Professional Documents
Culture Documents
DECISION
Before this Court is a petition1 for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, seeking the reversal of the May
31, 2007 Decision2 and the January 31, 2008 Resolution3 of the Court of
Appeals (CA) in CA-G.R. SP No. 81510. The CA affirmed the Orders4 dated
August 15, 2003 and November 5, 2003 of the Metropolitan Trial Court
(MeTC) of Manila denying (a) the Omnibus Motion5 for the exclusion of a
private prosecutor in the two criminal cases for perjury pending before the
MeTC, and (b) the Motion for Reconsideration6 of the said order denying the
Omnibus Motion, respectively.
Petitioner Lee Pue Liong, a.k.a. Paul Lee, is the President of Centillion
Holdings, Inc. (CHI), a company affiliated with the CKC Group of Companies
(CKC Group) which includes the pioneer company Clothman Knitting
Corporation (CKC). The CKC Group is the subject of intra-corporate disputes
between petitioner and his siblings, including herein respondent Chua Pue
Chin Lee, a majority stockholder and Treasurer of CHI.
On June 14, 1999, petitioner on behalf of CHI (as per the Secretarys
Certificate8 issued by Virginia Lee on even date) caused the filing of a
verified Petition9 for the Issuance of an Owners Duplicate Copy of Transfer
Certificate of Title (TCT) No. 23223810 which covers a property owned by CHI.
The case was docketed as LRC Record No. 4004 of the Regional Trial Court
(RTC) of Manila, Branch 4. Petitioner submitted before the said court an
Affidavit of Loss11 stating that: (1) by virtue of his position as President of
CHI, he had in his custody and possession the owners duplicate copy of TCT
No. 232238 issued by the Register of Deeds for Manila; (2) that said owners
copy of TCT No. 232238 was inadvertently lost or misplaced from his files
and he discovered such loss in May 1999; (3) he exerted diligent efforts in
locating the said title but it had not been found and is already beyond
recovery; and (4) said title had not been the subject of mortgage or used as
collateral for the payment of any obligation with any person, credit or
banking institution. Petitioner likewise testified in support of the foregoing
averments during an ex-parte proceeding. In its Order12 dated September 17,
1999, the RTC granted the petition and directed the Register of Deeds of
Manila to issue a new Owners Duplicate Copy of TCT No. 232238 in lieu of
the lost one.
2. As duly elected treasurer of CHI, I was tasked with the custody and
safekeeping of all vital financial documents including bank accounts,
securities, and land titles.
3. Among the land titles in my custody was the Owners Duplicate copy
of Transfer Certificate of Title No. 232238 registered in the name of
CHI.
4. On June 14, 1999, Lee Pue Liong, a.k.a. Paul Lee, filed a VERIFIED
PETITION for the issuance of a new owners duplicate copy of the
aforementioned certificate claiming under oath that said duplicate
copy was in his custody but was lost.
xxxx
5. Paul Lee likewise executed an affidavit of loss stating the same fact
of loss, which affidavit he used and presented as exhibit "D".
xxxx
6. On August 18, 1999, Paul Lee testified under oath that TCT No.
232238 was inadvertently lost and misplaced from his files.
xxxx
8. I and my brother Nixon Lee opposed the petition of Paul Lee and
even produced in open court the owners duplicate copy of TCT No.
232238.
Such fact was contained in the Order of Branch 4, RTC, Manila, dated
November 12, 1999, x x x.
11. If not for the timely discovery of the petition of Paul Lee, with his
perjurious misrepresentation, a new owners duplicate could have been
issued.
At the trial, Atty. Augusto M. Macam appeared as counsel for respondent and
as private prosecutor with the consent and under the control and supervision
of the public prosecutor. After the prosecutions presentation of its first
witness in the person of Atty. Ronaldo Viesca, Jr.,20 a lawyer from the Land
Registration Authority, petitioners counsel moved in open court that
respondent and her lawyer in this case should be excluded from participating
in the case since perjury is a public offense. Said motion was vehemently
opposed by Atty. Macam.21 In its Order22 dated May 7, 2003, the MeTC gave
both the defense and the prosecution the opportunity to submit their motion
and comment respectively as regards the issue raised by petitioners
counsel.
The MeTC denied the Omnibus Motion in the Order25 dated August 15, 2003,
as follows:
[W]hile criminal actions, as a rule, are prosecuted under the direction and
control of the public prosecutor, however, an offended party may intervene
in the proceeding, personally or by attorney, especially in cases of offenses
which cannot be prosecuted except at the instance of the offended party. The
only exception to this rule is when the offended party waives his right to [file
the] civil action or expressly reserves his right to institute it after the
termination of the case, in which case he loses his right to intervene upon
the theory that he is deemed to have lost his interest in its prosecution. And,
in any event, whenever an offended party intervenes in the prosecution of a
criminal action, his intervention must always be subject to the direction and
control of the public prosecutor. (Lim Tek Goan vs. Yatco, 94 Phil. 197).
Apparently, the law makes no distinction between cases that are public in
nature and those that can only be prosecuted at the instance of the offended
party. In either case, the law gives to the offended party the right to
intervene, personally or by counsel, and he is deprived of such right only
when he waives the civil action or reserves his right to institute one. Such is
not the situation in this case. The case at bar involves a public crime and the
private prosecution has asserted its right to intervene in the proceedings,
subject to the direction and control of the public prosecutor.26
Petitioner sought relief from the CA via a petition28 for certiorari with a prayer
for the issuance of a writ of preliminary injunction and temporary restraining
order. Petitioner prayed, among others, for the CA to enjoin the MeTC and
respondent from enforcing the MeTC Orders dated August 15, 2003 and
November 5, 2003, and likewise to enjoin the MeTC and respondent from
further allowing the private prosecutor to participate in the proceedings
below while the instant case is pending.
Without passing upon the merits of the perjury cases, the CA declared that
respondents property rights and interests as the treasurer and a stockholder
of CHI were disturbed and/or threatened by the alleged acts of petitioner.
Further, the CA opined that petitioners right to a fair trial is not violated
because the presence of the private prosecutor in these cases does not
exclude the presence of the public prosecutor who remains to have the
prosecuting authority, subjecting the private prosecutor to his control and
supervision.
II
Petitioner claims that the crime of perjury, a crime against public interest,
does not offend any private party but is a crime which only offends the public
interest in the fair and orderly administration of laws. He opines that perjury
is a felony where no civil liability arises on the part of the offender because
there are no damages to be compensated and that there is no private person
injured by the crime.
Petitioner argues that the CAs invocation of our pronouncement in Lim Tek
Goan, cited by Justice Regalado in his book, is inaccurate since the private
offended party must have a civil interest in the criminal case in order to
intervene through a private prosecutor. Dissecting Lim Tek Goan, petitioner
points out that said case involved the crime of grave threats where Lim Tek
Goan himself was one of the offended parties. Thus, even if the crime of
grave threats did not have any civil liability to be satisfied, petitioner claims
that Lim Tek Goan, as a matter of right, may still intervene because he was
one of the offended parties.
