be
emphasized that the modifications introduced in the 1987 Constitution (re:
Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant
of arrest vis-a-vis the responsibility of the judge in the issuance thereof
(See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1,
1985] and Circular No. 12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed
with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may

only be invoked against the State by an individual unjustly traduced by the
exercise of sovereign authority. To agree with appellant that an act of a
private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an
absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual
effected through private seizure equally applies, in pari passu, to the
alleged violation, non-governmental as it is, of appellant's constitutional
rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower
court erred in convicting him despite the undisputed fact that his rights
under the constitution while under custodial investigation were not
observed.
Again, the contention is without merit, We have carefully examined the
records of the case and found nothing to indicate, as an "undisputed fact",
that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified
that accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (See. 5(m), Rule
131) and their testimonies should be given full faith and credence, there
being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while
under investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about
the accused here, did you investigate the accused together with
the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the
accused availed of his constitutional right not to give any written
statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p.
240)
The above testimony of the witness for the prosecution was not
contradicted by the defense on cross-examination. As borne out by the
records, neither was there any proof by the defense that appellant gave
uncounselled confession while being investigated. What is more, we have
examined the assailed judgment of the trial court and nowhere is there any
reference made to the testimony of appellant while under custodial
investigation which was utilized in the finding of conviction. Appellant's

Judge Villon was later detailed to Branch 24 of the Regional Trial Court of
Manila, and Judge Roura was ordered by the Supreme Court to preside over
cases pending in Branch 54 of the Regional Trial Court of Macabebe,
Pampanga, which was previously presided over by Judge Villon. 265[58]
Judge Roura informed the Office of the Court Administrator and this Court
that he had already inhibited himself from hearing Criminal Case No. 961667(M).266[59]
On 28 December 1996, petitioners filed the instant Petition for
Certiorari/Prohibition and Mandamus. They urge this Court to reverse the
order of respondent Judge denying their Motion to Set Aside Arraignment;

set aside arraignment of private respondents; order that no further action

be taken by any court in Criminal Case No. 96-1667(M) until this petition is
resolved; and order respondents Secretary of Justice and the prosecutors
concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of
his house and then shot him while he was going down the stairs. There
was, petitioners claim, an orchestrated effort on the part of [private
respondents] to manipulate the rules on administrative appeals with the

second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would
like us to believe that he was not the owner of the packages which
contained prohibited drugs but rather a certain Michael, a German
national, whom appellant met in a pub along Ermita, Manila: that in the
course of their 30-minute conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the shipment since the
German national was about to leave the country the next day (October 15,
1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer
as incredulous, self-serving and contrary to human experience. It can easily
be fabricated. An acquaintance with a complete stranger struck in half an
hour could not have pushed a man to entrust the shipment of four (4)
parcels and shell out P2,000.00 for the purpose and for appellant to readily
accede to comply with the undertaking without first ascertaining its
contents. As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the
Accused. The Accused, on the other hand, would not simply accept such
undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to
why he readily agreed to do the errand, appellant failed to explain. Denials,
if unsubstantiated by clear and convincing evidence, are negative selfserving evidence which deserve no weight in law and cannot be given
greater evidentiary weight than the testimony of credible witnesses who
testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of
hashish by the Kleve Court in the Federal Republic of Germany on January
1, 1982 and that the consignee of the frustrated shipment, Walter Fierz,
also a Swiss national, was likewise convicted for drug abuse and is just
about an hour's drive from appellant's residence in Zurich, Switzerland
(TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21;
Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a
credible witness, but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989];

People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567
[1979]). As records further show, appellant did not even bother to ask
Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the
merchandise, appellant should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant
signed the contract as the owner and shipper thereof giving more weight
to the presumption that things which a person possesses, or exercises acts
of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point,
appellant is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in
rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond
reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
24. People vs. Peralta, GR# 133267, 08 Aug. 2002

On appeal is the decision1 dated November 10, 1997 of the Regional Trial
Court of Quezon City, finding Wilfredo Peralta alias "Willie" guilty of murder
and sentencing him to suffer an imprisonment term of reclusion perpetua
and to pay the heirs of Chief PNP Inspector Arthur Rivera the sum of One
Hundred Eighty Four Thousand Seven Hundred Fifteen Pesos (P184,715.00)
as actual damages, Two Hundred Thousand Pesos (P200,000.00) in moral
damages, and Fifty Thousand Pesos (P50,000.00) in indemnity damages.
The Information filed on September 22, 1994 accuses Wilfredo Peralta alias
"Willie," Severo Espinosa, Jr., alias "Jun Berong" and several John Does for
murder committed as follows:
"That on or about 02 April 1993 at around 5:30 oclock in the
afternoon at Sitio Tabane, Brgy. Aguso, Tarlac, Tarlac and within the
jurisdiction of this Honorable Court, the above-named accused with
intent to kill, qualified by treachery, evident premeditation, taking
advantage of superior strength, with the aid of armed men or
employing means to weaken the defense or of means or persons to
insure or afford impunity, conspiring, confederating and mutually
helping one another, did then and there, willfully, unlawfully and

end in view of evading prosecution for the [non-bailable] offense of

murder, as shown by the following events or circumstances:
(1)
Assistant Provincial Prosecutor Alfonso-Flores downgraded the
nature of the crime committed to homicide, a bailable offense, on strength
of a motion for reinvestigation filed by the YABUTs who had not yet been
arrested.
(2)
Respondent Mayor and his companions returned to Minalin after
the killing and went into hiding for four (4) months until the offense
charged was downgraded.
(3)
The information for homicide was nevertheless filed despite notice
to the Office of the Provincial Prosecutor of the appeal filed with the
Secretary of Justice and request to defer any action on the case.

feloniously attack, assault and use violence upon the person of

Chief Insp. Arthur Rivera by firing shots at him thereby causing his
instantaneous death.
"CONTRARY TO LAW."2
Upon arraignment on October 21, 1994, accused Wilfredo Peralta and
Severo Espinosa, Jr. entered pleas of not guilty. 3 Thereafter, trial ensued.4
The prosecution presented the following witnesses: Myrna Borromeo,
Francisco Rivera, Conrado Capitulo, Myrna Rivera, Danilo Castaeda, and
Carlos Rocha.1wphi1.nt
Myrna Borromeo testified that accused Severo Espinosa, Jr. alias "Jun
Berong" was her live-in partner from December 1990 to July 1994 while
accused Wilfredo Willie Peralta was their compadre who often visited their
house in Brgy. Tibag, Tarlac, Tarlac5; that around the third week of March
1993, while serving Berong, Willie and two (2) others in one of their
drinking sessions, she heard accused Willie Peralta say that Major Rivera
was already scheduled to be killed;6 that on April 2, 1993, she noticed that
Berong and their stainless owner jeep were not at their house; that later in
the evening, she heard that Major Rivera was killed;7 that a week after the
death of Rivera, Willie went to their house and she heard him say to
Berong that they needed to hide the vehicle while it was still hot ("mainit
pa"); that Berong then hid the vehicle at the back of their house. 8
On cross-examination, Myrna admitted that Berong used to beat her up. 9
This according to the defense was the reason why she wanted to get back
at Berong by implicating him in the death of Rivera. 10
On redirect, Myrna admitted that on July 22, 1994, she filed a complaint
before the police where she told them that if only she would be given a
chance to tell the truth, she would report that "they used (Berongs)
vehicle in killing Major Rivera."11

(4)
The Office of the Public Prosecutor of Pampanga disallowed the
private prosecutor from further participating in the case.
(5)
Judge Roura denied the motion to defer proceedings and declared
in open court that there was no prima facie case for murder,
notwithstanding the pendency of petitioners appeal with respondent
Secretary of Justice.
(6)
Even before receipt by petitioners of Judge Rouras order inhibiting
himself and the order regarding the transfer of the case to Branch 54,
public respondent Judge Villon set the case for arraignment and, without
notice to petitioners, forthwith arraigned the accused on the information

Francisco Rivera, one of the four children of the victim, was thirteen (13)
years old at the time of his testimony. He testified that on April 2, 1993 at
around 4 oclock in the afternoon, he and his brother Ferdinand went with
their father to the town proper of Tarlac to get his bike; that with them was
one of their helpers, Tano Basa; that they were riding their fathers Ford
Cortina and arrived at Tarlac, Tarlac at around 4:20 p.m.12; that he and his
brother rode the bike alternately while the other stayed in the car together
with their father and Tano Basa; that they passed through Kingburger,
Matatalaib, Crisca Resort until they reached the sub-station going to Villa
Soliman, where the car stopped; that there, his father decided to go to
Tabane; that upon reaching Tabane, he saw the car of his father park along
the shoulder of the road in front of the house of Apong Capitulo; that his
father was still at the drivers seat; that soon after, he saw a man alight
from a stainless owner jeep and shoot at his father; 13 that a light green
Sarao type passenger jeep without any plate number followed; 14 that when
the passenger jeep stopped, fires were shot from said vehicle; that the
shots came from an armalite rifle;15 that the gunman was standing
sideways with the gun placed beside his abdomen; that he was at least ten
(10) meters from his fathers car when the two (2) jeeps arrived; that he
was only about five (5) meters from his fathers car when he saw the
gunman from the stainless jeep board the same which then sped away;
that while Francisco admitted that he may not be able to identify the
stainless jeep again nor the driver and the gunman from said vehicle, 16 he
was able to take a look at the man who shot his father from the passenger
jeepney and identified accused Wilfredo Peralta;17 that after the vehicle
sped away, he ran towards the car and saw his father with his face down
covered with blood;18 that he had seen accused Peralta previously before
the incident; that he saw him on the same day, at around noon, outside
their gate on board a motorcycle with another man.19
On cross examination, Francisco was shown the sworn statement he
executed on June 9, 1993 at Brgy. Aguso, Tarlac. 20 When asked what he did
when he heard the gunshots, he answered that he alighted from his bike.
When asked if he hid, he answered no and said he looked at the person
who was firing at his father. At this point, counsel for the accused quoted
from Franciscos previous statement, thus: "T - Nakarating ka ba at
nakalapit sa paghihintayan sa iyo ng iyong Papa na si Maj. Rivera? S Hindi
po at bigla akong huminto at bumaba sa bisikleta, at nagtago sa

for homicide on 20 May 1996, despite the pendency of the petition for
prohibition before the Court of Appeals and of the appeal before the DOJ.
(7)
The Pampanga Provincial Prosecutors Office did not object to the
arraignment nor take any action to prevent further proceedings on the
case despite knowledge of the pendency of the appeal.
(8)
The Provincial Prosecutor did not comply with the resolution of 7
June 1996 of the Secretary of Justice directing the amendment of the
information to charge the crime of murder.
Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,267[60]
respondent Judge acted in excess of his jurisdiction in proceeding with

private respondents' arraignment for homicide and denying petitioners'

motion to set aside arraignment. Moreover, although respondent Judge
Villon was not the respondent in CA-G.R. SP No. 40393, he should have
deferred the proceedings just the same as the very issue in said case was
whether or not the RTC could proceed with the arraignment despite the
pending review of the case by respondent Secretary of Justice. Further,
Judge Villon unjustly invoked private respondents right to a speedy trial,
after a lapse of barely three (3) months from the filing of the information
on 23 February 1996; overlooked that private respondents were estopped
from invoking said right as they went into hiding after the killing, only to

damuhan." Francisco admitted that he hid because he was frightened and

got confused.21

identified accused Wilfredo Peralta, in a line up, as the one who shot an
armalite from the passenger jeepney. A witness also pointed to Wilfredo
Peralta in court as the man who fired at the victim.28

Upon redirect, the witness described the grass where he took cover as only
about eight (8) inches to two (2) feet tall.22
The next witness presented by the prosecution was Conrado Capitulo. He
testified as follows: In the afternoon of April 2, 1993, he and his wife were
at the balcony of their house entertaining visitors when he noticed a car
parked in front of their house more or less ten (10) meters from where they
were. He saw a boy alight from the car and go to the rear portion of the
car. When he went inside to get softdrinks for his visitors, he heard around
three (3) successive shots coming from a gun. He immediately went to the
balcony where his wife, visitors and grandchildren were. Then he saw a
Sarao jeepney parked in front of his gate, on the right side of the road, with
the engine on. There were five (5) passengers in the jeep, two (2) on both
sides, plus the driver. Then he saw one of the occupants of the jeepney,
the one seated at the right side of the Sarao at the rear portion, aim his M16 armalite at the car parked in front of his house. After the man fired at
the car, Conrado went near his gate because one of his grandchildren was
there. He then shouted "dapa, dapa, dapa."23 The gunfire stopped for a
while and the one firing the gun looked at him. Thereafter, the gunman
removed his gaze from Conrado and continued firing successively until he
ran out of bullets.24 All in all, there were three (3) initial shots followed by
the shots from the armalite before the jeepney sped away. 25 After the
jeepney sped away, Conrado hurriedly went to the street because he
wanted to see the plate number of the jeep.26 Then he flagged down an L300 van going the direction of Baguio and asked its driver to go after the
Sarao jeepney and get the plate number. Conrado called a tricycle which
was going the direction of Manila and asked the driver to report the
incident to the police sub-station at Salapungan. Afterwards, he went near
the car and saw the driver with his face on the steering wheel. He
recognized the victim as Major Rivera. The victim had his left hand on the
steering wheel with blood oozing from his forehead and below the nape.
The windshield of the victims car was broken with the rear glass and the
body of the car riddled with bullets. There was a hole at the doorknob
beside the driver, and the rear tire was flat.27 Conrado was invited to Camp
Crame in connection with the death of Major Arthur Rivera. There he

Myrna Rivera, wife of the victim testified as follows: She and her husband
had four (4) children namely, Ferdinand, Francisco, Imee and Mayavi. On
April 2, 1993, at around 5:00 in the afternoon, she was on board a tricycle
on her way to Aguso, Tarlac, Tarlac when she saw many people and several
policemen along the highway. She told the tricycle driver to slow down and
upon seeing the car of her husband, told the driver to stop. She ran toward
the car and saw her husband at the drivers seat full of blood. She pulled
the head of her husband and saw a big hole on his forehead. She cried
upon seeing her husband dead.29 They incurred several expenses in
relation to the death of her husband, as follows: Twenty Five Thousand
Pesos (P25,000.00) for the casket and funeral service; Seventy Seven
Thousand Two Hundred Fifteen Pesos (P77,215.00) for the food during the
wake; and Eighty Two Thousand Five Hundred Pesos (P82,500.00) for the
burial expenses. Immediately before the death of her husband, they were
earning Sixty Thousand Pesos (P60,000.00) a month from their business of
buying and selling slightly used cars.30 As chief inspector, the victim was
also receiving a monthly pay of Seven Thousand Seven Hundred Twenty
Four Pesos (P7,724.00).31 At the time of the death of her husband, her
children were studying at Trinity College. Ferdinand was in second year
college while Francisco was first year in high school. 32 Because of the death
of her husband, she suffered sleepless nights which if quantified would
amount to One (1) Million Pesos (P1,000,000.00). 33
Dr. Saturnino Ferrer, the Municipal Health Officer of Tarlac, Tarlac who
conducted the post-mortem examination on the body of Major Arthur
Rivera, testified that the cause of death was a gunshot wound. 34 He
prepared the post mortem findings marked as Exhibit "B". 35
The prosecution also presented as witness, Danilo Castaeda, a selfconfessed gun for hire.36 He testified that he knows the accused Wilfredo
Peralta because they are both residents of Barangay Barsolingan in Tarlac;
that Wilfredo Peralta, Aser Agosto, Ben Galo, and Severo Espinosa alias Ka
Berong often met at his house to talk about a lot of things, one of which
was the killing of Major Rivera at around March of 1993; that present

resurface when the charge was reduced to homicide; and failed to detect
the Provincial Prosecutor's bias in favor of private respondents. Judge Villon
should have been more circumspect as he knew that by proceeding with
the arraignment, the appeal with the DOJ would be rendered technically
nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from
resolutions of prosecutors to the Secretary of Justice once the accused had
already been arraigned applies only to instances where the appellants are
the accused, since by submitting to arraignment, they voluntarily abandon
their appeal.

during these conversations were Bong Pasuquin, Conrad Domingo, Anding

Pineda, Jess Ilonga, and Boy Peralta; 37 that a certain Nelson Torres, a
minister of the Iglesia ni Cristo, who gave them assignments who to kill; 38
that his group planned on killing Major Rivera at the house of Carlos Rocha,
a neighbor, "Pinag-usapan po namin ang pagpatay kay Rivera;" 39 that they
planned on killing Rivera because accused Peralta was mad at him for
driving them out of Barangay Aguso;40 that Willie Peralta, John Pasuquin,
Conrad Domingo, Alvin Pineda and Jess Ilonga got their arms, two (2) M-16
Armalite and one (1) M-1, from a Recto Salvador of Barangay Aguso in the
second week of March;41 that on April 2, 1993, his group went to their
meeting place at Midway, which was the crossing going to Baguio,
Makabulos and Mata Talahib Maliwalu; that one of the vehicles they used
was actually a San Francisco passenger jeepney owned by the father of
Bong Pasuquin which had a yellow and green stripes and a panel where the
routes were written in black;42 that this passenger jeepney was parked in
front of Shell Gasoline station along the highway; that meanwhile, Bong
Pasuquin ordered him to park the other vehicle facing Makabulos while he
waited for Major Rivera; that Bong then asked him to be a look out; that
Bong Pasuquin was with him while they were waiting for Major Rivera from
5 to 6 p.m.;43 that upon seeing Major Riveras car, Bong Pasuquin went to
the passenger jeepney and told their companions "Parating na si Major"
and to follow behind; that Major Rivera turned left at the Midway
intersection and stopped at the City Trans Bus Station, formerly known as
Pantrans, going to Baguio; that Bong Pasuquin followed the car and the
witness followed him about a distance of one post away; that at the
boulevard, Major Rivera stopped from time to time to assist his son who
was riding a bike; that Major Rivera then moved forward stopping at Crisca
Resort and at Villa Suliman; that afterwards, he went to Brgy. Aguso and
stopped in front of the house of Brgy. Kagawad Capitulo; that Bong
Pasuquin drove his jeep forward overtaking the car of Maj. Rivera and
started firing at the car;44 that Aser Agosto, Willie Peralta, Conrad Domingo,
Carding Pineda, Jessie Longa, Boy Peralta and Recto Salvador fired at Major
Rivera; that later they went to the house of John Pasuquin where they
talked about the killing of Rivera.45
Carlos Rocha testified that he is a resident of Barsolingan, Gerona, Tarlac; 46
that he knows Danilo Castaeda, Aser Agosto, Wilfredo Peralta, Recto
Salvador and Conrado Domingo;47 that in the last week of January 1993,

In their comment, private respondents contend that no sufficient legal

justification exists to set aside private respondents' arraignment, it having
already been reset twice from 12 April 1996 to 3 May 1996, due to
petitioners pending appeal with the DOJ; and from 3 May 1996 to 20 May
1996, due to the transfer of this case to Branch 54. Moreover, as of the
latter date, the DOJ had not yet resolved petitioners appeal and the DOJ did
not request that arraignment be held in abeyance, despite the fact that
petitioners appeal had been filed as early as 23 February 1996, at least 86
days prior to private respondents arraignment. They point out that
petitioners did not move to reconsider the RTC's 26 March 1996 denial of

Willie Peralta went to his house with Aser Agosto, Conrad Domingo, Recto
Salvador, Carding Pineda, a certain Gary from Dau, Jessie Longa and Bong
Pasuquin to plan the killing of Benjamin Rivera, the father of Major Rivera;
that Benjamin Rivera is the barangay chairman of Aguso Tarlac, Tarlac; that
they wanted to kill Benjamin so that Recto Salvador will become the
barangay chair;48 that the reason why the group later decided to kill Major
Rivera instead of Benjamin was because the group thought if they killed
Benjamin first, Major Rivera will investigate the crime; that by killing Major
Rivera, there will be no one anymore who will investigate the killing; 49 that
four (4) meetings took place in his house regarding the killing of Major
Rivera; that the last one took place sometime in March, about two (2)
weeks before the killing of Major Rivera; that present in these meetings
were Aser Agosto, Willie Peralta, Conrad Domingo, Bong Pasuquin, Carding
Pineda, Jessie Longa, Danilo Castaeda, Recto Salvador and a certain
Ray;50 that after the killing of Major Rivera, the group came to his house
and asked him to keep their firearms, three (3) armalites and one (1) M-14;
that the group would get these firearms from time to time until the PACC
searched the houses in his barangay;51 that when the group suspected that
he might squeal the matter to the police, they sprayed his house with
bullets.52
On cross-examination, Carlos admitted that he agreed to have the group
use his house for the plotting of Major Riveras killing; 53 that he did not
have any part in the killing nor did he propose any method, system or
means in the killing of Arthur Rivera; that among those who attended the
meetings, the most vocal was Aser Agosto;54 that after the killing, Aser,
Willy Peralta, Conrad Domingo, Recto Salvador, Carding Pineda, Jessie
Longa and Bong Pasuquin, and a certain Gary, went to his house, around 8
p.m., and stayed for about 30 minutes; that the group said, "patay na si
Major. Tumahimik ka na lang, wag kang kikibo"; 55 that the wife of
Castaeda is the niece of his wife.56
For its part, the defense presented accused-appellant Wilfredo Peralta.
He testified as follows: He was at Barangay Barsolingan at the chapel of
the Iglesia ni Cristo inviting friends on April 2, 1993, from 4:30 in the
afternoon until 8 oclock in the evening. At around 6 p.m., a woman arrived
saying there was an accident at Barangay Aguso.57 However, he came to

the Motion to Defer, opting instead for Judge Rouras recusal and recourse
to the Court of Appeals, and as no restraining order was issued by the
Court of Appeals, it was but proper for respondent Judge to proceed with
the arraignment of private respondents, to which the public and private
prosecutors did not object.
Private respondents further argue that the decision of respondent
Secretary, involving as it did the exercise of discretionary powers, is not
subject to judicial review. Under the principle of separation of powers,
petitioners' recourse should have been to the President. While as regards
petitioners plea that the Secretary be compelled to amend the information

from homicide to murder, private respondents submit that mandamus does

not lie, as the determination as to what offense was committed is a
prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize
that appeal by complainants is allowed only if the complaint is dismissed
by the prosecutor and not when there is a finding of probable cause, in
which case, only the accused can appeal. Hence, petitioners appeal was
improper.

