Criminal Jurisdiction

G.R. No. L-40527 June 30, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HERMOGENES MARIANO and HON. AMBROSIO M. GERALDEZ, in his
capacity as Presiding Judge of the Court of First Instance of Bulacan,
Branch V, respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General

Nathanael P. Pano, Jr., Solicitor Oswaldo D. Agcaoili, Provincial P.C.
Kliachko and Assistant Provincial Fiscal C. G. Perfecto for petitioner.

Eustaquio Evangelista for respondent Hermogenes Mariano.

MUOZ PALMA, J:

This petition for certiorari postulates a ruling on the question of whether or

not civil courts and military commissions exercise concurrent jurisdiction
over the offense of estafa of goods valued at not more than six thousand
pesos and allegedly committed by a civilian. 1

On December 18, 1974, the office of the Provincial Fiscal of Bulacan filed
an Information (Criminal Case No. SM-649) accusing private respondent
herein Hermogenes Mariano of estafa alleged to have been committed as
follows:

That on or about and during the period from May 11 and June
8, 1971, in the municipality of San Jose del Monte, province of
Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Hermogenes Mariano,
being then appointed as Liaison Officer by the then incumbent
Municipal Mayor, Constantino Nolasco, acting for and in behalf
of the municipality of San Jose del Monte, Bulacan and
authorized to receive and be receipted for US excess property
of USAID/NEC for the use and benefit of said municipality,
received from the said USAID/NEC the following items, to wit:
 150 ft. electric cable valued

at $15 or P100.50

525 ft. cable power valued at

$577-50 or P3,859.35

250 ft. electric cable at

$125.00 or P837.50

with a total value of $717.50 or P4,797.35, involving the duty of

making delivery of said items to the said Municipal Mayor, but
the said accused Hermogenes Mariano once in possession of
the said items and far from complying with his aforesaid
obligation and in spite of repeated demands, did then and there
wilfully, unlawfully and feloniously, with grave abuse of
confidence and with deceit, misappropriate, misapply and
convert to his own personal use and benefit the said items
valued at $717.50 or P4,797.35, belonging to the said
USAID/NEC, to the damage and prejudice of the said owner in
the said sum of $717,50 or P4,797.35. (pp. rollo).

On February 19, 1975, Hermogenes Mariano thru his counsel Filed a

motion to quash the Information on the following grounds:

1. That the court trying the cause has no jurisdiction of the

offense charged or of the person of the defendant;

2. That the criminal action or liability has been extinguished;

3. That it contains averments which , if true, would constitute a

legal excuse or justification. (p. 19, rollo)

In his motion to quash, Mariano claimed that the items which were the
subject matter of the Information against him were the same items for
which Mayor Constantino A. Nolasco of San Jose del Monte, province of
Bulacan, was indicted before a Military Commission under a charge of
malversation of public property, and for which Mayor Nolasco had been
found guilty and sentenced to imprisonment at hard labor for ten (10) years
and one (1) day to fourteen (14) years and eight (8) months with perpetual
disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and that
inasmuch as the case against Mayor Nolasco had already been decided by
the Military Tribunal, the Court of First Instance of Bulacan had lost
jurisdiction over the case against him. (pp. 19-20, Ibid)

On March 14, 1975 respondent Judge issued an Order granting the motion
to quash on the ground of lack of jurisdiction reasoning as follows:

Considering that the Military Commission had already taken

cognizance of the malversation case against Mayor Nolasco
involving the same subject matter in its concurrent jurisdiction
with this Court, the case involving the subject properties had
already been heard and decided by a competent tribunal, the
Military Commission, and as such this Court is without
jurisdiction to pass upon anew the same subject matter. (pp.
30-31, rollo, emphasis supplied)

Respondent Judge did not rule on the other grounds invoked in the motion
to quash.

The people now seeks a review of the aforesaid Order and presents the
sole issue of jurisdiction of respondent Court over the estafa case filed
against respondent Mariano.

"Jurisdiction" is the basic foundation of judicial proceedings. 2 The word

"jurisdiction" is derived from two Latin words "juris" and "dico" "I speak
by the law" which means fundamentally the power or capacity given by
the law to a court or tribunal to entertain, hear, and determine certain
controversies. 3 Bouvier's own definition of the term "jurisdiction" has found
judicial acceptance, to wit: "Jurisdiction is the right of a Judge to pronounce
a sentence of the law in a case or issue before him, acquired through due
process of law;" it is "the authority by which judicial officers take
cognizance of and decide cases." 4

In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this Court,
in the words of Justice Moreland, invoking American jurisprudence, defined
"jurisdiction" simply as the authority to hear and determine a cause the right
to act in a case. "Jurisdiction" has also been aptly described as the right to
put the wheels of justice in notion and to proceed to the final determination
of a cause upon the pleadings and evidence. 5
"Criminal Jurisdiction" is necessarily the authority to hear and try a
particular offense and impose the punishment for it. 6

The conferment of jurisdiction upon courts or judicial tribunals is derived

exclusively from the constitution and statutes of the forum. Thus, the
question of jurisdiction of respondent Court of First Instance over the case
filed before it is to be resolved on the basis of the law or statute providing
for or defining its jurisdiction. That, We find in the Judiciary Act of 1948
where in its Section 44 (f) it is provided:

SEC. 44. Original jurisdiction. Courts of First Instance shall

have original jurisdiction:

xxx xxx xxx

(f) In all criminal cases in which the penalty provided by law is

imprisonment for more than six months,or a fine of more than
two hundred pesos, (emphasis supplied)

The offense of estafa charged against respondent Mariano is penalized

with arresto mayor in its maximum period to prision correccional in its
minimum period, or imprisonment from four (4) months and one (1) day to
two (2) years and four (4) months. 7 By reason of the penalty imposed
which exceeds six (6) months imprisonment, the offense alleged to have
been committed by the accused, now respondent, Mariano, falls under the
original jurisdiction of courts of first instance.

The above of course is not disputed by respondent Judge; what he claims

in his Order is that his court exercises concurrent jurisdiction with the
military commission and because the latter tribunal was the first to take
cognizance of the subject matter, respondent court lost jurisdiction over it
.That statement of respondent court is incorrect.

In People vs. Fontanilla, this Court speaking through then Justice now
Chief Justice Fred Ruiz Castro, categorically reiterated the settled rule that
the jurisdiction of a court is determined by the statute in force at the time of
the commencement of the action. 8 In the case at bar, it is rightly contended
by the Solicitor General that at the time Criminal Case No. SM-649 was
filed with the Court of First Instance of Bulacan, that was December 18,
1974, the law in force vesting jurisdiction upon said court was the Judiciary
Act of 1948, the particular provision of which was not affected one way or
the other by any Presidential issuances under Martial Law. General Order
No. 49 dated October 4, 1974, which repeals General Order No. 12 and the
latter's amendments and related General Orders inconsistent with the
former, redefines the jurisdiction of military tribunals over certain offense,
and estafa and malversation are not among those enumerated therein. 9 In
other words the Military Commission is not vested with jurisdiction over the
crime of estafa. 9*

Respondent court therefore gravely erred when it ruled that it lost

jurisdiction over the estafa case against respondent Mariano with the filing
of the malversation charge against Mayor Nolasco before the Military
Commission. Estafa and malversation are two separate and distinct
offenses and in the case now before Us the accused in one is different from
the accused in the other. But more fundamental is the fact that We do not
have here a situation involving two tribunals vested with concurrent
jurisdiction over a particular crime so as to apply the rule that the court or
tribunal which first takes cognizance of the case acquires jurisdiction
thereof exclusive of the other. 10 The Military Commission as stated earlier
is without power or authority to hear and determine the particular offense
charged against respondent Mariano, hence, there is no concurrent
jurisdiction between it and respondent court to speak of. Estafa as
described in the Information filed in Criminal Case No. SM-649 falls within
the sole exclusive jurisdiction of civil courts.

PREMISES CONSIDERED, the appealed Order dated March 14, 1975, is

set aside and respondent Judge is directed to proceed with the trial of
Criminal Case No. SM- 649 without further delay.

SO ORDERED.
RULE 110

G.R. No. 102342 July 3, 1992

LUZ M. ZALDIVIA, petitioner,

vs.
HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the
Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and
PEOPLE OF THE PHILIPPINES, respondents.

CRUZ, J.:

The Court is asked to determine the applicable law specifying the prescriptive period for
violations of municipal ordinances.

The petitioner is charged with quarrying for commercial purposes without a mayor's
permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez,
in the Province of Rizal.

The offense was allegedly committed on May 11, 1990.1 The referral-complaint of the
police was received by the Office of the Provincial Prosecutor of Rizal on May 30,
1990. 2 The corresponding information was filed with the Municipal Trial Court of
Rodriguez on October 2, 1990. 3

The petitioner moved to quash the information on the ground that the crime had
prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal,
the denial was sustained by the respondent judge. 4

In the present petition for review on certiorari, the petitioner first argues that the charge
against her is governed by the following provisions of the Rule on Summary Procedure:

Sec. 1. Scope This rule shall govern the procedure in the Metropolitan
Trial Courts, the Municipal Trial Courts, and the Municipal Circuit Trial
Courts in the following cases:

xxx xxx xxx

B. Criminal Cases:

1. Violations of traffic laws, rules and regulations;

2. Violations of rental law;

3. Violations of municipal or city ordinances;

 4. All other criminal cases where the penalty prescribed by law for the
offenses charged does not exceed six months imprisonment, or a fine of
one thousand pesos (P1,000.00), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom. .
. . (Emphasis supplied.)

xxx xxx xxx

Sec. 9. How commenced. The prosecution of criminal cases falling

within the scope of this Rule shall be either by complaint or by
information filed directly in court without need of a prior preliminary
examination or preliminary investigation: Provided, however, That in
Metropolitan Manila and chartered cities, such cases shall be commenced
only by information; Provided, further, That when the offense cannot be
prosecuted de oficio, the corresponding complaint shall be signed and
sworn to before the fiscal by the offended party.

She then invokes Act. No. 3326, as amended, entitled "An Act to Establish Periods of
Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to
Provide When Prescription Shall Begin to Run," reading as follows:

Sec. 1. Violations penalized by special acts shall, unless provided in such

acts, prescribe in accordance with the following rules: . . . Violations
penalized by municipal ordinances shall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.

The prescription shall be interrupted when proceedings are instituted

against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.

Sec. 3. For the purposes of this Act, special acts shall be acts defining and
penalizing violations of law not included in the Penal Code. (Emphasis
supplied)

Her conclusion is that as the information was filed way beyond the
two-month statutory period from the date of the alleged commission of the offense, the
charge against her should have been dismissed on the ground of prescription.

For its part, the prosecution contends that the prescriptive period was suspended upon
the filing of the complaint against her with the Office of the Provincial Prosecutor.
Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule
110 of the 1985 Rules on Criminal Procedure, providing as follows:
 Sec. 1. How Instituted For offenses not subject to the rule on summary
procedure in special cases, the institution of criminal action shall be as
follows:

a) For offenses falling under the jurisdiction of the Regional

Trial Court, by filing the complaint with the appropriate officer
for the purpose of conducting the requisite preliminary
investigation therein;

b) For offenses falling under the jurisdiction of the Municipal

Trial Courts and Municipal Circuit Trial Courts, by filing the
complaint directly with the said courts, or a complaint with
the fiscal's office. However, in Metropolitan Manila and other
chartered cities, the complaint may be filed only with the
office of the fiscal.

In all cases such institution interrupts the period of prescription of the

offense charged. (Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of the
complaint with the Office of the Provincial Prosecutor comes under the phrase "such
institution" and that the phrase "in all cases" applies to all cases, without distinction,
including those falling under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the following
dictum in Francisco v. Court of Appeals: 5

In view of this diversity of precedents, and in order to provide guidance for

Bench and Bar, this Court has re-examined the question and, after mature
consideration, has arrived at the conclusion that the true doctrine is, and
should be, the one established by the decisions holding that the filing of
the complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where
the complaint or information is filed can not try the case on its merits.
Several reasons buttress this conclusion: first, the text of Article 91 of the
Revised Penal Code, in declaring that the period of prescription "shall be
interrupted by the filing of the complaint or information" without
distinguishing whether the complaint is filed in the court for preliminary
examination or investigation merely, or for action on the merits. Second,
even if the court where the complaint or information is filed may only
proceed to investigate the case, its actuations already represent the initial
step of the proceedings against the offender. Third, it is unjust to deprive
the injured party of the right to obtain vindication on account of delays that
are not under his control. All that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite complaint.
It is important to note that this decision was promulgated on May 30, 1983, two months
before the promulgation of the Rule on Summary Procedure on August 1, 1983. On the
other hand, Section 1 of Rule 110 is new, having been incorporated therein with the
revision of the Rules on Criminal Procedure on January 1, 1985, except for the last
paragraph, which was added on October 1, 1988.

That section meaningfully begins with the phrase, "for offenses not subject to the rule on
summary procedure in special cases," which plainly signifies that the section does not
apply to offenses which are subject to summary procedure. The phrase "in all cases"
appearing in the last paragraph obviously refers to the cases covered by the Section,
that is, those offenses not governed by the Rule on Summary Procedure. This
interpretation conforms to the canon that words in a statute should be read in relation to
and not isolation from the rest of the measure, to discover the true legislative intent.

As it is clearly provided in the Rule on Summary Procedure that among the offenses it
covers are violations of municipal or city ordinances, it should follow that the charge
against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is
governed by that rule and not Section 1 of Rule 110.

Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction
of the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is
to Section 32(2) of B.P. No. 129, vesting in such courts:

(2) Exclusive original jurisdiction over all offenses punishable with

imprisonment of not exceeding four years and two months, or a fine of not
more than four thousand pesos, or both such fine and imprisonment,
regardless of other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated thereon, irrespective
of kind, nature, value, or amount thereof; Provided, however, That in
offenses involving damage to property through criminal negligence they
shall have exclusive original jurisdiction where the imposable fine does not
exceed twenty thousand pesos.

These offenses are not covered by the Rule on Summary Procedure.

Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall
be filed directly in court without need of a prior preliminary examination or preliminary
investigation." 6 Both parties agree that this provision does not prevent the prosecutor
from conducting a preliminary investigation if he wants to. However, the case shall be
deemed commenced only when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This means that the running of the
prescriptive period shall be halted on the date the case is actually filed in court and not
on any date before that.

This interpretation is in consonance with the afore-quoted Act No. 3326 which says that
the period of prescription shall be suspended "when proceedings are instituted against
the guilty party." The proceedings referred to in Section 2 thereof are "judicial
proceedings," contrary to the submission of the Solicitor General that they include
administrative proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.

At any rate, the Court feels that if there be a conflict between the Rule on Summary
Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former
should prevail as the special law. And if there be a conflict between Act. No. 3326 and
Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this
Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or
modify substantive rights" under Article VIII, Section 5(5) of the Constitution.
Prescription in criminal cases is a substantive right. 7

Going back to the Francisco case, we find it not irrelevant to observe that the decision
would have been conformable to Section 1, Rule 110, as the offense involved was
grave oral defamation punishable under the Revised Penal Code with arresto mayor in
its maximum period to prision correccional in its minimum period. By contrast, the
prosecution in the instant case is for violation of a municipal ordinance, for which the
penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary
Procedure.

The Court realizes that under the above interpretation, a crime may prescribe even if
the complaint is filed seasonably with the prosecutor's office if, intentionally or not, he
delays the institution of the necessary judicial proceedings until it is too late. However,
that possibility should not justify a misreading of the applicable rules beyond their
obvious intent as reasonably deduced from their plain language. The remedy is not a
distortion of the meaning of the rules but a rewording thereof to prevent the problem
here sought to be corrected.

Our conclusion is that the prescriptive period for the crime imputed to the petitioner
commenced from its alleged commission on May 11, 1990, and ended two months
thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not
interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on
May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could
have interrupted the period was the filing of the information with the Municipal Trial
Court of Rodriguez, but this was done only on October 2, 1990, after the crime had
already prescribed.

WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2,
1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial Court of
Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered.
G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner

vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals

dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119,
which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari
and his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money

amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili
and his business associate, Ramon C. Tongson (Tongson), jointly issued in
favor of petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of both Cawili and
Tongson. Upon presentment for payment on 18 March 1993, the checks
were dishonored, either for insufficiency of funds or by the closure of the
account. Petitioner made formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995,
but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and

Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he
had been unjustly included as party-respondent in the case since petitioner
had lent money to Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was

not Cawili's business associate; in fact, he himself had filed several criminal
cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he
had issued the bounced checks and pointed out that his signatures on the
said checks had been falsified.

To counter these allegations, petitioner presented several documents

showing Tongson's signatures, which were purportedly the same as the
those appearing on the checks.7 He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawili's
business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V.

Lara found probable cause only against Cawili and dismissed the charges
against Tongson. Petitioner filed a partial appeal before the Department of
Justice (DOJ) even while the case against Cawili was filed before the
proper court. In a letter-resolution dated 11 July 1997,10 after finding that it
was possible for Tongson to co-sign the bounced checks and that he had
deliberately altered his signature in the pleadings submitted during the
preliminary investigation, Chief State Prosecutor Jovencito R. Zuo
directed the City Prosecutor of Quezon City to conduct a reinvestigation of
the case against Tongson and to refer the questioned signatures to the
National Bureau of Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion
was denied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga

(ACP Sampaga) dismissed the complaint against Tongson without referring
the matter to the NBI per the Chief State Prosecutor's resolution. In her
resolution,11 ACP Sampaga held that the case had already prescribed
pursuant to Act No. 3326, as amended,12 which provides that violations
penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case,
the four (4)-year period started on the date the checks were dishonored, or
on 20 January 1993 and 18 March 1993. The filing of the complaint before
the Quezon City Prosecutor on 24 August 1995 did not interrupt the
running of the prescriptive period, as the law contemplates judicial, and not
administrative proceedings. Thus, considering that from 1993 to 1998,
more than four (4) years had already elapsed and no information had as
yet been filed against Tongson, the alleged violation of B.P. Blg. 22
imputed to him had already prescribed.13 Moreover, ACP Sampaga stated
that the order of the Chief State Prosecutor to refer the matter to the NBI
could no longer be sanctioned under Section 3, Rule 112 of the Rules of
Criminal Procedure because the initiative should come from petitioner
himself and not the investigating prosecutor.14 Finally, ACP Sampaga found
that Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary

Manuel A.J. Teehankee, dismissed the same, stating that the offense had
already prescribed pursuant to Act No. 3326.16Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003,17 the DOJ, this time
through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor
and declared that the offense had not prescribed and that the filing of the
complaint with the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the
City Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22.19 On 8 July
2003, the City Prosecutor's Office filed an information20 charging petitioner
with three (3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably

acting on a motion for reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and ordered "the withdrawal of the
three (3) informations for violation of B.P. Blg. 22" against Tongson. In
justifying its sudden turnabout, the DOJ explained that Act No. 3326
applies to violations of special acts that do not provide for a prescriptive
period for the offenses thereunder. Since B.P. Blg. 22, as a special act,
does not provide for the prescription of the offense it defines and punishes,
Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized thereunder.23 The DOJ also
cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled
that the proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of petitioner's failure to attach a
proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution
of the DOJ attached to the petition is a mere photocopy.26 Petitioner moved
for the reconsideration of the appellate court's resolution, attaching to said
motion an amended Verification/Certification of Non-Forum
Shopping.27Still, the Court of Appeals denied petitioner's motion, stating
that subsequent compliance with the formal requirements would not per
se warrant a reconsideration of its resolution. Besides, the Court of Appeals
added, the petition is patently without merit and the questions raised
therein are too unsubstantial to require consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed
grave error in dismissing his petition on technical grounds and in ruling that
the petition before it was patently without merit and the questions are too
unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City Prosecutor
of Quezon City does not interrupt the running of the prescriptive period for
violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law
which does not provide for its own prescriptive period, offenses prescribe in
four (4) years in accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of
Appeals did not err in dismissing the petition for certiorari. They claim that
the offense of violation of B.P. Blg. 22 has already prescribed per Act No.
3326. In addition, they claim that the long delay, attributable to petitioner
and the State, violated their constitutional right to speedy disposition of
cases.30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the
Court of Appeals substantially complies with the rules, the verification being
intended simply to secure an assurance that the allegations in the pleading
are true and correct and not a product of the imagination or a matter of
speculation. He points out that this Court has held in a number of cases
that a deficiency in the verification can be excused or dispensed with, the
defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure

an assurance that matters which are alleged are true and correctthe court
may simply order the correction of unverified pleadings or act on them and
waive strict compliance with the rules in order that the ends of justice may
be served,32 as in the instant case. In the case at bar, we find that by
attaching the pertinent verification to his motion for reconsideration,
petitioner sufficiently complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy
or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A
plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ resolution
dated 9 August 2004,33 a certified true copy of which was attached as
Annex "A."34 Obviously, the Court of Appeals committed a grievous
mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case

involving the violation of a municipal ordinance, in declaring that the
prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,36 wherein this Court ruled that the filing of the complaint
with the fiscal's office for preliminary investigation suspends the running of
the prescriptive period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.) No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
notes.37 He argues that sustaining the DOJ's and the Court of Appeals'
pronouncements would result in grave injustice to him since the delays in
the present case were clearly beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act to

Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise

provided in such acts, prescribe in accordance with the following
rules: (a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less than two years; (c) x
xx
 Sec. 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted

against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22.
An offense under B.P. Blg. 22 merits the penalty of imprisonment of
not less than thirty (30) days but not more than one year or by a fine,
hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in
four (4) years from the commission of the offense or, if the same be
not known at the time, from the discovery thereof. Nevertheless, we
cannot uphold the position that only the filing of a case in court can
toll the running of the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4 December
1926, preliminary investigation of criminal offenses was conducted by
justices of the peace, thus, the phraseology in the law, "institution of judicial
proceedings for its investigation and punishment,"39 and the prevailing rule
at the time was that once a complaint is filed with the justice of the peace
for preliminary investigation, the prescription of the offense is halted.40

The historical perspective on the application of Act No. 3326 is

illuminating.41 Act No. 3226 was approved on 4 December 1926 at a time
when the function of conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, the prevailing rule
at the time, as shown in the cases of U.S. v. Lazada42 and People v.
Joson,43 is that the prescription of the offense is tolled once a complaint is
filed with the justice of the peace for preliminary investigation inasmuch as
the filing of the complaint signifies the

institution of the criminal proceedings against the accused.44 These cases

were followed by our declaration in People v. Parao and Parao45 that the
first step taken in the investigation or examination of offenses partakes the
nature of a judicial proceeding which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where
the complaint or information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information is filed may
only proceed to investigate the case, its actuations already represent the
initial step of the proceedings against the offender,48 and hence, the
prescriptive period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which

involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293), which are both
special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for

preliminary investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport Resources Corporation,
et al.,51 the Court ruled that the nature and purpose of the investigation
conducted by the Securities and Exchange Commission on violations of the
Revised Securities Act,52 another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal cases, and thus
effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is instructive,

thus:

While it may be observed that the term "judicial proceedings" in Sec.

