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G.R. No.

181658 August 7, 2013

LEE PUE LIONG A.K.A. PAUL LEE, PETITIONER,


vs.
CHUA PUE CHIN LEE, RESPONDENT.

DECISION

VILLARAMA, JR., J.:

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.

The facts follow:

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 July 19, 1999, petitioners siblings including respondent and some


unidentified persons took over and barricaded themselves inside the
premises of a factory owned by CKC. Petitioner and other factory employees
were unable to enter the factory premises. This incident led to the filing of
Criminal Case Nos. 971-V-99, 55503 to 55505 against Nixon Lee and 972-V-
99 against Nixon Lee, Andy Lee, Chua Kipsi a.k.a. Jensen Chua and
respondent, which are now pending in different courts in Valenzuela City.7

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.

Respondent, joined by her brother Nixon Lee, filed an Omnibus Motion


praying, among others, that the September 17, 1999 Order be set aside
claiming that petitioner knew fully well that respondent was in possession of
the said Owners Duplicate Copy, the latter being the Corporate Treasurer
and custodian of vital documents of CHI. Respondent added that petitioner
merely needs to have another copy of the title because he planned to
mortgage the same with the Planters Development Bank. Respondent even
produced the Owners Duplicate Copy of TCT No. 232238 in open court. Thus,
on November 12, 1999, the RTC recalled and set aside its September 17,
1999 Order.13

In a Complaint-Affidavit14 dated May 9, 2000 filed before the City Prosecutor


of Manila, respondent alleged the following:

1. I am a stockholder, Board Member, and duly elected treasurer of


Centillion Holdings, Inc. (CHI), which corporation is duly organized and
existing under Philippine laws.

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

7. Paul Lee made a willful and deliberate assertion of falsehood in his


verified petition, affidavit and testimony, as he perfectly knew that I
was in possession of the owners duplicate copy of TCT No. 232238.

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.

9. I and Paul Lee are involved in an intra-corporate dispute, which


dispute is now pending with the SEC.

10. Paul Lee needed to have a new owners duplicate of the


aforementioned TCT so that he could mortgage the property covered
thereby with the Planters Development Bank, even without my
knowledge and consent as well as the consent and knowledge of my
brother Nixon Lee who is likewise a shareholder, board member and
officer of CHI.

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.

x x x x15 (Italics supplied.)

On June 7, 2000, respondent executed a Supplemental Affidavit16 to clarify


that she was accusing petitioner of perjury allegedly committed on the
following occasions: (1) by declaring in the VERIFICATION the veracity of the
contents in his petition filed with the RTC of Manila concerning his claim that
TCT No. 232238 was in his possession but was lost; (2) by declaring under
oath in his affidavit of loss that said TCT was lost; and (3) by testifying under
oath that the said TCT was inadvertently lost from his files.

The Investigating Prosecutor recommended the dismissal of the case.


However, in the Review Resolution17 dated December 1, 2000 issued by First
Assistant City Prosecutor Eufrosino A. Sulla, the recommendation to dismiss
the case was set aside. Thereafter, said City Prosecutor filed the
Informations18 docketed as Criminal Case Nos. 352270-71 CR for perjury,
punishable under Article 18319 of the Revised Penal Code, as amended,
against petitioner before the MeTC of Manila, Branch 28.

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.

Complying with the MeTCs directive, petitioner filed the aforementioned


Omnibus Motion23 asserting that in the crime of perjury punishable under
Article 183 of the Revised Penal Code, as amended, there is no mention of
any private offended party. As such, a private prosecutor cannot intervene
for the prosecution in this case. Petitioner argued that perjury is a crime
against public interest as provided under Section 2, Chapter 2, Title IV, Book
2 of the Revised Penal Code, as amended, where the offended party is the
State alone. Petitioner posited that there being no allegation of damage to
private interests, a private prosecutor is not needed. On the other hand, the
Prosecution filed its Opposition24 to petitioners Omnibus Motion.

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

The MeTC also denied petitioners motion for reconsideration.27

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.

By Decision29 dated May 31, 2007, the CA ruled in favor of respondent,


holding that the presence of the private prosecutor who was under the
control and supervision of the public prosecutor during the criminal
proceedings of the two perjury cases is not proscribed by the rules. The CA
ratiocinated that respondent is no stranger to the perjury cases as she is the
private complainant therein, hence, an aggrieved party.30 Reiterating the
MeTCs invocation of our ruling in Lim Tek Goan v. Yatco31 as cited by former
Supreme Court Associate Justice Florenz D. Regalado in his Remedial Law
Compendium,32 the CA ruled that "the offended party, who has neither
reserved, waived, nor instituted the civil action may intervene, and such
right to intervene exists even when no civil liability is involved."33

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.

Petitioner filed a Motion for Reconsideration34 but the CA denied it under


Resolution35 dated January 31, 2008.

Hence, this petition raising the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED A


GRAVE ERROR WHEN IT UPHELD THE RESOLUTION OF THE
METROPOLITAN TRIAL COURT THAT THERE IS A PRIVATE OFFENDED
PARTY IN THE CRIME OF PERJURY, A CRIME AGAINST PUBLIC INTEREST;
AND

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN


IT UPHELD THE RESOLUTIONS OF THE LOWER COURT WHICH IN TURN
UPHELD THE RIGHT OF RESPONDENT, AN ALLEGED STOCKHOLDER OF
CHI, TO INTERVENE IN THE CRIMINAL CASE FOR PERJURY AS PRIVATE
COMPLAINANT ON BEHALF OF THE CORPORATION WITHOUT ITS
AUTHORITY.36

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

The petition has no merit.

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

Section 1, Rule 111 of the Revised Rules of Criminal Procedure, as amended,


provides:

SECTION 1. Institution of criminal and civil actions.(a) When a criminal


action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the criminal action.
x x x x (Emphasis supplied)

For the recovery of civil liability in the criminal action, the appearance of a
private prosecutor is allowed under Section 16 of Rule 110:

SEC. 16. Intervention of the offended party in criminal action.Where the


civil action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111, the offended party may intervene by counsel in the
prosecution of the offense. (Emphasis supplied.)

Section 12, Rule 110 of the Revised Rules of Criminal Procedure, as


amended, defines an offended party as "the person against whom or against
whose property the offense was committed." In Garcia v. Court of Appeals,44
this Court rejected petitioners theory that it is only the State which is the
offended party in public offenses like bigamy. We explained that from the
language of Section 12, Rule 10 of the Rules of Court, it is reasonable to
assume that the offended party in the commission of a crime, public or
private, is the party to whom the offender is civilly liable, and therefore the
private individual to whom the offender is civilly liable is the offended party.

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

In Chua v. Court of Appeals,49 as a result of the complaint-affidavit filed by


private respondent who is also the corporations Treasurer, four counts of
falsification of public documents (Minutes of Annual Stockholders Meeting)
was instituted by the City Prosecutor against petitioner and his wife. After
private respondents testimony was heard during the trial, petitioner moved
to exclude her counsels as private prosecutors on the ground that she failed
to allege and prove any civil liability in the case. The MeTC granted the
motion and ordered the exclusion of said private prosecutors. On certiorari to
the RTC, said court reversed the MeTC and ordered the latter to allow the
private prosecutors in the prosecution of the civil aspect of the criminal case.
Petitioner filed a petition for certiorari in the CA which dismissed his petition
and affirmed the assailed RTC ruling.

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.

Petitioner avers, however, that respondents testimony in the inferior court


did not establish nor prove any damages personally sustained by her as a
result of petitioners alleged acts of falsification. Petitioner adds that since no
personal damages were proven therein, then the participation of her counsel
as private prosecutors, who were supposed to pursue the civil aspect of a
criminal case, is not necessary and is without basis.

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.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision


dated May 31, 2007 and the Resolution dated January 31, 2008 of the Court
of Appeals in CA-G.R. SP No. 81510 are hereby AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.


Associate Justice

ANITA MANGILA, Petitioner,


vs.
JUDGE HERIBERTO M. PANGILINAN, ASST. CITY PROSECUTOR II LUCIA
JUDY SOLINAP, and NATIONAL BUREAU OF INVESTIGATION (DIRECTOR
REYNALDO WYCOCO), Respondents.

DECISION

BERSAMIN, J.:

Restraint that is lawful and pursuant to a court process cannot be inquired


into through habeas corpus.

Antecedents

On June 16, 2003, seven criminal complaints charging petitioner Anita


Mangila and four others with syndicated estafa in violation of Article 315 of
the Revised Penal Code, in relation to Presidential Decree No. 1689, and with
violations of Section 7(b) of Republic Act No. 8042 (Migrant Workers and
Overseas Filipino Act of 1995) were filed in the Municipal Trial Court in Cities
in Puerto Princesa City (MTCC), docketed as Criminal Cases No. 16916 to No.
16922. The complaints arose from the recruiting and promising of
employment by Mangila and the others to the private complainants as
overseas contract workers in Toronto, Canada, and from the collection of visa
processing fees, membership fees and on-line application the private
complainants without lawful authority from the Philippine Overseas
Employment Administration (POEA).1

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

As a consequence, Mangila was arrested on June 18, 2003 and detained at


the headquarters on Taft Avenue, Manila of the National Bureau of
Investigation (NBI).4

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

In its resolution promulgated on October 14, 2003,6 the CA denied the


petition for habeas corpus for its lack of merit, explaining:

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

Hence, this appeal via petition for review on certiorari.

Issue

Did the CA err in ruling that habeas corpus was not the proper remedy to
obtain the release of Mangila from detention?

Ruling of the Court

The petition for review lacks merit.

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:

A petition for the issuance of a writ of habeas corpus is a special proceeding


governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings,
it was held that habeas corpus is that of a civil proceeding in character. It
seeks the enforcement of civil rights. Resorting to the writ is not to inquire
into the criminal act of which the complaint is made, but into the right of
liberty, notwithstanding the act and the immediate purpose to be served is
relief from illegal restraint. The rule applies even when instituted to arrest a
criminal prosecution and secure freedom. When a prisoner petitions for a writ
of habeas corpus, he thereby commences a suit and prosecutes a case in
that court.

Habeas corpus is not in the nature of a writ of error; nor intended as


substitute for the trial courts function. It cannot take the place of appeal,
certiorari or writ of error. The writ cannot be used to investigate and consider
questions of error that might be raised relating to procedure or on the merits.
The inquiry in a habeas corpus proceeding is addressed to the question of
whether the proceedings and the assailed order are, for any reason, null and
void. The writ is not ordinarily granted where the law provides for other
remedies in the regular course, and in the absence of exceptional
circumstances. Moreover, habeas corpus should not be granted in advance
of trial. The orderly course of trial must be pursued and the usual remedies
exhausted before resorting to the writ where exceptional circumstances are
extant. In another case, it was held that habeas corpus cannot be issued as a
writ of error or as a means of reviewing errors of law and irregularities not
involving the questions of jurisdiction occurring during the course of the trial,
subject to the caveat that constitutional safeguards of human life and liberty
must be preserved, and not destroyed. It has also been held that where
restraint is under legal process, mere errors and irregularities, which do not
render the proceedings void, are not grounds for relief by habeas corpus
because in such cases, the restraint is not illegal.