Petitioner submits that the MeTC erred in allowing the private prosecutor to
represent respondent in this case despite the fact that the latter was not the
offended party and did not suffer any damage as she herself did not allege
nor claim in her Complaint-Affidavit and Supplemental Affidavit that she or
CHI suffered any damage that may be satisfied through restitution,37
reparation for the damage caused38 and indemnification for consequential
damages.39 Lastly, petitioner asserts that respondent is not the proper
offended party that may intervene in this case as she was not authorized by
CHI. Thus, he prayed, among others, that Atty. Macam or any private
prosecutor for that matter be excluded from the prosecution of the criminal
cases, and that all proceedings undertaken wherein Atty. Macam intervened
be set aside and that the same be taken anew by the public prosecutor
alone.40
On the other hand, respondent counters that the presence and intervention
of the private prosecutor in the perjury cases are not prohibited by the rules,
stressing that she is, in fact, an aggrieved party, being a stockholder, an
officer and the treasurer of CHI and the private complainant. Thus, she
submits that pursuant to our ruling in Lim Tek Goan she has the right to
intervene even if no civil liability exists in this case.41
Generally, the basis of civil liability arising from crime is the fundamental
postulate of our law that "[e]very person criminally liable x x x is also civilly
liable."42 Underlying this legal principle is the traditional theory that when a
person commits a crime, he offends two entities, namely (1) the society in
which he lives in or the political entity, called the State, whose law he has
violated; and (2) the individual member of that society whose person, right,
honor, chastity or property was actually or directly injured or damaged by
the same punishable act or omission.43
For the recovery of civil liability in the criminal action, the appearance of a
private prosecutor is allowed under Section 16 of Rule 110:
In Ramiscal, Jr. v. Hon. Sandiganbayan,45 we also held that Under Section 16,
Rule 110 of the Revised Rules of Criminal Procedure, the offended party may
also be a private individual whose person, right, house, liberty or property
was actually or directly injured by the same punishable act or omission of the
accused, or that corporate entity which is damaged or injured by the
delictual acts complained of. Such party must be one who has a legal right; a
substantial interest in the subject matter of the action as will entitle him to
recourse under the substantive law, to recourse if the evidence is sufficient
or that he has the legal right to the demand and the accused will be
protected by the satisfaction of his civil liabilities. Such interest must not be
a mere expectancy, subordinate or inconsequential. The interest of the party
must be personal; and not one based on a desire to vindicate the
constitutional right of some third and unrelated party.46 (Emphasis supplied.)
In this case, the statement of petitioner regarding his custody of TCT No.
232238 covering CHIs property and its loss through inadvertence, if found to
be perjured is, without doubt, injurious to respondents personal credibility
and reputation insofar as her faithful performance of the duties and
responsibilities of a Board Member and Treasurer of CHI. The potential injury
to the corporation itself is likewise undeniable as the court-ordered issuance
of a new owners duplicate of TCT No. 232238 was only averted by
respondents timely discovery of the case filed by petitioner in the RTC.
Even assuming that no civil liability was alleged or proved in the perjury case
being tried in the MeTC, this Court declared in the early case of Lim Tek Goan
v. Yatco,47 cited by both MeTC and CA, that whether public or private crimes
are involved, it is erroneous for the trial court to consider the intervention of
the offended party by counsel as merely a matter of tolerance. Thus, where
the private prosecution has asserted its right to intervene in the proceedings,
that right must be respected. The right reserved by the Rules to the offended
party is that of intervening for the sole purpose of enforcing the civil liability
born of the criminal act and not of demanding punishment of the accused.
Such intervention, moreover, is always subject to the direction and control of
the public prosecutor.48
When the case was elevated to this Court, we sustained the CA in allowing
the private prosecutors to actively participate in the trial of the criminal case.
Thus:
Petitioner cites the case of Tan, Jr. v. Gallardo, holding that where from the
nature of the offense or where the law defining and punishing the offense
charged does not provide for an indemnity, the offended party may not
intervene in the prosecution of the offense.
Petitioners contention lacks merit. Generally, the basis of civil liability arising
from crime is the fundamental postulate that every man criminally liable is
also civilly liable. When a person commits a crime he offends two entities
namely (1) the society in which he lives in or the political entity called the
State whose law he has violated; and (2) the individual member of the
society whose person, right, honor, chastity or property has been actually or
directly injured or damaged by the same punishable act or omission. An act
or omission is felonious because it is punishable by law, it gives rise to civil
liability not so much because it is a crime but because it caused damage to
another. Additionally, what gives rise to the civil liability is really the
obligation and the moral duty of everyone to repair or make whole the
damage caused to another by reason of his own act or omission, whether
done intentionally or negligently. The indemnity which a person is sentenced
to pay forms an integral part of the penalty imposed by law for the
commission of the crime. The civil action involves the civil liability arising
from the offense charged which includes restitution, reparation of the
damage caused, and indemnification for consequential damages.
Under the Rules, where the civil action for recovery of civil liability is
instituted in the criminal action pursuant to Rule 111, the offended party
may intervene by counsel in the prosecution of the offense. Rule 111(a) of
the Rules of Criminal Procedure provides that, "[w]hen a criminal action is
instituted, the civil action 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."
Private respondent did not waive the civil action, nor did she reserve the
right to institute it separately, nor institute the civil action for damages
arising from the offense charged. Thus, we find that the private prosecutors
can intervene in the trial of the criminal action.
When the civil action is instituted with the criminal action, evidence should
be taken of the damages claimed and the court should determine who are
the persons entitled to such indemnity. The civil liability arising from the
crime may be determined in the criminal proceedings if the offended party
does not waive to have it adjudged or does not reserve the right to institute
a separate civil action against the defendant. Accordingly, if there is no
waiver or reservation of civil liability, evidence should be allowed to establish
the extent of injuries suffered.
In the case before us, there was neither a waiver nor a reservation made; nor
did the offended party institute a separate civil action. It follows that
evidence should be allowed in the criminal proceedings to establish the civil
liability arising from the offense committed, and the private offended party
has the right to intervene through the private prosecutors.50 (Emphasis
supplied; citations omitted.)
In the light of the foregoing, we hold that the CA did not err in holding that
the MeTC committed no grave abuse of discretion when it denied petitioners
motion to exclude Atty. Macam as private prosecutor in Crim. Case Nos.
352270-71 CR.
SO ORDERED.
DECISION
BERSAMIN, J.:
Antecedents
On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding
Judge of the MTCC, conducted a preliminary investigation on the complaints.
After examining Miguel Aaron Palayon, one of the complainants, Judge
Pangilinan issued a warrant for the arrest of Mangila and her cohorts without
bail.2 On the next day, the entire records of the cases, including the warrant
of arrest, were transmitted to the City Prosecutor of Puerto Princesa City for
further proceedings and appropriate action in accordance with the prevailing
rules.3
Claiming that Judge Pangilinan did not have the authority to conduct the
preliminary investigation; that the preliminary investigation he conducted
was not yet completed when he issued the warrant of arrest; and that the
issuance of the warrant of arrest was without sufficient justification or
without a prior finding of probable cause, Mangila filed in the Court of
Appeals (CA)a petition for habeas corpus to obtain her release from
detention. Her petition averred that the remedy of habeas corpus was
available to her because she could no longer file a motion to quash or a
motion to recall the warrant of arrest considering that Judge Pangilinan had
already forwarded the entire records of the case to the City Prosecutor who
had no authority to lift or recall the warrant.5
As a general rule, a writ of habeas corpus will not be granted where relief
may be had or could have been procured by resort to another general
remedy. As pointed out in Luna vs. Plaza, if petitioner is detained by virtue of
a warrant of arrest, which is allegedly invalid, the remedy available to her is
not a petition for habeas corpus but a petition to quash the warrant of arrest
or a petition for a reinvestigation of the case by the Municipal Judge or by the
Provincial Fiscal.
Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that
the Municipal Judge who conducted the preliminary investigation shall
transmit his resolution, together with the record of the case, including the
warrant of arrest, to the Provincial Prosecutor, who shall review the same and
order the release of an accused who is detained if no probable cause is found
against him. Thus, the proper remedy available to petitioner is for her to file
with the Provincial Prosecutor a motion to be released from detention on the
grounds alleged in the instant petition.
WHEREFORE, the petition for habeas corpus is DENIED for lack of merit.
SO ORDERED.7
Mangila moved for the reconsideration of the denial of her petition for
habeas corpus,8 but the CA denied the motion on November 19, 2003.9
Issue
Did the CA err in ruling that habeas corpus was not the proper remedy to
obtain the release of Mangila from detention?
The high prerogative writ of habeas corpus has been devised as a speedy
and effective remedy to relieve persons from unlawful restraint. In Caballes
v. Court of Appeals,10 the Court discoursed on the nature of the special
proceeding of habeas corpus in the following manner:
There is no question that when the criminal complaints were lodged against
Mangila and her cohorts on June 16, 2003,Judge Pangilinan, as the Presiding
Judge of the MTCC, was empowered to conduct preliminary investigations
involving "all crimes cognizable by the proper court in their respective
territorial jurisdictions." His authority was expressly provided in Section 2,
Rule 112 of the Revised Rules of Criminal Procedure, to wit:
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the
investigating judge could issue a warrant of arrest during the preliminary
investigation even without awaiting its conclusion should he find after an
examination in writing and under oath of the complainant and the witnesses
in the form of searching questions and answers that a probable cause
existed, and that there was a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.1wphi1 In
the context of this rule, Judge Pangilinan issued the warrant of arrest against
Mangila and her cohorts. Consequently, the CA properly denied Mangilas
petition for habeas corpus because she had been arrested and detained by
virtue of the warrant issued for her arrest by Judge Pangilinan, a judicial
officer undeniably possessing the legal authority to do so.