know about the details of the incident only two (2) or three (3) weeks after
April 2. When he found out that it was Major Arthur Rivera who was killed,
he even asked around what the possible reason could be since he knew
that he was a good man.58 He and Major Rivera knew each other because
he stayed in Brgy. Aguso for about a year and a half, but, they were not
talking to each other.59 He did not kill Major Rivera. He did not know
anything about his death nor about any suspect or investigation
concerning his death. He was arrested by the PACC after searching his
house and finding ammunitions there. He was then brought to Camp
Crame for illegal possession of firearms. Later, a case was filed against him
regarding the death of Major Rivera.60 Michael Rocha approached him and
said several cases will be filed against him and it would be best for him
therefore to turn state witness. He was also offered to be a state witness
several times by Arman Rivera, brother of the victim. Arman told him that
if he helped them, he will be released. Helping meant testifying against
Recto Salvador, Atty. Millo and Thelmo Estanola.61 Mrs. Rivera, the mother
of the victim talked to him about this case and told him that he should
cooperate and help because she knew he had nothing to do with this
case.62 Recto Salvador, is from Barangay Aguso and an opponent of the
Rivera family in politics. He said he could not turn state witness against
Recto Salvador and the others since he was not sure if indeed they were
the ones who committed the crime.63

support her claim, witness Myrna presented a letter from the Office of the
Custodian of Records in Camp Crame.69 Francisco Rivera testified that
contrary to the claim of accused, the latter did not frequent their house in
Tarlac.70

On cross-examination, appellant testified that before he resided in

Barangay Barsolingan, he was staying in Brgy. Aguso; that he transferred
to Brgy. Barsolingan in August 1990, while his parents were left in Brgy.
Aguso; that in 1992 they sold the house to the Riveras; 64 that it would take
ten (10) minutes from Sitio Tabane65 in Brgy. Aguso Tarlac to Barsolingan by
vehicle;66 that he and Major Rivera talked very often since he would go to
their house together with friends practically every evening; that he was
welcomed at the Riveras residence;67 that on May 10, 1995, on their way
to the hearing in Tarlac, he escaped and was only recaptured almost one
(1) year later, that is on January 12, 1996.68
The prosecution presented Myrna and Francisco Rivera as rebuttal
witnesses to deny certain allegations in the direct testimony of appellant.
Myrna denied that appellant always attended the hearings at Tarlac,
particularly the hearing on May 10, 1995 when appellant escaped. To

Earlier on, accused Severo Espinosa filed a Demurrer to Evidence. 71 This

was granted by the trial court on March 3, 1997 and ordered the dismissal
of the criminal charge for murder against him.72
On November 10, 1997, the trial court rendered a decision, the dispositive
portion of which reads:
"ACCORDINGLY, judgment is hereby rendered finding the herein
accused WILFREDO PERALTA (a.k.a.) WILLIE, GUILTY beyond
reasonable doubt as Principal in the crime of Murder charged in
this case, and said accused is hereby sentenced to suffer an
imprisonment term of RECLUSION PERPETUA.
"On the civil aspect said accused is ordered to pay the heirs of
Chief PNP Inspector Arthur Rivera the sum of P 184,715.00 as
actual damages, P200,000.00 in moral damages, and P50,000.00
in indemnity damages.
"SO ORDERED."73
Hence, the present appeal.
In his Brief, appellant claims that:
"I
"THE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONIES OF PROSECUTIONS WITNESSES NOTWITHSTANDING
SERIOUS FLAWS, CONTRADICTIONS AND INCOHERENCE (IN) THE
TESTIMONIES AS TO THE IDENTITY AND PARTICIPATION OF
ACCUSED IN THE KILLING OF MAJOR ARTHUR RIVERA.

Finally, private respondents stress the fact that petitioners never appealed
the withdrawal by the public prosecutor of the private prosecutor's
authority to handle the case.
In its comment for the public respondents, the Office of the Solicitor
General (OSG) prays that the petition be denied because: (a) in accordance
with Section 4 of DOJ Order No. 223, upon arraignment of the accused, the
appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the
filing of the information for homicide was in compliance with the directive
under Section 4(2), D.O. No. 223, i.e., an appeal or motion for
reinvestigation from a resolution finding probable cause shall not hold the

"II
"THE LOWER COURT ERRED IN CONVINCING (sic) THE ACCUSED
DESPITE CLEAR ABSENCE OF PROOF BEYOND REASONABLE
DOUBT."74
Appellant posits that the conviction has no sufficient basis as the
prosecution has not established clearly his guilt beyond reasonable doubt.
He points out that there were serious flaws, contradictions and incoherence
as to his identity and actual participation in the killing of Major Rivera; 75
that his being identified by Francisco Rivera is fabricated and concocted to
suit the theory that he is among the group that shot and killed Major
Rivera; that the prosecution failed to present evidence that would
corroborate Franciscos testimony; that the prosecution failed to present
the testimony of Franciscos elder brother Ferdinand, and, Tano Basa who
were also present when the incident occurred; that there was no direct
statement as to the identity of the accused both on the direct and cross
examination of Conrado Capitulo.76
Appellant also questions the presentation of two (2) state witnesses who
were placed under the Witness Protection Program of the Department of
Justice. He argues that the provisions of Section 9, Rule 119 is the
applicable law and not the Witness Protection Program; that Danilo
Castaeda and Noel Reyes should have been indicted together with him;
that the presence of this error is a ground for the acquittal of accusedappellant.77
The Solicitor General on the other hand states that contrary to appellants
contention, the prosecution was able to establish his identity as one of the
assailants; that the testimonies of Francisco Rivera, Conrado Capitulo,
Danilo Castaneda and Carlos Rocha were clear, positive and consistent in
pointing to the accused-appellant as one of those who killed Major Rivera; 78
that the guilt of accused-appellant has been proved beyond reasonable
doubt and that all the elements of murder were present and proved in this
case.79
We find the appeal of Wilfredo Peralta to be devoid of merit.

filing of the information in court; (c) the trial court even accommodated
petitioners by initially deferring arraignment pending resolution by the
Court of Appeals of the petition for prohibition, and since said Court did not
issue any restraining order, arraignment was properly had; and (d) reliance
on Roberts is misplaced, as there, accused Roberts and others had not
been arraigned and respondent Judge had ordered the indefinite
postponement of the arraignment pending resolution of their petitions
before the Court of Appeals and the Supreme Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities
which lead us to conclude that something had gone awry in the Office of
This Court has held in a long line of cases that the credibility of witnesses
as assessed by the trial court will generally not be disturbed. 80
As we explained in People vs. Bolivar, et al.81
"Well-entrenched in our jurisprudence is the doctrine that the
assessment of the credibility of witnesses lies within the province
and competence of trial courts. Said doctrine is based on the timehonored rule that the matter of "assigning values to declarations
on the witness stand is best and most competently performed by
the trial judge who, unlike appellate magistrates, can weigh such
testimony in the light of the declarants demeanor, conduct and
attitude at the trial and is thereby placed in a more competent
position to discriminate between truth and falsehood. Thus,
appellate courts will not disturb the credence, or lack of it,
accorded by the trial court to the testimonies of witnesses, unless
it be clearly shown that the lower court had over looked or
disregarded arbitrarily the facts and circumstances of significance
in the case."
A review of the records of this case shows that the trial court did not err in
giving credence to the testimonies of the witnesses. Conrado Capitulo, who
saw the gunman up close, was very categorical and frank in his testimony.
He identified accused Wilfredo Peralta as the man who shot Major Rivera.
The defense also failed to impute any ill-motive on said witness which
would discredit his positive identification of the accused. Absent any
reason or motive for a prosecution witness to perjure, the logical
conclusion is that no such proper motive exists and his testimony is thus
worthy of full faith and credit.82
Francisco Rivera, son of the deceased, also identified the accused as the
man who shot his father from the passenger jeepney. It would be very
unnatural for him, as a son who is determined to vindicate the death of his
father, to falsely accuse anyone other than the real culprit. 83 While the
defense tried to discredit the testimony of witness Francisco Rivera, they
were not able to prove the impossibility of his testimony because while
Francisco admitted to have hid among the grass, it was only at most two

the Provincial Prosecutor of Pampanga resulting in manifest advantage to

the accused, more particularly the YABUTs, and grave prejudice to the
State and to private complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with
no bail recommended for their temporary liberty. However, for one reason
or another undisclosed in the record, the YABUTs were not arrested; neither
did they surrender. Hence, they were never brought into the custody of the
law. Yet, Asst. Provincial Fiscal Alfonso-Reyes, either motu proprio or upon
motion of the YABUTs, conducted a reinvestigation. Since said accused
were at large, Alfonso-Reyes should not have done so. While it may be true

(2) feet tall, and Francisco at the time was thirteen years old. 84
Moreover, this Court has held that discrepancies between the affidavit and
the testimony of the witness in open court do not necessarily impair the
credibility of the testimony, since affidavits are usually taken ex parte and
are often incomplete for lack of searching inquiries by the investigating
officer.85
The only defense offered by accused-appellant is his claim that he was at
the Iglesia ni Cristo chapel in his barangay when the crime happened on
April 2, 1993.
Between alibi and positive identification, this Court has given weight in
favor of identification especially when it is categorical and consistent and
without any showing of ill-motive on the part of the eyewitness to impute
so grave a wrong on the accused. 86
Alibi is inherently weak and generally not given much credence by the
courts due to the facility with which it can be concocted. 87 For this kind of
defense to prosper it is not enough to show that the accused was
somewhere else when the crime was committed. He must further
demonstrate that it was physically impossible for him to have been at the
scene of the crime at the time of the commission thereof. 88 By the
accuseds own admission he was only one (1) barangay away from the
scene of the crime which was only ten (10) minutes away by vehicle. His
alibi failed to show the physical impossibility of his presence at the locus
delicti. Moreover, he failed to present any witness who would support his
claim that he was indeed at the chapel of the Iglesia ni Cristo at Barangay
Barsolingan at that period of time.
The trial court correctly found the accused guilty of murder. The killing of
Major Rivera was attended with evident premeditation and treachery.
For evident premeditation to be appreciated, the following elements must
be proved: (a) the time when the offender determined to commit the
crime; (b) an act manifestly indicating that he clung to his determination;
and, (c) a sufficient lapse of time between determination and execution to

that under the second paragraph of Section 5, Rule 112 of the Rules of
Court, the provincial prosecutor may disagree with the findings of the
judge who conducted the preliminary investigation, as here, this difference
of opinion must be on the basis of the review of the record and evidence
transmitted by the judge. Were that all she did, as she had no other option
under the circumstances, she was without any other choice but to sustain
the MCTC since the YABUTs and all other accused, except Francisco
Yambao, waived the filing of their counter-affidavits. Then, further
stretching her magnanimity in favor of the accused, Alfonso-Reyes allowed
the YABUTs to submit their counter-affidavits without first demanding that
they surrender because of the standing warrants of arrest against them. In
allow himself time to reflect upon the consequences of his act. These
elements must be established with equal certainty and clarity as the
criminal act itself before it can be appreciated. 89
In the case at bar, evident premeditation was shown by the testimonies of
Myrna Borromeo, Danilo Castaeda and Carlos Rocha where they narrated
how several men, including herein accused, planned on several occasions
the ambush-slay of Rivera. The group met several times to plan the killing
of Major Rivera, which plan they held on to and finally executed on April 2,
1993.
Treachery was also proved in this case. As previously held by this Court,
treachery is present when the offender commits any crime against persons
employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution without risk to the offender
arising from any defense which the offended party might make. 90 In this
case, the victim was caught defenseless and manifestly overpowered when
he was gunned down by the accused and his co-conspirators while he was
in the drivers seat of his car. This circumstance however absorbs the other
circumstances mentioned in the Information, i.e. taking advantage of
superior strength with the aid of armed men or employing means to
weaken the defense or of means or persons to insure or afford impunity.
Conspiracy was also proven beyond reasonable doubt. Conspiracy is said
to exist where two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. It can be proven by
evidence of a chain of circumstances and may be inferred from the acts of
the accused before, during, and after the commission of the crime which
indubitably point to and are indicative of a joint purpose, concert of action
and community of interest.91
In the case at bar, the testimonies of Francisco Rivera and Conrado
Capitulo as to the manner of the execution of the crime clearly show unity
of intent and purpose. The group utilized two (2) vehicles which followed
the victim, and upon getting the opportunity, those with firearms shot at
the victim before speeding away. The testimonies of Danilo Castaeda,
Carlos Rocha and Myrna Borromeo also show that the group planned on

short, Alfonso-Reyes allowed the YABUTs to make a mockery of the law in

order that they gain their provisional liberty pending trial and be charged
with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the
YABUTs and co-accused Danny, despite the fact that they were charged
with homicide and they were, at the time, fugitives from justice for having
avoided service of the warrant of arrest issued by the MCTC and having
failed to voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to
the DOJ from her resolution. She could not have been ignorant of the fact
that the appeal vigorously assailed her finding that there was no qualifying
circumstance attending the killing, and that the private prosecution had
convincing arguments to support the appeal. The subsequent resolution of
killing Major Rivera weeks before the ambush. It is just unfortunate that
only Wilfredo Peralta was brought to justice and proved guilty of the crime.
As to the assertion of accused-appellant that the two (2) state witnesses
should have been indicted with him applying Section 9, Rule 119 of the
Rules of Court instead of the Witness Protection Act which was used by the
Department of Justice, we also find the same to be without merit.
In the case of Webb vs. De Leon,92 where, as in this case, the petitioners
questioned the non-inclusion of Alfaro in the Information considering her
alleged conspiratorial participation in the crime, this Court explained:
"xxx the prosecution of crimes appertains to the executive
department of government whose principal power and
responsibility is to see that our laws are faithfully executed. A
necessary component of this power to execute our laws is the right
to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion---the discretion of
whether, what and whom to charge, the exercise of which depends
on a smorgasboard of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 (Witness
Protection Security and Benefit Act) vesting in the Department of
Justice the power to determine who can qualify as a witness in the
program and who shall be granted immunity from prosecution.
Section 9 of Rule 119 does not support the proposition that the
power to choose who shall be state witness is an inherent judicial
prerogative. Under this provision, the court is given the power to
discharge a state witness only because it has already acquired
jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function."93
Clearly, no error was committed by the Department of Justice when it
placed witnesses in this case under the Witness Protection Program.

the Secretary of Justice confirmed the correctness of the private

prosecutions stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the
Information for homicide on 28 February 1996. It is interesting to note that
while the information was dated 29 January 1996, it was approved by the
Provincial Prosecutor only on 27 February 1996. This simply means that the
Office of the Prosecutor was not, initially, in a hurry to file the Information.
No undue prejudice could have been caused to the YABUTs if it were filed
even later for the YABUTs were still at large; in fact, they filed their bonds
of P20,000.00 each only after the filing of the Information. If Alfonso-Flores
was extremely generous to the YABUTs, no compelling reason existed why

As to damages, the trial court correctly awarded to the heirs of the

deceased Fifty Thousand Pesos (P50,000.00) as civil indemnity for the
death of Major Rivera. However, the amount of Two Hundred Thousand
Pesos (P200,000.00) as award for moral damages must be reduced to Fifty
Thousand Pesos (P50,000.00) following jurisprudence. 94
We also reduce the amount of actual damages to Twenty Five Thousand
Pesos (P25,000.00) for this was the only expense evidenced by a receipt. 95
Finally, we award to the heirs of the deceased One Million Ninety Two
Thousand Six Hundred Eighteen and Forty Five Centavos (P1,092,618.45)
for loss of earning capacity, computed as follows: Seven Thousand One
Hundred Ninety Seven Pesos and Seventy Five Centavos (P7,197.75)
representing the monthly income of Major Rivera multiplied by 12 to get
the annual income of Major Rivera immediately prior to his death which is
Eighty Six Thousand Three Hundred Seventy Three Pesos (P86,373.00),
minus necessary and incidental expenses, or 50% equals P43,186.50
multiplied by his life expectancy which is 25.3 (2/3 x [80 42], the age of
the victim at the time of his death).96
WHEREFORE, the decision of the Regional Trial Court of Quezon City
convicting accused-appellant of the crime of Murder and sentencing him to
suffer reclusion perpetua is AFFIRMED with the MODIFICATION that the
accused-appellant is ordered to pay to the heirs of Major Arthur Rivera, in
addition to the amount of Fifty Thousand Pesos (P50,000.00) as civil
indemnity for the victims death, Fifty Thousand Pesos (P50,000.00) for
moral damages, Twenty Five Thousand Pesos (P25,000.00) for actual
damages, and One Million Ninety Two Thousand Six Hundred Eighteen and
Forty Five Centavos (P1,092,618.45) for loss of earning
capacity.1wphi1.nt
SO ORDERED.
25. People vs. Verceles,
GR No. 130650; September 10, 2002

she could not afford the offended parties the same courtesy by at least
waiting for instructions from the Secretary of Justice in view of the appeal,
if she were unwilling to voluntarily ask the latter for instructions. Clearly,
under the circumstances, the latter course of action would have been the
most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the
Provincial Prosecutor of Pampanga did not even bother to motu proprio
inform the trial court that the private prosecution had appealed from the
resolution of Alfonso-Flores and had sought, with all the vigour it could
muster, the filing of an information for murder, as found by the MCTC and
established by the evidence before it.
Accused Mario Verceles alias Baldog, Felix Corpuz, Mamerto Soriano alias
Merto, Pablo Ramos and Jerry Soriano were charged with the crime of
Robbery with Rape committed as follows:
That on or about the 19th day of October, 1996, in the morning, in
barangay Malibong, municipality of Urbiztondo, province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and helping one another, with
intent of gain and by means of force upon things, entered the house of one
Mrs. Rosita Quilates by forcibly destroying the grills of the window which
they used as an ingress and once inside, did, then and there, willfully,
unlawfully and feloniously take and cart away the following personal
properties: one (1) colored T.V., one (1) VHS, assorted jewelries, one (1)
alarm clock and one (1) radio cassette, all valued at SIXTY THOUSAND
PESOS (P60,000.00) owned by the said Rosita Quilates, and that on the
same occasion, the said accused, conspiring, confederating and helping
one another, did then and there, willfully, unlawfully and feloniously have
sexual intercourse with Maribeth Bolito against her will to the damage and
prejudice of the aforenamed victims.
CONTRARY to Art. 299, par. A(2) in relation to Art. 335 of the Revised Penal
Code.[1]
Of the five accused, Mamerto Soriano and Pablo Ramos remain at large.
Only Mario Verceles, Felix Corpuz and Jerry Soriano were brought to the
jurisdiction of the court. During arraignment, the three accused, duly
assisted by counsel, pleaded not guilty to the crime charged. Thereafter,
the prosecution filed a motion to discharge accused Jerry Soriano as a
State Witness. The court proceeded with the trial of the case pending the
resolution of the said motion to discharge.
The trial court subsequently discharged accused Jerry Soriano and received
his testimony as state witness. According to Soriano, on October 18, 1996,
the five accused boarded a tricycle owned by Mario Verceles to visit his
cousin in barangay Goliso, located at the boundary of Urbiztondo. At 8:00
in the evening, they proceeded to barangay Malibong to visit Pepe, a
compadre of Mamerto Soriano. Before reaching Pepes place, they stopped

Unsatisfied with what had been done so far to accommodate the YABUTs,
the Office of the Provincial Prosecutor did not even have the decency to
agree to defer arraignment despite its continuing knowledge of the
pendency of the appeal. This amounted to defiance of the DOJs power of
control and supervision over prosecutors, a matter which we shall later
elaborate on. Moreover, in an unprecedented move, the trial prosecutor,
Olimpio Datu, had the temerity, if not arrogance, to announce that he will
no longer allow the private prosecutor to participate or handle the
prosecution of [the] case simply because the private prosecution had
asked for the inhibition of Judge Roura. Said prosecutor forgot that since
the offended parties here had not waived the civil action nor expressly
reserved their right to institute it separately from the criminal action, then

at the house of Jerrys grandmother, Rosita Quilates. Jerry sensed that his
companions had an evil plan, so he and Pablo Ramos tried to leave.
However, Mamerto Soriano poked a gun at Jerry and told them not to
leave. Then, they tied Jerry and Pablo under a mango tree. The three
proceeded to the house of Rosita Quilates. While waiting for the three, Jerry
and Pablo fell asleep. When they woke up at 2:00 a.m., they saw the three
accused carrying a TV set, VHS and other things. They helped the three
load the items in the tricycle. Then they went home to San Jacinto,
Pangasinan. Several days later, they sold the items and Jerry was given
three hundred pesos.[2]
The prosecution witness Maribeth Bolito testified that on October 19, 1996
at around 2:00 in the morning, she was awakened by a man fondling her
breast and other private parts. She tried to resist and fight back but her
strength proved too weak against her aggressor. Furthermore, the man had
a gun pointed at her head. She later identified her aggressor as Mamerto
Soriano. While she was being ravished, she saw two men standing at the
door, whom she identified as accused Mario Verceles and Felix Corpuz.
Soriano undressed her then kissed her on the body and fondled her breasts
for five minutes. She pretended to be thirsty, so Soriano, holding her
tightly, brought her to the kitchen. There he removed his pants and laid
her on the floor and tried to insert his penis inside her vagina. Maribeth lost
consciousness and when she came to, her private part was very painful
and the three accused were gone.[3]
Dra. Revelina Millan, who examined Maribeth on October 20, 1996, made
the following findings:[4]
- GO IMP
- SKIN

:
:

September 2nd week/96

3 days
No hematoma
No Abrasion
:
with healed laceration at 9

- IE
oclock position
- For vaginal smear for presence of spermatozoa
- Result
:
Negative for spermatozoa

they had the right to intervene in the criminal case pursuant to Section 16
of Rule 110 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from
the resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112
of the Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice
reverses the resolution of the provincial or city fiscal or chief
state prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another

SPO2 Eduardo Fernandez, who investigated the robbery, testified that the
malefactors entered through the window of one of the bedrooms of the
house; that they took personal properties valued at P60,000.00; that
Maribeth Bolito was sexually abused; and that a necklace was recovered
from Felix Corpuz.[5]
Mrs. Rosita Quilates testified that she learned from her granddaughter,
Maribeth Bolito, that her house was robbed and her personal belongings
were missing; and that she was able to recover the properties from a
certain Andres Tirano, who bought them from accused Mamerto Soriano.
In their defense, Felix Corpuz testified that on October 19, 1996, he was in
Manila working as a carpenter in a construction firm. He stayed in Manila
from October 5, 1996, and did not visit his hometown until the completion
of the job contract on October 27, 1996. He first learned that he was a
suspect in a crime on November 3, 1996.[6]
Ernesto Lambino, Jr. corroborated the testimony of Felix Corpuz. He
testified that he was the one who recruited Felix to work in Tambo, Rizal,
Paraaque as a mason carpenter. They arrived in Manila on October 5, 1996
and Felix started his work on October 6, 1996 until October 26, 1996.[7]
Accused Mario Verceles, for his part, testified that in the evening of
October 18, 1996, he attended the wake of Crispulo de Guzman at
Barangay San Vicente, San Jacinto, Pangasinan. There he played cards up
to 4:00 a.m. of October 19, 1996. He left the place at 5:00 a.m. He only
learned that the police were looking for him when his wife fetched him in
Mapandan, Pangasinan. He went to the barangay captain of his place and
arranged for his surrender to the authorities. Police Inspector Rodolfo Tadeo
corroborated his testimony that he voluntarily surrendered to the police on
November 5, 1996.[8]

preliminary investigation or to dismiss or move for the dismissal

of the complaint or information.
It is clear from the above, that the proper party referred to therein could be
either the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretarys
power of control over prosecutors. Thus, in Ledesma v. Court of Appeals,268
[61] we emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to
the secretary of justice who, under the Revised Administrative
Code,269[62] exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse
or modify their rulings.

