1.
Manalo vs CA
DECISION
PUNO, J.:
This petition for certiorari seeks the review of the Decision of the
Court of Appeals in C.A.-G.R. SP. No. 50341 promulgated December
23, 1999, which affirmed an Order issued by the Regional Trial
Court, Branch 112, Pasay City, in Civil Case No. 9011 dated
December 9, 1998.
On July 19, 1983, S. Villanueva Enterprises, represented by its
president, Therese Villanueva Vargas, obtained a loan of three
million pesos (P3,000,000.00) and one million pesos
(P1,000,000.00) from the respondent PAIC Savings and Mortgage
Bank and the Philippine American Investments Corporation (PAIC),
respectively. To secure payment of both debts, Vargas executed in
favor of the respondent and PAIC a Joint First Mortgage[1] over two
parcels of land registered under her name. One of the lots, located
in Pasay City with an area of nine hundred nineteen square meters
(919 sq.m.) and covered by TCT No. 6076, is the subject of the
present case. Section 2 of the mortgage contract states that "the
properties mortgaged therein shall include all buildings and
improvements existing on the mortgaged property at the time of the
execution of the mortgage contract and thereafter."[2]
S. Villanueva Enterprises defaulted in paying the amortizations due.
Despite repeated demands from the respondent, it failed to settle its
loan obligation. Accordingly, respondent instituted extrajudicial
foreclosure proceedings over the mortgaged lots. On August 22,
1984, the Pasay City property was sold at a public auction to the
respondent itself, after tendering the highest bid. The respondent
then caused the annotation of the corresponding Sheriff's Certificate
of Sale[3] on the title of the land on December 4, 1984. After the
lapse of one year, or the statutory period extended by law to a
mortgagor to exercise his/her right of redemption, title was
consolidated in respondent's name for failure of Vargas to redeem.
On October 29, 1986, the Central Bank of the Philippines filed a
Petition[4] for assistance in the liquidation of the respondent with
the Regional Trial Court. The petition was given due course in an
Order[5] dated May 19, 1987.
It appears that from the years 1986 to 1991, Vargas negotiated with
the respondent (through its then liquidator, the Central Bank) for
the repurchase of the foreclosed property. The negotiations,
however, fizzled out as Vargas cannot afford the repurchase price
fixed by the respondent based on the appraised value of the land at
that time. On October 4, 1991, Vargas filed a case for annulment of
mortgage and extra-judicial foreclosure sale before Branch 116 of
the Pasay City Regional Trial Court. On July 22, 1993, the court
rendered a decision[6] dismissing the complaint and upholding the
validity of the mortgage and foreclosure sale. On appeal, the
appellate court upheld the assailed judgment and declared the said
mortgage and foreclosure proceedings to be in accord with law.[7]
This decision of the Court of Appeals subsequently became final and
executory when we summarily dismissed Vargas's Petition for
Review on Certiorari for having been filed beyond the reglementary
period.[8]
In the meantime, on June 22, 1992, respondent petitioned the
Regional Trial Court, Branch 112, of Pasay City, herein court a quo,
for the issuance of a writ of possession for the subject property in
Civil Case No. 9011. This is in view of the consolidation of its
ownership over the same as mentioned earlier. Vargas and S.
Villanueva Enterprises, Inc. filed their opposition thereto. After
which, trial ensued.
During the pendency of Civil Case No. 9011 (for the issuance of a
writ of possession), Vargas, on December 23, 1992, executed a
Deed of Absolute Sale[9] selling, transferring, and conveying
ownership of the disputed lot in favor of a certain Armando Angsico.
Notwithstanding this sale, Vargas, still representing herself to be the
lawful owner of the property, leased the same to petitioner Domingo
R. Manalo on August 25, 1994. Pertinent provisions of the lease
agreement[10] state:
"3. (a) The lease is for a period of ten year lease (sic), involving 450
square meters, a portion of the above 919 square meter property.
x x x (d) The LESSEE has to introduce into the said 450 square
meter premises improvements thereon (sic) consisting of one story
building to house a Karaoke Music Restaurant Business, which
improvements constructed therof (sic), upon the termination of the
lease contract, by said LESSEE be surrendered in favor of the
LESSOR (sic)."[11]
Later, on June 29, 1997, Armando Angsico, as buyer of the property,
assigned his rights therein to petitioner.[12]
On April 21, 1998, the court a quo granted the petition for the
issuance of the Writ of Possession.[13] The writ was subsequently
issued on April 24, 1998, the pertinent portion of which reads:[14]
"NOW THEREFORE you are hereby commanded that you cause
oppositors THERESE VILLANUEVA VARGAS and S. VILLANUEVA
ENTERPRISES, INC. and any and all persons claiming rights or title
under them, to forthwith vacate and surrender the possession of
subject premises in question known as that parcel of land and
improvements covered by TCT No. 6076 of the Registry of Deeds of
Pasay City; you are hereby further ordered to take possession and
deliver to the petitioner PAIC SAVINGS AND MORTGAGE BANK the
subject parcel of land and improvements."
Shortly, on May 8, 1998, S. Villanueva Enterprises and Vargas
moved for its quashal.[15] Thereafter on June 25, 1998, petitioner,
on the strength of the lease contract and Deed of Assignment made
in his favor, submitted a Permission to File an Ex-parte Motion to
Intervene.[16] It bears mentioning, however, that before petitioner
sought intervention in the present case, he had separately instituted
a Complaint for Mandamus, docketed as Civil Case No. 98-0868
before another branch[17] of the Pasay City RTC to compel PAIC
Bank to allow him to repurchase the subject property.
On October 7, 1998, the court a quo denied the Motion to Quash
and Motion to Intervene filed respectively by Vargas and petitioner.
[18] A Motion for Reconsideration and a Supplemental Motion for
Reconsideration were filed by the petitioner which, however, were
similarly denied on December 9, 1998.
Petitioner then sought relief with the Court of Appeals, filing therein
a Petition for Certiorari. While this was awaiting resolution, he
entered into another lease agreement,[19] this time with the
respondent, represented by its liquidator, over the same 450 sq.m.
portion of the lot. The contract fixed a period of one month
beginning January 28, 1999, renewable for another month at the
exclusive option of the lessor, respondent PAIC Bank.
On December 23, 1999, the appellate court rendered the impugned
Decision, dismissing the petition, thus:
"All told, WE find the Order, subject of the instant Petition for
Certiorari and Prohibition, to be not without rational bases and we
observe that the court a quo, in issuing its questioned Order,
committed no grave abuse of discretion amounting to lack of
jurisdiction.
WHEREFORE, the Petition for Certiorari and Prohibition is hereby
DISMISSED and the assailed December 9, 1998 Order is AFFIRMED
in all respects.
SO ORDERED."[20]
Hence, this appeal, where petitioner raises and argues the following
legal issues:
"I. Whether or not public respondent acted without or in excess of
its jurisdiction and/or was patently in error when it affirmed the
denial of petitioner's motion for intervention, despite the fact that he
has a legal interest, being a lessee and an assignee of the property
subject matter of this case.
II. Whether or not the public respondent committed grave abuse of
discretion when it held that what are required to be instituted before
the liquidation court are those claims against the insolvent banks
only considering that the private respondent bank is legally dead
due to insolvency and considering further that there is already a
liquidation court (Regional Trial Court of Makati, Branch 57,
docketed as Spec. Pro. No. M-1280) which is exclusively vested with
jurisdiction to hear all matters and incidents on liquidation pursuant
to Section 29, Republic Act No. 265, otherwise known as The Central
Bank Act, as amended.
III. Whether or not the public respondent committed grave abuse of
discretion and/or was patently in error in affirming the ruling of the
trial court, totally disregarding the arguments raised in petitioner's
supplemental motion for reconsideration only through a minute
order and without taking into consideration the fact that there is a
pending action in another court (RTC, Pasay City, Branch 231) which
presents a prejudicial question to the case at bar.
IV. Whether or not the petitioner is estopped from questioning
private respondent's ownership when it entered into a contract of
lease involving the property in question."[21]

We will first resolve the jurisdictional and procedural questions
raised by the petitioner.
I.
Petitioner postulates that the lower court should have dismissed
respondent's "Ex-Parte Petition for Issuance of Writ of Possession" in
Civil Case No. P-9011 for want of jurisdiction over the subject
matter of the claim. The power to hear the same, he insists,
exclusively vests with the Liquidation Court pursuant to Section 29
of Republic Act No. 265, otherwise known as The Central Bank Act.
[22] He then cites our decision in Valenzuela v. Court of Appeals,
[23] where we held that "if there is a judicial liquidation of an
insolvent bank, all claims against the bank should be filed in the
liquidation proceeding." For going to another court, the respondent,
he accuses, is guilty of forum shopping.
These contentions can not pass judicial muster. The pertinent
portion of Section 29 states:
"x x x The liquidator designated as hereunder provided shall, by the
Solicitor General, file a petition in the Regional Trial Court reciting
the proceedings which have been taken and praying the assistance
of the court in the liquidation of such institution. The court shall
have jurisdiction in the same proceedings to assist in the
adjudication of disputed claims against the bank or non-bank
financial intermediary performing quasi-banking functions and the
enforcement of individual liabilites of the stockholders and do all
that is necessary to preserve the assets of such institution and to
implement the liquidation plan approved by the Monetary Board. x x
x"[24] (emphasis supplied.)
Petitioner apparently failed to appreciate the correct meaning and
import of the above-quoted law. The legal provision only finds
operation in cases where there are claims against an insolvent bank.
In fine, the exclusive jurisdiction of the liquidation court pertains
only to the adjudication of claims against the bank. It does not
cover the reverse situation where it is the bank which files a claim
against another person or legal entity.
This interpretation of Section 29 becomes more obvious in the light
of its intent. The requirement that all claims against the bank be
pursued in the liquidation proceedings filed by the Central Bank is
intended to prevent multiplicity of actions against the insolvent bank
and designed to establish due process and orderliness in the
liquidation of the bank, to obviate the proliferation of litigations and
to avoid injustice and arbitrariness.[25] The lawmaking body
contemplated that for convenience, only one court, if possible,
should pass upon the claims against the insolvent bank and that the
liquidation court should assist the Superintendents of Banks and
regulate his operations.[26]
It then ought to follow that petitioner's reliance on Section 29 and
the Valenzuela case is misplaced. The Petition for the Issuance of a
Writ of Possession in Civil Case No. 9011 is not in the nature of a
disputed claim against the bank. On the contrary, it is an action
instituted by the respondent bank itself for the preservation of its
asset and protection of its property. It was filed upon the instance of
the respondent's liquidator in order to take possession of a tract of
land over which it has ownership claims.
To be sure, the liquidator took the proper course of action when it
applied for a writ in the Pasay City RTC. Act 3135,[27] entitled An
Act to Regulate the Sale of Property Under Special Powers Inserted
In or Annexed To Real Estate Mortgages, mandates that jurisdiction
over a Petition for Writ of Possession lies with the court of the
province, city, or municipality where the property subject thereof is
situated. This is sanctioned by Section 7 of the said Act, thus:
"Section 7. In any sale made under the provisions of this Act, the
purchaser may petition the Court of First Instance of the province or
place where the property or any part thereof is situated, to give him
possession thereof during the redemption period, furnishing bond in
an amount equivalent to the use of the property for a period of
twelve months, to indemnify the debtor in case it be shown that the
sale was made without violating the mortgage or without complying
with the requirements of this Act. x x x"[28] (emphasis supplied)
Since the land subject of this controversy is located in Pasay City,
then the city's RTC should rightly take cognizance of the case, to the
exclusion of other courts.
Anent petitioner's auxiliary contention that respondent should be
held guilty of forum shopping for not filing the case in the liquidation
court, suffice it to state here that the doctrine only ponders
situations where two (or more) cases are pending before different
tribunals.[29] Well to point, we have laid down the yardstick to
determine whether a party violated the rule against forum shopping
as where the elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in the other.[30]
Inasmuch as the case at bar is the only one filed by the respondent
for the issuance of a writ of possession over the subject property,
there is no occasion for the doctrine to apply.
Petitioner next casts doubt on the capacity of the respondent to
continue litigating the petition for the issuance of the writ. He
asserts that, being under liquidation, respondent bank is already a
"dead" corporation that cannot maintain the suit in the RTC. Hence,
no writ may be issued in its favor.
The argument is devoid of merit. A bank which had been ordered
closed by the monetary board retains its juridical personality which
can sue and be sued through its liquidator. The only limitation being
that the prosecution or defense of the action must be done through
the liquidator.[31] Otherwise, no suit for or against an insolvent
entity would prosper. In such situation, banks in liquidation would
lose what justly belongs to them through a mere technicality.[32]
That the law allows a bank under liquidation to participate in an
action can be clearly inferred from the third paragraph of the same
Section 29 of The Central Bank Act earlier quoted, which authorizes
or empowers a liquidator to institute actions, thus:
"x x x and he (liquidator) may in the name of the bank or non-bank
financial intermediary performing quasi-banking functions and with
the assistance of counsel as he may retain, institute such actions as
may be necessary in the appropriate court to collect and recover
accounts and assests of such institution or defend any action filed
against the institution."[33] (emphasis supplied.)
It is therefore beyond dispute that respondent was legally
capacitated to petition the court a quo for the issuance of the writ.
II.
Petitioner likewise proffers one other procedural obstacle, which is
the pendency of Civil Case No. 98-0868 in Branch 231 of Pasay City
RTC. The said action is the complaint he filed against the respondent
for the latter to receive and accept the redemption price of eighteen
million pesos for the subject property. He argues that the primary
issue therein constitutes a prejudicial question in relation to the
present case in that if the Court therein will grant petitioner's prayer,
then this will necessarily negate the possessory writ issued by the
court a quo.
Again, we are not persuaded. A prejudicial question is one which
arises in a case the resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which pertains to
another tribunal.[34] It generally comes into play in a situation
where a civil action and a criminal action are both pending and there
exists in the former an issue which must be preemptively resolved
before the criminal action may proceed, because howsoever the
issue raised in the civil action is resolved would be determinative
juris et de jure of the guilt or innocence of the accused in the
criminal case. The rationale behind the principle of prejudicial
question is to avoid two conflicting decisions.[35]
Here, aside from the fact that Civil Case No. 98-0868 and the
present one are both civil in nature and therefore no prejudicial
question can arise from the existence of the two actions,[36] it is
apparent that the former action was instituted merely to frustrate
the Court's ruling in the case at bar granting the respondent the
right to possess the subject property. It is but a canny and
preemptive maneuver on the part of the petitioner to delay, if not
prevent, the execution of a judgment adverse to his interests. It
bears stressing that the complaint for mandamus was filed only on
May 7, 1998, sixteen days after the lower court granted
respondent's petition and thirteen days after it issued the writ. It
cannot then possibly prejudice a decided case.
At any rate, it taxes our imagination why the questions raised in
Case No. 98-0868 must be considered determinative of Case No.
9011. The basic issue in the former is whether the respondent, as
the purchaser in the extra-judicial foreclosure proceedings, may be
compelled to have the property repurchased or resold to a
mortgagor's successor-in-interest (petitioner); while that in the
latter is merely whether the respondent, as the purchaser in the
extra-judicial foreclosure proceedings, is entitled to a writ of
possession after the statutory period for redemption has expired.
The two cases, assuming both are pending, can proceed separately
and take their own direction independent of each other.
III.
Having disposed of the jurisdictional and procedural issues, we now
come to the merits of the case. Petitioner seeks intervention in this
case by virtue of the lease agreement and the deed of assignment
executed in his favor by the mortgagor (Vargas) and an alleged
buyer (Angsico) of the land, respectively. He posits that as a lessee
and assignee in possession of the foreclosed real estate, he
automatically acquires interest over the subject matter of the
litigation. This interest is coupled with the fact that he introduced
improvements thereon, consisting of a one-storey building which
houses a karaoke-music restaurant, allegedly to the tune of fifteen
million pesos (P15,000,000.00). Enforcing the writ, he adds, without
hearing his side would be an injustice to him.
Intervention is a remedy by which a third party, not originally
impleaded in the proceeding, becomes a litigant therein to enable
him to protect or preserve a right or interest which may be affected
by such proceeding.[37] The pertinent provision is stated in Section
1, Rule 19 of the 1997 Rules of Civil Procedure, thus:
"Section 1. Who may intervene. - A person who has a legal interest
in the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not
the intervenor's rights may be fully protected in a separate
proceeding."[38]
Intervention is not a matter of right but may be permitted by the
courts only when the statutory conditions for the right to intervene
is shown.[39] Thus, the allowance or disallowance of a motion to
intervene is addressed to the sound discretion of the court.[40] In
determining the propriety of letting a party intervene in a case, the
tribunal should not limit itself to inquiring whether "a person (1) has
a legal interest in the matter in litigation; (2) or in the success of
either of the parties; (3) or an interest against both; (4) or when is
so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer
thereof."[41] Just as important, as we have stated in Big Country
Ranch Corporation v. Court of Appeals,[42] is the function to
consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully protected in a
separate proceeding.
The period within which a person may intervene is also restricted.
Section 2, Rule 19 of the 1997 Rules of Civil Procedure requires:
"Section 2. Time to intervene. - The motion to intervene may be
filed at any time before the rendition of judgment by the trial court.
x x x"
After the lapse of this period, it will not be warranted anymore. This
is because, basically, intervention is not an independent action but is
ancillary and supplemental to an existing litigation.[43]
Taking into account these fundamental precepts, we rule that the
petitioner may not properly intervene in the case at bar. His
insistence to participate in the proceeding is an unfortunate case of
too little, too late.
In the first place, petitioner's Ex-parte Permission to File a Motion to
Intervene was submitted to the RTC only on June 25, 1998. At that
stage, the lower court had already granted respondent's petition for
the writ in an Order dated April 21, 1998. It had issued the Writ of
Possession on April 24, 1998. Petitioner's motion then was clearly
out of time, having been filed only at the execution stage. For that
reason alone, it must meet the consequence of denial. While it is
true that on May 8, 1998, Vargas and S. Villanueva Enterprises
moved to quash the writ, that did not in any way affect the nature
of the RTC's Order as an adjudication on the merits. The issuance of
the Order is in essence a rendition of judgment within the purview
of Section 2, Rule 19.
Allowing petitioner to intervene, furthermore, will serve no other
purpose but to unduly delay the execution of the writ, to the
prejudice of the respondent. This cannot be countenanced
considering that after the consolidation of title in the buyer's name,
for failure of the mortgagor to redeem, the writ of possession
becomes a matter of right.[44] Its issuance to a purchaser in an
extra-judicial foreclosure is merely a ministerial function.[45] As
such, the court neither exercises its official discretion nor judgment.
[46] If only to stress the writ's ministerial character, we have, in
previous cases, disallowed injunction to prohibit its issuance,[47] ventilate his side to a fuller extent as that would be the more
just as we have held that issuance of the same may not be stayed appropriate venue for elucidating whatever legal basis he alleges in
by a pending action for annulment of mortgage or the foreclosure compelling the respondent to sell to him the currently disputed
itself.[48] land.

Even if he anchors his intervention on the purported interest he has
over the land and the improvements thereon, petitioner, still, should
not be allowed to do so. He admits that he is a mere lessee and
assignee. Whatever possessory rights he holds only emanate from
that of Vargas, from whom he leased the lot, and from whom his
assignor/predecessor-in-interest bought it. Therein lies the
precariousness of his title. Petitioner cannot validly predicate his
supposed interest over the property in litigation on that of Vargas,
for the simple reason that as early as December 4, 1985, the latter
has already been stripped of all her rights over the land when she,
as mortgagor, failed to redeem it. A mortgagor has only one year
within which to redeem her foreclosed real estate.[49] After that
period, she loses all her interests over it. This is in consonance with
Section 78 of the General Banking Act,[50] viz.:
"x x x In the event of foreclosure, whether judicially or
extrajudicially, of any mortgage on real estate which is security for
any loan granted before the passage of this Act or the provisions of
this Act, the mortgagor or debtor whose real property has been sold
at public auction, judicially or extrajudicially, for the full or partial
payment of an obligation to any bank, banking or credit institution,
within the purview of this Act shall have the right, within one year
after the sale of the real estate mortgage as a result of the
foreclosure of the respective mortgage, to redeem the property by
paying the amount fixed by the court in the order or execution x x
x."[51] (emphasis supplied.)
IV.
This brings us to petitioner's final point. He briefly asserts that his
act of entering into a lease contract with the respondent should not
affect his right to redeem the subject property.
The possible legal implication of the lease on the petitioner's act of
trying to redeem the disputed lot is a question which, in our opinion,
can best be resolved in the mandamus complaint. Whether the
agreement must be construed as a waiver on his part of exercising
his purported right of redemption is an issue best left for the court
therein to decide. Whether by acknowledging the legality of the
respondent's claim and title over the land at the time of the
execution of the contract, he likewise perpetually barred himself
from redeeming the same is a matter which can be addressed most
aptly in that pending action. Hence, there is presently no need for
us to squarely rule on this ultimate point.
IN VIEW WHEREOF, finding no cogent reason to disturb the
assailed Decision, the instant petition is hereby DENIED.
SO ORDERED.

Being herself bereft of valid title and rights, Vargas can not
legitimately convey any to some other person. She could not have
lawfully sold the land to Angsico nor leased it to petitioner for her
own account. It is axiomatic that one can not transmit what one
does not have.[52] It ought to follow that petitioner could not have
acquired any right or interest from Vargas.

Withal, all is not lost for the petitioner. He can still fully protect his
rights in Civil Case No. 98-0868 or the complaint for mandamus he
filed before Branch 231 of the Pasay City RTC. There, he can

2. Te vs CA
DECISION
Before us is a petition for review on certiorari which seeks to reverse
the Decision of the Court of Appeals Tenth Division, dated 31 August
1994 in CA-G.R. SP No. 23971[1] and CA-G.R. SP No. 26178[2] and
the Resolution dated October 18, 1996 denying petitioner's motion
for reconsideration.
The facts of the case are as follows:
Petitioner Arthur Te and private respondent Liliana Choa were
married in civil rites on September 14, 1988. They did not live
together after the marriage although they would meet each other
regularly. Not long after private respondent gave birth to a girl on
April 21, 1989, petitioner stopped visiting her.[3]
On May 20, 1990, while his marriage with private respondent was
subsisting, petitioner contracted a second marriage with a certain
Julieta Santella (Santella).[4]
On the basis of a complaint-affidavit filed by private respondent
sometime in June 1990, when she learned about petitioner's
marriage to Santella, an information charging petitioner with bigamy
was filed with the Regional Trial Court (RTC) of Quezon City on
August 9, 1990.[5] This case was docketed as Criminal Case No. Q-
90-14409.[6]
Meanwhile, on July 20, 1990, petitioner filed in the RTC of Quezon
City an action for the annulment of his marriage to private
respondent on the ground that he was forced to marry her. He
alleged that private respondent concealed her pregnancy by another
man at the time of their marriage and that she was psychologically
incapacitated to perform her essential marital obligations.[7]
On November 8, 1990, private respondent also filed with the
Professional Regulation Commission (PRC) an administrative case
against petitioner and Santella for the revocation of their respective
engineering licenses on the ground that they committed acts of
immorality by living together and subsequently marrying each other
despite their knowledge that at the time of their marriage, petitioner
was already married to private respondent. With respect to
petitioner, private respondent added that he committed an act of
falsification by stating in his marriage contract with Santella that he
was still single.[8]
After the prosecution rested its case in the criminal case for bigamy,
petitioner filed a demurrer to evidence with leave of court and
motion to inhibit the trial court judge for showing antagonism and
animosity towards petitioner's counsel during the hearings of said
case.
The trial court denied petitioner's demurrer to evidence in an Order
dated November 28, 1990 which stated that the same could not be
granted because the prosecution had sufficiently established a prima
facie case against the accused.[9] The RTC also denied petitioner's
motion to inhibit for lack of legal basis.[10]
Petitioner then filed with the Court of Appeals a petition for
certiorari, alleging grave abuse of discretion on the part of the trial
court judge, Judge Cezar C. Peralejo, for (1) exhibiting antagonism
and animosity towards petitioner's counsel; (2) violating the
requirements of due process by denying petitioner's [motion for
reconsideration and] demurrer to evidence even before the filing of
the same; (3) disregarding and failing to comply with the
appropriate guidelines for judges promulgated by the Supreme
Court; and (4) ruling that in a criminal case only "prima facie
evidence" is sufficient for conviction of an accused. This case was
docketed as CA-G.R. SP No. 23971.[11]
Petitioner also filed with the Board of Civil Engineering of the PRC
(PRC Board), where the administrative case for the revocation of his
engineering license was pending, a motion to suspend the
proceedings therein in view of the pendency of the civil case for
annulment of his marriage to private respondent and criminal case
for bigamy in Branches 106 and 98, respectively of the RTC of
Quezon City.[12] When the Board denied the said motion in its
Order dated July 16, 1991,[13] petitioner filed with the Court of
Appeals another petition for certiorari, contending that the Board
gravely abused its discretion in: (1) failing to hold that the
resolution of the annulment case is prejudicial to the outcome of the
administrative case pending before it; (2) not holding that the
continuation of proceedings in the administrative case could render
nugatory petitioner's right against self-incrimination in this criminal
case for bigamy against him; and (3) making an overly-sweeping
interpretation that Section 32 of the Rules and Regulations
Governing the Regulation and Practice of Professionals does not
allow the suspension of the administrative proceeding before the
PRC Board despite the pendency of criminal and/or administrative
proceedings against the same respondent involving the same set of
facts in other courts or tribunals. This petition was docketed as CA-
G.R. SP No. 26178.[14]
The two petitions for certiorari were consolidated since they arose
from the same set of facts.
On 31 August 1994, the Court of Appeals, Tenth Division, rendered
the assailed decision in the consolidated petitions. The appellate
court upheld the RTC's denial of the motion to inhibit due to
petitioner's failure to show any concrete evidence that the trial court
judge exhibited partiality and had prejudged the case. It also ruled
that the denial of petitioner's motion to suspend the proceedings on
the ground of prejudicial question was in accord with law.[15] The
Court of Appeals likewise affirmed the RTC's denial of the demurrer
to evidence filed by petitioner for his failure to set forth persuasive
grounds to support the same, considering that the prosecution was
able to adduce evidence showing the existence of the elements of
bigamy.[16]
Neither did the appellate court find grave abuse of discretion on the
part of the Board's Order denying petitioner's motion to suspend
proceedings in the administrative case on the ground of prejudicial
question. Respondent court held that no prejudicial question existed
since the action sought to be suspended is administrative in nature,
and the other action involved is a civil case.[17]
Petitioner thereafter filed a motion for reconsideration of the
decision of the Court of Appeals but the same was denied.[18]
Hence, petitioner filed the instant petition raising the following
issues:
I
PUBLIC RESPONDENT COMMITTED A SERIOUS ERROR IN REFUSING
TO SUSPEND THE LEGAL [CRIMINAL AND ADMINISTRATIVE]
PROCEEDINGS DESPITE THE PENDENCY OF THE CIVIL CASE FOR
DECLARATION OF NULLITY OF MARRIAGE.
II
PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND
COMMITTED AN ERROR OF LAW IN NOT HOLDING THAT THE
DEMURRER TO EVIDENCE SHOULD HAVE BEEN GIVEN DUE
COURSE.
III
PUBLIC RESPONDENT COMMITTED A SERIOUS LEGAL ERROR IN
NOT HOLDING THAT THE TRIAL JUDGE A QUO SHOULD HAVE
INHIBITED HIMSELF.[19]
The petition has no merit.
While the termination of Civil Case No. Q-90-6205 for annulment of
petitioner's marriage to private respondent has rendered the issue
of the propriety of suspending both the criminal case for bigamy
before the RTC of Quezon City, Branch 98 and the administrative
case for revocation of petitioner's engineering license before the PRC
Board moot and academic, the Court shall discuss the issue of
prejudicial question to emphasize the guarding and controlling
precepts and rules.[20]
A prejudicial question has been defined as one based on a fact
distinct and separate from the crime but so intimately connected
with it that it determines the guilt or innocence of the accused, and
for it to suspend the criminal action, it must appear not only that
said case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the resolution
of the issue or issues raised in the civil case, the guilt or innocence
of the accused would necessarily be determined.[21] The rationale
behind the principle of suspending a criminal case in view of a
prejudicial question is to avoid two conflicting decisions.[22]
The Court of Appeals did not err when it ruled that the pendency of
the civil case for annulment of marriage filed by petitioner against
private respondent did not pose a prejudicial question which would
necessitate that the criminal case for bigamy be suspended until
said civil case is terminated.
The outcome of the civil case for annulment of petitioner's marriage
to private respondent had no bearing upon the determination of
petitioner's innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is
that the first marriage be subsisting at the time the second marriage
is contracted.[23] Petitioner's argument that the nullity of his
marriage to private respondent had to be resolved first in the civil
case before the criminal proceedings could continue, because a
declaration that their marriage was void ab initio would necessarily
absolve him from criminal liability, is untenable. The ruling in People
vs. Mendoza[24] and People vs. Aragon[25] cited by petitioner that
no judicial decree is necessary to establish the invalidity of a
marriage which is void ab initio has been overturned. The prevailing
rule is found in Article 40 of the Family Code, which was already in
effect at the time of petitioner's marriage to private respondent in
September 1988. Said article states that the absolute nullity of a
previous marriage may not be invoked for purposes of remarriage
unless there is a final judgment declaring such previous marriage
void. Thus, under the law, a marriage, even one which is void or
voidable, shall be deemed valid until declared otherwise in a judicial
proceeding.[26] In Landicho vs. Relova,[27] we held that:
Parties to a marriage should not be permitted to judge for
themselves its nullity, for this must be submitted to the judgment of
competent courts and only when the nullity of a marriage is so
declared can it be held as void, and so long as there is no such
declaration the presumption of marriage exists.[28]
It is clear from the foregoing that the pendency of the civil case for
annulment of petitioner's marriage to private respondent did not
give rise to a prejudicial question which warranted the suspension of
the proceedings in the criminal case for bigamy since at the time of
the alleged commission of the crime, their marriage was, under the
law, still valid and subsisting.
Neither did the filing of said civil case for annulment necessitate the
suspension of the administrative proceedings before the PRC Board.
As discussed above, the concept of prejudicial question involves a
civil and a criminal case. We have previously ruled that there is no
prejudicial question where one case is administrative and the other
is civil.[29]
Furthermore, Section 32 of the Rules and Regulations Governing the
Regulation and Practice of Professionals of the PRC Board expressly
provides that the administrative proceedings before it shall not be
suspended notwithstanding the existence of a criminal and/or civil
case against the respondent involving the same facts as the
administrative case:
The filing or pendency of a criminal and/or civil cases in the courts
or an administrative case in another judicial body against an
examinee or registered professional involving the same facts as in
the administrative case filed or to be filed before the Board shall
neither suspend nor bar the proceeding of the latter case. The Board
shall proceed independently with the investigation of the case and
shall render therein its decision without awaiting for the final
decision of the courts or quasi-judicial body.
It must also be noted that the allegations in the administrative
complaint before the PRC Board are not confined to the issue of the
alleged bigamous marriage contracted by petitioner and Santella.
Petitioner is also charged with immoral conduct for continued failure
to perform his obligations as husband to private respondent and as
father to their child, and for cohabiting with Santella without the
benefit of marriage.[30] The existence of these other charges
justified the continuation of the proceedings before the PRC Board.
Petitioner also contends that the Court of Appeals erred in upholding
the trial court's denial of his demurrer to evidence in the criminal
case for bigamy, arguing that the prosecution failed to establish the
existence of both the first and second marriages beyond reasonable
doubt. Petitioner claims that the original copy of marriage contract
between him and private respondent was not presented, the
signatures therein were not properly identified and there was no
showing that the requisites of a valid marriage were complied with.
He alleges further that the original copy of the marriage contract
between him and Santella was not presented, that no proof that he
signed said contract was adduced, and that there was no witness
presented to show that a second marriage ceremony participated in
by him ever took place.[31]
We are not persuaded. The grant or denial of a demurrer to
evidence is left to the sound discretion of the trial court, and its
ruling on the matter shall not be disturbed in the absence of a grave
abuse of such discretion.[32] In this case, the Court of Appeals did
not find any grave abuse of discretion on the part of the trial court,
which based its denial of the demurrer on two grounds: first, the
prosecution established a prima facie case for bigamy against the
petitioner; and second, petitioner's allegations in the demurrer were
insufficient to justify the grant of the same. It has been held that
the appellate court will not review in a special civil action for
certiorari the prosecution's evidence and decide in advance that
such evidence has or has not yet established the guilt of the
accused beyond reasonable doubt.[33] In view of the trial court's
finding that a prima facie case against petitioner exists, his proper
recourse is to adduce evidence in his defense.[34]
The Court also finds it necessary to correct petitioner's
misimpression that by denying his demurrer to evidence in view of
the existence of a prima facie case against him, the trial court was
already making a pronouncement that he is liable for the offense
charged. As correctly held by the Court of Appeals, the order of the
RTC denying the demurrer was not an adjudication on the merits but
merely an evaluation of the sufficiency of the prosecution's evidence
to determine whether or not a full-blown trial would be necessary to
resolve the case.[35] The RTC's observation that there was a prima
facie case against petitioner only meant that the prosecution had
presented sufficient evidence to sustain its proposition that
petitioner had committed the offense of bigamy, and unless
petitioner presents evidence to rebut the same, such would be the
conclusion.[36] Said declaration by the RTC should not be construed
as a pronouncement of petitioner's guilt. It was precisely because of
such finding that the trial court denied the demurrer, in order that
petitioner may present evidence in his defense and allow said court
to resolve the case based on the evidence adduced by both parties.
Lastly, petitioner contends that his motion to inhibit Judge Peralejo
in Criminal Case No. Q-90-14409 should have been granted since
said judge exhibited partiality and bias against him in several
instances. First, when petitioner manifested that he would file a
motion for reconsideration of the denial of his motion to suspend the
proceedings in said case, the judge said such motion was dilatory
and would be denied even though the motion for reconsideration
had not yet been filed. Second, when petitioner's counsel
manifested that he had just recovered from an accident and was not
physically fit for trial, the judge commented that counsel was merely
trying to delay the case and required said counsel to produce a
medical certificate to support his statement. Third, when petitioner
manifested that he was going to file a demurrer to evidence, the
judge characterized the same as dilatory and declared that he would
deny the same. According to petitioner, the judge's hostile attitude
towards petitioner's counsel as shown in the foregoing instances
justified the grant of his motion to inhibit.
We agree with the appellate court that the grounds raised by
petitioner against Judge Peralejo did not conclusively show that the
latter was biased and had prejudged the case.[37] In People of the
Philippines vs. Court of Appeals,[38] this Court held that while bias
and prejudice have been recognized as valid reasons for the
voluntary inhibition of a judge under Section 1, Rule 137, the
rudimentary rule is that the mere suspicion that a judge is partial is
not enough. There should be clear and convincing evidence to prove
the charge of bias and partiality.[39]
Furthermore, since the grounds raised by petitioner in his motion to
inhibit are not among those expressly mentioned in Section 1, Rule
137 of the Revised Rules of Court, the decision to inhibit himself lay
within the sound discretion of Judge Peralejo. Said provision of law
states:
Section 1. Disqualification of judges. No judge or judicial officer shall
sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or
affinity, or to counsel within the fourth degree, computed according
to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the
subject of review, without the written consent of all parties in
interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in the case, for just and valid reasons other than
those mentioned above.
Thus, it was not mandatory that the judge inhibit himself from
hearing and deciding the case.
This Court does not find any abuse of discretion by respondent
judge in denying petitioner's motion to inhibit. The test for
determining the propriety of the denial of said motion is whether
petitioner was deprived a fair and impartial trial.[40] The instances
when Judge Peralejo allegedly exhibited antagonism and partiality
against petitioner and/or his counsel did not deprive him of a fair
and impartial trial. As discussed earlier, the denial by the judge of
petitioner's motion to suspend the criminal proceeding and the
demurrer to evidence are in accord with law and jurisprudence.
Neither was there anything unreasonable in the requirement that
petitioner's counsel submit a medical certificate to support his claim
that he suffered an accident which rendered him unprepared for
trial. Such requirement was evidently imposed upon petitioner's
counsel to ensure that the resolution of the case was not hampered
by unnecessary and unjustified delays, in keeping with the judge's
duty to disposing of the court's business promptly.[41]