2 of Act No. 3326 appears before "investigation and punishment" in
the old law, with the subsequent change in set-up whereby the
investigation of the charge for purposes of prosecution has become
the exclusive function of the executive branch, the term "proceedings"
should now be understood either executive or judicial in character:
executive when it involves the investigation phase and judicial when it
refers to the trial and judgment stage. With this clarification, any kind
of investigative proceeding instituted against the guilty person which
may ultimately lead to his prosecution should be sufficient to toll
prescription.54

Indeed, to rule otherwise would deprive the injured party the right to obtain
vindication on account of delays that are not under his control.55 A clear
example would be this case, wherein petitioner filed his complaint-affidavit
on 24 August 1995, well within the four (4)-year prescriptive period. He
likewise timely filed his appeals and his motions for reconsideration on the
dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed

periods. However, from the time petitioner filed his complaint-affidavit with
the Office of the City Prosecutor (24 August 1995) up to the time the DOJ
issued the assailed resolution, an aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond petitioner's control. After all, he had
already initiated the active prosecution of the case as early as 24 August
1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions
and its misapplication of Act No. 3326. Aggrieved parties, especially those
who do not sleep on their rights and actively pursue their causes, should
not be allowed to suffer unnecessarily further simply because of
circumstances beyond their control, like the accused's delaying tactics or
the delay and inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's
filing of his complaint-affidavit before the Office of the City Prosecutor on 24
August 1995 signified the commencement of the proceedings for the
prosecution of the accused and thus effectively interrupted the prescriptive
period for the offenses they had been charged under B.P. Blg. 22.
Moreover, since there is a definite finding of probable cause, with the
debunking of the claim of prescription there is no longer any impediment to
the filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of

Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and
SET ASIDE. The resolution of the Department of Justice dated 9 August
2004 is also ANNULLED and SET ASIDE. The Department of Justice is
ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.
 G.R. No. L-6481 May 17, 1954

JESUS GUIAO, petitioner-appellee, vs. ALBINO L. FIGUEROA,

in his capacity as Provincial Fiscal of the Province of
Pampanga, respondent-appellant.

Office of the Solicitor General Juan R. Liwag and Assistant

Solicitor General Francisco Carreon for appellant.
Macapagal, Punsalan and Yabut for appellee.

LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance

of Pampanga in an action of mandamus, ordering the provincial
fiscal to include Emiliano Manalo and Porfirio Dizon as accused in
Criminal Case No. 1453 of said
court.chanroblesvirtualawlibrary chanrobles virtual law library

The record discloses that in the trial of Criminal Case No.

1273, People of the Philippines vs. Atilano Gopez, et al., for the
crime of kidnapping with murder (against one Felix Lampa), the
provincial fiscal introduced said Porfirio Dizon and Emiliano
Manalo as witnesses for the State. Porfirio Dizon testified that in
the morning of November 23, 1950, the accused Atilano Gopez,
Melchor Esguerra, and Benjamin Tolentino went to his house in
Dolores, Bacolor, Pampanga; that the three accused carried
firearms; that he was asked by them to act as guard for a certain
sugar plantation; that while he was on guard, a certain person
passed by and Esguerra whistled at him, and the latter
approached and talked with Esguerra; that Esguerra told to him
that the person (who was Felix Lampa) was brought by them to
the backyard of one Iscong Lacsamana; and that after that Dizon
left the three in said place.chanroblesvirtualawlibrary chanrobles
virtual law library

Emiliano Manalo testified that in the afternoon of November 23,

1950, while he was going home, he saw Benjamin Tolentino,
Melchor Esguerra, and Felix Lampa near the house of Francisco
Lacsamana; that he asked Tolentino why Felix Lampa was with
them, and Tolentino answered that Jesus Guiao and Eulogio
Serrano wanted to talk to him, that he went home and changed
his working clothes, and after a while Eulogio Serrano, Jesus
Guiao, Atilano Gopez, and Melchor Esguerra passed by his house,
and Atilano Gopez called him, telling him that the captain wanted
to see him; that the captain was Eulogio Serrano, who asked him
to bring his gun along with him; that he went with them, and in
the house of Iscong Lacsamana they saw Benjamin Tolentino and
Felix Lampa; that Serrano charged Lampa with trying to convince
Guiao to testify on the Maliwalu incident, and upon Guiao
ratifying this charge, Serrano ordered Atilano Gopez to tie Felix
Lampa, and Atilano Gopez in turn, asked Manalo to do so; that
Serrano, Gopez, Guiao, Tolentino, Esguerra, and Manalo brought
Lampa to a place called alfareza; reaching it between eight and
nine o'clock in the evening; that upon reaching the place, they
were ordered to dig a hole, and the three of them did so,
including Manalo; that thereafter Felix Lampa was brought to the
hole, and Serrano ordered Gopez to shoot him, which he did,
notwithstanding the protestation of innocence on the part of
Lampa. (See Annexes A and B attached to Petition.)chanrobles
virtual law library

In view of the testimonies given by Porfirio Dizon and Emiliano

Manalo in said Criminal case No. 1273, the lower court ordered a
reinvestigation of the case and suspended its trial, with a view to
including as accused all persons who might be guilty of the crime.
After the reinvestigation an amended information was filed, and
two new accused were included, namely, Jesus Guiao and Eulogio
Serrano. But Porfirio Dizon and Emiliano Manalo were not
included. In view of the failure of the provincial fiscal to include
these two persons, a motion for contempt was filed against the
fiscal, but this motion was dismissed on the ground that if the
fiscal committed an error of judgment, or even an abuse of
discretion, the recourse against him was not an action for
contempt but one of mandamus. Due to this order of the court,
the action for mandamus was filed by Jesus Guiao to compel the
fiscal to include Porfirio Dizon and Emiliano Manalo as accused in
his information, in Criminal Case No.
1453.chanroblesvirtualawlibrary chanrobles virtual law library

In his answer to the petition for mandamus, the provincial fiscal

admits the substance of the testimonies of Porfirio Dizon and
Emiliano Manalo as above indicated. He alleges that after the
reinvestigation ordered by the court had been conducted, he
included Eulogio Serrano and Jesus Guiao in the amended
information, but "did not include Porfirio Dizon and Emiliano
Manalo as co-accused in said Criminal Case No. 1453 because
they are indispensable witnesses for the prosecution aside from
the fact that they are the least guilty." No trial was held and the
Court of First Instance decided the petition for mandamuson the
pleadings.chanroblesvirtualawlibrary chanrobles virtual law library

It will be noted that the transcript of the testimonies of Porfirio

Dizon and Emiliano Manalo in Criminal Case No. 1273 is attached
to the petition for mandamus as Annexes A and B. On the basis
of the pleadings the lower court held that in accordance with
section 1 of Rule 106 of the Rules of Court, it is the duty of the
fiscal to include all the persons who are responsible for the crime,
and that if any or some of them are the least guilty, the
determination of this fact rests in the sound discretion of the trial
court and not upon the fiscal, citing the cases of
Monroe vs. Sanchez, G.R. No. L-2286 promulgated June 17,
1948. It, therefore, granted the
petition.chanroblesvirtualawlibrary chanrobles virtual law library

The question now before this Court is whether a fiscal may be

compelled by mandamus to include in an information persons
who appear to be responsible for the crime charged therein, but
whom the fiscal believes to be indispensable witnesses for the
State. The provision of Section 1 of Rule 106 of the Rules of Court
expressly states that criminal actions shall be brought "against all
persons who appear to be responsible therefor." The original
provisions contained in General Orders No. 58 provided that all
prosecutions shall be "against the persons charged with the
offenses." The change in the law was introduced in Act No. 2709,
two of whose provisions were as follows:

SECTION 1. Every prosecution for a crime shall be in the name of

the United States against all persons who appear to be
responsible therefor, except in the cases determined in section
two of this Act.chanroblesvirtualawlibrary chanrobles virtual law
library

SEC. 2. When two or more persons are charged with the

commission of a certain crime, the competent court at any time
before they have entered upon their defense, may direct any of
them to be discharged, that he may be witness for the
Government when in the judgment of the Court:chanrobles
virtual law library

(a) There is absolute necessity for the testimony of the accused

whose discharge is requested;chanrobles virtual law library

(b) There is no other direct evidence available for the proper

prosecution of the crime committed, except the testimony of the
accused;chanrobles virtual law library

(c) The testimony of said accused can be substantially

corroborated by its material points;chanrobles virtual law library

(d) Said accused does not appear to be the most

guilty;chanrobles virtual law library

(e) Said accused has not at any time been convicted of the crime
of perjury or false testimony or of any other crime involving
moral turpitude.

The pertinent provision of section 1 of Rule 106 is taken from

section 1, while section 9 of Rule 115 from section
2.chanroblesvirtualawlibrary chanrobles virtual law library

A perusal of Act 2709 discloses the legislative intent to require

that all persons who appear to be responsible for an offense
should be included in the information. The use of the word "shall"
and of the phrase "except in cases determined" shows that
section 1 is mandatory, not directory merely. The mandatory
nature of the section is demanded by a sound public policy, which
would deprive prosecuting officers of the use of their discretion,
in order that they may not shield or favor friends, protegees, or
favorites. The law makes it a legal duty for them to file the
charges against whomsoever the evidence may show to be
responsible for an offense. This does not mean, however, that
prosecuting officers have no discretion at all; their discretion lies
in determining whether the evidence submitted is sufficient to
justify a reasonable belief that a person has committed an
offense. What the rule demands is that all persons who appear
responsible shall be charged in the information, which implies
that those against whom no sufficient evidence of guilt exists are
not required to be included.chanroblesvirtualawlibrary chanrobles
virtual law library

The other aim of act 2709 is a complement of the mandatory

provision: to regulate the manner in which any of the accused
may be excluded in order that he may be utilized as a State
witness, and to rest the manner of the enforcement of the
regulations in the sound discretion of the courts.
(U.S. vs. Abanzado, 37 Phil., 658.)chanrobles virtual law library

In short, Act 2709 has laid down four principles, namely, (1) that
all persons who appear to be responsible for an offense be
included in the information charging that offense; (2) that even if
it is necessary to utilize any of the above persons as State
witness, he shall nevertheless be included as accused; (3) that
fiscals have no discretion in excluding from prosecution persons
who appear responsible for a crime, but that if it becomes
necessary to do so, the procedure provided in the law must be
followed; and (4) that the exclusion of accused from prosecution,
in order that they may be used as State witnesses, is lodged in
the sound discretion of the competent court, not in that of the
prosecuting officer.chanroblesvirtualawlibrary chanrobles virtual
law library
In the case at bar, there is no question that Porfirio Dizon and
Emiliano Manalo participated either as principals or accomplices in
the kidnapping and murder of Felix Lampa, and that the only
reason why the fiscal excluded them from the amended
information is because he thought it more convenient, or perhaps
more expedient, to do so. When the fiscal chose to ignore his
legal duty to include the said Porfirio Dizon and Emiliano Manalo
as accused in the criminal case, and to follow the procedure
outlined in the rules by which said persons may be discharged in
order that they may be utilized as witnesses for the prosecution,
it became proper and necessary for the competent court to
require him to comply therewith.

One minor point needs to be considered, and that is the point

raised in the brief of the Solicitor General that the petitioner-
appellee Jesus Guiao has no right to institute the action
of mandamus, because he has no clear right to the performance
of the alleged legal duty by the provincial fiscal. We find no merit
in this contention. Every person accused of a crime has a positive
interest in the inclusion of all his co-conspirators; a right to
demand that all of them be accorded equal treatment and be
made to suffer the penalties imposed by law. Without deciding
the question as to whether or not any private citizen may demand
compliance by the fiscal with the provisions of section 1 of Rule
106, requiring him to file the information "against all persons who
appear to be responsible for an offense," we hold that the other
accused have an interest in the inclusion of their two other
companions in the commission of the crime, because they are
jointly and severally liable with them for indemnities that may be
imposed upon them for the offense they may have committed
together.

The judgment appealed from is hereby affirmed, without costs.

G.R. No. L-15139 April 28, 1961

FELIX DE CASTRO, JR., QUIRINO AMBROSIO and ANTONIO

CARAMBAS, petitioners-appellees,
vs.
EMITERIO M. CASTAEDA and RAMON G. LICERALDE, in their
capacity as Provincial Fiscal and Assistant Provincial Fiscal,
respectively, of Pangasinan, respondents-appellants.

Enrique Braganza and Rodolfo Aquino for petitioners-appellees.

Emiterio M. Castaeda and Ramon Liceralde for respondents-appellants.

PADILLA, J.:

This is an appeal from a judgment of the Court of First Instance of

Pangasinan, Branch VII, ordering the appellants (Provincial Fiscal and
Assistant Provincial Fiscal of Pangasinan) to include Catalino Malanum and
Laureano Pasag as defendants in the information filed by the assistant
provincial fiscal, then special counsel in criminal case No. A-148, entitled
"People of the Philippines vs. Felix de Castro, Jr., Quirino Ambrosio and
Apolonio Carambas," for violation of section 11 in connection with section
76, Act No. 4003, as amended (civil No. A-147).

On 22 October 1958 the appellees (Felix de Castro, Jr., Quirino Ambrosio

and Apolonio Carambas) filed a petition for mandamus in the Court of First
Instance of Pangasinan, Branch VII, averring that on 12 June 1958 the
appellant assistant provincial fiscal, then special counsel, subscribed and
filed an information charging them with violation of section 11 in connection
with section 76, Act No. 4003, as amended for fishing with the use of
poison (crim. case No. A-147, Annex A, Exhibits A & 1), based upon the
affidavits subscribed and sworn to by Catalino Malanum and Laureano
Pasag (Annexes B and C; Exhibits B and C; Exhibits 2 and 3); that on 16
July 1958 the appellees filed a motion in Court praying that the appellants
be ordered to conduct a reinvestigation of the case and thereafter to
include in the information all persons who appear to be responsible
therefor; that acting upon the said Motion, on the same day, 16 July 1958,
the Court directed the appellant assistant provincial fiscal to conduct a
reinvestigation of the case; that the said appellant filed a motion for
reconsideration of the foregoing order but the Court denied it, holding that a
reinvestigation was necessary because from the affidavits accompanying
the information and attached to the record of the case it was apparent that
many persons had incurred criminal liability arising from the incident
complained of; that at the reinvestigation conducted by the appellants the
appellees asked them to include Catalino Malanum and Laureano Pasag
as additional defendants; that in the latters' affidavits (Annexes B and C;
Exhibits B and C; Exhibits 2 and 3) it appears that they had actively and
directly taken part in the commission of the offense with which the
appellees had been charged; that the appellants had refused to grant the
appellees' request and by that refusal had "unlawfully neglected and/or
refused the performance of an act which the law specifically enjoins as a
duty resulting from their office;" and that they "have no other plain, speedy
and adequate remedy in the ordinary course of law," and praying that a writ
of mandamus be issued directing the appellants to include Catalino
Malanum and Laureano Pasag as defendants in criminal case No. A-148
and to pay the costs. They further prayed for other just and equitable relief
(civil No. A-147).

On 7 November 1958 the appellants filed an answer to the petition for

mandamus, admitting the material averments of the petition except
paragraphs 3, 8 and 9 and setting up the following affirmative and special
defenses; that Laureano Pasag and Catilino Malanum did not actively and
directly participate in the commission of the offense, the truth being that the
former did nothing but witnessed what happened and gathered fishes that
would be used as evidence in the future, and the latter merely acted upon
orders of Felix de Castro, Jr., one of the defendants therein and one of the
appellees herein; that the petition has no factual basis because the
information filed was based not only upon the affidavits of Catalino
Malanum and Laureano Pasag but also of other persons who had been
investigated during the preliminary investigation conducted by the
appellants, and has no legal basis because before the information was filed
the appellants has conducted a preliminary investigation pursuant to the
provisions of section 1687 of the Revised Administrative Code, as
amended by Republic Acts Nos. 732 and 1799, and had found that only the
herein appellees had committed the crime charged; that the determination
of who are the persons to be charged with the commission of an offense,
upon the evidence presented during the preliminary investigation, falls
within the exclusive prerogative of the prosecuting officer; that after
carefully weighing the evidence the appellants believed that there was no
sufficient evidence to hold Catalino Malanum and Laureano Pasag or any
other person responsible for the commission of the crime charged, except
the appellees; and that in view of the foregoing the appellees had no cause
of action. The appellants prayed for the dismissal of the petition with costs
against the appellees.

On 10 November 1958 the Court entered an order setting the case for
hearing on 12 November 1958 at 2:00 o'clock in the afternoon. On 12
November 1958 the appellees filed a reply to the appellants' answer
disputing the veracity of their allegations and validity of their defenses.

At the hearing held on the same day, 12 November 1958, the appellant
assistant provincial fiscal, in his own behalf and in behalf of his co-
appellant, and the appellees by counsel, appeared. After the oral
arguments, the appellants prayed that they be given ten days from date
within which to file a memorandum and the Court granted them the period
prayed for, provided that there would be no extensions for that purpose. On
22 November 1958 the appellants filed their memorandum.

On 30 January 1959 the Court, relying upon the doctrine laid down in
Guiao vs. Figueroa (promulgated 17 May 1954), 50 Off. Gaz. 4828,
rendered judgment holding that the power of the prosecuting officer to
determine the persons probably guilty of the commission of an offense and
to include them in the information to be filed in court cannot extend to the
point of encroaching upon the prerogative of the court; that persons who
appear responsible for the commission of a crime should be included in the
information; that if it is necessary to utilize any of the defendants as a
witness for the prosecution, the provisions of the law for his discharge from
the information should be followed; and that it is prima facie shown by the
affidavits of Catalino Malanum and Laureano Pasag that they are
responsible for the commission of the same offense with which the
appellees had been charged (Annexes B and C; Exhibits B and C; Exhibits
2 and 3); granting the writ prayed for and ordering the appellants to include
Catalino Malanum and Laureano Pasag as defendants in the information
filed by the appellant provincial fiscal in criminal case No. A-148.

From the foregoing judgment, the appellants have interposed this appeal.

In Guiao vs. Figueroa, supra this Court held:

 The question now before this Court is whether a fiscal may be
compelled by mandamus to include in an information persons who
appear to be responsible for the crime charged therein, but whom the
fiscal believes to be indispensable witnesses for the State. The
provision of section 1 of Rule 106 of the Rules of Court expressly
states that criminal actions shall be brought "against all persons who
appear to be responsible therefor." The original provisions contained
in General Orders No. 58 provided that all prosecutions shall be
"against the persons charged with the offenses." The change in the
law was introduced in Act No. 2709, .... The pertinent provision of
section 1 of Rule 106 is taken from section 1, while section 9 of Rule
115 from section 2 (of Act No. 2709).

A perusal of Act 2709 discloses the legislative intent to require that all
persons who appear to be responsible for an offense should be
included in the information. The use of the word "shall" and of the
phrase "except in the cases determined" shows that section 1 is
mandatory, not directory merely. The mandatory nature of the section
is demanded by a sound public policy, which would deprive
prosecuting officers of the use of their discretion, in order that they
may not shield or favor friends, protegees, or favorites. The law
makes it a legal duty for them to file the charges against whosoever
the evidence may show to be responsible for an offense. This does
not mean, however, that prosecuting officers have no discretion at all;
their discretion lies in determining whether the evidence submitted is
sufficient to justify a reasonable belief that a person has committed
an offense. What the rule demands is that all persons who appear
responsible shall be charged in the information, which implies that
those against whom no sufficient evidence of guilt exists are not
required to be included.

It is for the prosecuting officer to determine whether the evidence at hand is

sufficient to engender a reasonable belief that a person committed an
offense. This power and prerogative of the prosecuting officer is not
however, altogether absolute. It is subject to judicial review in proper cases,
as where from the evidence submitted and gathered by the prosecuting
officer a person appearing responsible for the commission of an offense is
not included in the information. The question, therefore, for determination in
this appeal is whether there is sufficient evidence against Catalino
Malanum and Laureano Pasag to warrant their inclusion in the information
filed in criminal case No. A-148 and whether the appellants gravely abused
their discretion in not including them in the information.

Catalino Malanum swore that at about 2:00 o'clock in the afternoon of 17

April 1958, while he was taking a nap, Apolonio Carambas and Felix de
Castro, Jr. came to his house; that the former woke him up and invited him
to go fishing; that he accepted the invitation and went with the to Bolo
River, about 300 meters away from his house; that upon reaching the river
de Castro asked him to borrow pail from one of the nearby houses; that
after securing a pail, de Castro told him to fill it with water from the river;
that after doing so, de Castro told him to pour in the pail of water the liquid
contents of two bottles that h took from a buri bag held by Carambas; that
upon order of de Castro he poured the solution in the pail into the river; that
this process was repeated until the contents of the two bottles of liquid had
been exhausted; that after about 10 to 15 minutes the fishes in the river
were disturbed and later on died; that the dead fishes were picked up by
the people in the vicinity numbering about 100; that de Castro and his men
also picked up the fishes and the former took the big fishes and gave to the
deponent and others the small ones as their share; that about five
petroleum cans of dead fishes were gathered by them; that until about a
week after the incident the fishes in the river continued to die; that when the
deponent saw the fishes dying after throwing the solution into the river, he
suspected the liquid mixed with water to be poison; that he did not inquire
from de Castro whether or not the liquid was poison because he was
excited in picking up the fishes; and that a few days after he was
investigated by fishery agents about the incident, de Castro sent for him
and requested him to change the affidavit he had subscribed and sworn to
before them and assured him that he would take care of the agents, but he
told de Castro that "if he (de Castro) could destroy his affidavit that was
already in the hands of the agents, I would abide by his wish." (Annex B,
Exhibits B & 2.)

Laureano Pasag stated under oath that about 2: 00 o'clock in the afternoon
of 17 April 1958 Quirino Domenden and Apolinario Domenden came to his
house and invited him to join them in going to Bolo River because de
Castro would "poison the river so that I can help them gather the fishes;"
that he went with them; that when they arrived there, he saw de Castro
hand two bottles of liquid whitish in color to Catalino Malanum and told him
to drop a little of their contents into the pail of water; that after doing so, he
poured the solution into the river and the same procedure was repeated
until the contents of the two bottles were exhausted; that after the solution
was poured into the river, the fishes in the river were disturbed and later on
died; that De Castro and his companions gathered the big fishes and
brought them to his motorboat while the rest of the persons in the
neighborhood picked up the small ones; that believing that the fishpond
owned by Sergio Reinoso, of which he was the overseer, would be
adversely affected, he (Pasag) also gathered some fishes to show to his
landlord; that the next day he saw that all the fishes and 20,000 bangus fry
in the fishpond of his landlord had died; that "the fishes continued to die for
one week until I noticed no more fish left alive;" that he reported the matter
to his landlord who ordered him to make a list of persons who saw the
incident and to look for the empty bottles containing the liquid; that after a
few days he furnished his landlord with the list and brought to him the two
bottles found on the bank of the river; and that he did not remonstrate to De
Castro about what he (De Castro) did because the latter assured him that
the fishes in his landlord's pond would not be affected by his act (Annex C;
Exhibits C & 3).