Robbery with Rape defined and penalized under Article 294, 1, as

amended, of the Revised Penal Code, and there being neither mitigating
nor aggravating circumstance, the Court hereby sentences each to suffer
the penalty of Reclusion Perpetua. Both Felix Corpuz and Mario Verceles
are likewise ordered to pay jointly and solidarily the victim Maribeth Bolito
the sum of Two Hundred Thousand Pesos (P200,000.00) for moral
damages, One Hundred Thousand Pesos (P100,000.00) for exemplary
damages and to pay Rosita Quilates the sum of Twenty One Thousand
Pesos (P21,000.00) on the value of the properties which were not
recovered and further orders that the recovered TV, VHS appliances and
necklace be returned to its lawful owner.
SO ORDERED.
Accused Felix Corpuz and Mario Verceles interposed the instant appeal.
They alleged that the trial court erred in discharging Jerry Soriano as a
state witness, in appreciating conspiracy among the accused, in not
considering as mitigating circumstance the voluntary surrender of Mario
Verceles, and in awarding damages to the private complainants.
The appeal lacks merit.
Accused-appellants contend that the discharge of Jerry Soriano did not
comply with the requirements of the Rules of Court. They contend that
Sorianos testimony does not constitute direct evidence; at most, it was
circumstantial in nature and of minuscule importance.[10] Moreover, Jerry
Soriano was the most guilty for he admitted his guilt with regard to the
commission of the crime together with Mamerto Soriano.[11]

After trial, the lower court rendered a decision, the dispositive portion of
which reads:[9]

The requirements for the discharge and utilization of an accused as a state

witness are enumerated in Rule 119, Section 17[12] of the Revised Rules of
Criminal Procedure, viz:

WHEREFORE, in view of the foregoing, the Court hereby finds accused Felix
Corpuz and Mario Verceles guilty beyond reasonable doubt of the crime of

a)
There is absolute necessity for the testimony of the accused whose
discharge is requested;

Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and

9, Chapter 2, Title III of the Code gives the secretary of justice
supervision and control over the Office of the Chief Prosecutor
and the Provincial and City Prosecution Offices. The scope of his
power of supervision and control is delineated in Section 38,
paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. -- Supervision and control
shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, reverse or
b)
There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of the
accused;
c)
The testimony of said accused can be substantially corroborated in
its material points;
d)

modify acts and decisions of subordinate officials or

units; x x x x.
Supplementing the aforequoted provisions are Section 3 of R.A.
3783 and Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State
Prosecutors, the Senior State Prosecutors, and the
State Prosecutors shall x x x perform such other duties
as may be assigned to them by the Secretary of Justice
in the interest of public service.

Granting ex gratia argumenti that not all the requisites of a valid discharge
are present, the improper discharge of an accused will not render
inadmissible his testimony nor detract from his competency as a witness.
Any witting or unwitting error of the prosecution in asking for the
discharge, and of the court in granting the petition, no question of
jurisdiction being involved, cannot deprive the discharged accused of the
acquittal provided by the Rules, and of the constitutional guarantee against
double jeopardy.[14]

Said accused does not appear to be the most guilty; and

e)
Said accused has not at any time been convicted of any offense
involving moral turpitude.
The trial court did not err in discharging Jerry Soriano to be utilized as a
state witness. First, the testimony of Jerry Soriano was absolutely
necessary as the prosecution has no direct evidence to prove the identity
of the malefactors Mamerto Soriano, Felix Corpuz, Mario Verceles and Pablo
Ramos. The record reveals that the five accused were together on the
night the robbery and rape took place. He may not have witnessed the
actual robbery and rape, but he has personal knowledge of the robbery
when he saw the three accused return to the place where he and Pablo
Ramos were allegedly tied, carrying with them the properties said to have
been stolen. Second, Jerry Sorianos testimony was corroborated in its
material points by other prosecution witnesses and physical evidence.
These are: (a) the testimony of Maribeth Bolito that there were three
malefactors, one of whom sexually abused her and two of whom just stood
at the door; (b) the testimony of Rosita Quilates that her properties were
stolen; and (c) the testimony of SPO2 Renato Solomon that they were able
to recover the stolen properties from a certain Andres Tirano who bought
them from accused Mamerto Soriano. Lastly, Jerry Soriano does not appear
to be the most guilty for he was not a co-conspirator in the robbery with
rape. He merely accompanied the accused and received three hundred
pesos as his share in the proceeds of the sale of the stolen properties.
Besides, the question of whether Jerry Soriano appears to be the most
guilty is a factual issue. The discretionary judgment of the trial court on
this matter is seldom interfered with by appellate court except in case of
grave abuse of discretion.[13] We find no good reason to disturb the trial
courts findings of facts.

On the matter of whether rape was committed, we agree with the trial
courts ruling that neither the healed lacerations on the vagina of the victim
nor the absence of spermatozoa negates rape. When an alleged victim of
rape says she was violated, she says in effect all that is necessary to show
that rape had been inflicted on her, and so long as her testimony meets
the test of credibility, the accused may be convicted on the basis thereof.
[15]
In the case at bar, the victims declaration of her sexual ordeal, which was
given in a straightforward, convincing, credible and satisfactory manner,
shows no other intention than to obtain justice for the wrong committed by
accused-appellant Mamerto Soriano against her. The Court finds no reason
to depart from the rule that the trial courts evaluation of the credibility of
the testimonies of the witnesses is accorded great weight because it has
the unique opportunity of hearing the witnesses testify and observing their
deportment and manner of testifying.[16]
We agree with the trial court that conspiracy has been sufficiently proved
by the prosecution. Accused-appellants were one in design with accused
Mamerto Soriano in taking personal properties belonging to others without
the latters consent by breaking one of the windows to be used as their
ingress. In the course of the robbery, one of them, particularly Mamerto
Soriano, succumbed to lustful desires and raped Maribeth Bolito while
accused-appellants just stood outside the door and did nothing to prevent
Mamerto Soriano. We have previously ruled that once conspiracy is
established between two accused in the commission of the crime of
robbery, they would be both equally culpable for the rape committed by
one of them on the occasion of the robbery, unless any of them proves that
he endeavored to prevent the other from committing the rape.[17] The

xxx
xxx
xxx
Section 37. The provisions of the existing law to the
contrary notwithstanding, whenever a specific power,
authority, duty, function, or activity is entrusted to a
chief of bureau, office, division or service, the same
shall be understood as also conferred upon the proper
Department Head who shall have authority to act
directly in pursuance thereof, or to review, modify, or
revoke any decision or action of said chief of bureau,
office, division or service.

Supervision and control of a department head over his

subordinates have been defined in administrative law as follows:
In administrative law, supervision means overseeing or
the power or authority of an officer to see that
subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them
perform such duties. Control, on the other hand, means
the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the

rule in this jurisdiction is that whenever a rape is committed as a

consequence, or on the occasion of a robbery, all those who took part
therein are liable as principals of the crime of robbery with rape, although
not all of them took part in the rape.[18]

We thus hold that accused-appellants defense of alibi and denial cannot

overcome Maribeth Bolitos positive testimony that she was raped and that
her grandmothers house was robbed, especially since this was
substantially corroborated by the other prosecution witnesses. Timehonored is the rule that the positive and categorical assertions of
witnesses generally prevail over bare denials.[25]

In trying to mitigate his criminal liability, accused-appellant Mario Verceles

argued that the trial court erred in not considering the circumstance of
voluntary surrender in his favor. Upon learning that police authorities were
searching for him in connection with the alleged crime, he immediately
proceeded to the barangay captain of his place and voluntarily surrendered
himself. However, the Solicitor General argues that the surrender of
accused-appellant Mario Verceles was not voluntary and spontaneous for it
took him 16 days to show up from the commission of the crime on October
19, 1996 to November 4, 1996.[19]
For the mitigating circumstance of voluntary surrender to be appreciated,
the accused must satisfactorily comply with three requisites: (1) he has not
been actually arrested; (2) he surrendered himself to a person in authority
or the latter's agent; and (3) the surrender is voluntary. There must be a
showing of spontaneity and an intent to surrender unconditionally to the
authorities, either because the accused acknowledges his guilt or he
wishes to spare them the trouble and expense concomitant to his capture.
[20] Voluntary surrender is not a mitigating circumstance where it appears
that the purpose of the accused in going to the authorities is for an entirely
different matter as to inquire merely about a warrant of arrest in
connection with a pending case against the accused for rape. [21]
Evidence shows that Mario Verceles surrender to the authorities was not
spontaneous and unconditional. He submitted himself to the police only to
clear the matter and to know the reason why the police were looking for
him[22] and when asked what his involvement was to the alleged robbery
and rape, he answered that he does not know anything about the crime.
[23] In People v. Abella,[24] we held that when the accused goes to a
police station merely to clear his name and not to give himself up,
voluntary surrender may not be appreciated. On the basis of the foregoing,
accused-appellant Mario Verceles is not entitled to the benefit of the
mitigating circumstance of voluntary surrender.

In line with established jurisprudence,[26] we are constrained to modify

the award of moral damages from P200,000.00 to P50,000.00, as this
award is not intended to enrich the victim but to compensate for her
suffering. Moreover, the trial court committed a reversible error when it
awarded exemplary damages in the amount of P100,000.00 despite the
absence of one or more aggravating circumstances.[27] As regards the
value of the properties belonging to Rosita Quilates that were not
recovered, the records are bereft of any evidence to support such claim.
Lastly, Maribeth Bolito should have been awarded the sum of P50,000.00
for civil indemnity, as it is mandatory upon a conviction of rape. Such
indemnity is distinct from moral damages and based on different jural
foundations.[28]
WHEREFORE, the assailed decision finding accused-appellants Mario
Verceles and Felix Corpuz guilty beyond reasonable doubt of the crime of
Robbery with Rape punished under Article 294 (1) of the Revised Penal
Code and sentencing them to suffer the penalty of Reclusion Perpetua, is
AFFIRMED with the MODIFICATION that the award of moral damages is
reduced from P200,000.00 to P50,000.00; the award of exemplary
damages is DELETED for lack of basis and the sum of P50,000.00 is
awarded for civil indemnity.
SO ORDERED.
26. Salvanera v People
GR No. 143093; May 21 2007
On appeal are the Decision dated April 30, 1999 and the two Resolutions of
the Court of Appeals, dated September 22, 1999 and May 11, 2000, in CA-

performance of his duties and to substitute the

judgment of the former for that of the latter.
Review as an act of supervision and control by the justice
secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative
agency should be corrected by higher administrative authorities,
and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.

G.R. SP No. 46945. The Court of Appeals discharged accused Feliciano

Abutin and Domingo Tampelix from the Information in Criminal Case No.
TM-1730 for Murder, pending before the Regional Trial Court of Trece
Martires City, to become state witnesses. The appellate court likewise
cancelled the bail bond of petitioner Rimberto Salvanera.
First, the facts:
In an Information1 dated November 30, 1996, petitioner Rimberto
Salvanera, together with Feliciano Abutin, Edgardo Lungcay and Domingo
Tampelix, is charged with the murder of Ruben Parane, committed as
follows:
That on or about October 23, 1995, in the Municipality of Gen. Trias,
Province of Cavite, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping each other, with treachery and evident premeditation, then armed
with a firearm, did, then and there, wilfully, unlawfully and feloniously
assault, attack and shoot one RUBEN PARANE Y MAGSAMBOL, inflicting
gunshot wound on his body, resulting to his instantaneous death, to the
damage and prejudice of the heirs of the said victim.

DOJ Order No. 223 of 30 June 1993 recognizes the right of both the
offended parties and the accused to appeal from resolutions in preliminary
investigations or reinvestigations, as provided for in Section 1 and Section
4, respectively. Section 1 thereof provides, thus:
SECTION 1. What May Be Appealed. -- Only resolutions of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor dismissing a criminal complaint may be the
subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.

In an Omnibus Order2 dated September 5, 1997, the trial court granted

petitioners application for bail and denied the prosecutions motion for the
discharge of accused Abutin and Tampelix. The prosecution moved for
reconsideration but the motion was denied.
The prosecution then appealed to the Court of Appeals. It contended that
the trial court committed grave abuse of discretion when it denied the
motion to discharge accused Abutin and Tampelix to be state witnesses. It
alleged that the testimonies of the two accused are absolutely necessary
to establish that petitioner masterminded the murder of Ruben Parane. The
prosecution likewise claimed that it was premature and baseless for the
trial court to grant petitioners application for bail because the prosecution
had not yet rested its case in the hearing for the discharge of the two
accused.
The Court of Appeals sustained the prosecution. It discharged accused
Feliciano Abutin and Domingo Tampelix from the Information to become
state witnesses, and cancelled the bail bond of petitioner Salvanera. In its
Resolution dated September 22, 1999, it denied petitioner's Motion for
Reconsideration. Petitioner then filed his Motion for Clarification with Leave
of Court. The same was also denied in a Resolution dated May 11, 2000.
Hence, this appeal.

CONTRARY TO LAW.
Petitioner enumerates the grounds for his appeal, as follows:
As per theory of the prosecution, petitioner was the alleged mastermind;
Lungcay, the hired hitman; Abutin, the driver of the motorcycle which
carried Lungcay to the place of the commission of the crime; while
Tampelix delivered the blood money to the latter. All the accused have
been arrested and detained, except Edgardo Lungcay who remained atlarge.

I. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR

IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS
DEFYING LAW AND JURISPRUDENCE THEREON WHEN IT RULED
THAT THE "SUBSTANTIAL CORROBORATION" REQUIREMENT UNDER
SECTION 9, RULE 119 OF THE REVISED RULES OF COURT WAS
SATISFIED BY THE PROSECUTION DESPITE THE FACT THAT -

Respondent Lucita Parane is the spouse of victim Ruben Parane.

On January 22, 1997, petitioner applied for bail. The prosecution, on March
4, 1997, moved for the discharge of accused Feliciano Abutin and Domingo
Tampelix, to serve as state witnesses.

A. THE "SUBSTANTIAL CORROBORATION" REQUIREMENT

MUST BE SATISFIED THROUGH THE TESTIMONY OF THE
OTHER PROSECUTION WITNESSES WHO ARE NOT AN (sic)
ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS,

While the section speaks of resolutions dismissing a criminal complaint,

petitioners herein were not barred from appealing from the resolution
holding that only homicide was committed, considering that their
complaint was for murder. By holding that only homicide was committed,
the Provincial Prosecutors Office of Pampanga effectively dismissed the
complaint for murder. Accordingly, petitioners could file an appeal under
said Section 1. To rule otherwise would be to forever bar redress of a valid
grievance, especially where the investigating prosecutor, as in this case,
demonstrated what unquestionably appeared to be unmitigated bias in
favor of the accused. Section 1 is not to be literally applied in the sense

NOT BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE

DISCHARGED.
B. THE SWORN STATEMENT OF AN ACCUSED SOUGHT TO
BE DISCHARGED CANNOT BE USED AS EVIDENCE FOR
PURPOSES OTHER THAN HIS OWN DISCHARGE PRIOR TO
THE ISSUANCE BY A COMPETENT COURT OF THE ORDER OF
HIS DISCHARGE.
C. THE TESTIMONIES OF ABUTIN AND TAMPELIX CANNOT
BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL
POINTS BY THE OTHER PROSECUTION WITNESSES.
D. THE TESTIMONY GIVEN BY AN ACCUSED SOUGHT TO BE
DISCHARGED AS STATE WITNESS CANNOT BE USED TO
CORROBORATE THE TESTIMONY GIVEN BY ANOTHER
ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED AS STATE
WITNESS.
II. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR
IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS,
DEFYING LAW AND JURISPRUDENCE ON THE MATTER, WHEN IT
CANCELLED PETITIONER'S BAIL BOND DESPITE THE FACT THAT THE
TRIAL COURT JUDGE ALREADY RULED THAT THE EVIDENCE OF HIS
GUILT IS NOT STRONG.3
We uphold the ruling of the Court of Appeals.
In the discharge of an accused in order that he may be a state witness, the
following conditions must be present, namely:
(1) Two or more accused are jointly charged with the commission of
an offense;
(2) The motion for discharge is filed by the prosecution before it
rests its case;

that appeals by the offended parties are allowed only in cases of dismissal
of the complaint, otherwise the last paragraph of Section 4, Rule 112, Rules
of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private
respondents that Section 4 of DOJ Department Order No. 223 is the
controlling rule; hence, pursuant to the second paragraph thereof, the
appeal of petitioners did not hold the filing of the information. As stated
above, Section 4 applies even to appeals by the respondents or accused.
The provision reads:

(3) The prosecution is required to present evidence and the sworn

statement of each proposed state witness at a hearing in support
of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the
accused whose discharge is requested;
b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the
testimony of said accused;
c) The testimony of said accused can be substantially
corroborated in its material points;
d) Said accused does not appear to be the most guilty;
and,
e) Said accused has not at any time been convicted of any
offense involving moral turpitude. 4
According to petitioner, the testimony of an accused sought to be
discharged to become a state witness must be substantially corroborated,
not by a co-accused likewise sought to be discharged, but by other
prosecution witnesses who are not the accused in the same criminal case.
Petitioner justifies this theory on the general principles of justice and sound
logic. He contends that it is a notorious fact in human nature that a culprit,
confessing a crime, is likely to put the blame on others, if by doing so, he
will be freed from any criminal responsibility. Thus, in the instant case,
petitioner supposes that both Abutin and Tampelix will naturally seize the
opportunity to be absolved of any liability by putting the blame on one of
their co-accused. Petitioner argues that prosecution witnesses Parane and
Salazar, who are not accused, do not have personal knowledge of the

SEC. 4. Non-appealable cases. Exceptions. - No appeal may be

taken from a resolution of the Chief State Prosecutor/Regional
State Prosecutor/Provincial or City Prosecutor finding probable
cause except upon a showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or
grave abuse of discretion, no appeal shall be entertained where
the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall
be dismissed motu proprio by the Secretary of Justice.

circumstances surrounding the alleged conspiracy. Thus, they could not

testify to corroborate the statement of Abutin and Tampelix that petitioner
is the mastermind or the principal by induction.
We agree with the Court of Appeals in dismissing this reasoning as
specious. To require the two witnesses Parane and Salazar to corroborate
the testimony of Abutin and Tampelix on the exact same points is to render
nugatory the other requisite that "there must be no other direct evidence
available for the proper prosecution of the offense committed, except the
testimony of the state witness."5 The corroborative evidence required by
the Rules does not have to consist of the very same evidence as will be
testified on by the proposed state witnesses. We have ruled that "a
conspiracy is more readily proved by the acts of a fellow criminal than by
any other method. If it is shown that the statements of the conspirator are
corroborated by other evidence, then we have convincing proof of veracity.
Even if the confirmatory testimony only applies to some particulars, we
can properly infer that the witness has told the truth in other respects."6 It
is enough that the testimony of a co-conspirator is corroborated by some
other witness or evidence. In the case at bar, we are satisfied from a
reading of the records that the testimonies of Abutin and Tampelix are
corroborated on important points by each others testimonies and the
circumstances disclosed through the testimonies of the other prosecution
witnesses, and "to such extent that their trustworthiness becomes
manifest."7
As part of the conspiracy, Abutin and Tampelix can testify on the criminal
plan of the conspirators. Where a crime is contrived in secret, the
discharge of one of the conspirators is essential because only they have
knowledge of the crime.8 The other prosecution witnesses are not
eyewitnesses to the crime, as, in fact, there is none. No one except the
conspirators knew and witnessed the murder. The testimonies of the
accused and proposed state witnesses Abutin and Tampelix can directly
link petitioner to the commission of the crime.
In Chua v. Court of Appeals,9 we ruled that the trial court has to rely on
the information offered by the public prosecutor as to who would best
qualify as a state witness. The prosecutor knows the evidence in his
possession and the witnesses he needs to establish his case. In Mapa v.