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.
3. Bobis vs Bobis Court, Rule 111, Sec. 5. Elements of prejudicial question. - The two (2)
DECISION essential elements of a prejudicial question are: (a) the civil action involves
On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. an issue similar or intimately related to the issue raised in the criminal
Javier. Without said marriage having been annulled, nullified or terminated, the same action; and (b) the resolution of such issue determines whether or not the
respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on criminal action may proceed. (See also Prado v. People, 218 Phil. 571)]
January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez.
Based on petitioner's complaint-affidavit, an information for bigamy was filed against
(a) the civil action involves an issue similar or intimately related to the issue
respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-
75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, raised in the criminal action; and
respondent initiated a civil action for the judicial declaration of absolute nullity of his (b) the resolution of such issue determines whether or not the criminal
first marriage on the ground that it was celebrated without a marriage license. action may proceed.
Respondent then filed a motion to suspend the proceedings in the criminal case for
bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial A prejudicial question does not conclusively resolve the guilt or innocence of the
question to the criminal case. The trial judge granted the motion to suspend the accused but simply tests the sufficiency of the allegations in the information in order
criminal case in an Order dated December 29, 1998.1 [Rollo, pp. 29-30.] Petitioner to sustain the further prosecution of the criminal case. A party who raises a
filed a motion for reconsideration, but the same was denied. prejudicial question is deemed to have hypothetically admitted that all the essential
elements of a crime have been adequately alleged in the information, considering
Hence, this petition for review on certiorari. Petitioner argues that that the prosecution has not yet presented a single evidence on the indictment or
respondent should have first obtained a judicial declaration of nullity of his may not yet have rested its case. A challenge of the allegations in the information on
the ground of prejudicial question is in effect a question on the merits of the criminal
first marriage before entering into the second marriage, inasmuch as the
charge through a non-criminal suit.
alleged prejudicial question justifying suspension of the bigamy case is no
longer a legal truism pursuant to Article 40 of the Family Code.2 [Petition, p.
Article 40 of the Family Code, which was effective at the time of celebration
6; Rollo, p. 23.]
of the second marriage, requires a prior judicial declaration of nullity of a
previous marriage before a party may remarry. The clear implication of this
The issue to be resolved in this petition is whether the subsequent filing of a
is that it is not for the parties, particularly the accused, to determine the
civil action for declaration of nullity of a previous marriage constitutes a
validity or invalidity of the marriage.8 [Nial v. Badayog, G.R. No. 133778,
prejudicial question to a criminal case for bigamy.
March 14, 2000.] Whether or not the first marriage was void for lack of a
license is a matter of defense because there is still no judicial declaration of
A prejudicial question is one which arises in a case the resolution of which is
its nullity at the time the second marriage was contracted. It should be
a logical antecedent of the issue involved therein.3 [Fortich-Celdran v.
remembered that bigamy can successfully be prosecuted provided all its
Celdran, 19 SCRA 502 (1967); Zapanta v. Montessa; 114 Phil. 428 (1962);
elements concur - two of which are a previous marriage and a subsequent
Merced v. Diez, 109 Phil. 155 (1960); See also People v. Aragon, 94 Phil. 357
marriage which would have been valid had it not been for the existence at
(1954) cited in Dichaves v. Judge Apalit, AM-MTJ-00-1274, June 8, 2000.] It is a
the material time of the first marriage.9 [People v. Dumpo, 62 Phil. 246
question based on a fact distinct and separate from the crime but so
(1935). The elements of bigamy are: (1) the offender has been legally
intimately connected with it that it determines the guilt or innocence of the
married; (2) that the first marriage has not been legally dissolved, or in case
accused.4 [Yap v. Paras, 205 SCRA 625 (1992); Donato v. Luna, 160 SCRA 441
his or her spouse is absent, the absent spouse has not been judicially
(1988); Quiambao v. Osorio, 158 SCRA 674 (1988); Mendiola v. Macadaeg, 1
declared presumptively dead; (3) that he contracts a subsequent marriage;
SCRA 593 (1961); Aleria v. Mendoza, 83 Phil. 427 (1949); Berbari v.
(4) the subsequent marriage would have been valid had it not been for the
Concepcion, 40 Phil. 837 (1920)] It must appear not only that the civil case
existence of the first. The exception to prosecution for bigamy are those
involves facts upon which the criminal action is based, but also that the
covered by Article 41 of the Family Code and by P.D. 1083 otherwise known
resolution of the issues raised in the civil action would necessarily be
as the Code of Muslim Personal Laws of the Philippines, which provides that
determinative of the criminal case.5 [Ras v. Rasul, 100 SCRA 125 (1980);
penal laws relative to the crime of bigamy "shall not apply to a person
Benitez v. Concepcion, Jr., 2 SCRA 178 (1961) citing De Leon v. Mabanag, 70
married xxx under Muslim Law" where the requirements set therein are met.
Phil. 202 (1940)] Consequently, the defense must involve an issue similar or
See also Sulu Islamic Association v. Malik, 226 SCRA 193 (1993); Merced v.
intimately related to the same issue raised in the criminal action and its
Diez, 109 Phil. 155 (1960)]
resolution determinative of whether or not the latter action may proceed.6
[Yap v. Paras, 205 SCRA 625 (1992)] Its two essential elements are:7 [Rules of
In the case at bar, respondent's clear intent is to obtain a judicial declaration
of nullity of his first marriage and thereafter to invoke that very same
judgment to prevent his prosecution for bigamy. He cannot have his cake
and eat it too. Otherwise, all that an adventurous bigamist has to do is to
disregard Article 40 of the Family Code, contract a subsequent marriage and
escape a bigamy charge by simply claiming that the first marriage is void and
that the subsequent marriage is equally void for lack of a prior judicial
declaration of nullity of the first. A party may even enter into a marriage
aware of the absence of a requisite - usually the marriage license - and
thereafter contract a subsequent marriage without obtaining a declaration of
nullity of the first on the assumption that the first marriage is void. Such
scenario would render nugatory the provisions on bigamy. As succinctly held
in Landicho v. Relova:10 [22 SCRA 731, 735 (1968)]
(P)arties to a marriage should not be permitted to judge for themselves its
nullity, only competent courts having such authority. Prior to such
declaration of nullity, the validity of the first marriage is beyond question. A
party who contracts a second marriage then assumes the risk of being
prosecuted for bigamy.
Respondent alleges that the first marriage in the case before us was void for
lack of a marriage license. Petitioner, on the other hand, argues that her
marriage to respondent was exempt from the requirement of a marriage
license. More specifically, petitioner claims that prior to their marriage, they
had already attained the age of majority and had been living together as
husband and wife for at least five years.11 [Civil Code, Article 76.] The issue
in this case is limited to the existence of a prejudicial question, and we are
not called upon to resolve the validity of the first marriage. Be that as it may,
suffice it to state that the Civil Code, under which the first marriage was
celebrated, provides that "every intendment of law or fact leans toward the
validity of marriage, the indissolubility of the marriage bonds."12 [Civil Code,
Article 220.] Hence, parties should not be permitted to judge for themselves
the nullity of their marriage, for the same must be submitted to the
determination of competent courts. Only when the nullity of the marriage is
so declared can it be held as void, and so long as there is no such declaration
the presumption is that the marriage exists.13 [Landicho v. Relova, supra.]
No matter how obvious, manifest or patent the absence of an element is, the
intervention of the courts must always be resorted to. That is why Article 40
of the Family Code requires a "final judgment," which only the courts can
render. Thus, as ruled in Landicho v. Relova,14 [Supra. ] he who contracts a
second marriage before the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy, and in such a case the
criminal case may not be suspended on the ground of the pendency of a civil
case for declaration of nullity. In a recent case for concubinage, we held that
the pendency of a civil case for declaration of nullity of marriage is not a
prejudicial question.15 [Beltran v. People of the Philippines, G.R. No. 137567,
June 20, 2000.] This ruling applies here by analogy since both crimes
presuppose the subsistence of a marriage.
Ignorance of the existence of Article 40 of the Family Code cannot even be
successfully invoked as an excuse.16 [Civil Code, Article 3. ] The contracting
of a marriage knowing that the requirements of the law have not been
complied with or that the marriage is in disregard of a legal impediment is an
act penalized by the Revised Penal Code.17 [Revised Penal Code, Article 350.]
The legality of a marriage is a matter of law and every person is presumed to
know the law. As respondent did not obtain the judicial declaration of nullity
when he entered into the second marriage, why should he be allowed to
belatedly obtain that judicial declaration in order to delay his criminal
prosecution and subsequently defeat it by his own disobedience of the law?
If he wants to raise the nullity of the previous marriage, he can do it as a
matter of defense when he presents his evidence during the trial proper in
the criminal case.
The burden of proof to show the dissolution of the first marriage before the
second marriage was contracted rests upon the defense,18 [People v.
Dungao, 56 Phil. 805 (1931)] but that is a matter that can be raised in the trial
of the bigamy case. In the meantime, it should be stressed that not every
defense raised in the civil action may be used as a prejudicial question to
obtain the suspension of the criminal action. The lower court, therefore,
erred in suspending the criminal case for bigamy. Moreover, when
respondent was indicted for bigamy, the fact that he entered into two
marriage ceremonies appeared indubitable. It was only after he was sued by
petitioner for bigamy that he thought of seeking a judicial declaration of
nullity of his first marriage. The obvious intent, therefore, is that respondent
merely resorted to the civil action as a potential prejudicial question for the
purpose of frustrating or delaying his criminal prosecution. As has been
discussed above, this cannot be done.
In the light of Article 40 of the Family Code, respondent, without first having
obtained the judicial declaration of nullity of the first marriage, can not be
said to have validly entered into the second marriage. Per current
jurisprudence, a marriage though void still needs a judicial declaration of
such fact before any party can marry again; otherwise the second marriage
will also be void.19 [Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997)] The
reason is that, without a judicial declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar, respondent was for all legal
intents and purposes regarded as a married man at the time he contracted
his second marriage with petitioner.20 [Wiegel v. Hon. Sempio-Dy, 143 SCRA
499, 501 (1986)] Against this legal backdrop, any decision in the civil action
for nullity would not erase the fact that respondent entered into a second
marriage during the subsistence of a first marriage. Thus, a decision in the
civil case is not essential to the determination of the criminal charge. It is,
therefore, not a prejudicial question. As stated above, respondent cannot be
permitted to use his own malfeasance to defeat the criminal action against
him.21 [People v. Aragon, 94 Phil. 357, 360 (1954)].

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the
Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the
trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.
SO ORDERED.
4. First Producers Holdings vs Co
DECISION
A criminal proceeding, as a rule, may be suspended upon a showing that a
prejudicial question determinative of the guilt or innocence of the accused is
the very issue to be decided in a civil case pending in another tribunal.
However, such suspension cannot be allowed if it is apparent that the civil
action was filed as an afterthought for the purpose of delaying the ongoing
criminal action. This exception applies especially in cases in which the trial
court trying the criminal action has authority to decide such issue, and the
civil action was instituted merely to delay the criminal proceeding and
thereby multiply suits and vex the court system with unnecessary cases.
Procedural rules should be construed to promote substantial justice, not to
frustrate or delay its delivery.
Statement of the Case
Before this Court is a Petition for Review on Certiorari1 [Rollo, pp. 11-26.]
under Rule 45 of the Rules of Court, seeking a reversal of the May 10, 1999
Decision2 [Rollo, pp. 31-35.] of the Court of Appeals3 [Seventeenth Division,
composed of J. Eugenio S. Labitoria, Division chairman and ponente; and JJ
Marina L. Buzon and Renato C. Dacudao, members, both concurring.] (CA) in
CA-GR SP No. 49701. The dispositive portion of the assailed Decision reads as
follows:
"WHEREFORE, premises considered, the Orders dated February 27, 1998 and
October 9, 1998 are hereby ANNULLED and SET ASIDE, and respondent judge
is hereby DIRECTED TO SUSPEND the proceedings in Criminal Case No. 97-
734 to await the outcome of Civil Case No. 97-2663."4 [Assailed Decision, p.
5; rollo, p. 35.]
The February 27, 1998 Order5 [Written by Judge Fernando V. Gorospe Jr. of
the Regional Trial Court of Makati City, Branch 61.] of the Regional Trial Court
(RTC) which was set aside by the CA disposed as follows:
"The MOTION TO SUSPEND on grounds of prejudicial question and to reset
arraignment is hereby DENIED for lack of merit."6 [Rollo, p. 55.]
The Facts
The undisputed facts are summarized by the Court of Appeals as follows:
"On March 13, 1997, x x x Armand M. Luna filed a criminal complaint for
estafa and perjury against [herein respondent] Luis L. Co in the Office of the
City Prosecutor of Manila, docketed as I.S. No. 97-10892. Pertinent portion of
the complaint is hereby quoted as follows:
'2.....On November 25, 1997, in the regular meeting of the Board of Directors
of the Producers Bank of the Philippines held at Manhattan Bldg. Nueva
Street, Manila, a resolution was adopted authorizing the corporation to
purchase three (3) proprietary shares of Manila Polo Club to be placed in the
names of Messrs. Co Bun Chun, Henry Co and Luis Co to be held by them on
behalf of the corporation which is evidenced by the attached ANNEX 'C':
'3. In accordance with said resolution, the corporation purchased said
proprietary shares in the name of the nominees, one of which was placed in
the name of Mr. Luis L. Co as evidenced by Proprietary Membership
Certificate No. 203 dated July 2, 1979, hereto attached as ANNEX D;
'4. On March 17, 1994, after the separation from the service of Mr. Luis L. Co,
Ms. Amelita F. Bautista demanded from him the transfer of the subject
certificate in the name of the corporation as evidenced by a letter dated
March 16, 1994 attached hereto as ANNEX 'E';
'5. Despite his duty to assign the certificate back to the corporation and the
subject demand, Mr. LUIS L. CO, on April 26, 1994, instead registered the loss
of the said proprietary share with Manila Polo Club Inc. by executing a false
Affidavit of Loss and subsequently, he was able to secure a replacement
certificate No. 4454 in his name after allegedly complying with the legal
requirements for the replacement of lost certificates. This is evidenced by the
letter dated September 5, 1996 signed by Ramon B. Salazar, General
Manager of Manila Polo Club, Inc., hereto attached as ANNEX 'F';
'6. In so doing, Mr. Luis L. Co misrepresented himself to be the legitimate
owner of subject share and by executing a false affidavit, he made it appear
that Certificate No. 203 was lost despite the fact that said certificate is
existing and remains in possession of the corporation;
'7. That on February 06, 1997, another demand was made upon Mr. Luis L.
Co to deliver to us the newly issued Manila Polo Club Certificate No. 4454
and to execute a Deed of Assignment in favor of a new nominee. Said
demand is evidenced by the attached letter dated February 6, 1997 signed by
Atty. Pedro M. Malabanan, ANNEX 'G' hereof;
'8. That the value of said certificate is FIVE MILLION SIX HUNDRED FIFTY
THOUSAND PESOS (P5,650,000.00) as of April 1996 as evidenced by a
certification dated Oct. 03, 1996 hereto attached as ANNEX 'H';
'9. Despite subject demand, Mr. Luis L. Co failed and [has] continuously
fail[ed] to deliver the subject certificate to the corporation and to execute a
Deed of Assignment in favor of the nominee of the corporation to the
damage and prejudice of the latter;
'10. That said act of Mr. Luis Co constitutes misappropriation or conversion
of something given to him in trust to the prejudice of the bank;'
"After the filing of [Co's] counter affidavit and after consideration of
necessary pleadings appended thereto, [the] City Prosecutor recommended
the filing of estafa and perjury against [him]. Thus, the Office of the City
Prosecutor filed [an] information for estafa against [him] in the Regional Trial
Court of Makati docketed as Criminal Case No. 97-734 and another
information for perjury was filed in the Metropolitan Trial Court of Makati.
"Unsatisfied, [Co] appealed the resolution of the City Prosecutor to the
Department of Justice but was dismissed by the latter in a[n] order dated
October 2, 1997.
"On November 16, 1997, during the pendency of the criminal case, [Co] filed
an action for damages against Armand Luna and First Producers Holdings
(complainant in the criminal case filed) with the Regional Trial Court of
Makati, and was docketed as Civil Case No. 97-2663. In the said complaint,
[he] claimed ownership over questioned Manila Polo Club Proprietary Share
No. 203.
"On December 10, 1997, [Co] filed a motion for suspension of the case and
his arraignment thereon but was denied by [the trial court] in an order dated
February 27, 1998."7 [Assailed Decision, pp. 1-4; rollo, pp. 31-34.]
Ruling of the Court of Appeals
The Court of Appeals explained that "a prejudicial question is a question
which arise[s] in a case, the resolution of which is a logical antecedent of the
issue involved in said case, and the cognizance of which pertains to another
tribunal."8 [Assailed Decision, p. 4; rollo, p. 34, citing People v. Aragon, 94
Phil. 357.] And based on the above definition, it ruled that the requisites for
the existence of a prejudicial question were present in the case at bar.
Should the ownership of the share in question be decided in favor of Luis Co,
there would be no basis for the charge of estafa against him. The CA added
that respondent's belated filing of the civil case did not detract from the
correctness of his cause, since a motion for suspension of a criminal action
based on the pendency of a prejudicial action may be filed at any time before
the prosecution rests.
Hence, this Petition.9 [The case was deemed submitted for resolution on
March 22, 2000, upon receipt by this Court of Respondent's Memorandum,
signed by Attys. Marius P. Corpus and Ephraim B. Cortez. Petitioner's
Memorandum, signed by Attys. Raul T. Vasquez and Brigida Conception H.
Romualdez, was filed earlier.]
Issues
Petitioner attributes to the CA the following errors:
"A.....The Court of Appeals committed grave and reversible error in finding
that a prejudicial question exists with respondent's filing of Civil Case No. 97-
2663.
B.....The Court of Appeals committed grave and reversible error in directing
the suspension of Criminal Case No. 97-734 pending resolution of Civil Case
No. 97-2663."10 [Memorandum for Petitioner, p. 7; rollo, p. 142.]
In the main, the Court will resolve the propriety of the suspension of the
criminal proceedings based on the alleged prejudicial question.
The Court's Ruling
The Petition is meritorious.
Main Issue: Existence of a Prejudicial Question
Echoing the appellate court's position, respondent maintains that the issue
of ownership of the Manila Polo Club share, which was raised in the civil
action, constitutes a prejudicial question warranting the suspension of the
criminal case for estafa. He argues that his guilt or innocence may be
determined only after the issue of ownership has been resolved. He further
contends that the prejudicial question was seasonably raised because the
Rules provide that it may be made "at any time before the prosecution
rests."
Prejudicial questions are regulated by Rule 111 of the Rules of Court, as
follows:
"SEC. 5. Elements of prejudicial question. -- The two (2) essential elements of
a prejudicial question are: (a) the civil action involves an issue similar or
intimately related to the issue raised in the criminal action; and (b) the
resolution of such issue determines whether or not the criminal action may
proceed."
"SEC. 6. Suspension by reason of prejudicial question. -- A petition for
suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the fiscal or the court
conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution rests."
True, the Motion to Suspend the criminal case on the ground that a
prejudicial question existed was raised "before the prosecution rest[ed]."11
[Section 6, Rule 111, Rules of Court.] However, the peculiar circumstances of
this case clearly show that it was merely a ploy to delay the resolution of the
criminal case and vex the already overloaded court system with an
unnecessary case.
Civil Case Clearly Dilatory
The criminal action for estafa had been lodged with the Office of the City
Prosecutor on March 13, 1997. Yet, respondent filed the civil case only eight
months later, on November 18, 1997. Indeed, as early as 1994, a written
demand had already been served on him to return the said share.12
[Petitioner's Memorandum, pp. 14-15; rollo, pp. 149-150.] He did not contest
petitioner's claim; in fact, he filed the present civil action several months
after the institution of the criminal charge. Verily, it is apparent that the civil
action was instituted only as an afterthought to delay the proceedings in the
criminal case.
The dilatory character of the strategy of respondent is apparent from the fact
that he could have raised the issue of ownership in the criminal case. He
himself admits that the issue of ownership may be raised in the estafa case.
Yet, he resorts to subterfuge, arguing:
"x x x. The resolution of the issue of ownership in Criminal Case No. 97-734
would only be for the purpose of determining the guilt or innocence of the
respondent. The said issue may not be resolved with finality in the same
criminal proceedings, since the court a quo would be bound by what appears
on the face of the Manila Polo Club Proprietary Membership Certificate No.
203. Considering that the subject Membership Certificate clearly shows that
the same is registered in the name of the respondent, the same is conclusive
evidence of his ownership."13 [Respondent's Memorandum, p. 7; rollo, p.
160.]
This argument is bereft of merit. We find no sufficient reason why the trial court
hearing the criminal case cannot resolve the question of ownership. Significantly, the
civil action for recovery of civil liability is impliedly instituted with the filing of the
criminal action.14 [Section 1, Rule 111, Rules of Court.] Hence, respondent may
invoke all defenses pertaining to his civil liability in the criminal action. In fact, there
is no law or rule prohibiting him from airing exhaustively the question of ownership.
After all, the trial court has jurisdiction to hear the said defense. The rules of evidence
and procedure for the recovery of civil liabilities are the same in both criminal and
civil cases.15 [See Tolentino, Commentaries and Jurisprudence on the New Civil Code,
1987 ed., Vol. I, p. 157.]
Equally unmeritorious is respondent's theory that the trial court trying the
criminal case would be bound by the Membership Certificate, which was
registered in his name and would thus be "conclusive evidence of his
ownership."16 [Respondent's Memorandum, p. 7; rollo, p. 160.]
If the trial court would indeed consider the Certificate as conclusive proof of
his ownership, then such ruling would in fact be favorable to him and give
him no reason to file the civil suit. It would be up to petitioner, then, to
disprove during the criminal proceedings his alleged ownership.
Ownership Is Not Necessarily An Element of Estafa
In any event, the issue of ownership is not a necessary element of estafa, as
held by the Court in Hernandez v. Court of Appeals, which we quote:
"Ownership is not a necessary element of the crime of estafa x x x. In estafa,
the person prejudiced or the immediate victim of the fraud need not be the
owner of the goods. Thus, Article 315 of the Revised Penal Code provides
that 'Any person who shall defraud another (it does not say 'owner') by any
means mentioned is that the loss should have fallen on someone other than
the perpetrators of the crime. x x x"17 [228 SCRA 430, 437, December 14,
1993, per Quiason, J.]
Furthermore, to allow respondent's stance is to open the floodgates, as it were, to
similar dilatory tactics. In this light, we reiterate hereunder our earlier
pronouncement:
"Were we to sanction the theory advanced by the respondents x x x, there
would hardly be a case for estafa that could be prosecuted speedily, it being
the easiest thing for the accused to block the proceedings by the simple
expedient of filing an independent civil action against the complainant,
raising therein the issue that he had not received from the latter the amount
alleged to have been misappropriated. A claim to this effect is properly a
matter of defense to be interposed by the party charged in the criminal
proceedings."18 [Jimenez v. Averia, 22 SCRA 1380, 1382, March 29, 1968, per
Dizon, J.]
The foregoing principle applies with equal force in this case. Indeed, the
rules of procedure, including the rule on prejudicial questions, were
conceived to afford parties an expeditious and just disposition of cases. This
Court will not countenance their misuse and abuse to frustrate or delay the
delivery of justice.19 [Cf. Cusi-Hernandez v. Diaz, GR No. 140436, July 18,
2000.] In this light, the civil action may in fact give rise to the evils of forum
shopping.
WHEREFORE, the Petition is hereby GRANTED and the assailed Decision of the Court
of Appeals REVERSED and SET ASIDE. The Regional Trial Court is ordered to proceed
with the trial of Criminal Case No. 97-734 with all deliberate dispatch. No costs.
SO ORDERED.
5. Philippine Rabbit vs People
DECISION
PANGANIBAN, J.:
When the accused-employee absconds or jumps bail, the judgment meted
out becomes final and executory. The employer cannot defeat the finality of
the judgment by filing a notice of appeal on its own behalf in the guise of
asking for a review of its subsidiary civil liability. Both the primary civil
liability of the accused-employee and the subsidiary civil liability of the
employer are carried in one single decision that has become final and
executory.
The Case
Before this Court is a Petition for Review[1] under Rule 45 of the Rules of
Court, assailing the March 29, 2000[2] and the March 27, 2001[3] Resolutions
of the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioner's appeal from
the judgment of the Regional Trial Court (RTC) of San Fernando, La Union in
Criminal Case No. 2535 was dismissed in the first Resolution as follows:
"WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and
the appeal is ordered DISMISSED."[4]
The second Resolution denied petitioner's Motion for Reconsideration.[5]
The Facts
The facts of the case are summarized by the CA in this wise:
"On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found
guilty and convicted of the crime of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to property and was
sentenced to suffer the penalty of four (4) years, nine (9) months and eleven
(11) days to six (6) years, and to pay damages as follows:
'a. to pay the heirs of JUSTINO TORRES the sum of P50,000.00 as indemnity
for his death, plus the sum of P25,383.00, for funeral expenses, his unearned
income for one year at P2,500.00 a month, P50,000.00 as indemnity for the
support of Renato Torres, and the further sum of P300,000.00 as moral
damages;
'b. to the heirs of ESTRELLA VELERO, the sum of P50,000.00 as indemnity for
her death, the sum of P237,323.75 for funeral expenses, her unearned
income for three years at P45,000.00 per annum, and the further sum of
P1,000,000.00 as moral damages and P200,000.00 as attorney's fees[;]
'c. to the heirs of LORNA ANCHETA, the sum of P50,000.00 as indemnity for
her death, the sum of P22,838.00 as funeral expenses, the sum of P20,544.94
as medical expenses and her loss of income for 30 years at P1,000.00 per
month, and the further sum of P100,000.00 for moral damages;
'd. to MAUREEN BRENNAN, the sum of P229,654.00 as hospital expenses,
doctor's fees of P170,000.00 for the orthopedic surgeon, P22,500.00 for the
[n]eurologist, an additional indemnity [of] at least P150,000.00 to cover
future correction of deformity of her limbs, and moral damages in the
amount of P1,000,000.00;
'e. to ROSIE BALAJO, the sum of P3,561.46 as medical expenses, P2,000.00 as
loss of income, and P25,000.00 as moral damages;
'f. to TERESITA TAMONDONG, the sum of P19,800.47 as medical expenses,
P800.00 for loss of income, and P25,000.00 as moral damages;
'g. to JULIANA TABTAB, the amount of P580.81 as medical expenses,
P4,600.00 as actual damages and her loss earnings of P1,400.00 as well as
moral damages in the amount of P10,000.00;
'h. to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital expenses,
P14,530.00 as doctor's fees, P1,000.00 for medicines and P50,000.00 as
moral damages;
'i. to CLARITA CABANBAN, the sum of P155.00 for medical expenses, P87.00
for medicines, P1,710.00 as actual damages and P5,000.00 as moral
damages;
'j. to MARIANO CABANBAN, the sum of P1,395.00 for hospital bills, P500.00
for medicine, P2,100.00 as actual damages, P1,200.00 for loss of income and
P5,000.00 as moral damages;
'k. to La Union Electric Company as the registered owner of the Toyota Hi-Ace
Van, the amount of P250,000.00 as actual damages for the cost of the totally
wrecked vehicle; to the owner of the jeepney, the amount of P22,698.38 as
actual damages;'
"The court further ruled that [petitioner], in the event of the insolvency of
accused, shall be liable for the civil liabilities of the accused. Evidently, the
judgment against accused had become final and executory.
"Admittedly, accused had jumped bail and remained at-large. It is worth
mention[ing] that Section 8, Rule 124 of the Rules of Court authorizes the
dismissal of appeal when appellant jumps bail. Counsel for accused, also
admittedly hired and provided by [petitioner], filed a notice of appeal which
was denied by the trial court. We affirmed the denial of the notice of appeal
filed in behalf of accused.
"Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal
from the judgment of the trial court. On April 29, 1997, the trial court gave
due course to [petitioner's] notice of appeal. On December 8, 1998,
[petitioner] filed its brief. On December 9, 1998, the Office of the Solicitor
General received [a] copy of [petitioner's] brief. On January 8, 1999, the OSG
moved to be excused from filing [respondents'] brief on the ground that the
OSG's authority to represent People is confined to criminal cases on appeal.
The motion was however denied per Our resolution of May 31, 1999. On
March 2, 1999, [respondent]/private prosecutor filed the instant motion to
dismiss."[6] (Citations omitted)
Ruling of the Court of Appeals
The CA ruled that the institution of a criminal case implied the institution
also of the civil action arising from the offense. Thus, once determined in the
criminal case against the accused-employee, the employer's subsidiary civil
liability as set forth in Article 103 of the Revised Penal Code becomes
conclusive and enforceable.
The appellate court further held that to allow an employer to dispute
independently the civil liability fixed in the criminal case against the accused-
employee would be to amend, nullify or defeat a final judgment. Since the
notice of appeal filed by the accused had already been dismissed by the CA,
then the judgment of conviction and the award of civil liability became final
and executory. Included in the civil liability of the accused was the
employer's subsidiary liability.
Hence, this Petition.[7]
The Issues
Petitioner states the issues of this case as follows:
"A. Whether or not an employer, who dutifully participated in the defense of
its accused-employee, may appeal the judgment of conviction independently
of the accused.
"B. Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57)
and Yusay v. Adil (164 SCRA 494) apply to the instant case."[8]
There is really only one issue. Item B above is merely an adjunct to Item A.
The Court's Ruling
The Petition has no merit.
Main Issue:
Propriety of Appeal by the Employer
Pointing out that it had seasonably filed a notice of appeal from the RTC
Decision, petitioner contends that the judgment of conviction against the
accused-employee has not attained finality. The former insists that its appeal
stayed the finality, notwithstanding the fact that the latter had jumped bail.
In effect, petitioner argues that its appeal takes the place of that of the
accused-employee.
We are not persuaded.
Appeals in Criminal Cases
Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure states
thus:
"Any party may appeal from a judgment or final order, unless the accused
will be placed in double jeopardy."
Clearly, both the accused and the prosecution may appeal a criminal case,
but the government may do so only if the accused would not thereby be
placed in double jeopardy.[9] Furthermore, the prosecution cannot appeal
on the ground that the accused should have been given a more severe
penalty.[10] On the other hand, the offended parties may also appeal the
judgment with respect to their right to civil liability. If the accused has the
right to appeal the judgment of conviction, the offended parties should have
the same right to appeal as much of the judgment as is prejudicial to them.
[11]
Appeal by the Accused
Who Jumps Bail
Well-established in our jurisdiction is the principle that the appellate court
may, upon motion or motu proprio, dismiss an appeal during its pendency if
the accused jumps bail. The second paragraph of Section 8 of Rule 124 of the
2000 Revised Rules of Criminal Procedure provides:
"The Court of Appeals may also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of
the appeal."[12]
This rule is based on the rationale that appellants lose their standing in court
when they abscond. Unless they surrender or submit to the court's
jurisdiction, they are deemed to have waived their right to seek judicial relief.
[13]
Moreover, this doctrine applies not only to the accused who jumps bail
during the appeal, but also to one who does so during the trial. Justice
Florenz D. Regalado succinctly explains the principle in this wise:
"x x x. When, as in this case, the accused escaped after his arraignment and
during the trial, but the trial in absentia proceeded resulting in the
promulgation of a judgment against him and his counsel appealed, since he
nonetheless remained at large his appeal must be dismissed by analogy with
the aforesaid provision of this Rule [Rule 124, 8 of the Rules on Criminal
Procedure]. x x x"[14]
The accused cannot be accorded the right to appeal unless they voluntarily
submit to the jurisdiction of the court or are otherwise arrested within 15
days from notice of the judgment against them.[15] While at large, they
cannot seek relief from the court, as they are deemed to have waived the
appeal.[16]
Finality of a Decision
in a Criminal Case
As to when a judgment of conviction attains finality is explained in Section 7
of Rule 120 of the 2000 Rules of Criminal Procedure, which we quote:
"A judgment of conviction may, upon motion of the accused, be modified or
set aside before it becomes final or before appeal is perfected. Except where
the death penalty is imposed, a judgment becomes final after the lapse of
the period for perfecting an appeal, or when the sentence has been partially
or totally satisfied or served, or when the accused has waived in writing his
right to appeal, or has applied for probation."
In the case before us, the accused-employee has escaped and refused to
surrender to the proper authorities; thus, he is deemed to have abandoned
his appeal. Consequently, the judgment against him has become final and
executory.[17]
Liability of an Employer
in a Finding of Guilt
Article 102 of the Revised Penal Code states the subsidiary civil liabilities of
innkeepers, as follows:
"In default of the persons criminally liable, innkeepers, tavernkeepers, and
any other persons or corporations shall be civilly liable for crimes committed
in their establishments, in all cases where a violation of municipal ordinances
or some general or special police regulation shall have been committed by
them or their employees.
"Innkeepers are also subsidiary liable for restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed
the directions which such innkeeper or his representative may have given
them with respect to the care and vigilance over such goods. No liability shall
attach in case of robbery with violence against or intimidation of persons
unless committed by the innkeeper's employees."
Moreover, the foregoing subsidiary liability applies to employers, according
to Article 103 which reads:
"The subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in any kind
of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties."
Having laid all these basic rules and principles, we now address the main
issue raised by petitioner.
Civil Liability Deemed Instituted
in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of Criminal Procedure has
clarified what civil actions are deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:
"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.
"x x x x x x x x x"
Only the civil liability of the accused arising from the crime charged is
deemed impliedly instituted in a criminal action; that is, unless the offended
party waives the civil action, reserves the right to institute it separately, or
institutes it prior to the criminal action.[18] Hence, the subsidiary civil liability
of the employer under Article 103 of the Revised Penal Code may be
enforced by execution on the basis of the judgment of conviction meted out
to the employee.[19]
It is clear that the 2000 Rules deleted the requirement of reserving
independent civil actions and allowed these to proceed separately from
criminal actions. Thus, the civil actions referred to in Articles 32,[20] 33,[21]
34[22] and 2176[23] of the Civil Code shall remain "separate, distinct and
independent" of any criminal prosecution based on the same act. Here are
some direct consequences of such revision and omission:
1. The right to bring the foregoing actions based on the Civil Code need not
be reserved in the criminal prosecution, since they are not deemed included
therein.
2. The institution or the waiver of the right to file a separate civil action
arising from the crime charged does not extinguish the right to bring such
action.
3. The only limitation is that the offended party cannot recover more than
once for the same act or omission.[24]
What is deemed instituted in every criminal prosecution is the civil liability
arising from the crime or delict per se (civil liability ex delicto), but not those
liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even
if a civil action is filed separately, the ex delicto civil liability in the criminal
prosecution remains, and the offended party may -- subject to the control of
the prosecutor -- still intervene in the criminal action, in order to protect the
remaining civil interest therein.[25]
This discussion is completely in accord with the Revised Penal Code, which
states that "[e]very person criminally liable for a felony is also civilly
liable."[26]
Petitioner argues that, as an employer, it is considered a party to the criminal
case and is conclusively bound by the outcome thereof. Consequently,
petitioner must be accorded the right to pursue the case to its logical
conclusion -- including the appeal.
The argument has no merit. Undisputedly, petitioner is not a direct party to
the criminal case, which was filed solely against Napoleon M. Roman, its
employee.
In its Memorandum, petitioner cited a comprehensive list of cases dealing
with the subsidiary liability of employers. Thereafter, it noted that none can
be applied to it, because "in all th[o]se cases, the accused's employer did not
interpose an appeal."[27] Indeed, petitioner cannot cite any single case in
which the employer appealed, precisely because an appeal in such
circumstances is not possible.
The cases dealing with the subsidiary liability of employers uniformly declare
that, strictly speaking, they are not parties to the criminal cases instituted
against their employees.[28] Although in substance and in effect, they have
an interest therein, this fact should be viewed in the light of their subsidiary
liability. While they may assist their employees to the extent of supplying the
latter's lawyers, as in the present case, the former cannot act
independently on their own behalf, but can only defend the accused.
Waiver of Constitutional Safeguard
Against Double Jeopardy
Petitioner's appeal obviously aims to have the accused-employee absolved of
his criminal responsibility and the judgment reviewed as a whole. These
intentions are apparent from its Appellant's Brief[29] filed with the CA and
from its Petition[30] before us, both of which claim that the trial court's
finding of guilt "is not supported by competent evidence."[31]
An appeal from the sentence of the trial court implies a waiver of the
constitutional safeguard against double jeopardy and throws the whole case
open to a review by the appellate court. The latter is then called upon to
render judgment as law and justice dictate, whether favorable or unfavorable
to the appellant.[32] This is the risk involved when the accused decides to
appeal a sentence of conviction.[33] Indeed, appellate courts have the power
to reverse, affirm or modify the judgment of the lower court and to increase
or reduce the penalty it imposed.[34]
If the present appeal is given course, the whole case against the accused-
employee becomes open to review. It thus follows that a penalty higher than
that which has already been imposed by the trial court may be meted out to
him. Petitioner's appeal would thus violate his right against double jeopardy,
since the judgment against him could become subject to modification
without his consent.
We are not in a position to second-guess the reason why the accused
effectively waived his right to appeal by jumping bail. It is clear, though, that
petitioner may not appeal without violating his right against double jeopardy.
Effect of Absconding
on the Appeal Process
Moreover, within the meaning of the principles governing the prevailing
criminal procedure, the accused impliedly withdrew his appeal by jumping
bail and thereby made the judgment of the court below final.[35] Having
been a fugitive from justice for a long period of time, he is deemed to have
waived his right to appeal. Thus, his conviction is now final and executory.
The Court in People v. Ang Gioc[36] ruled:
"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. 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."[37]
By fleeing, the herein accused exhibited contempt of the authority of the
court and placed himself in a position to speculate on his chances for a
reversal. In the process, he kept himself out of the reach of justice, but
hoped to render the judgment nugatory at his option.[38] Such conduct is
intolerable and does not invite leniency on the part of the appellate court.
[39]
Consequently, the judgment against an appellant who escapes and who
refuses to surrender to the proper authorities becomes final and executory.
[40]
Thus far, we have clarified that petitioner has no right to appeal the criminal
case against the accused-employee; that by jumping bail, he has waived his
right to appeal; and that the judgment in the criminal case against him is
now final.
Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner now accrues.
Petitioner argues that the rulings of this Court in Miranda v. Malate Garage &
Taxicab, Inc.,[41] Alvarez v. CA[42] and Yusay v. Adil[43] do not apply to the
present case, because it has followed the Court's directive to the employers
in these cases to take part in the criminal cases against their employees. By
participating in the defense of its employee, herein petitioner tries to shield
itself from the undisputed rulings laid down in these leading cases.
Such posturing is untenable. In dissecting these cases on subsidiary liability,
petitioner lost track of the most basic tenet they have laid down -- that an
employer's liability in a finding of guilt against its accused-employee is
subsidiary.
Under Article 103 of the Revised Penal Code, employers are subsidiarily
liable for the adjudicated civil liabilities of their employees in the event of the
latter's insolvency.[44] The provisions of the Revised Penal Code on
subsidiary liability -- Articles 102 and 103 -- are deemed written into the
judgments in the cases to which they are applicable.[45] Thus, in the
dispositive portion of its decision, the trial court need not expressly
pronounce the subsidiary liability of the employer.
In the absence of any collusion between the accused-employee and the
offended party, the judgment of conviction should bind the person who is
subsidiarily liable.[46] In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.[47]
To allow employers to dispute the civil liability fixed in a criminal case would
enable them to amend, nullify or defeat a final judgment rendered by a
competent court.[48] By the same token, to allow them to appeal the final
criminal conviction of their employees without the latter's consent would
also result in improperly amending, nullifying or defeating the judgment.
The decision convicting an employee in a criminal case is binding and
conclusive upon the employer not only with regard to the former's civil
liability, but also with regard to its amount. The liability of an employer
cannot be separated from that of the employee.[49]
Before the employers' subsidiary liability is exacted, however, there must be
adequate evidence establishing that (1) they are indeed the employers of the
convicted employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the employees in the discharge
of their duties; and (4) that the execution against the latter has not been
satisfied due to insolvency.[50]
The resolution of these issues need not be done in a separate civil action. But
the determination must be based on the evidence that the offended party
and the employer may fully and freely present. Such determination may be
done in the same criminal action in which the employee's liability, criminal
and civil, has been pronounced;[51] and in a hearing set for that precise
purpose, with due notice to the employer, as part of the proceedings for the
execution of the judgment.
Just because the present petitioner participated in the defense of its accused-
employee does not mean that its liability has transformed its nature; its
liability remains subsidiary. Neither will its participation erase its subsidiary
liability. The fact remains that since the accused-employee's conviction has
attained finality, then the subsidiary liability of the employer ipso facto
attaches.