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem


when instituted for the sole purpose of having the person of restraint
presented before the judge in order that the cause of his detention may be
inquired into and his statements final. The writ of habeas corpus does not act
upon the prisoner who seeks relief, but upon the person who holds him in
what is alleged to be the unlawful authority. Hence, the only parties before
the court are the petitioner (prisoner) and the person holding the petitioner
in custody, and the only question to be resolved is whether the custodian has
authority to deprive the petitioner of his liberty. The writ may be denied if the
petitioner fails to show facts that he is entitled thereto ex merito justicias.

A writ of habeas corpus, which is regarded as a "palladium of liberty," is a


prerogative writ which does not issue as a matter of right but in the sound
discretion of the court or judge. It is, however, a writ of right on proper
formalities being made by proof. Resort to the writ is not to inquire into the
criminal act of which a complaint is made but unto the right of liberty,
notwithstanding the act, and the immediate purpose to be served is relief
from illegal restraint. The primary, if not the only object of the writ of habeas
corpus ad subjuciendum, is to determine the legality of the restraint under
which a person is held.11 (Bold underscoring supplied for emphasis)
The object of the writ of habeas corpus is to inquire into the legality of the
detention, and, if the detention is found to be illegal, to require the release of
the detainee. Equally well-settled however, is that the writ will not issue
where the person in whose behalf the writ is sought is out on bail, or is in the
custody of an officer under process issued by a court or judge with
jurisdiction or by virtue of a judgment or order of a court of record.12

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:

Section 2.Officers authorized to conduct preliminary investigations.

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes


cognizable by the proper court in their respective territorial jurisdictions. (2a)

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)

Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:

Section 4.When writ not allowed or discharge authorized. If it appears that


the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall not
be allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
(Bold underscoring supplied for emphasis)

Still, Mangila harps on the procedural flaws supposedly committed by Judge


Pangilinan in her attempt to convince the Court on her entitlement to the
issuance of the writ of habeas corpus. She insists that the illegality and
invalidity of the warrant of arrest because of its having been issued without
an exhaustive examination of the complainants and the witnesses in writing
and under oath; without a prior finding of probable cause; and without
consideration of the necessity for its issuance in order not to frustrate the
ends of justice were enough reasons for granting the writ of habeas corpus.14

Mangila fails to persuade.


To begin with, Judge Pangilinan issued the order of arrest after examining
Palayon, one of the complainants against Mangila and her cohorts. If he, as
the investigating judge, considered Palayons evidence sufficient for finding
probable cause against her and her cohorts, which finding the Court
justifiably presumes from his act of referring the case and its records to the
Office of the City Prosecutor on the day immediately following the
preliminary investigation he conducted, her petition for habeas corpus could
not be the proper remedy by which she could assail the adequacy of the
adverse finding. Even granting that there was a failure to adhere to the law
or rule, such failure would not be the equivalent of a violation of her
constitutional rights.15

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

WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14,


2003 and November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the
petitioner to pay the costs of suit.

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

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr.,


resolving the petition for review reversed the resolution of the Office of the
Provincial Fiscal and directed the fiscal to move for immediate dismissal of
the information filed against the accused. 8 A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10,
1978 with the trial court, 9 attaching thereto a copy of the letter of
Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition thereto. 10 On November 24,
1978 the Judge denied the motion and set the arraigniment stating:

ORDER

For resolution is a motion to dismiss this rase filed by the


procuting fiscal premised on insufficiency of evidence, as
suggested by the Undersecretary of Justice, evident from Annex
"A" of the motion wherein, among other things, the Fiscal is
urged to move for dismissal for the reason that the check
involved having been issued for the payment of a pre-existing
obligation the Hability of the drawer can only be civil and not
criminal.

The motion's thrust being to induce this Court to resolve the


innocence of the accused on evidence not before it but on that
adduced before the Undersecretary of Justice, a matter that not
only disregards the requirements of due process but also erodes
the Court's independence and integrity, the motion is considered
as without merit and therefore hereby DENIED.

WHEREFORE, let the arraignment be, as it is hereby set for


December 18, 1978 at 9:00 o'clock in the moming.

SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the Court of Appeals that was docketed as CA-
G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by
the Court of Appeals against the threatened act of arraignment of the
accused until further orders from the Court. 13 In a decision of October 25,
1979 the Court of Appeals dismissed the petition and lifted the restraining
order of January 23, 1979. 14 A motion for reconsideration of said decision
filed by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby
petitioner prays that said decision be reversed and set aside, respondent
judge be perpetually enjoined from enforcing his threat to proceed with the
arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering
respondent Judge to dismiss the said case, and declaring the obligation of
petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from notice.
In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent to
the petition asking that the petition be dismissed. In the resolution of
February 5, 1981, the Second Division of this Court resolved to transfer this
case to the Court En Banc. In the resolution of February 26, 1981, the Court
En Banc resolved to give due course to the petition.

Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that respondent
Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon the
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. 18 The reason
for placing the criminal prosecution under the direction and control of the
fiscal is to prevent malicious or unfounded prosecution by private persons.
19 It cannot be controlled by the complainant. 20 Prosecuting officers under
the power vested in them by law, not only have the authority but also the
duty of prosecuting persons who, according to the evidence received from
the complainant, are shown to be guilty of a crime committed within the
jurisdiction of their office. 21 They have equally the legal duty not to
prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case. 22

It is through the conduct of a preliminary investigation 23 that the fiscal


determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's discretion
and control of the criminal prosecution. It is not prudent or even permissible
for a Court to compel the fiscal to prosecute a proceeding originally initiated
by him on an information, if he finds that the evidence relied upon by him is
insufficient for conviction. 24 Neither has the Court any power to order the
fiscal to prosecute or file an information within a certain period of time, since
this would interfere with the fiscal's discretion and control of criminal
prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the
same commit no error. 26 The fiscal may re-investigate a case and
subsequently move for the dismissal should the re-investigation show either
that the defendant is innocent or that his guilt may not be established
beyond reasonable doubt. 27 In a clash of views between the judge who did
not investigate and the fiscal who did, or between the fiscal and the offended
party or the defendant, those of the Fiscal's should normally prevail. 28 On
the other hand, neither an injunction, preliminary or final nor a writ of
prohibition may be issued by the courts to restrain a criminal prosecution 29
except in the extreme case where it is necessary for the Courts to do so for
the orderly administration of justice or to prevent the use of the strong arm
of the law in an op pressive and vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or
control. The same is subject to the approval of the provincial or city fiscal or
the chief state prosecutor as the case maybe and it maybe elevated for
review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of
Justice may direct that a motion to dismiss the rase be filed in Court or
otherwise, that an information be filed in Court. 31

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


The Court thereby acquires jurisdiction over the case, which is the authority
to hear and determine the case. 32 When after the filing of the complaint or
information a warrant for the arrest of the accused is issued by the trial court
and the accused either voluntarily submited himself to the Court or was duly
arrested, the Court thereby acquired jurisdiction over the person of the
accused. 33

The preliminary investigation conducted by the fiscal for the purpose of


determining whether a prima facie case exists warranting the prosecution of
the accused is terminated upon the filing of the information in the proper
court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it
proper to conduct a reinvestigation of the case, at such stage, the permission
of the Court must be secured. After such reinvestigation the finding and
recommendations of the fiscal should be submitted to the Court for
appropriate action. 34 While it is true that the fiscal has the quasi judicial
discretion to determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the rase thereafter should
be addressed for the consideration of the Court, 35 The only qualification is
that the action of the Court must not impair the substantial rights of the
accused. 36 or the right of the People to due process of law. 36a

Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a
motion to dismiss was submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the trial on the
merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? A state prosecutor to handle the
case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to
handle the prosecution of the case thereby defying the superior order of the
Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to
see that justice is done and not necessarily to secure the conviction of the
person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its
own independent judgment as to whether the accused should be convicted
or acquitted. The fiscal should not shirk from the responsibility of appearing
for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a
private prosecutor for then the entire proceedings will be null and void. 37
The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to
the private prosecutor but still under his direction and control. 38

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


is filed in Court any disposition of the case as its dismissal or the conviction
or acquittal of the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his
opinion on the trial court. The Court is the best and sole judge on what to do
with the case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation.

In order therefor to avoid such a situation whereby the opinion of the


Secretary of Justice who reviewed the action of the fiscal may be disregarded
by the trial court, the Secretary of Justice should, as far as practicable,
refrain from entertaining a petition for review or appeal from the action of
the fiscal, when the complaint or information has already been filed in Court.
The matter should be left entirely for the determination of the Court.

WHEREFORE, the petition is DISMISSED for lack of merit without


pronouncement as to costs.

SO ORDERED.
G.R. No. 113930 March 5, 1996

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.,


LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI,
petitioners,
vs.
THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his
capacity as the Presiding Judge of the Regional Trial Court, Quezon
City, Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F.
GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as
Members of the Department of Justice "349" Committee, and the
CITY PROSECUTOR OF QUEZON CITY, respondents.

J. ROBERT DELGADO, petitioner-Intervenor.

DAVIDE, JR., J.:p

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:

Respondent Judge acted with grave abuse of discretion when he


ordered the arrest of the petitioners without examining the
record of the preliminary investigation and in determining for
himself on the basis thereof the existence of probable cause.

II

The Department of Justice "349" Committee acted with grave


abuse of discretion when it refused to review the City
Prosecutor's Joint Resolution and dismissed petitioner's appeal
therefrom.

III

The Court of Appeals acted with grave abuse of discretion when


it upheld the subject order directing the issuance of the warrants
of arrest without assessing for itself whether based on such
records there is probable cause against petitioners.

IV

The facts on record do not establish prima facie probable cause


and Criminal Case No. Q-93-43198 should have been dismissed. 5

The antecedents of this petition are not disputed.

Several thousand holders 6 of "349" Pepsi crowns in connection with the


Pepsi Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed with
the Office of the City Prosecutor of Quezon City complaints against the
petitioner's in their respective capacities as Presidents or Chief Executive
Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of
PEPSI, and also against other officials of PEPSI. The complaints respectively
accuse the petitioners and the other PEPSI officials of the following crimes:
(a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer
Act of the Philippines; (c) violation of E.O. No. 913; 8 and (d) violation of Act
No. 2333, entitled "An Act Relative to Untrue, Deceptive and Misleading
Advertisements," as amended by Act No. 3740. 9

After appropriate proceedings, the investigating prosecutor, Ramon M.