An appeal/motion for reinvestigation from a resolution finding

probable cause, however, shall not hold the filing of the
information in court. (underscoring supplied)
The underlined portion indisputably shows that the section refers to
appeals by respondents or accused. So we held in Marcelo v. Court of
Appeals270[63] that nothing in the ruling in Crespo v. Mogul,271[64]
reiterated in Roberts v. Court of Appeals,272[65] forecloses the power or
authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having been
filed in court. The Secretary of Justice is only enjoined to refrain, as far as

Sandiganbayan,10 we held:
The decision to grant immunity from prosecution forms a constituent part
of the prosecution process. It is essentially a tactical decision to forego
prosecution of a person for government to achieve a higher objective. It is
a deliberate renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its justification lies in the
particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the law.
Whether or not the delicate power should be exercised, who should be
extended the privilege, the timing of its grant, are questions addressed
solely to the sound judgment of the prosecution. The power to prosecute
includes the right to determine who shall be prosecuted and the corollary
right to decide whom not to prosecute.
We further ruled:
In reviewing the exercise of prosecutorial discretion in these areas, the
jurisdiction of the respondent court is limited. For the business of a court of
justice is to be an impartial tribunal, and not to get involved with the
success or failure of the prosecution to prosecute. Every now and then, the
prosecution may err in the selection of its strategies, but such errors are
not for neutral courts to rectify, any more than courts should correct the
blunders of the defense. For fairness demands that courts keep the scales
of justice at equipoise between and among all litigants. Due process
demands that courts should strive to maintain the legal playing field
perfectly even and perpetually level.
Lastly, we affirm the ruling of the appellate court in cancelling the bail
bond of petitioner. The grant of petitioners application for bail is
premature. It has to await the testimony of state witnesses Abutin and
Tampelix. Their testimonies must be given their proper weight in
determining whether the petitioner is entitled to bail.
IN VIEW WHEREOF, the petition is DENIED and the Decision and
Resolutions of the Court of Appeals in CA-G.R. SP No. 46945, dated April
30, 1999, September 22, 1999 and May 11, 2000, respectively, are

practicable, from entertaining a petition for review or appeal from the

action of the prosecutor once a complaint or information is filed in court. In
any case, the grant of a motion to dismiss, which the prosecution may file
after the Secretary of Justice reverses an appealed resolution, is subject to
the discretion of the court. In Roberts we went further by saying that
Crespo could not have foreclosed said power or authority of the Secretary
of Justice without doing violence to, or repealing, the last paragraph of
Section 4, Rule 112 of the Rules of Court which is quoted above.

Indubitably then, there was, on the part of the public prosecution, indecent
haste in the filing of the information for homicide, depriving the State and
the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave
abuse of discretion when, in his order of 26 March 1996, 273[66] he deferred
resolution on the motion for a hold departure order until such time that all
the accused who are out on bail are arraigned and denied the motion to
defer proceedings for the reason that the private prosecution has not
shown any indication that [the] appeal was given due course by the
Secretary of Justice. Neither rhyme nor reason or even logic, supports the
ground for the deferment of the first motion. Precisely, immediate action

AFFIRMED in toto.
SO ORDERED.
26. Chua-Burce v. CA
G.R. No. 109595. April 27, 2000

Subject of the present appeal by certiorari is the decision dated November

27, 1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in
toto the trial courts decision finding petitioner guilty of estafa, and (b)
denying her Motion for Reconsideration in a Resolution dated March 25,
1993. The Regional Trial Court, Calapan, Oriental Mindoro, Branch 40,
rendered a joint decision finding petitioner guilty of estafa under Article
315, par. 1 (b) of the Revised Penal Code, in Criminal Case No. C-2313, and
likewise found petitioner liable for the amount of P150,000.00 in Civil Case
No. R-3733. Only the criminal case is before us for review. h Y
The uncontroverted facts, as found by the Court of Appeals, are as follows:
On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank
and Trust Company, Calapan Branch, Oriental Mindoro) requested
Fructuoso Peaflor, Assistant Cashier, to conduct a physical bundle count of
the cash inside the vault, which should total P4,000,000.00, more or less.
During this initial cash count, they discovered a shortage of fifteen bundles
of One Hundred Pesos denominated bills totalling P150,000.00. The One
Hundred Peso bills actually counted was P3,850,000.00 as against the
balance of P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a
total shortage of P150,000.00. The next day, to determine if there was
actually a shortage, a re-verification of the records and documents of the
transactions in the bank was conducted. There was still a shortage of
P150,000.00.
The bank initiated investigations totalling four (4) in all. The first was by
Ramon Rocamora, the Manager. The second was by the banks internal
auditors headed by Antonio Batungbakal. Then, the banks Department of
Internal Affairs conducted an independent investigation. Thereafter, the

National Bureau of Investigation (NBI) came in to investigate. All of these

investigations concluded that there was a shortage of P150,000.00, and
the person primarily responsible was the banks Cash Custodian, Cristeta
Chua-Burce, the herein accused. Jksm
On November 4, 1985, unable to satisfactorily explain the shortage of
P150,000.00, the accuseds service with the bank was terminated.
To recover the missing amount, Metropolitan Bank and Trust Company
(Metrobank) filed a Civil Case for Sum of Money and Damages with
Preliminary Attachment and Garnishment docketed as Civil Case No. R3733 against petitioner and her husband, Antonio Burce. Esm
Prior to the filing of the Answer, the following Information for Estafa was
filed against petitioner:
"That on or about the 16th day of August 1985, and for a
period prior and subsequent thereto, the above-named
accused, with unfaithfulness or abuse of confidence, and
with intent to defraud, did then and there wilfully,
unlawfully, and feloniously, in her capacity as Cash
Custodian of the Metrobank, Calapan Branch, take from the
Banks Vault the amount of ONE HUNDRED FIFTY
THOUSAND (P150,000.00) PESOS, which is under her direct
custody and/or accountability, misappropriate and convert
to her own personal use and benefit, without the
knowledge and consent of the offended party, despite
repeated demands for her to account and/or return the
said amount, she refused and failed, and still fails and
refuses to the damage and prejudice of the Metrobank,
Calapan Branch, in the aforementioned amount of ONE
HUNDRED FIFTY THOUSAND (P150,000.00) PESOS.
Contrary to Article 315 of the Revised Penal Code.
Calapan, Oriental Mindoro, November 27, 1985."[1]

thereon was called for as the accused were out on bail and, perforce, had
all the opportunity to leave the country if they wanted to. To hold that
arraignment is a prerequisite to the issuance of a hold departure order
could obviously defeat the purpose of said order. As to the second motion,
Judge Roura was fully aware of the pendency of petitioners appeal with the
DOJ, which was filed as early as 23 February 1996. In fact, he must have
taken that into consideration when he set arraignment of the accused only
on 12 April 1996, and on that date, after denying petitioners motion to
reconsider the denial of the motion to defer proceedings, he further reset
arraignment to 3 May 1996 and gave petitioners ten (10) days within which

Both civil and criminal cases were raffled to the same branch of the
Regional Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc
Thereafter, petitioner moved for the suspension of the criminal case on the
ground of the existence of a prejudicial question, viz., that the resolution of
the civil case was determinative of her guilt or innocence in the criminal
case.[2] The trial court, over the vehement opposition of the private and
public prosecutors, granted the motion and suspended the trial of the
criminal case.[3] On petition for certiorari to the Court of Appeals, the
appellate court ruled that there was no prejudicial question.[4]

to file a petition for certiorari to question his denial of the motion to defer
and of the order denying the reconsideration. In any event, the better part
of wisdom suggested that, at the very least, he should have asked
petitioners as regards the status of the appeal or warned them that if the
DOJ would not decide the appeal within a certain period, then arraignment
would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April
1996 and, at the same time, moved to inhibit Judge Roura. These twin
moves prompted Judge Roura to voluntarily inhibit himself from the case
on 29 April 1996274[67] and to transfer the case to the branch presided by
public respondent Judge Villon. The latter received the record of the case

RESPECTFULLY SUBMITTED.
Calapan, Oriental Mindoro, August 20, 1990.
CRISTETA CHUA-BURCE (sgd.)
Accused
Assisted By:

Petitioner was arraigned and assisted by counsel de parte, entered a plea

of not guilty.[5] While the trial of the criminal case was suspended, the trial
of the civil case continued. At the time of arraignment, the civil case was
already submitted for decision. Hence, during the pre-trial conference of
the criminal case, the parties agreed to adopt their respective evidence in
the civil case as their respective evidence in the criminal case.[6] The trial
court ordered the parties to submit their written agreement pursuant to
Section 4 of Rule 118 of the Rules of Court.[7] Thereafter, petitioner, duly
assisted by her counsel, with the conforme of the public prosecutor,
entered into the following pre-trial agreement:[8]

RODRIGO C. DIMAYACYAC (sgd.)

Defense Counsel
San Vicente, Calapan
Oriental Mindoro
IBP O.R. No. 292575

"COMES NOW, the accused, assisted by counsel, and unto

this Honorable Court most respectfully submits this Pre-Trial
agreement:
1. That the evidence already adduced by the plaintiff in
Civil Case No. R-3733 will be adopted by the prosecution as
its evidence in Criminal Case No. C-2313;
2. That the evidence to be adduced by the defendant in
Civil Case No. R-3733 will also be adopted as evidence for
the defense in Criminal Case No. C-2313.
WHEREFORE, premises considered, it is prayed that the
foregoing pre-trial agreement be admitted in compliance
with the Order of this Court dated April 19, 1988.

May 11, 1990

Quezon City
With Conformity:
EMMANUEL S. PANALIGAN (sgd.)
Prosecuting Fiscal
Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to
Adopt Evidence.[9] Both the pre-trial agreement and said Motion were
granted by the trial court.[10]

on 30 April 1996. From that time on, however, the offended parties did not
receive any better deal. Acting with deliberate dispatch, Judge Villon issued
an order on 3 May 1996 setting arraignment of the accused on 20 May
1996. If Judge Villon only perused the record of the case with due diligence,
as should be done by anyone who has just taken over a new case, he could
not have helped but notice: (a) the motion to defer further proceedings; (2)
the order of Judge Roura giving petitioners ten days within which to file a
petition with the Court of Appeals; (3) the fact of the filing of such petition
in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals
directing respondents to comment on the petition and show cause why the

On March 18, 1991, the trial court rendered a consolidated decision[11]

finding petitioner (a) guilty of estafa under Article 315 (1) (b) of the
Revised Penal Code in the criminal case, and (b) liable for the amount of
P150,000.00 in the civil case. The dispositive portion of decision provides - In Criminal Case No. C-2313 WHEREFORE, the Court hereby finds the accused Cristeta
Chua-Burce guilty beyond reasonable doubt of the crime of
Estafa, punishable under Art. 315, paragraph 1 (b) of the
Revised Penal Code, which imposes a penalty of prision
correccional in its maximum period to prision mayor in its
minimum period but considering that the amount involved
exceeds P22,000.00, the penalty provided for shall be
imposed in its maximum period, adding one year for each
additional P10,000.00, but the total amount not to exceed
twenty years. Esmmis
Applying the Indeterminate Sentence Law, the imposable
penalty shall be one degree lower as minimum of arresto
mayor with a penalty range of One Month and One Day to
Six Months, as minimum to prision mayor in its maximum
period, as maximum, or a penalty of Six years to Twelve
Years. Considering the mitigating circumstance of voluntary
surrender, the court hereby imposes upon the accused to
suffer imprisonment from SIX (6) MONTHS of arresto mayor
in its maximum period, as minimum, to EIGHT (8) YEARS of
prision mayor, in its minimum period, as maximum. The
civil liability shall not be imposed in this case due to a
separate civil action. Esmso
- In Civil Case No. R-3733 WHEREFORE, judgment is hereby rendered in favor of the
plaintiff Metrobank, ordering defendants Cristeta ChuaBurce and Antonio Burce, spouses, to pay Metrobank the
amount of P150,000.00 representing the amount

application for a writ of preliminary injunction should not be granted and

deferring resolution of the application for a temporary restraining order
until after the required comment was filed, which indicated a prima facie
showing of merit; (5) the motion to inhibit Judge Roura precisely because of
his prejudgment that the crime committed was merely homicide; (6) Judge
Rouras subsequent inhibition; (7) various pieces of documentary evidence
submitted by petitioners on 30 April 1996 supporting a charge of murder,
not homicide; and (8) most importantly, the pending appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of
Judge Villon, a cautious attitude as these were unmistakable indicia of the
probability of a miscarriage of justice should arraignment be precipitately

misappropriated with the legal rate of six percent (6%) per

annum from August 15, 1985 until fully paid and to pay the
costs of suit.
SO ORDERED."
Petitioner seasonably appealed her conviction in the criminal case to the
Court of Appeals. Petitioner filed a separate appeal in the civil case.
In a decision dated November 27, 1992,[12] the Court of Appeals affirmed
the trial courts decision in toto. Petitioners Motion for Reconsideration was
likewise denied.[13] Hence, the recourse to this Court. Msesm
Petitioner raises the following issues:[14]
1. IS THE RESULT OF POLYGRAPH EXAMINATION
ADMISSIBLE IN EVIDENCE?
2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL
COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS
ALREADY DENIED ADMISSION IN THE ORDER OF THE
FORMER JUDGE OF THE SAME COURT?
3. DOES PRIMA FACIE PRESUMPTION OF MISAPPROPRIATION
OR CONVERSION EXISTS (sic) AGAINST THE PETITIONER
WHEN THERE WERE OTHER PERSONS WHO HAD DIRECT
AND GREATER ACCESS IN THE CASH-IN-VAULT?
4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON
CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT
BAR?
5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL
WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND
SUPERVISE THE PROSECUTION OF THE CASE? Exsm

held. However, Judge Villon cursorily ignored all this. While it may be true
that he was not bound to await the DOJs resolution of the appeal, as he
had, procedurally speaking, complete control over the case and any
disposition thereof rested on his sound discretion, 275[68] his judicial instinct
should have led him to peruse the documents submitted on 30 April 1996
and to initially determine, for his own enlightenment with serving the ends
of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a
resolution on the appeal within a specified time. Given the totality of

circumstances, Judge Villon should have heeded our statement in

Marcelo276[69] that prudence, if not wisdom, or at least, respect for the
authority of the prosecution agency, dictated that he should have waited
for the resolution of the appeal then pending before the DOJ. All told, Judge
Villon should not have merely acquiesced to the findings of the public
prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of
discretion in rushing the arraignment of the YABUTs on the assailed
information for homicide. Again, the State and the offended parties were
deprived of due process.

In gist, (1) petitioner contends that the trial court erred in taking into
account the results of the polygraph examination as circumstantial
evidence of guilt considering the inherent unreliability of such tests, and
the fact that the previous trial judge who handled the case already ruled
such evidence as inadmissible; (2) petitioner insists that there can be no
presumption of misappropriation when there were other persons who had
access to the cash in vault; and (3) petitioner questions the validity of the
trial of criminal case considering that the pre-trial agreement dispensed
with the intervention of the public prosecutor in a full-blown trial of the
criminal case. Kyle

prosecution of the criminal case from its inception. It was during pre-trial
conference when the parties agreed to adopt their respective evidence in
the civil case to the criminal case. This is allowed under Section 2 (e) of
Rule 118 of the Rules of Court[17] which provides that during pre-trial
conference, the parties shall consider "such other matters as will promote
a fair and expeditious trial." The parties, in compliance with Section 4 of
Rule 118,[18] reduced to writing such agreement. Petitioner, her counsel,
and the public prosecutor signed the agreement. Petitioner is bound by the
pre-trial agreement, and she cannot now belatedly disavow its contents.
[19]

The Office of the Solicitor General, for the State, contends that the guilt of
petitioner has been proven beyond reasonable doubt by the following facts
which were duly established during trial - first, petitioner was the cash
custodian who was directly responsible and accountable for the cash-invault. Second, the other persons who had access to the vault facilities
never used the duplicate keys to open the safety deposit boxes and the
cash safe from where the P100.00 bill denominations were located. In fact,
the duplicate keys were offered in evidence still in their sealed envelopes.
Third, alterations and superimposition on the cash-in-vault summary sheet
were made by petitioner to cover the cash shortage. Lastly, there was a
valid joint trial of the civil and criminal cases.

On the second issue. Petitioner was charged with the crime of estafa under
Article 315 (1) (b) of the Revised Penal Code.[20] In general, the elements
of estafa are: (1) that the accused defrauded another (a) by abuse of
confidence or (b) by means of deceit; and (2) that damage or prejudice
capable of pecuniary estimation is caused to the offended party or third
person.[21] Deceit is not an essential requisite of estafa with abuse of
confidence, since the breach of confidence takes the place of the fraud or
deceit, which is a usual element in the other estafas.[22]

The crucial issues, in our mind, are (1) whether there was a valid trial of
the criminal case, and (2) whether the elements of the crime of estafa
under Article 315 (1) (b) of the Revised Penal Code were duly proven
beyond reasonable doubt. Kycalr
First, petitioner assails the validity of the proceedings in the trial court on
the ground that the public prosecutor did not intervene and present any
evidence during the trial of the criminal case. The records clearly show that
the pre-trial agreement was prepared by petitioner with the conforme of
the public prosecutor. Thereafter, petitioner filed a consolidated
memorandum for both civil and criminal cases. Section 5 of Rule 110[15]
requires that all criminal actions shall be prosecuted under the direction
and control of the public prosecutor. The rationale behind the rule is "to
prevent malicious or unfounded prosecutions by private persons."[16] The
records show that the public prosecutor actively participated in the

The elements of estafa through conversion or misappropriation under Art.

315 (1) (b) of the Revised Penal Code are:[23]
(1) that personal property is received in trust, on
commission, for administration or under any other
circumstance involving the duty to make delivery of or to
return the same, even though the obligation is guaranteed
by a bond;
(2) that there is conversion or diversion of such property by
the person who has so received it or a denial on his part
that he received it;
(3) that such conversion, diversion or denial is to the injury
of another and
(4) that there be demand for the return of the property.

Up to the level then of Judge Villon, two pillars of the criminal justice
system failed in this case to function in a manner consistent with the
principle of accountability inherent in the public trust character of a public
office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu
need be reminded that it is in the public interest that every crime should
be punished277[70] and judges and prosecutors play a crucial role in this
regard for theirs is the delicate duty to see justice done, i.e., not to allow
the guilty to escape nor the innocent to suffer.278[71]
Prosecutors must never forget that, in the language of Suarez v. Platon,279
[72] they are the representatives not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all; and whose interest, therefore,

in a criminal prosecution is not that it shall win every case but that justice
be done. As such, they are in a peculiar and every definite sense the
servants of the law, whose two-fold aim is that guilt shall not escape or
innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a
crime, and are expected to prosecute the public action with such zeal and
vigor as if they were the ones personally aggrieved, but at all times
cautious that they refrain from improper methods designed to secure a
wrongful conviction.280[73] With them lies the duty to lay before the court
the pertinent facts at the judges disposal with strict attention to punctilios,
thereby clarifying contradictions and sealing all gaps in the evidence, with

Have the foregoing elements been met in the case at bar? We find the first
element absent. When the money, goods, or any other personal property is
received by the offender from the offended party (1) in trust or (2) on
commission or (3) for administration, the offender acquires both material
or physical possession and juridical possession of the thing received.[24]
Juridical possession means a possession which gives the transferee a right
over the thing which the transferee may set up even against the owner.
[25] In this case, petitioner was a cash custodian who was primarily
responsible for the cash-in-vault. Her possession of the cash belonging to
the bank is akin to that of a bank teller, both being mere bank employees.
Calrky

selling for his principal, or their proceeds, is not in point. In

said case, the receiving teller of a bank who
misappropriated money received by him for the bank, was
held guilty of qualified theft on the theory that the
possession of the teller is the possession of the bank. There
is an essential distinction between the possession by a
receiving teller of funds received from third persons paid to
the bank, and an agent who receives the proceeds of sales
of merchandise delivered to him in agency by his principal.
In the former case, payment by third persons to the teller
is payment to the bank itself; the teller is a mere custodian
or keeper of the funds received, and has no independent
right or title to retain or possess the same as against the
bank. An agent, on the other hand, can even assert, as
against his own principal, an independent, autonomous,
right to retain money or goods received in consequence of
the agency; as when the principal fails to reimburse him for
advances he has made, and indemnify him for damages
suffered without his fault (Article 1915, [N]ew Civil Code;
Article 1730, old)." Mesm

In People v. Locson,[26] the receiving teller of a bank misappropriated the

money received by him for the bank. He was found liable for qualified theft
on the theory that the possession of the teller is the possession of the
bank. We explained in Locson that "The money was in the possession of the defendant as
receiving teller of the bank, and the possession of the
defendant was the possession of the bank. When the
defendant, with grave abuse of confidence, removed the
money and appropriated it to his own use without the
consent of the bank, there was the taking or
apoderamiento contemplated in the definition of the crime
of theft."[27]
In the subsequent case of Guzman v. Court of Appeals,[28] a travelling
sales agent misappropriated or failed to return to his principal the proceeds
of things or goods he was commissioned or authorized to sell. He was,
however, found liable for estafa under Article 315 (1) (b) of the Revised
Penal Code, and not qualified theft. In the Guzman case, we explained the
distinction between possession of a bank teller and an agent for purposes
of determining criminal liability "The case cited by the Court of Appeals (People vs. Locson,
57 Phil. 325), in support of its theory that appellant only
had the material possession of the merchandise he was

Petitioner herein being a mere cash custodian had no juridical possession

over the missing funds. Hence, the element of juridical possession being
absent, petitioner cannot be convicted of the crime of estafa under Article
315, No. 1 (b) of the Revised Penal Code.[29]
WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED
of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.
Petitioner is ordered RELEASED from custody unless she is being held for
some other lawful cause. No costs. Slx
SO ORDERED.
27. Bayas v. Sandiganbayan
G.R. Nos. 143689-91. November 12, 2002

a view to erasing all doubt from the courts mind as to the accuseds
innocence or guilt.
The judge, on the other hand, should always be imbued with a high sense
of duty and responsibility in the discharge of his obligation to promptly and
properly administer justice.281[74] He must view himself as a priest, for the
administration of justice is akin to a religious crusade. Thus, exerting the
same devotion as a priest in the performance of the most sacred
ceremonies of religious liturgy, the judge must render service with
impartiality commensurate with the public trust and confidence reposed in

him.282[75] Although the determination of a criminal case before a judge

lies within his exclusive jurisdiction and competence, 283[76] his discretion is
not unfettered, but rather must be exercised within reasonable confines. 284
[77] The judges action must not impair the substantial rights of the
accused, nor the right of the State and offended party to due process of
law.285[78]
Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended
parties which have been wronged must be equally considered. Verily, a
verdict of conviction is not necessarily a denial of justice; and an acquittal

May pretrial stipulations duly signed by the accused and their counsel be
unilaterally withdrawn before the commencement of the trial? To this main
issue, the answer is No. Stipulations freely and voluntarily made are valid
and binding and will not be set aside unless for good cause. The Rules of
Court mandate parties in a criminal case to stipulate facts. Once they have
validly and voluntarily signed the stipulations, the accused and their
counsel may not set these aside on the mere pretext that they may be
placed at a disadvantage during the trial.