According to the argument of petitioner, fairness dictates that while the
finality of conviction could be the proper sanction to be imposed upon the
accused for jumping bail, the same sanction should not affect it. In effect,
petitioner-employer splits this case into two: first, for itself; and second, for
its accused-employee.
The untenability of this argument is clearly evident. There is only one
criminal case against the accused-employee. A finding of guilt has both
criminal and civil aspects. It is the height of absurdity for this single case to
be final as to the accused who jumped bail, but not as to an entity whose
liability is dependent upon the conviction of the former.
The subsidiary liability of petitioner is incidental to and dependent on the
pecuniary civil liability of the accused-employee. Since the civil liability of the
latter has become final and enforceable by reason of his flight, then the
former's subsidiary civil liability has also become immediately enforceable.
Respondent is correct in arguing that the concept of subsidiary liability is
highly contingent on the imposition of the primary civil liability.
No Deprivation
of Due Process
prescribed period, then the former has the correlative right to enjoy the
finality of the resolution of the case.[59]
In fact, petitioner admits that by helping the accused-employee, it
participated in the proceedings before the RTC; thus, it cannot be said that
the employer was deprived of due process. It might have lost its right to
appeal, but it was not denied its day in court.[60] In fact, it can be said that
by jumping bail, the accused-employee, not the court, deprived petitioner of
the right to appeal.
All told, what is left to be done is to execute the RTC Decision against the
accused. It should be clear that only after proof of his insolvency may the
subsidiary liability of petitioner be enforced. It has been sufficiently proven
that there exists an employer-employee relationship; that the employer is
engaged in some kind of industry; and that the employee has been adjudged
guilty of the wrongful act and found to have committed the offense in the
discharge of his duties. The proof is clear from the admissions of petitioner
that "[o]n 26 August 1990, while on its regular trip from Laoag to Manila, a
passenger bus owned by petitioner, being then operated by petitioner's
driver, Napoleon Roman, figured in an accident in San Juan, La Union x x
x."[61] Neither does petitioner dispute that there was already a finding of
guilt against the accused while he was in the discharge of his duties.

As to the argument that petitioner was deprived of due process, we reiterate WHEREFORE, the Petition is hereby DENIED, and the assailed Resolutions
that what is sought to be enforced is the subsidiary civil liability incident to AFFIRMED. Costs against petitioner.
and dependent upon the employee's criminal negligence. In other words, the
employer becomes ipso facto subsidiarily liable upon the conviction of the SO ORDERED.
employee and upon proof of the latter's insolvency, in the same way that
acquittal wipes out not only his primary civil liability, but also his employer's
subsidiary liability for his criminal negligence.[52]

It should be stressed that the right to appeal is neither a natural right nor a
part of due process.[53] It is merely a procedural remedy of statutory origin,
a remedy that may be exercised only in the manner prescribed by the
provisions of law authorizing such exercise.[54] Hence, the legal
requirements must be strictly complied with.[55]

It would be incorrect to consider the requirements of the rules on appeal as

merely harmless and trivial technicalities that can be discarded.[56] Indeed,
deviations from the rules cannot be tolerated.[57] In these times when court
dockets are clogged with numerous litigations, such rules have to be
followed by parties with greater fidelity, so as to facilitate the orderly
disposition of those cases.[58]

After a judgment has become final, vested rights are acquired by the winning
party. If the proper losing party has the right to file an appeal within the

6. People vs Odilao
DECISION
Before us is a petition for review on certiorari filed by the People of the
Philippines assailing the Decision[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 Information[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 Order[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 report[4] dated October 17, 2000 which found
no probable cause, Asst. City Prosecutor Capacio filed with the trial court a
Motion to Dismiss[5] dated October 20, 2000. On October 27, 2000, private
complainant Carmen G. Bugash filed an urgent motion to disregard the
reinvestigation report.[6] On November 3, 2000, private complainant filed
with the DOJ a petition for review[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.[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.[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.[10] Thereafter, the
trial court, acting on the prosecution's motion to dismiss filed on October 20, 2000
and private complainant's motion to disregard the reinvestigation report, issued an
Order[11] dated 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[12] which was denied in the Order[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,[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
Decision[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 Appeal's 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[16] requiring respondent to
file his comment on the petition. In compliance therewith respondent filed
his Comment/Opposition to Petitioner's Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction,[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 complainant's 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 court's Orders dated May 21, 2002 and June 13,
2002, denying the prosecution's 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
Reconsideration[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[19] dated June 16,
2003, informing us that the DOJ, acting on private complainant Carmen
Bugash's petition for review, has issued a Resolution[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 petitioner's Consolidated Reply
and Comment,[21] praying that the Resolution of the Court of Appeals dated
June 12, 2003, finding the trial court's Orders to be valid, be affirmed 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 prosecution's 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 respondent's 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.[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,[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.
Thus, in Perez vs. Hagonoy Rural Bank, Inc.,[24] the Court held that the trial
court judge's "reliance on the prosecutor's 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 court's duty and jurisdiction to
determine a prima facie case, in blatant violation of this Court's
pronouncement in Crespo vs. Mogul . . ." This was reiterated in Solar Team
Entertainment, Inc. vs. Hon. Rolando How,[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 court's 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
September 27, 2002 in its Resolution dated June 12, 2003, and sustained the
trial court's Orders dated May 21, 2002 and June 13, 2002 denying the
prosecution's 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.
7. Benedicto vs CA
DECISION
QUISUMBING, J.:
Assailed in this petition is the consolidated decision rendered on May 23,
1996, by the Court of Appeals in CA-G.R. SP No. 35928 and CA-G.R. SP No.
35719. CA-G.R. SP No. 35928 had affirmed the order dated September 6,
1994, of the Regional Trial Court, Manila, Branch 26, insofar as it denied
petitioners' respective Motions to Quash the Informations in twenty-five (25)
criminal cases for violation of Central Bank Circular No. 960. Therein
included were informations involving: (a) consolidated Criminal Cases Nos.
91-101879 to 91-101883 filed against Mrs. Imelda R. Marcos, Roberto S.
Benedicto, and Hector T. Rivera; (b) consolidated Criminal Cases Nos. 91-
101884 to 91-101892 filed against Mrs. Marcos and Benedicto; and (c)
Criminal Cases Nos. 92-101959 to 92-101969 also against Mrs. Marcos and
Benedicto. Note, however, that the Court of Appeals already dismissed
Criminal Case No. 91-101884.
The factual antecedents of the instant petition are as follows:
On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and
Rivera were indicted for violation of Section 10 of Circular No. 960[1] in
relation to Section 34[2] of the Central Bank Act (Republic Act No. 265, as
amended) in five Informations filed with the Regional Trial Court of Manila.
Docketed as Criminal Cases Nos. 91-101879 to 91-101883, the charge sheets
alleged that the trio failed to submit reports of their foreign exchange
earnings from abroad and/or failed to register with the Foreign Exchange
Department of the Central Bank within the period mandated by Circular No.
960. Said Circular prohibited natural and juridical persons from maintaining
foreign exchange accounts abroad without prior authorization from the
Central Bank.[3] It also required all residents of the Philippines who
habitually earned or received foreign currencies from invisibles, either locally
or abroad, to report such earnings or receipts to the Central Bank. Violations
of the Circular were punishable as a criminal offense under Section 34 of the
Central Bank Act.
That same day, nine additional Informations charging Mrs. Marcos and
Benedicto with the same offense, but involving different accounts, were filed
with the Manila RTC, which docketed these as Criminal Cases Nos. 91-101884
to 91-101892. The accusatory portion of the charge sheet in Criminal Case
No. 91-101888 reads:
That from September 1, 1983 up to 1987, both dates inclusive, and for
sometime thereafter, both accused, conspiring and confederating with each
other and with the late President Ferdinand E. Marcos, all residents of
Manila, Philippines, and within the jurisdiction of this Honorable Court, did
then and there wilfully, unlawfully and feloniously fail to submit reports in
the prescribed form and/or register with the Foreign Exchange Department
of the Central Bank within 90 days from October 21, 1983 as required of
them being residents habitually/customarily earning, acquiring or receiving
foreign exchange from whatever source or from invisibles locally or from
abroad, despite the fact they actually earned interests regularly every six (6 )
months for the first two years and then quarterly thereafter for their
investment of $50-million, later reduced to $25-million in December 1985, in
Philippine-issued dollar denominated treasury notes with floating rates and
in bearer form, in the name of Bank Hofmann, AG, Zurich, Switzerland, for
the benefit of Avertina Foundation, their front organization established for
economic advancement purposes with secret foreign exchange account
Category (Rubric) C.A.R. No. 211 925-02 in Swiss Credit Bank (also known as
SKA) in Zurich, Switzerland, which earned, acquired or received for the
accused Imelda Romualdez Marcos and her late husband an interest of
$2,267,892 as of December 16, 1985 which was remitted to Bank Hofmann,
AG, through Citibank, New York, United States of America, for the credit of
said Avertina account on December 19, 1985, aside from the redemption of
$25 million (one-half of the original $50-M) as of December 16, 1985 and
outwardly remitted from the Philippines in the amounts of $7,495,297.49
and $17,489,062.50 on December 18, 1985 for further investment outside
the Philippines without first complying with the Central Bank
reporting/registering requirements.
CONTRARY TO LAW.[4]
The other charge sheets were similarly worded except the days of the
commission of the offenses, the name(s) of the alleged dummy or dummies,
the amounts in the foreign exchange accounts maintained, and the names of
the foreign banks where such accounts were held by the accused.
On January 3, 1992, eleven more Informations accusing Mrs. Marcos and
Benedicto of the same offense, again in relation to different accounts, were
filed with the same court, docketed as Criminal Cases Nos. 92-101959 to 92-
101969. The Informations were similarly worded as the earlier indictments,
save for the details as to the dates of the violations of Circular No. 960, the
identities of the dummies used, the balances and sources of the earnings,
and the names of the foreign banks where these accounts were maintained.
All of the aforementioned criminal cases were consolidated before Branch 26
of the said trial court.
On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were
filed, the Central Bank issued Circular No. 1318[5] which revised the rules
governing non-trade foreign exchange transactions. It took effect on January
20, 1992.
On August 24, 1992, the Central Bank, pursuant to the government's policy of
further liberalizing foreign exchange transactions, came out with Circular No.
1353,[6] which amended Circular No. 1318. Circular No. 1353 deleted the
requirement of prior Central Bank approval for foreign exchange-funded
expenditures obtained from the banking system.
Both of the aforementioned circulars, however, contained a saving clause,
excepting from their coverage pending criminal actions involving violations
of Circular No. 960 and, in the case of Circular No. 1353, violations of both
Circular No. 960 and Circular No. 1318.
On September 19, 1993, the government allowed petitioners Benedicto and
Rivera to return to the Philippines, on condition that they face the various
criminal charges instituted against them, including the dollar-salting cases.
Petitioners posted bail in the latter cases.
On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both
pleaded not guilty to the charges of violating Central Bank Circular No. 960.
Mrs. Marcos had earlier entered a similar plea during her arraignment for
the same offense on February 12, 1992.
On August 11, 1994, petitioners moved to quash all the Informations filed
against them in Criminal Cases Nos. 91-101879 to 91-101883; 91-101884 to
91-101892, and 91-101959 to 91-101969. Their motion was grounded on lack
of jurisdiction, forum shopping, extinction of criminal liability with the repeal
of Circular No. 960, prescription, exemption from the Central Bank's
reporting requirement, and the grant of absolute immunity as a result of a
compromise agreement entered into with the government.
On September 6, 1994, the trial court denied petitioners' motion. A similar
motion filed on May 23, 1994 by Mrs. Marcos seeking to dismiss the dollar-
salting cases against her due to the repeal of Circular No. 960 had earlier
been denied by the trial court in its order dated June 9, 1994. Petitioners
then filed a motion for reconsideration, but the trial court likewise denied
this motion on October 18, 1994.
On November 21, 1994, petitioners moved for leave to file a second motion
for reconsideration. The trial court, in its order of November 23, 1994,
denied petitioners' motion and set the consolidated cases for trial on January
5, 1995.
Two separate petitions for certiorari and prohibition, with similar prayers for
temporary restraining orders and/or writs of preliminary injunction,
docketed as CA-G.R. SP No. 35719 and CA-G.R. SP No. 35928, were
respectively filed by Mrs. Marcos and petitioners with the Court of Appeals.
Finding that both cases involved violations of Central Bank Circular No. 960,
the appellate court consolidated the two cases.
On May 23, 1996, the Court of Appeals disposed of the consolidated cases as
follows:
WHEREFORE, finding no grave abuse of discretion on the part of respondent
Judge in denying petitioners' respective Motions to Quash, except that with
respect to Criminal Case No. 91-101884, the instant petitions are hereby
DISMISSED for lack of merit. The assailed September 6, 1994 Order, in so far
as it denied the Motion to Quash Criminal Case No. 91-101884 is hereby
nullified and set aside, and said case is hereby dismissed. Costs against
petitioners.
SO ORDERED.[7]
Dissatisfied with the said decision of the court a quo, except with respect to
the portion ordering the dismissal of Criminal Case No. 91-101884,
petitioners filed the instant petition, attributing the following errors to the
appellate court:
THAT THE COURT ERRED IN NOT FINDING THAT THE INFORMATIONS/CASES
FILED AGAINST PETITIONERS-APPELLANTS ARE QUASHABLE BASED ON THE
FOLLOWING GROUNDS:
(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID PRELIMINARY
INVESTIGATION
(B) EXTINCTION OF CRIMINAL LIABILITY
1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO. 1353;
2) REPEAL OF R.A. 265 BY R.A. 7653[8]
(C) PRESCRIPTION
(D) EXEMPTION FROM CB REPORTING REQUIREMENT
(E) GRANT OF ABSOLUTE IMMUNITY.[9]
Simply stated, the issues for our resolution are:
(1) Did the Court of Appeals err in denying the Motion to Quash for lack of
jurisdiction on the part of the trial court, forum shopping by the prosecution,
and absence of a valid preliminary investigation?