It is relevant to point out at this juncture that the authority of the MTC and
MTCC judges to conduct preliminary investigations was removed only
effective on October 3, 2005 pursuant to A.M. No. 05-8-26-SC.
With Mangilas arrest and ensuing detention being by virtue of the order
lawfully issued by Judge Pangilinan, the writ of habeas corpus was not an
appropriate remedy to relieve her from the restraint on her liberty. This is
because the restraint, being lawful and pursuant to a court process, could
not be inquired into through habeas corpus. To quote the dictum enunciated
by Justice Malcolm in Quintos v. Director of Prisons:13
The writ of habeas corpus secures to a prisoner the right to have the cause
of his detention examined and determined by a court of justice, and to have
ascertained if he is held under lawful authority. The function of habeas
corpus, where the party who has appealed to its aid is in custody under
process, does not extend beyond an inquiry into the jurisdiction of the court
by which it was issued and the validity of the process upon its face. It is not a
writ of error. xxx (Bold underscoring supplied for emphasis)
Secondly, it was not procedurally correct for her to impugn the issuance of
the warrant of arrest by hinting that the investigating judge did not at all
consider the necessity of determining the existence of probable cause for its
issuance due to time constraints and in order not to frustrate the ends of
justice, for that consideration was presumed.
And, lastly, it was clear that under Section 5,16 Rule 112 of the Revised Rules
of Criminal Procedure, the resolution of the investigating judge was not final
but was still subject to the review by the public prosecutor who had the
power to order the release of the detainee if no probable cause should
beultimately found against her. In the context of the rule, Mangila had no
need to seek the issuance of the writ of habeas corpus to secure her release
from detention. Her proper recourse was to bring the supposed irregularities
attending the conduct of the preliminary investigation and the issuance of
the warrant for her arrest to the attention of the City Prosecutor, who had
been meanwhile given the most direct access to the entire records of the
case, including the warrant of arrest, following Judge Pangilinans transmittal
of them to the City Prosecutor for appropriate action.17 We agree with the CA,
therefore, that the writ of habeas corpus could not be used as a substitute
for another available remedy.18
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL
COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE
PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO
BAUTISTA, ET AL., respondents.
GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to
dismiss a criminal case filed by the Provincial Fiscal upon instructions of the
Secretary of Justice to whom the case was elevated for review, may refuse to
grant the motion and insist on the arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the
Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the
Circuit Criminal Court of Lucena City which was docketed as Criminal Case
No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the
accused filed a motion to defer arraignment on the ground that there was a
pending petition for review filed with the Secretary of Justice of the resolution
of the Office of the Provincial Fiscal for the filing of the information. In an
order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul,
denied the motion. 2 A motion for reconsideration of the order was denied in
the order of August 5, 1977 but the arraignment was deferred to August 18,
1977 to afford nine for petitioner to elevate the matter to the appellate
court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ of
injunction was filed by the accused in the Court of Appeals that was docketed
as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of
Appeals restrained Judge Mogul from proceeding with the arraignment of the
accused until further orders of the Court. 5 In a comment that was filed by
the Solicitor General he recommended that the petition be given due course.
6
On May 15, 1978 a decision was rendered by the Court of Appeals granting
the writ and perpetually restraining the judge from enforcing his threat to
compel the arraignment of the accused in the case until the Department of
Justice shall have finally resolved the petition for review. 7
ORDER
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the Court of Appeals that was docketed as CA-
G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by
the Court of Appeals against the threatened act of arraignment of the
accused until further orders from the Court. 13 In a decision of October 25,
1979 the Court of Appeals dismissed the petition and lifted the restraining
order of January 23, 1979. 14 A motion for reconsideration of said decision
filed by the accused was denied in a resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused whereby
petitioner prays that said decision be reversed and set aside, respondent
judge be perpetually enjoined from enforcing his threat to proceed with the
arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering
respondent Judge to dismiss the said case, and declaring the obligation of
petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from notice.
In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent to
the petition asking that the petition be dismissed. In the resolution of
February 5, 1981, the Second Division of this Court resolved to transfer this
case to the Court En Banc. In the resolution of February 26, 1981, the Court
En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that respondent
Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon the
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. 18 The reason
for placing the criminal prosecution under the direction and control of the
fiscal is to prevent malicious or unfounded prosecution by private persons.
19 It cannot be controlled by the complainant. 20 Prosecuting officers under
the power vested in them by law, not only have the authority but also the
duty of prosecuting persons who, according to the evidence received from
the complainant, are shown to be guilty of a crime committed within the
jurisdiction of their office. 21 They have equally the legal duty not to
prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case. 22
However, the action of the fiscal or prosecutor is not without any limitation or
control. The same is subject to the approval of the provincial or city fiscal or
the chief state prosecutor as the case maybe and it maybe elevated for
review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of
Justice may direct that a motion to dismiss the rase be filed in Court or
otherwise, that an information be filed in Court. 31
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a
motion to dismiss was submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the trial on the
merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? A state prosecutor to handle the
case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to
handle the prosecution of the case thereby defying the superior order of the
Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to
see that justice is done and not necessarily to secure the conviction of the
person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its
own independent judgment as to whether the accused should be convicted
or acquitted. The fiscal should not shirk from the responsibility of appearing
for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a
private prosecutor for then the entire proceedings will be null and void. 37
The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to
the private prosecutor but still under his direction and control. 38
SO ORDERED.
G.R. No. 113930 March 5, 1996
We are urged in this petition to set aside (a) the decision of the Court of
Appeals of 28 September 1993 in CA-G.R. SP No. 31226, 1 which dismissed
the petition therein on the ground that it has been "mooted with the release
by the Department of Justice of its decision . . . dismissing petitioners'
petition for review"; (b) the resolution of the said court of 9 February 1994 2
denying the petitioners' motion to reconsider the decision; (c) the order of 17
May 1993 3 of respondent Judge Maximiano C. Asuncion of Branch 104 of the
Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198
denying petitioners' motion to suspend proceedings and to hold in abeyance
the issuance of the warrants of arrest and the public prosecutor's motion to
defer arraignment; and (d) the resolutions of 23 July 1993 and 3 February
1994 4 of the Department of Justice (DOJ) dismissing petitioners' petition for
the review of the Joint Resolution of the Assistant City Prosecutor of Quezon
City and denying the motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs
prayed for in this petition:
II
III
IV
The information for estafa attached to the Joint Resolution was approved (on
7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
authority of the City Prosecutor of Quezon City, and was filed with the RTC of
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-
43198. 13 The information reads as follows:
J. Roberto Delgado )
Esteban B. Pacannuayan, )
Jr. and
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a
motion for the reconsideration of the Joint Resolution 14 alleging therein that
(a) there was neither fraud in the Number Fever Promotion nor deviation
from or modification of the promotional rules approved by the Department of
Trade and Industry (DTI), for from the start of the promotion, it had always
been clearly explained to the public that for one to be entitled to the cash
prize his crown must bear both the winning number and the correct security
code as they appear in the DTI list; (b) the complainants failed to allege,
much less prove with prima facie evidence, the specific overt criminal acts or
omissions purportedly committed by each of the petitioners; (c) the
compromise agreement entered into by PEPSI is not an admission of guilt;
and (d) the evidence establishes that the promo was carried out with utmost
good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review 15
wherein, for the same grounds adduced in the aforementioned motion for
reconsideration, they prayed that the Joint Resolution be reversed and the
complaints dismissed. They further stated that the approval of the Joint
Resolution by the City Prosecutor was not the result of a careful scrutiny and
independent evaluation of the relevant facts and the applicable law but of
the grave threats, intimidation, and actual violence which the complainants
had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest on the ground that they had filed the aforesaid Petition for
Review. 16
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor
Zenon L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor
of Quezon City to inform the DOJ whether the petitioners have already been
arraigned, and if not, to move in court for the deferment of further
proceedings in the case and to elevate to the DOJ the entire records of the
case, for the case is being treated as an exception pursuant to Section 4 of
Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of
the RTC of Quezon City. 18
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to Hold in Abeyance Issuance of Warrant of
Arrest and to Suspend Proceedings. 20 He stressed that the DOJ had taken
cognizance of the Petition for Review by directing the City Prosecutor to
elevate the records of I.S. No. P-4401 and its related cases and asserted that
the petition for review was an essential part of the petitioners' right to a
preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of
the RTC of Quezon City, issued an order advising the parties that his court
would "be guided by the doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the
Department of Justice on the petition for review undertaken by the accused."