Catalino Malanum took direct part in the commission of the violation of

section 11 in connection with section 76, Act No. 4003, as amended.
Whether he knew beforehand that the liquid he was told to pour, as he did,
into the pail of water was poison must be determined by taking into account
all the circumstances that attended the act of transgression. He suspected
the liquid mixed with water that caused the death of the fishes in the river
was poison. Yet he took his share in the large number of fishes that were
poisoned. In his sworn statement Laureano Pasag admitted he was invited
by Quirino and Apolinario surnamed Domenden to go to Bolo River where
de Castro would "poison the river so that I can help them gather the fishes"
knowingly that the fishes were poisoned he took his share in the large
number of poisoned fishes gathered on the bank of the river. His purpose in
taking his share may well be doubted. Going over the information filed
against the appellees, Catalino Malanum and Laureano Pasag appear as
the first two witnesses listed therein other three named witnesses being a
fishery agent owner of the fishpond referred to by Laureano Pasag his
statement sworn to before one of the appellants and a deputy fish warden.
From this it maybe inferred the first two being eyewitnesses of the violation
were necessary. This may have been the reason why they we not charged
with the violation by the appellants. But then to avail of their testimony
because no evidence, available to prove the violation charged, the
appellant should follow the provisions of the Rules on exclusion defendants
from the information in criminal cases. Although Quirino Ambrosio,
mentioned twice by Catalino Malanum in his affidavit and referred to but not
named Laureano Pasag in high sworn statement, is the least guilt because
he was in charge of running the motorboat a helped only and the fishes
thereon and was under order of the appellee de Castro, yet he was
included in the information.

There being no reason why the judgment appealed from should be

disturbed, the same is affirmed without pronouncement as to costs.
G.R. No. L-38621 August 30, 1974

ROMERO ESTRELLA y DE VENECIA, petitioner,

vs.
Hon. G. JESUS B. RUIZ, Presiding Judge, Branch I, CFI of Cagayan
First Judicial District, Tuguegarao, Cagayan, and FLORENTINO DE LA
PEA Provincial Fiscal of Cagayan, respondents.

Jose J. Estrella Jr. for petitioner.

Florentino de la Pea for and in his own behalf.

FERNANDEZ, J.:p

In this original action of certiorari and prohibition with preliminary injunction,

petitioner prays that the order1 dated April 23, 1974 of the Court of First
Instance of Cagayan (Branch I) in its Criminal Case No. 371 filed against
the petitioner and one Dante Custodia be annulled and that respectively,
respondents Provincial Fiscal Florentino de la Pea and Judge G. Jesus B.
Ruiz be prohibited permanently from proceeding with the reinvestigation of
the case and from hearing the same.

On July 21, 1973, at about 2:30 p.m., an owner jeep with a trailer driven by
herein petitioner and a motorized tricycle driven by Dante Custodio both
coming from opposite directions on the national highway of Barrio Ugac,
Tuguegarao, Cagayan, collided with each other; and, as a result, one of the
passengers sustained fatal injuries, three others were injured, and the two
vehicles were damaged.

The vehicular accident was investigated by a patrolman of the Tuguegarao

Police Department, and, on July 25, 1973, a complaint2 for "Homicide
through Reckless Imprudence" against the herein petitioner was filed
before the Municipal Court. The latter did not conduct any preliminary
investigation on the strength of a "Waiver"3 signed by the petitioner wherein
the same was numbered as Criminal Case No. 371.

Came August 3, 1973, petitioner (driver of the jeep) filed a complaint4 in the
Office of the Provincial Fiscal against Dante Custodio (driver of the tricycle)
for "Criminal Negligence Resulting to Homicide, with Multiple Physical
Injuries and Damage to Property."

That same day, petitioner, through his counsel requested the Provincial
Fiscal to conduct a reinvestigation of the complaint filed against him before
the Municipal Court and remanded to the Court of First Instance and the
preliminary investigation of the complaint filed by him against Dante
Custodio before the Provincial Fiscal.5 The latter granted the request and
directed Assistant Provincial Fiscal Leonardo Guiyab, Jr. to conduct an
investigation of both cases.6

On December 19, 1973, after the investigation, the respondent Provincial

Fiscal filed an information7 for "Homicide with Multiple Physical Injuries and
Damage to Property through Reckless Imprudence" against both petitioner
and Dante Custodio before the Court of First Instance of Cagayan.

On March 15, 1974, petitioner was arraigned and he pleaded not guilty to
the charge.8

On April 19, 1974, petitioner filed a motion to dismiss the case9 , on the
ground that the information was, invalid in view of the fact that the
certification of the Fiscal with respect to the preliminary investigation
conducted by him was limited to his co-accused Dante Custodia. The
motion was heard and argued on April 23, 1974, with the Fiscal opposing
the same. The respondent Judge denied the motion and the motion for
reconsideration which was filed afterwards, 10 but directed the Office of the
Provincial Fiscal to re-investigate the complaint with respect to the herein
petitioner for "the satisfaction of defense counsel." 11

Petitioner, in his present petition for a writ of certiorari filed with Us,
maintains that the information filed against him and his co-accused Dante
Custodio is null and void insofar as he is concerned, because the
certification of the Investigating Fiscal, embodied at the bottom of the
information, which states that a preliminary investigation was conducted
and that there exists a probable cause, referred to Dante Custodio
alone. 12 Petitioner then concludes that the respondent Judge acted with
grave abuse of discretion in not dismissing the case against him and in
further ordering the reinvestigation of the complaint insofar as he is
concerned.
The present case may be compared with the case of People vs.
Marquez 13 , wherein, notwithstanding the absence of a certification as to
the holding of a preliminary investigation in the information, We declared
the information to be valid, for the reason that such certification is not an
essential part of the information itself and its absence cannot vitiate it as
such. This Court, speaking through Mr. Justice Barredo, held:

... the question to determine in this case is, what was the effect of
appellee's failure to object to the information before or at the time he
entered his plea of not guilty. Assuming that said information was defective
because it did not contain the requisite certification regarding the fiscal's
having held a preliminary investigation where the accused was given an
opportunity to be present personally or thru counsel, such an omission is
not necessarily fatal. It should be observed that section 3 of Rule 110
defines an information as nothing more than an "accusation in writing
charging a person with an offense subscribed by the fiscal and filed with
the court." Thus, it is obvious that such certification is not an essential part
of the information itself and its absence cannot vitiate such. True, as
already stated, section 14 of Rule 111 14 enjoin that "no information ... shall
be filed, without first giving the accused a chance to be heard in a
preliminary investigation," but, as can be seen, the injunction refers to the
non-holding of the preliminary investigation, not the absence of the
certification. In other words, what is not allowed is the filing of the
information without a preliminary investigation having been previously
conducted, and the injunction that there should be a certification is only a
consequence of the requirement that a preliminary investigation should first
be conducted. Logically, therefore, inasmuch as the settled doctrine in this
jurisdiction is that the light to the preliminary investigation itself must be
asserted or invoked before the plea, otherwise, it is deemed waived, it
stands to reason, that the absence of the certification in question is also
waived by failure to allege it before the plea. After all, such certification is
nothing but evidence of a fact, and if the omission of the fact itself to be
certified is waived, if not properly raised before the accused enters his plea,
why should the omission merely of the certification be given more
importance than the absence of the fact itself to be certified to? Is it to be
sustained that if in a given case, there were such a certification although in
fact no preliminary investigation has been held, this Court is going to hold
that the requirement of a preliminary investigation has been complied with?
To ask the question is to immediately expose the absurdity of the
affirmative answer to it. (Emphasis Supplied)
Furthermore, herein petitioner did not question the validity of the
information on the ground of defective certification already adverted to
above with respect to preliminary investigation before he entered a plea of
not guilty. He filed his motion to quash only after 1 months thereafter.
Consequently, when he entered a plea of not guilty, he thereby waived all
objections that are grounds for a motion to quash, except lack of jurisdiction
or failure of the information to charge an offense 15 , specifically, he waived
his right to a preliminary investigation. In a long line of decisions, We have
previously held that the right to a preliminary investigation must be asserted
and invoked before or, at least, at the time of the entry of his plea in the
Court of First Instance, otherwise, it is deemed waived. 16

It is true that the certification with respect to preliminary investigation

makes mention only of the petitioner's co-accused Dante Custodia. But
petitioner does not deny the fact that a reinvestigation of the case filed
against him originally in the Municipal Court and remanded to the Court of
First Instance, and of his own complaint against Dante Custodia have been
ordered investigated by the Provincial Fiscal. The Assistant Provincial
Fiscal Leonardo Guiyab, Jr., to whom the investigation of said two cases
had been assigned, must have conducted the necessary reinvestigation of
the case against the petitioner and the investigation of the case filed by him
against Dante Custodia. And the Comment of the respondent Fiscal clearly
states that he concurred with the findings of the investigating Fiscal that
there is prima facie evidence against both respondents. As a matter of fact,
petitioner's objects to the holding of another reinvestigation insofar as the
case against him is concerned, as ordered by the respondent
Judge. 17 Petitioner, therefore, cannot say that there is no basis for
accusing him along with Dante Custodia. The basis thereof is not a
certification that a preliminary investigation has been held, but more so, the
actual holding thereof.

And even granting that no reinvestigation of the ease against herein

petitioner was conducted by the Office of the Provincial Fiscal, the fact is
that he has already previously waived his right to a preliminary investigation
when the case was still with the Municipal Court. Thus, in the Comment of
the respondent Fiscal he notes that the herein petitioner made an express
waiver of his right to a preliminary investigation in the Municipal Court; so,
when the case was remanded to the Court of First Instance, he "saw no
necessity in including the name of the petitioner in his certification in the
Information."
Petitioner claims that the resolution 18 of the investigating fiscal,
recommending the incorporation of the information against Dante Custodio
to that against petitioner, is of no import. On the contrary, this resolution,
which reads in its dispositive portion:

WHEREFORE, considering the existence of a prima facie case,

let an information be filed against the respondent Dante
Custodio, the same to be incorporated in the information to be
filed against Romero Estrella in Criminal Case No. 371, for
homicide, thru Reckless Imprudence, defined and penalized
under Article 365 of the Revised Penal Code, in connection with
the death of Mamerto Camayang. (Emphasis supplied)

marks out the clear intention to include petitioner and Dante Custodio as
the two accused in the information, "considering the existence of a prima
facie case."

WHEREFORE, finding no error in the order of the, respondent Judge

denying petitioner's motion to dismiss, the herein petition is hereby
dismissed with the modification that a new reinvestigation of the complaint
need not to be made, without pronouncement as to costs.

Zaldivar (Chairman), Bernando, Barredo, Antonio and Aquino, JJ, concur. .

SO ORDERED."
G.R. No. L-30485 May 31, 1984

BENJAMIN H. AQUINO, as Provincial Fiscal of Rizal, petitioner,

vs.
HON. HERMINIO C. MARIANO, Judge of the Court of First Instance of
Rizal (Branch X), and LUCIO ADRIANO, JR., respondents.

The Solicitor General for respondents.

RELOVA, J.:

On October 9, 1968, then Rizal Provincial Fiscal Benjamin H. Aquino filed

an information in the then Court of First Instance at Pasig, Rizal, docketed
as Criminal Case No. 18425 and entitled: The People of the Philippines vs.
Rodolfo Ceidoza, Jose R. Baricua, Cesario B. Ong, Lucio Adriano, Jr. and
Adriano Castillo, for estafa thru falsification of official and/or public
documents. Said criminal case, which arose from the huge expansion in
the area after a resurvey and subdivision of a certain parcel of registered
land in Muntinlupa, Rizal, and the approval by certain officials of the Land
Registration Commission of the corresponding plans and technical
descriptions prepared by the surveyor who resurveyed and subdivided the
property, was assigned to the branch of the then Court of First Instance of
Rizal presided by Hon. Pedro Revilla.

On October 27, 1968, Lucio Adriano, Jr., one of the defendants in said
Criminal Case No. 18425, instituted a petition for mandamus in the then
Court of First Instance of Rizal praying for an order directing Fiscal Aquino
to include as defendants in the information filed by him in Criminal Case
No. 18425 (not 18245) all persons of whom he found a prima facie case
as stated by him in Annex "B " of his Petition, particularly, Commissioner
Antonio Noblejas of the Land Registration Commission, who, in the
meantime, resigned from the office. The mandamus case, docketed as Civil
Case No. 11307, was assigned to Branch X, presided by herein respondent
Judge Herminio C. Mariano, who, thereafter, rendered a decision, dated
March 28, 1969, granting the petition for mandamus, the dispositive portion
of which reads:

IN VIEW OF ALL THE FOREGOING, decision is hereby

rendered in favor of the petitioner and against the respondent,
granting petitioner's prayer for the issuance of a Writ of
Mandamus, directing the respondent Benjamin H. Aquino,
Provincial Fiscal of Rizal, to include as accused in the
information filed by him in Criminal Case No. 18425 (not 18245)
of this Court, all persons, including Commissioner Antonio
Noblejas, against whom he found a prima facie case as stated
by him in his second indorsement dated June 20, 1968 address
to the Secretary of Justice, a copy of which is attached to the
present petition as Annex "B" thereof.

Let the corresponding Writ of mandamus issue.

Hence, this petition for review by certiorari praying that the decision of
respondent Court of First Instance be set aside and declaring that herein
petitioner cannot be compelled to include former Commissioner Antonio
Noblejas as one of the accused in Criminal Case No. 18425.
There is merit in the petition.

As stated in the decision sought to be reviewed, herein petitioner

conducted the corresponding preliminary investigation in the case assigned
to him and, in a second indorsement to the then Secretary of Justice, dated
June 20, 1968, he had expressed the view that a strong prima facie case
exists against Commissioner Noblejas and, therefore, recommended
strongly that he be allowed to file the corresponding information against
said commissioner and all other persons whom he found in his
investigation to be criminally liable for the offense complained of. However,
Fiscal Aquino, after a period of more than two months from the tune he
made his second indorsement, addressed a memorandum, dated
September 2, 1968, to the then Secretary of Justice stating, among others,
that in view of the offer of Commissioner Noblejas to resign from office and
in the fight of the Commissioner's explanation, he (herein petitioner) found
the responsibility of said commissioner, if any, to be only administrative in
nature. Thus, the information was filed without including Commissioner
Noblejas as one of the accused.

In the light of the foregoing facts, is the proper remedy of private

respondent Adriano, Jr., an action for mandamus, or a simple motion in
Criminal Case No. 18425 with prayer for an order directing Fiscal Aquino to
include in the information Commissioner Antonio Noblejas as one of the
defendants therein?

The Revised Rules of Court (Section 3, Rule 65) on Petition for mandamus
provides that "[w]hen any tribunal, corporation, board, or person unlawfully
neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant, immediately or at some
other specified time, to do the act required to be done to protect the rights
of the petitioner, and to pay the damages sustained by the petitioner, by
reason of the wrongful acts of the defendant." Stated differently,
mandamus is an extraordinary remedy that can be resorted to only in cases
of extreme necessity where the ordinary forms of procedure are powerless
to afford relief where there is no other clear, adequate and speedy remedy.
Before a writ of mandamus may be issued, it is obligatory upon the
petitioner to exhaust all remedies in the ordinary course of law. He must
show that the duty sought to be performed must be one which the law
specifically enjoins as a duty resulting from an office. (Quintero vs.
Martinez, 84 Phil. 496; Perez vs. City Mayor of Cabanatuan, 3 SCRA 431;
Alzate vs. Aldana, 8 SCRA 219; and, Caltex Filipino Managers and
Supervisors Association vs. Court of Industrial Relations, 23 SCRA 492).

Thus, if appeal or some other equally adequate remedy is still available in

the ordinary course of law, the action for mandamus would be improper. In
the case at bar, private respondent Adriano, Jr. did not request Fiscal
Aquino to include in the information Commissioner Noblejas as one of the
accused. Had he done so and the same was met with a denial Adriano, Jr.
could have appealed to the Secretary of Justice who may reverse petitioner
and designate another to act for the purpose. That way, the filing of a
simple motion with the Fiscal to include or to amend the information is
much more speedy and adequate than a petition for mandamus. As aptly
stated by the Solicitor General in his brief for the petitioner:

... By just presenting the motion, there will be no need of paying

any docket fee and the numbering of another case; there will be
no issuance and service of a summons or of an order
equivalent thereto; there win be no more raffles to determine
the sala of the court to which the case will be assigned; and
there will be no pre-trial all of which necessarily consume time.
At least, there is no prohibition in the rules against this
procedure. After all, a motion is defined as 'every application for
an order not included in a judgment' (Sec. 1, Rule 15, of the
Revised Rules of Court).

xxx xxx xxx

The conclusion is therefore inevitable that the filing of a mere

motion in the criminal case to achieve the same purpose as
prayed for in the petition for mandamus is not only an adequate
remedy but even a plainer, speedier, and more adequate
remedy in the ordinary course of law than mandamus.

Another substantial argument in favor of filing only a motion in

the criminal case instead of the petition for mandamus is that it
 will avoid multiplicity of suits which modern procedure abhors (3
Moran's Comments on the Rules of Court, 1963 ed., p. 134)

Otherwise stated, before filing the present action for mandamus in the court
below, private respondent Adriano, Jr. should have availed of this
administrative remedy and his failure to do so is fatal. To place his case
beyond the pale of this rule, it must be shown that his case falls which it
did not within the cases where, in accordance with this Court's
decisions, the aggrieved party need not exhaust administrative remedies
within his reach in the ordinary course of the law (Tapales vs. the President
and the Board of Regents of the U.P., G.R. No. L-17523, March 30, 1963;
Mangubat vs. Osmena, G.R. No. L-12837, April 30, 1959; Baguio vs.
Honorable Jose Rodriguez, G.R. No. L-11078, May 27, 1959; Pascual vs.
Provincial Board, G.R. No. L-11959, October 31, 1959; Marinduque Iron
Mines, etc. vs. Secretary of Public Works, G.R. No. L-15982, May 31,
1963; Alzate vs. Aldaba, G.R. L-14407, February 29, 1960 and Demaisip
vs. Court of Appeals, G.R. No. L-13000, September 25, 1959).

Neither is there merit in the argument that if a motion is presented before

the trial judge he would be prejudging the case if he should grant the same
because such a resolution win be presented only on a prima
facie evidence, while a judgment of conviction must be based on evidence
beyond reasonable doubt.

WHEREFORE, the petition is GRANTED and the decision dated March 28,
1969, of respondent judge is SET ASIDE.

SO ORDERED.
G.R. No. 111399 November 14, 1994

ODON PECHO, petitioner,

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

A.M. Navarro Law Office for petitioner.

DAVIDE, JR., J.:

Is the attempted or frustrated stage of the offense defined in Section 3(e) of

R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, punishable? If it is not, may an accused be,
nevertheless, convicted for an offense penalized by the Revised Penal
Code which is included in that of the former as charged?

These are the core issues in this case. The first was resolved in the
affirmative by the Sandiganbayan. The petitioner and the Office of the
Solicitor General disagree. The second is an outcrop of the first.

In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one
Jose Catre were charged in an information2 with the violation of Section
3(e) of R.A. No. 3019, as amended, allegedly committed as follows:

That on or about March 16, 1989 and/or sometime prior thereto

at Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused ODON PECHO, a
public officer being then the Customs Guard, Miscellaneous
Bonded Warehouse Division, Bureau of Customs, South
Harbor, Manila, with the indispensable cooperation and
assistance of the accused JOSE CATRE, whose position,
whether public or private, and address are unknown but
representing himself to be a representative of Eversun
Commercial Trading of Cotabato City, a corporation, firm or
partnership which turned-out to be non-existent, fake or
fictitious as it is not registered in the Department of Trade and
Industry nor in the Securities and Exchange Commission and
with a fake, spurious or fictitious Tax Account No. as it was not
issued by the Revenue Information Systems, Inc., Bureau of
Internal Revenue, acting in the capacities aforesaid, with the
former taking advantage of his official position and both
accused, motivated and impelled by personal gain, financial
and pecuniary interest, with deliberate intent to cause damage
and undue injury to the Government, through manifest partiality
and evident bad faith, conspiring, confabulating, conniving,
confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously act, pretend and feign
to be agents or representatives of Eversun Commercial Trading
in the importation of 5 x 20 foot containers STC agricultural disc
blades and irrigation water pumps, and engage, solicit and
contract the services of one Constantino Calica of Labatique, a
CPA Customs Broker for the release of said shipment and/or
preparation of the necessary import entry with the two (2)
accused, furnishing, presenting and producing the necessary
shipping documents such as packing list, commercial invoice,
bill of lading and import entry declaration, which led and
prompted said Customs Broker to file BOC Import Entry No.
14081-89 with the computed taxes and duties amounting to
P53,164.00 declaring the shipment as five (5) containers STC
agricultural disc blades and irrigation water pumps, more
particularly described as follows:

5 CONTAINERS STC:

200 pcs. Agricultural Disc Blades 24 inches in

diameter
100 pcs. Agricultural Disc Blades 30 inches in
diameter
50 sets Centrifugal Water Pump 5 HP
25 sets Centrifugal Water Pump Diesel Engine 10
H.P.
100 sets Centrifugal Water Pump Diesel engine 25
H.P.

but contrary to the entry declaration, the subject shipment

before its release, upon examination was found and/or
discovered to contain 300 units diesel engines Model 4DR50A,
to wit, viz.:
 1. Contr. No. EKLU-2673966 20' containing 60
pcs./units 4DR50A diesel engines

2. Contr. No. ITLU-6078177 20' containing 60

pcs./units 4DR50A diesel engines

3. Contr. No. UFCO-3976925 20' containing 60

pcs./units 4DR50A diesel engines

4. Contr. No. KLTU-1010988 20' containing 60

pcs./units 4DR50A diesel engines

5. Contr. No. KXTU-2027369 20' containing 60

pcs./units 4DR50A diesel engines

and the correct taxes and duties is P1,080,485.00, to the

damage and prejudice of the government in the difference of
said amounts or to be exact in the amount of P1,027,321.00,
said offense having been committed in relation to the office of
the above-named accused.

CONTRARY TO LAW.

The investigating prosecutor3 made the following certification in the

information:

This is to certify that a preliminary investigation has been

conducted in this case; that there is a reasonable ground to
engender a well-founded belief that a crime has been
committed and that the accused are probably guilty thereof. 4

Warrants for the arrest of the accused were issued. Only the petitioner was
brought under the Sandiganbayan's jurisdiction when he voluntarily
surrendered on 15 March 1991. He posted bail.5

After the petitioner had pleaded not guilty at his arraignment on 20 March
1991,6 trial on the merits as against him ensued.