(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265
by Circular No. 1353 and Republic Act No. 7653 respectively, extinguish the
criminal liability of petitioners?
(3) Had the criminal cases in violation of Circular No. 960 already prescribed?
(4) Were petitioners exempted from the application and coverage of Circular
No. 960?
(5) Were petitioners' alleged violations of Circular No. 960 covered by the
absolute immunity granted in the Compromise Agreement of November 3,
1990?
On the first issue, petitioners assail the jurisdiction of the Regional Trial
Court. They aver that the dollar-salting charges filed against them were
violations of the Anti-Graft Law or Republic Act No. 3019, and the
Sandiganbayan has original and exclusive jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal case is
determined by the law in force at the time the action is instituted.[10] The 25
cases were filed in 1991-92. The applicable law on jurisdiction then was
Presidential Decree 1606.[11] Under P.D. No. 1606, offenses punishable by
imprisonment of not more than six years fall within the jurisdiction of the
regular trial courts, not the Sandiganbayan.[12]
In the instant case, all the Informations are for violations of Circular No. 960
in relation to Section 34 of the Central Bank Act and not, as petitioners insist,
for transgressions of Republic Act No. 3019. Pursuant to Section 34 of
Republic Act No. 265, violations of Circular No. 960 are punishable by
imprisonment of not more than five years and a fine of not more than
P20,000.00. Since under P.D. No. 1606 the Sandiganbayan has no jurisdiction
to try criminal cases where the imposable penalty is less than six years of
imprisonment, the cases against petitioners for violations of Circular No. 960
are, therefore, cognizable by the trial court. No error may thus be charged to
the Court of Appeals when it held that the RTC of Manila had jurisdiction to
hear and try the dollar-salting cases.
Still on the first issue, petitioners next contend that the filing of the cases for
violations of Circular No. 960 before the RTC of Manila constitutes forum
shopping. Petitioners argue that the prosecution, in an attempt to seek a
favorable verdict from more than one tribunal, filed separate cases involving
virtually the same offenses before the regular trial courts and the
Sandiganbayan. They fault the prosecution with splitting the cases.
Petitioners maintain that while the RTC cases refer only to the failure to
report interest earnings on Treasury Notes, the Sandiganbayan cases seek to
penalize the act of receiving the same interest earnings on Treasury Notes in
violation of the Anti-Graft Law's provisions on prohibited transactions.
Petitioners aver that the violation of Circular No. 960 is but an element of the
offense of prohibited transactions punished under Republic Act No. 3019 and
should, thus, be deemed absorbed by the prohibited transactions cases
pending before the Sandiganbayan.
For a charge of forum shopping to prosper, there must exist between an
action pending in one court and another action before another court: (a)
identity of parties, or at least such parties as represent the same interests in
both actions; (b) identity of rights asserted and relief prayed for, the relief
being founded on the same facts; and (c) the identity of the two preceding
particulars is such that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicata in the action
under consideration.[13] Here, we find that the single act of receiving
unreported interest earnings on Treasury Notes held abroad constitutes an
offense against two or more distinct and unrelated laws, Circular No. 960
and R.A. 3019. Said laws define distinct offenses, penalize different acts, and
can be applied independently.[14] Hence, no fault lies at the prosecution's
door for having instituted separate cases before separate tribunals involving
the same subject matter.
With respect to the RTC cases, the receipt of the interest earnings violate
Circular No. 960 in relation to Republic Act No. 265 because the same was
unreported to the Central Bank. The act to be penalized here is the failure to
report the interest earnings from the foreign exchange accounts to the
proper authority. As to the anti-graft cases before the Sandiganbayan
involving the same interest earnings from the same foreign exchange
accounts, the receipt of the interest earnings transgresses Republic Act No.
3019 because the act of receiving such interest is a prohibited transaction
prejudicial to the government. What the State seeks to punish in these anti-
graft cases is the prohibited receipt of the interest earnings. In sum, there is
no identity of offenses charged, and prosecution under one law is not an
obstacle to a prosecution under the other law. There is no forum shopping.
Finally, on the first issue, petitioners contend that the preliminary
investigation by the Department of Justice was invalid and in violation of
their rights to due process. Petitioners argue that government's ban on their
travel effectively prevented them from returning home and personally
appearing at the preliminary investigation. Benedicto and Rivera further
point out that the joint preliminary investigation by the Department of
Justice, resulted to the charges in one set of cases before the Sandiganbayan
for violations of Republic Act No. 3019 and another set before the RTC for
violation of Circular No. 960.
Preliminary investigation is not part of the due process guaranteed by the
Constitution.[15] It is an inquiry to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof.[16] Instead, the right to a
preliminary investigation is personal. It is afforded to the accused by statute,
and can be waived, either expressly or by implication.[17] The waiver extends
to any irregularity in the preliminary investigation, where one was
conducted.
The petition in the present case contains the following admissions:
1. Allowed to return to the Philippines on September 19, 1993...on the
condition that he face the criminal charges pending in courts, petitioner-
appellant Benedicto, joined by his co-petitioner Rivera, lost no time in
attending to the pending criminal charges by posting bail in the above-
mentioned cases.
2. Not having been afforded a real opportunity of attending the preliminary
investigation because of their forced absence from the Philippines then,
petitioners-appellants invoked their right to due process thru motions for
preliminary investigation...Upon denial of their demands for preliminary
investigation, the petitioners intended to elevate the matter to the Honorable
Court of Appeals and actually caused the filing of a petition for
certiorari/prohibition sometime before their arraignment but immediately
caused the withdrawal thereof...in view of the prosecution's willingness to go
to pre-trial wherein petitioners would be allowed access to the records of
preliminary investigation which they could use for purposes of filing a
motion to quash if warranted.
3. Thus, instead of remanding the Informations to the Department of
Justice...respondent Judge set the case for pre-trial in order to afford all the
accused access to the records of the prosecution...
xxx
5. On the basis of disclosures at the pre-trial, the petitioners-appellants
Benedicto and Rivera moved for the quashing of the informations/cases...
[18]
The foregoing admissions lead us to conclude that petitioners have expressly
waived their right to question any supposed irregularity in the preliminary
investigation or to ask for a new preliminary investigation. Petitioners, in the
above excerpts from this petition, admit posting bail immediately following
their return to the country, entered their respective pleas to the charges, and
filed various motions and pleadings. By so doing, without simultaneously
demanding a proper preliminary investigation, they have waived any and all
irregularities in the conduct of a preliminary investigation.[19] The trial court
did not err in denying the motion to quash the informations on the ground of
want of or improperly conducted preliminary investigation. The absence of a
preliminary investigation is not a ground to quash the information.[20]
On the second issue, petitioners contend that they are being prosecuted for
acts punishable under laws that have already been repealed. They point to
the express repeal of Central Bank Circular No. 960 by Circular Nos. 1318
and 1353 as well as the express repeal of Republic Act No. 265 by Republic
Act No. 7653. Petitioners, relying on Article 22 of the Revised Penal Code,[21]
contend that repeal has the effect of extinguishing the right to prosecute or
punish the offense committed under the old laws.[22]
As a rule, an absolute repeal of a penal law has the effect of depriving a court
of its authority to punish a person charged with violation of the old law prior
to its repeal.[23] This is because an unqualified repeal of a penal law
constitutes a legislative act of rendering legal what had been previously
declared as illegal, such that the offense no longer exists and it is as if the
person who committed it never did so. There are, however, exceptions to the
rule. One is the inclusion of a saving clause in the repealing statute that
provides that the repeal shall have no effect on pending actions.[24] Another
exception is where the repealing act reenacts the former statute and
punishes the act previously penalized under the old law. In such instance,
the act committed before the reenactment continues to be an offense in the
statute books and pending cases are not affected, regardless of whether the
new penalty to be imposed is more favorable to the accused.[25]
In the instant case, it must be noted that despite the repeal of Circular No.
960, Circular No. 1353 retained the same reportorial requirement for
residents receiving earnings or profits from non-trade foreign exchange
transactions.[26] Second, even the most cursory glance at the repealing
circulars, Circular Nos. 1318 and 1353 shows that both contain a saving
clause, expressly providing that the repeal of Circular No. 960 shall have no
effect on pending actions for violation of the latter Circular.[27] A saving
clause operates to except from the effect of the repealing law what would
otherwise be lost under the new law.[28] In the present case, the respective
saving clauses of Circular Nos. 1318 and 1353 clearly manifest the intent to
reserve the right of the State to prosecute and punish offenses for violations
of the repealed Circular No. 960, where the cases are either pending or
under investigation.
Petitioners, however, insist that the repeal of Republic Act No. 265,
particularly Section 34,[29] by Republic Act No. 7653, removed the
applicability of any penal sanction for violations of any non-trade foreign
exchange transactions previously penalized by Circular No. 960. Petitioners
posit that a comparison of the two provisions shows that Section 36[30] of
Republic Act No. 7653 neither retained nor reinstated Section 34 of Republic
Act No. 265. Since, in creating the Bangko Sentral ng Pilipinas, Congress did
not include in its charter a clause providing for the application of Section 34
of Republic Act No. 265 to pending cases, petitioners' pending dollar-salting
cases are now bereft of statutory penalty, the saving clause in Circular No.
1353 notwithstanding. In other words, absent a provision in Republic Act No.
7653 expressly reviving the applicability of any penal sanction for the
repealed mandatory foreign exchange reporting regulations formerly
required under Circular No. 960, violations of aforesaid repealed Circular can
no longer be prosecuted criminally.
A comparison of the old Central Bank Act and the new Bangko Sentral's
charter repealing the former show that in consonance with the general
objective of the old law and the new law "to maintain internal and external
monetary stability in the Philippines and preserve the international value of
the peso,"[31] both the repealed law and the repealing statute contain a
penal clause which sought to penalize in general, violations of the law as well
as orders, instructions, rules, or regulations issued by the Monetary Board.
In the case of the Bangko Sentral, the scope of the penal clause was
expanded to include violations of "other pertinent banking laws enforced or
implemented by the Bangko Sentral." In the instant case, the acts of
petitioners sought to be penalized are violations of rules and regulations
issued by the Monetary Board. These acts are proscribed and penalized in
the penal clause of the repealed law and this proviso for proscription and
penalty was reenacted in the repealing law. We find, therefore, that while
Section 34 of Republic Act No. 265 was repealed, it was nonetheless,
simultaneously reenacted in Section 36 of Republic Act No. 7653. Where a
clause or provision or a statute for that matter is simultaneously repealed
and reenacted, there is no effect, upon the rights and liabilities which have
accrued under the original statute, since the reenactment, in effect
"neutralizes" the repeal and continues the law in force without interruption.
[32] The rule applies to penal laws and statutes with penal provisions. Thus,
the repeal of a penal law or provision, under which a person is charged with
violation thereof and its simultaneous reenactment penalizing the same act
done by him under the old law, will neither preclude the accused's
prosecution nor deprive the court of its jurisdiction to hear and try his case.
[33] As pointed out earlier, the act penalized before the reenactment
continues to remain an offense and pending cases are unaffected. Therefore,
the repeal of Republic Act No. 265 by Republic Act No. 7653 did not
extinguish the criminal liability of petitioners for transgressions of Circular
No. 960 and cannot, under the circumstances of this case, be made a basis
for quashing the indictments against petitioners.
Petitioners, however, point out that Section 36 of Republic Act No. 7653, in
reenacting Section 34 of the old Central Act, increased the penalty for
violations of rules and regulations issued by the Monetary Board. They claim
that such increase in the penalty would give Republic Act No. 7653 an ex post
facto application, violating the Bill of Rights.[34]
Is Section 36 of Republic Act No. 7653 an ex post facto legislation?
An ex post facto law is one which: (1) makes criminal an act done before the
passage of the law and which was innocent when done, and punishes such
an act; (2) aggravates a crime, or makes it greater than it was when
committed; (3) changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed; (4) alters the legal rules
of evidence, and authorizes conviction upon less or different testimony than
the law required at the time of the commission of the offense; (5) assuming
to regulate civil rights, and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and (6)
deprives a person accused of a crime of some lawful protection to which he
has become entitled such as the protection of a former conviction or
acquittal, or a proclamation of amnesty.[35]
The test whether a penal law runs afoul of the ex post facto clause of the
Constitution is: Does the law sought to be applied retroactively take "from an
accused any right that was regarded at the time of the adoption of the
constitution as vital for the protection of life and liberty and which he
enjoyed at the time of the commission of the offense charged against
him?"[36]
The crucial words in the test are "vital for the protection of life and
liberty."[37] We find, however, the test inapplicable to the penal clause of
Republic Act No. 7653. Penal laws and laws which, while not penal in nature,
nonetheless have provisions defining offenses and prescribing penalties for
their violation operate prospectively.[38] Penal laws cannot be given
retroactive effect, except when they are favorable to the accused.[39]
Nowhere in Republic Act No. 7653, and in particular Section 36, is there any
indication that the increased penalties provided therein were intended to
operate retroactively. There is, therefore, no ex post facto law in this case.
On the third issue, petitioners ask us to note that the dollar interest earnings
subject of the criminal cases instituted against them were remitted to foreign
banks on various dates between 1983 to 1987. They maintain that given the
considerable lapse of time from the dates of the commission of the offenses
to the institution of the criminal actions in 1991 and 1992, the State's right to
prosecute them for said offenses has already prescribed. Petitioners assert
that the Court of Appeals erred in computing the prescriptive period from
February 1986. Petitioners theorize that since the remittances were made
through the Central Bank as a regulatory authority, the dates of the alleged
violations are known, and prescription should thus be counted from these
dates.
In ruling that the dollar-salting cases against petitioners have not yet
prescribed, the court a quo quoted with approval the trial court's finding
that:
[T]he alleged violations of law were discovered only after the EDSA
Revolution in 1986 when the dictatorship was toppled down. The date of the
discovery of the offense, therefore, should be the basis in computing the
prescriptive period. Since (the) offenses charged are punishable by
imprisonment of not more than five (5) years, they prescribe in eight (8)
years. Thus, only a little more than four (4) years had elapsed from the date
of discovery in 1986 when the cases were filed in 1991.[40]
The offenses for which petitioners are charged are penalized by Section 34 of
Republic Act No. 265 "by a fine of not more than Twenty Thousand Pesos
(P20,000.00) and by imprisonment of not more than five years." Pursuant to
Act No. 3326, which mandates the periods of prescription for violations of
special laws, the prescriptive period for violations of Circular No. 960 is eight
(8) years.[41] The period shall commence "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 institution of judicial proceedings for its
investigation and punishment."[42] In the instant case, the indictments
against petitioners charged them with having conspired with the late
President Ferdinand E. Marcos in transgressing Circular No. 960. Petitioners'
contention that the dates of the commission of the alleged violations were
known and prescription should be counted from these dates must be viewed
in the context of the political realities then prevailing. Petitioners, as close
associates of Mrs. Marcos, were not only protected from investigation by
their influence and connections, but also by the power and authority of a
Chief Executive exercising strong-arm rule. This Court has taken judicial
notice of the fact that Mr. Marcos, his family, relations, and close associates
"resorted to all sorts of clever schemes and manipulations to disguise and
hide their illicit acquisitions."[43] In the instant case, prescription cannot,
therefore, be made to run from the dates of the commission of the offenses
charged, for the obvious reason that the commission of those offenses were
not known as of those dates. It was only after the EDSA Revolution of
February, 1986, that the recovery of ill-gotten wealth became a highly
prioritized state policy,[44] pursuant to the explicit command of the
Provisional Constitution.[45] To ascertain the relevant facts to recover "ill-
gotten properties amassed by the leaders and supporters of the (Marcos)
regime"[46] various government agencies were tasked by the Aquino
administration to investigate, and as the evidence on hand may reveal, file
and prosecute the proper cases. Applying the presumption "that official duty
has been regularly performed",[47] we are more inclined to believe that the
violations for which petitioners are charged were discovered only during the
post-February 1986 investigations and the tolling of the prescriptive period
should be counted from the dates of discovery of their commission. The
criminal actions against petitioners, which gave rise to the instant case, were
filed in 1991 and 1992, or well within the eight-year prescriptive period
counted from February 1986.
The fourth issue involves petitioners' claim that they incurred no criminal
liability for violations of Circular No. 960 since they were exempted from its
coverage.
Petitioners postulate that since the purchases of treasury notes were done
through the Central Bank's Securities Servicing Department and payments of
the interest were coursed through its Securities Servicing
Department/Foreign Exchange Department, their filing of reports would be
surplusage, since the requisite information were already with the Central
Bank. Furthermore, they contend that the foreign currency investment
accounts in the Swiss banks were subject to absolute confidentiality as
provided for by Republic Act No. 6426,[48] as amended by Presidential
Decree Nos. 1035, 1246, and 1453, and fell outside the ambit of the reporting
requirements imposed by Circular No. 960. Petitioners further rely on the
exemption from reporting provided for in Section 10(q), [49] Circular No.
960, and the confidentiality granted to Swiss bank accounts by the laws of
Switzerland.
Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts
from the reporting requirement foreign currency eligible for deposit under
the Philippine Foreign Exchange Currency Deposit System, pursuant to
Republic Act No. 6426, as amended. But, in order to avail of the aforesaid
exemption, petitioners must show that they fall within its scope. Petitioners
must satisfy the requirements for eligibility imposed by Section 2, Republic
Act No. 6426.[50] Not only do we find the record bare of any proof to support
petitioners' claim of falling within the coverage of Republic Act No. 6426, we
likewise find from a reading of Section 2 of the Foreign Currency Deposit Act
that said law is inapplicable to the foreign currency accounts in question.
Section 2, Republic Act No. 6426 speaks of "deposit with such Philippine
banks in good standing, as may...be designated by the Central Bank for the
purpose."[51] The criminal cases filed against petitioners for violation of
Circular No. 960 involve foreign currency accounts maintained in foreign
banks, not Philippine banks. By invoking the confidentiality guarantees
provided for by Swiss banking laws, petitioners admit such reports made.
The rule is that exceptions are strictly construed and apply only so far as
their language fairly warrants, with all doubts being resolved in favor of the
general proviso rather than the exception.[52] Hence, petitioners may not
claim exemption under Section 10(q).
With respect to the banking laws of Switzerland cited by petitioners, the rule
is that Philippine courts cannot take judicial notice of foreign laws.[53] Laws
of foreign jurisdictions must be alleged and proved.[54] Petitioners failed to
prove the Swiss law relied upon, either by: (1) an official publication thereof;
or (2) a copy attested by the officer having the legal custody of the record, or
by his deputy, and accompanied by a certification from the secretary of the
Philippine embassy or legation in such country or by the Philippine consul
general, consul, vice-consul, or consular agent stationed in such country, or
by any other authorized officer in the Philippine foreign service assigned to
said country that such officer has custody.[55] Absent such evidence, this
Court cannot take judicial cognizance of the foreign law invoked by Benedicto
and Rivera.
Anent the fifth issue, petitioners insist that the government granted them
absolute immunity under the Compromise Agreement they entered into with
the government on November 3, 1990. Petitioners cite our decision in
Republic v. Sandiganbayan, 226 SCRA 314 (1993), upholding the validity of
the said Agreement and directing the various government agencies to be
consistent with it. Benedicto and Rivera now insist that the absolute
immunity from criminal investigation or prosecution granted to petitioner
Benedicto, his family, as well as to officers and employees of firms owned or
controlled by Benedicto under the aforesaid Agreement covers the suits filed
for violations of Circular No. 960, which gave rise to the present case.
The pertinent provisions of the Compromise Agreement read:
WHEREAS, this Compromise Agreement covers the remaining claims and the
cases of the Philippine Government against Roberto S. Benedicto including
his associates and nominees, namely, Julita C. Benedicto, Hector T. Rivera, x x
x cases and investigations of the Philippine Government, such that there shall
WHEREAS, specifically these claims are the subject matter of the following
cases (stress supplied):
1. Sandiganbayan Civil Case No. 9
2. Sandiganbayan Civil Case No. 24
3. Sandiganbayan Civil Case No. 34
4. Tanodbayan (Phil-Asia)
5. PCGG I.S. No. 1
xxx
WHEREAS, following the termination of the United States and Swiss cases,
and also without admitting the merits of their respective claims and
counterclaims presently involved in uncertain, protracted and expensive
litigation, the Republic of the Philippines, solely motivated by the desire for
the immediate accomplishment of its recovery mission and Mr. Benedicto
being interested to lead a peaceful and normal pursuit of his endeavors, the
parties have decided to withdraw and/or dismiss their mutual claims and
counterclaims under the cases pending in the Philippines, earlier referred to
(underscoring supplied);
xxx
II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition
of the Freedom to Travel
a) The Government hereby lifts the sequestrations over the assets listed in
Annex "C" hereof, the same being within the capacity of Mr. Benedicto to
acquire from the exercise of his profession and conduct of business, as well
as all the haciendas listed in his name in Negros Occidental, all of which were
inherited by him or acquired with income from his inheritance...and all the
other sequestered assets that belong to Benedicto and his
corporation/nominees which are not listed in Annex "A" as ceded or to be
ceded to the Government.
Provided, however, (that) any asset(s) not otherwise settled or covered by
this Compromise Agreement, hereinafter found and clearly established with
finality by proper competent court as being held by Mr. Roberto S. Benedicto
in trust for the family of the late Ferdinand E. Marcos, shall be returned or
surrendered to the Government for appropriate custody and disposition.
b) The Government hereby extends absolute immunity, as authorized under
the pertinent provisions of Executive Orders Nos. 1, 2, 14 and 14-A, to
Benedicto, the members of his family, officers and employees of his
corporations above mentioned, who are included in past, present and future
be no criminal investigation or prosecution against said persons for acts (or)
omissions committed prior to February 25, 1986, that may be alleged to have
violated any laws, including but not limited to Republic Act No. 3019, in
relation to the acquisition of any asset treated, mentioned or included in this
Agreement.
x x x[56]
In construing contracts, it is important to ascertain the intent of the parties
by looking at the words employed to project their intention. In the instant
case, the parties clearly listed and limited the applicability of the
Compromise Agreement to the cases listed or identified therein. We have
ruled in another case involving the same Compromise Agreement that:
[T]he subject matters of the disputed compromise agreement are
Sandiganbayan Civil Case No. 0009, Civil Case No. 00234, Civil Case No. 0034,
the Phil-Asia case before the Tanodbayan and PCGG I.S. No. 1. The cases
arose from complaints for reconveyance, reversion, accounting, restitution,
and damages against former President Ferdinand E. Marcos, members of his
family, and alleged cronies, one of whom was respondent Roberto S. Criminal Cases Nos. 91-101879 to 91-101883, 91-101884 to 101892, and 92-
Benedicto.[57] 101959 to 92-101969, pending before the Regional Trial Court of Manila,
Branch 26, are ordered dropped and that any criminal as well as civil liability
Nowhere is there a mention of the criminal cases filed against petitioners for ex delicto that might be attributable to him in the aforesaid cases are
violations of Circular No. 960. Conformably with Article 1370 of the Civil declared extinguished by reason of his death on May 15, 2000. No
Code,[58] the Agreement relied upon by petitioners should include only pronouncement as to costs.
cases specifically mentioned therein. Applying the parol evidence rule,[59]
where the parties have reduced their agreement into writing, the contents of SO ORDERED.
the writing constitute the sole repository of the terms of the agreement
between the parties.[60] Whatever is not found in the text of the Agreement
should thus be construed as waived and abandoned.[61] Scrutiny of the
Compromise Agreement will reveal that it does not include all cases filed by
the government against Benedicto, his family, and associates.

Additionally, the immunity covers only "criminal investigation or prosecution

against said persons for acts (or) omissions committed prior to February 25,
1986 that may be alleged to have violated any penal laws, including but not
limited to Republic Act No. 3019, in relation to the acquisition of any asset
treated, mentioned, or included in this Agreement."[62] It is only when the
criminal investigation or case involves the acquisition of any ill-gotten wealth
"treated, mentioned, or included in this Agreement"[63] that petitioners may
invoke immunity. The record is bereft of any showing that the interest
earnings from foreign exchange deposits in banks abroad, which is the
subject matter of the present case, are "treated, mentioned, or included" in
the Compromise Agreement. The phraseology of the grant of absolute
immunity in the Agreement precludes us from applying the same to the
criminal charges faced by petitioners for violations of Circular No. 960. A
contract cannot be construed to include matters distinct from those with
respect to which the parties intended to contract.[64]

In sum, we find that no reversible error of law may be attributed to the Court
of Appeals in upholding the orders of the trial court denying petitioners'
Motion to Quash the Informations in Criminal Case Nos. 91-101879 to 91-
101883, 91-101884 to 91-101892, and 92-101959 to 92-101969. In our view,
none of the grounds provided for in the Rules of Court[65] upon which
petitioners rely, finds application in this case.

One final matter. During the pendency of this petition, counsel for petitioner
Roberto S. Benedicto gave formal notice to the Court that said petitioner died
on May 15, 2000. The death of an accused prior to final judgment terminates
his criminal liability as well as the civil liability based solely thereon.[66]

WHEREFORE, the instant petition is DISMISSED. The assailed consolidated

Decision of the Court of Appeals dated May 23, 1996, in CA-G.R. SP No. 35928
and CA-G.R. SP No. 35719, is AFFIRMED WITH MODIFICATION that the
charges against deceased petitioner, Roberto S. Benedicto, particularly in

8. People vs Liwanag
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Lope Liwanag y Buenaventura, and his co-accused Randy
Simbulan and Ramil Vendibil, were charged with the crime of highway
robbery with multiple rape in an Information[1] which reads, thus:
That on or about the 27th day of April, 1992, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with an icepick,
conspiring and confederating together and mutually helping and aiding one
another, with intent to gain and by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously, take, rob and divest
from the complainant, Corazon Hernandez y Delfin the amount of P60.00;
That on the occasion thereof, the above-named accused, conspiring and
confederating together and each of them mutually helping and aiding one
another and by means of force and intimidation, did, then and there willfully,
unlawfully and feloniously one at a time have carnal knowledge of the said
complainant, inside the Levitown Subdivision, Paraaque, Metro Manila,
against her will and consent;
That accused Randy Simbulan y Garcia, who is allegedly 14 years old, has
acted with discernment in the commission of the offense; and
That the aggravating circumstance of that means employed or circumstance
brought about which add ignominy to the natural effect of the act where one
of the accused, by means of force and intimidation, caused the victim to suck
his penis made the effect of the crime more humiliating to the victim,
attended the commission of the offense.
CONTRARY TO LAW.
During the arraignment, all of them pleaded "not guilty" to the charge.
Accused Randy Simbulan and Ramil Vendibil were earlier released on
recognizance, and were later ordered rearrested for their failure to appear at
the scheduled hearings. However, the warrants for their arrest were not
implemented. Trial on the merits, thus, ensued only against accused-
appellant Lope Liwanag y Buenaventura.
Complainant Corazon Hernandez was on her way home to Paraaque at
around 1:00 o'clock in the early morning of April 27, 1992. Upon reaching the
tricycle terminal at Doa Soledad St., Better Living Subdivision, Paraaque,
Metro Manila, she was offered by tricycle driver Ramil Vendibil a "special
trip", which means that she would be brought right in front of her house. She
agreed and boarded the tricycle. While they were about to leave, Randy
Simbulan and Lope Liwanag also rode the tricycle behind the driver. When
they reached India Street, Lope Liwanag entered the sidecar and sat beside
complainant. He immediately grabbed complainant's shoulder, pointed an
instrument at the side of her neck, and declared a hold-up. Surprised and
fearing for her life, complainant told accused-appellant that she only had
sixty pesos (P60.00) in her bag. Accused-appellant Lope Liwanag instructed
Randy Simbulan to get her bag.
While the tricycle was traversing the road leading to the municipal building of
Paraaque, accused-appellant informed complainant that since they could
not get anything from her anyway, she might as well submit herself to them.
Then, accused-appellant began kissing complainant and touching her private
parts. Randy Simbulan, meanwhile, inserted his finger into complainant's
vagina.
As they were entering Levitown Subdivision, accused-appellant ordered
complainant to act naturally while they passed the guardhouse. Once they
got through, accused-appellant asked her to give in to his desire, and then,
he again began touching her private parts. Complainant answered that she
would rather be killed than accede to his desire. This prompted accused-
appellant to hit her with an icepick on the abdomen.
Upon reaching a vacant lot, accused-appellant ordered Vendibil to stop the
tricycle. He then tried to strangle complainant, causing her to fall down from
her seat and lose consciousness. When she regained consciousness, she was
forced to board the tricycle. Again, they rode around the village. Accused-
appellant tried to strangle her with a bandana and ordered her to remove
her underwear. When she refused, accused-appellant himself removed her
underwear, opened his pant zipper and forced her to sit on his lap.
Complainant struggled, so accused-appellant ordered the tricycle to stop and
dragged complainant out. Accused-appellant then brought complainant to a
grassy vacant lot and forced himself on her. After satisfying his lust, they
again boarded the tricycle and accused-appellant informed complainant that
his companions would follow. Complainant's pleas were in vain. After a few
minutes of driving around, they came upon another vacant lot where
accused-appellant and Vendibil dragged complainant. There, Vendibil forced
complainant to put his penis into her mouth. Unsatisfied, Vendibil forced her
to lie down and succeeded in having sexual intercourse with her while
accused-appellant and Simbulan watched. Thereafter, Simbulan took his
turn. After he satisfied his lust, they talked of killing complainant.
Complainant pleaded for her life and, in desperation, she offered them
money in exchange for her life. Accused-appellant asked her if she can
produce P10,000.00, but she said she could not. Accused-appellant lowered
his demand to P5,000.00. They negotiated until they finally agreed on the
sum of P2,000.00. Accused-appellant instructed complainant to deliver the
money at Guadalupe, Makati. She was to place the amount inside a bag
together with a sandwich she was to buy at Burger Machine. They agreed to
meet at 11:30 that same morning. When they finally let go of her,
complainant proceeded to a church. At daybreak, she went home and told
her mother the whole incident. Together, they proceeded to the Fort
Bonifacio police station and reported the matter. The police, in turn, devised
an entrapment operation.
At the appointed hour, complainant went to Guadalupe, Makati, bringing
with her an envelope containing pieces of plain paper. Accused-appellant
arrived after 45 minutes. Complainant handed the envelope to him, then she
ran away. Accused-appellant also ran and boarded a bus, but he was collared
and arrested by the police.
Dr. Louella Nario, Medico Legal Officer of the National Bureau of
Investigation conducted an examination on the complainant and issued a
medical certificate[2] with the following findings:
Extragenital Physical Injuries:
Abrasions, linear, leg, right, upper third, anterior aspect, 4.8 cms., in length
and left, lower third, anterior aspect, 4.7 cm. in length.
Contused abrasion, epigastric region, 2.4 x 0.3 cm.
Contusions, reddish, mandibular region, right side, 1.8 x 1.5 cm. and left side,
2.0 x 1.0 cms.; neck, lateral aspect, right side, 5.5 x 0.5 cms., and 9.8 x 0.5
cms. and 2.5 x 0.5 cms. deltoid region, left side, 2.4 x 1.3 cms. purplish,
deltoid region, left side, 4.2 x 2.5 cms.
Genital Examination:
Pubic hair, fully grown, abundant. Labia majora and minora, gaping.
Fourchette, lax. Vestibular mucosa, congested, with fresh superficial abrasion
at the fossa navicularis. Hymen, thick, short, intact. Hymenal orifice, annular,
admits a tube, 2.0 cms., in diameter with moderate resistance. Vagina walls,
tight. Rugosities, prominent.
Conclusion:
1. The above-described extragenital physical injuries noted on the body of
the subject at the time of examination.
2. Genital injury present.
Accused-appellant denied the accusation against him. He claimed that at
around 12:00 o'clock midnight of April 27, 1992, he was at his house at Texas
Street, Better Living Subdivision, Paraaque, Metro Manila. His uncle, Emilio
Changco, dropped by and, together with Ponciano Buenaventura and
Hermenegildo Liwanag, they had a drinking session up to 3:00 o'clock in the
morning. At around 4:00 o'clock in the morning, Changco left and accused-
appellant went to sleep. He woke up at 7:30 in the morning to prepare for his
trip to San Miguel, Bulacan to see his grandfather.
He alleged that while waiting for a ride in front of Jollibee at Guadalupe,
Makati, he was arrested by policemen in civilian clothes for being a rebel
soldier, based on a mark on his right fist indicating his membership in the
Guardians Luzon, an association of soldiers. He was brought to Fort Bonifacio
where he allegedly met for the first time Randy Simbulan and Ramil Vendibil.
He claimed that the three of them were beaten and subjected to electric
shocks. He also claimed that policemen forced his co-accused to point to
him.
On April 17, 1995, a decision[3] was rendered by the Regional Trial Court of
Makati, Branch 138, the dispositive portion of which reads:
WHEREFORE, the Court finds accused Lope Liwanag y Buenaventura GUILTY
beyond reasonable doubt of having violated Presidential Decree No. 532,
known as the Anti-Piracy and Anti-Highway Robbery Law of 1974.
Considering that on the occasion of the highway robbery, rape was
committed, a situation which calls for the imposition of death penalty under
Presidential Decree No. 532 but which penalty was still proscribed at the
time of the commission of the offense alleged in the Information, said
accused is hereby sentenced to suffer the penalty of reclusion perpetua, the
penalty next lower in degree (People v. Miranda, 235 SCRA 202). He is further
ordered to indemnify the complainant Corazon Hernandez of the amount of
One Million Pesos (P1,000,000.00) representing moral damages; P20,000.00
as litigation expenses and attorney's fees and to return the P60.00 taken
from her. Filing fees due on the award shall be a lien on the amount which
may be recovered by the complainant from the accused.
As to the two other co-accused, Randy Simbulan and Ramil Vendibil, trial of
the case shall therefore continue.
Aggrieved by the trial court's decision, accused-appellant interposed the
instant appeal assigning as errors the following:
1. The trial court erred in convicting accused-appellant notwithstanding the
fact that he was deprived of his constitutional right to effective and
competent counsel, and, consequently, other constitutional rights afforded
an accused;
2. The trial court erred in convicting accused-appellant notwithstanding that
there was no sufficient evidence positively identifying him as the perpetrator
of the crime charged;
3. The trial court erred in convicting accused-appellant in spite of the
inconsistencies that tainted the evidence for the prosecution;
4. The trial court erred in convicting accused-appellant in spite of the
improbability of the manner by which the crime was allegedly committed;
5. The trial court erred in convicting accused-appellant inspite of
complainant's failure to offer any resistance prior to and even during her
alleged rape; and
6. The trial court erred in disregarding the defense of accused-appellant as a
mere alibi.
Accused-appellant submits that he was deprived of his constitutional right to
counsel under Article III, Section 14, (2) of the 1987 Constitution which
provides, thus:
In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, x x x. (Italics supplied)
As a consequence, accused-appellant claims that from the time he was
arrested up to the time of his conviction, he was deprived of his other
constitutional rights, particularly his right to be secure in his person against
unreasonable searches and seizures,[4] his right to preliminary investigation,
[5] and his right to bail.[6]
In addition, accused-appellant claims that the assistance extended to him by
his former counsel was ineffective to the extent that private complainant, as
well as prosecution witnesses SPO1 Armando P. Sevilla and Editha
Hernandez, were hardly cross-examined, while Dra. Louella Nario was not
cross-examined at all.
In any case, accused-appellant claims that he could not have committed the
crime being imputed to him as he was engaged in a drinking session at the
very moment when the alleged crime was committed.
Accused-appellant maintains that the trial court erred in convicting him
because: 1) the prosecution failed to provide sufficient evidence positively
identifying him as the perpetrator of the crime; 2) inconsistencies tainted the
prosecution evidence; 3) the manner by which the crime was committed was
improbable; and, 4) complainant failed to offer any resistance prior to and
even during her alleged rape.
This appeal revolves primarily on the issue of whether accused-appellant was
denied his constitutionally guaranteed right to be heard by himself and
counsel. He argues that his right to be heard through his counsel means that
he should be effectively assisted by counsel throughout the proceedings,
from the time he was arrested up to the time judgment is rendered.
The records show that at the start of the proceedings before the trial court,
accused-appellant was represented by counsel de officio, Atty. William T. Uy
of the Public Attorney's Office. In the middle of the trial, accused-appellant
retained the services of counsel de parte Atty. Bienvenido R. Brioso,
replacing Atty. Uy. After the trial court rendered the judgment of conviction,
Atty. Brioso filed the Notice of Appeal on behalf of accused-appellant. Atty.
Brioso, however, failed to file the appellant's brief because of the refusal of
accused-appellant's mother to transmit the entire records of the case to him.
Thus, accused-appellant was required to manifest whether he still desired to
be represented by Atty. Brioso in this appeal. Upon accused-appellant's
failure to reply, Atty. Francis Ed. Lim was appointed counsel de officio.
There is no dispute that accused-appellant was provided with a counsel de
officio who assisted him during the arraignment and conducted the cross
examination of all prosecution witnesses as well as his direct examination.
Thereafter, from the time he was cross-examined up to the presentation of
other defense witnesses, he was assisted by a counsel of his choice.
Accused-appellant's citation of People v. Holgado[7] and Powell v. Alabama,
[8] insofar as the right to be heard by counsel is concerned, is misleading.
Both cases only defined the "right to be heard by counsel" as "the right to be
assisted by counsel." It cannot be inferred from these cases that "the right to
be heard by counsel" presupposes "the right to an intelligent counsel." The
requirement is not for counsel to be "intelligent", but to be effective.
Jurisprudence defined the meaning of "effective counsel" only in the light of
Article III, Section 12 (1) of the Constitution, which refers to the right of
persons under custodial investigation. In People v. Lucero,[9] the rationale
for this constitutional right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the
commission of a crime should be provided with counsel. We have
constitutionalized the right to counsel because of our hostility against the
use of duress and other undue influence in extracting confessions from a
suspect. Force and fraud tarnish confessions and render them inadmissible.
In providing for said right, this Court has held in the same case that when the
Constitution requires the right to counsel, it did not mean any kind of
counsel but effective and vigilant counsel. The requirements of effectiveness
and vigilance of counsel during that stage before arraignment were for the
purposes of guarding against the use of duress and other undue influence in
extracting confessions which may taint them and render them inadmissible.
(Italics supplied)
On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires
that the accused shall enjoy the right to be heard by himself and counsel.
The reason for the latter provision was explained in People v. Holgado, thus:
One of the great principles of justice guaranteed by our Constitution is that
"no person shall be held to answer for a criminal offense without due
process of law", and that all accused "shall enjoy the right to be heard by
himself and counsel." In criminal cases there can be no fair hearing unless
the accused be given an opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated may have no skill in the
science of the law, particularly in the rules of procedure, and, without
counsel, he may be convicted not because he is guilty but because he does
not know how to establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this reason that the right to
be assisted by counsel is deemed so important that it has become a
constitutional right and it is so implemented that under our rules of
procedure it is not enough for the Court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he desires the aid of
an attorney, but it is essential that the court should assign one de oficio for
him if he so desires and he is poor or grant him a reasonable time to procure
an attorney of his own.[10] (Italics supplied)
In essence, the right to be heard by counsel simply refers to the right to be
assisted by counsel for the purpose of ensuring that an accused is not denied
the collateral right to due process, a fundamental right which cannot be
waived by an accused. The underlying basis for due process is the concept of
fairness, without which there can be no justice. In other words, there can be
no due process accorded an accused if he is not given the right to be heard
through counsel or assisted by counsel. It follows that in order to be heard,
and therefore be accorded due process, the assistance given by counsel must
be "effective" as implied in the rationale of Article III, Section 14 (2). In this
sense, this Court subscribes to American jurisprudence when it held that
"[t]he right of an accused to counsel is beyond question a fundamental right.
Without counsel, the right to a fair trial itself would be of little consequence,
for it is through counsel that the accused secures his other rights. In other
words, the right to counsel is the right to effective assistance of counsel."[11]
In the light of the above ratiocination, accused-appellant contends that the
right to be heard by counsel is the right to effective assistance of counsel.
Citing Strickland v. Washington,[12] accused-appellant contends that the
assistance rendered by counsel is ineffective or is defective if the following
elements are present: (1) that counsel's performance was deficient, which
requires a showing that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment; and (2) that the deficient
performance prejudiced the defense, which requires a showing that
counsel's errors were so serious as to deprive the defendant of a fair trial, a
trial which result is reliable. Accused-appellant claims that the assistance
afforded him by his counsel during the course of the trial was "ineffective"
since the counsel de officio failed to safeguard his rights necessary for the
reversal of his conviction.
One of the rights which accused-appellant contends his counsel de officio
failed to safeguard was his right to be secure in his person against
unreasonable searches and seizures as enshrined in the Bill of Rights. He
claims that his right was violated when he was arrested without a warrant
which his counsel should have contested.
Accused-appellant's argument is not well-taken. As reiterated in People v.
Costelo:[13]
[A]ppellant's failure to quash the information, his participation in the trial
and presenting evidence in his behalf, placed him in estoppel to make such
challenge. He has patently waived any objection or irregularities and is
deemed as having submitted himself to the jurisdiction of the court. It
should be noted that the legality of arrest affects only the jurisdiction of the
court over the person of the accused. Consequently, if objection on such
ground is waived, the illegality of the arrest is not sufficient reason for setting
aside an otherwise valid judgment rendered after the trial, free from error.
The technicality cannot render the subsequent proceedings void and deprive
the State of its right to convict the guilty when the facts on the record point
to the culpability of the accused. (Italics supplied)
Any objection involving a warrant of arrest must be made before he enters
his plea, otherwise the objection is deemed waived.[14]
Accused-appellant, likewise, claims that he was deprived of his right to a
preliminary investigation. Had his counsel de oficio been effective, he should
have filed the proper motion on his behalf.
There is no merit in this contention.
Considering that accused-appellant submitted himself to the jurisdiction of
the trial court, he is deemed to have waived his right to preliminary
investigation.
As aptly stated in People v. Buluran:[15]
The failure to accord appellants their right to preliminary investigation did
not impair the validity of the information nor affect the jurisdiction of the
trial court. While the right to preliminary investigation is a substantive right
and not a mere formal or technical right of the accused, nevertheless, the
right to preliminary investigation is deemed waived when the accused fails to
invoke it before or at the time of entering a plea at arraignment. It appearing
that appellants only raised the issue of lack of preliminary investigation
during appeal, their right to a preliminary investigation was deemed waived
when they entered their respective pleas of not guilty.[16]
Accused-appellant next contends that he was deprived of his right to bail. He
contends that had his counsel de officio been effective, he would have filed
the proper motion.
The contention is without any merit. As ruled by this Court in People v.
Manes:[17]
The issue of bail has been rendered academic by the conviction of the
accused. When an accused is charged with a capital offense, or an offense
punishable by reclusion perpetua, or life imprisonment or death, and
evidence of guilt is strong, bail must be denied, as it is neither a matter of
right nor of discretion.
In the case of Strickland,[18] the United States Supreme Court:
Judicial scrutiny of counsel's performance must be highly deferential. It is all
too tempting for a defendant to secondguess counsel's assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective
at the time. Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action "might be considered sound trial strategy." There are
countless ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular client in the
same way.
In showing the ineffectiveness of the assistance rendered by counsel de
officio, accused-appellant points out the following:
The private complainant, whose testimony was the principal basis of the
conviction, was hardly cross-examined. The same is true with prosecution
witnesses SPO1 Armando P. Sevilla and Editha Hernandez. In fact,
prosecution witness Dra. Louella Nario was not cross-examined at all.
As a result of the insufficient cross-examination of the witnesses for the
prosecution, particularly the private complainant, the defense of the
accused-appellant failed to bring to the attention of the trial court several
matters which amplify the improbability, if not impossibility, in the
complainant's testimony on how the crime was allegedly committed. Thus,
the defense was not able to highlight several crucial points, among which
are: (1) the impossibility that the alleged crime, particularly the rape, was
committed in a populated area - an inhabited and well-developed
subdivision in Paraaque, with a 24-hour store (Burger Machine) at that -
without being noticed; (2) the fact that, assuming that accused-appellant had
carnal knowledge of the complainant, the latter did not offer any form of
resistance; and (3) the impossibility that after the crime charged was
allegedly committed, accused-appellant and his co-accused gentlemanly
accompanied complainant to a place of her choice (the church).
Moreover, several questions remained unanswered. For example (1) What
time did the complainant report the incident to the police?; (2) How long did
the police plan the alleged entrapment?; (3) Were there other officers
involved in the entrapment?; and (4) Why was the money and other materials
used for entrapment not presented in evidence?
Furthermore, there were also no attempts to impeach the testimony of the
private complainant on the scene of the crime through the use of
contradictory evidence as provided in the Rules. For instance, accused-
appellant's counsel could have presented a resident of the subdivision where
the crime was allegedly committed to describe the area. Such witness can
establish: (1) whether or not the area where the crime was allegedly
committed was indeed too dark for anyone to notice the commission of the
alleged crime; (2) whether or not the houses in the subdivision are indeed
too far apart that occurrences outside one house would not be discernible
from within; and (3) whether or not the location of the houses in the
subdivision is such that it would indeed be useless for a woman, faced with
the threat of rape to even attempt to ask for help.
We are not convinced. The assistance extended by Attorney Uy of the Public
Attorney's Office was sufficiently effective. As noted by the Office of the
Solicitor General, to wit:
The pertinent transcripts of stenographic notes would show that appellant's
counsel de oficio, Atty. William Uy, cross-examined the private complainant
extensively as well as two other prosecution witnesses (SPO1 Sevilla and
Edith Hernandez). That said counsel opted not to cross-examine the
prosecution expert witness, Dr. Louella Nario, is of no moment because said
witness merely explained in court her findings and conclusions that she had
arrived at after conducting the medical examination on the private
complainant [Exhibit C] (TSN, March 30, 1993, pp. 10-12). In fact, at one
point, Atty. Uy raised an objection to the private prosecutor's question on
how private complainant's genital injuries were sustained for being
incompetent to answer, which objection was impliedly sustained by the trial
judge (Ibid., p. 13).
In assessing the effectiveness of counsel's assistance, the Strickland standard
invoked by accused-appellant is too stringent for application in Philippine
judicial setting. Strickland only seeks to ensure that the adversarial testing
process is present in a case by requiring that the assistance rendered by
counsel be "effective". The presence of an adversarial testing process, in
other words, ensures that the trial is fair by according the accused due
process through the "effective" assistance of counsel.
While fairness is likewise the object of Article III, Section 14 (2) of the
Philippine Constitution, the assistance afforded by counsel to an accused in
light of the Philippine constitutional requirement need only be in accordance
with the pertinent provisions of the Rules of Court, the Code of Professional
Responsibility and the Canons of Professional Ethics. In Philippine judicial
setting, a counsel assisting an accused is presumed to be providing all the
necessary legal defense which are reasonable under the circumstances in
accordance with said norms.
In this regard, a counsel assisting an accused is guided by the following
provisions of Section 20 of Rule 138 of the Rules of Court:
Sec. 20. Duties of attorneys. -- It is the duty of an attorney:
xxxxxxxxx
(c) To counsel or maintain such actions or proceedings only as appear to him
to be just, and such defenses only as he believes to be honestly debatable
under the law;
(d) To employ, for the purpose of maintaining the causes confided to him,
such means only as are consistent with truth and honor, and never seek to
mislead the judge or any judicial officer by an artifice or false statement of
fact or law;
xxxxxxxxx
(h) Never to reject, for any consideration personal to himself, the cause of
the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable
means, regardless of his personal opinion as to the guilt of the accused, to
present every defense that the law permits, to the end that no person may
be deprived of life or liberty, but by due process of law. (Italics supplied)
The following canons of the Code of Professional Responsibility, likewise,
provide:
Canon 2 -- A lawyer shall make his legal services available in an efficient and
convenient manner compatible with the independence, integrity and
effectiveness of the profession.
xxxxxxxxx
Canon 12 -- A lawyer shall exert every effort and consider it his duty to assist
in the speedy and efficient administration of justice.
xxxxxxxxx
Canon 17 -- A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
Canon 18 -- A lawyer shall serve his client with competence and diligence.
xxxxxxxxx
Canon 19 -- A lawyer shall represent his client with zeal within the bounds of
the law.
Lastly, the Canons of Professional Ethics provide:
4. A lawyer assigned as counsel for an indigent prisoner ought not to ask to
be excused for any trivial reason and should always exert his best efforts in
his behalf.
5. It is the right of the lawyer to undertake the defense of a person accused
of crime, regardless of his personal opinion as to the guilt of the accused;
otherwise, innocent persons, victims only of suspicious circumstances, might
be denied proper defense. Having undertaken such defense, the lawyer is
bound, by all fair and honorable means, to present every defense that the
law of the land permits, to the end that no person may be deprived of life or
liberty but by due process of law.
15. x x x x x x x x x
The lawyer owes "entire devotion to the interest of the client, warm zeal in
the maintenance and defense of his rights and the exertion of his utmost
learning and ability," to the end that nothing be taken or be withheld from
him, save by the rules of law, legally applied. No fear of judicial disfavor or
public unpopularity should restrain him from the full discharge of his duty.
In the judicial forum the client is entitled to the benefit of any and every
remedy and defense that is authorized by the law of the land, and he may
expect his lawyer to assert every such remedy or defense. But it is steadfastly
to be borne in mind that the great trust of the lawyer is to be performed
within and not without the bounds of the law. The office of attorney does not
permit, much less does it demand of him for any client, violation of law or
any manner of fraud or chicanery. He must obey his own conscience and not
that of his client.
The above-cited norms are more than adequate to guide a counsel's conduct
in the performance of his duty to assist a client in an effective manner as
required by Article III, Section 14 (2). Said constitutional provision is
patterned after the Sixth Amendment of the American Constitution. As in
Article III, Section 14 (2), the Sixth Amendment refers simply to "counsel,"
not specifying particular requirements of effective assistance. It relies
instead on the egal profession's maintenance of standards sufficient to
justify the law's presumption that counsel will fulfill the role in the adversary
process that the Amendment envisions. The proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms.[19]
Coupled with the presumption that counsel's performance was reasonable
under the circumstances, as long as the trial was fair in that the accused was
accorded due process by means of an effective assistance of counsel, then
the constitutional requirement that an accused shall have the right to be
heard by himself and counsel is satisfied. The only instance when the quality
of counsel's assistance can be questioned is when an accused is deprived of
his right to due process. Otherwise, there is the danger that questioning
counsel's acts or omissions in the conduct of his duties as counsel for an
accused may breed more unwanted consequences than merely upholding an
accused's constitutional right or raising the standard of the legal profession.
In the case at bar, accused-appellant's right to due process has been
observed and the trial was conducted in a fair manner. Corollarily, this Court
sees no reason to doubt or overcome the presumption that counsel de
officio reasonably assisted accused-appellant in accordance with the
prevailing norms of professional conduct and his sworn duties as an officer
of the court.
Based on the findings of the trial court, accused-appellant was not at all
prejudiced by the alleged ineffectiveness of his counsel. The alleged failures
by his counsel to safeguard his rights from the time he was arrested up to
the time he was sentenced and the alleged inadequacies in the direct and
cross-examinations of prosecution witnesses were ultimately
inconsequential to the eventual outcome of the case. If at all, the outcome
was the result of the strength of the prosecution evidence rather than the
failures and inadequacies in the conduct of the defense as shown by the
following:
First, counsel's decision to adopt the defense of denial and alibi as part of the
trial strategy merely highlighted the strength of the prosecution evidence.
While its adoption may have been dictated by the factual circumstances of
the case as perceived by accused-appellant, however, denial is an inherently
weak defense vis- -vis the positive and categorical assertion of
prosecution witnesses. In fact, the trial court found accused-appellant's
denial to be self-serving.
Like denial, accused-appellant's alibi was not looked upon with favor by the
trial court. Not only is it one of the weakest defenses due to its being capable
of easy fabrication, it also cannot prevail over witnesses' positive
identification of accused-appellant as the perpetrator of the crime. In any
event, for the defense of alibi to prosper, it is not enough that the accused
can prove his being at another place at the time of its commission, it is
likewise essential that he can show physical impossibility for him to be at the
locus delicti.[20] The trial court found accused-appellant's and his witnesses'
testimonies on the former's alibi unconvincing.
In the instant case, accused-appellant claims that he was engaged in a
drinking session with some persons at their house in Texas Street, Better
Living Subdivision at about the time when the crime was committed until
3:00 o'clock in the morning. However, Better Living Subdivision is adjacent to
Levitown Subdivision, where the rape was committed. In fact, it was in Better
Living Subdivision where complainant was robbed and sexually molested
prior to being raped at Levitown Subdivision.
Second, accused-appellant also points to alleged discrepancies between
some of complainant's accounts in her sworn statement and some of her
declarations in her direct testimony regarding the position of accused
relative to that of complainant, the kind of instrument used to threaten
complainant and the person who got complainant's money. The apparent
discrepancies, however, only refer to immaterial or irrelevant details.
Complainant was consistent in her narration in her sworn statement as well
as during her direct examination and even in the cross-examination
regarding the roles played by the three accused in the commission of the
crime.
A Sinumpaang Salaysay or a sworn statement is merely a short narrative
subscribed to by the complainant in question and answer form. Thus, it is
only to be expected that it is not as exhaustive as one's testimony in open
court. The contradictions, if any, may be explained by the fact that an
affidavit can not possibly disclose the details in their entirety, and may
inaccurately describe, without deponent detecting it, some of the
occurrences narrated. Being taken ex-parte, an affidavit is almost always
incomplete and often inaccurate, sometimes from partial suggestions, and
sometimes from the want of suggestions and inquiries. It has thus been held
that affidavits are generally subordinated in importance to open court
declarations because the former are often executed when an affiant's mental
faculties are not in such a state as to afford her a fair opportunity of
narrating in full the incident which has transpired. Further, affidavits are not
complete reproductions of what the declarant has in mind because they are
generally prepared by the administering officer and the affiant simply signs
them after the same have been read to her.[21]
In People v. Mangat,[22] this Court has reiterated the doctrine that
discrepancies between sworn statements and testimonies made at the
witness stand do not necessarily discredit the witness. Sworn
statements/affidavits are generally subordinated in importance to open court
declarations because the former are often executed when an affiant's mental
faculties are not in such a state as to afford him a fair opportunity of
narrating in full the incident which has transpired. Testimonies given during
trials are much more exact and elaborate. Thus testimonial evidence carries
more weight than statements/affidavits.
faint, and some may be shocked into insensibility while others may openly
welcome the intrusion. In any case, the law does not impose upon a rape
victim the burden of proving resistance. Physical resistance need not be
established in rape when intimidation is exercised upon the victim and she
submits herself against her will to the rapist's lust because of fear for life and
personal safety.[23]
Lastly, complainant positively pointed at accused-appellant as one of the
perpetrators of the crime. Accused-appellant could not show any reason why
complainant would point him as one of the perpetrators of the crime. It is
settled that where there is no evidence to show any dubious reason or
improper motive why a prosecution witness would testify falsely against an
accused or falsely implicate him in a crime, the testimony is worthy of full
faith and credit.[24]
The trial court ordered accused-appellant to pay complainant moral
damages in the amount of P1,000,000.00. This award must be reduced to
P50,000.00. The purpose of this award is not to enrich the victim but to
compensate her for injuries to her feelings. Moreover, moral damages for
rape is fixed at P50,000.00.[25]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Makati, Branch 138, finding accused-appellant Lope Liwanag guilty of
violating P.D. No. 532 and sentencing him to suffer the penalty of reclusion
perpetua, to indemnify complainant Corazon Hernandez P20,000.00 as
litigation expenses and attorney's fees and to return the P60.00 is AFFIRMED
with the MODIFICATION that the amount of moral damages is reduced to
P50,000.00. Costs against accused-appellant.
SO ORDERED.