21
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial
court a Motion to Defer Arraignment wherein he also prayed that "further
proceedings be held in abeyance pending final disposition by the
Department of Justice." 22
Later, the attorneys for the different private complainants filed, respectively,
an Opposition to Motion to Defer Arraignment, 26 and Objection and
Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the
Issuance of Warrants of Arrest. 27
The motions filed by the accused and the Trial Prosecutor are
hereby DENIED.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151,
pp. 471-472) stated as follows:
In order therefor to avoid such a situation whereby
the opinion of the Secretary of Justice who reviewed
the action of the fiscal may be disregarded by the
trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when
the complaint or information has already been filed
in Court. The matter should be left entirely for the
determination of the Court.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil
action for certiorari and prohibition with application for a temporary
restraining order, 30 which was docketed as CA-G.R. SP No. 31226. They
contended therein that respondent Judge Asuncion had acted without or in
excess of jurisdiction or with grave abuse of discretion in issuing the
aforementioned order of 17 May 1993 because
On 28 June 1993, the Court of Appeals heard the petitioners' application for a
writ of preliminary injunction, granted the motion for leave to intervene filed
by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of
Quezon City to elevate the original records of Criminal Case No. 4-93-43198.
33
Upon receipt of the original records of the criminal case, the Court of Appeals
found that a copy of the Joint Resolution had in fact been forwarded to, and
received by, the trial court on 22 April 1993, which fact belied the
petitioners' claim that the respondent Judge had not the slightest basis at all
for determining probable cause when he ordered the issuance of warrants of
arrest. It ruled that the Joint Resolution "was sufficient in itself to have been
relied upon by respondent Judge in convincing himself that probable cause
indeed exists for the purpose of issuing the corresponding warrants of
arrest"; and that the "mere silence of the records or the absence of any
express declaration" in the questioned order as to the basis of such finding
does not give rise to an adverse inference, for the respondent Judge enjoys
in his favor the presumption of regularity in the performance of his official
duty. The Court of Appeals then issued a resolution 34 denying the application
for a writ of preliminary injunction.
On 3 August 1993, the counsel for the private complainants filed in CA-G.R.
SP No. 31226 a Manifestation 37 informing the court that the petitioners'
petition for review filed with the DOJ was dismissed in a resolution dated 23
July 1993. A copy 38 of the resolution was attached to the Manifestation.
You questioned the said order of the RTC before the Court of
Appeals and prayed for the issuance of a writ of preliminary
injunction to restrain the Trial Judge from issuing any warrant of
arrest and from proceeding with the arraignment of the accused.
The appellate court in a resolution dated July 1, 1993, denied
your petition.
The petitioners filed a motion to reconsider the DOJ's dismissal of the petition
citing therein its resolutions in other similar cases which were favorable to
the petitioners and adverse to other "349" Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its "349" Committee,
denied the motion and stated: "The instant petition is different from the
other petitions resolved by this Department in similar cases from
the provinces. In the latter petitions, the complaints against herein
respondents [sic] 42 were dismissed inasmuch as the informations have not
yet been filed or even if already filed in court, the proceedings have been
suspended by the courts to await the outcome of the appeal pending with
this Department." 43
The First Division of this Court denied due course to this petition in its
resolution of 19 September 1994. 46
On 7 October 1994, the petitioners filed a motion for the
reconsideration 47 of the aforesaid resolution. Acting thereon, the First
Division required the respondents to comment thereon.
The pleadings of the parties suggest for this Court's resolution the following
key issues:
We resolve the first four issues in the affirmative and the fifth, in the
negative.
I.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking
cognizance of an appeal, by way 'of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It
merely advised the DOJ to, "as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint
or information has already been filed in Court." More specifically, it stated:
Crespo could not have intended otherwise without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court 54
which recognizes the authority of the Secretary of Justice to reverse the
resolution of the provincial or city prosecutor or chief state prosecutor upon
petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the
rules on appeals from resolutions in preliminary investigation. At the time the
petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25
January 1990. Section 2 thereof provided that only resolutions dismissing a
criminal complaint may be appealed to the Secretary of Justice. Its Section 4,
55
however, provided an exception, thus allowing, upon a showing of
manifest error or grave abuse of discretion, appeals from resolutions finding
probable cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an
exception pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223
56
which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4 on
the non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall
of the previous action of the DOJ giving due course to the petitioners' petition
for review. But whether the DOJ would affirm or reverse the challenged Joint
Resolution is still a matter of guesswork. Accordingly, it was premature for
respondent Judge Asuncion to deny the motions to suspend proceedings and
to defer arraignment on the following grounds:
The real and ultimate test of the independence and integrity of his court is
not the filing of the aforementioned motions at that stage of the proceedings
but the filing of a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the Joint Resolution
of the investigating prosecutor. Before that time, the following
pronouncement in Crespo did not yet truly become relevant or applicable:
II.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan
Trial Courts (MeTCs) except those in the National Capital Region, Municipal
Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling
within their exclusive original jurisdiction; 59 in cases covered by the rule on
summary procedure where the accused fails to appear when required; 60 and
in cases filed with them which are cognizable by the Regional Trial Courts
(RTCs); 61 and (2) by the Metropolitan Trial Courts in the National Capital
Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate
preliminary investigations conducted by officers authorized to do so other
than judges of MeTCs, MTCs and MCTCs. 62
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses,
in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is
not required to personally examine the complainant and the witnesses, but
In adverting to a statement in People vs. Delgado 66 that the judge may rely
on the resolution of the Commission on Elections (COMELEC) to file the
information by the same token that it may rely on the certification made by
the prosecutor who conducted the preliminary investigation in the issuance
of the warrant of arrest, this Court stressed in Lim vs. Felix 67 that
And noting that judges still suffer from the inertia of decisions and
practice under the 1935 and 1973 Constitutions, this Court found it
necessary to restate the rule "in greater detail and hopefully clearer
terms." It then proceeded to do so, thus:
This Court then set aside for being null and void the challenged order
of respondent Judge Felix directing the issuance of the warrants of
arrest against petitioners Lim, et al., solely on the basis of the
prosecutor's certification in the informations that there existed
probable cause "without having before him any other basis for his
personal determination of the existence of a probable cause."
In Allado vs. Diokno, 68 this Court also ruled that "before issuing a
warrant of arrest, the judge must satisfy himself that based on the
evidence submitted there is sufficient proof that a crime has been
committed and that the person to be arrested is probably guilty
thereof."
In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of
the petitioners of absence of probable cause and sustained the investigating
panel's and the respondent Judge's findings of probable cause. After quoting
extensively from Soliven vs. Makasiar, 70 this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case
law repudiate the submission of petitioners that respondent
judges should have conducted "searching examination of
witnesses" before issuing warrants of arrest against them. They
also reject petitioners' contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer as well as
the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is probable
cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of the
guilt of an accused. In doing so, judges do not conduct a de novo
hearing to determine the existence of probable cause. They just
personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it
took the respondent judges a few hours to review and affirm the
probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to
the records of the case. (emphasis supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutor's certification in an information
or his resolution which is made the basis for the filing of the information, or
both, would suffice in the judicial determination of probable cause for the
issuance of a warrant of arrest. In Webb, this Court assumed that since the
respondent Judges had before them not only the 26-page resolution of the
investigating panel but also the affidavits of the prosecution witnesses and
even the counter-affidavits of the respondents, they (judges) made personal
evaluation of the evidence attached to the records of the case.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due
course to the petitioners' petition for review pursuant to the exception
provided for in Section 4 of Circular No. 7, and directed the Office of the City
Prosecutor of Quezon City to forward to the Department the records of the
cases and to file in court a motion for the deferment of the proceedings. At
the time it issued the indorsement, the DOJ already knew that the
information had been filed in court, for which reason it directed the City
Prosecutor to inform the Department whether the accused have already
been arraigned and if not yet arraigned, to move to defer further
proceedings. It must have been fully aware that, pursuant to Crespo vs.