In its decision 7 promulgated on 28 June 1993, the Sandiganbayan

(Second Division) found the petitioner guilty as charged and, applying the
Indeterminate Sentence Law, sentenced him "to suffer imprisonment for an
indeterminate period of Six (6) years and One (1) month as minimum
penalty,
to Ten (10) years and One (1) day, as maximum penalty, with perpetual
disqualification to hold public office; and to pay the Bureau of Customs, by
way of civil liability, the sum of P1,027,321.00 and to pay the costs." 8

The petitioner's motion for reconsideration based on the following grounds,

to wit:

(1) Invalidity of the information as a consequence of non-

compliance with the mandatory provisions of Sections 3 and 4,
Rule 112, 9 Rules of Court, and of Sections 6 and 7, Rules of
Procedure of the Office of the Ombudsman (Administrative
Order No. 07);

(2) Failure of the prosecution to overcome by proof beyond

reasonable doubt the presumption of innocence in favor of
accused Odon Pecho;

(3) Failure of the prosecution to establish the attendance of the

concurring essential elements of the crime charged; and

(4) There is no such crime as attempted violation of Section

3(e), RA 3019. 10

having been denied in the resolution of the Sandiganbayan of 12

August 1993, 11 he now comes before us with a reiteration of the said
grounds.

In its Manifestation in Lieu of Comment 12 filed after having obtained six

extensions of time to file its Comment, or for a total of one hundred and fifty
days, the Office of the Solicitor General submits that there is no merit to the
petitioner's claim that the information is invalid for non-compliance with
Sections 3 and 4, Rule 112 of the Rules of Court and with Sections 6 and 7
of the Rules of Procedure of the Ombudsman (Administrative Order No.
07), but agrees with the petitioner that the prosecution failed to prove the
elements of the crime charged and the consummation thereof, and, hence,
he should be acquitted. However, it recommends that the petitioner be
charged administratively for the violation of Section 36(b) [28] of P.D. No.
807, otherwise known as the Civil Service Decree of the Philippines.
In the challenged resolution, the Sandiganbayan rejected the first ground
invoked by the petitioner in his motion for reconsideration because of
waiver, having voluntarily entered his plea of not guilty, participated at the
trial, and offered his evidence. As to the second and third grounds, it ruled
that the decision "is supported with proof beyond reasonable doubt." And
as to the fourth ground, it held that the provisions of the Revised Penal
Code on attempted or frustrated felonies do not apply to offenses penalized
by special laws, like the Anti-Graft and Corrupt Practices Act; hence:

violation of Section 3(e) of RA 3019 is always consummated

irrespective of whether or not the accused has achieved his
purpose. The accused's argument that he did not realize his
purpose of depriving the government in the form of customs tax
and duties is of no moment. It is enough that the accused
committed an act that would cause undue injury to the
government to make him liable. 13

We agree with the respondent Sandiganbayan and the Office of the

Solicitor General that, indeed, the procedural issue raised is without merit.
Firstly, the certification of the investigating Prosecutor in the information is
sufficient. His failure to state therein that the accused was informed of the
complaint and of the evidence submitted against him and that he was given
an opportunity to submit controverting evidence, which the petitioner claims
is fatal because it is mandatorily required by Sections 3 and 4, Rule 112 of
the Rules of Court, is untenable. When the Prosecutor stated under oath
that, inter alia, "a preliminary investigation has been conducted in this
case," he gave the solemn assurance that such preliminary investigation
conformed with the requirements set forth in the said sections. The
certification in question is similarly worded as that involved in Alvizo
vs. Sandiganbayan 14 which this Court explicitly declared to be sufficient.
This Court also reiterated therein the doctrine laid down in People
vs.Marquez 15 that the absence of a certification as to the holding of a
preliminary investigation does not invalidate an information because such
certification is not an essential part of the information itself. In Marquez, this
Court held:

It should be observed that section 3 of Rule 110 defines an

information as nothing more than "an accusation in writing
charging a person with an offense subscribed by the fiscal and
filed with the court." Thus, it is obvious that such certification is
 not an essential part of the information itself and its absence
cannot vitiate it as such. True, as already stated, section 14 of
Rule 112 enjoins that "no information . . . shall be filed, without
first giving the accused a chance to be heard in a preliminary
investigation," but, as can be seen, the injunction refers to the
non-holding of the preliminary investigation, not the absence of
the certification. In other words, what is not allowed is the filing
of the information without a preliminary investigation having
been previously conducted, and the injunction that there should
be a certification is only a consequence of the requirement that
a preliminary investigation should first be conducted.

If the absence of a certification would not even invalidate the information,

then its presence, although deficient because of some missing clauses or
phrases required under Section 4, Rule 112 of the Rules of Court, can do
nothing worse than the former.

The rule is also settled that the right to a preliminary investigation may be
waived by the failure to invoke the right prior to or at least at the time of the
accused's plea. 16 Where the accused pleaded to the charge, he is deemed
to have foregone the right of preliminary investigation and the right to
question any irregularity that surrounds it. 17 The right to a preliminary
investigation is not a fundamental right and may be waived expressly or by
silence. 18

Equally devoid of merit is the alleged non-compliance with Sections 6 and

7, Rule II of the Rules of Procedure of the Office of the Ombudsman. The
presumption of regularity in the performance of official duty 19 on the part of
the investigating Prosecutor was not rebutted. Moreover, the failure to
furnish the respondent with a copy of an adverse resolution pursuant to
Section 6 which reads:

Sec. 6. Notice to parties. The parties shall be served with a

copy of the resolution as finally approved by the Ombudsman
or by the proper Deputy Ombudsman.

does not affect the validity of an information thereafter filed even if a copy
of the resolution upon which the information is based was not served upon
the respondent. The contention that the provision is mandatory in order to
allow the respondent to avail of the 15-day period to file a motion for
reconsideration or reinvestigation is not persuasive for under Section 7 of
the said Rule, such motion may, nevertheless, be filed and acted upon by
the Ombudsman if so directed by the court where the information was filed.
Finally, just as in the case of lack of or irregularity in the conduct of the
preliminary investigation, a party, like the petitioner herein, should have
seasonably questioned the procedural error at any time before he entered
his plea to the charge. His failure to do so amounted to a waiver or
abandonment of what he believed was his right under Sections 6 and 7,
Rule II of the Rules of Procedure of the Office of the Ombudsman.

We shall now direct our attention to the core issue in this case, viz.,
whether the attempted or frustrated stage of the crime defined in Section
3(e) of R.A. No. 3019 is punishable. From the facts proved by the
prosecution, the plan of the petitioner and his co-conspirators to defraud
the government was foiled. The Sandiganbayan stated:

However, the felonious plan of the two accused to defraud the

government was exposed and foiled through the combined
efforts of the employees of the Bureau of Customs. A spot
check on the shipment was conducted on March 9, 1989 by the
Customs Senior Agent Ruperto Santiago. They discovered that
the contents are automotive diesel engines instead of
agricultural disc blades and irrigation pumps as declared in the
import entry and revenue declaration (Exh. A-6) filed with the
Bureau of Customs, more particularly as follows:

xxx xxx xxx

On March 30, 1989, a random computation was

made by Customs Appraiser Mamerto Fernandez
based on the information provided by the Legal
Division and he found out that a discrepancy exists
in the total amount of taxes equivalent to
P1,627,321.00 20 (Exh. E). Consequently, a hold
order and also a warrant of seizure and detention
were issued by the District Collector of Customs
covering said goods. 21

The evidence for the prosecution, as summarized in the challenged

decision 22 and in the Manifestation of the Office of the Solicitor
General, 23 established beyond doubt how the petitioner and his co-
accused, Jose Catre, carried out their plan to defraud the Government.

The petitioner and Catre are from Surigao del Norte. On 15 March 1989,
Catre and the petitioner, then a Customs Guard of the Bureau of Customs
assigned at the Miscellaneous Bonded Warehouse Division, South Harbor,
Manila, went to the office of Constantino Calica, a certified public
accountant and a customs broker, at Magallanes Street, Intramuros,
Manila. They introduced themselves to Calica as the duly authorized
representatives of Eversun Commercial Trading, and then engaged him, for
an amount equal to fifty percent (50%) of the authorized brokerage fee, to
prepare and file with the Bureau of Customs the necessary Import Entry
and Internal Revenue Declaration covering Eversun's shipment. The
petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"), the
commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"), and the
sworn import entry declaration (Exhibit "A-6"). The shipment was declared
as agricultural disc blades and irrigation water pumps more particularly
described as follows:

200 pcs. Agricultural Disc Blades 24 inches in

diameter
100 pcs. Agricultural Disc Blades 30 inches in
diameter
50 sets Centrifugal Water Pump Diesel engine 5
HP
25 sets Centrifugal Water Pump Diesel engine 10
HP
100 sets Centrifugal Water Pump Diesel engine 25
HP

Based on the foregoing information and the unit HCV in currency per
invoice, the customs duties and taxes due were computed at P53,164.00.

On 16 March 1989, Calica instructed his son Dennis, also a customs

broker, to file the documents with the Manila International Container Port
(MICP) and to proceed to K-Line Shipping in Makati, Metro Manila, for the
processing of the delivery permits. Dennis first dropped by at K-Line
Shipping where he was approached by the petitioner and Catre who
introduced themselves as the clients of his father. They invited Dennis to
ride with them in petitioner's car in going to the MICP. Dennis agreed. Upon
arrival at the MICP, Dennis proceeded to the Entry Processing Division of
the Bureau of Customs and filed the import entry and internal revenue
declaration (Exhibit "A") and other supporting documents. Dennis handed
to the petitioner and Catre a copy of the import entry and internal revenue
declaration. They then proceeded to Section 6, the Examiner's Group, of
the Bureau of Customs for further processing.

Two days after the documents were submitted to the Entry Processing
Division, Catre called up Calica and requested Calica to assist him and the
petitioner when the cargo will be submitted for actual examination. Calica
agreed.

On 21 March 1989 Dennis met again with Catre for the processing of the
examination request. After filing the request with the arrastre operator,
Dennis checked the respective serial numbers of each container. Dennis
did not join anymore in the actual examination of the containers.

On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the

Bureau of Customs, addressed a formal request (Exhibit "B") to the District
Intelligence Officer of the Bureau for a 100% examination of the shipment
consigned to Eversun Commercial Trading.

On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a

spot check on the questioned shipment to verify the contents of the
container van. It was discovered that the contents were automotive diesel
engines instead of agricultural disc blades and irrigation pumps as declared
in the import entry and revenue declaration. The engines are more
particularly described as follows:

1. Contr. No. EKLU-2673966 20' containing 60 pcs./units

DR50A diesel engine

2. Contr. No. ITLU-6078177 20' containing 60 pcs./units

4DR50A diesel engine

3. Contr. No. UFCO-3976925 20' containing 60 pcs./units

4DR50A diesel engine

4. Contr. No. KLTU-1010988 20' containing 60 pcs./units

4DR50A diesel engine
 5. Contr. No. KXTU-2027369 20' containing 60 pcs./units
4DR50A diesel engine

The computation of the taxes due thereon made on 30 March 1989 by

Mamerto Fernandez, Customs Appraiser, showed a discrepancy in the total
amount of P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a
warrant of seizure and detention were issued by the District Collector of
Customs.

Per the directive of the Commissioner of Customs dated 20 April 1989,

Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and
Prosecution Division conducted an investigation on the circumstances
surrounding the interception and seizure of the shipment. Their verification
with the Securities and Exchange Commission (SEC) and the Department
of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is
a non-existent firm and that the tax account number used by Eversun in
making the Import Entry Declaration was non-existent.

During their investigation, Tugday and Tamparong issued two subpoenas

to the petitioner to appear before them. He did not appear to explain his
side. As a result, Tugday and Tamparong prepared an Investigation Report
(Exhibit "I") containing their findings and recommendations, among which
were the filing of criminal charges against the petitioner, Jose Catre, and a
certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs
Code of the Philippines and the filing of criminal charges against the
petitioner under Section 3610, in relation to Section 3512.

Subsequently, after appropriate preliminary investigation, the information

was filed with the Sandiganbayan.

On the basis of the evidence, the Sandiganbayan concluded that all the
elements of Section 3 (e) of R.A. No. 3019, to wit:

1. The accused is a public officer or private person charged in

conspiracy with him;

2. Said public officer commits the prohibited acts during the

performance of his official duties or in relation to his public
position;
 3. He causes undue injury to any party, whether the
government or private party;

4. Such undue injury is caused by giving unwarranted benefits,

advantage or preference to such parties; and

5. The public officer has acted with manifest partiality, evident

bad faith or gross inexcusable negligence. 24

are present in this case. More specifically, it said:

Accused Odon Pecho acted in bad faith from the very start
when he conspired with his co-accused Mr. Jose Catre in
misleading the government on the actual contents of the
shipments belonging to Eversun Commercial Trading and
thereby evading the payment of correct taxes due to the
government. "Bad faith" does not simply connote bad judgment
or negligence; it imputes a dishonest purpose or some moral
obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of the
nature of fraud. (Spiegel vs. Beacon Participations 8 NE 2nd
Series, 895, 1007). It contemplates a statement of mind
affirmatively operating with furtive design or some motive of
self-interest or ill will for ulterior purposes (Air France vs.
Carrascoso, 18 SCRA 155). Evident bad faith connotes a
manifest deliberate intent on the part of accused to do wrong or
cause damage.

As Customs Guard, the accused is supposed to safeguard the

interest of the government particularly the Bureau of Customs
to which he is employed. Nonetheless, he allowed himself to be
used in this illegal scheme to give unwarranted benefits or
advantage to the importer at the expense of the government.
The accused's participation is positively established by the
testimonies of Messrs. Constantino Calica and his son Dennis
Calica. These two represent the Calica Brokerage contracted
by the two accused Mr. Pecho and Mr. Catre to prepare and file
with the Bureau of Customs the required import entry
declaration. The two accused went straight to Mr. Calica's office
and introduced themselves as the duly authorized
representatives of Eversun Commercial Trading which is based
at Surigao del Norte. The contract of services entered into by
the two accused and Mr. Constantino Calica may be said to be
peculiar from the usual contract of this kind. It is limited only to
the preparation of the import entry declaration, the computation
of taxes due to the Bureau of Customs and filing the same with
the latter. It was the two accused who handed
Mr. Calica the shipping documents necessary for the
preparation of an import entry declaration such as the packing
list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading
(Exh. A-3) and the importer's sworn statement. These
documents declare the shipment as five (5) containers of STC
agricultural disc blades and irrigation water pumps more
particularly described as follows:

xxx xxx xxx

Based on the information given by the two accused, the taxes

and duties was computed at P53,164.00.

As the customs representative of Calica Brokerage, Dennis

Calica is in-charge with the filing and posting of documents with
the Bureau of Customs. On March 16, 1989, his father
instructed him to file the import entry declaration covering the
importations of Eversun Commercial Trading with the Bureau of
Customs. He dropped first at the head office of K Line Shipping
Company in Makati to process the delivery permits. While he
was there, two men approached him and introduced
themselves as Mr. Pecho and Mr. Catre, the clients of his
father. The two accused invited him to go with them and they
boarded Mr. Pecho's car and the three of them proceeded to
the Manila International Container Port. The two accused
accompanied him when the import entry declaration (Exh. A-6)
was filed with the Entry Processing Division, Bureau of
Customs. The services of the Calica Brokerage were again
solicited by the two accused in the actual examination of the
goods. So, on March 21, 1989, Dennis Calica met again with
the two accused for the said purpose.
 There is a deliberate intent on the part of the accused to do
wrong or cause damage to the government. This may be
inferred from the actuations of two accused. Their concerted
actions show that they cooperated with each other towards the
accomplishment of a common felonious purpose, in this case,
the defraudation of the government through non-payment of the
correct amount of taxes and duties to the latter (People vs.
Catubig, 195 SCRA 505). Accused Pecho assisted his co-
accused Catre in his official capacity as a customs guard in
processing the documents required to insure that the goods
consigned to Eversun Commercial Trading be released without
delay and without arousing suspicion from the government
authorities. Accused Pecho's act defeats the very objective of
the government to upgrade the system of collection with regard
to taxes and duties due to the government. Moreover, this is
tantamount to an act of betrayal of the confidence reposed in
him when he was employed as Customs Guard of the Bureau
of Customs. 25

There is no doubt in our minds that without the early discovery of the fraud
through the timely recommendation by the Chief Intelligence Officer for a
100% examination of the shipment and the spot check of the shipment by
Customs Senior Agent Ruperto Santiago, the Government would have
been defrauded in the sum of P1,027,321.00 corresponding to the
deficiency in taxes. Such discovery and the immediate issuance of a hold
order and a warrant of seizure and detention by the District Collector of
Customs against the said articles effectively prevented the consummation
of the offense. The Government incurred no undue injury or damage. At
most then, the violation of Section 3(e) of R.A. No. 3019 reached only the
attempted stage because the perpetrators had commenced the
commission of the offense directly by overt acts but failed to perform all the
acts of execution which would have produced the felony as a consequence
by reason or some cause other than their own spontaneous
desistance, 26namely, the timely intervention of alert customs officials
before the release of the cargoes.

Except then as to the third requisite of the offense penalized by Section 3

(e) of R.A. No. 3019, as amended, viz.: "causing undue injury to any party,
including the Government," we agree with the findings and conclusion of
the Sandiganbayan that the requisites thereof, as laid down in Ponce de
Leon vs. Sandiganbayan, 27 are present in this case. Would the absence of
the third requisite, which, therefore, makes the petitioner's act only an
attempted violation of Section 3(e), subject him to the same penalty as if he
had committed the consummated crime? The answer would depend on
whether Article 6 28 of the Revised Penal Code is applicable to offenses
punished by special laws, like R.A. No. 3019, as amended, more
specifically to that covered by Section 3(e) thereof, which is involved in this
case.

In United States vs. Basa, 29 this Court held that the last paragraph of
Article 3 of the Old Penal Code relating to attempts to commit crimes is not
applicable to offenses punished "by acts of the Commission," i.e., special
laws. In People vs. Ngan Te, 30 this Court also held that an accused cannot
be convicted of a frustrated violation of a crime punished by a special law
(Section 4 of the Gold Reserve Act of Congress of 30 January 1934).

In People vs. Jolliffe, 31 involving a prosecution for the violation of Section

34 of R.A. No. 265, in relation to Section 4 of Central Bank Circular No. 21
which provides:

Any person desiring to export gold in any form, including

jewelry, whether for refining abroad or otherwise, must obtain a
license from the Central Bank. Applicants for export licenses
must present satisfactory evidence that the import of the gold
into the country of the importer will not be in violation of the
rules and regulations of such country.

this Court, in rejecting the contention of the defense that the penalty for
violations of the circular refer to consummated exportation not to
"attempted or frustrated exportation," declared:

This section explicitly applies to "any person desiring to

export gold" and, hence, it contemplates the situation existing
prior to the consummation of the exportation. Indeed, its
purpose would be defeated if the penal sanction were deferred
until after the article in question had left the Philippines, for
jurisdiction over it, and over the guilty party, would be lost
thereby.

It may thus be said that the application of Article 6 of the Revised Penal
Code to offenses penalized by special laws would depend on how the latter
defines the offense. This would give life to Article 10 thereof which provides
that the Code shall be supplementary to special laws, unless the latter
should specifically provide the contrary. In the case of Section 4 of Central
Bank Circular No. 21, it is clear from the phrase "desiring to export" that
even a mere attempt to export which is necessarily included in desiring
is punishable.

There are two principal reasons why Section 3(e) of R.A. No. 3019, as
amended, can be said to penalize only consummated offenses. Firstly, the
penalty imposed therefor per Section 9 is "imprisonment for not less than
six years and one month nor more than fifteen years, perpetual
disqualification from office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth manifestly
out of proportion to his salary and other lawful income." The imposable
imprisonment penalty does not have the nomenclature and duration of any
specific penalty in the Revised Penal Code. Accordingly, there can be no
valid basis for the application of, inter alia, Articles 50 and 51 on the penalty
to be imposed on the principal of a frustrated and attempted felony. The
penalty of perpetual disqualification is only from office, unlike either the
perpetual absolute and perpetual special disqualifications under Articles 30
and 31 of the Revised Penal Code. Secondly, the third requisite of Section
3(e), viz., "causing undue injury to any party, including the government,"
could only mean actual injury or damage which must be established by
evidence. The word causing is the present participle of the word cause. As
a verb, the latter means "to be the cause or occasion of; to effect as an
agent; to bring about; to bring into existence; to make to induce; to
compel." 32 The word undue means "more than necessary; not proper;
illegal." 33 And the word injury means "any wrong or damage done to
another, either in his person, rights, reputation or property. The invasion of
any legally protected interest of another." 34 Taken together, proof of actual
injury or damage is required. Thus, inAlejandro vs. People, 35 which
involves a prosecution for the violation of Section 3(e) of R.A. No. 3019, as
amended, this Court, in acquitting the accused declared:

Moreover, one of the elements of the crime described in Sec.

3(e) of the Anti-Graft and Corrupt Practices Act is that there
should be undue injury caused to any party. However, in the 30
July 1987 decision of the respondent Sandiganbayan, it is
recognized that there was no proof of damage caused to the
 employees of the hospital since they were in fact paid on 27
October 1982 their salaries for the entire third quarter of 1982.

In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling

in Alejandro, also stated:

There is no evidence whatsoever to show that the acts of the

petitioners were done with evident bad faith or gross
negligence. Neither is there proof that there was undue injury
caused to any party. Who is the party injured? There is nothing
in the records to show injury to any party, least of all the
government. The urgent repairs were completed. The Bureau of
Customs personnel and the public dealing with them were
benefited but nobody was injured. But most of all, there was no
evident partiality.

No actual injury or damage having been caused to the Government due to

the timely 100% examination of the shipment and the subsequent issuance
of a hold order and a warrant of seizure and detention, the petitioner must,
perforce, be acquitted of the violation of Section 3(e) of R.A. No. 3019.
Fortunately, for the State, the offense charged in the information in Criminal
Case No. 14844 necessarily includes the complex crime of estafa (under
paragraph 2(a), Article 315, Revised Penal Code) through falsification of
public documents (under Article 171, Revised Penal Code). Article 315
reads:

Art. 315. Swindling (estafa). Any person who shall defraud

another by any of the means mentioned herein below.

xxx xxx xxx

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
commission of the fraud:

(a) By using fictitious name, or falsely pretending to

possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions,
or by means of other similar deceits.
 The information alleges in no uncertain terms the essential
ingredients of estafa under said paragraph 2 (a), viz., (1) false or
fraudulent representation of co-accused Jose Catre that he was the
duly authorized representative of Eversun Commercial Trading, the
alleged importer of agricultural disc blades and irrigation water pumps
in the container van when, in truth and in fact, said importer is non-
existent or fictitious with an equally spurious Tax Account Number,
and that the cargoes imported were not as declared but 300 units of
diesel engines, which fraudulent acts were done with the use of
falsified documents such as import entry declaration, packing list,
commercial invoice and bill of lading; (2) the false pretenses or
fraudulent acts were executed prior to the commission of the fraud;
and (3) the defraudation of the Government in the amount of
P1,027,321.00 in taxes representing the difference between the
correct taxes and duties due and that earlier computed on the basis
of the false declaration. In other words some of the essential
ingredients of the offense charged constitute the essential requisites
of estafa through falsification of official documents. If duly proved by
the evidence for the prosecution that satisfies the quantum of proof
required for conviction, the petitioner can, under the information be
convicted of estafa through falsification of official and commercial
documents, an offense which is, as stated earlier, included in that
which is charged.