Gerona, released on 23 March 1993 a Joint Resolution 10 where he
recommended the filing of an information against the petitioners and others
for the violation of Article 318 of the Revised Penal Code and the dismissal of
the complaints for the violation of Article 315, 2(d) of the Revised Penal
Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O.
No. 913. The dispositive portion thereof reads as follows:

In view of all the foregoing, it is recommended that:

1. The attached information be filed against respondents Paul G.


Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.
Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R.
Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan,
Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for
estafa under Article 318, Revised Penal Code, while the
complaint for violation of Article 315, 2(d), Revised Penal Code
against same respondents Juanito R. Ignacio, R. Sobong, R.O.
Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N.
Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W.
Sampaico, Winefreda O. Madarang, Jack Gravey, Les G. Ham,
Corazon Pineda, Edward S. Serapio, Alex O. Caballes, Sandy
Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja,
Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San
Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif
H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be
dismissed;

2. The complaints against all respondents for violation of R.A.


7394 otherwise known as the Consumer Act of the Philippines
and violation of Act 2333 as amended by Act 3740 and E.O. 913
be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns
Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged
to be likewise winning ones be further investigated to afford
respondents a chance to submit their counter-evidence. 11

On 6 April 1993, City Prosecutor Candido V. Rivera approved the


recommendation with the modification that Rosemarie Vera, Quintin Gomez,
Jr., and Chito Gonzales be excluded from the charge on the ground of
insufficiency of evidence. 12

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:

The undersigned 1st Assistant City Prosecutor accuses PAUL G.


ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS
P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ,
BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR.
and WONG FONG FUI, of the crime of ESTAFA, committed as
follows:

That in the month of February, 1992, in Quezon City, Philippines


and for sometime prior and subsequent thereto, the above-
named
accused

Paul G. Roberts, Jr. ) being then the Presidents

Rodolfo G. Salazar ) and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman

of the Board of Directors

Luis P. Lorenzo, Jr. ) being then the Vice

Chairman of the Board

J. Roberto Delgado )

Amaury R. Gutierrez ) being then Members of


Bayani N. Fabic ) the Board

Jose Yulo, Jr. )

Esteban B. Pacannuayan, )

Jr. and

Wong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING


with one another, with intent of gain, by means of deceit,
fraudulent acts or false pretenses, executed prior to or
simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private
complainants whose names with their prizes claimed appear in
the attached lists marked as Annexes "A" to "A-46"; "B" to "-33";
"C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in
the following manner: on the date and in the place
aforementioned, said accused pursuant to their conspiracy,
launched the Pepsi Cola Products Philippines, Inc. "Number Fever
Promotion" from February 17 to May 8, 1992 later extended to
May 11-June 12, 1992 and announced and advertised in the
media that "all holders of crowns and/or caps of Pepsi, Mirinda,
Mountain Dew and Seven-up bearing the winning 3-digit number
will win the full amount of the prize printed on the crowns/caps
which are marked with a seven-digit security code as a measure
against tampering or faking of crowns and each and every
number has its own unique matching security code", enticing the
public to buy Pepsi softdrinks with aforestated alluring and
attractive advertisements to become millionaires, and by virtue
of such representations made by the accused, the said
complainants bought Pepsi softdrinks, but, the said accused after
their TV announcement on May 25, 1992 that the winning
number for the next day was "349", in violation of their
aforecited mechanics, refused as they still refuse to redeem/pay
the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi
softdrinks with crowns/caps bearing number "349" with security
codes L-2560-FQ and L-3560-FQ, despite repeated demands
made by the complainants, to their damage and prejudice to the
extent of the amount of the prizes respectively due them from
their winning "349" crowns/caps, together with such amounts
they spent in going to and from the Office of Pepsi to claim their
prizes and such other amounts used in buying Pepsi softdrinks
which the complainants normally would not have done were it
not for the false, fraudulent and deceitful posters of Pepsi Cola
Products Philippines, Inc.

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 morning of 27 April 1993, private prosecutor Julio Contreras filed an


Ex-Parte Motion for Issuance of Warrants of Arrest. 19

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

On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a


corresponding motion 24 to admit it. The amendments merely consist in the
statement that the complainants therein were only "among others" who were
defrauded by the accused and that the damage or prejudice caused
amounted "to several billions of pesos, representing the amounts due them
from their winning '349' crowns/caps." The trial court admitted the amended
information on the same date. 25

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

On 14 May 1993, the petitioners filed a Memorandum in Support of their


Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the
Warrants of Arrest. 28
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying 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 and (2) directing the issuance of the warrants of arrest
"after June 1993" and setting the arraignment on 28 June 1993. 29 Pertinent
portions of the order read as follows:

In the Motion filed by the accused, it is alleged that on April 15,


1993, they filed a petition for review seeking the reversal of the
resolution of City Prosecutor of Quezon City approving the filing
of the case against the accused, claiming that:

1. The resolution constituting [sic] force and duress;

2. There was no fraud or deceit therefore there can


be no estafa;

3. No criminal overt acts by respondents were


proved;

4. Pepsi nor the accused herein made no admission


of guilt before the Department of Trade and Industry;

5. The evidence presented clearly showed no


malicious intent on the part of the accused.

Trial Prosecutor Tirso M. Gavero in his Motion to Defer


Arraignment averred that there is a pending petition for review
with the Department of Justice filed by the accused and the
Office of the City Prosecutor was directed, among other things, to
cause for the deferment of further proceedings pending final
disposition of said Petition by the Department of Justice.

The motions filed by the accused and the Trial Prosecutor are
hereby DENIED.

This case is already pending in this Court for trial. To follow


whatever opinion the Secretary of Justice may have on the
matter would undermine the independence and integrity of this
Court. This Court is still capable of administering justice.

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.

WHEREFORE, let warrant of arrest be issued after June 21, 1993,


and arraignment be set on June 28, 1993, at 9:30 in the morning.

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

I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF


PRELIMINARY INVESTIGATION BEFORE ORDERING THE ARREST OF
PETITIONERS.

II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS


CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER
OFFENSE.

III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED


TO AWAIT THE SECRETARY OF JUSTICE'S RESOLUTION OF
PETITIONERS' APPEAL, AND

IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY


IN THE ORDINARY COURSE OF LAW.

On 15 June 1993, the Court of Appeals issued a temporary restraining order


to maintain the status quo. 31 In view thereof; respondent Judge Asuncion
issued an order on 28 June 1993 32 postponing indefinitely the arraignment of
the petitioners which was earlier scheduled on that date.

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 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid


resolution. The Court of Appeals required the respondents therein to
comment on the said motion. 36

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.

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226


a motion to dismiss the petition 39 on the ground that it has become moot
and academic in view of the dismissal by the DOJ of the petitioners' petition
to review the Joint Resolution. The dismissal by the DOJ is founded on the
following exposition:

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.

In view of the said developments, it would be an exercise in


futility to continue reviewing the instant cases for any further
action on the part of the Department would depend on the sound
discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an
exercise of its discretion. With the issuance of the order dated
May 17, 1993, Trial Court was in effect sending a signal to this
Department that "the determination of the case is within its
exclusive jurisdiction and competence." The rule is that ". . . once
a complaint or information is filed in Court, any disposition of the
case as to dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal
cases even while the case is already in Court, he cannot impose
his opinion on the trial court. The court is the best and sole judge
on what to do with the case before it. . . ." (Crespo vs. Mogul, 151
SCRA 462). 40

On 28 September 1993, the Court of Appeals promulgated a decision 41


dismissing the petition because it had been "mooted with the release by the
Department of Justice of its decision . . . dismissing petitioners' petition for
review by inerrantly upholding the criminal court's exclusive and
unsupplantable authority to control the entire course of the case brought
against petitioners, reiterating with approval the dictum laid down in the
'Crespo' case."

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 petitioners likewise filed a motion to reconsider 44 the aforesaid Court of


Appeals' decision, which the said court denied in its resolution 45 of 9
February 1994. Hence, the instant petition.

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.

Later, the petitioners filed a supplemental motion for reconsideration 48 and a


motion to refer this case to the Court en banc. 49 In its resolution of 14
November 1994, 50 the First Division granted the latter motion and required
the respondents to comment on the supplemental motion for
reconsideration.

In the resolution of 24 November 1994, the Court en banc accepted the


referral.

On 10 October 1995, after deliberating on the motion for reconsideration and


the subsequent pleadings in relation thereto, the Court en banc granted the
motion for reconsideration; reconsidered and set aside the resolution of 19
September 1994; and reinstated the petition. It then considered the case
submitted for decision, "since the parties have exhaustively discussed the
issues in their pleadings, the original records of Criminal Case No. Q-93-
43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and
both the petitioners and the Office of the Solicitor General pray, in effect,
that this Court resolve the issue of probable cause on the basis thereof."

The pleadings of the parties suggest for this Court's resolution the following
key issues:

1. Whether public respondent Judge Asuncion committed grave


abuse of discretion in denying, on the basis of Crespo vs. Mogul,
the motions to suspend proceedings and hold in abeyance the
issuance of warrants of arrest and to defer arraignment until
after the petition for review filed with the DOJ shall have been
resolved.

2. Whether public respondent Judge Asuncion committed grave


abuse of discretion in ordering the issuance of warrants of arrest
without examining the records of the preliminary investigation.

3. Whether the DOJ, through its "349" Committee, gravely


abused its discretion in dismissing the petition for review on the
following bases: (a) the resolution of public respondent Court of
Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncion's denial of the
abovementioned motions.
4. Whether public respondent Court of Appeals committed grave
abuse of discretion (a) in denying the motion for a writ of
preliminary injunction solely on the ground that public
respondent Asuncion had already before him the Joint Resolution
of the investigating prosecutor when he ordered the issuance of
the warrants of arrest, and (b) in ultimately dismissing the
petition on the ground of mootness since the DOJ had dismissed
the petition for review.

5. Whether this Court may determine in this proceedings the


existence of probable cause either for the issuance of warrants of
arrest against the petitioners or for their prosecution for the
crime of estafa.

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:

In order therefore 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.
52

In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the


Secretary of Justice to review resolutions of his subordinates in
criminal cases. The Secretary of Justice is only enjoined to refrain
as far as practicable from entertaining a petition for review or
appeal from the action of the prosecutor once a complaint or
information is filed in court. In any case, the grant of a motion to
dismiss, which the prosecution may file after the Secretary of
Justice reverses an appealed resolution, is subject to the
discretion of the court.

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:

This case is already pending in this Court for trial. To follow


whatever opinion the Secretary of Justice may have on the
matter would undermine the independence and integrity of this
Court. This Court is still capable of administering justice.