Third, accused-appellant alleges that complainant failed to offer any

resistance prior to or even during her alleged rape thereby concluding that it
could have been consensual. She did not ask for help when the alleged rape
took place in a populated area. She likewise did not try to escape when she
had the opportunity to do so.

This Court finds the above argument specious and unmeritorious. It should
be noted that accused-appellant was brandishing an icepick which clearly
showed his readiness to use the same by hitting complainant with it. Besides,
she testified that she was already weak and tired to be able to do anything
against three malefactors who were stronger than her. It would have been
foolhardy for complainant to resist the accused considering her weakened
condition. The workings of a human mind placed under emotional stress are
unpredictable and people react differently - some may shout, some may
 9. Public Utilities Dept vs Guingona
DECISION
BUENA, J.:
This is a petition for review of the Decision of the Court of Appeals[1]
promulgated on August 22, 1997 in CA-G.R. SP No. 39689, which affirmed the
Resolution dated November 6, 1995 of respondent Secretary of Justice
Teofisto Guingona which directed the Acting City Prosecutor of Olongapo City
to "move for the withdrawal of the informations against the respondent for
theft of electricity in relation to P.D. 401, if the same were already filed in
court, xxx."
The antecedent facts of the case are undisputed:
Private respondent Conrado L. Tiu is the owner and manager of Conti's Plaza,
a supermarket located at Rizal Avenue corner 21st Street, Olongapo City, and
another establishment located at No. 46 Fendler Street, East Tapinac,
Olongapo City. The electric power consumption of private respondent is
supplied by petitioner Public Utilities Department.
Petitioner claimed that pursuant to its Power Loss Reduction Program,
implemented with the assistance of Meralco, a digital recording ammeter, or
load logger, was installed on November 25, 1992 at the primary line of
Conti's Plaza to monitor its actual power utilization. It was later discovered
that the KWH electric meter of Conti's Plaza failed to register the actual
amount of its power consumption. The power loss to petitioner was
computed at 86.08%. For the purpose of pinpointing the source of the power
loss, private respondent was informed by petitioner that the KWH electric
meter, current transformers and metering facilities of Conti's Plaza would be
inspected.
The inspection was done on March 3, 1993 in the presence of private
respondent Tiu's operations manager and lawyer. Meralco meter test crew
checked the two (2) current transformers installed outside of Conti's Plaza
using state-of-the-art phase angle test apparatus. The test showed that the
polarity markings on the terminals of one of the two (2) current transformers
were reversed or interchanged. This would counter-act the current of the
other transformer. Consequently, the effective registration of the KWH
electric meter of Conti's Plaza was only 10.71% with the corresponding
power loss to the herein petitioner of 89.29%. When corrections were made,
the KWH electric meter reflected the correct amount of electric consumption
at Conti's Plaza. The unregistered consumption at Conti's Plaza for the billing
period from November 8, 1988 until February, 1993, was pegged and valued
in the amount of P9,364,267.00. Despite repeated demands to pay the said
amount, respondent Tiu failed and refused to pay the same.
On March 17, 1993, the KWH electric meter installed at respondent Tiu's
building located at No. 46 Fendler Street, East Tapinac, Olongapo City, was
found to register 0-0 consumption. After a thorough inspection, it was
discovered that the potential link of the KWH meter installed at the second
floor of the said building was disengaged. The KWH meter thus did not
register any consumption.
Subsequently, petitioner filed a complaint for violation of City Ordinance No.
23, Series of 1989, and of Presidential Decree No. 401 for theft of electricity
against private respondent.
After preliminary investigation, the office of the State Prosecutor dismissed
the complaint.
On appeal, then Acting Secretary of the Department of Justice Demetrio
Demetria concurred with the office of the State Prosecutor's findings that the
violation of City Ordinance No. 23 had prescribed but found sufficient
evidence to hold private respondent liable for theft of electricity.[2] Upon
private respondent's filing of a motion for reconsideration, respondent
Secretary of Justice reversed[3] the said ruling and directed the withdrawal of
the information against private respondent for theft of electricity. This
prompted petitioner to file a petition for certiorari with the Court of Appeals.
On August 22, 1997, the Court of Appeals promulgated its decision
dismissing the petition for lack of merit. Hence, the present petition.
The only issue in this case is whether or not the Court of Appeals erred in
ruling that the respondent Secretary of Justice did not commit grave abuse of
discretion in issuing the Resolution of November 6, 1995.
Petitioner alleges that the Court of Appeals committed grave and serious
reversible error in dismissing the petition for certiorari since the petitioner
has established a prima facie case to prosecute private respondent for two
(2) counts of theft of electricity.
Petitioner argues that the purpose of a preliminary investigation is not to
determine whether the accused is guilty beyond reasonable doubt of the
crime charged, but merely whether there existed a probable cause for his
prosecution, i.e., whether there is sufficient ground to engender a well-
founded belief that a crime has been committed; that the respondent is
probably guilty thereof and should be held for trial. Petitioner submits that it
is sufficient to adduce evidence which inclines the mind to believe, without
necessarily leaving room for doubt, that the accused is guilty of a crime and
should be held for trial.
In support of its petition, petitioner cites then Acting Secretary of Justice
Demetrio G. Demetria's resolution, to wit:
"Assuming there is no direct proof that respondent caused the tampering of
the electric meters either by disengaging the polarity thereof or causing the
unauthorized electrical connections, there is ample circumstantial evidence
to prove his culpability. Thus, 'circumstantial evidence is sufficient for
conviction if: (a) there is more than one circumstance; (b) the facts from
which the inference are derived are proven; and (c) the combination of all
the circumstances is such as to produce a conviction beyond a reasonable
doubt.' (Section 5, Rule 133, Revised Rules of Court).
"The following circumstances have been shown, to wit:
"In I.S. No. 339 -
"1. That respondent provided the required electric meters and current
transformers (CTs) installed at his business premises;
"2. That complainant's installation crew simply followed the standard
metering principle in connecting the current transformers to the KWH meter
as respondent's technicians prepared all electrical connections;
"3. That it was discovered by the MERALCO meter test crew that the two CTs
had their polarity markings tampered, resulting in that the tampered
marking of the polarity of the CTs led to a wrong connection of the KWH
meter which, consequently, registered a 10.71% electric consumption only,
with a power loss of 89.29% to complainant;
"4. That after the wiring connection was reversed, the rotation pace of the
meter increased to almost 675%;
"In I.S. No. 506, aside from the first and second circumstances above-
mentioned, additional circumstances were also noted, thus:
"1. That when inspected by complainant's team, meter No. 26439328
reflected zero consumption;
"2. That the potential link in the said electric meter at the second floor was
disengaged resulting in the meter not registering any electric consumption;
"3. That respondent transferred the load of his appliances and equipment
from the first floor of the building to the second floor where the tampered
meter is located;
"4. That when complainant's team disconnected the loadside of the meter, a
spark was produced, indicating that there were loads attached to the
tampered meter;
"5. That an inventory of the electrical connections to the tampered meter
revealed that respondent installed electrical connections without the consent
of complainant, the electrical consumption of the connections thereby not
being reflected in the tampered meter.
"The above-enumerated unbroken chain of events leads to the unmistakable
conclusion that respondent, to the exclusion of others, was the author of the
crime."[4]
Petitioner further argues that it is not necessary to prove directly that
respondent Tiu did the tampering himself for a contrary rule would make the
prosecution of power theft and pilferage next to impossible.
After a careful examination of the assailed decision and resolutions, and the
pleadings filed by both parties, the Court finds the instant petition to be
without merit.
The holding of a preliminary investigation is a function of the Executive
Department and not of the Judiciary.[5] The primary objective of a
preliminary investigation is to free a respondent from the inconvenience,
expense, ignominy and stress of defending himself/herself in the course of a
formal trial, until the reasonable probability of his or her guilt has been
passed upon in a more or less summary proceeding by a competent officer
designated by law for that purpose. Secondly, such summary proceeding also
protects the state from the burden of unnecessary expense and effort in
prosecuting alleged offenses and in holding trials arising from false, frivolous
or groundless charges.[6] The decision whether or not to dismiss the
complaint against private respondent is necessarily dependent on the sound
discretion of the prosecuting fiscal and, ultimately, that of the Secretary of
Justice.[7]
Decisions or resolutions of prosecutors are subject to appeal to the Secretary
of Justice who, under the Revised Administrative Code, exercises the power
of direct control and supervision over said prosecutors; and who may thus
affirm, nullify, reverse or modify their rulings.[8]
When the respondent Secretary of Justice, in his Resolution of November 6,
1995, reversed the findings of Acting Secretary of Justice Demetria, in the
Resolution dated May 18, 1995, it was done in the exercise of his power of
review, which rests upon his sound discretion.
The Resolution of the Secretary of Justice may be reviewed by the court.
However, the court is without power to directly decide matters over which
full discretionary authority has been delegated to the legislative or executive
branch of the government. It is not empowered to substitute its judgment for
that of the Congress or of the President when they did not act in grave abuse
of discretion.
Thus, although it is entirely possible that the investigating fiscal may
erroneously exercise the discretion lodged in him by law, this does not
render his 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.[9]
This Court finds that the Court of Appeals did not err in ruling that the
respondent Secretary of Justice did not act in grave abuse of discretion in
directing the Acting City prosecutor of Olongapo City to move for the
withdrawal of the informations against the private respondent for theft of
electricity.
Findings of the Secretary of Justice are not subject to review unless shown to
have been made with grave abuse.[10]
In its Resolution, respondent Secretary of Justice made the following
ratiocination:
"We could not lend credence to the claim of the complainant that
respondent stole electricity in view of the findings of the Meralco meter test
crew that the polarity markings of the terminals of one of the current
transformers were reversed or interchanged. The assumption derived from
this finding is hardly persuasive. Even after the correction of the perceived
defect in the current transformers, there was no material and substantial
increase in the KWH consumption of the respondent.
"xxx the respondent cannot be faulted for the reversed or interchanged
polarity markings. The current transformers, prior to their installation, were
duly verified, tested and examined by authorized personnel of the
complainant. They were installed after they were verified to be fit for service
and were approved for connection on 4 October 1988 by the complainant.
The respondent, therefore, could not have caused the reversal or the
interchange of the markings. In fact, the witness for the complainant, Mr.
Jose Ricky V. Tan, even stated that since the current transformer were old, he
could not determine if the polarity markings were changed or not."
"xxx Thus, we affirmed your findings that:
'x x x. As correctly pointed out by respondent, it is not possible for him to
disconnect the potential link after its installation because there would be
some initial reading that will be registered. Since the reading is 0-0 from the
time of its installation up to the time it was discovered on March 17, 1993,
the only logical explanation for the 0-0 reading is that the potential link was
never engaged/connected when the new meter was installed. This is
buttressed by the fact that when the subject electric meter was inspected on
March 17, 1993, the seal was still intact and there is no evidence of
tampering. Whoever initially installed said electric meter failed to connect
the potential link before covering or sealing the meter. Certainly, we cannot
blame respondent for the inefficiency or incompetence of others. The fact
that it was respondent who informed the PUD (complainant) that one of his
electric meters has a 0-0 reading after receiving his monthly billing negates
bad faith or deliberate intent on the part of the respondent to violate P.D.
401.'"[11]
Comparing the alleged circumstantial evidence enumerated by the petitioner
and the ratiocination made by the respondent Secretary of Justice, the Court
finds that no sufficient evidence of guilt and no prima facie case has been
presented by petitioner to compel the fiscal to prosecute the case of theft of
electricity against private respondent.
In Quiso vs. Sandiganbayan,[12] this Court pointed out that:
"x x x[A] fiscal by the nature of his office, is under no compulsion to file a
particular criminal information where he is not convinced that he has
evidence to support the allegations thereof. Although this power and
prerogative xxx is not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to prosecute a
case when he is in no position to do so, because in his opinion he does not
have the necessary evidence to secure a conviction, or he is not convinced of
the merits of the case."
We reiterate the ruling of this Court in Quiso vs. Sandiganbayan[13] and in
Jacob vs. Puno,[14] that certiorari will not lie to compel the respondent
Secretary of Justice to file a case if he thinks the evidence does not warrant it.
Otherwise, he will be committing a dereliction of duty.
WHEREFORE, there being no showing of grave abuse of discretion on the part
of public respondent which would warrant the overturning of its decision,
the instant petition is DISMISSED and the assailed Decision of the Court of
Appeals is hereby AFFIRMED.
SO ORDERED.

10.Odin Security vs Sandiganbayan
DECISION
SANDOVAL-GUTIERREZ, J.:
Assailed in this instant petition for certiorari is the Resolution of the
Sandiganbayan, Second Division, dated December 15, 1997 dismissing the
Information in Criminal Case No. 23325 (for violation of Sec. 3 (e) of R. A.
3019[1]) against private respondents and the Resolution dated August 25,
1998 denying petitioner's motion for reconsideration.
The facts are:
On April 26, 1991, the Presidential Management Staff (PMS) of the Office of
the President conducted a public bidding for security services required for its
various offices. Fifteen (15) security agencies participated in the bidding,
including petitioner Odin Security Agency (Odin). Odin and Masada Security
Agency (Masada) submitted the lowest bid proposals. They were evaluated
by the Bids and Awards Committee (BAC) of the PMS, composed of private
respondents Manuel B. Gaite, as Chairman, Dalisay Nazareno, Guillerma
Reyes and Demetrio Ignacio, as members. In determining the most
advantageous bid, the BAC was guided by the following criteria:
a. Bid price- 25%
b. Financial status- 20%
c. Years of Service- 10%
d. Communication and transactions- 10%
e. Area of operations- 10%
f. Mobilization- 10%
g. Other government clientele- 10%
h. Availability of training centers- 5%
After evaluation, the BAC concluded that Nationwide Security and Allied
Services, Inc. (Nationwide) ranked first, while Odin and Masada tied at
second place.
The BAC referred the three (3) agencies (Nationwide, Odin and Masada) to
the Presidential Security Group (PSG) for clearance. Forthwith, the PSG
recommended Nationwide as the most suitable agency to provide security
services.
Before the Notice of Award could be sent to Nationwide, Odin, represented
by its president and general manager, Col. Arturo Ferrer (ret.), filed with the
PMS a protest alleging that Nationwide made a misrepresentation in its
financial statement, reflecting therein an authorized paid up capital of P
2,400,000.00 although its authorization with the Securities and Exchange
Commission (SEC) at that time was only P 1,000,000.00. Hence, Nationwide
should be disqualified in the bidding.
Despite Odin's protest, the BAC recommended the award of the security
service contract to Nationwide, stating that there was no substantial
misrepresentation on its part; and there is nothing illegal in declaring an
increased paid-up capital pending its approval by the SEC. Accordingly,
private respondent Aniceto Sobrepena, then head of the PMS, approved the
BAC's recommendation, resulting in the award of the contract to Nationwide
effective January 1, 1992.
On February 19, 1992, Odin filed another protest, alleging for the first time
that Nationwide also falsified other entries in its financial statement (with
counterfeit BIR stamps) submitted to the PMS.
Respondent Sobrepena referred the matter to the PMS Legal Office. After a
thorough investigation, the PMS found that Nationwide committed
substantial misrepresentation. Consequently, its services were terminated
effective June 7, 1992.
To replace Nationwide, the PMS awarded the security service contract to
Ardee Security Agency, Inc. (Ardee). Again petitioner lodged a protest but
was dismissed by respondent Sobrepena on the ground that PMS has no
obligation to award the contract to the next ranking bidder.
On June 26, 1992, Odin, through Col. Ferrer, filed with the Office of the
Ombudsman a complaint-affidavit for violation of Section 3(e) of Republic Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
against the private respondents, namely:
1. Aniceto M. Sobrepea, head of PMS;
2. Manuel B. Gaite, Chairman, PMS Bids and Awards Committee;
3. Dalisay Nazareno, member, PMS Bids and Awards Committee;

4. Guillerma Reyes, member, PMS, Bids and Awards Committee;
5. Demetrio L. Ignacio, Jr., member, PMS Bids and Awards Committee and
others.
After conducting the preliminary investigation, the Ombudsman filed with
the Sandiganbayan an information for violation of Sec. 3 (e) of R. A. 3019,
docketed as Criminal Case No. 23325, against private respondents.
Meanwhile, acting on private respondents' motion, the Sandiganbayan, in its
order dated May 15, 1996, directed the prosecution to reinvestigate the case.
On February 7, 1997, the Ombudsman issued a resolution recommending
the dismissal of the Information in Criminal Case No. 23325 for lack of
probable cause. This resolution was eventually submitted to the
Sandiganbayan.
Forthwith, the Sandiganbayan, in its order dated February 24, 1997, required
private respondents to comment on the Ombudsman's resolution.
On December 15, 1997, the Sandiganbayan promulgated the assailed
Resolution dismissing Criminal Case No. 23325 for lack of probable cause.
Petitioner filed a motion for reconsideration, but was denied.
Hence, the present petition alleging that in dismissing Criminal Case No.
23325, the Sandiganbayan acted with grave abuse of discretion.
In its comment, the People, represented by the Office of the Ombudsman,
pursuant to P.D. No. 1606, as amended by R.A. No. 7975, asserts that
respondent Sandiganbayan's reliance on the Ombudman's finding of lack of
probable cause is in order.
The crucial issue for our resolution is whether there was probable cause to
indict respondent PMS officials for violation of Section 3 (e) of Republic Act
3019, which reads:
"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:
xxx
(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.
x x x. "
Probable cause is the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged is guilty of the crime
for which he was prosecuted.[2] Corollarily, the determination of the
existence or absence of probable cause lies within the sound discretion of
the Office of the Ombudsman.[3]
Time and again, this Court has held that once a case has been filed with the
court, it is that court, no longer the prosecution, which has full control of the
case, so much so that the information may not be dismissed without its
approval.[4] Significantly, once a motion to dismiss or withdraw the
information is filed, the court may grant or deny it, in the faithful exercise of
judicial discretion.[5] In doing so the trial judge must himself be convinced
that there was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial
judge's own assessment of such evidence, it not being sufficient for the valid
and proper exercise of judicial discretion merely to accept the prosecution's
word for its supposed insufficiency.[6]
Here, respondent Sandiganbayan, in dismissing Criminal Case No. 23325
relied on the Ombudsman's findings that:
1. While Nationwide was not the lowest bidder, however, the bid price was
not the sole factor considered by private respondents in determining the
most advantageous bid. The bid price constitutes only 25% of the total
factors. After evaluation, Nationwide, came out with the highest ranking;
2. Private respondents did not give unwarranted benefit or advantage to
Nationwide because its alleged misrepresentation on its paid-up capital stock
was actually investigated and deliberated upon. Private respondents' finding
is that such misrepresentation is not material, hence, could not disqualify
Nationwide.
3. In view of the additional alleged misrepresentations committed by
Nationwide (after petitioner's first protest), the PMS terminated its services.
In addition to the above findings, respondent Sandiganbayan found that
there is no iota of proof showing that private respondents conspired with extraordinary writ of certiorari, neither questions of fact nor even of law are
Nationwide in the commission of the alleged misrepresentation to facilitate entertained, but only questions of lack or excess of jurisdiction or grave
the award of the bid to the latter to the prejudice of other bidders, thus: abuse of discretion.[9]

"We are constrained to dismiss the instant case. In addition to the reasons We thus rule that in dismissing Criminal Case No. 23325 for lack of probable
advanced by the Office of the Ombudsman as afore-cited, WE took note that cause, no taint of grave abuse of discretion can be attributed to respondent
if in fact, there were misrepresentations made by NSAS in its financial Sandiganbayan.
statements, there is no iota of proof showing that herein accused-movants
conspired with NSAS in the commission of the said misrepresentations to WHEREFORE, the petition is DISMISSED.
facilitate the award of the bid to the latter to the prejudice of the other
bidders. What herein accused-movants simply did was to evaluate the SO ORDERED.
competency of NSAS relying on the documents submitted to them, and if
ever there were irregularities in these documents, it is not fair to attribute
the same to herein accused-movants just because they approved the bid in
favor of NSAS. The grant of the bid to NSAS by accused-movants should be
separated from the misrepresentations made by the latter on their financial
statements. There is no proof of felonious linkage so as to warrant the
instant indictment."[7]

In thus concluding, it can readily be discerned that respondent

Sandiganbayan properly exercised its judicial prerogative since it did not
merely rely on the Ombudsman's recommendation but likewise reviewed the
evidence submitted to it.