December 10, 1999, they could expeditiously pass upon all other matters
that still remained to be resolved.[8]

Statement of the Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court,
praying for the setting aside of the April 28, 2000[1] and the May 26,
2000[2] Orders of the Sandiganbayan[3] (SBN) in Criminal Case Nos.
25280-82. The first Order denied petitioners Motion to Withdraw the Joint
Stipulation of Facts and Documents,[4] while the second denied
reconsideration.[5]
The Facts
On May 6, 1999, three Informations[6] were filed before the SBN, charging
Petitioners Ernesto T. Matuday and Sixto M. Bayas with violation of Section
3(e) of RA No. 3019, as amended; and two counts of malversation through
falsification penalized under Article 217, in relation to Article 171, of the
Revised Penal Code. They were charged in their capacities as municipal
mayor and municipal treasurer, respectively, of the Municipality of
Kabayan, Province of Benguet.
During their arraignment on September 21, 1999, petitioners pled not
guilty. The pretrial conference scheduled on October 15, 1999 was
cancelled and reset to November 5, 1999, because the counsel for the
accused, Atty. Jose M. Molintas, was not prepared.[7] On November 5,
1999, the pretrial was again cancelled because of the absence of Atty.
Molintas, who was allegedly suffering from the flu. Nonetheless, the
Sandiganbayan urged the accused to discuss with their counsel the
stipulation of facts drafted by Ombudsman Prosecutor II Evelyn T. Lucero.
They were asked to do so, so that at the resumption of the pretrial on

On December 10, 1999, the parties submitted a Joint Stipulation of Facts

and Documents, which had been duly signed by the two accused (herein
petitioners), Atty. Molintas and Prosecutor Lucero. It is reproduced
hereunder:
JOINT STIPULATION OF FACTS AND DOCUMENTS
COME NOW the accused, counsel for the accused and the Prosecution, by
and through the undersigned Special Prosecution Officer, Office of the
Special Prosecutor, unto the Honorable Court, most respectfully aver: THAT
1. After a conference the Defense and the Prosecution admitted the
following facts as follows:
a. Accused Ernesto Matuday was then the Municipal Mayor and accused
Sixto Bayas was and [is] still the Municipal Treasurer and designated
Municipal Accountant both of Kabayan, Benguet during the period relevant
to this case;
b. Both of the accused admit the disbursement of the amount of
P510,000.00 and P55,000.00.
2. The Prosecution and Defense jointly admit the following documents as
their respective documentary exhibits x x x ([with] reservation to mark
additional exhibits during the trial of the case) as follows:
For the
Prosecution Common ExhibitsExhibits for the
DefenseDescriptionA1COA Report dated February 29, 1996B2COA
Memorandum Dated September 25, 1996C3Page of journal entry of the
Office of the Municipal AccountantD4Resolution No. 138 of the
Sangguniang Bayan of the Municipality of Kabayan Benguet carried on

is not necessarily a triumph of justice, for, to the society offended and the
party wronged, it could also mean injustice. 286[79] Justice then must be
rendered even-handedly to both the accused, on one hand, and the State
and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution
and Judges Roura and Villon was gross, grave and palpable, denying the
State and the offended parties their day in court, or in a constitutional
sense, due process. As to said judges, such amounted to lack or excess of
jurisdiction, or that their court was ousted of the jurisdiction in respect
thereto, thereby nullifying as having been done without jurisdiction, the
denial of the motion to defer further hearings, the denial of the motion to
reconsider such denial, the arraignment of the YABUTs and their plea of not
guilty.
August 15, 1996E5Transcript of the [S]tenographic Notes taken during
the closed door session of the Sangguniang Bayan[,] Kabayan, Benguet
on August 15, 1996 at 1:50 P.M.F6Result of the Statement of
Investigation conducted On March 24, 1997For Criminal Cases Nos.
25280-25281 G7Undated disbursement Voucher No. 401-9505186 For
the payment of Mobilization fee for the various Projects at Kabayan,
Benguet For P510,000.00H8Check No. 60915S-1 for P510,000.00 dated
May 4, 1995 signed by both Accused Mayor Matuday and Treasurer
BayasH-18-aDorsal portion of Check No. 60915 S-1H-1-a8-a-1Signature
of accused Mayor Matuday at the Dorsal portion of Check No. 60915- S1Criminal Cases Nos. 25282-25280 IaCheck No. 609177 for P55,000.00
dated June 28, 1995 signed by Mayor Matuday and Treasurer BayasI-19aDorsal portion of Check No. 609177I-1-a9-a-1Signature of Yolanda
MillanesI-1-b 9-a-2Signature of Mayor MatudayJ10Undated
Disbursement Voucher for P55,000.003. The Defense shall present at
least four witness while the Prosecution opts not to present any witness
considering that Defense admitted all the documentary evidence of the
Prosecution.
Quezon City, December 10, 1999.
(signed)
ATTY. JOSE M. MOLINTAS
Counsel for Accused

(signed)
ATTY. EVELYN TAGUBA LUCERO
Ombudsman Prosecutor II

(signed)
SIXTO BAYAS
Accused

(signed)
ERNESTO MATUDAY
Accused[9]

On January 14, 2000, the pretrial conference was again scuttled due to the
absence of Atty. Molintas. The hearing was rescheduled for February 14,
2000. However, on February 7, 2000, he moved to withdraw as counsel for
the accused. His motion was granted by the anti-graft court in an Order
dated February 14, 2000. In the same Order, the pretrial was rescheduled
for March 31, 2000, to give the accused ample time to employ a new
counsel.

These lapses by both the judges and prosecutors concerned cannot be

taken lightly. We must remedy the situation before the onset of any
irreversible effects. We thus have no other recourse, for as Chief Justice
Claudio Teehankee pronounced in Galman v. Sandiganbayan:287[80]
The Supreme Court cannot permit such a sham trial and verdict
and travesty of justice to stand unrectified. The courts of the land
under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as
mere tools of injustice, deception and duplicity to subvert and
suppress the truth, instead of repositories of judicial power

On April 26, 2000, the accused, represented by their new counsel, Atty.
Cecilia M. Cinco, moved to withdraw the Joint Stipulation of Facts and
Documents. Specifically, they sought to withdraw, first, Stipulation 1(b)
which states that Both the accused admit the disbursement of the amount
of P510,000.00 and P55,000.00; and second, Exhibits 1 to 8-a. They
invoked their constitutional right to be presumed innocent until proven
guilty.
Ruling of the Sandiganbayan
The Sandiganbayan justified its denial of petitioners Motion to Withdraw
Joint Stipulation of Facts and Documents in this wise:
x x x. [For] the fact that there [was] express statement from Atty. Rogelio
A. Cortes this morning that neither fraud nor any other mistake of a serious
character vitiated the consent of the parties when they affixed their
conformity to the stipulations of facts, the reason put forth by the accused
or movants counsel at this time, is that if these stipulations were to
remain, then the accused might as well not present any evidence on the
entire accusation against him as this will already be supported by the
evidence on record. While the court, indeed, sees this as a possibility, that,
by itself, is not a ground for withdrawing any stipulation freely and
knowingly made and given.[10]
In the second assailed Order, the anti-graft court denied reconsideration
and reiterated its previous stand, as follows:
x x x. The fact that the stipulation of facts leaves less or no room for the
accused to defend himself is not a ground for setting aside a pre-trial
order; in fact, an accused can plead guilty if he so desires or make
admissions as he deems appropriate and truthful, even if in the mind of the
new counsel, it gave very few opportunities to present contesting
evidence.[11]
It then added that the pre-trial order shall remain. The admissions therein
contained can be used in this case and for whatever purpose the Rules on
Evidence will allow.

whose judges are sworn and committed to render impartial

justice to all alike who seek the enforcement or protection of a
right or the prevention or redress of a wrong, without fear or
favor and removed from the pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that
theirs is not a mere ministerial task to process each accused in and out of
prison, but a noble duty to preserve our democratic society under a rule of
law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider
its 7 June 1996 resolution, holding that murder was committed and

directing the Provincial Prosecutor to accordingly amend the information,

solely on the basis of the information that the YABUTs had already been
arraigned. In so doing, the DOJ relinquished its power of control and
supervision over the Provincial Prosecutor and the Assistant Provincial
Prosecutors of Pampanga; and meekly surrendered to the latters
inappropriate conduct or even hostile attitude, which amounted to neglect
of duty or conduct prejudicial to the best interest of the service, as well as
to the undue haste of Judge Roura and Villon in respect of the arraignment
of the YABUTs. The sins of omission or commission of said prosecutors and
judges resulted, in light of the finding of the DOJ that the crime committed
was murder, in unwarranted benefit to the YABUTs and gross prejudice to
the State and the offended parties. The DOJ should have courageously

Hence, this Petition.[12]

The Issues
In their Memorandum, petitioners raise the following issues for the Courts
consideration:
I
Whether or not respondent Sandiganbayan committed grave abuse of
discretion amounting to lack or excess of jurisdiction in denying petitioners
Motion to Withdraw the Joint Stipulation of Facts and Documents,
considering the relevant facts and applicable laws and rules.
II
Whether or not the denial by respondent Sandiganbayan of the withdrawal
of the Joint Stipulation of Facts and Documents would result in manifest
injustice and impairment of the constitutional rights of the petitioners.
III
Whether or not there is a law or rule which would bar petitioners from
withdrawing their Joint Stipulation of Facts and Documents from the
respondent Sandiganbayan.[13]
Plainly put, the issue raised by petitioners is whether they may be allowed
to withdraw unilaterally from the Joint Stipulation of Facts and Documents.
The Courts Ruling
The Petition has no merit.
Main Issue:
Withdrawal from the Joint Stipulation

Petitioners contend that pretrial stipulations may be unilaterally withdrawn

by the accused because allegedly, they are not binding until after the trial
court has issued a pretrial order approving them. We are not persuaded.
Petitioners fail to appreciate the indispensable role of stipulations in the
speedy disposition of cases. The new Rules on Criminal Procedure mandate
parties to agree on matters of facts, issues and evidence. Such stipulations
are greatly favored because they simplify, shorten or settle litigations in a
faster and more convenient manner. They save costs, time and resources
of the parties and, at the same time, help unclog court dockets.
Once validly entered into, stipulations will not be set aside unless for good
cause.[14] They should be enforced especially when they are not false,
unreasonable or against good morals and sound public policy.[15] When
made before the court, they are conclusive. And the party who validly
made them can be relieved therefrom only upon a showing of collusion,
duress, fraud, misrepresentation as to facts, and undue influence;[16] or
upon a showing of sufficient cause on such terms as will serve justice in a
particular case.[17] Moreover, the power to relieve a party from a
stipulation validly made lies in the courts sound discretion which, unless
exercised with grave abuse, will not be disturbed on appeal.[18]
Validity of the Joint Stipulations
While petitioners wish to be relieved from the stipulations, they, however,
do not allege that these were false or misleading or were obtained through
force or fraud. On the contrary, they do not dispute the finding of the antigraft court that no fraud or serious mistake vitiated their and their counsels
consent to the signing of these stipulations. They even admitted, in answer
to its query, that they had freely given their consent.
Nonetheless, in a desperate bid to strengthen their position, petitioners lay
the blame on the alleged incompetence of their former counsel. They claim
that, in agreeing to the Joint Stipulation, he failed to consider their legal
interests.

exercised its power of control by taking bolder steps to rectify the shocking
mistakes so far committed and, in the final analysis, to prevent further
injustice and fully serve the ends of justice. The DOJ could have, even if
belatedly, joined cause with petitioners to set aside arraignment. Further,
in the exercise of its disciplinary powers over its personnel, the DOJ could
have directed the public prosecutors concerned to show cause why no
disciplinary action should be taken against them for neglect of duty or
conduct prejudicial to the best interest of the service in not, inter alia, even
asking the trial court to defer arraignment in view of the pendency of the
appeal, informing the DOJ, from time to time, of the status of the case,

and, insofar as prosecutor Datu was concerned, in disallowing the private

prosecutor from further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the
case below to determine the regularity of arraignment, considering that
the appeal was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio reconsideration of the 7
June 1996 resolution of the DOJ was attended with grave abuse of
discretion.
It is settled that when the State is deprived of due process in a criminal
case by reason of grave abuse of discretion on the part of the trial court,

To be a ground for relief against a stipulation, a mistake must be one of

fact -- not, as in this case, a mere lack of full knowledge of fact because of
failure to exercise due diligence in ascertaining it.[19]

been licensed or authorized by the Philippine Overseas Employment

Agency to recruit workers for overseas jobs.

Moreover, it is hornbook doctrine that parties are bound by the action or

the inaction of their counsel. To all intents and purposes, the acts of a
lawyer in the defense or the prosecution of a case are the acts of the
client. The rule extends even to the mistakes and the simple negligence
committed by the counsel.[20]

There is nothing irregular or unlawful in stipulating facts in criminal cases.

The policy encouraging it is consistent with the doctrine of waiver, which
recognizes that x x x everyone has a right to waive and agree to waive the
advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right and without detriment to
the community at large.[27]

Presumption of Innocence
In their effort to withdraw from the Joint Stipulation, petitioners argue that
the two questioned items impair their constitutional right to be presumed
innocent, violate their right against self-incrimination, and deny them due
process in the sense that the trial would be a useless formality, an idle
ceremony.[21]
Other than by generalized argumentation, petitioners have not convinced
us that the aforementioned constitutional rights would be violated. True,
the old Rules of Court frowned upon stipulations of facts in criminal cases
because of a perceived danger -- that by the mere expedient of stipulating
with the defense counsel the elements of the crime charged, the
prosecution would relieve itself of its duty to prove the guilt of the accused
beyond reasonable doubt.[22] However, the Rules were amended in 1985,
precisely to enable parties to stipulate facts. The amendment was carried
over to the 2000 Revised Rules on Criminal Procedure. [23]
The acceptability of stipulating facts has long been established in our
jurisprudence. In a case involving illegal possession of firearms,[24] the
prosecution and the defense stipulated the fact that the accused had been
found in possession of a gun without the required permit or license. In
People v. Bocar,[25] the Court considered as valid the admission by the
accused of the existence of certain affidavits and exhibits, which the
prosecution had presented to dispense with oral testimonies on the matter
contained therein. In People v. Hernandez,[26] which involved illegal
recruitment, the Court upheld the joint stipulation that the accused had not

In the present case, the Joint Stipulation made by the prosecution and
petitioners was a waiver of the right to present evidence on the facts and
the documents freely admitted by them. There could have been no
impairment of petitioners right to be presumed innocent, right to due
process or right against self-incrimination because the waiver was
voluntary, made with the assistance of counsel and is sanctioned by the
Rules on Criminal Procedure.
Necessity of a Pretrial Order
Petitioners further contend that the law on pretrial requires the issuance of
a pretrial order to make pretrial stipulations binding. We do not agree.
Section 2 of Rule 118 of the Rules of Court states:
Sec. 2. Pre-trial agreement. -- All agreements or admissions made or
entered [into] during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters referred to in
section 1 of this Rule shall be approved by the court.[28]
Based on the foregoing provision, for a pretrial agreement to be binding on
the accused, it must satisfy the following conditions: (1) the agreement or
admission must be in writing, and (2) it must be signed by both the
accused and their counsel. The courts approval, mentioned in the last

the acquittal of the accused 288[81] or the dismissal of the case289[82] is

void, hence double jeopardy cannot be invoked by the accused. If this is so
in those cases, so must it be where the arraignment and plea of not guilty
are void, as in this case as above discussed.
WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo
Roura of 26 March 1996 denying the Motion to Defer Proceedings and of 12
April 1996 denying the motion to reconsider the denial of said Motion to
Defer Proceedings, and the orders of respondent Judge Sesinando Villon of
3 May 1996 resetting the arraignment to 20 May 1998 and of 15 October
1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 961667(M) are declared VOID and SET ASIDE. The arraignment of private

respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and
their separate pleas of not guilty are likewise declared VOID and SET
ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1
July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply
with the order (letter) of the Secretary of Justice of 7 June 1996 by
forthwith filing with the trial court the amended information for murder.
Thereafter the trial court shall proceed in said case with all reasonable
dispatch.
No pronouncement as to costs.
SO ORDERED.

sentence of the above-quoted Section, is not needed to make the

stipulations binding on the parties. Such approval is necessary merely to
emphasize the supervision by the court over the case and to enable it to
control the flow of the proceedings.

Pretrial is meant to simplify, if not fully dispose of, the case at its early
stage. It is therefore important that the parties take active roles in the
proceedings. The Rules on Criminal Procedure provide that if the counsel
for the accused and/or the prosecutor do not appear at the pretrial and do
not offer an acceptable excuse for their lack of cooperation, the court may
impose proper sanctions or penalties.[32]

Once the stipulations are reduced into writing and signed by the parties
and their counsels, they become binding on the parties who made them.
They become judicial admissions of the fact or facts stipulated.[29] Even if
placed at a disadvantageous position, a party may not be allowed to
rescind them unilaterally; it must assume the consequences of the
disadvantage.[30] If the accused are allowed to plead guilty under
appropriate circumstances, by parity of reasoning, they should likewise be
allowed to enter into a fair and true pretrial agreement under appropriate
circumstances.

Verily, during pretrial, attorneys must make a full disclosure of their

positions as to what the real issues of the trial would be. They should not
be allowed to embarrass or inconvenience the court or injure the opposing
litigant by their careless preparation for a case; or by their failure to raise
relevant issues at the outset of a trial; or, as in this case, by their unilateral
withdrawal of valid stipulations that they signed and that their clients fully
assented to.[33]

There is another cogent reason why the Joint Stipulation should be binding.
It must be noted that the SBN could not fully act on the matter, not
through its fault, but because of the continued absence of petitioners
counsel. Verily, the records reveal that at the intended completion of the
pretrial on January 14, 2000, it could not pass upon the Joint Stipulation
because he was absent. Also, the pretrial conference had to be rescheduled six times, just to ensure the attendance of the parties and their
counsels and to prepare them for the conference.

The records reveal that the parties were the ones who volunteered to make
the Joint Stipulation of the facts of the case. Thus, the anti-graft court can
rightfully expect that both parties arrived upon it with fairness and honesty.
Therefore, petitioners may not assail it on the mere ground that it would
allegedly put the accused at a disadvantage. Furthermore, a new counsel
cannot justify such withdrawal by the simple expedient of passing the
blame on the previous counsel, who had supposedly not sufficiently
discharged his duty to the client.

Therefore, under these circumstances, the SBN cannot be faulted for its
failure to approve expressly the stipulations. It had the opportunity to rule
on the matter only when the accused, through their new counsel, Atty.
Cecilia L. Cinco, moved to withdraw their stipulations. In its first assailed
Order, the SBN upheld their validity, thereby effectively approving the
submitted Joint Stipulation of Facts and Documents. The assent of the court
to agreements of the parties, assisted by their counsel, is assumed until
they indicate a dissent.[31] Thus, the stipulations freely made by the latter
are to be respected as their true will and intention with regard to the facts
and evidence of the case, especially if the anti-graft court has not struck
them down for being violative of the law.

If we allow parties to renege on stipulations they validly entered into

during the course of pretrial proceedings, there would be no end to
litigations.[34] Lawyers can wiggle in and out of agreements the moment
they are disadvantaged. Lawyers should remember, however, that they are
not merely representatives of the parties but, first and foremost, officers of
the court. As such, one of their duties -- assisting in the speedy and
efficient administration of justice[35] -- is more significant than that of
acquitting their client,[36] rightly or wrongly.

Role of Lawyers in Pretrials

We stress that candor in all dealings is the very essence of membership in

the legal profession. Lawyers are obliged to observe rules of procedure in
good faith, not to misuse them to defeat the ends of justice.[37] They
should realize that the earlier they dispose of their cases, especially at the

16. SSGT. JOSE M. PACOY vs. HON. AFABLE E. CAJIGAL, PEOPLE OF

THE PHILIPPINES and OLYMPIO L. ESCUETA
GR#157472, 28 Sept. 2007

On July 4, 2002, an Information for Homicide was filed in the RTC

against petitioner committed as follows:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court

filed by SSGT. Jose M. Pacoy 290[1] (petitioner) seeking to annul and set
aside the Orders dated October 25, 2002 291[2] and December 18,
2002292[3] issued by Presiding Judge Afable E. Cajigal (respondent judge) of
the Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case
No. 02-42.

pretrial stage, the better for them. In doing so, they can now concentrate
and work more efficiently on their other cases.[38]
Grave Abuse of Discretion
As already discussed, the power to relieve a party from a stipulation validly
made lies at the sound discretion of the court. Unless exercised with grave
abuse, this discretion will not be disturbed on appeal.[39] There is grave
abuse of discretion where a power is exercised in an arbitrary, capricious,
whimsical or despotic manner by reason of passion or personal hostility, so
patent and so gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in contemplation of law.[40]
Petitioners in this case failed to prove that the Sandiganbayan committed
grave abuse of discretion in disallowing them to withdraw the stipulations
that they had freely and voluntarily entered into. Also, no bad faith or
malice was or can be imputed to the anti-graft court for failing to
immediately act upon the Joint Stipulation. The delay was due, not to its
deliberate evasion of its duty, but to the continued absence of petitioners
counsel.
WHEREFORE, the Petition is DENIED, and the assailed Orders AFFIRMED.
Costs against petitioners.
SO ORDERED.
28. Pascua vs. Court of Appeals
G.R. No. 140243. December 14, 2000

That on or about the 18 th day of March 2002, in the

Municipality of Mayantoc, Province of Tarlac, Philippines and
within the jurisdiction of this Honorable Court, the said
accused with intent to kill, did then and there wilfully,
unlawfully and feloniously shot his commanding officer 2Lt.
Frederick Esquita with his armalite rifle hitting and
sustaining upon 2Lt. Frederick Esquita multiple gunshot
wounds on his body which caused his instantaneous death.
reconsideration. The Court of Appeals dismissed the petition for certiorari
under Rule 65 filed by petitioner which questioned the legality of the
orders dated June 22, 1998 and October 8, 1998 issued by Branch 153 of
the Regional Trial Court of the National Capital Judicial Region stationed in
Pasig City.
The antecedent facts may be briefly chronicled as follows:
Petitioner was charged under 26 Informations for violation of Batas
Pambansa Blg. 22. The Informations alleged that in 1989, petitioner issued
26 Philippine National Bank (PNB) checks to apply on account or for value
in favor of Lucita Lopez with the knowledge that at the time of issue,
petitioner did not have sufficient funds in or credit with the drawee bank
for the payment of the face value of the checks in full. Upon presentment
of the subject checks, they were dishonored by the drawee bank for having
been drawn against insufficient funds and against a closed account.
After trial, a judgment of conviction was rendered on February 17, 1998,
disposing:
WHEREFORE, the Court finds the accused, MARILYN C. PASCUA, GUILTY
beyond reasonable doubt of twenty six (26) counts of Violation of Batas
Pambansa Bilang 22, and hereby sentences her to suffer ONE (1) YEAR
imprisonment in each case and to pay the private complainant, LUCITA
LOPEZ in the sum of SIX HUNDRED FIVE THOUSAND PESOS (P605,000.00),
Philippine Currency without subsidiary imprisonment in case of insolvency.
SO ORDERED.