Section 4, Rule 120 of the Rules of Court provides:

Sec. 4. Judgment in case of variance between allegation and

proof. When there is variance between the offense charged
in the complaint or information, and that proved or established
by the evidence, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is
charged, or of the offense charged included in that which is
proved.

Analyzing this provision, this Court stated in Esquerra vs. People: 37

Stated differently, an accused may be convicted of an offense

provided it is included in the charge, or of an offense charged
which is included in that proved. Still stated differently, an
 accused can be convicted of an offense only when it is both
charged and proved. If it is not charged although proved, or if it
is not proved although charged, the accused cannot be
convicted thereof. In other words, variance between the
allegation and proof cannot justify conviction for either the
offense charged or the offense proved unless either is included
in the other.

Section of Rule 120 states when an offense includes or is included in the

other:

Sec. 5. When an offense includes or is included in another.

An offense charged necessarily includes that which is proved,
when some of the essential elements or ingredients of the
former, as this is 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.

In view of the aforesaid rules, it follows then that:

a. When the offense proved is less serious than, and is

necessarily included in, the offense charged (as when the
offense proved is homicide and the offense charged is murder),
in which case the defendant shall be convicted of the offense
proved (U.S. vs. Macalintal, 2 Phil.
448; . . .).

b. When the offense proved is more serious than and includes

the offense charged (as when the offense proved is serious
physical injuries and the offense charged is slight physical
injuries), in which case the defendant shall be convicted only of
the offense charged (U.S. vs. Guzman, 8 Phil. 21 . . .). 38

As earlier adverted to, the evidence established by the prosecution proves

beyond reasonable doubt that the crime of estafa was only at its attempted
stage and that it was sought to be consummated through the falsification of
the following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit
"A-4"), which appear to be prepared by the exporter, Kowa Tsusho Co. Ltd.
through one Masayuki Higuchi, its general manager; Bill of Lading (Exhibit
"A-5") which appears to be issued in Yokohama by the Kisen Kaishe Ltd.;
the sworn Import Entry Declaration (Exhibit "A-6") all of which show that the
cargoes imported were "agricultural disc blades and irrigation water pumps;
as well as the Import Entry and Internal Revenue Declaration signed by
customs broker Constantino Calica and prepared on the basis of the
foregoing documents. The falsifications consist in making it appear that the
importer-consignee indicated is a legitimate importer or an existing importer
which had participated in such importation and authorized the accused to
request the release of the imported articles although, in truth, it is non-
existent and, therefore, had no participation in the importation; and in the
untruthful statements that what were imported were agricultural disc blades
and irrigation water pumps when in truth they were automotive diesel
engines.

The information in this case can also be considered as charging two

offenses: the violation of Section 3(e) of R.A. No. 3019 and the complex
crime of attempted estafa through falsification of official and commercial
documents. The accused having failed to object before trial to the
duplicitous information, he may be validly convicted of both or either of the
offenses charged and proved. 39

The Import Entry Declaration (Exhibit "A-6"), a public and official document,
is required by Section 1301 of the Revised Tariff and Customs Code of the
Philippines. 40 Under the said section, the parties authorized to make the
import entry are (a) the importer, being the holder of the bill of lading, (b) a
duly licensed customs broker acting under authority from a holder of the bill
of lading, or (c) a person duly empowered to act as agent or attorney in fact
for such holder. If the entry is filed by a party other than the importer, the
importer shall himself be required to declare under oath and under
penalties for falsification or perjury that the declarations and statements
contained in the entry are true and correct. Such statements under oath
shall constitute prima facie evidence of knowledge and consent of the
importer of a violation against applicable provisions of the Code should the
importation turn out to be unlawful or irregular.

The falsifications then of the aforesaid official and commercial documents

were the necessary means for the commission of the attempted estafa.

There was no direct proof that the petitioner and his co-conspirator, Jose
Catre, were the authors of the falsification. Nevertheless, since it was
shown with moral certainty from the testimony of the Calicas that the
petitioner and Catre were in possession of the falsified documents and
personally delivered them to Dennis Calica and that they showed
extraordinary personal interest in securing the release of the cargoes for a
fictitious importer, then the petitioner and Catre are presumed to be the
authors of the falsified documents. A rule, well-buttressed upon reason, is
that in the absence of satisfactory explanation one found in possession of
and who used a forged document is the forger and therefore guilty of
falsification. 41 It is, however, essential that the use must be so closely
connected in time with the forging such that the utterer or user may be
proved to have the capacity of forging, or such close connection with the
forger that it becomes, when so accomplished, probable proof of complicity
in the forgery. 42

In People vs. Sendaydiego, 43 this Court reiterated the rule thus:

The rule is that if a person had in his possession a falsified

document and he made use of it (uttered it), taking advantage
of it and profiting thereby, the presumption is that he is the
material author of the falsification. This is especially true if the
use or uttering of the forged documents was so closely
connected in time with the forgery that the user or possessor
may be proven to have the capacity of committing the forgery,
or to have close connection with the forgers, and, therefore,
had complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453;
People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil.
28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala,
105 Phil. 1253).

In the absence of a satisfactory explanation, one who is found

in possession of a forged document and who used or uttered it
is presumed to be the forger (Alarcon vs. Court of Appeals, L-
21846, March 31, 1967, 19 SCRA 688; People vs. Caragao, L-
28258, December 27, 1969, 30 SCRA 993).

No explanation at all having been given by the petitioner as to why he and

his co-accused were in possession of and used the falsified official and
commercial documents, they are deemed to be the forgers thereof.
Accordingly, the petitioner is liable for and can be validly convicted of the
complex crime of attempted estafa through falsification of official and
commercial documents under paragraph 2(a) of Article 315 and Article 171
of the Revised Penal Code. Pursuant to Article 48, the penalty for the more
serious crime shall be applied in its maximum period.

If the crime of estafa had been consummated, the Government would have
been defrauded in the amount of P1,027,321.00. Hence, the applicable
penalty under Article 315 of the Revised Penal Code would have
been prision correccional in its maximum period to prision mayor in its
minimum period, with an additional one (1) year for every P10,000.00 in
excess of the first P22,000.00; provided, that the total penalty should not
exceed twenty years.

Since what was established was only attempted estafa, then the applicable
penalty would be that which is two degrees lower than that prescribed by
law for the consummated felony pursuant to Article 51, in relation to Article
61(5), of the Revised Penal Code, viz., arresto mayor in its medium period
to arresto mayor in its maximum period.

On the other hand, the penalty for falsification under Article 171 is prision
mayor and a fine not exceeding P5,000.00. Obviously then, this is the more
serious crime which shall be imposed upon the petitioner pursuant to
Article 48. Since he is entitled to the benefits of the Indeterminate Sentence
Law, 44 he can be sentenced to an indeterminate penalty ranging from two
(2) years, four (4) months, and one (1) day of prision correccional medium
as minimum to ten (10) years and one (1) day of prision mayor maximum
as maximum and a fine of P2,000.00. The maximum of the duration is in
conformity with Article 48 which mandates that the penalty for the more
serious crime shall be applied in its maximum period.

The foregoing disquisitions clearly suggest that those in charge of

investigating criminal complaints against public officials and employees and
of filing the corresponding informations in court must carefully determine
under what law the offenders should be prosecuted. They should note that
the offenses enumerated in Section 3 of the Anti-Graft and Corrupt
Practices Act (R.A.
No. 3019, as amended) are but in addition to acts or omissions of public
officers already penalized by existing law. Thus, to attain the very purpose
of said law and further enhance the constitutional mandate that a public
office is a public trust and all public officers and employees "must at all
times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency," 45 prosecutors should not limit their action
to the additional offenses. To be more logical, they should initially consider
if the questioned acts are already penalized by the Revised Penal Code
and should the rule on double jeopardy be inapplicable, to exhaust all the
available remedies of the State against the offender. It is a cardinal rule
that the protection against double jeopardy may be invoked only for the
same offense. 46

WHEREFORE, the instant petition is DENIED; however, the judgment of

the Sandiganbayan in Criminal Case No. 14844 is modified, and, as
modified, the petitioner is hereby declared guilty beyond reasonable doubt
of the complex crime of attempted estafa through falsification of official and
commercial documents and, applying the Indeterminate Sentence Law, is
hereby sentenced to suffer an imprisonment penalty ranging from TWO (2)
YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision
correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY
of prision mayor maximum as maximum, with the accessories thereof and
to pay a fine of Two Thousand Pesos (P2,000.00).

Costs against the petitioner.

SO ORDERED.
G.R. No. L-23654 March 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
VICENTE MARQUEZ, defendant-appellee.

Office of the Solicitor General Arturo A. Alafriz,

Assistant Solicitor General Antonio G. Ibarra and Solicitor Oscar C.
Fernandez for plaintiff-appellant.
Madrid Law Office for defendant-appellee.

BARREDO, J.:

Appeal by the People from the order of the Court of First Instance of Albay
in its Criminal Case No. 3544, granting the motion to dismiss filed by the
appellee, Vicente Marquez.

On November 12, 1962, a complaint for frustrated homicide was filed with
the then Justice of the Peace Court of Camalig, Albay, against appellee
Vicente Marquez. The said complaint was signed by one Consolacion
Musa Solano, mother of the offended party, Wenceslao Solano, who was
then confined in the Albay Provincial Hospital, in consequence of the crime
charged. A warrant of arrest was issued, but this was not carried out
because the accused had filed a bail bond in the amount of P12,000.00.
When the case was later called for purposes of conducting the second
stage of the preliminary investigation, the accused, thru counsel, waived his
right thereto; accordingly, the record of the case was remanded to the
court a quo; and on July 9, 1963, the Provincial Fiscal of Albay filed the
corresponding information with the said court.

Upon being arraigned on August 22, 1964, appellee entered a plea of not
guilty to the charge.

On the day of the trial on September 25, 1964, without asking for leave to
withdraw his previously-entered plea, appellee filed a motion to dismiss on
the ground that the information filed by the Provincial Fiscal of Albay
based on the complaint signed by Consolacion Musa Solano in behalf of
her victim-son or offended party was null and void and the court had no
jurisdiction to hear, try and decide the case.
 Resolving the grounds raised in said motion to dismiss as well as those in
the oppositions thereto, separately filed by the private prosecutor and the
Assistant Provincial Fiscal of Albay, on October 1, 1964, the court
dismissed the case, with costs de oficio, and ordered the cancellation of the
bail bond of appellee. The Assistant Provincial Fiscal concerned has
appealed from the dismissal aforesaid directly to this Court.

The People's appeal is premised on the following assignment of errors:

I. The lower court erred in dismissing the case after the appellee had
already pleaded to the information.

II. The lower court erred in holding that it did not acquire jurisdiction to
try the case.

On the other hand, as herein earlier intimated, the main point of appellee
which was sustained by the trial court is that the complaint signed by the
mother of the offended party which initiated the proceedings in the justice
of the peace court was invalid because under Section 2 of Rule 110, a
complaint may be subscribed and sworn to only by "the offended party, any
peace officer or other employee of the government or governmental
institution in charge of the enforcement or execution of the law violated"
and, consequently, the information based on the said complaint filed by the
Provincial Fiscal of Albay, without said fiscal having conducted another
preliminary investigation, did not grant jurisdiction to the court.

The People's appeal should be sustained.

We do not hesitate to agree with the Solicitor General that the trial court's
questioned order of dismissal is erroneous, being based, as it is, on the
ground that it had no jurisdiction over this case because the initial
complaint filed with the justice of the peace court was not signed by the
offended party and was, therefore, invalid. It may be conceded that, as
appellee argues, apart from what is provided in the Rule cited, there are
precedents to the effect that, except as to the government officers
authorized by said Rule, the filing of a complaint is personal to the offended
party. 1 This is not, however, the only principle involved under the complete
factual setting of this case. It must be remembered that appellee did not
attack the said complaint while his case was still in the justice of the peace
court, where, on the contrary, he waived the preliminary investigation
proper; he allowed the case to be remanded to the court of first instance
and folded his arms when the provincial fiscal filed the corresponding
information; and, he did not object to his being arraigned, instead he merely
entered a plea of not guilty at said arraignment. In this circumstances, We
hold that the initial complaint has lost his importance and the case can be
viewed only in the light of the information subsequently filed by the
provincial fiscal, as suggested by the Solicitor General.

We do not lose sight of the fact that in the truth the fiscal did not conduct
any preliminary investigation of his own and, as a matter of fact, the
information filed by him with the court a quo did not carry with it the sworn
certification of the fiscal, required by section 14 of Rule 112, that the
appellee was "given a chance to appear in person or by counsel at said
examination and investigation." Neither are We overlooking precedents to
the effect that absence of a preliminary investigation is a grave irregularity
which nullifies the proceedings because it violates the right to due
process. 2 We perceive, however, that the situations involved in those
precedents cannot be equated with the circumstances obtaining here, for
while there, the objections to the procedure followed were opportunately
raised before here, appellee sought the dismissal of this case long after he
had already entered his plea of not guilty to the information filed by the
fiscal.

Therefore, the question to determine in this case is, what was the effect of
appellee's failure to object to the information before or at the time he
entered his plea of not guilty. Assuming that said information was defective
because it did not contain the requisite certification regarding the fiscal's
having held a preliminary investigation where the accused was given an
opportunity to be present personally or thru counsel, such an omission is
not necessarily fatal. It should be observed that section 3 of Rule 110
defines an information as nothing more than "an accusation in writing
charging a person with an offense subscribed by the fiscal and filed with
the court." Thus, it is obvious that such certification is not an essential part
of the information itself and its absence cannot vitiate it as such. True, as
already stated, section 14 of Rule 112 enjoin that "no information ... shall
be filed, without first giving the accused a chance to be heard in a
preliminary investigation," but, as can be seen, the injunction refers to the
non-holding of the preliminary investigation, not the absence of the
certification. In other words, what is not allowed is, the filing of the
information without a preliminary investigation having been previously
conducted, and the injunction that there should be a certification is only a
consequence of the requirement that a preliminary investigation should first
be conducted. Logically, therefore, inasmuch as the settled doctrine in this
jurisdiction is that the right to the preliminary investigation petition itself
must be asserted or invoked before the plea, otherwise, it is deemed
waived, 3 it stands to reason, that the absence of the certification in
question is also waived by failure to allege it before the plea. After all, such
certification is nothing but evidence of a fact and if the ommision of the fact
itself to be certified is waived, if not properly raised before the accused
enters his plea, why should the omission merely of the certification be given
more importance than the absence of the fact itself to be certified to? Is it to
be sustained that if in a given case, there were such a certification although
in fact no preliminary investigation has been held, this Court is going to
hold that the requirement of a preliminary investigation has been complied
with? To ask the question is to immediately expose the absurdity of the
affirmative answer to it.

To be sure, the situation of appellee may be compared with another case

where the fiscal, for one reason or another, files an information without
holding any preliminary investigation and without any such preliminary
investigation having been conducted by the municipal court concerned.
After all, under the Rules, a criminal action may also be initiated by the
fiscal filing an information with the proper court. (section 3, Rule 110) On
the other hand, as already stated, this Court hag consistently held that the
defense of absence of a preliminary investigation must be raised before the
entry of the plea, otherwise, it is waived. Accordingly, even assuming, for
the sake of argument, that the complainant in the justice of the peace court
was void, as contended by appellee, on the other hand, the filing of the
information in question with the court a quo made the issue of validity of
said complaint already academic, considering that the said complaint held
already been superseded by the said information. And since the said
information is sufficient in form and substance, and the absence of a
preliminary investigation may only be raised before the accused enters his
plea, otherwise, it is waived, it follows that appellee forfeited his right to
question both the complaint and the information under discussion by
entering his plea of not guilty and otherwise submitting to the jurisdiction of
the court for trial.lwphi1.et

WHEREFORE, the order appealed from is reversed, and this case is

hereby remanded to the lower court for further proceedings, with costs
against appellee.
G.R. No. L-29086 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant

vs.
EDILBERTO GOMEZ, PRUDENCIO N. CICHON, CESAR V. CASTILLO,
PEDRO CUENTO and JOHN DOE, defendant-appellees.

G.R. No. L-29087 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
LORENZO DELANTAR, PRUDENCIO N. CICHON, JESUS F. ATILANO,
JOHN DOE and RICHARD DOE, defendants-appellees.

G.R. No. L-29088 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
PRUDENCIO N. CICHON and PAULINO T. DUMA, defendants-appellees.

G.R. No. L-29089 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
JESUS F. ATILANO, PRUDENCIO N. CICHON and PEDRO
CUENTO, defendants-appellees.

RELOVA, J.:

In 1962, four (4) informations were filed by the prosecuting fiscals before
the Court of First Instance of Zamboanga City. They were as follows:

1. Criminal Case No. 3083.On May 24, 1962, Edilberto Gomez,

Prudencio N. Cichon, Cesar V. Castillo, Pedro Cuento and John Doe were
charged in the Court of First Instance of Zamboanga City with the crime of
Estafa thru falsification of public/official documents. The case was docketed
as Criminal Case No. 3083.
The prosecuting officers certified under oath that they had conducted a
preliminary investigation of the case in accordance with law; and that they
believed that the offense charged had been committed and the accused
were probably guilty thereof. The corresponding warrant of arrest for each
of the accused was accordingly issued and the accused subsequently filed
their bond for provisional liberty (pp. 10, 11, 15- 18,21, 25-26, Rec.). On
June 26, 1964, the accused Pedro Cuento and Cesar Castillo pleaded not
guilty to the information (p. 54, Rec.); Edilberto Gomez and Prudencio
Cichon pleaded not guilty on October 21, 1964 (p. 61, Rec.).

2. Criminal Case No. 3084.On May 24, 1962, the state prosecutors filed
another information in the lower court for the crime of Estafa thru
falsification of public/official documents against Lorenzo Delantar,
Prudencio Cichon, Jesus F. Atilano and two other unidentified persons,
Richard Doe and John Doe. The case was docketed as Criminal Case No.
3084. As in the preceding case, the prosecution certified under oath that
they conducted a preliminary investigation of the case, in accordance with
law; that they believed the offense was committed and the accused were
probably guilty thereof (pp. 1-3, Rec.). The accused Prudencio Cichon and
Lorenzo Delantar, filed their respective bond for provisional liberty (pp. 23-
24, 2930, Rec.).

Upon arraignment, Jesus Atilano, Prudencio Cichon and Lorenzo Delantar

pleaded not guilty to the offense charged in the information (pp. 60, 70,
Rec.).

3. Criminal Case No. 3088.On May 24, 1962, another information for
Estafa thru falsification of public/official documents was filed in the Court of
First Instance of Zamboanga City against Prudencio Cichon and Paulino
Duma, This case was docketed as Criminal Case No. 3088. The
information carries also the certification of the State Prosecutors that they
had conducted a preliminary investigation in the case and that they
believed that the offense charged had been committed and that the
accused were probably guilty thereof (pp. 1-3, Rec.).

After their arrest, the accused were released provisionally upon filing a
bond of P1,000.00 each (pp. 14-15; 16-17, Rec.). On April 26, 1964, the
two accused pleaded not guilty to the charge (p. 33, Rec.).
4. Criminal Case No. 3128.On October 1, 1962, Prudencio Cichon, Jesus
F Atilano and Pedro Cuento were charged in an information for Estafa thru
falsification of public/official documents in the Court of First Instance of
Zamboanga City (pp. 1-2, rec.). This case was docketed as Criminal Case
No. 3128. Since the information did not contain a certification that a
preliminary investigation of the case had been made by the prosecutors,
the District Judge himself made the preliminary investigation and once
satisfied that a prima facie case against the three accused existed, issued
warrants for their arrest on the same day, October 1, 1962 (p. 6, Rec.). The
accused, however, were released on a bail of P1,000.00 each (pp. 9-10, 1
112, and 15-16, Rec.). At the arraignment on June 26, 1966, all the
accused pleaded not guilty to the charge (pp. 31-32, Rec.).

On June 22, 1966, the accused in the four (4) cases, thru their counsel,
filed a MOTION TO DECLARE INFORMATIONS AND WARRANTS OF
ARREST null and void on the ground that the prosecution failed to observe
the provisions of Section 13 and 14 of Rule 112 of the New Rules of Court
regarding preliminary investigation and prayed the court to cancel the
warrants of arrest issued.

On September 27, 1966, the lower court, for lack of merit, denied the
aforesaid motion.

Upon a motion for reconsideration filed by the accused, thru counsel, the
lower court, on November 2, 1966, reversed its former ruling and ordered
the dismissal of all the four (4) cases against them, without prejudice to the
refiling of the same, and ordered the cancellation of the bonds posted for
the provisional liberty of the accused.

From the said order of dismissal, the prosecution appealed to this Court
alleging that the trial court erred "in dismissing Criminal Cases Nos. 3083,
3084, 3088 and 3128 on the ground that the preliminary investigations
conducted therein were not in accordance with Sections 13 and 14 of Rule
112, in relation to Rule 144 of the Revised Rules of Court.

The People's appeal should be sustained. The trial court's questioned order
of dismissal is erroneous. Sections 13 and 14 of Rule 112 of the New Rules
of Court provide:

SEC. 13. Preliminary examination and investigation by the

judge of the Court of First Instance.Upon complaint filed
 directly with the Court of First Instance, without previous
preliminary examination and investigation conducted by the
fiscal, the judge thereof shall either refer the complaint to the
municipal judge referred to in the second paragraph of section
2 hereof for preliminary examination and investigation, or
himself conduct both preliminary examination and investigation
simultaneously in the manner provided in the preceding
sections, and should he find reasonable ground to believe that
the defendant has committed the offense charged, he shall
issue a warrant for is arrest, and thereafter refer the case to the
fiscal for the filing of the corresponding information.

SEC. 14. Preliminary examination and investigation by

provincial or city fiscal or by state attorney in cases cognizable
by the Court of First Instance.Except where an investigation
has been conducted by a judge of first instance, municipal
judge or other officer in accordance with the provisions of the
preceding sections, no information for an offense cognizable by
the Court of First Instance shall be filed by the provincial or city
fiscal, or state attorney, without first giving the accused a
chance to be heard in a preliminary investigation conducted by
him or by his assistant by issuing a corresponding subpoena. If
the accused appears the investigation shall be conducted in his
presence and he shall have the right to be heard, to cross-
examine the complainant and his witnesses, and to adduce
evidence in his favor. If he cannot be subpoenaed, or if
subpoenaed he does not appear before the fiscal, the
investigation shall proceed without him.

The fiscal or state attorney shall certify under oath in the

information to be filed by him that the defendant was given a
chance to appear in person or by counsel at said examination
and investigation.