The established rule is that a preliminary investigation is not the occasion for
the full and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender a well-grounded belief
that an offense has been committed and that the accused is probably guilty
thereof.[8]

Hence, petitioner's arguments that private respondents conspired with

Nationwide and granted it undue favor, disregarding the fact that petitioner
is the lowest bidder, are misplaced. They are all matters of defense.

In the case at bar, the Ombudsman was convinced there was no probable
cause. His findings, being in order, were adopted by respondent
Sandiganbayan which concluded that "there is no iota of proof" showing that
private respondents conspired with Nationwide to enable the latter to get
the award.

The findings of the Ombudsman and those of respondent Sandiganbayan are

essentially factual in nature. Accordingly, in assailing the findings of
respondent court and contending that it committed grave abuse of
discretion, petitioner is actually raising questions of fact.

This Court is not a trier of facts. At this point it bears stressing that in the

11.People vs Deang
DECISION
PER CURIAM:
"Everything that happens in this world happens at the time God chooses. He
sets the time for birth and the time for death, . . ." (Ecclesiastes 3:1-8).
Though God has certainly set the time of Arthur Tanhueco's birth, the three
men accused in this case unblinkingly usurped God's power to set the time of
his death. In one virtual motion, they deprived him of his liberty; and
demanded a considerable sum from his loved ones for his freedom, and yet,
took his life despite achieving their purpose. For their acts, they shall have to
answer to God and to society.
On 31 January 1997, the Regional Trial Court of Angeles City, Branch 59,
rendered a decision[1] in Criminal Case No. 95-320, finding accused Rommel
Deang, Melvin Espiritu, and Nicson (or Nixon) Catli (hereafter DEANG,
ESPIRITU, and CATLI) guilty beyond reasonable doubt of the crime of
kidnapping for ransom with homicide, and sentencing each of them to suffer
the penalty of death. The case is now before this Court on automatic review,
pursuant to Article 47 of the Revised Penal Code, as amended by Section 22
of Republic Act No. 7659.[2]
The following facts were established by the evidence for the prosecution:
In the morning of 5 July 1995, Arthur "Jay-Jay" Tanhueco (hereafter JAY-JAY), a
second-year high school student of the Chevalier School in Angeles city, was
walking on campus when he was summoned by a man. The latter talked to
JAY-JAY for a short while then suddenly dragged him inside a white Nissan
Sentra aided by the driver. Two students, Arnel Mariano and Juliet Somera,
who were defense witnesses called to testify for DEANG, saw the abduction
and identified the man who forced JAY-JAY into the car as ESPIRITU.[3]
The car sped away, narrowly missing pedestrian Ranulfo Quizon, but not
before the latter had a good look at the driver, whom he cursed in the
Pampanga dialect: "Putanayda mo, kalakalale ka!" He later identified the
driver of the car as DEANG.[4]
JAY-JAY was held against his will as his captors negotiated with his parents,
Arturo Tanhueco, Sr. and Shirley Tanhueco (hereafter, Arturo and Shirley), for
the payment of a P3-Million ransom, which was reduced to P1.48 million.[5]
The pay-off set on the evening of 12 July 1995 at the Game City Amusement
Center in Balibago, Angeles City, did not, however, push through. Instead,
Shirley was approached by a man in a polka dot shirt, who was earlier seen
talking to a certain Miller.[6]
The next day, 13 July, a man who went by the name of "Bian" (ESPIRITU's
alias) rang the Tanhuecos and told Shirley to bring the ransom money by
herself to Carmenville Subdivision that evening. Once there, two men
approached her. One of them, whom she identified as ESPIRITU, quickly
occupied the driver's seat, while the other, whom she identified as CATLI, sat
behind them and examined the plastic bag containing the money. Shirley
was made to sit beside ESPIRITU, and then blindfolded. After driving for
about an hour, Shirley sensed a car passing by and stopping a short distance
away. She was instructed to wait for her son, then she heard ESPIRITU and
CATLI board the other car. For about an hour, Shirley sat waiting in the car,
until an old man removed her blindfold. Her son JAY-JAY, however, was
nowhere in sight.[7]
On 27 July 1995, after appropriate proceedings, Angeles City 2nd Asst. City
Prosecutor Vicente J. Pornillos filed with the Regional Trial Court of Angeles
City an information for KIDNAPPING against Miller Capil and five (5) "Does"
who remained at large as of that time. The case was docketed as Criminal
Case No. 95-320.[8]
In the course of the investigation of JAY-JAY's kidnapping, his father Arturo
observed that the telephone calls made were traced to a house numbered
74-9 along Calachuchi St., Timog Park, Angeles City. Thus, on 20 July 1995, he
visited said address, where he saw his nephew DEANG talking with a young
man, later identified as ESPIRITU, in front of the house owned by a certain
Reynaldo Cunanan.[9]
Once DEANG was in police custody, the police recovered, P100,000 from him.
He then implicated in his sworn statement ESPIRITU, CATLI, and Benito Catli
(hereafter Benito) in the kidnapping for ransom of JAY-JAY.[10] Accordingly,
on 25 August 1995, the information was amended to specifically identify the
"Does." Pursuant to the Amended Information,[11] ESPIRITU, CATLI, and
Benito were charged as Miller's co-accused in the KIDNAPPING of JAY-JAY.
In the meantime, on 17 July 1995, the dead body of an unidentified boy was
found in Sitio Kaynalawit, Barangay Dayap, Laurel, Batangas, along the
Tagaytay ridge below a ravine 15 to 30 meters from the road. The post-
mortem examination of the cadaver revealed the cause of death as follows:
VICTIM DATA: An unidentified male dead person, around 14 to 15 years old,
wearing Giordano white shirt black pants, Gamosa shoes.
PLACE OF INCIDENCE: Sitio Kaynalawit, Barangay bayap, Itaas, Laurel,
Batangas
NATURE OF INCIDENCE: Mauling
PLACE DATE AND TIME OF AUTOPSY: Police Station, Laurel, Batangas at about
9:50 p.m., July 17, 1995
GENERAL FINDINGS

1. Skull Fracture over left temporo parietal area.
2. Multiple lacerated wds: 1-1 /2 inches (L) temporo parietal area.
3. Hematoma 2 inches over (R) eye.
CAUSE OF DEATH
Cerebral Hemorrhages.[12]
When the body was identified to be that of JAY-JAY, and such fact was linked
to the kidnapping, the information was amended on 31 August 1995 to
charge the accused not for mere kidnapping, but for KIDNAPPING FOR
RANSOM WITH HOMICIDE. This time, DEANG was included in the indictment.
[13]
Thereafter, 2nd Asst. City Prosecutor Pornillos moved that accused Miller
Capil be dropped as co-accused after determining that he was erroneously
charged on account of mistaken identity and DEANG did not mention in his
sworn statement Capil's name.[14] Defense witness Arnel Mariano clarified
the mistake when he testified on 17 May 1996 regarding the physical
similarity of Miller and ESPIRITU. Thus, on 1 September 1995, the
Information was again accordingly amended, and as so amended, it reads:
The undersigned Second Assistant City Prosecutor accuses ROMMEL DEANG
Y TANHUECO, MELVIN ESPIRITU, NIXON CATLI, BENITO CATLI, of the crime of
KIDNAPPING FOR RANSOM WITH HOMICIDE committed as follows:
That on or about the 5th day of July, 1995, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually aiding and
abetting one another, did then and there willfully, unlawfully and feloniously,
and for the purpose of extorting money from the parents of ARTHUR
TANHUECO, a minor, who was kidnap, carry away in an automobile, detain
and later taking him into undisclosed place, thereby depriving him of his
liberty; and accused herein despite having attained their purpose of
demanding and receiving money as ransom for the release of said minor, the
accused failed to release him to his parents, and instead the said accused
with abuse of superior strength, evident premeditation and treachery killed
said ARTHUR TANHUECO as a consequence.[15]
The trial court granted the motion to drop Capil as co-accused. The
remaining accused, DEANG, ESPIRITU, CATLI, and Benito Catli, each entered a
plea of not guilty on 29 September 1995, the scheduled arraignment and pre-
trial.[16]
On 19 October 1995, counsel for accused CATLI filed an omnibus motion to
suspend proceedings, to quash warrant of arrest, to hold preliminary
investigation/ examination, and to immediately release accused CATLI.[17]
The motion was opposed by the prosecution and was denied by the court in
its order of 7 November 1995.[18]
During the trial, a motion to discharge Benito to become a state witness was
filed,[19] which was opposed by DEANG, ESPIRITU, and CATLI.[20] The trial
court, however, granted the motion in an order dated 29 February 1996.[21]
It reasoned thus:
. . . First, there is absolute necessity for the testimony of Benito Catli, for
despite the presentation of witnesses by the prosecution, none of them
testified on the exact manner the crime was committed. The question as to
who masterminded the commission of the offense, the manner it was
committed and the actual participation of the four accused. The existence of
the alleged conspiracy can be gleaned from the sworn statement of Benito
Catli. Second, the crime charged against the four accused is kidnapping for
ransom with homicide. The testimony of the witnesses for the prosecution
was limited to the fact of kidnapping and the fact of the victim's death. The
circumstances leading to the death of the victim and the manner he was
killed was not yet established. Without accused Benito Catli's testimony, no
other direct evidence is available for the prosecution to prove the elements
of the crime charged against the four accused. Third, his testimony was and
could be corroborated by the prosecution's witnesses .... Fourth, he does not
appear to be the most guilty. In his sworn statement, he was merely asked by
the three other accused to join them in their already perceived plan of
kidnapping a certain person .... Fifth, there is no evidence that he has at any
time been convicted of any offense involving moral turpitude.
DEANG, ESPIRITU, and CATLI had a common defense: denial and alibi.
DEANG claimed that on the date in question, he was watching television at
his house on Jesus St., Angeles City. For his part, ESPIRITU maintained that he
accompanied his niece, Carmella Arcilla, to a Protestant school at Henson St.,
also in Angeles City.[22] Finally, CATLI, a cousin of state witness Benito, said
that between 5 and 17 July 1995, he never left their family store located at
the Panlilio Apartments, Jesus St., Angeles City.[23]
After trial on the merits, the court found the evidence of the prosecution to
be more credible, disregarded the defense of alibi set up by DEANG,
ESPIRITU, and CATLI, and decreed as follows:
WHEREFORE, premises considered, accused Rommel Deang, Melvin Espiritu
and Nicson Catli are held civilly liable to pay jointly and severally the heirs of
the victim Arthur "Jay-jay" Tanhueco, Jr:
1. the sum of P1,480,000.00 actually given as ransom money minus
P100,000.00;
2. P30,000.00 for the wake and funeral expenses;
3. P10,000.00 for expenses in transporting the cadaver of the victim from
Laurel, Batangas to Angeles City;
4. the sum of P3,000,000.00 pesos for and as moral damages; and
5. the sum of P50,000.00 as attorney's fees.
Finding all the accused GUILTY beyond reasonable doubt of the crime of
Kidnapping For Ransom With Homicide, accused Rommel Deang, Melvin
Espiritu and Nicson Catli are all sentenced to suffer the supreme penalty of
DEATH.[24]
The capital punishment having been imposed by the trial court, the assailed
judgment is now with this Court on automatic review.
DEANG insists that the trial court erred in (a) convicting him on the basis of
inadequate and insufficient evidence; (b) basing his conviction on his alleged
extrajudicial confession which is inadmissible in evidence; (c) convicting him
on the basis of illegally obtained evidence; (d) not upholding his
constitutional right to counsel during his custodial investigation; and (e) not
considering that he was illegally arrested and detained.
ESPIRITU, aside from asserting the lack of evidence to convict the three of
them, assigns as error the failure of the trial court to appreciate his alibi.
CATLI avers that the trial court erred in: (a) proceeding with his arraignment
without a preliminary investigation; (b) admitting in evidence, giving weight
and credence to, and relying chiefly on the alleged extrajudicial confession of
accused DEANG in convicting them; (c) granting the discharge of Benito Catli
when he was the most guilty of the four accused and by giving weight to his
testimony; (d) ignoring his defense of alibi; and (e) convicting him despite a
clear lack of motive.
After a meticulous review of the voluminous records and the evidence
adduced by the parties, this Court agrees with the findings of the trial court
and, consequently, affirms the conviction of accused-appellants DEANG,
ESPIRITU and CATLI.
Shirley's narration of the events that followed the abduction of her son JAY-
JAY is convincingly clear. Her testimony proved beyond any doubt that JAY-JAY
was kidnapped, that she complied with the ransom demands of the
malefactors, and that she had sufficient knowledge of their identities
because she personally dealt with them. Her testimony may have had minor
inconsistencies, but these did not affect her credibility. It is settled that
inconsistencies on minor and trivial matters only serve, to strengthen rather
than weaken the credibility of a witness because they erase any suspicion of
rehearsed testimony.[25]
JAY-JAY's father Arturo also had a hand in piecing together the evidence
against accused-appellants. He went to the place from where the telephone
calls made by the kidnappers were traced and found his nephew, DEANG,
conversing in front of the house with a man who was later identified as
ESPIRITU. This eventually paved the way to the questioning of DEANG, who
owned up the crime and supplied the information that, in turn, led the police
to CATLI, ESPIRITU and Benito.
State witness Benito Catli's testimony is crucial to the determination of the
guilt or innocence of accused-appellants. He maintained that it was DEANG,
ESPIRITU, and CATLI who conceptualized, planned and executed the
abduction. Thereafter, the three mapped out how to get the ransom from
JAY-JAY's parents. Benito also declared that the boy was held against his will.
[26] As correctly observed by the trial court:
The victim was brought to the ancestral home of Nicson Catli's family at San
Juan, San Luis, Pampanga. Nicson Catli was the one who guarded the victim,
while Melvin Espiritu negotiated for the ransom money and Rommel Deang
was the one who monitored the movement of the Tanhueco family. Benito
Catli also testified that Nicson Catli and Melvin Espiritu were the ones who
met Shirley Tanhueco at Carmenville and that it was Nicson Catli who was
carrying the ransom money when he transferred from the car of Mrs.
Tanhueco to the car being driven by Benito Catli. The three of them, Melvin,
Nicson and Benito thereafter brought the victim to Manila at the Longwood
Hotel and the three of them also counted the ransom money. When Benito
and Melvin returned to Angeles City in the early morning of July 13, 1995,
Nicson Catli was left in Manila to guard Jay-Jay, Tanhueco. Then on July 17 or
18, 1995, it was Nicson Catli who gave Benito Catli the amount of P50,000.00
and told him that Turo or Jay-Jay Tanhueco was already dead. Nicson even
told Benito that Nicson, Rommel and Melvin went to Tagaytay. From there,
Rommel shot Jay Jay Tanhueco with a paltik revolver and thereafter Rommel
and Melvin threw Turo down the cliff.[27]
Recovered from the possession of DEANG were peso bills in the amount of
P100,000,[28] which was part of the ransom money.
The Nissan Sentra car that was used in the forcible taking of JAY-JAY at the
Chevalier School campus on 5 July 1995 was properly identified by witnesses
and was traced to Bali Cars, which rented it out to ESPIRITU on several
occasions in July 1995, coinciding with the dates pertinent to the kidnapping
of JAY-JAY, the delivery of the ransom money, and the taking of JAY-JAY to
Longwood Hotel in Manila.[29] The trial court found ESPIRITU's testimony on
the circumstances surrounding said transactions incredible and declared
thus:
The explanations made by Melvin Espiritu on why he rented a car on July 5,
1995 is unmeritorious. He alleged that he rented the car at 6:00 a.m. in favor
of Benito Catli per the latter's request. Benito Catli's house is nearer and
more accessible to Bali Cars. Benito Catli allegedly went to San Luis the night
before and told him to leave the car to Catli's sister. Likewise, his
explanation, on why he rented a car on July 14, 1995 does not deserve
consideration. It is improbable for her mother not to call them considering
that she will not be going home on July 14, 1995 and the succeeding days
thereafter. Melvin rented a car on July 14, 1995 allegedly to fetch his mother
at the airport and who did not arrive on the said date. He went on again on
July 15 and 16, 1995 using the rented car hoping that his mother would
come. They did not call their mother in Hong Kong although they can call her
up when there is an emergency. This Court believes that such narration was
used by the defense only to justify his renting a car on July 14, 1995. The car
he rented on July 14, 1995 was returned only on August 4, 1995 and he paid
P26,400.00 for it.[30]
All the foregoing, especially the pivotal testimony of state witness Benito
Catli, established beyond any shadow of a doubt that DEANG, ESPIRITU, and
CATLI committed, and are guilty of, the crime for which they were charged,
namely, kidnapping for ransom with homicide.
There is no merit to DEANG's claim that his extrajudicial confession is
inadmissible for having been obtained in violation of his constitutional rights
under custodial investigation.
Paragraph 1, Section 12, Article III of the Constitution provides that:
Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If a person cannot
afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
And Section 2(a) of R.A. No. 7438 states that:
Any extrajudicial confession made by a person arrested, detained or under
custodial investigation shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence, upon a valid waiver, and in
the presence of any of his parents, older brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any proceeding.[31]
DEANG asserts that he was not advised of his constitutional rights and that
his confession was dictated by PO3 Primo Jamisolamin. He adds that the
lawyer who assisted him, Atty. Mariano Y. Navarro, was not his counsel of
choice and that the latter did not ascertain whether his confession was freely
given. Moreover, he claims, Atty. Navarro did not see him write and sign the
purported confession. DEANG further states that he was never asked any
question at that time relating to the incident under investigation.
PO3 Jamisolamin, however, testified that DEANG was informed of his
constitutional rights and, when asked if he understood them, DEANG replied
in the affirmative. When apprised of his right to counsel, DEANG also said
that he had a lawyer, Atty. Mariano Navarro. Jamisolamin further testified
that Atty. Navarro was right in front of DEANG when the latter was giving his
confession.[32] DEANG's confession was in written form, signed by him, as
well as by Atty. Navarro.[33]
SPO2 Mario Nulud, who was present at the time DEANG was giving his
confession, corroborated PO3 Jamisolamin's testimony that DEANG was read
his constitutional rights; and that the latter's lawyer, Atty. Navarro, was
present during the investigation.
Moreover, a perusal of the extrajudicial confession of DEANG explicitly shows
that he was, indeed, informed of his constitutional custodial rights and that
he was represented by a counsel of his choice, Atty. Navarro, at the time said
confession was being executed, notwithstanding his disavowal of said
counsel's services on appeal. The pertinent portion of the extrajudicial
confession reads:
PASUBALI: Ginoong, Rommel Deang, ipinagbibigay alam ko sa iyo na ikaw
ngayon ay sumasailalim ng isang pagsisiyasat at inuusig tungkol sa isang
kasalanan na kung saan ikaw ay nasasangkot sa isang krimen (kidnapping).
Bago ang lahat, pinaalala ko sa iyo na sa ilalim ng ating Saligang Batas ikay ay
may may sariling karapatan at ito ay ang sumusunod:
a. Karapatan mo ang magsawalang kibo sa anumang itatanong sa iyo.
b. Karapatan mong magkaroon ng patnubay ng isang manananggol, ikaw ay
bibigyan ng ating gobierno na walang bayad o sa sarili mong pili o
kagustuhan. Ito ba ay nauunawaan mo?
SAGOT: OPO (initialed)
TANONG: Pagkatapos na maipabatid sa iyo ang inyong karapatan sa ilalim ng
ating saligang batas na magsawalang kibo, nais mo bang ipagpatuloy ang
imbestigasyong ito?
SAGOT: OPO (initialed)
TANONG: Kailangan mo ba ng isang manananggol?
SAGOT: Opo, Si Atty. Mariano Y. Navarro po (initialed).
TANONG: Pinapaalala ka rin sa iyo na anumang salaysay ang ibibigay mo sa
imbestigasyong ito ay maaring gamitin laban sa iyo. Ito ba ay nauunawaan
mo?
SAGOT: OPO (initialed)
TANONG: Handa ka na bang magbigay ng isang kusang loob na salaysay?
SAGOT: Opo, sir.[34]
In light of the positive assertions of PO3 Jamisolamin and SPO2 Nulud, police
officers who have not been shown to harbor any ill-motive in testifying
against DEANG, and are even presumed to have acted regularly, the self-
serving and uncorroborated claims of the latter must fail. The Court finds no
constitutional and legal infirmity in the signed extrajudicial confession of
DEANG and affirms its admissibility in evidence.
Neither is there merit in DEANG'S claim that his arrest and the search of his
house were conducted in violation of his constitutional right against
warrantless arrests and searches. As he did not question the legality of his
arrest before he was arraigned, he is deemed to have waived such defense.
In any case, no proof of the purported illegal arrest was ever presented by
the defense. What is clear from the record is that, when invited by the police,
he willingly submitted himself to investigation.
With regard to the alleged illegal search and seizure, SPO2 Mario Nulud
testified that DEANG conceded to accompany the police to his house in order
to surrender his share of the ransom money. He brought them to his room
upstairs. There DEANG showed and gave to the police officer P100,000 in
P500-peso bills, some of which were marked.[35] It must be reiterated at this
point that a consented warrantless search is one of the exceptions to the
proscription under Section 2, Article III, of the Constitution.[36] The consent
of the owner of the house to the search effectively removed any badge of
illegality.
Neither is the Court impressed with DEANG's assertion that the students who
witnessed the kidnapping of JAY-JAY pointed to Miller Capil as the one who
forced JAY-JAY into the car. Arnel Mariano and Juliet Somera actually
identified ESPIRITU as the culprit. A closer scrutiny of the testimonies of the
witnesses reveals that Miller and ESPIRITU bear physical resemblance. On
the other hand, DEANG was positively identified by Ranulfo Quizon, who
remembered him as the driver of the white Nissan Sentra used in abducting
JAY-JAY.[37] Moreover, he was tagged by Benito Catli as one of the co-
conspirators in the commission of the crime charged.
CATLI, for his part, contends that there was a violation of his right to a
preliminary investigation. He filed a separate action before the Court of
Appeals, docketed therein as CA-G.R. SP No. 39287, raising this issue. In its
decision promulgated on 15 March 1996, the Court of Appeals dismissed the
petition on this ground:[38]
[T]he records show that only accused Benito Catli filed a Motion for
Reinvestigation. The three (3) other accused did not invoke their right to a
preliminary investigation. So much so that after entering into arraignment on
September 30, 1995, this right was deemed waived. At any rate, it is settled
that the absence of preliminary investigation does not impair the validity of
the information or otherwise render the same defective and neither does it
affect the jurisdiction of the court over the case or constitute a ground for
quashing the information.[39]
Preliminary investigation is generally inquisitorial, and it is often the only
means of discovering those who may be reasonably charged with a crime to
enable the prosecutor to prepare his complaint or information. It is not a
trial of the case on the merits and serves no purpose except to determine if a
crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof. It does not place in jeopardy the person
against whom it is taken.[40] It has been consistently held that the absence
of a preliminary investigation does not impair the validity of the criminal
information or render it defective.[41] In this case, CATLI is deemed to have
waived his right to preliminary investigation when he entered his plea during
arraignment.[42]
CATLI also repeats his objection to the utilization of Benito Catli as state
witness. This issue is well within the discretion of the trial judge. Assuming
arguendo that the trial court did err, this Court has held several times in the
past that any witting or unwitting error of the prosecution in asking for the
discharge of an accused, and of the trial court in granting the petition for
discharge, would not deprive the discharged accused of the acquittal
specified in Section 10 of Rule 119 and of the constitutional guarantee
against double jeopardy, as long as no question of jurisdiction is involved. It
is also relevant to note that the improper or mistaken discharge of an
accused would not affect his competence as a witness or render inadmissible
his testimony.[43]
CATLI'S argument that he had no motive to kidnap anybody because his
family was well-off is irrelevant. In the fist place, the rich and the poor can
and do commit crimes. Possession of wealth does not make one a saint, and
poverty alone does not make one a criminal. In the second place, proof of
motive, in general, is not necessary to pin a crime on the accused if the
commission of the crime has been proven and the evidence of identification
is convincing.[44] In the present case, CATLI was identified by Benito Catli, his
cousin, as one of the co-conspirators in the planning and execution of the
kidnapping for ransom and the killing of JAY-JAY.
The common defense of DEANG, ESPIRITU, and CATLI is alibi. DEANG said he
was in his house in Jesus St., Pulong Bulo, Angeles City when the kidnapping
was executed on 5 July 1995. He was, however, positively identified by
Quizon, who was almost hit by the white Nissan Sentra immediately after
JAY-JAY was kidnapped.
ESPIRITU, on the other hand, claims that Benito Catli asked him to rent a car
on 5 July 1995. He thus rented a car at Bali Cars at approximately half past
six in the morning, after which he deposited the car at the residence of
Benito Catli. He got back home in Timog Park, Angeles City, at around 7:00
a.m. then brought his niece to school at around 7:30. He left the school at
around 8:00 o'clock and reached home some thirty minutes later, where he
stayed the rest of the day.
CATLI maintains he was tending his sister's store at Jesus St., Angeles City,
the entire two months of July and August, including the 5th of July.
Alibi is the weakest of all defenses for it is easy to fabricate and difficult to
disprove. For this reason, it cannot prevail over the positive identification of
the accused by witnesses.[45] For alibi to prosper, the requirements of time
and place must be strictly met. It is not enough to prove that the accused
was somewhere else when the crime was committed. He must demonstrate
that it was physically impossible for him to have been at the scene of the
crime at the time of its commission.[46]
Chevalier School, where the kidnapping occurred, is in Pampanga. The
residences of DEANG and ESPIRITU, and the store of CATLI's sister, are all
located in Angeles City, Pampanga. Each of them miserably failed to show
that it was physically impossible for them to be at the Chevalier School at the
time JAY-JAY was kidnapped.
In light of the overwhelming evidence for the prosecution, establishing their
authorship of and culpability for the crime charged, the alibis of DEANG,
ESPIRITU, and CATLI were rightfully disregarded by the trial court as obvious
fabrications.
Article 267 of the Revised Penal Code, as amended by Section 8 of Republic
Act No. 7659, provides that:
Any private individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:
1) if the kidnapping or detention shall have lasted more than three days
2) xxx
3) xxx
4) if the person kidnapped or detained shall be a minor, except when the
accused is any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other
person, even if none of the circumstances above-mentioned were present in
the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is
raped, or is subjected to torture or dehumanizing acts, the maximum penalty
shall be imposed. (Emphasis supplied)
The presence of any of these two circumstances - the ransom demand or the
death of the victim - already calls for the imposition for the death penalty.
Here, they are both present. The guilt of DEANG, ESPIRITU, and CATLI for the
kidnapping for ransom and death of JAY-JAY having been established beyond
reasonable doubt, the Court has no other recourse but to agree with the
penalty imposed by the trial court.
Four Justices of the Court have continued to maintain their view that
Republic Act No. 7659 is unconstitutional insofar as it prescribes the death
penalty. Nevertheless, they submit to the ruling of the majority to the effect
that this law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.
In the matter of damages, the Court notes that the trial court awarded actual
damages in the amount of P30,000 for wake and funeral expenses, and
P10,000 as expenses for transporting the victim's body from Batangas to
Pampanga. These must be deleted for lack of supporting evidence. The
amount of the ransom money, less P100,000, must, however, be returned to
the Tanhuecos.
The award of moral damages in the amount of P3 million must be reduced to
P500,000.
The law also allows exemplary damages in criminal cases as part of the civil
liability of the malefactors when the crime is attended by one or more
aggravating circumstances.[47] As discussed above, this requisite has already
been met. Exemplary damages are, however, imposed "not to enrich one
party or impoverish another but to serve as a deterrent against or as a
negative incentive to curb socially deleterious actions."[48] In the case at bar,
exemplary damages in the amount of P100,000 are awarded to the private
complainants, by way of example or correction, in addition to the other
damages herein awarded.[49]
Finally, the Court observes that no civil indemnity for the death of the victim
was decreed. In line with prevailing jurisprudence,[50] the amount of
P50,000 is hereby also awarded.
WHEREFORE, the decision of the Regional Trial Court, Branch 59, Angeles
City, in Criminal Case No. 95-320, sentencing accused-appellants ROMMEL
DEANG, MELVIN ESPIRITU, and NICSON CATLI to suffer the penalty of death,
is hereby AFFIRMED, with the following modifications as to damages:
(1) the award of actual damages in the amount of P30,000 for funeral and
wake expenses, and P10,000 for transporting the victim's body from
Batangas to Pampanga, are hereby set aside;
(2) the award of P3 million in moral damages is reduced to P500,000; and
(3) the amounts of P50,000 as indemnity for the death of Arthur Tanhueco,
and P100,000 as exemplary damages, are hereby also awarded.
The awards of restitution of the ransom money in the amount of P1,480,000,
less the P100,000 which was recovered, and attorney's fees in the amount of
P50,000, stand.
The aforesaid awards shall be paid to the heirs of Arthur Tanhueco and
accused-appellants are solidarity liable for the payment thereof.

In accordance with Article 83 of the Revised Penal Code, as amended by

Section 25 of Republic Act No. 7659, upon finality of this decision, let the
records of this case be forwarded to the Office of the President for possible
exercise of pardoning power.
Costs de officio.