What constitutes a valid promulgation in absentia? In case of such

promulgation, when does the accused's right to appeal accrue?

Rollo.)

(p. 41,

Before us is a petition that calls for a ruling on the aforestated issues,

particularly seeking the reversal of the decision of the Court of Appeals
dated June 17, 1999 and its order dated September 28, 1999 denying

The judgment was initially scheduled for promulgation on March 31, 1998.
However, considering that the presiding judge was on leave, the
promulgation was reset to May 5, 1998.

With the aggravating circumstance of killing, 2Lt.

Frederick Esquita in disregard of his rank.293[4]
On September 12, 2002, upon arraignment, petitioner, duly
assisted by counsel de parte, pleaded not guilty to the charge of Homicide.
Respondent Judge set the pre-trial conference and trial on October 8,
2002.294[5]

When the case was called on May 5, 1998, Public Prosecutor Rogelio C.
Sescon and defense counsel Atty. Marcelino Arias appeared and manifested
their readiness for the promulgation of judgment, although the latter
intimated that petitioner would be late. Hence, the case was set for second
call. After the lapse of two hours, petitioner still had not appeared. The trial
court again asked the public prosecutor and the defense counsel if they
were ready for the promulgation of judgment. Both responded in the
affirmative. The dispositive portion of the decision was thus read in open
court. Afterwards, the public prosecutor, the defense counsel, and private
complainant Lucita Lopez, acknowledged receipt of their respective copies
of the subject decision by signing at the back of the original copy of the
decision on file with the record of the case.
Forthwith, the public prosecutor moved for the forfeiture of the cash bond
posted by petitioner as well as for the issuance of a warrant for her arrest.
Acting on the motion, the trial court issued, also on May 5, 1998, the
following order:
When this case was called for the promulgation of judgment, the accused
failed to appear despite due notice. Upon motion of the Public Prosecutor,
that the cash bond posted for her provisional liberty be forfeited in favor of
the government, being well-taken, the same is hereby granted. Likewise,
let a warrant of arrest be issued against her.
SO ORDERED.
(p. 42,
Rollo.)
No motion for reconsideration or notice of appeal was filed by petitioner
within 15 days from May 5, 1998.
On June 8, 1998, a notice of change of address was filed by petitioner with
the trial court, sent through a private messengerial firm. On the same date,
without terminating the services of her counsel of record, Atty. Marcelino
Arias, the one who received the copy of the judgment of conviction,
petitioner, assisted by another counsel, Atty. Rolando Bernardo, filed an

However, on the same day and after the arraignment, the

respondent judge issued another Order, 295[6] likewise dated September 12,
2002, directing the trial prosecutor to correct and amend the Information
to Murder in view of the aggravating circumstance of disregard of rank
alleged in the Information which public respondent registered as having
qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by
crossing out the word Homicide and instead wrote the word Murder in the
caption and in the opening paragraph of the Information. The accusatory
portion remained exactly the same as that of the original Information for

urgent omnibus motion to lift warrant of arrest and confiscation of bail

bond, as well as to set anew the promulgation of the subject decision on
the following allegations: that petitioner failed to appear before the trial
court on the scheduled date of promulgation (May 5, 1998) because she
failed to get the notices sent to her former address at No. 21 La Felonila
St., Quezon City; that she had no intention of evading the processes of the
trial court; that in February 1998, she transferred residence to Olongapo
City by reason of an ejectment case filed against her by her landlord
concerning her former residence in Quezon City; and that due to the abrupt
dislocation of their family life as a result of the transfer of their residence
to Olongapo City, there were important matters that she overlooked such
as the filing of a notice of change of address to inform the trial court of her
new place of residence.
The motion was set for hearing on June 11, 1998 but on said date, neither
petitioner nor assisting counsel was present. On June 22, 1998, petitioner
filed a notice of appeal. The Office of the City Prosecutor of Pasig filed its
comment on the motion for reconsideration arguing that: the promulgation
of the subject decision was made by the trial court on May 5, 1998 in the
presence of the accused's (herein petitioner's) counsel; that the subject
decision is already final and executory, there having been no appeal
interposed by the accused within the reglementary period; that there is no
such thing as repromulgation of a decision; that before the accused could
ask for relief from the trial court, she, being a convict, should submit
herself first to the lawful order thereof, that is, to surrender to the police
authorities.
On June 22, 1998, the trial court issued an order denying petitioner's
urgent omnibus motion and notice of appeal for lack of merit, mentioning
that its February 17, 1998 decision had already become final and
executory. Petitioner moved for reconsideration, this time assisted by
another lawyer, Atty. Romulo San Juan. The motion was set for hearing on
July 8, 1998 but on said hearing date, neither petitioner nor Atty. San Juan
appeared. Instead, Atty. Porfirio Bautista appeared as collaborating counsel
of Atty. San Juan. When asked if he knew petitioner's counsel of record,
Atty. Bautista could not answer.

Homicide, with the correction of the spelling of the victims name from
Escuita to Escueta.296[7]
On October 8, 2002, the date scheduled for pre-trial conference
and trial, petitioner was to be re-arraigned for the crime of Murder. Counsel
for petitioner objected on the ground that the latter would be placed in
double jeopardy, considering that his Homicide case had been terminated
without his express consent, resulting in the dismissal of the case. As
petitioner refused to enter his plea on the amended Information for
Murder, the public respondent entered for him a plea of not guilty. 297[8]
On October 28, 2002, petitioner filed a Motion to Quash with
Motion to Suspend Proceedings Pending the Resolution of the Instant
On July 17, 1998, Attys. San Juan and Bautista as counsel for petitioner,
filed a motion for inhibition of the presiding judge. The motion was set for
hearing on July 28, 1998. Once again, petitioner failed to appear although
Atty. Bautista did. On October 8, 1998, the trial court denied petitioner's
motion for reconsideration and inhibition.
On December 14, 1998, petitioner filed a petition for certiorari under Rule
65 of the 1997 Rules of Civil Procedure with the Court of Appeals praying
for the nullification of the June 22, 1998 and October 8, 1998 orders of the
trial court. At first, the Court of Appeals issued a resolution dated
December 29, 1998 dismissing the petition for certiorari, for failure to
contain an explanation why the respondent therein was not personally
served a copy of the petition. However, upon reconsideration, said petition
was reinstated.
After an exchange of pleadings, on June 17, 1999, the Court of Appeals
issued the decision assailed herein. Petitioner moved for reconsideration,
but to no avail.
Hence, the instant petition on the basis of the following grounds: (1) that
petitioner was not properly notified of the date of promulgation and
therefore, there was no valid promulgation; hence petitioner's period to
appeal has not commenced; (2) that the promulgation in absentia of the
judgment against petitioner was not made in the manner set out in the last
paragraph of Section 6, Rule 120 of the 1985 Rules on Criminal Procedure
which then provided that promulgation in absentia shall consist in the
recording of the judgment in the criminal docket and a copy thereof shall
be served upon the accused or counsel; (3) that the decision of the trial
court is contrary to applicable laws and that it disregarded factual evidence
and instead resorted to make a conclusion based on conjectures,
presumptions, and misapprehension of facts.
The resolution of the instant petition is dependent on the proper
interpretation of Section 6, Rule 120 of the 1985 Rules on Criminal
Procedure, which provides:

Motion298[9] on the ground of double jeopardy. Petitioner alleged that in the

Information for Homicide, he was validly indicted and arraigned before a
competent court, and the case was terminated without his express
consent; that when the case for Homicide was terminated without his
express consent, the subsequent filing of the Information for Murder in lieu
of Homicide placed him in double jeopardy.
In an Order299[10] dated October 25, 2002, 300[11] the respondent
judge denied the Motion to Quash. He ruled that a claim of former acquittal
or conviction does not constitute double jeopardy and cannot be sustained

Section 6. Promulgation of judgment --The judgment is promulgated by

reading the same in the presence of the accused and any judge of the
court in which it was rendered. However, if the conviction is for a light
offense, the judgment may be pronounced in the presence of his counsel
or representative. When the judge is absent or outside of the province or
city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the
judgment may be promulgated by the executive judge of the Regional Trial
Court having jurisdiction over the place of confinement or detention upon
request of the court that rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice of appeal and to
approve the bail bond pending appeal.
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. In case the accused fails to appear
thereat the promulgation shall consist in the recording of the judgment in
the criminal docket and a copy thereof shall be served upon the accused
or counsel. If the judgment is for conviction and the accuseds failure to
appear was without justifiable cause, the court shall further order the
arrest of the accused, who may appeal within fifteen (15) days from notice
of the decision to him or his counsel. (Italics supplied)
Incidentally, Section 6, Rule 120 of the Revised Rules of Criminal Procedure
which took effect December 1, 2000 adds more requirements but retains
the essence of the former Section 6, to wit:
Section 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. However, if the conviction is for a light offense the
judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city,
the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city the
judgment may be promulgated by the executive judge of the Regional Trial

unless judgment was rendered acquitting or convicting the defendant in

the former prosecution; that petitioner was never acquitted or convicted of
Homicide, since the Information for Homicide was merely corrected/or
amended before trial commenced and did not terminate the same; that the
Information for Homicide was patently insufficient in substance, so no valid
proceedings could be taken thereon; and that with the allegation of
aggravating circumstance of disregard of rank, the crime of Homicide is
qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for
Reconsideration. In his Motion to Inhibit, he alleged that the respondent
judge exercised jurisdiction in an arbitrary, capricious and partial manner

in mandating the amendment of the charge from Homicide to Murder in

disregard of the provisions of the law and existing jurisprudence.

Court having jurisdiction over the place of confinement or detention upon

request of the court which rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice of appeal and to
approve the bail bond pending appeal; provided, that if the decision of the
trial court convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed and
resolved by the appellate court.

O.G. 5825 [1956]).

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. If the accused was tried in absentia
because he jumped bail or escaped from prison, the notice to him shall be
served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.
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. (Italics supplied)
Promulgation of judgment is an official proclamation or announcement of
the decision of the court (Jacinto, Sr., Commentaries and Jurisprudence on
the Revised Rules of Court [Criminal Procedure], 1994 ed., p. 521). In a
criminal case, promulgation of the decision cannot take place until after
the clerk receives it and enters it into the criminal docket. It follows that
when the judge mails a decision through the clerk of court, it is not
promulgated on the date of mailing but after the clerk of court enters the
same in the criminal docket (Ibid., citing People v. Court of Appeals, 52

In his Motion for Reconsideration, petitioner reiterated that the

case against him was dismissed or otherwise terminated without his
express consent, which constitutes a ground to quash the information for
murder; and that to try him again for the same offense constitutes double
jeopardy. Petitioner stated that contrary to respondent judge's conclusion
that disregard of rank qualifies the killing to Murder, it is a generic
aggravating circumstance which only serves to affect the imposition of the
period of the penalty. Petitioner also argued that the amendment and/or

According to the first paragraph of Section 6 of the aforesaid Rule (of both
the 1985 and 2000 versions), the presence in person of the accused at the
promulgation of judgment is mandatory in all cases except where the
conviction is for a light offense, in which case the accused may appear
through counsel or representative. Under the third paragraph of the former
and present Section 6, any accused, regardless of the gravity of the
offense charged against him, must be given notice of the promulgation of
judgment and the requirement of his presence. He must appear in person
or in the case of one facing a conviction for a light offense, through counsel
or representative. The present Section 6 adds that if the accused was tried
in absentia because he jumped bail or escaped from prison, notice of
promulgation shall be served at his last known address.
Significantly, both versions of said section set forth the rules that become
operative if the accused fails to appear at the promulgation despite due
notice: (a) promulgation shall consist in the recording of the judgment in
the criminal docket and a copy thereof shall be served upon the accused at
his last known address or through his counsel; and (b) if the judgment is for
conviction, and the accused's failure to appear was without justifiable
cause, the court shall further order the arrest of the accused.
Here lies the difference in the two versions of the section. The old rule
automatically gives the accused 15 days from notice (of the decision) to
him or his counsel within which to appeal. In the new rule, the accused
who failed to appear without justifiable cause shall lose the remedies
available in the Rules against the judgment. However, within 15 days from
promulgation of judgment, the accused may surrender and file a motion for
leave of court to avail of these remedies. He shall state in his motion 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 15 days from notice.
It thus appears that the judgment in a criminal case must be promulgated
in the presence of the accused, except where it is for a light offense, in
which case it may be pronounced in the presence of his counsel or

correction ordered by the respondent judge was substantial; and under

Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this
cannot be done, since petitioner had already been arraigned and he would
be placed in double jeopardy.
In his Order dated December 18, 2002, 301[12] the respondent judge
denied the Motion to Inhibit and granted the Motion for Reconsideration,
thus:

representative (Dimson v. Elepao, 99 Phil. 733 [1956]), and except where

the judgment is for acquittal, in which case the presence of the accused is
not necessary (Cea, etc., et al. v. Cinco, et al., 96 Phil. 31 [1954]). Notably,
one of the conditions of the bail given for the provisional liberty of an
accused in a criminal case is that he shall surrender himself (or the
bondsman shall surrender the accused) for execution of the final judgment
(Section 2[d], Rule 114, Revised Rules of Criminal Procedure). Thus, it
follows that it is the responsibility of the accused to make himself available
to the court upon promulgation of a judgment of conviction, and such
presence is secured by his bail bond. This amplifies the need for the
presence of the accused during the promulgation of a judgment of
conviction, especially if it is for a grave offense. Obviously, a judgment of
conviction cannot be executed --and the sentence meted to the accused
cannot be served --without his presence. Besides, where there is no
promulgation of the judgment, the right to appeal does not accrue (People
v. ]aranilla, 55 SCRA 565 [1974]).
Jurisprudence further dictates that the absence of counsel during the
promulgation will not result in a violation of any substantial right of the
accused, and will not affect the validity of the promulgation of the
judgment (Bernardo v. Abeto, CA-G. R. No. 6076, 31 January 1940;
Gonzales v. Judge, 186 SCRA 101 [1990]).
In the vintage case of Cea, etc., et al. v. Cinco, et al (supra), the Court
citing U. S. v. Beecham, (28 Phil. 258 [1914]), stated the reasons for
requiring the attendance of the accused in case of conviction for a grave or
less grave offense, to wit:
...The common law required, when any corporal punishment was to be
inflicted on the defendant, that he should be personally present
before the court at the time of pronouncing the sentence. (1 Chitty's
Crim. Law [5th Am. ed.], 693, 696.) Reasons given for this are, that
the defendant may be identified by the court as the real party
adjudged to be punished (Holt, 399); that the defendant may have a
chance to plead or move in arrest of judgment (King vs. Speke, 3
Salk., 358); that he may have an opportunity to say what he can say
why judgment should not be given against him (2 Hale's Pleas of the
Crown, 401, 402); and that the example of the defendants, who have

WHEREFORE, in view of the foregoing, the Motion to

Inhibit is hereby DENIED while the Motion for
Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the
presiding judge shall continue hearing this case. Further, the
Order dated October 25, 2002 is reconsidered and the
original information charging the crime of homicide
stands.302[13]

been guilty of misdemeanors of a gross and public kind, being brought

up for the animadversion of the court and the open denunciation of
punishment, may tend to deter others from the commission of similar
offenses (Chitty's Crim. Law [5th ed.], 693, 696) ***.
Nevertheless, as mentioned above, regardless of the gravity of the offense,
promulgation of judgment in absentia is allowed under the Rules. The only
essential elements for its validity are: (a) that the judgment be recorded in
the criminal docket; and (b) that a copy thereof shall be served upon the
accused or counsel.
Let us examine the validity of the May 5, 1998 promulgation which took
place in the case at bar. The dispositive portion of the decision convicting
petitioner was read in open court, after which the public prosecutor, the
defense counsel Atty. Marcelino Arias, and private complainant Lucita
Lopez, acknowledged receipt of their respective copies of the decision by
affixing their signatures at the back of the original of the decision on file
with the record of the case. Atty. Arias failed to file a notice of appeal
within fifteen days from receipt of the decision. Is it proper to rule that the
period within which to file an appeal has lapsed?
In Florendo v. Court of Appeals (239 SCRA 325 [1994]), the facts are
parallel to those of the instant case. We held In the case at bench, a copy of the judgment was served to the counsel of
petitioner on June 15, 1992; therefore, he had only up to June 30, 1992
within which to appeal. The notice of appeal filed on July 6, 1992 was
clearly out of time.
It is presumed that official duties are regularly performed and that the
proceedings are made of record. This serves as a substantial compliance
with the procedural requirement of the recording of the judgment in the
criminal docket of the court. At any rate, petitioner does not question noncompliance of the requirement of the recording of the judgment in the
criminal docket.
(At p. 329.)

In granting the Motion for Reconsideration, respondent judge found

that a close scrutiny of Article 248 of the Revised Penal Code shows that
disregard of rank is merely a generic mitigating 303[14] circumstance which
should not elevate the classification of the crime of homicide to murder.
On April 30, 2003, petitioner filed herein petition for certiorari on
the following grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION
AND EXCEEDED HIS JURISDICTION IN ORDERING THE
AMENDMENT OF THE INFORMATION FROM HOMICIDE TO
MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION

AND VIOLATED THE LAW IN DENYING THE MOTION TO
QUASH THE INFORMATION FOR MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION
AND EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW
IN ORDERING THE REINSTATEMENT OF THE INFORMATION
FOR HOMICIDE WHICH WAS ALREADY TERMINATED. 304[15]

Clerk of Court
Petitioner's first argument is devoid of merit. In the first place, her nonreceipt of the notice of promulgation was due to her own failure to
immediately file a notice of change of address with the trial court, which
she clearly admitted. Besides, promulgation could be properly done even in
her absence, subject to the service of a copy of the decision upon her or
her counsel and the recording of the judgment in the criminal docket.
However, in line with petitioner's second argument, petitioner has
presented evidence sufficient to controvert the presumption of regularity of
performance of official duty as regards the procedural requirement of the
recording of the judgment in the criminal docket of the court. Attached to
the petition is a piece of evidence that cannot be ignored by this Court -- a
certification dated October 26, 1998 signed by the Clerk of Court of the
Regional Trial Court of Pasig, which reads:

(p. 61,
Record.)
We take judicial notice of said certification and hold that in view thereof,
we cannot presume substantial compliance with the requirement of
recording a judgment in the criminal docket. And in the absence of such
compliance, there can be no valid promulgation. Without the same, the
February 17, 1998 decision could not attain finality and become executory.
This means that the 15-day period within which to interpose an appeal did
not even commence.
What is the significance of the recording of the judgment with the criminal
docket of the court? By analogy, let us apply the principles of civil law on
registration.

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that this Office has not yet been furnished, as of this
date, with copies of the decisions in Criminal Cases Nos. 85283-306 and
86064-65, entitled People of the Philippines versus Marilyn C. Pascua,
which were assigned to Branch 153 of this Court.
This certification is issued upon request of Romulo D. San Juan and Porfirio
Bautista, both counsels for the accused.
City of Pasig, October 26, 1998, 1:30 p.m.

To register is to record or annotate. American and Spanish authorities are

unanimous on the meaning of the term to register as "to enter in a
register; to record formally and distinctly; to enroll; to enter in a list" (Po
Sun Tun vs. Prize and Provincial Government of Leyte, 54 Phil. 192 [1929]).
In general, registration refers to any entry made in the books of the
registry, including both registration in its ordinary and strict sense, and
cancellation, annotation, and even the marginal notes. In strict
acceptation, it pertains to the entry made in the registry which records
solemnly and permanently the right of ownership and other real rights
(Ibid.). Simply stated, registration is made for the purpose of notification
(Paras, Civil Code of the Philippines, Vol. II, 1989 ed., p. 653, citing Bautista
vs. Dy Bun Chin, 49 O.G. 179 [1952]).

(Sgd.) GREGORIO P. SUBONG, JR.