The preliminary investigations in these four (4) cases were terminated in

1962, or before the New Rules of Court took effect on January 1, 1964.
Rules 112 and 113 thereof cannot, therefore, apply to these cases at bar.

Besides, in Criminal Case No. 3803, the government prosecutors certified

under oath that they had conducted a preliminary investigation in said case
in accordance with law, and on the basis thereof, then Judge Carmelo
Alvendia issued the corresponding warrant of arrest against all the
accused.

Likewise, in Criminal Cases Nos. 3084 and 3088, there appear the
certifications of Special Prosecutor Edilberto Barot, Jr. and Special Counsel
Vicente G. Largo. And, in Criminal Case No. 3128, it was District Judge
Gregorio Montejo who conducted the preliminary investigation and, finding
the existence of a prima facie case, ordered the arrest of the defendant.

It is clear, therefore, that the required investigations were complied with.

But then, assuming that the informations did not contain the requisite
certificates regarding the Fiscal's having held a preliminary investigation,
the omissions are not necessarily fatal. The absence of preliminary
investigations does not affect the court's jurisdiction over the case. Nor do
they impair the validity of the information or otherwise render it defective. If
there were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court to their absence, the
court, "instead of dismissing the information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the inferior
court so that the preliminary investigation may be conducted." (People vs.
Casiano, 1 SCRA 478). The defendants in these cases did not question the
validity of the informations on the ground of defective certifications or the
right to preliminary investigations before they entered the plea of not guilty.
They filed the motion to declare informations and warrants of arrest null
and void only after more than one (1) year thereafter. Consequently, when
they entered a plea of not guilty, they thereby waived all objections that are
grounds for a motion to quash, except lack of jurisdiction or failure of the
information to charge an offense. Thus, they waived the right to a
preliminary investigation when they failed to invoke it prior to, or at least at,
the time of the entry of their plea in the Court of First Instance.

Inasmuch as the settled doctrine in this jurisdiction is that the

right to the preliminary investigation itself must be asserted or
invoked before the plea, otherwise, it is deemed waived, it
stands to reason, that the absence of the certification in
question is also waived by failure to allege it before the plea."
(Estrella vs. Ruiz, 58 SCRA 779)
All the defendants in the four (4) cases had already entered the plea of not
guilty when they filed the motion to declare the informations and warrants
of arrest null and void.

ACCORDINGLY, the order dated November 2, 1966 of the Court of First

Instance of Zamboanga is set aside and the said court is hereby ordered to
proceed with the trial of the said criminal cases.

SO ORDERED.
 [G.R. No. L-37836 : July 31, 1981.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
CLAUDIO BULAONG and FONSO LAURECIO, Accused-
Appellants.

DECISION

AQUINO, J.:
Claudio Bulaong appealed from the decision dated September 28,
1973 of the Court of First Instance of South Cotabato, General
Santos City Branch I, convicting him of eight complex crimes of
forcible abduction with rape, sentencing him to eight penalties of
reclusion perpetua and ordering him to pay the victim, Delena
Segapo, a total indemnity cranad(including attorneys fees) of
P130,000 cranad(Criminal Case No. 559).
In that same decision, Alfonso Laurecio was convicted as an
accomplice and sentenced to an indeterminate penalty of four
years, two months and one day of prision correccional as minimum
to ten years and one day of prision mayor as maximum and to pay
the same indemnity to Delena Segapo.
In this Courts resolution of February 1, 1979, Laurecios petition
to withdraw his appeal was granted cranad(p. 183, Rollo).
In the afternoon of December 5, 1972, Delena Segapo, 14, and her
sister, Nena, 8cranad(both Bilaans), left their house at Barrio
Landan, Polomolok, South Cotabato, to perform an errand for their
father. After walking for about forty minutes, they boarded a
passenger jeepney and arrived in the public market of General
Santos City at around six oclock in the evening.
Their destination was Barrio Kiblat, Malungon, South Cotabato
where they were going to collect an account from a person named
Tamigo. But as there was no more jeepney going to Malungon at
that hour, the sisters decided to take a tricycle to convey them to
the house of Pedro Mula, their relative residing at Laurel Street in
that city.
Before the two girls could ride in a tricycle, Claudio Bulaong, 35-
year-old married man with five children, appeared at the market
place. He was well-known to the two sisters because, as an only
son, he administered his family lands in Barrio Landan where many
Bilaans resided. Bulaong alighted from his jeep, pointed his gun at
the two sisters, held Delenas neck and forced her and her sister to
board his jeep.
He conducted them to the New Bay View Hotel in the city where
Bulaong forced them to enter Room 304. He was still holding his
gun with one hand and with his other hand, he held Delenas arm.
He threatened to kill the two sisters if they would escape and refuse
to enter the hotel room.
After they had entered the room, Bulaong locked the door. He
removed Delenas jeans and panties and pushed her to one of the
beds. He undressed. When Delena was on the bed, he stripped her
of her blouse and bra and placed himself on top of her.
She resisted, spitting at him and kicking and scratching him. She
was crying. Her sister, Nena, was also in tears, a helpless spectator
of the ravishment being committed against Delena. Bulaong spread
Delenas legs, inserted his penis into her vagina and made push-
and-pull movements. He succeeded in having sexual congress with
her.
After satisfying his lust, Bulaong went out of the room. He took the
precaution of locking it to prevent the two sisters from escaping.
He obtained food from the restaurant on the ground floor. He
reentered the room with the food. Delena refused to eat.
Bulaong had sexual intercourse with Delena eight times in the
hotel. She suffered pain in her genital organ. It was bleeding. At
about six oclock in the afternoon of the following day, December
6, Bulaong and the two sisters left the hotel. He brought them in
his jeep to his parents bungalow in Barrio Landan which was then
unoccupied. They were locked in a room. Fonso Laurecio, a
houseboy armed with a gun, guarded them. Bulaong had sexual
intercourse with Delena in that place.
On December 31, 1972, while Bulaong and Delena were taking
lunch, the eight-year-old Nena cranad(who had already been
detained for twenty-six days) was able to escape by passing
through the ceiling and holding on to the pipe which led to the
ground. She did not take the road. She traversed the savanna with
cogon grass and followed the creek leading to her house.
Nena recounted the outrage to her mother, Maria Malid, and later
to her father, Dalama Segapo, when he arrived on January 2, 1973
from Malungon. Dalama reported the incident to Lieutenant
Torcuator of the city police department who, instead of taking
direct action, advised Dalama to complain to the barrio captain who
in turn told Dalama to ask Rudy Ante, a barrio councilor, to
accompany him to Bulaongs house.
On January 6, 1973, Dalama and Ante repaired to Bulaongs house.
Dalama asked Bulaong to deliver to him his daughter, Delena.
Laurecio, armed with a gun, brought Delena to her father. Dalama
took her home.
Two days later, or on January 8, the city health officer examined
Delena and found that there were recent multiple lacerations in her
hymen which admitted two fingers. He concluded that she was no
longer a virgin and that she was the victim of recent sexual
intercourse chanroblesvirtualawlibrary(Exh. A).
A Constabulary investigator took the statements of Dalama and his
two daughters. On January 9, 1973, a complaint for forcible
abduction with rape, signed by Delena and Dalama, was filed in the
city court against Bulaong as principal and Laurecio as an
accomplice. At past four oclock in the afternoon of that day, the
city judge interrogated Delena. The examination was reduced to
writing in the form of searching questions and answers. The next
day the city judge conducted a similar examination of Nena and
Dalama.
A warrant was issued for the arrest of Bulaong and Laurecio. No
bail was recommended. Bulaong and Laurecio surrendered
voluntarily on January 10 and 12, respectively cranad(pp. 31 and
46, Record). They waived the preliminary investigation. On January
23, 1973, the city fiscal filed in the Court of First Instance against
Bulaong and Laurecio an information for forcible abduction with
rape. The two accused entered a plea of not guilty.
After trial, the lower court rendered the judgment of conviction
already stated. In this appeal, Bulaong contends through his
counsel de oficio that the lower court did not acquire jurisdiction
over the case because the information filed by the city fiscal is
fatally defective for not containing the verification required in Form
24 of the Appendix to the Rules of Court.
That contention has no merit. The forms prescribed in the Rules of
Court serve as mere illustrations. Jurisdiction over the crime
charged in this case is conferred by law, not by the complaint or
information which is merely the means by which jurisdiction is
invoked or which gives the court the occasion for exercising its
jurisdiction. cranad(Valdepeas vs. People, 123 Phil. 734.)
In this case, the complaint for abduction with rape against Bulaong
was filed in the city court by the offended girl and her father. That
complaint was sworn to before the city judge cranad(Exh. B). It
was the basis of the preliminary examination. The judge examined
the witnesses under oath. The examination was reduced to writing
in the form of searching questions and answers. On the basis of
that examination, a warrant of arrest was issued.
The accused waived in writing the second stage of the preliminary
investigation. In such a case, the fiscal is not called upon to conduct
another preliminary investigationcranad(People vs. Pervez, 110
Phil. 214).
He could file an information on the basis of the preliminary
investigation conducted by the inferior court because the
prosecution of the offense is under his direction and control. He
could not have certified that he held a preliminary investigation
because the preliminary examination was actually conducted by
the city court and the second stage of the preliminary investigation
was waived by the accused.
In a case, like the instant case, involving crimes against chastity,
the prosecution may be conducted by the fiscal on the basis of the
complaint filed in the inferior court. There is no need to file an
information. cranad(People vs. Imas, 64 Phil. 419; People vs.
Varela, 64 Phil. 1066; People vs. Roa, 60 Phil. 1013; U.S. vs.
Garcia, 27 Phil. 254; People vs. Zurbano, L-32673, February 22,
1971, 37 SCRA 565.)
Hence, the other contention of the accused that the information
should have been signed by the offended girl is wrong. Article 344
of the Revised Penal Code, reproduced in section 4, Rule 110 of the
Rules of Court, does not require that the offended girl in a crime
against chastity should sign the information filed by the
fiscalcranad(People vs. Cerena, 106 Phil. 570).
The accused contends that the information dated January 22,
1973, which was filed on the following day, January 23, is void
because it was received and filed on January 9, 1973 and,
consequently, the case against the accused was railroaded.
That contention is baseless and preposterous. The information was
filed on January 23, not on January 9. Evidently, counsel de oficio
is mistaken. He did not examine the record carefully.
Another baseless contention of counsel de oficio, which shows his
failure to peruse the record with due care, is that it is not alleged
in the information that the forcible abduction with rape was
committed with lewd design. The incontestable fact is that in both
complaint and information lewd design is explicitly averred.
Counsel de oficios fifth assignment of error is that the trial court
erred in not finding that the victims father and accused Bulaong
entered into a compromise. Counsel then argues that, because of
such a compromise, Bulaong is not guilty.
The argument is feeble and flimsy. The testimonies quoted by
counsel show that the victims father pretended to agree to a dowry
of one carabao and two thousand pesos just to be able to secure
the release of his daughter who was held in captivity by Bulaong.
There is no showing that Bulaong was pardoned by the victim and
her father. It is appropriate pardon that extinguishes criminal
liability for a crime against chastity.
The other assignments of error of counsel de oficio involve the
issue of whether the crime of forcible abduction with rape was
proven beyond reasonable doubt. The resolution of that issue
requires an examination of Bulaongs evidence.
Bulaong, who finished the third year high school, set up the
defense that Delena was his mistress, who with her parents
consent, lived with him. He did not deny that he cohabited with
Delena in his fathers house at Barrio Landan from December 6,
1972 to January 6, 1973 cranad(896 tsn).
He was infatuated with Delena. He told her that he wanted her to
be his second wife. He planned to ask his wife to consent that
Delena would be his mistress. He testified that it was customary
among the Bilaans to have a second wife.
When Bulaong allegedly told Delena that he loved her, she replied
that she had liked him for a long time
already cranad(782). cranad(However, on cross-examination,
Bulaong said that he never told Delena that he loved her, 855.)
About the end of October, 1972, he informed Dalama that he
wanted Delena to be his second wife. Dalama said that he should
talk with Delena. Bulaong and Delena allegedly became
sweethearts on November 16, 1972 while they were in the house
of Palaguyan Lakim, Dalamas neighbor. On that occasion Bulaong
kissed Delena several times while they were seated on the floor
and he touched her private parts cranad(883). Maria Segapo saw
Bulaong kissing Delena cranad(857).
On November 21, 1972, Nena Segapo told Bulaong that Delena
wanted to talk with him. He went to Delenas house and stayed
there from ten in the morning up to one oclock in the afternoon.
They allegedly agreed to have an assignation in General Santos
City. She borrowed from Bulaong one hundred pesos to be used in
buying a dress for her sister Nena cranad(783-4). cranad(On
cross-examination, Bulaong testified that it was Dalama who
borrowed one hundred pesos from him, 856).
Nena was to participate as a second princess in the barrio fiesta to
be held on November 24. cranad(Bulaongs daughter was the first
princess.) Nenas dress would be made by Bulaongs wife who was
operating a dress shop in the city. Nena and Delena went to the
city in the afternoon of November 21. Bulaong followed later. He
waited for them near the theater on Pioneer Street, where he met
Moreno Delfin, his friend.
When the sisters arrived, Bulaong and Delfin brought them to
Sateas restaurant located on the ground floor of the New Bay View
Hotel where they took a merienda. After they had finished eating,
Bulaong directed Delfin to take the girls to Room 304 of the hotel.
Bulaong allegedly stayed with the two girls in Room 304. Nena
slept in one bed. Bulaong and Delena had sexual intercourse twice
in the other bed. He discovered that she was not a virgin. She
allegedly confessed that she had sexual relations with four men,
namely, Roberto Daniel, her cousins Kamad and Nonoy and her
uncle cranad(911-913).
He told Delena that he could not take her as his second wife but if
she behaved, he would support any offspring that they might
beget. They checked out of the hotel in the morning.
Bulaong went to the office of the family corporation, Bulaong
Enterprises. He took breakfast in his mothers house in the city. He
did not offer any breakfast to the two girls. He later saw them near
the public market seated in a jeepney bound for Barrio Lamdan.
They were sitting beside his mother who was also going to
Landan cranad(803).
According to Bulaong, he met Delena at the dance on the
coronation night, November 24, 1972 in Barrio Landan. He asked
her to dance with him but she allegedly refused because his wife
was present.
They met on November 28 or December 28, near the creek behind
the sheller of the Bulaong family and had sexual intercourse on the
ground cranad(809-10, 870).
On December 6, 1972, Delena was allegedly brought to Bulaong in
his fathers house in Barrio Landan by Rudy Ante, a barrio
councilor. Delena asked for a dowry. Bulaong denied the request.
At Antes behest, Fonso Laurecio, the family houseboy cranad(a
Bilaan, 917), fetched Dalama, the father of Delena.
Dalama allegedly asked Bulaong to give a dowry cranad(sungod)
consisting of two thousand pesos cash and a carabao. Bulaong also
denied the request. Dalama was infuriated. He wanted to kill his
daughter.
Dalama left the place. Ante, Maria Segapo, Delena,
Elon cranad(Marias brother) and Lakim, a relative of Delena,
remained with Bulaong. They allegedly agreed to entrust Delena to
Bulaong because, if she went home, she would be killed by Dalama.
Delena said that she would stay with Bulaong wherever he would
go because she loved him cranad(816-7). They had sexual
intercourse on December 6 cranad(892).
Bulaong testified that four days later Delena went home because
her father was no longer angry. Bulaong talked with her parents.
Dalama told Bulaong not to abandon Delena and to help the
Segapo family.
Bulaong and Delena and their companions left Dalamas house at
nine oclock in the evening. Dalama went with them because
Bulaong was going to give him sardines. After Dalama received the
sardines and salmon, he did not insist anymore on the
dowry cranad(822).
Bulaong said that Delena did not stay all the time with him in his
fathers house in Barrio Landan: just come and go. Nena
sometimes slept with Delena in that housecranad(835). Delena
would stay for sometime, then leave and go home and then return
to Bulaongs house. At that time his parents were allegedly in
Manila, having gone there at the end of November and returned
before January 10, 1973 when Bulaong was arrested cranad(331).
His wife stayed in her dress shop in the city.
Bulaong testified that on Christmas day and New Years day he was
in the house of his father-in-law in the city cranad(835-6).
Delena left Bulaong on January 7, 1973 because Bulaong told her
to return to her fathers house before his parents arrival. He gave
her ten pesos cranad(838-40). After Bulaong discovered that
Delena was not a virgin, he lost interest in making her his second
wife cranad(873).
The trial court characterized the foregoing version of Bulaong as
improbable, incredible and contrary to human experience, a
veritable fairy tale
Delena, her father Dalama and her sister Nena returned to the
witness stand to rebut Bulaongs testimony. Delena denied that she
had lost her virginity by having had sexual intercourse with a
certain Daniel and with her two cousins and her uncle. She did not
know Daniel. She did not have sexual congress with her two
cousins and her uncle because, as she said: I am not an
animal chanroblesvirtualawlibrary(1042).
Nonoy, whose full name is Reynaldo Dueas, testified that as
Delenas first cousin, he treated her as a sister. He denied having
had sexual intercourse with Delena.
One serious discrepancy in Bulaongs evidence shows its
untrustwortiness and fabricated character. Mildred Areno, a
defense witness, admitted, when asked to testify as a rebuttal
witness for the prosecution, that according to the school
registercranad(Exh. 2 or F), which was prepared by her as the
Grade two teacher of Nena Segapo, the latter was present in class
on November 21, 1972 cranad(1005).
Yet, according to Bulaong and his witness Moreno Delfin, Nena was
with Delena in the afternoon of November 21, 1972 when Bulaong
and Delena allegedly had an assignation in the New Bay View Hotel
and that the sisters returned to their residence on the following
day. That testimony of Bulaong, which is the core of his defense in
this case, is false as shown in the school register cranad(Exh. 2)
and as rebutted by his own witness, Mildred Areno.
It should be borne in mind that Delena and the members of her
family are Bilaans or non-Christians and, as such, are ethnically,
socially and economically inferior to Bulaong and his family, one of
the two richest families in Barrio Landan. This circumstance serves
to explain why it took Dalama a long time to recover custody of
Delena from Bulaong and why the two girls were easily cowed and
frightened into submission by Bulaong.
We agree with the trial courts evaluation of the evidence and with
its conclusion that Bulaongs guilt was proven beyond reasonable
doubt. The following observations and conclusions of the trial court
are well-taken:
One need not stretch his imagination to conclude that this
strange story of a love affair, followed by a demand of a dowry
by the parents accompanying their daughter, dismissed
outright by the man, with the woman choosing to remain in
the house of her lover, a married man, still smiling and
professing to be in love with him, stayed willingly with him as
a wife for about a month and thereafter filing a case of forcible
abduction with rape against him, is very unusual and
improbable, contrary as it is to human experience, to deserve
any modicum of credence cranad(People vs. Alto, 26 SCRA
342, 357). The reasons are:
1. It was vigorously denied by Delena, Nena and Dalama
Segapo in their rebuttal testimonies and directly opposed to
their story narrated in the direct evidence whereby in spite of
their being native Bilaans, their tender age cranad(with
respect to Delena and Nena Segapo) and his
illiteracy cranad(with respect to Dalama Segapo), they stuck
to their versions notwithstanding the long and searching
cross-examinations of two defense attorneys. Bereft of
artificiality and hesitancy, usually detected in one who
testifies a concocted story, they were frank and straight-
forward in answering questions, . cra .
x x x
3. Defendant having been publicly known to be a married
man in Landan, Polomolok, South Cotabato, with five children,
some of whom were studying in Landan Elementary
School cranad(were transferred to North Elementary School
at General Santos City after the present incident) to Flora
Manansala, also known in the locality as a dressmaker, as in
fact Nena Segapo herself with Delena had her dress sewed by
her immediately before their barrio fiesta on November 24,
1972, aside from the couple having a house of their own in
Landan, it will be very difficult to believe that Delena, with her
beauty, youth, and elementary education, would allow herself
to be rightly called his sweetheart, knowing very well that he
will not be in a position to marry her, even under Bila-an
traditions. That her parents would give aid and comfort to
such an illicit relationship is impossible. For our judicial
records are replete with incidents of killings by Bila-ans to
protect the honor and integrity of their women.
4. Throughout his testimony, both in the direct and in the
cross, nay, even in answers to questions of the court,
defendant vehemently denied having expressed his love and
promise of marriage to Delena Segapo, as all the time, he had
been conscious that he had promised the same love and
fulfilled it in that grand wedding of May 1, 1960 with Flora
Manansala. All that he admitted was his statement to Delenas
father that he wanted her to be his second wife and his
statements to Delena that he liked her. That is not courtship.
Love begets love and there can be no sweethearts where one
does not confess to be in love.
5. That they had agreed to have a date and sleep as man
and wife in the New Bay View Hotel on November 21, 1972
can easily be dismissed as an outright lie, considering his
admission of the presence of Nena Segapo, an eight-year-old
sister of Delena. Experience has taught us that sweethearts
bent on satisfying their lusts, as we are made to believe in
this case, would have avoided the presence of strangers,
more especially a close relative of the girlcranad(in this case
a sister of the victim). The third party will make it a crowd.
6. No comfort can be had of the registry book for guests of
the New Bay View Hotel showing that on November 21, 1972,
Claudio Bulaong checked in at the hotel in the evening and
checked out in the following morning, to corroborate his story.
On its face, said entry belied the claim that Claudio Bulaong
was with somebody as he appeared to be alone in Room 304.
Secondly, the exhibition of a very wonderful memory of
Carlos Ma, in charge of the hotel, remembering Claudio
Bulaong to be with Delena Segapo and her sister on
November 21, 1972 in checking in and checking out,
considering that was the first time that they were his guests
who never returned, at the same time forgetting all his recent
guests, made the plot of a date very unbelievable.
Thirdly, this documentary evidence of the defense is
contradicted by its other evidence, that is, the class record of
Grade II pupils identified by Mrs. Mildred Areno which shows
that on November 21 and 22, 1972, Nena Segapo was present
in her classes for said days cranad(See Exh. 2-B, J-1, school
register in connection with hotel register, p. 114, marked as
Exhibit 8-B).
7. The demand initiated by Maria and Delena Segapo as
mother and daughter accompanied by barrio councilman Rudy
Ante in the morning of December 6, 1972 for a dowry of
P2,000.00 and a carabao is rather extraordinary, there having
been no proposal of marriage previous to said date by Claudio
Bulaong who in the first place could not have done so. For a
dowry is only demandable after there is a proposal of
marriage by a man to the parents of the woman.
8. Claudio Bulaong outrightly dismissed the demand of a
dowry by Dalama Segapo. In such a setting, we cannot
understand why this conversation commenced at eight oclock
in the morning lasted until about three oclock in the afternoon
when Dalama Segapo left and until four oclock when his wife
left, the parties not being served with lunch and merely made
to content themselves with soft drinks and biscuits. And to
make this Court believe that in spite of the refusal of Claudio
Bulaong to pay the dowry in the presence of Delena, she was
still happy and smiling, telling her parents that she would not
leave his house because she loved him, thus she voluntarily
and consciously lived with him as man and wife until January
6, 1973 is futile.
That is beyond the realm of realities. It is a fairy tale when
taken with the very serious case of forcible abduction with
rape commenced soon after her liberation in the court below.
Inherently improbable, it was in itself a lie, pure and simple,
when we take into account his accusation of Delena after his
alleged first carnal knowledge of her on November 21, 1972,
in the New Bay View Hotel that she was not a virgin and the
latter freely confessed about the four men in her life, some of
whom were her own relatives.
Such a very unkind charge of the defendant is controverted
by the medical findings of Dr. Jose Alvarado, who examined
Delena on January 8, 1973, aside from being denied by
Delena herself and rebuttal witness, Reynaldo Dueas. It
succeeded only, if it did succeed at all, in adding insult to a
very painful injury .cra . The story of the defendant should
not have been dignified by an exhaustive dissertation. For like
an ostrich which hid its head into the sand, its body was fully
exposed to public view. It is only because we are faced with
a crime involving a capital punishment that we have chosen
to do so.
Neither is his denial of the use of a gun and of their own
Toyota jeep convincing. To buttress his testimony, his own
affidavit subscribed and sworn to before Notary Public
Gregorio Daproza, Jr. on April 12, 1972 was offered as
evidencing the transfer of his gun to his brother-in-law,
Charlie Dimalantacranad(Exh. 11). This affidavit is self-
serving and could have been executed by him at any time
with an antedated date before aforesaid notary public because
an examination of the records of this Court will show that Atty.
Gregorio Daproza, Jr. as a notary public has not submitted
any notarial report from February 16, 1971 cranad(See
Record, p. 105).
And as the only son of Eusebio Bulaong, his claim that at the
time he was not using their Toyota jeep does not ring true,
taking cranad(into account) the mentality of Filipino parents
who have so many children but with only one son. That he
was the administrator of a vast agricultural land in the distant
barrio of Landan, Polomolok, South Cotabato and at the time,
his parents were in Manila, its veracity is nil.
As the principal and basic evidence upon which the defense
rests its case fails, all evidence intended to support or
corroborate must likewise fail cranad(See People vs. Marcos,
70 Phil. 468, 478-479). It is only for more enlightenment that
we will attempt to take them one by one, demanded by the
gravity of the offense involved.
As stated at the outset, a retinue of public school and barrio
officials were marshalled in an effort to destroy, if not
minimize, the credibility of the Peoples witnesses, brought to
Court by the mother of the accused, in their own Toyota
jeep cranad(used in the commission of the crime), some of
whom were billeted in the New Bay View Hotel like Barrio
Captain Venancio Dianga and Barrio Councilman Rudy Ante,
evidently showing how the defendant has been a customer of
said hotel in a city riddled with hotels cranad(See pp. 156,
166, Hotel Register, Exh. 1).
Armed with school register and her pupils test papers, Mrs.
Mildred Areno declared that for the school days in December,
1972, Nena Segapo, her grade two pupil, was absent only
thrice, these were on December 11, 14 and 18. In short, it
was impossible for her to be with Delena from December 5 to
December 31 when she escaped from the defendants
clutches. Unfortunately, we have these observations:
1. Not a civil service eligible and teaching in a barrio
school built in a place controlled by the Bulaong family,
her impartiality is debatable. Her hold on her job was at
the whims and caprices of the powers that be that soon
after she finished testifying in this case, she was
rewarded with a transfer to a school in her residence in
Spring Camp, Polomolok, South Cotabato;
2. The school register itself and its pages are very clean,
written in perfection, without any erasure and uniformly
by one ballpen which she used from September until she
testified on March 6, 1973, but with a filler, as correctly
observed by the public prosecutor, not even used one-
millionth cranad(Exhibits 2-C). Considering further that
she has to travel everyday from her residence to the
school and return on public conveyances along a dusty
road during sunny days and muddy during rainy season,
its neatness is quite surprising. It appears to be
accomplished in a day! It is not so with the Class
Records cranad(Exh. D);
3. This school register does not bear the signature of
any public school official or any official mark when issued
or inspected that it can be changed at will at anytime by
its possessor. Indeed, it can be bought at anytime in any
store dealing with school supplies. Given to her by Mr.
Mauro Espe, their head teacher, in her testimony on
March 6, 1973, it was bought by her in a store by her
declaration in the cross on March 7, 1973. Which is
which? Only God knows. Far more important is the fact
that all documentary evidence submitted by the District
Office of said school to this Court from the Landan
Elementary School, to support the school register, were
of the same category no signature of its receipt and
the date thereof cranad(See Exhs. No. 7). To our
knowledge, such is not the regular procedure in dealing
with official records. This cam either be a case of
negligence or mass intercalations. In either, it cannot
deserve official integrity;
4. As a faithful record of attendance of her pupils
including hers, it did not show her absence when in court
awaiting for her turn to testify. Not only that. Nena
Segapo appears to be present on November 21 and 22,
1972 when she was supposed to be with Delena in the
afternoon of November 21 and was seen by Claudio
Bulaong in the parking place in General Santos City
about nine oclock in the morning of November 22. The
$64 question is, whom to believe?
5. Picturing the defense counsel to be prophets, she
said that she was not interviewed by anyone of them nor
by any relative of the defendants as equally neither had
she shown them the school register and the test papers
 of her pupils saved by her and brought to Court. Having
in mind the seriousness of the offenses involved, the
affluent client defended and the experience of the
principal counsel, such a blind request for the issuance
of a subpoena and subpoena duces tecum is beyond
comprehension cranad(See, Record, pp. 56, 62);
6. Of the 30 pupils she had in Grade II, she presented
46 test papers, 16 of which belong to Nena Segapo,
while her classmates Mercy Ante, Rebecca Julie, Ana
Gulada, Roberto Palate, Antonia Villalon and Merlyn Tel
have 9, 8, 8, 7, 4, and 2, respectively cranad(Exhibits 1
to 1-0, 3 to 3-Z). Her reason that Nena was a bright and
a model pupil that she preserved her test papers as
samples was a contradiction to her subsequent
testimony that Nena was always absent and a liar. Apart
from the tearful denial of Nena that those test papers in
December were not her own, one need not use a
magnifying glass to decipher that the handwriting of
Nena when she signed her affidavit and those on the test
papers denied by her is an ocean of difference, the latter
being evidently written by one who is not a Grade II pupil
in a barrio school. Besides, the grades on the test papers
before December, 1972 will speak for themselves. She
cannot be a model pupil.cralaw cranad(Exhs. 1-90%; 1-
A-85%, 1-B-75%; 1-C-90%; 1-D-95% & 1-E-95%).
Granting in gratia argumenti that the testimony of Nena
Segapo is seriously impeached, which we are far from
believing that it was, the rule in this jurisdiction is well-settled
that in crimes of rape the sole testimony of the offended
parties is sufficient to sustain a conviction. cranad(U.S. vs.
Ramos, 1 Phil. 81; People vs. Dazo, 58 Phil. 421; People vs.
Macaya, et al., G.R. No. L-925, February 27, 1970; People vs.
Ganal, et al., G.R. No. L-1990, March 15, 1950, cited in People
vs. Selfaison, supra, p. 243).
Mauro Espe, teacher in charge of Landan Elementary School,
brought to Court Form 137-B, the school register of Delena
Segapo, where she appears to be born on September 21,
1955 cranad(Exhs. 5,5-A). Its purpose is to contradict the
testimony of Delena and her father, Dalama, that she was 14
years old at the time of the incident for she was born on
November 10, 1958. There being no showing that this entry
was furnished either by Delena Segapo or by her father,
Dalama Segapo, it is worthless for impeachment purposes.
Mauro Espe, whom we noticed to have taken a very unusual
interest in defending the accused, especially after Rebecca
Julie, 9 years old, one of the five cranad(5) grade two pupils
of the Landan Elementary School, testified on July 2, 1973
that she and four cranad(4) of her classmates were brought
by Mr. Espe to the house of Atty. Mirabueno and thereafter to
this Court as sur-rebuttal witnesses, exaggerated his memory
by declaring that during the enrollment of Delena on August
3, 1964, he heard and still remembers that Dalama Segapo
was the one who furnished aforesaid date of birth to Mr.
Decano, the enrolling teacher.
He failed though to tell us the date when Martial Law was
declared by the President. That enrollment was almost 9 years
ago when he testified on March 7, 1973 while the declaration
of Martial Law was less than a year. At any rate, the entries
in Exhibit 5 will speak for themselves. It could not have been
furnished by Dalama Segapo whose name appears there as
Dalama Segapo and whose wife, Maria Malid cranad(Record,
p. 10), was identified as Maria Dilion.
That the date of birth of Delena was simply placed there by
the school teacher to comply with the school age, an effort to
increase the enrollment in this school, is possible. Dalama
Segapo, being an illiterate Bila-an, could not tell us the days
of the week and months of the year when he testified in Court.
At any rate, whether Delena Segapo was 14 years old as she
appears to the Court while testifying or 17 years old, is an
immaterial issue, having in mind the complex crime charged.
Francisco Mandar, district supervisor of Polomolok, South
Cotabato, identified B.P.S. Form No. 3 which is the principals
report of enrollment and attendance of all the schools in his
district, one of which is Landan Elementary School. It appears
that the subpoena calls for him to bring Form 2 which is the
record of pupils attendance prepared by the classroom
teacher. Instead he brought this Form No. 3. As a piece of
evidence, Exhibit 6 is worthless as it did not show the specific
attendance of Nena Segapo in her classes as a grade two
pupil. The same can be said of Form No. 2 identified by Mr.
Adronico Sotelo, principal teacher of Polomolok Central
School. Mr. Sotelo categorically stated that he was not the
one who personally received Form No. 2 as it was received by
a clerk under the office of the district supervisor cranad(Exh.
7). No such signature of the receiving clerk appears on the
face of the document and the same could have been
submitted by Mrs. Mildred Areno even after this case was
commenced.
Venancio Dianga, barrio captain of Landan, asserted that on
December 5, 1972, Dalama Segapo went to his house asking
his help in getting a dowry from Claudio Bulaong because his
daughter and Claudio Bulaong were often going together. He
refused because he had a misunderstanding with Claudio
Bulaong and that existed until he testified on April 2, 1973.
And to bolster that cause, he wanted to make us believe that
while he took the Toyota jeep of Claudio Bulaong in going to
General Santos City in order to testify in this case, this was
done because he requested the mother of Claudio Bulaong to
take that jeep and it was not otherwise.
To us, he is a rehearsed witness, if not biased, and was not
telling the truth. Elected as such barrio captain from 1968
until 1973 with the help or at least with the acquiescence of
this controlling family in Landan, his claim for having a quarrel
is shallow. It appears that when this case was called in the
first week of March 1973 and the second week of April 1973,
he checked in at Room 202 with Mrs. Dianga and thence in
Room 208, with his departure in both not
specified cranad(See pp. 156, 166, hotel register, Exhibit 8).
As supposed protector of his people, being a barrio captain,
he collected from the landowners P5.00 each for
accomplishing their sworn statements of the current and fair
market value of their properties in compliance with
Presidential Decree No. 76, earning as much as P1,000.00.
We are unaware if there is any law which allows him, even as
a barrio captain, to make such collection, considering that he
is only a first year high school. A public official with such a
corrupt mind is not worthy of credence. While vigorously
maintaining that the date was December 5, 1972 and not
January 6, 1973 as testified to by Dalama Segapo, his
memory for dates is very treacherous.
He could not even tell us the dates when all his eight children
were born and his claim for a serious altercation with the
defendant is directly opposed to his admission that before he
testified, he conversed with Claudio Bulaong.
The testimony of Juan Barieses, Jr., public school teacher of
Alegria Elementary School, is so harmless as to deserve the
cross-examination of the prosecuting Fiscal.
Rudy Ante, a barrio councilor of Landan, Polomolok, South
Cotabato, declared that on December 6, 1972, Maria Segapo
and her daughter Delena went to his house with Delena
complaining to him that the accused had carnal knowledge of
her in the hotel and asked his help for a settlement. He
accompanied her to the house of Eusebio Bulaong and there
met Claudio Bulaong informing him about the complaint of
Maria and Delena. Upon his suggestion, defendant asked him
to call for Dalama Segapo, and he obliged. Thus, at about
eight oclock in the morning of December 6, 1972, Delema
Segapo, his wife, Maria, daughter, Delena with one named
Bong, Ilong, Ading cranad(accused) and himself were in the
house of Eusebio Bulaong. He opened the conversation by
telling Claudio Bulaong that the parents of Delena were willing
to enter into an amicable settlement if defendant would pay
them P2,000.00 and one carabao.
The indictee outrightly refused because he could not afford
that amount and went to the extent of even warning Dalama
as follows: If you are a father you should not sell your
daughter for that price. He cried to convince Claudio Bulaong
to settle but he failed, so he left the house at about 4:00
oclock in the morning with Gorio Lakim and Maria Segapo,
leaving Delena in the house who told them that she did not
like to go home anymore because she wanted to stay with
Ading as she was afraid because her father was mad.
Like Venancio Dianga, he is a Bila-an barrio official who owed
his election to the defendant. Testifying on April 3, 1973, he
checked in with Venancio Dianga as early as April 1, 1973 and
the hotel register did not state when did he check out of Room
217. Until April 4, no one occupied Room 217. Taking cue from
what happened to witness Venancio Dianga, he came to Court
ready to tell us the respective dates of birth of his children.
He was already a defense witness before the trial, executing
an affidavit on January 24, 1973 cranad(Exh. G).
He never talked about Claudio Bulaong marrying Delena as
he emphasized that he was the one who tried to settle the
case by convincing Claudio Bulaong to pay P2,000.00 and one
carabao cranad(See Exh. G-1). In other words, except for the
date, that is, January 6, 1973 instead of December 5, 1972,
and the fact that Delena was in the house of Eusebio until she
left their house on January 6, 1973 upon regaining her
freedom, the testimony of Rudy Ante in a way confirmed that
of Dalama Segapo and Delena Segapo as to what happened
in the afternoon of January 6, 1973. We leave him, as all other
matters were already discussed by us with regards to the
testimony of the defendant Bulaong himself.
The testimony of Carlos Ma that Claudio Bulaong checked in
at the hotel only on November 21, 1972 and he had never
returned thereto, especially during the whole month of
December 1972 has been sufficiently alluded by us. But if
more is needed, he admitted that he allowed customers who
are his friends from General Santos City under a short-time
basis, two or four days, to stay in their hotel, without
registering their names.
This practice is a matter of public knowledge. That this can
happen to defendant considering their being publicly known
in General Santos City as members of the rich family is very
much reasonable. Then, a scrutiny of the hotel register readily
shows that from December 5, in the afternoon up to
December 6, in the afternoon, Room 304, an airconditioned
room, was not occupied by anybody cranad(See pp. 101-102,
hotel register, Exh. 8). This is confirmatory of an actual
occupation by a close friend of Carlos Ma, now entangled for
ravishing a young Bila-an and whose witnesses were billeted
in their own hotel as a loyal customer.
Moreno Delfin, a close friend of Claudio, both being childhood
playmates and children of original settlers, was very evasive,
exhibiting a demeanor of one who was made to narrate a
rehearsed testimony. He was very positive that it was only on
June 2, 1973, when he met the defendant in the city jail, that
he was requested to testify regarding the incidents on
November 21, 1972, these were, their meeting at the Pioneer
Theater, their taking a tricycle to the Satea House with Delena
and Nena, their eating in the aforesaid restaurant and his
conducting the two girls to Room 304 after he was given by
the accused the key of the room.
That is the only date he remembers and he failed to tell us
of all the other dates directly involving his family as the dates
when his brothers were incarcerated at the city jail as well as
their release and the dates he visited them. We dismiss him
with those observations.
Alfonso Laurecio, like Benito, has been the faithful servant of
Eusebio Bulaong, father of the defendant, and was made to
take care of the house while his master was in the City of
Manila from the later part of November, 1972 to the early part
of January, 1973. He denied having guarded, with the use of
a shotgun, Delena Segapo and Nena Segapo as the former
stayed in the house of his master voluntarily and slept with
Claudio in one of the rooms from December 6, 1972 up to
January 6, 1973, while Nena was a frequent visitor.
Defended by a counsel de parte, engaged by the Bulaongs,
he admitted that there was in fact a shotgun in the house of
 Eusebio Bulaong, locked in one of the rooms, and that Delena
was in that house from December 6, 1972 up to January 6,
1973. His denial on other points cannot be at par with the
positive testimonies of Nena Segapo, Delena Segapo and
Dalama Segapo, absent at any important motive shown
convincingly for these witnesses to testify falsely against him
and Claudio Bulaong in prosecuting so serious a crime as
forcible abduction with rape.
Taken as a whole and with due fidelity to the constitutional
mandate that all accused shall be presumed innocent until the
contrary is proven, we regret to conclude that in the case at
bar, the Peoples evidence has complied with the statutory
requirement of proof beyond reasonable doubt.
The trial court found that Bulaong committed the eight complex
crimes of forcible abduction with rape, aggravated by the use of a
motor vehicle and mitigated by voluntary surrender to the
authorities.
Although the imposable penalty is death, the trial court imposed
eight reclusion perpetuas out of compassion for Bulaong because
he is a married man with five minor children.
The trial court erred in imposing eight reclusion perpetuas. Bulaong
committed the continuing complex offense of forcible abduction
with rape cranad(People vs. Manguiat and Sanqui, 51 Phil. 406;
People vs. Pineda, 56 Phil. 688).
As the rape was committed with the use of a deadly weapon, and
the crime is complex, the death penalty should be imposed.
However, for lack of necessary votes, the same is commuted to
reclusion perpetua.
WHEREFORE, the lower courts judgment is modified. Bulaong is
sentenced to reclusion perpetua and to pay an indemnity to the
offended girl in the sum of fifty thousand pesos. Costs de oficio.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Concepcion, Jr.,
Fernandez, Guerrero, De Castro and Melencio-
Herrera, JJ., concur.