SO ORDERED.
12.Potot vs People
DECISION
SANDOVAL-GUTIERREZ, J.:
After the accused has filed with the trial court a manifestation that he is not
appealing its Decision convicting him of homicide and that he is ready to
serve his sentence, can the same court, upon motion by the private
complainant with the conformity of the public prosecutor, set aside the said
judgment and remand the records of the case to the Office of the Provincial
Prosecutor for re-evaluation of the evidence and the filing of the
corresponding charge? This is the issue raised in the instant petition for
review on certiorari.
Joey S. Potot, petitioner, was charged with homicide in Criminal Case No.
2739 before the Regional Trial Court (RTC), Branch 19, Catarman, Northern
Samar. The information against him, filed on December 12, 1999, alleges:
"That on or about the 2nd day of November, 1999, at about 3:00 o'clock in
the early morning in the public cemetery of the Municipality of Mondragon,
Province of Northern Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a knife locally called
'dipang,' with deliberate intent to kill and without justifiable cause, did then
and there wifully, unlawfully and feloniously attack, assault and stab
RODOLFO DAPULAG @ PILI with the use of said weapon which the accused
had provided himself for the purpose, thereby inflicting upon said Rodolfo
Dapulag @ Pili a mortal wound which caused the death of said victim.
CONTRARY TO LAW." [1]
Upon arraignment on February 1, 2000, wherein the information was read to
him in his own dialect, petitioner, assisted by counsel, pleaded guilty to the
charge.[2] Forthwith, he invoked not only the mitigating circumstance of plea
of guilty, but also the circumstance of voluntary surrender since, as shown in
the records, he surrendered voluntarily to the Philippine National Police
(PNP) Headquarters immediately after the commission of the crime. The
public prosecutor did not raise any objection. Instead, he manifested that
there is no aggravating circumstance which attended the commission of the
crime.
Thereupon, the trial court, after being satisfied that petitioner understood
the meaning and consequences of his plea of guilty, rendered and
promulgated its Decision[3] in open court convicting him of homicide, with
the mitigating circumstances of plea of guilty and voluntary surrender
appreciated in his favor. The dispositive portion of the Decision reads:
"WHEREFORE, the Court accepts the plea of guilty of Joey Potot y Sorio, and
finds him guilty beyond reasonable doubt of the crime of homicide, and
appreciating in his favor the mitigating circumstances of plea of guilty and
voluntary surrender, with no aggravating circumstance in attendance, and
applying the Indeterminate Sentence Law, sentences him to suffer an
imprisonment ranging from two (2) years four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years and one (1) day of
prision mayor, as maximum; to indemnify the heirs of Rodolfo Dapulag y
Conge, also known as Pili, in the amount of P50,000.00; and to pay the costs.
The period during which the accused has undergone preventive
imprisonment shall be deducted in full from the foregoing sentences
involving deprivation of liberty should the records reveal that he expressly
agreed in writing to abide by the same rules and regulations governing
convicted prisoner during his entire detention period and if the records show
that he is entitled to the privilege under the law.
SO ORDERED."[4]
On February 3, 2000, petitioner, through counsel, filed a manifestation with
motion[5] informing the trial court that he is not appealing from the Decision
and praying that a commitment order be issued so he could immediately
serve his sentence. Attached to the motion is petitioner's letter to the court
stating that he does not intend to appeal from its Decision.[6]
However, on February 11, 2000, the private complainant, Rosalie Dapulag
(wife of the victim), filed through counsel, a motion for
reconsideration/retrial[7] praying that the Decision be set aside and that the
case be heard again because "there were irregularities committed before
and during the trial which caused miscarriage of justice." The motion, which
bears the conformity of the public prosecutor, alleges, among others, that:
"The true facts surrounding the commission of the crime as revealed by the
eyewitnesses, EDUARDO BOYSON and JIMUEL MARQUITA, on December 8,
1999 is that RODOLFO DAPULAG, private offended party's deceased
husband, was killed on that fateful morning by accused JOEY POTOT with the
aid of DOMING JARILLA and MARLITO NAZAM who respectively held the right
and left arm of Rodolfo Dapulag to ensure the commission of the crime by
accused Joey Potot".
"This information was deliberately withheld by the said eyewitnesses,
especially EDUARDO BOYSON, during the investigation conducted by the
police and the preliminary investigations conducted by the presiding judge of
MCTC of Mondragon-San Roque and the Office of the Provincial Prosecutor
upon the solicitations of Mayor Elito Dapulag, who in good faith believed that
the inclusion of Doming Jarilla and Marlito Nazam would make the
prosecution of the case more difficult. The eyewitnesses, who are likewise in
the belief that indeed the inclusion of the above-named persons would
complicate the case, withheld the said information until witness Jimuel
Marquita revealed the same to the private offended party on December 8,
1999.
xxxxxxxxx
"The private offended party (not in her capacity as such, but as a citizen) has
the right to demand from the State the punishment of heinous crimes in
accordance with law. And such right is now in jeopardy of being lost for some
causes not attributable to her.
xxxxxxxxx
Hereto attached and made integral parts hereof are the affidavits of
eyewitnesses JIMUEL MARQUITA and EDUARDO BOYSON." (Emphasis
supplied)
Petitioner opposed[8] the motion, asserting that there was no irregularity in
the preliminary investigation of the case and in the proceedings before the
trial court; and that the decision can no longer be modified or set aside
because it became final when he formally waived his right to appeal.
The trial court, in its order dated May 3, 2000,[9] granted private
complainant's motion and set aside its February 1, 2000 Decision "as
proceeding from a rigged, hence, sham hearing." It likewise ordered that the
records of the case be remanded to the Office of the Provincial Prosecutor
"for re-evaluation of the evidence and to file the corresponding charge,"
thus:
"From the records are gathered that the case, as originally referred to the
Municipal Circuit Trial Court, was for murder. In the conduct of the
preliminary investigation, said court determined that a prima facie case
exists and recommended the accused be held for trial on the charge. In his
resolution reviewing the records of the preliminary investigation conducted
by the municipal court, the prosecutor entirely missed discussion of the
participation of two others allegedly in conspiracy with the accused. The
exclusion of the two others identified as Doming Jarilla and Marlito Nazam
was orchestrated by the Municipal Mayor who, in good faith, prevailed upon
the witnesses not to implicate them. To these foregoing, the Provincial
Prosecutor is in conformity.
Accordingly, the Branch Clerk of Court shall remand the records hereof to
the Office of the Provincial Prosecutor for re-evaluation of the evidence and
to file the corresponding charge supported by the same. The motion or
manifestation requesting for the issuance of a commitment order filed by
the defense is DENIED.
SO ORDERED."
Petitioner filed a motion for reconsideration[10] contending that the trial
court has no jurisdiction to issue the February 1, 2000 order as the Decision
had become final, and that the said order "would place the accused in
double jeopardy. In the order of May 26, 2000,[11] the trial court denied the
motion for reconsideration for the reason that the State is not bound by the
error or negligence of its prosecuting officers, hence, jeopardy does not
attach."
Petitioner now assails the orders of May 3 and 26, 2000.
The Solicitor General agrees with the petitioner that the challenged orders
should be set aside and that the February 1, 2000 Decision should be
reinstated.[12]
We find the petition meritorious.
Section 7, Rule 120 of the Revised Rules on Criminal Procedure, as amended,
provides:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon
motion of the accused, be modified or set aside before it becomes final or
before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to appeal, or has applied
for probation. (7a)" (Emphasis ours)
It is thus clear that only the accused may ask for a modification or setting
aside of a judgment of conviction. And this he must do before the said
judgment becomes final or before he perfects his appeal. Such judgment
becomes final in any of the following ways: (a) when no appeal is seasonably
filed by the accused, except in case of automatic review of the decision
imposing the capital penalty;[13] (b) when he has partially or totally served
his sentence; (c) when he expressly waives his right to appeal the judgment,
except when the death penalty is imposed; or (d) when he applies for
probation. When one of these circumstances is present, the trial court which
rendered the judgment of conviction loses jurisdiction to alter, modify or
revoke it.[14]
It is an undisputed fact that on February 3, 2000, or three days after the
promulgation of the judgment of conviction, petitioner filed a manifestation
expressly waiving his right to appeal therefrom. His intention not to appeal is
further indicated by his prayer in the same manifestation for the immediate
issuance of a commitment order so he could serve his sentence. Such waiver
has the effect of causing the judgment to become final and unalterable.[15]
Thus, it was beyond the authority of the trial court to issue the order of May
3, 2000 setting aside its February 3, 2000 Decision which had attained
finality.
In Calalang vs. Register of Deeds of Quezon City[16] and in a long line of
cases, this Court (En Banc) held that a judgment which has acquired the
status of finality becomes immutable. Any error, assuming one was
committed in the judgment, will not justify its amendment except only to
correct clerical errors or mistakes.
It is likewise procedurally impermissible for the trial court to grant private
complainant's motion for reconsideration of its Decision. Section 1, Rule 121
of the same Rules provides:
"SECTION 1. New trial or reconsideration. - At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its
own instance but with the consent of the accused, grant a new trial or
reconsideration. (1a)" (Emphasis ours)
Since the motion for reconsideration of the judgment of conviction was not
initiated by the accused (petitioner) or at the instance of the trial court with
his consent, the same should have been denied outright as being violative of
the above provision.
At any rate, the records do not show any irregularity in the preliminary
investigation of the case before the Provincial Prosecutor's Office. The
motion for reconsideration filed by the private complainant questions the (1)
alleged failure of the Provincial Prosecutor to appreciate the sworn
statements of two prosecution witnesses implicating two other individuals in
the commission of the crime; and the (2) downgrading by the Provincial
Prosecutor of the initial charge of murder to homicide. But the motion for
reconsideration itself reveals that the supposed vital information from two
witnesses implicating two other persons in the crime "was deliberately
withheld by the said witnesses during the police investigation and the
preliminary investigation conducted by the MCTC Judge and the Office of the
Provincial Prosecutor." Hence, the Provincial Prosecutor who reviewed the
records could not have possibly appreciated the alleged vital facts. Besides,
the complainant did not appeal from the Provincial Prosecutor's finding of
probable cause for the crime of homicide against petitioner. It bears
stressing at this point that the public prosecutor has the quasi-judicial
prerogative to determine what crime should be filed in court and who should
be charged therefor. He always assumes and retains full discretion and
control of the prosecution of all criminal actions.[17] As held by this Court in
People vs. Vergara:[18]
"Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly
provides that '[a]ll criminal actions commenced by a complaint or
information shall be prosecuted under the direction and control of the fiscal.'
It must be remembered that as public prosecutor he is the 'representative
not of the ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern
all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt
shall not escape or innocence suffer.' Hence, the fiscal or public prosecutor
always assumes and retains full direction and control of the prosecution of
the case. The institution of a criminal action depends upon his sound
discretion. He has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court; whether a prima facie case exists to
sustain the filing of an Information; whether to include in the charge those
who appear to be responsible for the crime; whether to present such
evidence which he may consider necessary." (Emphasis ours)
Finally, we agree with the petitioner that the assailed orders would violate his
constitutional right against double jeopardy.[19] Such right prohibits any
subsequent prosecution of any person for a crime of which he has previously
been acquitted or convicted. The objective is to set the effects of the first
prosecution forever at rest, assuring the accused that he shall not thereafter
be subjected to the peril and anxiety of a second charge against him for the
same offense.[20]
To invoke the defense of double jeopardy, the following requisites must be
present: (1) a valid complaint or information; (2) the court has jurisdiction to
try the case; (3) the accused has pleaded to the charge; and (4) he has been
convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent.[21]
These requisites have been established. Records show that petitioner was
charged with homicide in Criminal Case No. 2739 under a valid information
before the trial court which has jurisdiction over it. He was arraigned and
pleaded guilty to the charge. On the basis of his plea, petitioner was
convicted and meted the corresponding penalty. As petitioner has been
placed in jeopardy for the crime of homicide, he cannot be prosecuted anew
for the same offense, or any offense which necessarily includes or is
necessarily included in the first offense charged.[22]
WHEREFORE, the instant petition is hereby GRANTED. The assailed orders
dated May 3, 2000 and May 26, 2000 issued in Criminal Case No. 2739 by the
trial court are SET ASIDE. Its Decision dated February 1, 2000 is REINSTATED.
SO ORDERED.

13.Mendoza vs Ombudsman
DECISION
MENDOZA, J.:
This is a petition for certiorari to annul the resolution, dated April 20, 2001,
of the Office of the Ombudsman (Visayas), finding a prima facie case for
violation of 3(e) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) and
Art. 171 of the Revised Penal Code against petitioner Susan Mendoza-Arce,
and the order, dated June 29, 2001, denying her motion for reconsideration.
The facts are as follows:
Respondent Santiago B. Villaruz is one of the oppositors in Special
Proceeding Case No. V-6433, entitled "In the Matter of the Petition to
Approve the Will of Remedios Bermejo-Villaruz, deceased, v. Nicolas P.
Villaruz."[1] The case, originally assigned to the Regional Trial Court (RTC),
Branch 15, Roxas City, of which Judge Roger B. Patricio was presiding judge,
was later re-assigned to Branch 19 of the same court, presided over by Judge
(now Justice of the Court of Appeals) Sergio Pestao.[2]
Respondent Santiago B. Villaruz was originally the administrator of the estate
of his mother Remedios Bermejo Villaruz. However, in an order issued by the
trial court on June 10, 1998, he was removed as such for patent neglect of his
legal duties and failure to comply with the court orders. In his place,
respondent's eldest brother, Nicolas B. Villaruz, Jr., was appointed regular
administrator, "upon filing and approval by this Court of an Administrator's
Bond in the amount of fifty thousand pesos (P50,000.00)."[3]
In a motion, dated July 1, 1998, Nicolas filed a motion for the approval of his
bond, furnished by the Philippine Surety & Insurance, Inc., in the amount of
P50,000.00. Santiago and his brother Jose Ma. Villaruz opposed Nicolas'
motion and prayed that Jose Maria be instead appointed regular
administrator.[4] Attached to their opposition was a certification, dated
August 31, 1988, executed by their mother Remedios before she passed
away, authorizing Santiago to take possession of and/or to manage her nipa
lands, which were then in his care, for a period of 20 years or during her
lifetime, whichever was longer. Remedios Bermejo-Villaruz also gave
Santiago the option of leasing the properties for P120,000.00 a year plus land
taxes.[5] The oppositors likewise submitted an agreement, dated February 6,
1993, executed by the three children of Remedios Bermejo-Villaruz, in which
they agreed to honor the lease until August 23, 2008.[6]
In an order, dated September 22, 1998, Judge Patricio denied the oppositors'
opposition, while recognizing the validity of the certification executed by
Remedios Bermejo-Villaruz and the agreement of the heirs, and stated that
the administration of the new administrator was subject to them. No
mention of the agreement was, however, made in the dispositive portion of
the order, which simply read:
WHEREFORE, premises considered, for lack of merit, oppositors' Opposition
and Motion dated July 15, 1998 is denied, while action on petitioner's Motion
to Approve Administrator's Bond dated July 1, 1998 is held in abeyance until
after petitioner submits to this Court, within ten (10) days from receipt of this
order, an updated certification from the Supreme Court to the effect that the
Philippine Phoenix Surety & Insurance, Inc. has no pending obligation and/
or liability to the government insofar as confiscated bonds in civil and
criminal cases are concerned.[7]
On October 12, 1998, Judge Sergio Pestao, to whom the case was in the
meantime reassigned, approved the administrator's bond of respondent
Nicolas B. Villaruz, Jr. in an order which stated:
It appearing from the Certification issued by the Supreme Court that
Philippine Phoenix Surety and Insurance, Inc. has no pending obligation and/
or liabilities to the government insofar as confiscated bonds in civil and
criminal cases are concerned, the Administrator's bond filed by petitioner
Nicolas B. Villaruz, is approved.
Send copy of this Order to petitioner through his counsel, to the Clerk of
Court of this court, and to the oppositors through their counsel.[8]
After receiving a copy of Judge Pestao's order, respondent Susan Mendoza-
Arce, Clerk of Court VI of the Regional Trial Court of Roxas City, prepared a
Letter of Administration (LOA) which read:
KNOW ALL MEN BY THESE PRESENTS:
That by order of this Court dated October 12, 1998, issued by Honorable
Sergio Pestao, Judge of the Regional Trial Court, Branch 19, Roxas City,
Nicolas B. Villaruz, Jr. has been appointed Administrator of the estate of
Remedios Bermejo-Villaruz, deceased, with full authority to take possession
of all property/ies of said deceased in any province or provinces in which it
may be situated and to perform all other acts necessary for the preservation
of said property, he having filed a bond satisfactory to the Court. Said
Administrator shall within three months from the date of this appointment
return to the Court a true inventory and appraisal of the real and personal
estate of the deceased which have come into his possession or knowledge
and shall render a true and just account of his administration to the Court
within one year and at any other time when required by the Court.
IN WITNESS WHEREOF, I sign and seal these presents in Roxas City,
Philippines, this 16th day of October 1998.
(sgd.) Susan Mendoza-Arce
(t)SUSAN MENDOZA-ARCE
The LOA was based on the form prescribed in the Manual for Clerks of Court.
[9] Accordingly, on December 7, 1998, administrator Nicolas B. Villaruz, Jr.,
accompanied by three armed security guards and respondent's Deputy
Sheriff Charles Aguiling, took possession of the entire estate of the decedent,
including the nipa lands which had been leased to respondent Santiago B.
Villaruz.[10]
This gave rise to the present action. In a letter-complaint to the Ombudsman,
dated March 25, 1999, respondent Santiago B. Villaruz alleged that petitioner
committed two crimes in issuing the LOA, to wit:
1. Falsification by a public officer under Article 171, par. 3 of the Revised
Penal Code, by "attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them."
2. Corrupt practice in violation of 3(e) of the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) by "causing any undue injury to any party,
including the Government, or giving any private party any unwarranted
benefit, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence."[11]
Attached to his letter-complaint to the Ombudsman were affidavits executed
by respondent Santiago B. Villaruz and his employees, namely, Teresita B.
Bechayda, Ramon Benliro, Jr., Garry B. Bonales, Romeo S. Bolante, and
Sulpico B. Blanco.[12] In his affidavit, respondent accused petitioner of acting
"with manifest partiality, evident bad faith and gross inexcusable negligence"
by falsely attributing to Judge Pestao the appointment of Nicolas B. Villaruz
as new administrator and investing him with "full authority to take
possession of all property/ies" of the decedent, because the fact was that it
was Judge Patricio who had appointed Nicolas administrator of the estate
subject to the terms and conditions of the lease agreement in favor of
respondent Santiago B. Villaruz. Respondent claimed that he had been
deprived of income in the amount of P33,000.00 every week, as well as of the
bancas and boats used in his business, as a result of the issuance of the
order in question.[13]
In her report, dated May 13, 1999, Graft Investigation Officer Estrela Alma A.
Singco stated that "the allegations in the complaint warrant further
investigation" and recommended that petitioner be ordered to file her
counter-affidavit.[14]
In her counter-affidavit, dated June 23, 1999, petitioner admitted issuing the
LOA in favor of Nicolas B. Villaruz, Jr. She claimed, however, that she acted in
compliance with the order of Presiding Judge Sergio Pestao and that, in
preparing the LOA, she merely adopted the legal form prescribed in the
Manual for Clerks of Court, which had been approved by this Court. She said
she issued the LOA "in line [with] my official functions which [are] ministerial
in nature and devoid of any bad faith and with manifest partiality."[15]
In a reply-affidavit, dated June 29, 1999, respondent Santiago B. Villaruz
reiterated the arguments raised in his letter-complaint and asserted that
legal forms are mere guidelines in the preparation of legal documents and
that respondent usurped the functions of the branch clerk of court when she
issued the LOA.[16]
In a resolution, dated April 20, 2001, Ricardo A. Rebollido, Graft Investigation
Officer II, found probable cause against petitioner. Based on the affidavits
and counter-affidavits submitted by the parties, he found petitioner guilty of
the charge by making it appear that it was Judge Pestao, instead of Judge
Patricio, who had appointed Nicolas B. Villaruz as administrator, without
regard to the lease agreement in favor of respondent Santiago B. Villaruz.
The Graft Investigation Officer found that although petitioner's duties were
ministerial, she should have read the order recognizing the lease. The
resolution concluded,
All things considered, respondent [now petitioner Susan Mendoza-Arce] in
the discharge of her official administrative or judicial functions, through
manifest partiality, evident bad faith, or gross inexcusable negligence caused
undue injury to complainant and gave unwarranted benefit, advantage or
preference to Administrator Nicolas B. Villaruz, Jr. who has been the one
reaping the fruits and products of the said 120 hectares of nipa lands the
fruits and products of which lawfully and rightfully belong to complainant as
lessee.
WHEREFORE, premises considered, this Office finds a prima facie case
against respondent ATTY. SUSAN MENDOZA-ARCE for violation of Section 3(e)
of Republic Act 3019 otherwise known as the Anti-Graft & Corrupt Practices
Act, and for the crime of Falsification of Official Document under paragraph
3, Article 171 of the Revised Penal Code. Let the corresponding Informations
be filed before the proper court.[17]
Petitioner moved for a reconsideration, maintaining that her official duties as
a clerk of court were ministerial in nature and that she merely tried to
comply with the dispositive portion of orders and decisions of the trial court.
She pointed out that neither the order, dated June 10, 1998, nor the order,
dated September 22, 1998, issued by Judge Patricio mentioned the lease of
nipa lands and that it was only in the text of the order, dated September 22,
1998, that said lease was referred to. In discharging her official duties, she
argued, she could not be guilty of manifest partiality, evident bad faith, or
gross inexcusable negligence, as asserted by complainant.[18]
In an order, dated June 29, 2001, the Graft Investigation Officer found "no
new matters or issues raised therein which would justify the reversal or
modification of our earlier findings," and held that in any event "the grounds
relied by respondent are evidentiary matters which could well be ventilated
before the court of justice." Hence, this petition.
We first dispose of a procedural issue raised by respondent Santiago B.
Villaruz. In his Comment, dated October 12, 2001, respondent invokes Rule
65, 4 of the 1997 Rules of Civil Procedure and contends that the petition
for certiorari in this case should have been filed in the Court of Appeals. This
provision states in pertinent parts:
SEC. 4. When and where petition filed.- The petition shall be filed not later
than sixty (60) days from notice of the judgment, order or resolution. In case
a motion for reconsideration or new trial is timely filed, whether such motion
is required or not, the sixty (60) day period shall be counted from notice of
the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in
the Regional Trial Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial agency, unless otherwise provided by
law or these rules, the petition shall be filed in and cognizable only by the
Court of Appeals.
No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding fifteen (15) days.
The contention has no merit. In Tirol, Jr. v. del Rosario,[19] we held that
although as a consequence of the decision in Fabian v. Desierto[20] appeals
from the orders, directives, or decisions of the Ombudsman in administrative
cases are now cognizable by the Court of Appeals, nevertheless in cases in
which it is alleged that the Ombudsman has acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed in this Court to set aside the
Ombudsman's order or resolution. In Kuizon v. Desierto,[21] we again held
that this Court has jurisdiction over petitions for certiorari questioning
resolutions or orders of the Office of the Ombudsman in criminal cases.
Coming now to the merits, we find the petition meritorious.
To begin with, in Posadas v. Ombudsman,[22] we held: "The rule, of course, is
that a criminal prosecution cannot be enjoined. But as has been held,
infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution." In that case, the Ombudsman ordered the prosecution of
certain officials of the University of the Philippines in Diliman, Quezon City
for preventing the National Bureau of Investigation from arresting without
warrants student-suspects in the killing of a fraternity member. The question
was whether there was probable cause for violation of P.D. No. 1829, which
makes it unlawful for anyone to obstruct the apprehension and prosecution
of criminal offenders. The Court found none and enjoined the Ombudsman
and his agents from prosecuting the U.P. officials. The attempted arrest was
declared illegal and petitioners to be simply protecting the rights of the
students.
Indeed, while this Court's policy is one of non-interference in the conduct of
preliminary investigations, leaving the investigating officers with a latitude of
discretion in the determination of probable cause,[23] nonetheless
exceptions to the general rule have been recognized, to wit:
1. When necessary to afford adequate protection to the constitutional rights
of the accused;
2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for
vengeance;
10. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied.[24]
In this case, we hold that the Office of the Ombudsman (Visayas) acted
without or in excess of its authority when it ordered the filing of informations
against petitioner for violation of R.A. No. 3019, 3(e) and the Revised Penal
Code, Art. 171, par. 3, despite the absence of probable cause, defined as
such ground as engenders a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, warranting the
filing of the case in court.[25]
First. Petitioner Arce allegedly violated 3 (e) of Republic Act No. 3019 by
including the phrase "with full authority to take possession of all property/ies
of said deceased in any province or provinces in which it may be situated . . ."
in the LOA she prepared in Special Proceeding Case No. V-6433. This
provision states:
SEC. 3. Corrupt Practices of Public Officers. In addition to acts or negligence or from some corrupt motive. The fact is that, instead of
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: ....
(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.
The elements of the offense are:
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;
3. That they caused undue injury to any party, whether the Government or a
private party;
4. That such injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and
5. That the public officers have acted with manifest partiality, evident bad
faith or gross inexcusable negligence.[26]
These elements must all be proven.[27] In this case, there is no basis for the
finding that in issuing the LOA in question petitioner acted with "partiality,"
or bias which excites a disposition to see and report matters as they are
wished for rather than as they are, with "bad faith," which connotes not only
bad judgment or negligence but also a dishonest purpose or conscious
wrongdoing, a breach of duty amounting to fraud, nor with "gross
negligence," which is negligence characterized by the want of even slight
care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with a conscious indifference to
consequences as far as other persons are concerned.[28]
The Manual for Clerks of Court describes the clerk of court as "an officer of
the Court, a public officer, and an 'officer of the law,' [although] the position
is not that of a judicial officer, nor is it synonymous with the Court. . . . The
office is essentially a ministerial one."[29] Petitioner performed a ministerial
duty in preparing the letter of administration based on the dispositive
portions of the orders dated September 22, 1998 and October 12, 1998. She
merely copied substantially the form for letters of administration prescribed
in the Manual for Clerks of Courts. The LOA may not be accurate for lack of
reference to the lease agreement in favor of respondent Santiago B. Villaruz,
but it cannot be said with certainty that she acted either with gross
employing her own words, she used phrases in the Manual prescribed by this
Court.
Second. The Office of the Ombudsman (Visayas) found a prima facie case for
falsification under Article 171, par. 3 of the Revised Penal Code against
petitioner because she stated in the letter of administration that Nicolas B.
Villaruz, Jr. had been appointed administrator by Judge Sergio Pestao when
what the latter did was to approve the administrator's bond.
We disagree with the Ombudsman's findings. Art. 171, par. 3 of the Revised
Penal Code provides:
Falsification by public officer, employee, or notary or ecclesiastical minister.
The penalty of prision mayor and a fine not to exceed 5,000 pesos shall
be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any
of the following acts:
....
3. Attributing to persons who have participated in an act or proceeding
statements other than those in fact made by them.
Criminal intent must be shown in felonies committed by means of dolo, such
as falsification.[30] In this case, there is no reasonable ground to believe that
the requisite criminal intent or mens rea was present. Petitioner prepared
the letter of administration on the basis of the order of Judge Pestao, dated
October 12, 1998, approving the administrator's bond filed by Nicolas B.
Villaruz, Jr. By the approval of his bond, Nicolas B. Villaruz, Jr. qualified as
administrator so that in a sense, therefore, the statement in the letter of
administration "[t]hat by order of this Court dated October 12, 1998, issued
by Honorable Sergio Pestao, Judge of the Regional Trial Court, Branch 19,
Roxas City, Nicolas B. Villaruz, Jr. has been appointed Administrator of the
estate of Remedios Bermejo-Villaruz, deceased" is correct. There was nothing
willful or felonious in petitioner's act warranting her prosecution for
falsification.
WHEREFORE, the petition is GRANTED and the resolution dated April 20,
2001, of the Graft Investigation Officer, as approved by the Office of the
Ombudsman, and his order, dated June 29, 2001, are hereby SET ASIDE and
the complaint of respondent Santiago B. Villaruz against petitioner Susan
Mendoza-Arce for violation of R.A. No. 3019, 3(e) and for falsification
committed by a public officer under Art. 171 of the Revised Penal Code is
DISMISSED.