Mogul, a motion to dismiss a case filed by the prosecution either as a
consequence of a reinvestigation or upon instructions of the Secretary of
Justice after a review of the records of the investigation is addressed to the
trial court, which has the option to grant or to deny it. Also, it must have
been still fresh in its mind that a few months back it had dismissed for lack of
probable cause other similar complaints of holders of "349" Pepsi crowns. 72
Thus, its decision to give due course to the petition must have been
prompted by nothing less than an honest conviction that a review of the Joint
Resolution was necessary in the highest interest of justice in the light of the
special circumstances of the case. That decision was permissible within the
"as far as practicable" criterion in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the
petitioners' Motion to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer
Arraignment, which were both based on the pendency before the DOJ of the
petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP No.
31226 on the basis of the dismissal by the DOJ of the petition for review
might have been correct. However, the petition likewise involved the issue of
whether respondent Judge Asuncion gravely abused his discretion in ordering
the issuance of warrants of arrest despite want of basis. The DOJ's dismissal
of the petition for review did not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners' application for a
writ of preliminary injunction to restrain respondent Judge Asuncion from
issuing warrants of arrest, the Court of Appeals justified its action in this
wise:
We are unable to agree with this disquisition, for it merely assumes at least
two things: (1) that respondent Judge Asuncion had read and relied on the
Joint Resolution and (2) he was convinced that probable cause exists for the
issuance of the warrants of arrest against the petitioners. Nothing in the
records provides reasonable basis for these assumptions. In his assailed
order, the respondent Judge made no mention of the Joint Resolution, which
was attached to the records of Criminal Case No. Q-93-43198 on 22 April
1993. Neither did he state that he found probable cause for the issuance of
warrants of arrest. And, for an undivinable reason, he directed the issuance
of warrants of arrest only "after June 21, 1993." If he did read the Joint
Resolution and, in so reading, found probable cause, there was absolutely no
reason at all to delay for more than one month the issuance of warrants of
arrest. The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the DOJ to
resolve the petition for review.
V.
....
g. Where the court has no jurisdiction over the offense (Lopez vs.
City Judge, L-25795, October 29, 1966, 18 SCRA 616);
No pronouncement as to costs.
DECISION
Jose Antonio C. Leviste (petitioner) assails via the present petition for review
filed on May 30, 2008 the August 30, 2007 Decision1 and the April 18, 2008
Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the
trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied
the motion for reconsideration, respectively.
After petitioner posted a P40,000 cash bond which the trial court approved,6
he was released from detention, and his arraignment was set on January 24,
2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion7 praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine
the evidence on record or to conduct a reinvestigation to determine the
proper offense.
The RTC thereafter issued the (1) Order of January 24, 20078 deferring
petitioners arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order
of January 31, 20079 denying reconsideration of the first order. Petitioner
assailed these orders via certiorari and prohibition before the Court of
Appeals.
The trial court nonetheless issued the other assailed orders, viz: (1) Order of
February 7, 200712 that admitted the Amended Information13 for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner
questioned these two orders via supplemental petition before the appellate
court.
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:
Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to
enter a plea of "not guilty" for him.
The trial court, absent any writ of preliminary injunction from the appellate
court, went on to try petitioner under the Amended Information. By Decision
of January 14, 2009, the trial court found petitioner guilty of homicide,
sentencing him to suffer an indeterminate penalty of six years and one day
of prision mayor as minimum to 12 years and one day of reclusion temporal
as maximum. From the Decision, petitioner filed an appeal to the appellate
court, docketed as CA-G.R. CR No. 32159, during the pendency of which he
filed an urgent application for admission to bail pending appeal. The
appellate court denied petitioners application which this Court, in G.R. No.
189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.18
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later than the start of the trial of
the case.
By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under
the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused
to enter his plea since the issues he raised were still pending resolution by
the appellate court, thus prompting the trial court to enter a plea of "not
guilty" for him.
The petition is now moot, however, in view of the trial courts rendition of
judgment.
After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four trial
court Orders.
In his first assignment of error, petitioner posits that the prosecution has no
right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a
warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.
Before the complaint or information is filed, the person arrested may ask for
a preliminary investigation in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he
may apply for bail and the investigation must be terminated within fifteen
(15) days from its inception.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt
filing of an information in court or the immediate release of the arrested
person.33 Notably, the rules on inquest do not provide for a motion for
reconsideration.34
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition
by a proper party under such rules as the Department of Justice may
prescribe."35 The rule referred to is the 2000 National Prosecution Service
Rule on Appeal,36 Section 1 of which provides that the Rule shall "apply to
appeals from resolutions x x x in cases subject of preliminary investigation/
reinvestigation." In cases subject of inquest, therefore, the private party
should first avail of a preliminary investigation or reinvestigation, if any,
before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a
preliminary investigation.
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and
substance."41
x x x Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge himself
but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or
evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore, that
the prosecutor can and should institute remedial measures[.]42
(emphasis and underscoring supplied)
The rule is now well settled that once a complaint or information is filed in
court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound discretion of the
court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he
cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper thereafter
should be addressed to the court for its consideration and approval. The only
qualification is that the action of the court must not impair the substantial
rights of the accused or the right of the People to due process of law.
xxxx
While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be
preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm
of the Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion wide and far reaching
regarding the disposition thereof,48 subject to the trial courts approval of the
resulting proposed course of action.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice to
the offended party and with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall be furnished all parties,
especially the offended party.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the accused would not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (emphasis supplied)
It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab initio
cannot be amended to obviate a ground for quashal.51 An amendment which
operates to vest jurisdiction upon the trial court is likewise impermissible. 52
It is not.
Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another
preliminary investigation. Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging
the accused with violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act.
In one case,56 it was squarely held that the amendment of the Information
from homicide to murder is "one of substance with very serious
consequences."57 The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident
premeditation, and cruelty, which qualify the offense charged from homicide
to murder. It being a new and material element of the offense, petitioner
should be given the chance to adduce evidence on the matter. Not being
merely clarificatory, the amendment essentially varies the prosecutions
original theory of the case and certainly affects not just the form but the
weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v.
Cajigal,59 wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no
real change in the recital of facts constituting the offense charged as alleged
in the body of the Information, as the allegations of qualifying circumstances
were already clearly embedded in the original Information. Buhat pointed out
that the original Information for homicide already alleged the use of superior
strength, while Pacoy states that the averments in the amended Information
for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in
the present case.
Considering that another or a new preliminary investigation is required, the
fact that what was conducted in the present case was a reinvestigation does
not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the
same objective of determining whether there exists sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial.60 What is
essential is that petitioner was placed on guard to defend himself from the
charge of murder61 after the claimed circumstances were made known to him
as early as the first motion.
The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of
preliminary injunction has been issued.63 The appellate court, by Resolution
of February 15, 2007,64 denied petitioners application for a temporary
restraining order and writ of preliminary injunction. Supplementary efforts to
seek injunctive reliefs proved futile.65 The appellate court thus did not err in
finding no grave abuse of discretion on the part of the trial court when it
proceeded with the case and eventually arraigned the accused on March 21,
2007, there being no injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary, a post-inquest
remedy that was available after the reinvestigation and which could have
suspended the arraignment.661avvphi1
As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to
maim and not to kill the victim, one bullet would have sufficed the DOJ
Secretary reportedly uttered that "the filing of the case of homicide against
ano against Leviste lintek naman eh I told you to watch over that case
there should be a report about the ballistics, about the paraffin, etc., then
thats not a complete investigation, thats why you should use that as a
ground" no abuse of discretion, much less a grave one, can be imputed to
it.