Makasiar, J., The trial courts decision should be affirmed in

its entirety.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. My mind cannot rest easy that the appellant committed
the crime of abduction with rape and I base my doubts on the
following:
1. The alleged abduction is said to have taken place at the public
market of General Santos City at 6:00 p.m. on December 5,
1972. I take notice of the fact that at that time of the day
many persons are still in public markets and yet neither
Delena nor Nena shouted for help.
2. Similarly the two sisters did not cry for help when the
appellant allegedly brought them to the New Bay View Hotel
and forced them to enter Room 304 while holding his gun.
The appellant could not have pre-registered at the hotel for
his meeting with the girls was casual if we are to believe the
evidence for the prosecution. Hence he must have registered
when he arrived with the two girls. At that time the two girls
had the opportunity to cry for help but they remained silent.
3. When the group left the hotel in General Santos City for Barrio
Landan the following day on board the appellants jeep, it is
inconceivable that the girls had no opportunity to cry for help
during the long ride. But they did not.
4. The two girls were allegedly detained by the appellant from
December 5 to 31, 1972, until Nena Segapo was able to
 escape on the latter date. I find it equally inconceivable that
neither of the two could have escaped during that long period
if there was a will to do so.
5. Delena and Nena left the family home on December 5, 1972,
and it was only on December 31, 1972, after Nena was
supposed to have escaped from the appellants bungalow
when she returned home to tell her mother what happened.
And yet the parents did nothing to locate the two girls of
tender age who failed to return home over a long period. As
to Delena, it was only on January 6, 1973, when her father
was said to have gone to the appellants house to ask for her
return. The relaxed and nonchalant attitude of the parents is
incredible. As a parent I would have gotten excited and moved
heaven and earth so to speak in order to locate a missing
child. In fact the loss of only a dog is sufficient to cause the
concern. But the Segapo parents appeared unconcerned and
unaffected.
6. The appellant is supposed to have used a gun when he
committed the crime imputed to him. Where is the gun? It
was never presented during the trial. On the contrary, Exhibit
11 shows that the appellant had transferred his Smith and
Wesson .22 caliber revolver to Charlie B. Dimalanta on April
12, 1972. Exhibit 11 was executed ante litis motam and
deserves credence. Moreover, on December 5, 1972, the
Martial Law regime was relatively new and it is a fact that
during the early days of martial law the people were very
obedient to its strictures one of which was the prohibition
against the carrying of firearms even if licensed outside ones
residence.
7. Judge Pedro Samson C. Animas who convicted the appellant
describes him thus:
. cra . a rich mans son whose parents acquired and
owned valuable properties not only in General Santos
City, but also in Landan, Polomolok, South Cotabato,
where the family has a vast agricultural land, a corn
sheller and two residential houses cranad(one for his
 parents and another for him). Defendant as the only son,
before his incarceration, had been administering these
properties in Landan, populated mostly by Bila-ans.
Awed and revered by the constituents, if not feared, no
public function moved in this remote place without the
nod of this oligarch. Schools were opened, roads were
constructed and all public improvements were
materialized upon their proddings. For such status of
wealth amounted to control during the aegis of the old
Society, determinative of the result of any election,
national and local, nay, even for barrio officials.
I wonder if the good judge did not get carried away by his rhetoric.
Before us the appellant is represented by a counsel de oficio, not
de parte, and the tragedy of it is that the appellants counsel does
not appear to possess the requisite competence to handle the
serious charge if we judge him on the basis of statements made in
the main opinion, thus:
The accused contends that the information dated January 22,
1973, which was filed on the following day, January 23, is void
because it was received and filed on January 9, 1973 and,
consequently, the case against the accused was railroaded.
That contention is baseless and preposterous. The
information was filed on January 23, not on January 9.
Evidently, counsel de oficio is mistaken. He did not examine
the record carefully.
Another baseless contention of counsel de oficio, which
shows his failure to peruse the record with due care, is that it
is not alleged in the information that the forcible abduction
with rape was committed with lewd design. The incontestable
fact is that in both complaint and information lewd design is
explicitly averred.
Counsel de oficios fifth assignment of error is that the trial
court erred in not finding the victims father and accused
Bulaong entered into a compromise. Counsel then argues
that, because of such a compromise, Bulaong is not guilty.
 The argument is feeble and flimsy. The testimonies quoted
by counsel show that the victims father pretended to agree
to a dowry of one carabao and two thousand pesos just to be
able to secure the release of his daughter who was held in
captivity by Bulaong. There is no showing that Bulaong was
pardoned by the victim and her father. It is the appropriate
pardon that extinguishes criminal liability for a crime against
chastity.
I am not bothered by the fact that in the decision dated September
28, 1973, the trial court found Alfonso Laurecio guilty as an
accomplice and sentenced him to an indeterminate penalty of 4
years, 2 months and 1 day of prision correccional as minimum and
10 years and 1 day of prision mayor as maximum, and that on
February 1, 1979, he was allowed to withdraw his appeal. Did
Alfonso Laurecio admit guilt thereby and by inference should we
consider the appellant guilty also because there can be no
accomplice without a principal? Not necessarily. For if Laurecio had
not withdrawn his appeal, its resolution would have to be linked to
the resolution of the principals appeal which is time consuming.
But the withdrawing his appeal as he did, he immediately became
eligible for parole and having served as a member of the Board of
Pardons and Parole for over eight years cranad(not to mention
being its ex-oficio chairman for a like period), I will hazard the
statement that he has long been released on parole.
In view of the foregoing, I vote to acquit on reasonable doubt.
G.R. No. 77120 April 6, 1987

ARTURO QUIZO, petitioner,

vs.
The HON. SANDIGANBAYAN, represented by HON. FRANCIS E.
GARCHITORENA, LUCIANO A. JOSON, RAMON V.
JABSON, respondents.