SO ORDERED.
14.People vs Garfin
DECISION
PUNO, J:
For determination in this petition is a question in procedural law - - - whether
an information filed by a state prosecutor without the prior written authority
or approval of the city or provincial prosecutor or chief state prosecutor
should be dismissed after the accused has entered his plea under the
information.
Petitioner comes before us with a petition for certiorari and mandamus
under Rule 65 of the Revised Rules of Court, seeking to declare as null and
void the Orders issued by the Regional Trial Court of Naga City, Branch 19
dated February 26, 2002[1] and April 3, 2002[2] which dismissed for lack of
jurisdiction the case of People vs. Serafin Saballegue, Criminal Case No. RTC
2001-0597, and denied petitioner's motion for reconsideration.
The antecedent facts are undisputed.
On June 22, 2001, private respondent was charged with violation of Section
22(a) in relation to Sections 19(b) and 28(e) of Republic Act No. 8282,
otherwise known as the "Social Security Act," in an information which reads:
The undersigned State Prosecutor of the Office of the Regional State
Prosecutor, Legazpi City, accuses SERAFIN SABALLEGUE, as proprietor of
Saballegue Printing Press with business address at 16 San Mateo St.,
Peafrancia Ave., Naga City for Violation of Section 22(a) in relation to
Sections 19(b) and 28(e) of R.A. 8282 otherwise known as the Social Security
Act of 1997, committed as follows:
That on or about February 1990 and up to the present, in the City of Naga,
Philippines, within the functional jurisdiction of SSS Naga Branch and the
territorial jurisdiction of this Honorable Court, the above named accused,
while being the proprietor of Saballegue Printing Press, did then and there
willfully, unlawfully, and criminally refuse and fail and continuously refuse
and fail to remit the premiums due for his employee to the SSS in the
amount of SIX THOUSAND FIVE HUNDRED THIRTY-THREE PESOS (P6,533.00),
Philippine Currency, representing SSS and EC premiums for the period from
January 1990 to December 1999 (n.i.), and the 3% penalty per month for late
remittance in the amount of ELEVEN THOUSAND ONE HUNDRED FORTY-
THREE PESOS and 28/100 (P11,143.28) computed as of 15 March 2000,
despite lawful demands by letter in violation of the above-cited provisions of
the law, to the damage and prejudice of the SSS and the public in general.
CONTRARY TO LAW.
Legazpi City for Naga City. 22 June 2001.
(sgd.) ROMULO SJ. TOLENTINO
State Prosecutor
Special Prosecutor on SSS Cases
in Region V[3]
The information contains a certification signed by State Prosecutor Romulo
SJ. Tolentino which states:
I hereby certify that the required investigation in this case has been
conducted by the undersigned Special Prosecutor in accordance with law and
under oath as officer of the court, that there is reasonable ground to believe
that the offense has been committed, that the accused is probably guilty
thereof and that the filing of the information is with the prior authority and
approval of the Regional State Prosecutor.[4]
The case was raffled to Branch 19 of the Regional Trial Court of Naga City
presided by respondent judge Hon. Zeida Aurora B. Garfin. On September
24, 2001, accused Serafin Saballegue pleaded not guilty to the charge and the
case was set for pre-trial.[5] Three days thereafter, the accused filed a motion
to dismiss[6] on the ground that the information was filed without the prior
written authority or approval of the city prosecutor as required under
Section 4, Rule 112 of the Revised Rules of Court.[7]
The People, through State Prosecutor Tolentino, filed an opposition,[8]
against which the accused filed a rejoinder.[9] The People filed a reply to the
rejoinder[10] on December 21, 2001. A rejoinder to the reply[11] was filed by
the accused on January 21, 2002.
After considering the arguments raised, the trial court granted the motion to
dismiss in its first questioned Order dated February 26, 2002, to wit:
After considering the respective arguments raised by the parties, the Court
believes and so resolves that the Information has not been filed in
accordance with Section 4, par. 3 of Rule 112 of the 2000 Rules on Criminal
Procedure, thus:
'Rule 112, Section 4 x x x x x x
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.'
Expresio unius est exclusio alterius.
The Information will readily show that it has not complied with this rule as it
has not been approved by the City Prosecutor.
This Court holds that the defendant's plea to the Information is not a waiver
to file a motion to dismiss or to quash on the ground of lack of jurisdiction.
By express provision of the rules and by a long line of decisions, questions of
want of jurisdiction may be raised at any stage of the proceedings (People vs.
Eduarte, 182 SCRA 750).
The Supreme Court in Villa vs. Ibaez (88 Phil 402) dwelt on lack of authority
of the officer who filed the information and on jurisdiction at the same time,
pertinent portions run as follows:
The defendant had pleaded to the information before he filed a motion to
quash, and it is contended that by his plea he waived all objections to the
information. The contention is correct as far as formal objections to the
pleadings are concerned. But by clear implication, if not by express provision
of section 10 of Rule 113 of the Rules of Court, and by a long line of uniform
decisions, questions of want of jurisdiction may be raised at any stage of the
proceedings. Now, the objection to the respondent's actuations goes to the
very foundations of jurisdiction. It is a valid information signed by a
competent officer which, among other requisites, confers jurisdiction on the
court over the person of the accused and the subject matter of the
accusation. In consonance with this view, an infirmity of the nature noted in
the information cannot be cured by silence, acquiescence, or even by
express consent.
Prosecutor Tolentino also contends that having been duly designated to
assist the City Prosecutor in the investigation and prosecution of all SSS cases
by the Regional State prosecutor as alter ego of the Secretary of Justice in
Region V, then that authority may be given to other than the City Prosecutor.
The Court finds this contention to be devoid of merit. The Regional State
Prosecutor is not the alter ego of the Secretary of Justice but a mere
subordinate official and if ever the former files cases, it is by virtue of a
delegated authority by the Secretary of Justice. Potestas delegada non
potesta delegare (sic) - what has been delegated cannot be redelegated.
In his opposition, the state prosecutor also attached a memorandum dated
June 22, 2001 by Regional State Prosecutor Santiago M. Turingan addressed
to Provincial Prosecutor and City Prosecutors of Region V directing them to
inhibit and to append the following NOTATION after the certification in the
Information for filing.
NOTATION: The herein City/Provincial Prosecutor is inhibiting from this case
and the Special Prosecution Team on SSS Cases in Region V is authorized to
dispose of the case without my approval in view of the request for inhibition
of the SSS Regional Manager as granted by the Regional State Prosecutor.
A perusal of the Information, however, would readily show that nowhere in
the Information has the City Prosecutor of Naga City appended the above-
quoted notation/inhibition. At most, the authority of the special prosecutor is
only for the conduct of preliminary investigations and the prosecution of
cases after they are filed. The Court, however, believes that the filing of this
Information must be in conformity with the Rules on Criminal Procedure,
particularly Section 4 of Rule 112.
WHEREFORE, premises considered and for lack of jurisdiction, the Court
hereby resolves to DISMISS this case without pronouncement as to cost.
SO ORDERED.[12]
A motion for reconsideration was filed by the People contending that as a
special prosecutor designated by the regional state prosecutor to handle SSS
cases within Region V, State Prosecutor Tolentino is authorized to file
the information involving violations of the SSS law without need of prior
approval from the city prosecutor. [13] Letters of commendation from Chief
State Prosecutor Jovencito Zuo[14] and Secretary Hernando Perez[15] were
offered as proof to show that State Prosecutor Tolentino's authority to file
the information was recognized. In response, the defense pointed out in its
opposition that the motion for reconsideration lacked a notice of hearing,
hence it is pro forma or a mere scrap of paper. [16]
On April 3, 2002, respondent judge issued the second questioned Order
which reads:
Acting upon the Motion for Reconsideration filed by State Prosecutor Romulo
SJ. Tolentino, Special Prosecutor on SSS cases in Region V, and it appearing
that the same has failed to comply with the requirement of notice prescribed
in Sections 4 and 5, Rule 15 of the Rules of Court, the same is hereby DENIED
for being a mere scrap of paper.
SO ORDERED.[17]
Hence, this petition by the People through Regional State Prosecutor
Santiago Turingan and State Prosecutor Romulo SJ. Tolentino. Petitioner
attributes grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of respondent judge, viz:[18]
1. RESPONDENT JUDGE DISMISSED THE INFORMATION WITHOUT THE
REQUIRED SUPPORTING FACTUAL AND LEGAL BASES;
2. RESPONDENT JUDGE DELIBERATELY AND CAPRICIOUSLY IGNORED THE
PRESUMPTION OF REGULARITY IN FAVOR OF THE PROSECUTION WITHOUT
THE REQUIRED SUFFICIENCY OF REBUTTAL EVIDENCE. THE WORD "MAY" IN
SEC. 4, RULE 112 OF THE RULES OF COURT IS NOT MANDATORY;
3. RESPONDENT JUDGE COMMITTED GRAVE ERROR IN DELIBERATELY
IGNORING THE JUDICIALLY KNOWN INHIBITION OF THE CITY PROSECUTOR
AND THE SETTLED JURISPRUDENCE ON THE MATTER;
4. RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION IN INTERFERING
WITH THE PURELY EXECUTIVE FUNCTION OF FILING AN INFORMATION BY
RULING ON THE AUTHORITY OF THE FILING OFFICER TO FILE THE
INFORMATION.
The Office of the Solicitor General (OSG) filed its comment[19] in compliance
with this Court's Resolution dated September 23, 2002.[20] It opines that the
dismissal of the information is mandated under Section 4, Rule 112 of the
Rules of Criminal Procedure.
Private respondent contends that:[21] 1) the instant petition was filed out of
time; 2) the special State Prosecutor is only authorized to conduct
preliminary investigation and prosecution of SSS cases and not to sign the
information; and 3) the City Prosecutor did not expressly inhibit himself from
handling SSS cases nor signing the information.
We shall first resolve the procedural issues. Respondent contends that the
motion for reconsideration filed on April 1, 2002 is late because it was filed
eighteen days after March 14, 2002, the date when petitioner received the
first questioned order. Respondent has overlooked that the 15th day after
March 14 is a Good Friday. Hence, petitioner's last day to file the motion for
reconsideration was on the next working day after Good Friday, April 1.[22]
Next, respondent argues that having been considered as a mere scrap of
paper, the motion for reconsideration of the petitioner did not toll the
running of the reglementary period. Respondent, however, erroneously
assumes that the present case is an appeal by certiorari under Rule 45. As
stated at the outset, this is an original petition for certiorari and mandamus
under Rule 65.
Sec. 2, Rule 37 of the Rules of Court is clear. It provides that "(a) pro forma
motion for new trial or reconsideration shall not toll the reglementary period
of appeal." (emphases supplied) Hence, the same provision has no
application in the case at bar.
The reckoning date is the receipt of the second questioned Order and not the
receipt of the first. Section 4, Rule 65, as amended by En Banc Resolution
A.M. No. 00-2-03-SC, September 1, 2000, provides, viz:
Sec. 4. When and where petition filed.-- The petition may be filed not later
than sixty (60) days from notice of the judgment, order or resolution. In case
a motion for reconsideration or new trial is timely filed, whether such motion
is required or not, the sixty (60)- day period shall be counted from notice of
the denial of said motion.
xxxxxxxxx
As shown by the records, petitioner received the first questioned order dated
February 26, 2002 on March 14, 2002.[23] A motion for reconsideration was
timely filed on April 1, 2002[24] which was dismissed for lack of notice of
hearing in an Order dated April 3, 2002.[25] This second questioned order
was received by petitioner on April 11, 2002.[26] A motion for extension of
time to file a petition for review on certiorari was filed on April 18, 2002.[27]
A motion for leave to file and admit the instant petition for certiorari and
mandamus was filed on May 29, 2002.[28] Having been filed within the
reglementary period, petitioner's motion for leave to file the instant petition
was granted in this Court's Resolution dated July 15, 2002.[29]
We now come to the other issue: whether the prior written authority and
approval of the city or provincial prosecutor or chief state prosecutor is
necessary in filing the information at bar.
Petitioner takes the unbending view that the approval of the city or provincial
prosecutor is no longer required. It is contended that the Regional State
Prosecutor has already directed the city or provincial prosecutor to inhibit
from handling SSS cases.[30] Petitioner cites the letter of Regional State
Prosecutor Santiago M. Turingan to SSS Regional Director in Naga City dated
June 6, 1997[31] and copies of Regional Orders No. 97-024-A[32] and 2001-
033[33] dated July 14, 1997 and September 28, 2001, respectively, showing
the designation of State Prosecutor Tolentino as special prosecutor for SSS
cases in Region V. Petitioner relies on Galvez, et al. v. Court of Appeals, et al.
[34] and Sanchez v. Demetriou, et al.[35] to prop up its contention that given
the designation of State Prosecutor Tolentino, the city prosecutor need not
participate in the filing and prosecution of the information in the case at bar.
We disagree. Under Presidential Decree No. 1275, the powers of a Regional
State Prosecutor are as follows:
Sec. 8. The Regional State Prosecution Office: Functions of Regional State
Prosecutor. - The Regional State Prosecutor shall, under the control of the
Secretary of Justice, have the following functions:
a) Implement policies, plans, programs, memoranda, orders, circulars and
rules and regulations of the Department of Justice relative to the
investigation and prosecution of criminal cases in his region.
b) Exercise immediate administrative supervision over all provincial and city
fiscals and other prosecuting officers of provinces and cities comprised
within his region.
c) Prosecute any case arising within the region.
d) With respect to his regional office and the offices of the provincial and city
fiscals within his region, he shall:
1) Appoint such member of subordinate officers and employees as may be
necessary; and approve transfers of subordinate personnel within the
jurisdiction of the regional office.
2) Investigate administrative complaints against fiscals and other prosecuting
officers within his region and submit his recommendation thereon to the
Secretary of Justice who shall, after review thereof, submit the appropriate
recommendation to the Office of the President: Provided, that where the
Secretary of Justice finds insufficient grounds for the filing of charges, he may
render a decision of dismissal thereof.
3) Investigate administrative complaints against subordinate personnel of
the region and submit his recommendations thereon to the Secretary of
Justice who shall have the authority to render decision thereon. (emphases
supplied)
The power of administrative supervision is limited to "the authority of the
department or its equivalent to generally oversee the operations of such
agencies and to insure that they are managed effectively, efficiently and
economically but without interference with day-to-day activities; or require
the submission of reports and cause the conduct of management audit,
performance evaluation and inspection to determine compliance with
policies, standards and guidelines of the department; to take such action as
may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration; and
to review and pass upon budget proposals of such agencies but may not
increase or add to them."[36] This is distinguished from the power of
"supervision and control" which includes the 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 modify acts and decisions of subordinate officials
or units; determine priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs."[37]
The Regional State Prosecutor is clearly vested only with the power of
administrative supervision. As administrative supervisor, he has no power to
direct the city and provincial prosecutors to inhibit from handling certain
cases. At most, he can request for their inhibition. Hence, the said directive
of the regional state prosecutor to the city and provincial prosecutors is
questionable to say the least.
Petitioner cannot lean on the cases of Galvez and Sanchez. In those cases,
the special prosecutors were acting under the directive of the Secretary of
Justice. They were appointed in accordance with law. Nowhere in P.D. No.
1275 is the regional state prosecutor granted the power to appoint a special
prosecutor armed with the authority to file an information without the prior
written authority or approval of the city or provincial prosecutor or chief
state prosecutor. P.D. No. 1275 provides the manner by which special
prosecutors are appointed, to wit:
Sec. 15. Special Counsels. - Whenever the exigencies of the service require
the creation of positions of additional counsel to assist provincial and city
fiscals in the discharge of their duties, positions of Special Counsels may be
created by any province or city, subject to the approval of the Secretary of
Justice, and with salaries chargeable against provincial or city funds. The
Secretary of Justice shall appoint said Special Counsels, upon
recommendation of the provincial or city fiscal and regional state
prosecutors concerned, either on permanent or temporary basis.
Special Counsel shall be appointed from members of the bar and shall be
allowed not more than the salary rate provided in this Decree for the lowest
rank or grade of assistant fiscal in the province or city where assigned.
(emphases supplied)
Under Department Order No. 318,[38] "Defining the authority, duties and
responsibilities of regional state prosecutors," then Acting Secretary of
Justice Silvestre H. Bello III ordered the appointed regional state prosecutors
(which included Regional State Prosecutor Turingan for Region V) to, among
others, "(i)nvestigate and/or prosecute, upon the directive of the Secretary of
Justice, specific criminal cases filed within the region." (emphasis supplied)
In the case at bar, there is no pretense that a directive was issued by the
Secretary of Justice to Regional State Prosecutor Turingan to investigate
and/or prosecute SSS cases filed within his territorial jurisdiction. A bare
reading of the alleged letter of commendation by then Secretary Hernando
Perez would show that it does not amount to a directive or even a
recognition of this authority. In fact, while the letter of Secretary Perez
commends the efforts of Regional State Prosecutor Turingan in successfully
prosecuting SSS cases, it also negates his authority to prosecute them.
Secretary Perez called the Regional State Prosecutor's attention to DOJ
Circular No. 27, series of 2001, which states that all important cases of the
SSS should be referred to the Office of the Government Corporate Counsel.
[39] Thus, Regional State Prosecutor Turingan cannot be considered a special
prosecutor within the meaning of the law.
Petitioner argues that the word "may" is permissive. Hence, there are cases
when prior written approval is not required, and this is one such instance.
This is too simplistic an interpretation. Whether the word "may" is
mandatory or directory depends on the context of its use. We agree with the
OSG that the use of the permissive word "may" should be read together with
the other provisions in the same section of the Rule. The paragraph
immediately preceding the quoted provision shows that the word "may" is
mandatory. It states:
Sec. 4, Rule 112. - x x x
Within five (5) days from his resolution, he (investigating prosecutor) shall
forward the record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction.
They shall act on the resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of such action. (emphasis
supplied)
Having settled that the prior authority and approval of the city, provincial or
chief state prosecutor should have been obtained, we shall now resolve the
more important issue: whether the lack of prior written approval of the city,
provincial or chief state prosecutor in the filing of an information is a defect
in the information that is waived if not raised as an objection before
arraignment.
We hold that it is not.
The provisions in the 2000 Revised Rules of Criminal Procedure that demand
illumination are Sections 3 and 9 of Rule 117 in relation to paragraph 3,
Section 4 of Rule 112, to wit:
Rule 117, Section 3. Grounds.-The accused may move to quash the complaint
or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense
charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse
or justification; and
(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.
xxx xxx xxx
Section 9. Failure to move to quash or to allege any ground therefor.-The
failure of the accused to assert any ground of a motion to quash before he
pleads to the complaint or information, either because he did not file a
motion to quash or failed to allege the same in said motion, shall be deemed
a waiver of any objections except those based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (emphasis supplied)
Rule 112, Section 4, paragraph 3 provides, viz:
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy. (emphasis supplied)
Private respondent and the OSG take the position that the lack of prior
authority or approval by the city or provincial prosecutor or chief state
prosecutor is an infirmity in the information that prevented the court from
acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that
may be raised as an objection anytime even after arraignment, the
respondent judge did not err in granting the motion to dismiss based on this
ground. As basis, they cite the case of Villa v. Ibaez, et al.[40] where we
held, viz:
The defendant had pleaded to an information before he filed a motion to
quash, and it is contended that by his plea he waived all objections to the
informations. The contention is correct as far as formal objections to the
pleadings are concerned. But by clear implication, if not by express provision
of section 10 of Rule 113 of the Rules of Court (now Section 9 of Rule 117),
and by a long line of uniform decisions, questions of want of jurisdiction may
be raised at any stage of the proceeding. Now, the objection to the
respondent's actuations goes to the very foundation of the jurisdiction. It is a
valid information signed by a competent officer which, among other
requisites, confers jurisdiction on the court over the person of the accused
and the subject matter of the accusation. In consonance with this view, an
infirmity in the information cannot be cured by silence, acquiescence, or
even by express consent.[41] (emphasis supplied)
The case of Villa is authority for the principle that lack of authority on the
part of the filing officer prevents the court from acquiring jurisdiction over
the case. Jurisdiction over the subject matter is conferred by law while
jurisdiction over the case is invested by the act of plaintiff and attaches upon
the filing of the complaint or information.[42] Hence, while a court may have
jurisdiction over the subject matter, like a violation of the SSS Law, it does
not acquire jurisdiction over the case itself until its jurisdiction is invoked
with the filing of the information.
In the United States, an information has been held as a jurisdictional
requirement upon which a defendant stands trial. Thus, it has been ruled
that in the absence of probable cause, the court lacks jurisdiction to try the
criminal offense.[43] In our jurisdiction, we have similarly held that:
While the choice of the court where to bring an action, where there are two
or more courts having concurrent jurisdiction thereon, is a matter of
procedure and not jurisdiction, as suggested by appellant, the moment such
choice has been exercised, the matter becomes jurisdictional. Such choice is
deemed made when the proper complaint or information is filed with the
court having jurisdiction over the crime, and said court acquires jurisdiction
over the person of the defendant, from which time the right and power of
the court to try the accused attaches. (citations omitted) It is not for the
defendant to exercise that choice, which is lodged upon those who may
validly file or subscribe to the complaint or information under sections 2 and
3 of Rule 106 of the Rules of Court. [44] (emphasis supplied)
A closer look at Villa would be useful in resolving the issue at hand. In that
case, Atty. Abelardo Subido, Chief of the Division of Investigation in the
Office of the Mayor of Manila, was appointed by the Secretary of Justice as
special counsel to assist the City Fiscal of Manila in the cases involving city
government officials or employees. Pursuant to his appointment, Atty.
Subido filed an information against Pedro Villa for falsification of a payroll.
Atty. Subido's authority to file the information was challenged on the ground
that he was disqualified for appointment under Section 1686 of the Revised
Administrative Code, as amended by Section 4 of Commonwealth Act No.
144, to wit:
SEC. 1686. Additional counsel to assist fiscal. - The Secretary of Justice may
appoint any lawyer, being either a subordinate from his office or a
competent person not in the public service, temporarily to assist a fiscal or
prosecuting attorney in the discharge of his duties, and with the same
authority therein as might be exercised by the Attorney General or Solicitor
General.[45]
We held, viz:
Appointments by the Secretary of Justice in virtue of the foregoing provisions
of the Revised Administrative Code, as amended, were upheld in Lo Cham vs.
Ocampo et al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et
al., (47 Official Gazette, 5092). But in those cases, the appointees were
officials or employees in one or another of the bureaus or offices under the
Department of Justice, and were rightly considered subordinates in the office
of the Secretary of Justice within the meaning of section 1686, ante.
The case at bar does not come within the rationale of the above decisions.
Attorney Subido is a regular officer or employee in the Department of
Interior, more particularly in the City Mayor's office. For this reason, he
belongs to the class of persons disqualified for appointment to the post of
special counsel.
That to be eligible as special counsel to aid a fiscal the appointee must be
either an employee or officer in the Department of Justice is so manifest
from a bare reading of section 1686 of the Revised Administrative Code as to
preclude construction. And the limitation of the range of choice in the
appointment or designation is not without reason.
The obvious reason is to have appointed only lawyers over whom the
Secretary of Justice can exercise exclusive and absolute power of supervision.
An appointee from a branch of the government outside the Department of
Justice would owe obedience to, and be subject to orders by, mutually
independent superiors having, possibly, antagonistic interests. Referring
particularly to the case at hand for illustration, Attorney Subido could be
recalled or his time and attention be required elsewhere by the Secretary of
Interior or the City Mayor while he was discharging his duties as public
prosecutor, and the Secretary of Justice would be helpless to stop such recall
or interference. An eventuality or state of affairs so undesirable, not to say
detrimental to the public service and specially the administration of justice,
the Legislature wisely intended to avoid.
The application of the 1951 Villa ruling is not confined to instances where the
person who filed the information is disqualified from being a special
prosecutor under Section 1686 of the Revised Administrative Code, as
amended, but has been extended to various cases where the information
was filed by an unauthorized officer as in the case at bar. In Cruz, Jr. v.
Sandiganbayan, et al.,[46] the Court held that it is a fundamental principle
that when on its face the information is null and void for lack of authority to
file the same, it cannot be cured nor resurrected by amendment. In that
case, the Presidential Commission on Good Government (PCGG) conducted
an investigation and filed an information with the Sandiganbayan against
petitioner Roman Cruz, Jr. charging him with graft and corruption. The
petitioner sought to quash the information on the ground that the crime
charged did not constitute a "Marcos crony related crime" over which the
PCGG had authority to investigate and file an information. The Court found
that the crime alleged in the information was not among those which PCGG
was authorized to investigate under Executive Orders No. 1 and 14 of then
President Corazon Aquino and ruled that the information was null and void.
Of similar import is Romualdez v. Sandiganbayan, et al.[47] where we ruled
that the information having been filed by an unauthorized party (the PCGG),
the information was fatally flawed. We noted that this defect is not a mere
remediable defect of form, but a defect that could not be cured.
In Cudia v. Court of Appeals, et al.,[48] we also reiterated the Villa ruling. The
accused in that case was apprehended in Mabalacat, Pampanga for illegal
possession of firearms and was brought to Angeles City where the
headquarters of the arresting officers was located. The City Prosecutor of
Angeles City filed an information in the Regional Trial Court of Angeles City.
We invalidated the information filed by the City Prosecutor because he had
no territorial jurisdiction, as the offense was committed in Mabalacat,
Pampanga and his territorial jurisdiction was only in Angeles City. We held
that an information, when required by law to be filed by a public prosecuting
officer, cannot be filed by another.[49] Otherwise, the court does not acquire
jurisdiction.[50] It is a valid information signed by a competent officer which,
among other requisites, confers jurisdiction on the court over the person of
the accused and the subject matter thereof. The accused's plea to an
information may be a waiver of all formal objections to the said information
but not when there is want of jurisdiction. Questions relating to lack of
jurisdiction may be raised at any stage of the proceeding. An infirmity in the
information, such as lack of authority of the officer signing it, cannot be
cured by silence, acquiescence, or even by express consent.[51]
Despite modifications of the provisions on unauthorized filing of information
contained in the 1940 Rules of Criminal Procedure under which Villa was
decided, the 1951 Villa ruling continues to be the prevailing case
law on the matter.[52]
The 1940 Rules of Court provided in Rule 113, Section 10 that, if the
defendant fails to move to quash the complaint or information before he
pleads thereto, he shall be taken to have waived all objections which are
grounds for a motion to quash except (1) "when the complaint or
information does not charge an offense" or (2) "the court is without
jurisdiction of the same." (emphasis ours) Among the enumerated grounds
for a motion to quash under Section 2 of the same Rule was "(t)hat the fiscal
has no authority to file the information." With only the above two exceptions
provided by the 1940 Rules, the Court nevertheless made the Villa ruling that
if the filing officer lacks authority to file the information, jurisdiction is not
conferred on the court and this infirmity cannot be cured by silence or
waiver, acquiescence, or even by express consent.
The 1940 Rules of Court was amended in 1964. With only minimal changes
introduced, the 1964 Rules of Court contained provisions on unauthorized
filing of information similar to the above provisions of the 1940 Rules.[53]
Then came the 1985 Rules of Criminal Procedure. Lack of authority of the
officer who filed the information was also a ground for a motion to quash
under these rules. The 1985 Rules also provided for waiver of the grounds
for a motion to quash under Rule 117, Section 8, but enumerated the
following exceptions to the waiver: (a) the facts charged do not constitute an
offense; (b) the court trying the case has no jurisdiction over the offense
charged or the person of the accused; (c) the criminal action or liability has
been extinguished; and (d) the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged. Apparently,
the want of jurisdiction under the 1985 Rules refers to jurisdiction over the
offense and the person, and not over the case as in Villa where the court did
not acquire jurisdiction over the case for lack of authority of the officer who
filed the information. Still, despite the enumeration, the Court continued to
apply the Villa ruling as shown in the afore-cited Cruz and Cudia cases.
The 1985 Rules was amended in 2000. The 2000 Revised Rules of Criminal
Procedure also provide for lack of authority of the filing officer as among the
grounds for a motion to quash and the waiver of these grounds. Similar to
the 1985 Rules, the Revised Rules enumerate the exceptions from the waiver,
namely: (a) that the facts charged do not constitute an offense; (b) that the
court trying the case has no jurisdiction over the offense charged; (c) that the
criminal action or liability has been extinguished; and (d) 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. Under the regime of the 2000 Revised Rules, we reiterated the Villa
ruling in the above-cited Romualdez case. With the enumeration of the four
exceptions, which was almost a replica of the enumeration in the 1985 Rules,
the 2000 Rules did not intend to abandon Villa. The Villa ruling subsisted
alongside the enumerated exceptions under the 1985 Rules, and it remains
to do so under the enumerated exceptions under the 2000 Rules. Neither the
Rationale of the 2000 Revised Rules of Criminal Procedure nor the Minutes of
the Meeting of the Committee on the Revision of the Rules of Court evinces
any intent to abandon the doctrine enunciated in Villa.
In sum, we hold that, in the absence of a directive from the Secretary of
Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS
cases or a prior written approval of the information by the provincial or city
prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by
an officer without authority to file the same. As this infirmity in the
information constitutes a jurisdictional defect that cannot be cured, the
respondent judge did not err in dismissing the case for lack of jurisdiction.

WHEREFORE, premises considered, the petition is DENIED. The respondent

court's orders dated February 26, 2002 and April 3, 2002 are AFFIRMED.
Criminal Case No. RTC 2001-0597 is DISMISSED without prejudice to the filing
of a new information by an authorized officer.

SO ORDERED.

15.Hegerfy vs CA
DECISION
YNARES-SANTIAGO, J.:
This petition seeks to annul and set aside the decision of the Court of
Appeals in CA-G.R. SP No. 66680[1] which reversed the resolution[2] of the
Office of the City Prosecutor of Manila dismissing the complaint for estafa
filed against petitioner Rodney Hegerty, as well as the resolution of the
Secretary of Justice dismissing respondent Allan Nash's appeal and denying
his motion for reconsideration for having been filed out of time.
Respondent Allan Nash alleged that petitioner Rodney Hegerty, together with
the deceased Don Judevine and James Studenski, invited him to invest in a
foreign exchange scheme with a guaranteed return of 10.45% per annum on
the money invested. From July 1992 to November 28, 1997, Nash invested a
total of US$236,353.34.
Sometime in December 1997, Hegerty informed Nash that all his investments
had been lost after he lent a portion of the investment to Swagman Hotels
and Travel, Inc., of which he was a stockholder. Initially, Hegerty offered to
return to Nash half of his total investment, but later on withdrew the offer.
After his demands were ignored, Nash filed a complaint-affidavit against
Hegerty before the City Prosecutor of Manila for estafa under Article 315 (1)
(b) of the Revised Penal Code.
For his part, Hegerty denied making any invitation to Nash to invest his
money in any foreign exchange scheme. Neither did he divert any portion of
such investment to the Swagman Group of Companies. He, however,
admitted his acquaintance with Judevine and Studenski but denied that they
were his business partners. He likewise disclaimed any knowledge of or
participation in any of the receipts and cash vouchers presented by Nash
supposedly as proofs of his investments.
The City Prosecutor dismissed the complaint for estafa against Hegerty for
insufficiency of evidence. Upon receipt of a copy of the said resolution on
June 16, 1999, counsel of Nash filed a motion for reconsideration. On May 8,
2000, Nash himself received a copy of the resolution denying the motion for
reconsideration.
On May 19, 2000, Nash filed an appeal with the Department of Justice (DOJ),
however, the same was dismissed[3] for having been filed out of time. He
filed a motion for reconsideration, which was denied again for having been
filed beyond the reglementary period of ten (10) days.
Undaunted, Nash filed with the Court of Appeals a petition for certiorari and
mandamus under Rule 65 of the 1997 Rules of Civil Procedure, contending
that the DOJ acted in grave abuse of discretion amounting to lack of or in
excess of jurisdiction when it dismissed his appeal and denied his motion for
reconsideration.
On June 28, 2002, the Court of Appeals rendered the assailed decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the PETITION is GRANTED. The undated
resolution and 22 August 2001 resolution are REVERSED and SET ASIDE. The
public respondent is directed to prosecute respondent Hegerty for the crime
of estafa under Article 315 (1) (b) of the Revised Penal Code.
SO ORDERED.[4]
Hegerty is now before us on this petition for review, raising the following
issues:
I. DOES THE RESPONDENT COURT OF APPEALS HAVE JURISDICTION OVER A
CASE WHICH STARTED AT THE OFFICE OF THE PROSECUTOR OF MANILA THEN
APPEALED TO THE DEPARTMENT OF JUSTICE BUT WHICH APPEAL WAS FILED
WAY OUT OF TIME?
II. MAY THE RESPONDENT COURT OF APPEALS ACTING WITHOUT
JURISDICTION ORDER THE PROSECUTION OF A CRIMINAL CASE?[5]
Hegerty contends that since Nash's appeal with the DOJ and his motion for
reconsideration were both filed out of time, the prosecutor's resolution had
become final and executory. Consequently, the DOJ and the Court of Appeals
never acquired jurisdiction over the case. Corollarily, the Court of Appeals
does not have the authority to order the filing of a case in the absence of
grave abuse of discretion on the part of the prosecutor.
We agree. The rule is settled that our duty in an appropriate case is confined
to determining whether the executive or judicial determination, as the case
may be, of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Thus, although it is entirely possible that the
investigating fiscal may erroneously exercise the discretion lodged in him by
law, this does not render his 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.[6]
The pivotal question, therefore, in this case is: whether the City Prosecutor
acted with grave abuse of discretion in dismissing the criminal complaint for
estafa against Hegerty.
In D.M. Consunji, Inc. v. Esguerra,[7] we defined grave abuse of discretion in
this wise:
By grave abuse of discretion is meant, such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and must be so
patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at all in contemplation of
law.
The City Prosecutor had the duty to determine whether there was a prima
facie case for estafa based on sufficient evidence that would warrant the
filing of an information. The elements of estafa through misappropriation as
defined and penalized under Article 315 (1) (b) are:
(1) That money, goods, or other personal property be 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 misappropriation or conversion or denial is to the prejudice of
another; and
(4) That there is a demand made by the offended party to the offender.[8]
The City Prosecutor dismissed the complaint for estafa based on the
following findings:
Recouping everything that has been maintained and asserted by the parties,
there is really reason to believe that the complainant had in fact made some
investments with the late DON JUDEVINE who acknowledged receipts thereof
and bound himself thereby alone. There is, however, an utter and absolute
absence of a showing that the respondent partook of the said investments
nor had any business dealing with either the late DON JUDEVINE or the
complainant. Complainant also tried in vain to show some form of a
partnership between the respondent and the two deceased individuals but
the former failed to adduce any tangible evidence to support the same
except his general declarations which remain bare as they were. [9]
A public prosecutor, by the nature of his office, is under no compulsion to
file a criminal information where no clear legal justification has been shown,
and no sufficient evidence of guilt nor prima facie case has been presented
by the petitioner.[10]
We need only to stress that the determination of probable cause during a
preliminary investigation or reinvestigation is recognized as an executive
function exclusively of the prosecutor. An investigating prosecutor is under
no obligation to file a criminal action where he is not convinced that he has
the quantum of evidence at hand to support the averments. Prosecuting
officers have equally the duty not to prosecute when after investigation or
reinvestigation they are convinced that the evidence adduced was not
sufficient to establish a prima facie case. Thus, the determination of the
persons to be prosecuted rests primarily with the prosecutor who is vested
with discretion in the discharge of this function.[11]
In Quiso v. Sandiganbayan,[12] we pointed out that:
x x x [A] fiscal by the nature of his office, is under no compulsion to file a
particular criminal information where he is not convinced that he has
evidence to support the allegations thereof. Although this power and
prerogative x x x is not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to prosecute a
case when he is in no position to do so, because in his opinion he does not
have the necessary evidence to secure a conviction, or he is not convinced of
the merits of the case.
The remedy of mandamus does not lie to compel the City Prosecutor to file
an Information against petitioner. There being no showing of grave abuse of
discretion which will warrant the reversal of the dismissal of the complaint
against petitioner, there is also no ground to issue a writ of mandamus.[13]
In the case at bar, we find no evidence to prove that the City Prosecutor
abused, much less gravely abused, his discretion when he dismissed the
complaint for estafa filed against Hegerty.
Moreover, the appeal filed by respondent with the Department of Justice was
out of time. Section 2 of DOJ Order No. 223 dated June 30, 1993, which was
then in force, provides:
When to appeal. - The appeal must be filed within a period of fifteen (15)
days from receipt of the questioned resolution by the party or his counsel.
The period shall be interrupted only by the filing of a motion for
reconsideration within ten (10) days from receipt of the resolution and shall
continue to run from the time the resolution denying the motion shall have
been received by the movant or his counsel.
In the case at bar, respondent's counsel received a copy of the resolution of
the City Prosecutor dismissing the complaint on June 16, 1999. The tenth day,
June 26, fell on a Saturday; thus, the motion for reconsideration was filed on
Monday, June 28, 1999. On May 8, 2000, respondent received the resolution
denying his motion for reconsideration. He filed an appeal with the
Department of Justice on May 19, 2000.
Under the above-quoted rule, respondent's fifteen-day period to appeal was
interrupted by the filing of the motion for reconsideration on the tenth day.
The said period continued to run again when he received the resolution
denying his motion for reconsideration, but only for the remaining period of
five days. Therefore, respondent only had until May 15, 2000 - May 13, 2000
was a Saturday - within which to appeal. His appeal filed on May 19, 2000
was clearly out of time.
Respondent Nash, however, argues that the service to him of the resolution
of the City Prosecutor denying his motion for reconsideration was invalid
inasmuch as he was represented by counsel. There is no "generally accepted
practice" in the service of orders, resolutions, and processes, which allows
service upon either the litigant or his lawyer. While as a rule, notice or
service made upon a party who is represented by counsel is a nullity, this
admits of exceptions, as when the court or tribunal orders service upon the
party or when the technical defect is waived.[14]
The above-quoted DOJ Rule expressly provides that service of resolutions
may be made to the party or his counsel. In this connection, we had occasion
to rule:[15]
A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in
preliminary investigations, service can be made upon the party himself or
through his counsel. It must be assumed that when the Justice Department
crafted the said section, it was done with knowledge of the pertinent rule in
the Rules of Court and of jurisprudence interpreting it. The DOJ could have
just adopted the rule on service provided for in the Rules of Court, but did
not. Instead, it opted to word Section 2 of DOJ Order No. 223 in such a way
as to leave no doubt that in preliminary investigations, service of resolutions
of public prosecutors could be made upon either the party or his counsel.
WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision
of the Court of Appeals in CA G.R. SP No. 66680 is REVERSED and SET ASIDE.
The Resolution of the City Prosecutor of Manila, which dismissed the
complaint against petitioner for estafa, and the Resolution of the
Department of Justice which denied respondent's appeal, are REINSTATED.
No costs.
SO ORDERED.