Administrative Officer I In-Charge
Criminal Cases Unit
(Sgd.) GRACE S. BELVIS

Registration is a mere ministerial act by which a deed, contract, or

instrument is sought to be inscribed in the records of the Office of the
Register of Deeds and annotated at the back of the certificate of title
covering the land subject of the deed, contract, or instrument. Being a
ministerial act, it must be performed in any case and, if it is not done, it
may be ordered performed by a court of justice (Cruz, The Law of Public
Officers, 1997 ed., p. 102). In fact, the public officer having this ministerial

Petitioner alleges that despite having entered his plea of not guilty
to the charge of Homicide, the public respondent ordered the amendment
of the Information from Homicide to Murder because of the presence of the
aggravating circumstance of disregard of rank, which is in violation of
Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the
public respondents ruling that disregard of rank is a qualifying aggravating
circumstance which qualified the killing of 2Lt. Escueta to murder is
erroneous since, under paragraph 3, Article 14 of the Revised Penal Code,
disregard of rank is only a generic aggravating circumstance which serves

duty has no choice but to perform the specific action which is the particular
duty imposed by law. Its purpose is to give notice thereof to all
persons. It operates as a notice of the deed, contract, or instrument to
others, but neither adds to its validity nor converts an invalid instrument
into a valid one between the parties. If the purpose of registration is
merely to give notice, then questions regarding the effects or invalidity of
instruments are expected to be decided after, not before, registration. It
must follow as a necessary consequence that registration must first be
allowed, and validity or effect of the instruments litigated afterwards
(Seron vs. Hon. Rodriguez, etc., and Seron, 110 Phil.. 548 [1960]; Gurbax
Singh Pabla & Co., et al. vs. Reyes, et al., 92 Phil. 177 [1952]; Register of
Deeds of Manila vs. Tinoco Vda. De Cruz, 95 Phil. 818 [1954]; Samanilla vs.
Cajucom, et al., 107 Phil. 432 [1960]).
Applying the above-mentioned principles to the instant case, we are
prompted to further examine the provisions on promulgation in absentia.
As held in Florendo vs. Court of Appeals (supra), the rules allow
promulgation of judgment in absentia to obviate the situation where
juridical process could be subverted by the accused jumping bail. But the
Rules also provide measures to make promulgation in absentia a formal
and solemn act so that the absent accused, wherever he may be, can be
notified of the judgment rendered against him. As discussed earlier, the
sentence imposed by the trial court cannot be served in the absence of the
accused. Hence, all means of notification must be done to let the absent
accused know of the judgment of the court. And the means provided by
the Rules are: (1) the act of giving notice to all persons or the act of
recording or registering the judgment in the criminal docket (which Section
6 incidentally mentions first showing its importance; and (2) the act of
serving a copy thereof upon the accused (at his last known address) or his
counsel. In a scenario where the whereabouts of the accused are unknown
(as when he is at large), the recording satisfies the requirement of notifying
the accused of the decision wherever he may be.
Thus, on May 5, 1998, although the second kind of notification was
satisfied when defense counsel Atty. Arias received a copy of the February
17, 1998 decision, the solemn and operative act of recording was not done,
making the promulgation in absentia invalid. This being so, the period to

to affect the penalty to be imposed upon the accused and does not qualify
the offense into a more serious crime; that even assuming that disregard
of rank is a qualifying aggravating circumstance, such is a substantial
amendment which is not allowed after petitioner has entered his plea.
Petitioner next contends that the respondent judge gravely abused
his discretion when he denied the Motion to Quash the Information for
Murder, considering that the original Information for Homicide filed against
him was terminated without his express consent; thus, prosecuting him for
the same offense would place him in double jeopardy.

appeal did not begin to run.

The next matter we have to consider is the effect of the service of a copy
of the judgment upon petitioner, who admits having received a copy
thereof on June 17, 1998. Did the 15-day period to appeal begin to run on
said date of receipt?
We rule in the negative. Petitioner's later receipt of the copy of the decision
does not in any way cure an invalid promulgation. And even if said decision
be recorded in the criminal docket later, such piece-meal compliance with
the Rules will still not validate the May 5, 1998 promulgation which was
invalid at the time it was conducted. The express mention in the provision
of both requirements for a valid promulgation in absentia clearly means
that they indeed must concur.
Finally, as regards the third argument, we agree with the Solicitor General
that matters of sufficiency of evidence may not be passed upon in the
herein proceedings. The instant petition assails the Court of Appeals'
decision dated June 17, 1999 and its order dated September 28, 1999 both
of which concern the orders of the trial court dated June 22, 1998 and
October 8, 1998, in essence ruling that petitioner's notice of appeal dated
June 19, 1998 was filed out of time. The petition is not directed against
February 17, 1998 decision of the trial court which convicted petitioner on
26 counts of violation of Batas Pambansa Blg. 22. Hence, this is not the
proper time to rule on the merits of Criminal Cases No. 85283-306/8606465. There is, rather, a need to remand the matter to the trial court for
proper promulgation of its decision. Significantly, it is not what petitioner
describes as "repromulgation" since promulgation was not validly made,
and hence, as if not conducted. The requisites of the remedy of appeal
shall then apply from that point.
WHEREFORE, the instant petition is hereby GRANTED. The June 17, 1999
decision and the September 28, 1999 order of the Court of Appeals are
hereby set aside. The instant case is hereby remanded to the trial court for
proper promulgation of its decision in accordance with Section 6, Rule 120
of the Revised Rules of Criminal Procedure.

Petitioner further argues that although the respondent judge

granted his Motion for Reconsideration, he did not in fact grant the motion,
since petitioner's prayer was for the respondent judge to grant the Motion
to Quash the Information for Murder on the ground of double jeopardy; that
his Motion for Reconsideration did not seek the reinstatement of the
Information for Homicide upon the dismissal of the Information for Murder,
as he would again be placed in double jeopardy; thus, the respondent
judge committed grave abuse of discretion in reinstating the Homicide
case.
In his Comment, the Solicitor General argues that the respondent
judge's Order reinstating the Information to Homicide after initially motu
SO ORDERED.
29. Yu vs Tatad
G.R. No.170979. February 9, 2011
We resolve the petition for prohibition filed by petitioner Judith Yu to enjoin
respondent Judge Rosa Samson-Tatad of the Regional Trial Court (RTC),
Branch 105, Quezon City, from taking further proceedings in Criminal Case
No. Q-01-105698, entitled People of the Philippines v. Judith Yu, et al.[1]
The Factual Antecedents
The facts of the case, gathered from the parties pleadings, are
briefly summarized below.
Based on the complaint of Spouses Sergio and Cristina Casaclang,
an information for estafa against the petitioner was filed with the RTC.
In a May 26, 2005 decision, the RTC convicted the petitioner as
charged. It imposed on her a penalty of three (3) months of imprisonment
(arresto mayor), a fine of P3,800,000.00 with subsidiary imprisonment, and
the payment of an indemnity to the Spouses Casaclang in the same
amount as the fine.[2]

proprio ordering its amendment to Murder renders herein petition moot

and academic; that petitioner failed to establish the fourth element of
double jeopardy, i.e., the defendant was acquitted or convicted, or the
case against him was dismissed or otherwise terminated without his
consent; that petitioner confuses amendment with substitution of
Information; that the respondent judge's Order dated September 12, 2002
mandated an amendment of the Information as provided under Section 14,
Rule 110 of the Revised Rules of Criminal Procedure; and that amendments
do not entail dismissal or termination of the previous case.

On November 24, 2005, the respondent Judge ordered the

petitioner to submit a copy of Neypes for his guidance.[7]
On December 8, 2005, the prosecution filed a motion to dismiss
the appeal for being filed 10 days late, arguing that Neypes is inapplicable
to appeals in criminal cases. [8]
On January 4, 2006, the prosecution filed a motion for execution of
the decision.[9]
On January 20, 2006, the RTC considered the twin motions
submitted for resolution.
On January 26, 2006, the petitioner filed the present petition for
prohibition with prayer for the issuance of a temporary restraining order
and a writ of preliminary injunction to enjoin the RTC from acting on the
prosecutions motions to dismiss the appeal and for the execution of the
decision.[10]
The Petition
The petitioner argues that the RTC lost jurisdiction to act on the
prosecutions motions when she filed her notice of appeal within the 15-day
reglementary period provided by the Rules of Court, applying the fresh
period rule enunciated in Neypes.
The Case for the Respondents

Fourteen (14) days later, or on June 9, 2005, the petitioner filed a

motion for new trial with the RTC, alleging that she discovered new and
material evidence that would exculpate her of the crime for which she was
convicted.[3]
In an October 17, 2005 order, respondent Judge denied the
petitioners motion for new trial for lack of merit.[4]
On November 16, 2005, the petitioner filed a notice of appeal with
the RTC, alleging that pursuant to our ruling in Neypes v. Court of Appeals,
[5]
she had a fresh period of 15 days from November 3, 2005, the receipt of
the denial of her motion for new trial, or up to November 18, 2005, within
which to file a notice of appeal.[6]

The respondent People of the Philippines, through the Office of the

Solicitor General (OSG), filed a manifestation in lieu of comment, stating
that Neypes applies to criminal actions since the evident intention of the
fresh period rule was to set a uniform appeal period provided in the Rules.
[11]

In view of the OSGs manifestation, we required the Spouses

Casaclang to comment on the petition. [12]
In their comment, the Spouses Casaclang aver that the petitioner
cannot seek refuge in Neypes to extend the fresh period rule to criminal
cases because Neypes involved a civil case, and the pronouncement of
standardization of the appeal periods in the Rules referred to the
interpretation of the appeal periods in civil cases, i.e., Rules 40, 41, 42 and

Private respondent Col. Olimpio Escueta, father of the victim, filed

his Comment alleging that no grave abuse of discretion was committed by
the respondent judge when he denied petitioner's Motion to Quash the
Amended Information, as petitioner was not placed in double jeopardy;
that the proceedings under the first Information for homicide has not yet
commenced, and the case was not dismissed or terminated when the
Information was amended.
In his Reply, petitioner reiterates his contention that the
amendment of the charge of Homicide to Murder after his arraignment

would place him in double jeopardy, considering that said amendment was
without his express consent; and that such amendment was tantamount to
a termination of the charge of Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a petition for certiorari is highly
improper, for it violates the established policy of strict observance of the
judicial hierarchy of courts. However, the judicial hierarchy of courts is not

45, of the 1997 Rules of Civil Procedure among others; nowhere in Neypes
was the period to appeal in criminal cases, Section 6 of Rule 122 of the
Revised Rules of Criminal Procedure, mentioned.[13]

The period of appeal shall be interrupted by

a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.

Issue
The core issue boils down to whether the fresh period rule
enunciated in Neypes applies to appeals in criminal cases.

Section 6, Rule 122 of the Revised Rules of Criminal Procedure

reads:

The Courts Ruling

We find merit in the petition.
The right to appeal is not a constitutional, natural or inherent right
it is a statutory privilege and of statutory origin and, therefore, available
only if granted or as provided by statutes. It may be exercised only in the
manner prescribed by the provisions of the law. [14] The period to appeal is
specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129),
[15]
as amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure,
and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure.
Section 39 of BP 129, as amended, provides:
SEC. 39. Appeals. The period for appeal from final
orders, resolutions, awards, judgments, or decisions of any
court in all cases shall be fifteen (15) days counted from
the notice of the final order, resolution, award, judgment,
or decision appealed from: Provided, however, That in
habeas corpus cases, the period for appeal shall be fortyeight (48) hours from the notice of the judgment appealed
from.
Section 3, Rule 41 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. The appeal
shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days from
notice of the judgment or final order.

SEC. 6. When appeal to be taken. An appeal must

be taken within fifteen (15) days from promulgation of the
judgment or from notice of the final order appealed from.
This period for perfecting an appeal shall be
suspended from the time a motion for new trial or
reconsideration is filed until notice of the order
overruling the motion has been served upon the
accused or his counsel at which time the balance of
the period begins to run.
In Neypes, the Court modified the rule in civil cases on the
counting of the 15-day period within which to appeal. The Court
categorically set a fresh period of 15 days from a denial of a motion
for reconsideration within which to appeal, thus:
The Supreme Court may promulgate procedural
rules in all courts. It has the sole prerogative to amend,
repeal or even establish new rules for a more simplified
and inexpensive process, and the speedy disposition of
cases. In the rules governing appeals to it and to the Court
of Appeals, particularly Rules 42, 43 and 45, the Court
allows extensions of time, based on justifiable and
compelling reasons, for parties to file their appeals. These
extensions may consist of 15 days or more.
To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal their
cases, the Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal in the

an iron-clad rule.305[16] A strict application of the rule of hierarchy of courts

is not necessary when the cases brought before the appellate courts do not
involve factual but legal questions.306[17]
In the present case, petitioner submits pure questions of law
involving the proper legal interpretation of the provisions on amendment
and substitution of information under the Rules of Court. It also involves
the issue of double jeopardy, one of the fundamental rights of the citizens
under the Constitution which protects the accused not against the peril of
second punishment but against being tried for the same offense. These
Regional Trial Court, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.
Henceforth, this "fresh period rule" shall also
apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial Courts;
Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies to the Court of
Appeals and Rule 45 governing appeals by certiorari
to the Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted from
receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or any
final order or resolution.[16]
The Court also reiterated its ruling that it is the denial of the
motion for reconsideration that constituted the final order which finally
disposed of the issues involved in the case.
The raison dtre for the fresh period rule is to standardize the
appeal period provided in the Rules and do away with the confusion as to
when the 15-day appeal period should be counted. Thus, the 15-day period
to appeal is no longer interrupted by the filing of a motion for new trial or
motion for reconsideration; litigants today need not concern themselves
with counting the balance of the 15-day period to appeal since the 15-day
period is now counted from receipt of the order dismissing a motion for
new trial or motion for reconsideration or any final order or resolution.
While Neypes involved the period to appeal in civil cases, the
Courts pronouncement of a fresh period to appeal should equally apply to
the period for appeal in criminal cases under Section 6 of Rule 122 of the
Revised Rules of Criminal Procedure, for the following reasons:
First, BP 129, as amended, the substantive law on which the Rules
of Court is based, makes no distinction between the periods to appeal in a
civil case and in a criminal case. Section 39 of BP 129 categorically states
that [t]he period for appeal from final orders, resolutions, awards,

important legal questions and in order to prevent further delay in the trial
of the case warrant our relaxation of the policy of strict observance of the
judicial hierarchy of courts.
The Courts Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent
judge committed grave abuse of discretion in amending the Information

judgments, or decisions of any court in all cases shall be fifteen (15) days
counted from the notice of the final order, resolution, award, judgment, or
decision appealed from. Ubi lex non distinguit nec nos distinguere
debemos. When the law makes no distinction, we (this Court) also ought
not to recognize any distinction.[17]
Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of
Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal
Procedure, though differently worded, mean exactly the same. There is no
substantial difference between the two provisions insofar as legal results
are concerned the appeal period stops running upon the filing of a motion
for new trial or reconsideration and starts to run again upon receipt of the
order denying said motion for new trial or reconsideration. It was this
situation that Neypes addressed in civil cases. No reason exists why this
situation in criminal cases cannot be similarly addressed.
Third, while the Court did not consider in Neypes the ordinary
appeal period in criminal cases under Section 6, Rule 122 of the Revised
Rules of Criminal Procedure since it involved a purely civil case, it did
include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review
from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules
of Civil Procedure governing appeals by certiorari to this Court, both of
which also apply to appeals in criminal cases, as provided by Section 3 of
Rule 122 of the Revised Rules of Criminal Procedure, thus:
SEC. 3. How appeal taken. x x x x
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review under
Rule 42.
xxxx
Except as provided in the last paragraph of section
13, Rule 124, all other appeals to the Supreme Court shall
be by petition for review on certiorari under Rule 45.
Clearly, if the modes of appeal to the CA (in cases where the RTC
exercised its appellate jurisdiction) and to this Court in civil and criminal

after petitioner had already pleaded not guilty to the charge in the
Information for Homicide. The argument of petitioner -Considering the fact that the case for Homicide
against him was already terminated without his express
consent, he cannot anymore be charged and arraigned for
Murder which involve the same offense. The petitioner
argued that the termination of the information for Homicide
without his express consent is equivalent to his acquittal.
Thus, to charge him again, this time for Murder, is

tantamount to placing the petitioner in Double Jeopardy. 307

[18]
is not plausible. Petitioner confuses the procedure and effects of
amendment or substitution under Section 14, Rule 110 of the Rules of
Court, to wit -SEC. 14. Amendment or substitution. A complaint or
information may be amended, in form or in substance,
No pronouncement as to costs.

cases are the same, no cogent reason exists why the periods to appeal
from the RTC (in the exercise of its original jurisdiction) to the CA in civil
and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil
Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal
Procedure should be treated differently.
Were we to strictly interpret the fresh period rule in Neypes and
make it applicable only to the period to appeal in civil cases, we shall
effectively foster and encourage an absurd situation where a litigant in a
civil case will have a better right to appeal than an accused in a criminal
case a situation that gives undue favor to civil litigants and unjustly
discriminates against the accused-appellants. It suggests a double
standard of treatment when we favor a situation where property interests
are at stake, as against a situation where liberty stands to be prejudiced.
We must emphatically reject this double and unequal standard for being
contrary to reason. Over time, courts have recognized with almost
pedantic adherence that what is contrary to reason is not allowed in law
Quod est inconveniens, aut contra rationem non permissum est in lege.
[18]
Thus, we agree with the OSGs view that if a delay in the filing of an
appeal may be excused on grounds of substantial justice in civil actions,
with more reason should the same treatment be accorded to the accused
in seeking the review on appeal of a criminal case where no less than the
liberty of the accused is at stake. The concern and the protection we must
extend to matters of liberty cannot be overstated.
In light of these legal realities, we hold that the petitioner
seasonably filed her notice of appeal on November 16, 2005, within the
fresh period of 15 days, counted from November 3, 2005, the date of
receipt of notice denying her motion for new trial.
WHEREFORE, the petition for prohibition is hereby GRANTED.
Respondent Judge Rosa Samson-Tatad is DIRECTED to CEASE and DESIST
from further exercising jurisdiction over the prosecutions motions to
dismiss appeal and for execution of the decision. The respondent Judge is
also DIRECTED to give due course to the petitioners appeal in Criminal
Case No. Q-01-105698, and to elevate the records of the case to the Court
of Appeals for review of the appealed decision on the merits.

SO ORDERED.

210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229

without leave of court, at any time before the accused

enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and
when it can be done without causing prejudice to the rights
of the accused.
xxx
If it appears at
mistake has been made
court shall dismiss the
upon the filing of a new

accordance with Rule 119, Section 11, provided the accused

would not be placed thereby in double jeopardy, and may
also require the witnesses to give bail for their appearance
at the trial.
with Section 19, Rule 119 of which provides:

any time before judgment that a

in charging the proper offense, the
original complaint or information
one charging the proper offense in

SEC. 19. When mistake has been made in charging

the proper offense. - When it becomes manifest at any
time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be

230

249

231

250

232

251

233

252

234

253

235

254

236

255

237

256

238

257

239

258

240

259

241

260

242

261

243

262

244

263

245

264

246

265

247

266

248

267

convicted of the offense charged or any other offense

necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him. In
such case, the court shall commit the accused to answer
for the proper offense and dismiss the original case upon
the filing of the proper information.
First, a distinction shall be made between amendment and
substitution under Section 14, Rule 110. For this purpose, Teehankee v.
Madayag308[19] is instructive, viz:

second paragraph refers

information or complaint.

to

the

substitution

of

the

It may accordingly be posited that both

amendment and substitution of the information may be
made before or after the defendant pleads, but they differ
in the following respects:
1. Amendment may involve either formal or
substantial changes, while substitution necessarily involves
a substantial change from the original charge;

The first paragraph provides the rules for

amendment of the information or complaint, while the
268

287

269

288

270

289

271

290

272

291

273

292

274

293

275

294

276

295

277

296

278

297

279

298

280

299

281

300

282

301

283

302

284

303

285

304

286

305

2. Amendment before plea has been entered can

be effected without leave of court, but substitution of
information must be with leave of court as the original
information has to be dismissed;
3. Where the amendment is only as to form, there
is no need for another preliminary investigation and the
retaking of the plea of the accused; in substitution of
information, another preliminary investigation is entailed
and the accused has to plead anew to the new information;
and
4. An amended information refers to the same
offense charged in the original information or to an offense
which necessarily includes or is necessarily included in the
original charge, hence substantial amendments to the
information after the plea has been taken cannot be made
over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke
double jeopardy. On the other hand, substitution requires
or presupposes that the new information involves a
different offense which does not include or is not
necessarily included in the original charge, hence the
accused cannot claim double jeopardy.
In determining, therefore, whether there should be
an amendment under the first paragraph of Section 14,
Rule 110, or a substitution of information under the second
paragraph thereof, the rule is that where the second
information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first
information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense
which is distinct and different from that initially charged, a
substitution is in order.
There is identity between the two offenses when
the evidence to support a conviction for one offense would
be sufficient to warrant a conviction for the other, or when
the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration
of, or when it necessarily includes or is necessarily
included in, the offense charged in the first information. In
this connection, an offense may be said to necessarily
include another when some of the essential elements or

ingredients of the former, as this is alleged in the

information, constitute the latter. And, vice-versa, an
offense may be said to be necessarily included in another
when the essential ingredients of the former constitute or
form a part of those constituting the latter. 309[20]
In the present case, the change of the offense charged from
Homicide to Murder is merely a formal amendment and not a substantial
amendment or a substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the
Information shows that the only change made was in the caption of the
case; and in the opening paragraph or preamble of the Information, with
the crossing out of word Homicide and its replacement by the word Murder.
There was no change in the recital of facts constituting the offense charged
or in the determination of the jurisdiction of the court. The averments in
the amended Information for Murder are exactly the same as those already
alleged in the original Information for Homicide, as there was not at all any
change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta
without any qualifying circumstance. Thus, we find that the amendment
made in the caption and preamble from Homicide to Murder as purely
formal.310[21]
Section 14, Rule 110 also provides that in allowing formal
amendments in cases in which the accused has already pleaded, it is
necessary that the amendments do not prejudice the rights of the accused.
The test of whether the rights of an accused are prejudiced by the
amendment of a complaint or information is whether a defense under the
complaint or information, as it originally stood, would no longer be
available after the amendment is made; and when any evidence the
accused might have would be inapplicable to the complaint or
information.311[22] Since the facts alleged in the accusatory portion of the
amended Information are identical with those of the original Information for
Homicide, there could not be any effect on the prosecution's theory of the
case; neither would there be any possible prejudice to the rights or defense
of petitioner.
While the respondent judge erroneously thought that disrespect on
account of rank qualified the crime to murder, as the same was only a
generic aggravating circumstance,312[23] we do not find that he committed
any grave abuse of discretion in ordering the amendment of the
Information after petitioner had already pleaded not guilty to the charge of
309

306

310

307

311

308

312

Homicide, since the amendment made was only formal and did not
adversely affect any substantial right of petitioner.
Next, we determine whether petitioner was placed in double
jeopardy by the change of the charge from Homicide to Murder; and
subsequently, from Murder back to Homicide. Petitioner's claim that the
respondent judge committed grave abuse of discretion in denying his
Motion to Quash the Amended Information for Murder on the ground of
double jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117
of the Rules of Court, which provides:
SEC. 3. Grounds. - The accused may move to quash
the complaint or information on any of the following
grounds:
xxxx
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him
was dismissed or otherwise terminated without his express
consent.
Section 7 of the same Rule lays down the requisites in order that
the defense of double jeopardy may prosper, to wit:
SEC. 7. Former conviction or acquittal; double
jeopardy. When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of
competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had
pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or
information.