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:

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


information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in court he cannot impose his opinion
on the trial court. The court is the best and sole judge on what to
do with the case before it. The determination of the case is within
its exclusive jurisdiction and competence. A motion to dismiss
the case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or
that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records
of the investigation. 57

However, once a motion to dismiss or withdraw the information is filed


the trial judge may grant or deny it, not out of subservience to the
Secretary of Justice, but in faithful exercise of judicial prerogative. This
Court pertinently stated so in Martinez vs. Court of Appeals: 58

Whether to approve or disapprove the stand taken by the


prosecution is not the exercise of discretion required in cases like
this. The trial judge must himself be convinced that there was
indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution. What was
imperatively required was the trial judge's own assessment of
such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecution's
word for its supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to


make an independent finding of the merits of the case and
merely anchoring the dismissal on the revised position of the
prosecution, the trial judge relinquished the discretion he was
duty bound to exercise. In effect, it was the prosecution, through
the Department of Justice which decided what to do and not the
court which was reduced to a mere rubber stamp in violation of
the ruling in Crespo vs. Mogul.

II.

Section 2, Article III of the present Constitution provides that no search


warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.

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

[f]ollowing established doctrine and procedure, he shall: (1)


personally evaluate the report and supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof; issue a warrant of arrest; or (2) if on
the basis thereof he finds no probable cause, he may disregard
the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to
the existence of probable cause. 64

Sound policy supports this procedure, "otherwise judges would be


unduly laden with the preliminary examination and investigation of
criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts." It must be emphasized that judges
must not rely solely on the report or resolution of the fiscal (now
prosecutor); they must evaluate the report and the supporting
document. In this sense, the aforementioned requirement has modified
paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987
prescribing the Guidelines on Issuance of Warrants of Arrest under
Section 2, Article III of the 1987 Constitution, which provided in part as
follows:

4. In satisfying himself of the existence of a probable cause for


the issuance of a warrant of arrest, the judge, following
established doctrine and procedure, may either:

(a) Rely upon the fiscal's certification of the existence


of probable cause whether or not the case is
cognizable only by the Regional Trial Court and on
the basis thereof, issue a warrant of arrest. . . .

This requirement of evaluation not only of the report or certification of the


fiscal but also of the supporting documents was further explained in People
vs. Inting, 65 where this Court specified what the documents may consist of,
viz., "the affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination" of probable cause.
Thus:

We emphasize the important features of the constitutional


mandate that ". . . no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge . . ." (Article III, Section 2, Constitution).

First, the determination of probable cause is a function of the


Judge. It is not for the Provincial Fiscal or Prosecutor nor the
Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not


bind the Judge. It merely assists him to make the determination
of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the
affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification
which are material in assisting the Judge to make his
determination.

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

Reliance on the COMELEC resolution or the Prosecutor's


certification presupposes that the records of either the COMELEC
or the Prosecutor have been submitted to the Judge and he relies
on the certification or resolution because the records of the
investigation sustain the recommendation. The warrant issues
not on the strength of the certification standing alone but
because of the records which sustain it.

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:

We reiterate the ruling in Soliven vs. Makasiar that the Judge


does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the
Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and


its annexes depends on the circumstances of each case. We
cannot determine beforehand how cursory or exhaustive the
Judge's examination should be. The Judge has to exercise sound
discretion for, after all, the personal determination is vested in
the Judge by the Constitution. It can be as brief as or detailed as
the circumstances of each case require. To be sure, the Judge
must go beyond the Prosecutor's certification and investigation
report whenever necessary. He should call for the complainant
and witnesses themselves to answer the court's probing
questions when the circumstances of the case so require.

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.

Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the


information upon its filing on 12 April 1993 with the trial court. As found by
the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint
Resolution was forwarded to, and received by, the trial court only on 22 April
1993. And as revealed by the certification 71 of Branch Clerk of Court Gibson
Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of
the proceedings during the preliminary investigation, or other documents
submitted in the course thereof were found in the records of Criminal Case
No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion
issued the assailed order of 17 May 1993 directing, among other things, the
issuance of warrants of arrest, he had only the information, amended
information, and Joint Resolution as bases thereof. He did not have the
records or evidence supporting the prosecutor's finding of probable cause.
And strangely enough, he made no specific finding of probable cause; he
merely directed the issuance of warrants of arrest "after June 21, 1993." It
may, however, be argued that the directive presupposes a finding of
probable cause. But then compliance with a constitutional requirement for
the protection of individual liberty cannot be left to presupposition,
conjecture, or even convincing logic.

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.

Hence, the DOJ committed grave abuse of discretion when it executed on 23


July 1993 a unilateral volte-face, which was even unprovoked by a formal
pleading to accomplish the same end, by dismissing the petition for review. It
dismissed the petition simply because it thought that a review of the Joint
Resolution would be an exercise in futility in that any further action on the
part of the Department would depend on the sound discretion of the trial
court, and that the latter's denial of the motion to defer arraignment filed at
the instance of the DOJ was clearly an exercise of that discretion or was, in
effect, a signal to the Department that the determination of the case is
within the court's exclusive jurisdiction and competence. This infirmity
becomes more pronounced because the reason adduced by the respondent
Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as
yet, no support 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:

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. The mere silence of the records or the
absence of any express declaration in the questioned Order of
May 17, 1993 as to where the respondent Judge based his finding
of probable cause does not give rise to any adverse inference on
his part. The fact remains that the Joint Resolution was at
respondent Judge's disposal at the time he issued the Order for
the issuance of the warrants of arrest. After all, respondent Judge
enjoys in his favor the presumption of regularity in the
performance of official actuations. And this presumption prevails
until it is overcome by clear and convincing evidence to the
contrary. Every reasonable intendment will be made in support of
the presumption, and in case of doubt as to an officer's act being
lawful or unlawful it should be construed to be lawful. (31 C.J.S.,
808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA
482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs.
Galarosa, 36 Phil. 338).

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.

It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato


S. Puno that whatever doubts may have lingered on the issue of probable
cause was dissolved when no less than the Court of Appeals sustained the
finding of probable cause made by the respondent Judge after an evaluation
of the Joint Resolution. We are not persuaded with that opinion. It is anchored
on erroneous premises. In its 1 July 1993 resolution, the Court of Appeals
does not at all state that it either sustained respondent Judge Asuncion's
finding of probable cause, or found by itself probable cause. As discussed
above, it merely presumed that Judge Asuncion might have read the Joint
Resolution and found probable cause from a reading thereof. Then too, that
statement in the dissenting opinion erroneously assumes that the Joint
Resolution can validly serve as sufficient basis for determining probable
cause. As stated above, it is not.

V.

In criminal prosecutions, the determination of probable cause may either be


an executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly
stated:

And third, Judges and Prosecutors alike should distinguish the


preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from a preliminary investigation
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable
cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of
trial is the function of the Prosecutor.

....

We reiterate that preliminary investigation should be


distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first
kind of preliminary investigation is executive in nature. It is part
of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the judge. . . .
Ordinarily, the determination of probable cause is not lodged with this Court.
Its duty in an appropriate case is confined to the issue of whether the
executive or judicial determination, as the case may be, of probable cause
was done without or in excess of jurisdiction or with grave abuse of
discretion amounting to want of jurisdiction. This is consistent with the
general rule that criminal prosecutions may not be restrained or stayed by
injunction, preliminary or final. There are, however, exceptions to this rule.
Among the exceptions are enumerated in Brocka vs. Enrile 74 as follows:

a. To afford adequate protection to the constitutional rights of the


accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to


avoid oppression or multiplicity of actions (Dimayuga, et al. vs.
Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs.
Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub judice (De


Leon vs. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of


authority (Planas vs. Oil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or


regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs.
Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs.


People and Avendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs.
City Judge, L-25795, October 29, 1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution


(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the


lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in
Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA
577); and
j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied (Salonga
vs. Pao, et al., L- 59524, February 18, 1985, 134 SCRA 438).

7. Preliminary injunction has been issued by the Supreme Court


to prevent to threatened unlawful arrest of petitioners (Rodriguez
vs. Castelo, L- 6374, August 1, 1953). (cited in Regalado,
Remedial Law Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the


existence or non-existence of probable cause by examining the records
of the preliminary investigation, as it did in Salonga vs. Pao, 75 Allado,
and Webb.

There can be no doubt that, in light of the several thousand private


complainants in Criminal Case No. Q-93-43198 and several thousands more
in different parts of the country who are similarly situated as the former for
being holders of "349" Pepsi crowns, any affirmative holding of probable
cause in the said case may cause or provoke, as justly feared by the
petitioners, the filing of several thousand cases in various courts throughout
the country. Inevitably, the petitioners would be exposed to the harassments
of warrants of arrest issued by such courts and to huge expenditures for
premiums on bailbonds and for travels from one court to another throughout
the length and breadth of the archipelago for their arraignments and trials in
such cases. Worse, the filing of these staggering number of cases would
necessarily affect the trial calendar of our overburdened judges and take
much of their attention, time, and energy, which they could devote to other
equally, if not more, important cases. Such a frightful scenario would
seriously affect the orderly administration of justice, or cause oppression or
multiplicity of actions a situation already long conceded by this Court to
be an exception to the general rule that criminal prosecutions may not be
restrained or stayed by injunction. 76

We shall not, however, reevaluate the evidence to determine if indeed there


is probable cause for the issuance of warrants of arrest in Criminal Case No.
Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact, find
that probable cause exists, and if he did he did not have the basis therefor as
mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the
records of the preliminary investigation in Criminal Case No. Q-93-43198 are
not with this Court. They were forwarded by the Office of the City Prosecutor
of Quezon City to the DOJ in compliance with the latter's 1st Indorsement of
21 April 1993. The trial court and the DOJ must be required to perform their
duty.
WHEREFORE, the instant petition is GRANTED and the following are hereby
SET ASIDE:

(a) Decision of 28 September 1993 and Resolution of 9 February


1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;

(b) The Resolutions of the "349" Committee of the Department of


Justice of 23 July 1993 dismissing the petitioners' petition for
review and of 3 February 1994 denying the motion to reconsider
the dismissal; and

(c) The Order of respondent Judge Maximiano C. Asuncion of 17


May 1993 in Criminal Case No. Q-93-43198.

The Department of Justice is DIRECTED to resolve on the merits, within sixty


(60) days from notice of this decision, the petitioners' petition for the review
of the Joint Resolution of Investigating Prosecutor Ramon Gerona and
thereafter to file the appropriate motion or pleading in Criminal Case No. Q-
93-43198, which respondent Judge Asuncion shall then resolve in light of
Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix,
Allado vs. Diokno, and Webb vs. De Leon.

In the meantime, respondent Judge Asuncion is DIRECTED to cease and


desist from further proceeding with Criminal Case No. Q-93-43198 and to
defer the issuances of warrants of arrest against the petitioners.

No pronouncement as to costs.

G.R. No. 182677 August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,


vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS,
Respondents.

DECISION

CARPIO MORALES, J.:

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.