The trial court concluded that "the wound sustained by the victim at the back
of his head, the absence of paraffin test and ballistic examination, and the
handling of physical evidence,"75 as rationalized by the prosecution in its
motion, are sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the
bail hearings does not affect the prior determination of probable cause
because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case.76
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
The rules do not require cases to be set for hearing to determine probable
cause for the issuance of a warrant of arrest of the accused before any
warrant may be issued.82 Petitioner thus cannot, as a matter of right, insist
on a hearing for judicial determination of probable cause. Certainly,
petitioner "cannot determine beforehand how cursory or exhaustive the
[judge's] examination of the records should be [since t]he extent of the
judges examination depends on the exercise of his sound discretion as the
circumstances of the case require."83 In one case, the Court emphatically
stated:
Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court
is not a trier of facts. The Court cannot thus review the evidence adduced by
the parties on the issue of the absence or presence of probable cause, as
there exists no exceptional circumstances to warrant a factual review.86
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving
only errors of jurisdiction.1avvphi1 It is not to stray at will and resolve
questions and issues beyond its competence, such as an error of judgment. 87
The courts duty in the pertinent case is confined to determining whether the
executive and judicial determination of probable cause was done without or
in excess of jurisdiction or with grave abuse of discretion. Although it is
possible that error may be committed in the discharge of lawful functions,
this does not render the act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.88
SO ORDERED.
ROMERO, J.:
In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio
Bayotas y Cordova was charged with Rape and eventually convicted thereof
on June 19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending
appeal of his conviction, Bayotas died on February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory arrest secondary to
hepatic encephalopathy secondary to hipato carcinoma gastric malingering.
Consequently, the Supreme Court in its Resolution of May 20, 1992
dismissed the criminal aspect of the appeal. However, it required the
Solicitor General to file its comment with regard to Bayotas' civil liability
arising from his commission of the offense charged.
In his comment, the Solicitor General expressed his view that the death of
accused-appellant did not extinguish his civil liability as a result of his
commission of the offense charged. The Solicitor General, relying on the case
of People v. Sendaydiego 1 insists that the appeal should still be resolved for
the purpose of reviewing his conviction by the lower court on which the civil
liability is based.
Counsel for the accused-appellant, on the other hand, opposed the view of
the Solicitor General arguing that the death of the accused while judgment of
conviction is pending appeal extinguishes both his criminal and civil
penalties. In support of his position, said counsel invoked the ruling of the
Court of Appeals in People v. Castillo and Ocfemia 2 which held that the civil
obligation in a criminal case takes root in the criminal liability and, therefore,
civil liability is extinguished if accused should die before final judgment is
rendered.
We are thus confronted with a single issue: Does death of the accused
pending appeal of his conviction extinguish his civil liability?
In the aforementioned case of People v. Castillo, this issue was settled in the
affirmative. This same issue posed therein was phrased thus: Does the death
of Alfredo Castillo affect both his criminal responsibility and his civil liability
as a consequence of the alleged crime?
This ruling of the Court of Appeals in the Castillo case 3 was adopted by the
Supreme Court in the cases of People of the Philippines v. Bonifacio Alison,
et al., 4 People of the Philippines v. Jaime Jose, et al. 5 and People of the
Philippines v. Satorre 6 by dismissing the appeal in view of the death of the
accused pending appeal of said cases.
We see no merit in the plea that the civil liability has been
extinguished, in view of the provisions of the Civil Code of the
Philippines of 1950 (Rep. Act No. 386) that became operative
eighteen years after the revised Penal Code. As pointed out by
the Court below, Article 33 of the Civil Code establishes a civil
action for damages on account of physical injuries, entirely
separate and distinct from the criminal action.
Art. 33. In cases of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
In the above case, the court was convinced that the civil liability of the
accused who was charged with estafa could likewise trace its genesis
to Articles 19, 20 and 21 of the Civil Code since said accused had
swindled the first and second vendees of the property subject matter
of the contract of sale. It therefore concluded: "Consequently, while the
death of the accused herein extinguished his criminal liability including
fine, his civil liability based on the laws of human relations remains."
Thus it allowed the appeal to proceed with respect to the civil liability of the
accused, notwithstanding the extinction of his criminal liability due to his
death pending appeal of his conviction.
To further justify its decision to allow the civil liability to survive, the court
relied on the following ratiocination: Since Section 21, Rule 3 of the Rules of
Court 9 requires the dismissal of all money claims against the defendant
whose death occurred prior to the final judgment of the Court of First
Instance (CFI), then it can be inferred that actions for recovery of money may
continue to be heard on appeal, when the death of the defendant
supervenes after the CFI had rendered its judgment. In such case, explained
this tribunal, "the name of the offended party shall be included in the title of
the case as plaintiff-appellee and the legal representative or the heirs of the
deceased-accused should be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the
rule established was that the survival of the civil liability depends on whether
the same can be predicated on sources of obligations other than delict.
Stated differently, the claim for civil liability is also extinguished together
with the criminal action if it were solely based thereon, i.e., civil liability ex
delicto.
When the action is for the recovery of money and the defendant
dies before final judgment in the Court of First Instance, it shall
be dismissed to be prosecuted in the manner especially provided
in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of
Court).
The accountable public officer may still be civilly liable for the
funds improperly disbursed although he has no criminal liability
(U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab,
66 Phil. 583).
Clearly, the text of Article 30 could not possibly lend support to the ruling in
Sendaydiego. Nowhere in its text is there a grant of authority to continue
exercising appellate jurisdiction over the accused's civil liability ex delicto
when his death supervenes during appeal. What Article 30 recognizes is an
alternative and separate civil action which may be brought to demand civil
liability arising from a criminal offense independently of any criminal action.
In the event that no criminal proceedings are instituted during the pendency
of said civil case, the quantum of evidence needed to prove the criminal act
will have to be that which is compatible with civil liability and that is,
preponderance of evidence and not proof of guilt beyond reasonable doubt.
Citing or invoking Article 30 to justify the survival of the civil action despite
extinction of the criminal would in effect merely beg the question of whether
civil liability ex delicto survives upon extinction of the criminal action due to
death of the accused during appeal of his conviction. This is because
whether asserted in
the criminal action or in a separate civil action, civil liability ex delicto is
extinguished by the death of the accused while his conviction is on appeal.
Article 89 of the Revised Penal Code is clear on this matter:
In sum, in pursuing recovery of civil liability arising from crime, the final
determination of the criminal liability is a condition precedent to the
prosecution of the civil action, such that when the criminal action is
extinguished by the demise of accused-appellant pending appeal thereof,
said civil action cannot survive. The claim for civil liability springs out of and
is dependent upon facts which, if true, would constitute a crime. Such civil
liability is an inevitable consequence of the criminal liability and is to be
declared and enforced in the criminal proceeding. This is to be distinguished
from that which is contemplated under Article 30 of the Civil Code which
refers to the institution of a separate civil action that does not draw its life
from a criminal proceeding. The Sendaydiego resolution of July 8, 1977,
however, failed to take note of this fundamental distinction when it allowed
the survival of the civil action for the recovery of civil liability ex delicto by
treating the same as a separate civil action referred to under Article 30.
Surely, it will take more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an independent one such as
that contemplated under Article 30.
Ironically however, the main decision in Sendaydiego did not apply Article
30, the resolution of July 8, 1977 notwithstanding. Thus, it was held in the
main decision:
In other words, the Court, in resolving the issue of his civil liability,
concomitantly made a determination on whether Sendaydiego, on the basis
of evidenced adduced, was indeed guilty beyond reasonable doubt of
committing the offense charged. Thus, it upheld Sendaydiego's conviction
and pronounced the same as the source of his civil liability. Consequently,
although Article 30 was not applied in the final determination of
Sendaydiego's civil liability, there was a reopening of the criminal action
already extinguished which served as basis for Sendaydiego's civil liability.
We reiterate: Upon death of the accused pending appeal of his conviction,
the criminal action is extinguished inasmuch as there is no longer a
defendant to stand as the accused; the civil action instituted therein for
recovery of civil liability ex delicto is ipso facto extinguished, grounded as it
is on the criminal.