when a valid plea has been entered; and (e) when the accused was
acquitted or convicted, or the case was dismissed or otherwise terminated
without his express consent.314[25]
It is the conviction or acquittal of the accused or the dismissal or
termination of the case that bars further prosecution for the same offense
or any attempt to commit the same or the frustration thereof; or
prosecution for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information. 315
[26]
Petitioner's insistence that the respondent judge dismissed or
terminated his case for homicide without his express consent, which is
tantamount to an acquittal, is misplaced.
Dismissal of the first case contemplated by Section 7 presupposes
a definite or unconditional dismissal which terminates the case. 316[27] And
for the dismissal to be a bar under the jeopardy clause, it must have the
effect of acquittal.
The respondent judge's Order dated September 12, 2002 was for
the trial prosecutor to correct and amend the Information but not to
dismiss the same upon the filing of a new Information charging the proper
offense as contemplated under the last paragraph of Section 14, Rule 110
of the Rules of Court -- which, for convenience, we quote again -If it appears at anytime before judgment that a
mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information
upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused
shall not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the
trial.
and Section 19, Rule 119, which provides:
SEC. 19.- When mistake has been made in charging
the proper offense - When it becomes manifest at any time
before judgment that a mistake has been made in charging
the proper offense and the accused cannot be convicted of
the offense charged or any other offense necessarily
included therein, the accused shall not be discharged if there
appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense

Thus, there is double jeopardy when the following requisites are

present: (1) a first jeopardy attached prior to the second; (2) the first
jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first. 313[24]
As to the first requisite, the first jeopardy attaches only (a) after a
valid indictment; (b) before a competent court; (c) after arraignment; (d)
313

314
315
316

and dismiss the original case upon the filing of the proper
information.
Evidently, the last paragraph of Section 14, Rule 110, applies only
when the offense charged is wholly different from the offense proved, i.e.,
the accused cannot be convicted of a crime with which he was not charged
in the information even if it be proven, in which case, there must be a
dismissal of the charge and a substitution of a new information charging
the proper offense. Section 14 does not apply to a second information,
which involves the same offense or an offense which necessarily includes
or is necessarily included in the first information. In this connection, the
offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint
or information, constitute the latter. And an offense charged is necessarily
included in the offense proved when the essential ingredients of the former
constitute or form a part of those constituting the latter. 317[28]
Homicide is necessarily included in the crime of murder; thus, the
respondent judge merely ordered the amendment of the Information and
not the dismissal of the original Information. To repeat, it was the same
original information that was amended by merely crossing out the word
Homicide and writing the word Murder, instead, which showed that there
was no dismissal of the homicide case.
Anent the last issue, petitioner contends that respondent judge
gravely abused his discretion in ordering that the original Information for
Homicide stands after realizing that disregard of rank does not qualify the
killing to Murder. That ruling was again a violation of his right against
double jeopardy, as he will be prosecuted anew for a charge of Homicide,
which has already been terminated earlier.
We are not convinced. Respondent judge did not commit any grave
abuse of discretion.
A reading of the Order dated December 18, 2002 showed that the
respondent judge granted petitioner's motion for reconsideration, not on
the ground that double jeopardy exists, but on his realization that
disregard of rank is a generic aggravating circumstance which does not
qualify the killing of the victim to murder. Thus, he rightly corrected himself
by reinstating the original Information for Homicide. The requisite of double
jeopardy that the first jeopardy must have attached prior to the second is
not present, considering that petitioner was neither convicted nor
acquitted; nor was the case against him dismissed or otherwise terminated
without his express consent. 318[29]
WHEREFORE, the petition is DISMISSED, there being no grave
abuse of discretion committed by respondent Judge.

SO ORDERED.
17. BONIFACIO V. REGIONAL TRIAL COURT OF MAKATI, BRANCH
149, GR# 184800, 05 May 2010
Via a petition for Certiorari and Prohibition, petitioners Wonina M.
Bonifacio, et al. assail the issuances of Branch 149 of the Regional Trial
Court (RTC) of Makati (public respondent) Order 319[1] of April 22, 2008
which denied their motion to quash the Amended Information indicting
them for libel, and Joint Resolution 320[2] of August 12, 2008 denying
reconsideration of the first issuance.
Private respondent Jessie John P. Gimenez 321[3] (Gimenez) filed on
October 18, 2005, on behalf of the Yuchengco Family (in particular, former
Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the
Malayan Insurance Co., Inc. (Malayan),322[4] a criminal complaint,323[5]
before the Makati City Prosecutors Office, for thirteen (13) counts of libel
under Article 355 in relation to Article 353 of the Revised Penal Code (RPC)
against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova Santos, who
are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph
Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio,
Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto,
Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees of
PEPCI, Trennie Monsod, a member of PEPCI (collectively, the accused), and
a certain John Doe, the administrator of the website www.pepcoalition.com.
PEPCI appears to have been formed by a large group of disgruntled
planholders of Pacific Plans, Inc. (PPI) a wholly owned subsidiary of Great
Pacific Life Assurance Corporation, also owned by the Yuchengco Group of
Companies (YGC) who had previously purchased traditional pre-need
educational plans but were unable to collect thereon or avail of the
benefits thereunder after PPI, due to liquidity concerns, filed for corporate
rehabilitation with prayer for suspension of payments before the Makati
RTC.
Decrying PPIs refusal/inability to honor its obligations under the
educational pre-need plans, PEPCI sought to provide a forum by which the
planholders could seek redress for their pecuniary loss under their policies
by maintaining a website on the internet under the address of
www.pepcoalition.com.

319
320
321

317

322

318

323

Gimenez alleged that PEPCI also owned, controlled and moderated

on the internet a blogspot 324[6] under the website address
www.pacificnoplan.blogspot.com, as well as a yahoo e-group 325[7] at
no2pep2010@yahoogroups.com. These websites are easily accessible to
the public or by anyone logged on to the internet.

By Resolution of May 5, 2006, 328[10] the Makati City Prosecutors

Office, finding probable cause to indict the accused, filed thirteen (13)
separate Informations329[11] charging them with libel. The accusatory
portion of one Information, docketed as Criminal Case No. 06-876, which
was raffled off to public respondent reads:

Gimenez further alleged that upon accessing the above-stated

websites in Makati on various dates from August 25 to October 2, 2005, he
was appalled to read numerous articles [numbering 13], maliciously and
recklessly caused to be published by [the accused] containing highly
derogatory statements and false accusations, relentlessly attacking the
Yuchengco Family, YGC, and particularly, Malayan. 326[8] He cited an article
which was posted/published on www.pepcoalition.com on August 25, 2005
which stated:

That on or about the 25 th day of August 2005 in

Makati City, Metro Manila, Philippines, a place within the
jurisdiction of the Honorable Court, the above-named
accused, being then the trustees of Parents Enabling
Parents Coalition and as such trustees they hold the legal
title to the website www.pepcoalition.com which is of
general circulation, and publication to the public
conspiring, confederating and mutually helping with one
another together with John Does, did then and there
willfully, unlawfully and feloniously and publicly and
maliciously with intention of attacking the honesty, virtue,
honor and integrity, character and reputation of
complainant Malayan Insurance Co. Inc., Yuchengco Family
particularly Ambassador Alfonso Yuchengco and Helen Dee
and for further purpose exposing the complainant to public
hatred and contempt published an article imputing a vice
or defect to the complainant and caused to be composed,
posted
and
published
in
the
said
website
www.pepcoalition.com and injurious and defamatory article
as follows:

Talagang naisahan na naman tayo ng mga Yuchengcos.

Nangyari na ang mga kinatatakutan kong pagbagsak ng
negotiation because it was done prematurely since we had
not file any criminal aspect of our case. What is worse is
that Yuchengcos benefited much from the nego. x x
x . That is the fact na talagang hindi dapat
pagtiwalaan ang mga Yuchengcos.
LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL
CASES IN COURT, BSP AND AMLC AND WHEREVER.
Pumunta tayong muli sa senado, congreso, RCBC Plaza,
and other venues to air our grievances and call for
boycott ng YGC. Let us start within ourselves. Alisin
natin ang mga investments and deposits natin sa
lahat ng YGC and I mean lahat and again convince
friends to do the same. Yung mga nanonood lang noon
ay dapat makisali na talaga ngayon specially those who
joined only after knowing that there was a negotiation for
amicable settlements.

Talagang naisahan na naman tayo ng mga

Yuchengcos. Nangyari na ang mga
kinatatakutan
kong
pagbagsak
ng
negotiation. x x x
xxx
xxx
For sure may tactics pa silang nakabasta sa
atin. Let us be ready for it because they
had successfully lull us and the next time
they will try to kill us na. x x x

FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN.

LET US BE READY FOR IT BECAUSE THEY HAD
SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL
TRY TO KILL US NA. x x x 327[9] (emphasis in the original)

A copy of the full text of the foregoing

article
as
published/posted
in
www.pepcoalition.com is attached as
Annex F of the complaint.
That the keyword and password to be used in order to post
and publish the above defamatory article are known to the
accused as trustees holding legal title to the above-cited
website and that the accused are the ones

324
325
326

328

327

329

responsible for the posting and publication of the

defamatory articles that the article in question was posted
and published with the object of the discrediting and
ridiculing the complainant before the public.
CONTRARY TO LAW.330[12]
Several of the accused appealed the Makati City Prosecutors
Resolution by a petition for review to the Secretary of Justice who, by
Resolution of June 20, 2007, 331[13] reversed the finding of probable cause
and accordingly directed the withdrawal of the Informations for libel filed in
court. The Justice Secretary opined that the crime of internet libel was nonexistent, hence, the accused could not be charged with libel under Article
353 of the RPC.332[14]
Petitioners, as co-accused, 333[15] thereupon filed on June 6, 2006,
before the public respondent, a Motion to Quash 334[16] the Information in
Criminal Case No. 06-876 on the grounds that it failed to vest jurisdiction
on the Makati RTC; the acts complained of in the Information are not
punishable by law since internet libel is not covered by Article 353 of the
RPC; and the Information is fatally defective for failure to designate the
offense charged and the acts or omissions complained of as constituting
the offense of libel.
Citing Macasaet v. People,335[17] petitioners maintained that the
Information failed to allege a particular place within the trial courts
jurisdiction where the subject article was printed and first published or that
the offended parties resided in Makati at the time the alleged defamatory
material was printed and first published.

time of the commission of the offense as in fact they listed their address in
the complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that the
alleged libelous article was printed and first published in Makati.
The prosecution moved to reconsider the quashal of the
Information,338[20] insisting that the Information sufficiently conferred
jurisdiction on the public respondent. It cited Banal III v. Panganiban 339[21]
which held that the Information need not allege verbatim that the libelous
publication was printed and first published in the appropriate venue. And it
pointed out that Malayan has an office in Makati of which Helen is a
resident. Moreover, the prosecution alleged that even assuming that the
Information was deficient, it merely needed a formal amendment.
Petitioners opposed the prosecutions motion for reconsideration,
contending, inter alia, that since venue is jurisdictional in criminal cases,
any defect in an information for libel pertaining to jurisdiction is not a mere
matter of form that may be cured by amendment.340[22]
By Order of March 8, 2007, 341[23] the public respondent granted
the prosecutions motion for reconsideration and accordingly ordered the
public prosecutor to amend the Information to cure the defect of want of
venue.

The prosecution thereupon moved to admit the Amended

Information dated March 20, 2007, 342[24] the accusatory portion of which
reads:
That on or about the 25 th day of August 2005 in
Makati City, Metro Manila, Philippines, a place within the
jurisdiction of the Honorable Court, the above-named
accused, being then the trustees of Parents Enabling
Parents Coalition and as such trustees they hold the legal
title to the website www.pepcoalition.com which is of
general circulation, and publication to the public
conspiring, confederating together with John Does, whose
true names, identities and present whereabouts are
still unknown and all of them mutually helping and
aiding one another, did then and there willfully, unlawfully
and feloniously and publicly and maliciously with intention

By Order of October 3, 2006, 336[18] the public respondent, albeit

finding that probable cause existed, quashed the Information, citing
Agustin v. Pamintuan.337[19] It found that the Information lacked any
allegations that the offended parties were actually residing in Makati at the
330
331
332
333

338

334

339

335

340

336

341

337

342

of attacking the honesty, virtue, honor and integrity,

character and reputation of complainant Malayan
Insurance Co. Inc., Yuchengco Family particularly
Ambassador Alfonso Yuchengco and Helen Dee and for
further purpose exposing the complainant to public hatred
and contempt published an article imputing a vice or
defect to the complainant and caused to be composed,
posted
and
published
in
the
said
website
www.pepcoalition.com, a website accessible in Makati
City, an injurious and defamatory article, which was first
published and accessed by the private complainant
in Makati City, as follows:
x x x x (emphasis and underscoring in the
original; italics supplied)
Petitioners moved to quash the Amended Information343[25] which,
they alleged, still failed to vest jurisdiction upon the public respondent
because it failed to allege that the libelous articles were printed and first
published by the accused in Makati; and the prosecution erroneously laid
the venue of the case in the place where the offended party accessed the
internet-published article.

With the filing of Gimenezs Comment 346[28] to the petition, the

issues are: (1) whether petitioners violated the rule on hierarchy of courts
to thus render the petition dismissible; and (2) whether grave abuse of
discretion attended the public respondents admission of the Amended
Information.
The established policy of strict observance of the judicial hierarchy
of courts,347[29] as a rule, requires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher court. 348
[30] A regard for judicial hierarchy clearly indicates that petitions for the
issuance of extraordinary writs against first level courts should be filed in
the RTC and those against the latter should be filed in the Court of
Appeals.349[31] The rule is not iron-clad, however, as it admits of certain
exceptions.
Thus, a strict application of the rule is unnecessary when cases
brought before the appellate courts do not involve factual but purely legal
questions.350[32]

By the assailed Order of April 22, 2008, the public respondent,

applying Banal III, found the Amended Information to be sufficient in form.

In the present case, the substantive issue calls for the Courts
exercise of its discretionary authority, by way of exception, in order to
abbreviate the review process as petitioners raise a pure question of law
involving jurisdiction in criminal complaints for libel under Article 360 of
the RPC whether the Amended Information is sufficient to sustain a charge
for written defamation in light of the requirements under Article 360 of the
RPC, as amended by Republic Act (RA) No. 4363, reading:

Petitioners motion for reconsideration 344[26] having been denied by

the public respondent by Joint Resolution of August 12, 2008, they filed the
present petition for Certiorari and Prohibition faulting the public respondent
for:

Art. 360. Persons responsible.Any person who shall

publish, exhibit or cause the publication or exhibition of
any defamation in writing or by similar means, shall be
responsible for the same.

1. NOT FINDING THAT THE ACTS ALLEGED IN THE

INFORMATION ARE NOT PUNISHABLE BY LAW;

The author or editor of a book or pamphlet, or the

editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he
were the author thereof.

2.

ADMITTING AN AMENDED INFORMATION

JURISDICTIONAL ALLEGATIONS CONTINUES
DEFICIENT; and

WHOSE
TO BE

3.

NOT RULING THAT AN AMENDMENT IN THE

INFORMATION FOR THE PURPOSE OF CURING
JURISDICTIONAL DEFECTS IS ILLEGAL.345[27]

The criminal action and civil action for damages in

cases of written defamations, as provided for in this
chapter shall be filed simultaneously or separately with the
346
347

343

348

344

349

345

350

Court of First Instance of the province or city where the

libelous article is printed and first published or where
any of the offended parties actually resides at the time of
the commission of the offense: Provided, however, That
where one of the offended parties is a public officer whose
office is in the City of Manila at the time of the commission
of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province
where the libelous article is printed and first published, and
in case such public officer does not hold office in the City of
Manila, the action shall be filed in the Court of First
Instance of the province or city where he held office at the
time of the commission of the offense or where the libelous
article is printed and first published and in case one of the
offended parties is a private individual, the action shall be
filed in the Court of First Instance of the province or city
where he actually resides at the time of the commission of
the offense or where the libelous matter is printed and first
published x x x. (emphasis and underscoring supplied)

the circumstance as to where the libel was printed

and first published is used as the basis of the venue
of the action. (emphasis and underscoring supplied)
It becomes clear that the venue of libel cases where the
complainant is a private individual is limited to only either of two places,
namely: 1) where the complainant actually resides at the time of the
commission of the offense; or 2) where the alleged defamatory article was
printed and first published. The Amended Information in the present case
opted to lay the venue by availing of the second. Thus, it stated that the
offending article was first published and accessed by the private
complainant in Makati City. In other words, it considered the phrase to be
equivalent to the requisite allegation of printing and first publication.
The insufficiency of the allegations in the Amended Information to
vest jurisdiction in Makati becomes pronounced upon an examination of
the rationale for the amendment to Article 360 by RA No. 4363. Chavez v.
Court of Appeals354[36] explained the nature of these changes:
Agbayani supplies a comprehensive restatement of
the rules of venue in actions for criminal libel, following the
amendment by Rep. Act No. 4363 of the Revised Penal
Code:

Venue is jurisdictional in criminal actions such that the place where

the crime was committed determines not only the venue of the action but
constitutes an essential element of jurisdiction. 351[33] This principle
acquires even greater import in libel cases, given that Article 360, as
amended, specifically provides for the possible venues for the institution of
the criminal and civil aspects of such cases.

Article 360 in its original form provided that the

venue of the criminal and civil actions for written
defamations is the province wherein the libel was
published, displayed or exhibited, regardless of the place
where the same was written, printed or composed. Article
360 originally did not specify the public officers and the
courts that may conduct the preliminary investigation of
complaints for libel.

In Macasaet,352[34] the Court reiterated its earlier pronouncements

in Agbayani v. Sayo353[35] which laid out the rules on venue in libel cases,
viz:
For the guidance, therefore, of both the bench and
the bar, this Court finds it appropriate to reiterate our
earlier pronouncement in the case of Agbayani, to wit:

Before article 360 was amended, the rule was that

a criminal action for libel may be instituted in any
jurisdiction where the libelous article was published or
circulated, irrespective of where it was written or printed
(People v. Borja, 43 Phil. 618). Under that rule, the criminal
action is transitory and the injured party has a choice of
venue.

In order to obviate controversies as to the venue of

the criminal action for written defamation, the complaint or
information should contain allegations as to whether, at
the time the offense was committed, the offended party
was a public officer or a private individual and where he
was actually residing at that time. Whenever
possible, the place where the written defamation
was printed and first published should likewise be
alleged. That allegation would be a sine qua non if

Experience had shown that under that old

rule the offended party could harass the accused in
a libel case by laying the venue of the criminal
action in a remote or distant place.
Thus, in connection with an article published in the
Daily Mirror and the Philippine Free Press, Pio Pedrosa,
Manuel V. Villareal and Joaquin Roces were charged with

351
352
353

354

libel in the justice of the peace court of San Fabian,

Pangasinan (Amansec v. De Guzman, 93 Phil. 933).

Respecting the contention that the venue requirements imposed

by Article 360, as amended, are unduly oppressive, the Courts
pronouncements in Chavez355[37] are instructive:

To forestall such harassment, Republic Act

No. 4363 was enacted. It lays down specific rules as
to the venue of the criminal action so as to prevent
the offended party in written defamation cases from
inconveniencing the accused by means of out-oftown libel suits, meaning complaints filed in remote
municipal courts (Explanatory Note for the bill which
became Republic Act No. 4363, Congressional Record of
May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May
31, 1971, 39 SCRA 303, 311).

For us to grant the present petition, it would be

necessary to abandon the Agbayani rule providing that a
private person must file the complaint for libel either in the
place of printing and first publication, or at the
complainants place of residence. We would also have to
abandon the subsequent cases that reiterate this rule in
Agbayani, such as Soriano, Agustin, and Macasaet. There is
no convincing reason to resort to such a radical action.
These limitations imposed on libel actions filed by
private persons are hardly onerous, especially as
they still allow such persons to file the civil or
criminal complaint in their respective places of
residence, in which situation there is no need to
embark on a quest to determine with precision
where the libelous matter was printed and first
published.

x x x x (emphasis and underscoring supplied)

Clearly, the evil sought to be prevented by the amendment to
Article 360 was the indiscriminate or arbitrary laying of the venue in libel
cases in distant, isolated or far-flung areas, meant to accomplish nothing
more than harass or intimidate an accused. The disparity or unevenness of
the situation becomes even more acute where the offended party is a
person of sufficient means or possesses influence, and is motivated by
spite or the need for revenge.
If the circumstances as to where the libel was printed and first
published are used by the offended party as basis for the venue in the
criminal action, the Information must allege with particularity where the
defamatory article was printed and first published, as evidenced or
supported by, for instance, the address of their editorial or business offices
in the case of newspapers, magazines or serial publications. This precondition becomes necessary in order to forestall any inclination to harass.

(Emphasis and underscoring supplied.)

IN FINE, the public respondent committed grave abuse of discretion
in denying petitioners motion to quash the Amended Information.
WHEREFORE, the petition is GRANTED. The assailed Order of
April 22, 2008 and the Joint Resolution of August 12, 2008 are hereby SET
ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby DIRECTED
TO QUASH the Amended Information in Criminal Case No. 06-876 and
DISMISS the case.

The same measure cannot be reasonably expected when it

pertains to defamatory material appearing on a website on the internet as
there would be no way of determining the situs of its printing and first
publication. To credit Gimenezs premise of equating his first access to the
defamatory article on petitioners website in Makati with printing and first
publication would spawn the very ills that the amendment to Article 360 of
the RPC sought to discourage and prevent. It hardly requires much
imagination to see the chaos that would ensue in situations where the
websites author or writer, a blogger or anyone who posts messages therein
could be sued for libel anywhere in the Philippines that the private
complainant may have allegedly accessed the offending website.

SO ORDERED

For the Court to hold that the Amended Information sufficiently

vested jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit
being filed in all other locations where the pepcoalition website is likewise
accessed or capable of being accessed.
355