Petitioner was, by Information3 of January 16, 2007, charged with homicide


for the death of Rafael de las Alas on January 12, 2007 before the Regional
Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled,
presided by Judge Elmo Alameda, forthwith issued a commitment order 4
against petitioner who was placed under police custody while confined at the
Makati Medical Center.5

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.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion


before the trial court to defer acting on the public prosecutors
recommendation on the proper offense until after the appellate court
resolves his application for injunctive reliefs, or alternatively, to grant him
time to comment on the prosecutors recommendation and thereafter set a
hearing for the judicial determination of probable cause.10 Petitioner also
separately moved for the inhibition of Judge Alameda with prayer to defer
action on the admission of the Amended Information.11

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:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE


REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT. HENCE,
THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN
GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES
OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN


ADMITTING STATE PROSECUTOR VELASCOS AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,]
ARE YET TO BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION


DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS
AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW
EVIDENCE BEING ADDUCED DURING THE REINVESTIGATION, RESPONDENT
JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONERS MOTION FOR A
HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.15 (emphasis
in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to
enter a plea of "not guilty" for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application


for Admission to Bail Ex Abundanti Cautela16 which the trial court, after
hearings thereon, granted by Order of May 21, 2007,17 it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed
petitioner to post bail in the amount of P300,000 for his provisional liberty.

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

Waiver on the part of the accused must be distinguished from mootness of


the petition, for in the present case, petitioner did not, by his active
participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later than the start of the trial of
the case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under
the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused
to enter his plea since the issues he raised were still pending resolution by
the appellate court, thus prompting the trial court to enter a plea of "not
guilty" for him.

The principle that the accused is precluded after arraignment from


questioning the illegal arrest or the lack of or irregular preliminary
investigation applies "only if he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto."19 There must
be clear and convincing proof that petitioner had an actual intention to
relinquish his right to question the existence of probable cause. When the
only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his
conduct is possible.20
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other than its allegation of
active participation, the OSG offered no clear and convincing proof that
petitioners participation in the trial was unconditional with the intent to
voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition.21

Whatever delay arising from petitioners availment of remedies against the


trial courts Orders cannot be imputed to petitioner to operate as a valid
waiver on his part. Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of petitioners principal
prayer. The non-issuance of such injunctive relief only means that the
appellate court did not preliminarily find any exception22 to the long-standing
doctrine that injunction will not lie to enjoin a criminal prosecution.23
Consequently, the trial of the case took its course.

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

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


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

The judgment convicting petitioner of homicide under the Amended


Information for murder operates as a supervening event that mooted the
present petition. Assuming that there is ground25 to annul the finding of
probable cause for murder, there is no practical use or value in abrogating
the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at the
same conviction of homicide. Mootness would have also set in had petitioner
been convicted of murder, for proof beyond reasonable doubt, which is much
higher than probable cause, would have been established in that instance.

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


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

After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four trial
court Orders.

In his first assignment of error, petitioner posits that the prosecution has no
right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a
warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.

The contention lacks merit.

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

When a person is lawfully arrested without a warrant involving an offense


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

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.

After the filing of the complaint or information in court without a preliminary


investigation, the accused may, within five (5) days from the time he learns
of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or


information for an offense where the penalty prescribed by law is at least
four years, two months and one day without regard to fine.28 As an
exception, the rules provide that there is no need for a preliminary
investigation in cases of a lawful arrest without a warrant29 involving such
type of offense, so long as an inquest, where available, has been
conducted.30
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose
of determining whether said persons should remain under custody and
correspondingly be charged in court.31

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


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

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private


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

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

Contrary to petitioners position that private complainant should have


appealed to the DOJ Secretary, such remedy is not immediately available in
cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition
by a proper party under such rules as the Department of Justice may
prescribe."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.

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


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

The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.

All criminal actions commenced by a complaint or information shall be


prosecuted under the direction and control of the public prosecutor. 37 The
private complainant in a criminal case is merely a witness and not a party to
the case and cannot, by himself, ask for the reinvestigation of the case after
the information had been filed in court, the proper party for that being the
public prosecutor who has the control of the prosecution of the case.38 Thus,
in cases where the private complainant is allowed to intervene by counsel in
the criminal action,39 and is granted the authority to prosecute,40 the private
complainant, by counsel and with the conformity of the public prosecutor,
can file a motion for reinvestigation.

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 prosecution of crimes appertains to the executive department of the


government whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion the discretion of what and whom
to charge, the exercise of which depends on a smorgasbord of factors which
are best appreciated by prosecutors.43

The prosecutions discretion is not boundless or infinite, however. 44 The


standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound discretion
of the court. Interestingly, petitioner supports this view.45 Indeed, the Court
ruled in one case that:

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

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

In such an instance, before a re-investigation of the case may be conducted


by the public prosecutor, the permission or consent of the court must be
secured. If after such re-investigation the prosecution finds a cogent basis to
withdraw the information or otherwise cause the dismissal of the case, such
proposed course of action may be taken but shall likewise be addressed to
the sound discretion of the court.46 (underscoring supplied)

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.

Since a reinvestigation may entail a modification of the criminal information


as what happened in the present case, the Courts holding is bolstered by
the rule on amendment of an information under Section 14, Rule 110 of the
Rules of Court:

A complaint or information may be amended, in form or in


substance, without leave of court, at any time before the accused
enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice to
the offended party and with leave of court. The 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)

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


of the complaint or information may be made without leave of court.49 After
the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After
arraignment, a substantial amendment is proscribed except if the same is
beneficial to the accused.50

It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab initio
cannot be amended to obviate a ground for quashal.51 An amendment which
operates to vest jurisdiction upon the trial court is likewise impermissible. 52

Considering the general rule that an information may be amended even in


substance and even without leave of court at any time before entry of plea,
does it mean that the conduct of a reinvestigation at that stage is a mere
superfluity?

It is not.

Any remedial measure springing from the reinvestigation be it a complete


disposition or an intermediate modification53 of the charge is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the
trial court would ultimately make the determination on the proposed course
of action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the
appropriate motion to be filed in court.

More importantly, reinvestigation is required in cases involving a substantial


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

The question to be resolved is whether the amendment of the Information


from homicide to murder is considered a substantial amendment, which
would make it not just a right but a duty of the prosecution to ask for a
preliminary investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting


the offense charged and determinative of the jurisdiction of the
court. All other matters are merely of form. The following have been held to
be mere formal amendments: (1) new allegations which relate only to the
range of the penalty that the court might impose in the event of conviction;
(2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations which
do not alter the prosecutions theory of the case so as to cause surprise to
the accused and affect the form of defense he has or will assume; (4) an
amendment which does not adversely affect any substantial right of the
accused; and (5) an amendment that merely adds specifications to eliminate
vagueness in the information and not to introduce new and material facts,
and merely states with additional precision something which is already
contained in the original information and which adds nothing essential for
conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is


whether a defense under the information as it originally stood would be
available after the amendment is made, and whether any evidence
defendant might have would be equally applicable to the information in the
one form as in the other. An amendment to an information which does not
change the nature of the crime alleged therein does not affect the essence of
the offense or cause surprise or deprive the accused of an opportunity to
meet the new averment had each been held to be one of form and not of
substance.55 (emphasis and underscoring supplied)

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.

Petitioner did not, however, make much of the opportunity to present


countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation.
Mercado v. Court of Appeals states that the rules do not even require, as a
condition sine qua non to the validity of a preliminary investigation, the
presence of the respondent as long as efforts to reach him were made and
an opportunity to controvert the complainants evidence was accorded him.62

In his second assignment of error, petitioner basically assails the hurried


issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of
preliminary injunction has been issued.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

Regarding petitioners protestations of haste, suffice to state that the pace in


resolving incidents of the case is not per se an indication of bias. In Santos-
Concio v. Department of Justice,67 the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each
case.

The presumption of regularity includes the public officers official actuations


in all phases of work. Consistent with such presumption, it was incumbent
upon petitioners to present contradictory evidence other than a mere tallying
of days or numerical calculation. This, petitioners failed to discharge. The
swift completion of the Investigating Panels initial task cannot be relegated
as shoddy or shady without discounting the presumably regular performance
of not just one but five state prosecutors.68

There is no ground for petitioners protestations against the DOJ Secretarys


sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting
City Prosecutor of Makati City for the present case69 and the latters
conformity to the motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public


prosecutor who will conduct the reinvestigation or preliminary
investigation.70 There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice71 who is vested with the
prerogative to appoint a special prosecutor or designate an acting prosecutor
to handle a particular case, which broad power of control has been
recognized by jurisprudence.72

As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to
maim and not to kill the victim, one bullet would have sufficed the DOJ
Secretary reportedly uttered that "the filing of the case of homicide against
ano against Leviste lintek naman eh I told you to watch over that case
there should be a report about the ballistics, about the paraffin, etc., then
thats not a complete investigation, thats why you should use that as a
ground" no abuse of discretion, much less a grave one, can be imputed to
it.

The statements of the DOJ Secretary do not evince a "determination to file


the Information even in the absence of probable cause."73 On the contrary,
the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original
Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained "[u]nless and until a
more thorough investigation is conducted and eyewitness/es [is/]are
presented in evidence[.]"74

The trial court concluded that "the wound sustained by the victim at the back
of his head, the absence of paraffin test and ballistic examination, and the
handling of physical evidence,"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.

Petitioners argument is specious.

There are two kinds of determination of probable cause: executive and


judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the
crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court. Whether that function has been correctly
discharged by the public prosecutor, i.e., whether he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that
the trial court itself does not and may not be compelled to pass upon. 77

The judicial determination of probable cause is one made by the judge to


ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted, there
is necessity for placing the accused under custody in order not to frustrate
the ends of justice. If the judge finds no probable cause, the judge cannot be
forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of
the Rules of Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding judge when the
Information is filed with the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of the accused.80

What the Constitution underscores is the exclusive and personal


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

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:

The periods provided in the Revised Rules of Criminal Procedure are


mandatory, and as such, the judge must determine the presence or absence
of probable cause within such periods. The Sandiganbayans determination
of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted from his
determination of probable cause by needless motions for
determination of probable cause filed by the accused.84 (emphasis and
underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no


circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid
conduct of reinvestigation. It is not material that no new matter or evidence
was presented during the reinvestigation of the case. It should be stressed
that reinvestigation, as the word itself implies, is merely a repeat
investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and re-
evaluate its findings and the evidence already submitted.85

Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court
is not a trier of facts. The Court cannot thus review the evidence adduced by
the parties on the issue of the absence or presence of probable cause, as
there exists no exceptional circumstances to warrant a factual review.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

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of


the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice
Chairperson
G.R. No. 102007 September 2, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ROGELIO BAYOTAS y CORDOVA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

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?

It resolved this issue thru the following disquisition:

Article 89 of the Revised Penal Code is the controlling statute. It


reads, in part:

Art. 89. How criminal liability is totally extinguished.


Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal


penalties; and as to the pecuniary penalties liability
therefor is extinguished only when the death of the
offender occurs before final judgment;
With reference to Castillo's criminal liability, there is no question.
The law is plain. Statutory construction is unnecessary. Said
liability is extinguished.