Section 21, Rule 3 of the Rules of Court was also invoked to serve as another
basis for the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3
of the Rules of Court, the Court made the inference that civil actions of the
type involved in Sendaydiego consist of money claims, the recovery of which
may be continued on appeal if defendant dies pending appeal of his
conviction by holding his estate liable therefor. Hence, the Court's
conclusion:
Accordingly, we rule: if the private offended party, upon extinction of the civil
liability ex delicto desires to recover damages from the same act or omission
complained of, he must subject to Section 1, Rule 111 16 (1985 Rules on
Criminal Procedure as amended) file a separate civil action, this time
predicated not on the felony previously charged but on other sources of
obligation. The source of obligation upon which the separate civil action is
premised determines against whom the same shall be enforced.
Sec. 1. Actions which may and which may not be brought against
executor or administrator. No action upon a claim for the
recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal,
may be commenced against him.
2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other
than delict. 19 Article 1157 of the Civil Code enumerates these other sources
of obligation from which the civil liability may arise as a result of the same
act or omission:
a) Law 20
b) Contracts
c) Quasi-contracts
d) . . .
e) Quasi-delicts
4. Finally, the private offended party need not fear a forfeiture of his right to
file this separate civil action by prescription, in cases where during the
prosecution of the criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with provisions of Article 1155 21
of the Civil Code, that should thereby avoid any apprehension on a possible
privation of right by prescription. 22
Applying this set of rules to the case at bench, we hold that the death of
appellant Bayotas extinguished his criminal liability and the civil liability
based solely on the act complained of, i.e., rape. Consequently, the appeal is
hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs
de oficio.
SO ORDERED.
G.R. No. 157472 September 28, 2007
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed
by SSGT. Jose M. Pacoy1 (petitioner) seeking to annul and set aside the
Orders dated October 25, 20022 and December 18, 20023 issued by Presiding
Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC),
Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against
petitioner committed as follows:
However, on the same day and after the arraignment, the respondent judge
issued another Order,6 likewise dated September 12, 2002, directing the trial
prosecutor to correct and amend the Information to Murder in view of the
aggravating circumstance of disregard of rank alleged in the Information
which public respondent registered as having qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by crossing
out the word "Homicide" and instead wrote the word "Murder" in the caption
and in the opening paragraph of the Information. The accusatory portion
remained exactly the same as that of the original Information for Homicide,
with the correction of the spelling of the victims name from "Escuita" to
"Escueta."7
On October 8, 2002, the date scheduled for pre-trial conference and trial,
petitioner was to be re-arraigned for the crime of Murder. Counsel for
petitioner objected on the ground that the latter would be placed in double
jeopardy, considering that his Homicide case had been terminated without
his express consent, resulting in the dismissal of the case. As petitioner
refused to enter his plea on the amended Information for Murder, the public
respondent entered for him a plea of not guilty.8
In an Order10 dated October 25, 2002,11 the respondent judge denied the
Motion to Quash. He ruled that a claim of former acquittal or conviction does
not constitute double jeopardy and cannot be sustained unless judgment was
rendered acquitting or convicting the defendant in the former prosecution;
that petitioner was never acquitted or convicted of Homicide, since the
Information for Homicide was merely corrected/or amended before trial
commenced and did not terminate the same; that the Information for
Homicide was patently insufficient in substance, so no valid proceedings
could be taken thereon; and that with the allegation of aggravating
circumstance of "disregard of rank," the crime of Homicide is qualified to
Murder.
In his Order dated December 18, 2002,12 the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
Unless ordered otherwise by the Highest Court, the presiding judge shall
continue hearing this case. Further, the Order dated October 25, 2002 is
reconsidered and the original information charging the crime of homicide
stands.13
On April 30, 2003, petitioner filed herein petition for certiorari on the
following grounds:
Petitioner next contends that the respondent judge gravely abused his
discretion when he denied the Motion to Quash the Information for Murder,
considering that the original Information for Homicide filed against him was
terminated without his express consent; thus, prosecuting him for the same
offense would place him in double jeopardy.
Petitioner further argues that although the respondent judge granted his
Motion for Reconsideration, he did not in fact grant the motion, since
petitioner's prayer was for the respondent judge to grant the Motion to
Quash the Information for Murder on the ground of double jeopardy; that his
Motion for Reconsideration did not seek the reinstatement of the Information
for Homicide upon the dismissal of the Information for Murder, as he would
again be placed in double jeopardy; thus, the respondent judge committed
grave abuse of discretion in reinstating the Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's
Order reinstating the Information to Homicide after initially motu proprio
ordering its amendment to Murder renders herein petition moot and
academic; that petitioner failed to establish the fourth element of double
jeopardy, i.e., the defendant was acquitted or convicted, or the case against
him was dismissed or otherwise terminated without his consent; that
petitioner confuses amendment with substitution of Information; that the
respondent judge's Order dated September 12, 2002 mandated an
amendment of the Information as provided under Section 14, Rule 110 of the
Revised Rules of Criminal Procedure; and that amendments do not entail
dismissal or termination of the previous case.
Private respondent Col. Olimpio Escueta, father of the victim, filed his
Comment alleging that no grave abuse of discretion was committed by the
respondent judge when he denied petitioner's Motion to Quash the Amended
Information, as petitioner was not placed in double jeopardy; that the
proceedings under the first Information for homicide has not yet
commenced, and the case was not dismissed or terminated when the
Information was amended.
In his Reply, petitioner reiterates his contention that the amendment of the
charge of Homicide to Murder after his arraignment would place him in
double jeopardy, considering that said amendment was without his express
consent; and that such amendment was tantamount to a termination of the
charge of Homicide.
In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and substitution
of information under the Rules of Court. It also involves the issue of double
jeopardy, one of the fundamental rights of the citizens under the Constitution
which protects the accused not against the peril of second punishment but
against being tried for the same offense. These important legal questions
and in order to prevent further delay in the trial of the case warrant our
relaxation of the policy of strict observance of the judicial hierarchy of courts.
Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged and
arraigned for Murder which involve the same offense. The petitioner argued
that the termination of the information for Homicide without his express
consent is equivalent to his acquittal. Thus, to charge him again, this time for
Murder, is tantamount to placing the petitioner in Double Jeopardy.18
xxx
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy, and may also require the witnesses to
give bail for their appearance at the trial.
SEC. 19. When mistake has been made in charging the proper offense. -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information.
The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the
information or complaint.
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the
first information. In this connection, an offense may be said to necessarily
include another when some of the essential elements or ingredients of the
former, as this is alleged in the information, constitute the latter. And, vice-
versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those
constituting the latter.20
In the present case, the change of the offense charged from Homicide to
Murder is merely a formal amendment and not a substantial amendment or a
substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the Information
shows that the only change made was in the caption of the case; and in the
opening paragraph or preamble of the Information, with the crossing out of
word "Homicide" and its replacement by the word "Murder." There was no
change in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court. The averments in the amended
Information for Murder are exactly the same as those already alleged in the
original Information for Homicide, as there was not at all any change in the
act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any
qualifying circumstance. Thus, we find that the amendment made in the
caption and preamble from "Homicide" to "Murder" as purely formal.21
Section 14, Rule 110 also provides that in allowing formal amendments in
cases in which the accused has already pleaded, it is necessary that the
amendments do not prejudice the rights of the accused. The test of whether
the rights of an accused are prejudiced by the amendment of a complaint or
information is whether a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made;
and when any evidence the accused might have would be inapplicable to the
complaint or information.22 Since the facts alleged in the accusatory portion
of the amended Information are identical with those of the original
Information for Homicide, there could not be any effect on the prosecution's
theory of the case; neither would there be any possible prejudice to the
rights or defense of petitioner.
xxxx
(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense
of double jeopardy may prosper, to wit:
Thus, there is double jeopardy when the following requisites are present: (1)
a first jeopardy attached prior to the second; (2) the first jeopardy has been
validly terminated; and (3) a second jeopardy is for the same offense as in
the first.24
As to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a
valid plea has been entered; and (e) when the accused was acquitted or
convicted, or the case was dismissed or otherwise terminated without his
express consent.25
The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the same
upon the filing of a new Information charging the proper offense as
contemplated under the last paragraph of Section 14, Rule 110 of the Rules
of Court -- which, for convenience, we quote again --
SEC. 19.- When mistake has been made in charging the proper offense -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information.