The civil liability, however, poses a problem. Such liability is


extinguished only when the death of the offender occurs before
final judgment. Saddled upon us is the task of ascertaining the
legal import of the term "final judgment." Is it final judgment as
contradistinguished from an interlocutory order? Or, is it a
judgment which is final and executory?

We go to the genesis of the law. The legal precept contained in


Article 89 of the Revised Penal Code heretofore transcribed is
lifted from Article 132 of the Spanish El Codigo Penal de 1870
which, in part, recites:

La responsabilidad penal se extingue.

1. Por la muerte del reo en cuanto a las penas


personales siempre, y respecto a las pecuniarias,
solo cuando a su fallecimiento no hubiere recaido
sentencia firme.

xxx xxx xxx

The code of 1870 . . . it will be observed employs the term


"sentencia firme." What is "sentencia firme" under the old
statute?

XXVIII Enciclopedia Juridica Espaola, p. 473, furnishes the ready


answer: It says:

SENTENCIA FIRME. La sentencia que adquiere la


fuerza de las definitivas por no haberse utilizado por
las partes litigantes recurso alguno contra ella dentro
de los terminos y plazos legales concedidos al efecto.

"Sentencia firme" really should be understood as one which is


definite. Because, it is only when judgment is such that, as
Medina y Maranon puts it, the crime is confirmed "en condena
determinada;" or, in the words of Groizard, the guilt of the
accused becomes "una verdad legal." Prior thereto, should the
accused die, according to Viada, "no hay legalmente, en tal caso,
ni reo, ni delito, ni responsabilidad criminal de ninguna clase."
And, as Judge Kapunan well explained, when a defendant dies
before judgment becomes executory, "there cannot be any
determination by final judgment whether or not the felony upon
which the civil action might arise exists," for the simple reason
that "there is no party defendant." (I Kapunan, Revised Penal
Code, Annotated, p. 421. Senator Francisco holds the same view.
Francisco, Revised Penal Code, Book One, 2nd ed., pp. 859-860)

The legal import of the term "final judgment" is similarly


reflected in the Revised Penal Code. Articles 72 and 78 of that
legal body mention the term "final judgment" in the sense that it
is already enforceable. This also brings to mind Section 7, Rule
116 of the Rules of Court which states that a judgment in a
criminal case becomes final "after the lapse of the period for
perfecting an appeal or when the sentence has been partially or
totally satisfied or served, or the defendant has expressly waived
in writing his right to appeal."

By fair intendment, the legal precepts and opinions here


collected funnel down to one positive conclusion: The term final
judgment employed in the Revised Penal Code means judgment
beyond recall. Really, as long as a judgment has not become
executory, it cannot be truthfully said that defendant is definitely
guilty of the felony charged against him.

Not that the meaning thus given to final judgment is without


reason. For where, as in this case, the right to institute a
separate civil action is not reserved, the decision to be rendered
must, of necessity, cover "both the criminal and the civil aspects
of the case." People vs. Yusico (November 9, 1942), 2 O.G., No.
100, p. 964. See also: People vs. Moll, 68 Phil., 626, 634;
Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236.
Correctly, Judge Kapunan observed that as "the civil action is
based solely on the felony committed and of which the offender
might be found guilty, the death of the offender extinguishes the
civil liability." I Kapunan, Revised Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo's


criminal liability is out. His civil liability is sought to be enforced
by reason of that criminal liability. But then, if we dismiss, as we
must, the criminal action and let the civil aspect remain, we will
be faced with the anomalous situation whereby we will be called
upon to clamp civil liability in a case where the source thereof
criminal liability does not exist. And, as was well stated in
Bautista, et al. vs. Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be found and
held criminally liable in a civil suit," which solely would remain if
we are to divorce it from the criminal proceeding."

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.

As held by then Supreme Court Justice Fernando in the Alison case:

The death of accused-appellant Bonifacio Alison having been


established, and considering that there is as yet no final
judgment in view of the pendency of the appeal, the criminal and
civil liability of the said accused-appellant Alison was
extinguished by his death (Art. 89, Revised Penal Code; Reyes'
Criminal Law, 1971 Rev. Ed., p. 717, citing People v. Castillo and
Ofemia C.A., 56 O.G. 4045); consequently, the case against him
should be dismissed.

On the other hand, this Court in the subsequent cases of Buenaventura


Belamala v. Marcelino Polinar 7 and Lamberto Torrijos v. The Honorable Court
of Appeals 8 ruled differently. In the former, the issue decided by this court
was: Whether the civil liability of one accused of physical injuries who died
before final judgment is extinguished by his demise to the extent of barring
any claim therefore against his estate. It was the contention of the
administrator-appellant therein that the death of the accused prior to final
judgment extinguished all criminal and civil liabilities resulting from the
offense, in view of Article 89, paragraph 1 of the Revised Penal Code.
However, this court ruled therein:

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.

Assuming that for lack of express reservation, Belamala's civil


action for damages was to be considered instituted together with
the criminal action still, since both proceedings were terminated
without final adjudication, the civil action of the offended party
under Article 33 may yet be enforced separately.

In Torrijos, the Supreme Court held that:

xxx xxx xxx

It should be stressed that the extinction of civil liability follows


the extinction of the criminal liability under Article 89, only when
the civil liability arises from the criminal act as its only basis.
Stated differently, where the civil liability does not exist
independently of the criminal responsibility, the extinction of the
latter by death, ipso facto extinguishes the former, provided, of
course, that death supervenes before final judgment. The said
principle does not apply in instant case wherein the civil liability
springs neither solely nor originally from the crime itself but from
a civil contract of purchase and sale. (Emphasis ours)

xxx xxx xxx

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.

However, the Supreme Court in People v. Sendaydiego, et al. 10 departed


from this long-established principle of law. In this case, accused Sendaydiego
was charged with and convicted by the lower court of malversation thru
falsification of public documents. Sendaydiego's death supervened during
the pendency of the appeal of his conviction.

This court in an unprecedented move resolved to dismiss Sendaydiego's


appeal but only to the extent of his criminal liability. His civil liability was
allowed to survive although it was clear that such claim thereon was
exclusively dependent on the criminal action already extinguished. The legal
import of such decision was for the court to continue exercising appellate
jurisdiction over the entire appeal, passing upon the correctness of
Sendaydiego's conviction despite dismissal of the criminal action, for the
purpose of determining if he is civilly liable. In doing so, this Court issued a
Resolution of July 8, 1977 stating thus:

The claim of complainant Province of Pangasinan for the civil


liability survived Sendaydiego because his death occurred after
final judgment was rendered by the Court of First Instance of
Pangasinan, which convicted him of three complex crimes of
malversation through falsification and ordered him to indemnify
the Province in the total sum of P61,048.23 (should be
P57,048.23).
The civil action for the civil liability is deemed impliedly instituted
with the criminal action in the absence of express waiver or its
reservation in a separate action (Sec. 1, Rule 111 of the Rules of
Court). The civil action for the civil liability is separate and
distinct from the criminal action (People and Manuel vs. Coloma,
105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).

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 implication is that, if the defendant dies after a money


judgment had been rendered against him by the Court of First
Instance, the action survives him. It may be continued on appeal
(Torrijos vs. Court of Appeals, L-40336, October 24, 1975; 67
SCRA 394).

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).

In view of the foregoing, notwithstanding the dismissal of the


appeal of the deceased Sendaydiego insofar as his criminal
liability is concerned, the Court Resolved to continue exercising
appellate jurisdiction over his possible civil liability for the money
claims of the Province of Pangasinan arising from the alleged
criminal acts complained of, as if no criminal case had been
instituted against him, thus making applicable, in determining his
civil liability, Article 30 of the Civil Code . . . and, for that
purpose, his counsel is directed to inform this Court within ten
(10) days of the names and addresses of the decedent's heirs or
whether or not his estate is under administration and has a duly
appointed judicial administrator. Said heirs or administrator will
be substituted for the deceased insofar as the civil action for the
civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of
Court).

Succeeding cases 11 raising the identical issue have maintained adherence to


our ruling in Sendaydiego; in other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability solely anchored on the
criminal (civil liability ex delicto) is extinguished upon dismissal of the entire
appeal due to the demise of the accused.

But was it judicious to have abandoned this old ruling? A re-examination of


our decision in Sendaydiego impels us to revert to the old ruling.

To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the


civil action impliedly instituted in the criminal action can proceed irrespective
of the latter's extinction due to death of the accused pending appeal of his
conviction, pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of
the Revised Rules of Court.

Article 30 of the Civil Code provides:

When a separate civil action is brought to demand civil liability


arising from a criminal offense, and no criminal proceedings are
instituted during the pendency of the civil case, a preponderance
of evidence shall likewise be sufficient to prove the act
complained of.

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:

Art. 89. How criminal liability is totally extinguished. Criminal


liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and
as to pecuniary penalties, liability therefor is extinguished only
when the death of the offender occurs before final judgment;

xxx xxx xxx

However, the ruling in Sendaydiego deviated from the expressed intent of


Article 89. It allowed claims for civil liability ex delicto to survive by ipso
facto treating the civil action impliedly instituted with the criminal, as one
filed under Article 30, as though no criminal proceedings had been filed but
merely a separate civil action. This had the effect of converting such claims
from one which is dependent on the outcome of the criminal action to an
entirely new and separate one, the prosecution of which does not even
necessitate the filing of criminal proceedings. 12 One would be hard put to
pinpoint the statutory authority for such a transformation. It is to be borne in
mind that in recovering civil liability ex delicto, the same has perforce to be
determined in the criminal action, rooted as it is in the court's
pronouncement of the guilt or innocence of the accused. This is but to render
fealty to the intendment of Article 100 of the Revised Penal Code which
provides that "every person criminally liable for a felony is also civilly liable."
In such cases, extinction of the criminal action due to death of the accused
pending appeal inevitably signifies the concomitant extinction of the civil
liability. Mors Omnia Solvi. Death dissolves all things.

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:

Sendaydiego's appeal will be resolved only for the purpose of


showing his criminal liability which is the basis of the civil liability
for which his estate would be liable. 13

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:

"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 implication is that, if the defendant dies after a money


judgment had been rendered against him by the Court of First
Instance, the action survives him. It may be continued on appeal.

Sadly, reliance on this provision of law is misplaced. From the standpoint of


procedural law, this course taken in Sendaydiego cannot be sanctioned. As
correctly observed by Justice Regalado:
xxx xxx xxx

I do not, however, agree with the justification advanced in both


Torrijos and Sendaydiego which, relying on the provisions of
Section 21, Rule 3 of the Rules of Court, drew the strained
implication therefrom that where the civil liability instituted
together with the criminal liabilities had already passed beyond
the judgment of the then Court of First Instance (now the
Regional Trial Court), the Court of Appeals can continue to
exercise appellate jurisdiction thereover despite the
extinguishment of the component criminal liability of the
deceased. This pronouncement, which has been followed in the
Court's judgments subsequent and consonant to Torrijos and
Sendaydiego, should be set aside and abandoned as being
clearly erroneous and unjustifiable.

Said Section 21 of Rule 3 is a rule of civil procedure in ordinary


civil actions. There is neither authority nor justification for its
application in criminal procedure to civil actions instituted
together with and as part of criminal actions. Nor is there any
authority in law for the summary conversion from the latter
category of an ordinary civil action upon the death of the
offender. . . .

Moreover, the civil action impliedly instituted in a criminal proceeding for


recovery of civil liability ex delicto can hardly be categorized as an ordinary
money claim such as that referred to in Sec. 21, Rule 3 enforceable before
the estate of the deceased accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in


light of the provisions of Section 5, Rule 86 involving claims against the
estate, which in Sendaydiego was held liable for Sendaydiego's civil liability.
"What are contemplated in Section 21 of Rule 3, in relation to Section 5 of
Rule 86, 14 are contractual money claims while the claims involved in civil
liability ex delicto may include even the restitution of personal or real
property." 15 Section 5, Rule 86 provides an exclusive enumeration of what
claims may be filed against the estate. These are: funeral expenses,
expenses for the last illness, judgments for money and claim arising from
contracts, expressed or implied. It is clear that money claims arising from
delict do not form part of this exclusive enumeration. Hence, there could be
no legal basis in (1) treating a civil action ex delicto as an ordinary
contractual money claim referred to in Section 21, Rule 3 of the Rules of
Court and (2) allowing it to survive by filing a claim therefor before the estate
of the deceased accused. Rather, it should be extinguished upon extinction
of the criminal action engendered by the death of the accused pending
finality of his conviction.

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.

If the same act or omission complained of also arises from quasi-delict or


may, by provision of law, result in an injury to person or property (real or
personal), the separate civil action must be filed against the executor or
administrator 17 of the estate of the accused pursuant to Sec. 1, Rule 87 of
the Rules of Court:

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.

This is in consonance with our ruling in Belamala 18 where we held that, in


recovering damages for injury to persons thru an independent civil action
based on Article 33 of the Civil Code, the same must be filed against the
executor or administrator of the estate of deceased accused and not against
the estate under Sec. 5, Rule 86 because this rule explicitly limits the claim
to those for funeral expenses, expenses for the last sickness of the decedent,
judgment for money and claims arising from contract, express or implied.
Contractual money claims, we stressed, refers only to purely personal
obligations other than those which have their source in delict or tort.

Conversely, if the same act or omission complained of also arises from


contract, the separate civil action must be filed against the estate of the
accused, pursuant to Sec. 5, Rule 86 of the Rules of Court.

From this lengthy disquisition, we summarize our ruling herein:


1. Death of the accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, "the death of the accused prior to final
judgment terminates his criminal liability and only the civil liability directly
arising from and based solely on the offense committed, i.e., civil liability ex
delicto in senso strictiore."

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

3. Where the civil liability survives, as explained in Number 2 above, an


action for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced
either against the executor/administrator or the estate of the accused,
depending on the source of obligation upon which the same is based as
explained above.

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

SSGT. JOSE M. PACOY, Petitioner,


vs.
HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO
L. ESCUETA, Respondents.

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:

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


Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this
Honorable Court, the said accused with intent to kill, did then and there
wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick
Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick
Esquita multiple gunshot wounds on his body which caused his
instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in


disregard of his rank.4

On September 12, 2002, upon arraignment, petitioner, duly assisted by


counsel de parte, pleaded not guilty to the charge of Homicide. Respondent
Judge set the pre-trial conference and trial on October 8, 2002.5

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

On October 28, 2002, petitioner filed a Motion to Quash with Motion to


Suspend Proceedings Pending the Resolution of the Instant Motion9 on the
ground of double jeopardy. Petitioner alleged that in the Information for
Homicide, he was validly indicted and arraigned before a competent court,
and the case was terminated without his express consent; that when the
case for Homicide was terminated without his express consent, the
subsequent filing of the Information for Murder in lieu of Homicide placed
him in double jeopardy.

In an 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.

Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration.


In his Motion to Inhibit, he alleged that the respondent judge exercised
jurisdiction in an arbitrary, capricious and partial manner in mandating the
amendment of the charge from Homicide to Murder in disregard of the
provisions of the law and existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against
him was dismissed or otherwise terminated without his express consent,
which constitutes a ground to quash the information for murder; and that to
try him again for the same offense constitutes double jeopardy. Petitioner
stated that contrary to respondent judge's conclusion that disregard of rank
qualifies the killing to Murder, it is a generic aggravating circumstance which
only serves to affect the imposition of the period of the penalty. Petitioner
also argued that the amendment and/or correction ordered by the
respondent judge was substantial; and under Section 14, Rule 110 of the
Revised Rules of Criminal Procedure, this cannot be done, since petitioner
had already been arraigned and he would be placed in double jeopardy.

In his Order dated December 18, 2002,12 the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:

WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED


while the Motion for Reconsideration is hereby GRANTED.

Unless ordered otherwise by the Highest Court, the presiding judge shall
continue hearing this case. Further, the Order dated October 25, 2002 is
reconsidered and the original information charging the crime of homicide
stands.13

In granting the Motion for Reconsideration, respondent judge found that a


close scrutiny of Article 248 of the Revised Penal Code shows that "disregard
of rank" is merely a generic mitigating14 circumstance which should not
elevate the classification of the crime of homicide to murder.

On April 30, 2003, petitioner filed herein petition for certiorari on the
following grounds:

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND


EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE
INFORMATION FROM HOMICIDE TO MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND


VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE
INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND


EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING
THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH
WAS ALREADY TERMINATED.15
Petitioner alleges that despite having entered his plea of not guilty to the
charge of Homicide, the public respondent ordered the amendment of the
Information from Homicide to Murder because of the presence of the
aggravating circumstance of "disregard of rank," which is in violation of
Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the
public respondents ruling that "disregard of rank" is a qualifying aggravating
circumstance which qualified the killing of 2Lt. Escueta to murder is
erroneous since, under paragraph 3, Article 14 of the Revised Penal Code,
disregard of rank is only a generic aggravating circumstance which serves to
affect the penalty to be imposed upon the accused and does not qualify the
offense into a more serious crime; that even assuming that disregard of rank
is a qualifying aggravating circumstance, such is a substantial amendment
which is not allowed after petitioner has entered his plea.

Petitioner next contends that the respondent judge gravely abused his
discretion when he denied the Motion to Quash the Information for Murder,
considering that the original Information for Homicide filed against him was
terminated without his express consent; thus, prosecuting him for the same
offense would place him in double jeopardy.

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.

The parties filed their respective Memoranda.

Generally, a direct resort to us in a petition for certiorari is highly improper,


for it violates the established policy of strict observance of the judicial
hierarchy of courts. However, the judicial hierarchy of courts is not an iron-
clad rule.16 A strict application of the rule of hierarchy of courts is not
necessary when the cases brought before the appellate courts do not involve
factual but legal questions.17

In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and substitution
of information under the Rules of Court. It also involves the issue of double
jeopardy, one of the fundamental rights of the citizens under the Constitution
which protects the accused not against the peril of second punishment but
against being tried for the same offense. These important legal questions
and in order to prevent further delay in the trial of the case warrant our
relaxation of the policy of strict observance of the judicial hierarchy of courts.

The Courts Ruling

The petition is not meritorious.

We find no merit in petitioner's contention that the respondent judge


committed grave abuse of discretion in amending the Information after
petitioner had already pleaded not guilty to the charge in the Information for
Homicide. The argument of petitioner --

Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged and
arraigned for Murder which involve the same offense. The petitioner argued
that the termination of the information for Homicide without his express
consent is equivalent to his acquittal. Thus, to charge him again, this time for
Murder, is tantamount to placing the petitioner in Double Jeopardy.18

is not plausible. Petitioner confuses the procedure and effects of amendment


or substitution under Section 14, Rule 110 of the Rules of Court, to wit --

SEC. 14. Amendment or substitution. A complaint or information may be


amended, in form or in substance, without leave of court, at any time before
the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

xxx

If it appears at 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.

with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper offense. -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information.

First, a distinction shall be made between amendment and substitution under


Section 14, Rule 110. For this purpose, Teehankee v. Madayag19 is instructive,
viz:

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.

It may accordingly be posited that both amendment and substitution of the


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

2. Amendment before plea has been entered can be effected without


leave of court, but substitution of information must be with leave of
court as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for


another preliminary investigation and the retaking of the plea of the
accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the new
information; and

4. An amended information refers to the same offense charged in the


original information or to an offense which necessarily includes or is
necessarily included in the original charge, hence substantial
amendments to the information after the plea has been taken cannot
be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double
jeopardy. On the other hand, substitution requires or presupposes that
the new information involves a different offense which does not include
or is not necessarily included in the original charge, hence the accused
cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the


first paragraph of Section 14, Rule 110, or a substitution of information under
the second paragraph thereof, the rule is that where the second information
involves the same offense, or an offense which necessarily includes or is
necessarily included in the first information, an amendment of the
information is sufficient; otherwise, where the new information charges an
offense which is distinct and different from that initially charged, a
substitution is in order.

There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the
first information. In this connection, an offense may be said to necessarily
include another when some of the essential elements or ingredients of the
former, as this is alleged in the information, constitute the latter. And, vice-
versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those
constituting the latter.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.

While the respondent judge erroneously thought that "disrespect on account


of rank" qualified the crime to murder, as the same was only a generic
aggravating circumstance,23 we do not find that he committed any grave
abuse of discretion in ordering the amendment of the Information after
petitioner had already pleaded not guilty to the charge of Homicide, since
the amendment made was only formal and did not adversely affect any
substantial right of petitioner.

Next, we determine whether petitioner was placed in double jeopardy by the


change of the charge from Homicide to Murder; and subsequently, from
Murder back to Homicide. Petitioner's claim that the respondent judge
committed grave abuse of discretion in denying his Motion to Quash the
Amended Information for Murder on the ground of double jeopardy is not
meritorious.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the


Rules of Court, which provides:

SEC. 3. Grounds. - The accused may move to quash the complaint or


information on any of the following grounds:

xxxx

(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.

Section 7 of the same Rule lays down the requisites in order that the defense
of double jeopardy may prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused


has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.