Evidently, the last paragraph of Section 14, Rule 110, applies only when the
offense charged is wholly different from the offense proved, i.e., the accused
cannot be convicted of a crime with which he was not charged in the
information even if it be proven, in which case, there must be a dismissal of
the charge and a substitution of a new information charging the proper
offense. Section 14 does not apply to a second information, which involves
the same offense or an offense which necessarily includes or is necessarily
included in the first information. In this connection, the offense charged
necessarily includes the offense proved when some of the essential elements
or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or
form a part of those constituting the latter.28
Anent the last issue, petitioner contends that respondent judge gravely
abused his discretion in ordering that the original Information for Homicide
stands after realizing that disregard of rank does not qualify the killing to
Murder. That ruling was again a violation of his right against double jeopardy,
as he will be prosecuted anew for a charge of Homicide, which has already
been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of
discretion.
A reading of the Order dated December 18, 2002 showed that the
respondent judge granted petitioner's motion for reconsideration, not on the
ground that double jeopardy exists, but on his realization that "disregard of
rank" is a generic aggravating circumstance which does not qualify the killing
of the victim to murder. Thus, he rightly corrected himself by reinstating the
original Information for Homicide. The requisite of double jeopardy that the
first jeopardy must have attached prior to the second is not present,
considering that petitioner was neither convicted nor acquitted; nor was the
case against him dismissed or otherwise terminated without his express
consent.29
SO ORDERED.
REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus, petitioner
principally seeks: (1) to nullify the order 1 of respondent judge admitting the
amended information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by
order of respondent judge when petitioner refused to be arraigned on the
amended information for lack of preliminary investigation therefor; (3) to
nullify the appointment of a counsel de oficio/PAO lawyer to represent
petitioner; (4) to prohibit respondent judge from "over-speedy and
preferential scheduling of the trial of the aforementioned criminal case;" and
(5) to compel respondent judge to order preliminary investigation of the
crime charged in the amended information.
2
Petitioner was originally charged on July 19, 1991 in an information for the
crime of frustrated murder allegedly committed as follows:
After the prosecution had rested its case, petitioner was allowed to file a
motion for leave to file a demurrer to evidence. However, before the said
motion could be filed, Maureen Navarro Hultman died.
Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion
3
for leave of court to file an amended information and to admit said
amended information. The amended information, 4 filed on October 31, 1991,
reads:
of the prosecution. On November 13, 1991, the trial court issued the
questioned order admitting the amended information.
In our resolution of January 14, 1992, we required the Solicitor General to file
a comment to the basic petition. It appearing from a further review of the
record that the operative facts and determinant issues involved in this case
are sufficiently presented in the petition and the annexes thereto, both in
regard to the respective positions of petitioner and respondents, the Court
has decided to dispense with the aforesaid comment to obviate needless
delay in fairness to petitioner.
We find no merit in the petition. There are sufficient legal and jurisprudential
moorings for the orders of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the
information or complaint.
2. Amendment before plea has been entered can be effected without leave
of court, but substitution of information must be with leave of court as the
original information has to be dismissed;
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the
first information. In this connection, an offense may be said to necessarily
include another when some of the essential elements or ingredients of the
former, as this is alleged in the information, constitute the latter. And, vice-
versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those
constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a
stage in the execution of the crime of murder, hence the former is
necessarily included in the latter. It is indispensable that the essential
element of intent to kill, as well as qualifying circumstances such as
treachery or evident premeditation, be alleged in both an information for
frustrated murder and for murder, thereby meaning and proving that the
same material allegations are essential to the sufficiency of the informations
filed for both. This is because, except for the death of the victim, the
essential elements of consummated murder likewise constitute the essential
ingredients to convict herein petitioner for the offense of frustrated murder.
Petitioner would insist, however, that the additional allegation on the fact of
death of the victim Maureen Navarro Hultman constitutes a substantial
amendment which may no longer be allowed after a plea has been entered.
The proposition is erroneous and untenable.
We repeat that after arraignment and during the trial, amendments are
allowed, but only as to matters of form and provided that no prejudice is
caused to the rights of the accused. 15 The test of whether an amendment is
only of form and an accused is not prejudiced by such amendment has been
said to be whether or not a defense under the information as it originally
stood would be equally available after the amendment is made, and whether
or not any evidence the accused might have would be equally applicable to
the information in the one form as in the other; if the answer is in the
affirmative, the amendment is one of form and not of substance. 16
WHEREFORE, it being clearly apparent that respondent judge did not commit
the errors speciously attributed to him, the extraordinary writs prayed for are
hereby DENIED and the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Adm. Case No. 7549 August 29, 2008
DECISION
NACHURA, J.:
The instant controversy arose from a complaint for dereliction of duty and
gross ignorance of the law by Aurelio M. Sierra against City Prosecutor of
Manila Jhosep Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla,
Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando
Velasco.
On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed
several cases before the Office of the City Prosecutor of Manila for
Misrepresentation through Deceit and Syndicated Large Scale Fraud in Land
Titling with Conspiracy, Land Grabbing, Falsification of Public Document and
Economic Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal
respondents therein, namely: Alfredo C. Ramos, Presentacion Ramos, George
S.K. Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not appear
during the scheduled hearing. However, Alfredo and Presentacion Ramos
appeared in the morning of that day ahead of the complainant in which they
submitted their respective counter-affidavits, subscribed and sworn to before
ACP Yap. The respondents asked that they be allowed to submit their
counter-affidavits ahead of the scheduled hearing because they had an
urgent matter to attend to in the afternoon. In the case of George S.K. Ty and
Mr. Cayaban, their respective counter-affidavits were submitted by their
lawyers during the scheduled hearing in the afternoon, already subscribed
and sworn to before a Pasig Prosecutor. Atty. Leonardo did not submit any
counter-affidavit.
Because of ACP Yaps failure to require the presence of respondents in said
cases simultaneously with the complainant, Mr. Sierra asked for the
prosecutors inhibition. The cases were then re-raffled to the respondent ACP
Marlo Campanilla who likewise did not require the presence of the
respondents in the preliminary investigation. Because of this, he too was
asked to inhibit from the cases by complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled the
cases in the same manner as the two other prosecutors before him. City
Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the
correctness of the manner in which their investigating prosecutors handled
the cases.
On April 26, 2007, Sierra filed a complaint with the Supreme Court for
dereliction of duty and gross ignorance of the law against City Prosecutor
Lopez, 1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the
parties must appear together before the investigating prosecutor during
preliminary investigation; (2) whether the counter-affidavits of the
respondents should be sworn to only before the investigating prosecutor; and
(3) whether the investigating prosecutor erred in denying the request of the
complainant for clarificatory questioning.
The Supreme Court Third Division then issued a Resolution dated July 25,
2008 requiring respondents to comment on the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation, as follows:
(a) The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his witnesses,
as well as other supporting documents to establish probable cause.
They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and
sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary
public, each of whom must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to
continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and
documents.
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent
shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter-
affidavits, shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section, with copies thereof furnished by him to
the complainant. The respondent shall not be allowed to file a motion
to dismiss in lieu of a counter-affidavit.
(e) The investigating officer may set a hearing if there are facts and
issues to be clarified from a party or a witness. The parties can be
present at the hearing but without the right to examine or cross-
examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the
period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground to hold the
respondent for trial.
This provision of the Rules does not require a confrontation between the
parties. Preliminary investigation is ordinarily conducted through submission
of affidavits and supporting documents, through the exchange of pleadings.
Lastly, we hold that the investigating prosecutors did not abuse their
discretion when they denied the request of the complainant for the conduct
of clarificatory questioning. Under paragraph (e) of Section 3 above, the
conduct of clarificatory questioning is discretionary upon the prosecutor.
Indeed, we already held in Webb v. De Leon2 that the decision to call
witnesses for clarificatory questions is addressed to the sound discretion of
the investigator, and the investigator alone.
SO ORDERED.