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

It is the conviction or acquittal of the accused or the dismissal or termination


of the case that bars further prosecution for the same offense or any attempt
to commit the same or the frustration thereof; or prosecution for any offense
which necessarily includes or is necessarily included in the offense charged
in the former complaint or information.26

Petitioner's insistence that the respondent judge dismissed or terminated his


case for homicide without his express consent, which is tantamount to an
acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite


or unconditional dismissal which terminates the case.27 And for the dismissal
to be a bar under the jeopardy clause, it must have the effect of
acquittal.1wphi1

The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the same
upon the filing of a new Information charging the proper offense as
contemplated under the last paragraph of Section 14, Rule 110 of the Rules
of Court -- which, for convenience, we quote again --

If it appears at anytime before judgment that a mistake has been made in


charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense 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

Homicide is necessarily included in the crime of murder; thus, the


respondent judge merely ordered the amendment of the Information and not
the dismissal of the original Information. To repeat, it was the same original
information that was amended by merely crossing out the word "Homicide"
and writing the word "Murder," instead, which showed that there was no
dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely
abused his discretion in ordering that the original Information for Homicide
stands after realizing that disregard of rank does not qualify the killing to
Murder. That ruling was again a violation of his right against double jeopardy,
as he will be prosecuted anew for a charge of Homicide, which has already
been terminated earlier.

We are not convinced. Respondent judge did not commit any grave abuse of
discretion.

A reading of the Order dated December 18, 2002 showed that the
respondent judge granted petitioner's motion for reconsideration, not on the
ground that double jeopardy exists, but on his realization that "disregard of
rank" is a generic aggravating circumstance which does not qualify the killing
of the victim to murder. Thus, he rightly corrected himself by reinstating the
original Information for Homicide. The requisite of double jeopardy that the
first jeopardy must have attached prior to the second is not present,
considering that petitioner was neither convicted nor acquitted; nor was the
case against him dismissed or otherwise terminated without his express
consent.29

WHEREFORE, the petition is DISMISSED, there being no grave abuse of


discretion committed by respondent Judge.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice
G.R. No. 103102 March 6, 1992
CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

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:

That on or about the 13th day of July 1991, in the Municipality of


Makati, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, while armed
with a handgun, with intent to kill, treachery and evident
premeditation, did then and there willfully, unlawfully, and
feloniously attack, assault and shoot one Maureen Navarro
Hultman on the head, thereby inflicting gunshot wounds, which
ordinarily would have caused the death of said Maureen Navarro
Hultman, thereby performing all the acts of execution which
would have produced the crime of Murder as a consequence, but
nevertheless did not produce it by reason of cause or causes
independent of her will, that is, due to the timely and able
medical assistance rendered to said Maureen Navarro Hultman
which prevented her death.

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:

That on or about the 13th day of July, 1991, in the Municipality of


Makati, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the said Claudio Teehankee, Jr. y. Javier,
armed with a handgun, with intent to kill and evident
premeditation and by means of treachery, did then and there
willfully, unlawfully and feloniously attack, assault and shoot with
the said handgun Maureen Navarro Hultman who was hit in the
head, thereby inflicting mortal wounds which directly caused the
death of said Maureen Hultman.

Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7

of the prosecution. On November 13, 1991, the trial court issued the
questioned order admitting the amended information.

At the scheduled arraignment on November 26, 1991, petitioner refused to


be arraigned on the amended information for lack of a preliminary
investigation thereon. By reason of such refusal, respondent judge ordered
that a plea of "not guilty" be entered for petitioner.

Thereafter, respondent judge ordered the prosecution to present its


evidence. When petitioner's counsel manifested that he would not take part
in the proceedings because of the legal issue raised, the trial court appointed
a counsel de oficio to represent herein petitioner.

Petitioner now raises the following issues before us:

(a) Whether or not an amended information involving a


substantial amendment, without preliminary investigation, after
the prosecution has rested on the original information, may
legally and validly be admitted;

(b) Whether or not a counsel de oficio may legally and validly be


appointed to represent an accused who is represented by
counsel of choice who refuses to participate in the proceedings
because of a perceived denial of due process and after a plea for
appellate remedies within a short period is denied by the trial
court; and
(c) Whether or not a particular criminal case may legally and
validly be rushed and preferentially scheduled for trial over and
at the expense and sacrifice of other, specially older, criminal
cases. 8

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.

I. Petitioner avers that the additional allegation in the amended information,


as herein underscored, that the accused ". . . did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said handgun
Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal
wounds which directly caused the death of said Maureen Hultman . . ."
constitutes a substantial amendment since it involves a change in the nature
of the offense charged, that is, from frustrated to consummated murder.
Petitioner further submits that "(t)here is a need then to establish that the
same mortal wounds, which were initially frustrated (sic) by timely and able
medical assistance, ultimately caused the death of the victim, because it
could have been caused by a supervening act or fact which is not imputable
to the offender." 9 From this, he argues that there being a substantial
amendment, the same may no longer be allowed after arraignment and
during the trial.

Corollary thereto, petitioner then postulates that since the amended


information for murder charges an entirely different offense, involving as it
does a new fact, that is, the fact of death whose cause has to be established,
it is essential that another preliminary investigation on the new charge be
conducted before the new information can be admitted.

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:

Sec. 14. Amendment. The information or complaint may be


amended, in substance or form, without leave of court, at any
time before the accused pleads; and thereafter and during the
trial as to all matters of form, by leave and at the discretion of
the court, when the same can be done without prejudice to the
rights of the accused.

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.

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.

It may accordingly be posited that both amendment and substitution of the


information may be made before or after the defendant pleaded, but they
differ in the following respects:

1. Amendment may involve either formal or substantial changes, while


substitution necessarily involves a substantial change from the original
charge;

2. Amendment before plea has been entered can be effected without leave
of court, but substitution of information must be with leave of court as the
original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another


preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and
the accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original


information or to an offense which necessarily includes or is necessarily
included in the original charge, hence substantial amendments to the
information after the plea has been taken cannot be made over the objection
of the accused, for if the original information would be withdrawn, the
accused could invoke double jeopardy. On the other hand, substitution
requires or presupposes that the new information involves a different offense
which does not include or is not necessarily included in the original charge,
hence the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under the
first paragraph of Section 14, Rule 110, or a substitution of information under
the second paragraph thereof, the rule is that where the second information
involves the same offense, or an offense which necessarily includes or is
necessarily included in the first information, and amendment of the
information is sufficient; otherwise, where the new information charges an
offense which is distinct and different from that initially charged, a
substitution is in order.

There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the
first information. In this connection, an offense may be said to necessarily
include another when some of the essential elements or ingredients of the
former, as this is alleged in the information, constitute the latter. And, vice-
versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those
constituting the latter. 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.

In the present case, therefore, there is an identity of offenses charged in both


the original and the amended information. What is involved here is not a
variance in the nature of different offenses charged, but only a change in the
stage of execution of the same offense from frustrated to consummated
murder. This is being the case, we hold that an amendment of the original
information will suffice and, consequent thereto, the filing of the amended
information for murder is proper.

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.

As earlier indicated, Section 14 of Rule 110 provides that an amendment,


either of form or substance, may be made at any time before the accused
enters a plea to the charge and, thereafter, as to all matters of form with
leave of court.

A substantial amendment consists of the recital of facts constituting the


offense charged and determinative of the jurisdiction of the court. All other
matters are merely of form. 11 Thus, the following have been held to be
merely formal amendments, viz: (1) new allegations which relate only to the
range of the penalty that the court might impose in the event of conviction;
12
(2) an amendment which does not charge another offense different or
distinct from that charged in the original one; 13 (3) additional allegations
which do not alter the prosecution's theory of the case so as to cause
surprise to the accused and affect the form of defense he has or will assume;
and (4) an amendment which does not adversely affect any substantial right
of the accused, such as his right to invoke prescription. 14

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

Now, an objective appraisal of the amended information for murder filed


against herein petitioner will readily show that the nature of the offense
originally charged was not actually changed. Instead, an additional
allegation, that is, the supervening fact of the death of the victim was merely
supplied to aid the trial court in determining the proper penalty for the crime.
That the accused committed a felonious act with intent to kill the victim
continues to be the prosecution's theory. There is no question that whatever
defense herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information for murder.
Under the circumstances thus obtaining, it is irremissible that the amended
information for murder is, at most, an amendment as to form which is
allowed even during the trial of the case.
It consequently follows that since only a formal amendment was involved
and introduced in the second information, a preliminary investigation is
unnecessary and cannot be demanded by the accused. The filing of the
amended information without the requisite preliminary investigation does not
violate petitioner's right to be secured against hasty, malicious and
oppressive prosecutions, and to be protected from an open and public
accusation of a crime, as well as from the trouble, expenses and anxiety of a
public trial. The amended information could not conceivably have come as a
surprise to petitioner for the simple and obvious reason that it charges
essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is
related to the amended charge such that an inquiry into one would elicit
substantially the same facts that an inquiry into the other would reveal, a
new preliminary investigation is not necessary. 17

We find nothing irregular in the appointment by the trial court of a counsel


de oficio for herein petitioner whose counsel of record refused to participate
in the proceedings because of an alleged legal issue. Such issue having been
demonstrated herein as baseless, we apprehend his refusal to participate in
the trial as causative of or contributive to the delay in the disposition of the
case. And, finally, for as long as the substantial rights of herein petitioner
and other persons charged in court are not prejudiced, the scheduling of
cases should be left to the sound discretion of the trial court.

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

AURELIO M. SIERRA, complainant,


vs.
JHOSEP Y. LOPEZ, City Prosecutor of Manila, EUFROCINO SULLA, 1 st
Assistant City Prosecutor (ACP), ACP ALEXANDER T. YAP, ACP MARLO
CAMPANILLA, and ACP ARMANDO VELASCO, respondents.

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.

The facts of the case are as follows:

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.

In compliance with the Honorable Courts order, respondents filed their


Comment dated March 7, 2008 stating that they handled the cases properly
and in accordance with what was provided by law. They also argued that
they had not committed any dereliction of duty and gross ignorance of the
law.

We find no merit in the complaint.

Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation, as follows:

Sec. 3. Procedure. The preliminary investigation shall be conducted in


the following manner:

(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.

The respondent shall have the right to examine the evidence


submitted by the complainant which he may not have been furnished
and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made


available for examination, copying, or photographing at the expense of
the requesting party.

(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.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does


not submit counter-affidavits within the ten (10) day period, the
investigating officer shall resolve the complaint based on the evidence
presented by the complainant.

(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.

In Rodis, Sr. v. Sandiganbayan1 we ruled that -

(the New Rules on Criminal Procedure) do not require as a condition


sine qua non to the validity of the proceedings ( in the preliminary
investigation) the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert evidence of
the complainant is accorded him. The obvious purpose of the rule is to
block attempts of unscrupulous respondents to thwart the prosecution
of offenses by hiding themselves or by employing dilatory tactics.

Since confrontation between the parties is not imperative, it follows that it is


not necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another
prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3,
which states that the "counter-affidavit shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section x x x"; and paragraph
(a), provides:

the affidavits shall be subscribed and sworn to before any prosecutor


or government official or in their absence or unavailability, before a
notary public x x x.

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.

WHEREFORE, premises considered, the complaint is DENIED for lack of


merit.

SO ORDERED.

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