Mamerto P. Galledo for petitioner.

RESOLUTION

FERNAN, J.:

In this petition for certiorari, petitioner Arturo Quizo assails the resolution of
the respondent Sandiganbayan in Criminal Case No. 9777 promulgated on
September 23, 1986 which denied the motion to dismiss filed by the
Tanodbayan as well as the resolution of October 22, 1986 which denied the
motion for reconsideration thereto. Petitioner contends that said resolutions
were rendered without or in excess of jurisdiction and/or with grave abuse
of discretion.

It appears that after an audit conducted by the Commission on Audit on

September 13, 1983, petitioner, the Money Order Teller of Cagayan de Oro
Post Office, was found to have incurred a shortage in his cash and other
accounts of P17,421.74, as follows:

Vales granted to
various
employees but P16,720.00
disallowed
Accommodated 700.00
private checks
Actual cash 1.74
shortage
P17,421.74
On the same day, petitioner reimbursed the amount of P406.18; three days
thereafter, P10,515.56; and on September 19, 1983, the balance of
P6,500.00.

Notwithstanding full restitution, an information for malversation of public

funds against petitioner was filed by the Tanodbayan before the
Sandiganbayan. On a motion for reinvestigation and/or reconsideration, the
Tanodbayan filed a motion to dismiss on the following grounds:

1. No damage was inflicted on the government as there was full

restitution of the malversed funds within a reasonable time;

2. The accused never pocketed the money, the shortages, it is

admitted, being 'vales' of his co-employees. (Annex A, p. 14,
Rollo).

On September 23, 1986, the Sandiganbayan denied the prosecutor's

motion to dismiss. It ruled that damage to the government is not an
essential element of the crime of malversation and that restitution of the
malversed funds before the filing of a complaint is neither a defense that
would exempt the offender from criminal liability nor a valid ground for
dismissal. A motion for reconsideration was filed but it was denied on
October 22, 1986. Hence this petition.

Petitioner questions the propriety and advisability of the Sandiganbayan's

actuation in seeming to substitute its judgment on matters within the
discretion of the prosecution. Petitioner further argues that there are
sufficient and compelling reasons for the dismissal of the criminal case,
namely:

1. There was no criminal intent, no malice or any animus

lucrandi;

2. If there was negligence,the same was noti nexcusable;

3. There was full restitution made within a reasonable time; and

4. Similar cases were dismissed at the Sandiganbayan and

Tanodbayan level on the ground of restitution.

The petition is impressed with merit.

In the case of People vs. Pineda, 20 SCRA 748, the Court ruled:

A prosecuting attorney, by the nature of his office, is under no

compulsion to file a particular criminal information where he is
not convinced that he has evidence to prop up the averments
thereof, or that the evidence at hand points to a different
conclusion. This is not to discount the possibility of the
commission of abuses on the part of the prosecutor. But we
must have to recognize that a prosecuting attorney should not
be unduly compelled to work against his conviction. In case of
doubt, we should give him the benefit thereof. A contrary rule
may result in our courts being unnecessarily swamped with
unmeritorious case. Worse stilt a criminal suspect's right to due
process the sporting idea of fair play may be
transgressed.

... The question of instituting a criminal charge is one

addressed to the sound discretion of the investigating
Fiscal. The information he lodges in court must have to be
supported by facts brought about by an inquiry made by him It
stands to reason then to say that 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 ...
(Emphasis supplied.)

In Alberto vs. de la Cruz, 98 SCRA 406, reiterated in Bautista vs. City

Fiscal of Dagupan 131 SCRA 132, the Court further held:

It is the rule that a fiscal by the nature of his office, is under no

compulsion to file a particular criminal information where he is
not convinced that he has evidence to support the allegrations
thereof. Although this power and prerogative of the FiscaL to
determine whether or not the evidence at hand is sufficient to
form a reasonable belief that a person committed an offense, is
not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to
prosecute a case when he is in no position to do so, because in
his opinion he does not have the necessary evidence to secure
a conviction, or he is not convinced of the merits of the case.
Against the foregoing and considering that after a reinvestigation
conducted by a prosecutor, no less than the Tanodbayan himself directed
the dismissal of the case based on findings that "it is clear that the accused
never pocketed the money" and that "the shortage were vales of co-
employees" (Annex "D," p. 39, Rollo), the Court is inclined to sustain
petitioner's contention that the Sandiganbayan gravely abused its
discretion when it refused to grant the motion to dismiss. It is not fair to
compel the prosecutor to secure the conviction of an accused on evidence
which in his opinion, is insufficient and weak to establish even a prima
facie case.

Besides, the Court is convinced that there is no sufficient evidence to show

a prima facie case against petitioner.

Article 217 of the Revised Penal Code provides that the failure of a public
officer to have duly forthcoming any public funds or property with which he
is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal
uses. Hence, an accountable public officer may be convicted of
malversation even if there is no direct evidence of misappropriation and the
only evidence is that there is a shortage in his accounts which he has not
been able to explain satisfactorily (De Guzman vs. People, 119 SCRA
337). This is because the law establishes a presumption that mere failure
of an accountable officer to produce public funds which have come into his
hands on demand by an officer duly authorized to examine his accounts
is prima facie evidence of conversion. However, the presumption is
merely prima facie and a rebuttable one. The accountable officer may
overcome the presumption by proof to the contrary. If he adduces evidence
showing that, in fact, he has not put said funds or property to personal use,
then that presumption is at an end and the prima facie case destroyed (US
vs. Catolico, 18 Phil. 504).

In the case at bar, petitioner successfully overthrew the presumption of

guilt. He satisfactorily proved that not a single centavo of the missing funds
was used by him for his own personal interest, a fact conceded by the
Tanodbayan 'the bulk of the reported shortage actually referred to the items
disallowed by the Audit Team representing cash advances extended to co-
employees. In fact, evidence disclosed that the itemized list of the cash
advances (Annex "B " of Motion for Re-Investigation and/or
Reconsideration, p. 31, Rollo) was verified and found to be correct by an
Auditing Examiner, Petitioner explained that the granting of the cash
advances was done in good faith, with no intent to gain and borne out of
goodwill considering that it was a practice tolerated in the office. Such
being the case, negligence evidentiary of malice or intent to defraud the
government cannot be imputed to him. Also to be considered is the
circumstance that the actual cash shortage was only P1.74 which, together
with the disallowed items, was fully restituted within a reasonable time from
date of audit,

Significantly, in the recent case of Villacorta vs. People, G.R. No. 68268,
November 12, 1986, the Court acquitted the accused. the municipal
treasurer of Pandan, Catanduanes. of the crime of malversation of public
funds on grounds that he did not put the missing funds to personal uses,
that his having "allowed others to freely participate of the chits/vouchers"
was a practice which seemed to have been tolerated even during the time
of his predecessor and that there was no negligence approximating malice
or fraud because the wrong payments were made in good faith.

WHEREFORE, the writ of certiorari is granted and the resolutions of the

respondent Sandiganbayan dated September 23, 1986 and October 22,
1986 are SET ASIDE. Criminal Case No. 9777, entitled "People of the
Philippines vs. Arturo C. Quizo" is hereby DISMISSED. No costs.

SO ORDERED.
G.R. No. L-53373

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 time 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 faciecase. 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.1wphi1 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. L-38634 June 20, 1988

REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE

PHILIPPINES), petitioner,
vs.
HON. DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I,
Camarines Sur, ARISTON ANADILLA, RAFAEL ANADILLA and JOSE
ANADILLA, respondents.

PADILLA, J.:

This is a petition for review on certiorari of the order * of the Court of First
Instance of Camarines Sur, 10th Judicial District, Branch I, dated 20 March
1974, dismissing motu proprio Criminal Case No. L-244, entitled "People of
the Philippines, Complainant versus Ariston Anadilla, Rafael Anadilla and
Jose Anadilla, Accused," as well as of the order dated 22 April 1974 of the
same court denying the motion for reconsideration of said earlier order.

The facts are not disputed.

On 10 August 1964, an information for Attempted Homicide was filed by the

Provincial Fiscal of Camarines Sur against accused-private respondents
Rafael Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was
set on 11 and 12 March 1974. The hearing set on 11 March 1974 was,
however, postponed in view of the absence of one of the accused,
respondent Rafael Anadilla who had not yet been arrested by the police
authorities. On the same date, the court a quo issued an order for the
arrest of said accused, and at the same time set the trial of the case for 29
and 30 July 1974.

On 20 March 1974, the court a quo issued the now assailed order which
reads:

Considering that the offended party, Jose Dadis is no longer

interested in the further prosecution of this case and there
being no objection on the part of the accused Ariston Anadilla,
Rafael Anadilla and Jose Anadilla, this case is hereby
DISMISSED with costs de oficio.
 Consequently, the order of arrest issued by this Court against
the accused Rafael Anadilla dated March 11, 1974, is hereby
ordered lifted and has no force and effect.

The bail bond posted for the provisional liberty of the accused is
hereby ordered cancelled.

In the case of Ariston Anadilla and Jose Anadilla, the Provincial

Warden is hereby ordered to release said accused from their
detention immediately upon receipt of this order.

SO ORDERED. 1

The affidavit of desistance, relied upon by the aforequoted order, was

executed by the offended party on 20 March 1974 and subscribed and
sworn to before the branch Clerk of Court Atty. R.B. Torrecampo. It alleged,
among others, that:

That he was the complainant in Criminal Case No. L-244,

entitled, People vs. Ariston Anadilla, et al., for Attempted
Homicide, which case is pending before the first branch of this
Court; that he is no longer interested in the further prosecution
of this case and that he has already forgiven the accused for
their acts; that his material witnesses could no longer be
contacted and that without their testimonies, the guilt of the
accused cannot be proven beyond reasonable doubt, and that
in view of these circumstances, he requests the Prosecuting
Fiscal for the dismissal of the said case. 2

The Provincial Fiscal moved to reconsider the order of dismissal. This was
denied by the court a quo in an order dated 22 April 1974. 3 This petition
was thereupon filed before this Court.

The issue in this petition is whether the courta a quo may dismiss a criminal
case on the basis of an affidavit of desistance executed by the offended
party, but without a motion to dismiss filed by the prosecuting fiscal.

The issue presented is not novel. In Crespo v. Mogul, 4 promulgated on 30

June 1987, the Court had occasion to state the rule in regard to the
respective powers of the prosecuting fiscal and the court, after the
complaint or information has been filed in court. In said case, the issue
raised was 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 of the case on the merits.

In the Crespo case, an information for Estafa had already been filed by the
Assistant Fiscal before the Circuit Criminal Court of Lucena City.
Arraignment of the accused and trial of the case were, however, deferred
because of a pending appeal by the accused/respondent to the Secretary
of Justice. Reversing the resolution of the Office of the Provincial Fiscal,
the Undersecretary of Justice directed the fiscal to move for immediate
dismissal of the information filed against the accused. Upon such
instructions, the Provincial Fiscal filed a motion to dismiss for insufficiency
of evidence. The Judge denied the motion and set the arraignment. On a
certiorari recourse to the Court of Appeals, the petition was dismissed.
Review of the Court of Appeals decision was then sought by the accused
with this Court, raising the issue previously stated herein, Resolving, the
Court held:

xxx xxx xxx

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.
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 submitted himself to the Court or was
duly arrested, the Court thereby acquired jurisdiction over the
person of the accused.

The preliminary investigation conducted by the fiscal for the

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

xxx xxx xxx

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." (Emphasis supplied). 5

In the case at bar, the Court has taken note that before the case was set
for trial, almost ten (10) years had elapsed from the date of filing of the
information. It was not, therefore, unusual that the complainant-offended
party, in his affidavit of desistance manifested that his material witnesses
could no longer be contacted, but, without their testimony, the guilt of the
accused could not be proved beyond reasonable doubt.

The prosecuting fiscal in his motion for reconsideration of the order

dismissing the case, obviously believed that despite such manifestation of
the complainant, he (fiscal) could prove the prosecution's case.

To avoid similar situations, the Court takes the view that, while
the Crespo doctrine has settled that the trial court is the sole judge on
whether a criminal case should be dismissed (after the complaint or
information has been filed in court), still, any move on the part of the
complainant or offended party to dismiss the criminal case, even if without
objection of the accused, should first be referred to the prosecuting fiscal
for his own view on the matter. He is, after all, in control of the prosecution
of the case and he may have his own reasons why the case should not be
dismissed. It is only after hearing the prosecuting fiscal's view that the
Court should exercise its exclusive authority to continue or dismiss the
case.

WHEREFORE, the petition is hereby DISMISSED. Without costs.

SO ORDERED.
G.R. No. 74231 April 10, 1987

CORAZON J. VIZCONDE, petitioner,

vs.
INTERMEDIATE APPELLATE COURT & PEOPLE OF THE
PHILIPPINES, respondents.

NARVASA, J.:

Corazon J. Vizconde has appealed as contrary to law and the evidence,

the Decision of the Court of Appeals 1affirming her conviction of the crime
of estafa by the Court of First Instance of Rizal Quezon City Branch, in
Criminal Case No. Q- 5476.

Vizconde and Pilar A. Pagulayan were charged in the Trial Court with
misappropriation and conversion of an 8-carat diamond ring belonging to
Dr. Marylon J. Perlas in an information which avers that they:

* * * wilfully, unlawfully and feloniously, with intent of gain and

with unfaithfulness and/or abuse of confidence, defraud(ed)
DRA. MARYLOU J. PERLAS in the following manner, to wit:
the said accused received from the offended party one (1) 8-
karat solo diamond ring, white, double cut, brilliant cut with
multiple bentitos, valued at P85,000.00, to be sold by them on
commission basis, with the obligation to tum over the proceeds
of the sale to the offended party, or to return the said ring if
unsold, but the Id accused, once in possession thereof,
contrary to their obligation, misapplied, misappropriated and
converted the same to their own personal use and benefit, and
in spite of repeated demands made upon them, both accused
failed, omitted and refused, and still fait omit and refuse up to
the present, to comply with their aforesaid obligation, to the
damage and prejudice of the offended party, in the
aforementioned amount of P85,000.00, Philippine currency. 2

After trial both accused were convicted and each sentenced to serve an
indeterminate prison term of from eight (8) years, four (4) months and one
(1) day to ten (10) years and two (2) months of prision mayor, with the
accessory penalties provided by law, and jointly and severally to indemnify
the offended party in the sum of P55,000.00 for the unaccounted balance
of the value of the ring with legal interest from April 22, 1975, the further
sum of P30,000.00 as and for moral damages and the sum of P10,000.00
for attorney's fees. 3

Both accused appealed to the Court of Appeals, but as Pilar A. Pagulayan

had evaded promulgation of sentence in the Trial Court and had appealed
only through counsel the Appellate Court vacated her appeal as
ineffectual. 4 On Vizconde's part, the Court of Appeals affirmed the
judgment of the Trial Court in all respects except the penalty of
imprisonment, which it increased to a term of from ten (10) years and one
(1) day of prision mayor to twelve (12) years ten (10) months and twenty-
one (21) days of reclusion temporal. A motion for reconsideration was
denied. Vizconde thereafter filed the present petition for review on
certiorari. 5

Required to comment on the petition, the Solicitor General, despite having

argued for affirmance of Vizconde's conviction in the Court of Appeals, now
recommends that she be acquitted, but nonetheless held civilly liable to the
complainant in the sum of P55,000.00 (the unaccounted balance of the
value of the ring as found by the Trial Court) " * * * or whatever portion
thereof which remains unpaid. * * * 6

From the record and the findings of the courts below, it appears that
sometime in the first week of April, 1975, the complainant, Dr. Marylon J.
Perlas, called up the appellant Vizconde, a long-time friend and former high
school classmate, asking her to sen Perlas' 8-carat diamond ring. Shortly
afterwards, Perlas delivered the ring to Vizconde to be sold on commission
for P 85,000.00. Vizconde signed a receipt for the ring. 7

About a week and a half later, Vizconde returned the ring to Perlas, who
had asked for it because she needed to show it to a cousin However,
Vizconde afterwards called on Perlas at the latter's home, with another
lady, Pilar A. Pagulayan, who claimed to have a "sure buyer" for the
ring. 8 Perlas was initially hesitant to do so, but she eventually parted with
the ring so that it could be examined privately by Pagulayan's buyer when
the latter' gave her a postdated check for the price (P 85,000.00) and,
together with Vizconde, signed a receipt prepared by Perlas. This receipt-
people's Exhibit "A"- reads as follows:
RECEIPT

Received from Dra. Marylon Javier-Perlas one (1) solo 8 karat

diamond ring, white, double cut, brilliant cut with multiple
brilliantitos, which I agree to sell for P85,000.00 (eighty-five
thousand pesos) on commission basis and pay her in the
following manner:

P85,000.00 postdated check

PNB check 730297

dated April 26, 1975

for P85,000.00

It is understood that in the event the above postdated check is

dishonored for any reason whatsoever on its due date, the total
payment of the above item shall become immediately due and
demandable without awaiting further demand.

I guarantee that the above check will be sufficiently funded on

the respective due date.

Quezon City, Philippines

22 April 1975

(SGD.) PILAR A.
PAGULAYAN

PILA
R A.
PAG
ULA
YAN

16
Rd. 8
Proje
ct 6
 I guarantee jointly and severally

(SGD.)
CORAZON J.
VIZCONDE

COR
AZO
N J.
VIZC
OND
E9

After Pagulayan's postdated check matured, Perlas deposited it to her

account at Manila Bank. It was dishonored for the reason, "No
arrangement," stated in the debit advice. Perlas then called up Vizconde to
inform her about the dishonor of the check. The latter suggested that
Perlas re-deposit the check while she (Vizconde) followed up the sale of
the ring. Perlas re-deposited the check, but again it was dishonored
because drawn against insufficient funds. 10 So Perlas took the matter to
counsel who sent separate letters of demand to Vizconde and Pagulayan
for return of the ring or payment of P85,000.00. 11

After nine days, Vizconde and Pagulayan called on Perlas. Pagulayan paid
Perlas P5,000.00 against the value of the ring. She also gave into Perlas'
keeping three certificates of title to real estate to guarantee delivery of the
balance of such value. A receipt for the money and the titles was typed and
signed by Perlas, which she also made the two sign. 12 The receipt
Exhibit "D" of the prosecution reads:

Received from Mrs. Pilar Pagulayan, the sum of FIVE

THOUSAND PESOS ONLY (P5,000.00) representing part of
the proceeds of the sale of one (1) solo 8 carat diamond ring,
white, double cut, brilliant cut w/multiple brilliantitos, given to
Mrs. Pilar Pagulayan and Mrs. Corazon de Jesus Vizconde on
22 April 1975, to be sold on commission basis for eighty- five
thousand pesos (P85,000.00).

Received also owner's duplicate copies of TCT Nos. 434907,

434909, 434910, which will be returned upon delivery of the
 remaining balance of the proceeds of the sale of said diamond
ring for eighty five thousand pesos (P85,000.00).

This receipt is being issued without prejudice to legal action.

Quezon City, Philippines

7 May 1975

(Sgd.
)
Maryl
on J.
Perla
s

Dra.
Maryl
on J.
Perla
s

Conforme:

(Sgd.) Pilar A. Pagulayan

Pilar A. Pagulayan

(Sgd.) Corazon J. Vizconde

Corazon Vizconde 13

Vizconde and Pagulayan having allegedly reneged on a promise to

complete payment for the ring on the very next day, Perlas filed with the
Quezon City Fiscal's office a complaint against them for estafa This
notwithstanding, Pagulayan stin paid Perlas various sums totalling
P25,000.00 which, together with the P5,000.00 earlier paid, left a balance
of P55,000.00 still owing. 14

Both the Trial Court and the Court of Appeals found istilln these facts
sufficient showing that Vizconde and Pagulayan had assumed a joint
agency in favor of Perlas for the sale of the latter's ring, which rendered
them criminally liable, upon failure to return the ring or deliver its agreed
value, under Art. 315, par. l(b), of the Revised Penal Code, for defraudation
committed " * * * with unfaithfulness or abuse of confidence * * * by
misappropriating or converting, to the prejudice of another, * * * personal
property received in trust or on commission, or under any other obligation
involving the duty to make delivery of or to return the same, * * * " The
Solicitor General falling back, as already stated, from an earlier stance,
disagrees and submits in his Comment that the appellant cannot be
convicted of estafa under a correct interpretation of the two principal
exhibits of the prosecution, the receipts Exhibits A" and "D". 15 He is
correct.

Nothing in the language of the receipt, Exhibit "A", or in the proven

circumstances attending its execution can logically be considered as
evidencing the creation of an agency between Perlas, as principal, and
Vizconde, as agent, for the sale of the former's ring. True, reference to
what may be taken for an agency agreement appears in the clause " * * *
which I agree to sell * * * on commission basis" in the main text of that
document. But it is clear that if any agency was established, it was one
between Perlas and Pagulayan only, this being the only logical conclusion
from the use of the singular "I" in said clause, in conjunction with the fact
that the part of the receipt in which the clause appears bears only the
signature of Pagulayan. To warrant anything more than a mere conjecture
that the receipt also constituted Vizconde the agent of Perlas for the same
purpose of selling the ring, the cited clause should at least have used the
plural "we," or the text of the receipt containing that clause should also
have carried Vizconde's signature.

As the Solicitor General correctly puts it, the joint and several undertaking
assumed by Vizconde in a separate writing below the main body of the
receipt, Exhibit "A", merely guaranteed the civil obligation of Pagulayan to
pay Perlas the value of the ring in the event of her (Pagulayan's) failure to
return said article. It cannot, in any sense, be construed as assuming any
criminal responsibility consequent upon the failure of Pagulayan to return
the ring or deliver its value. It is fundamental that criminal responsibility is
personal and that in the absence of conspiracy, one cannot be held
criminally liable for the act or default of another.
 A person to be guilty of crime, must commit the crime himself or
he must, in some manner, participate in its commission or in the
fruits thereof. * * * 16

Thus, the theory that by standing as surety for Pagulayan, Vizconde

assumed an obligation more than merely civil in character, and staked her
very liberty on Pagulayan's fidelity to her trust is utterly unacceptable; it
strikes at the very essence of guaranty (or suretyship) as creating purely
civil obligations on the part of the guarantor or surety. To render Vizconde
criminally liable for the misappropriation of the ring, more than her mere
guarantee written on Exhibit "A" is necessary. At the least, she must be
shown to have acted in concert and conspiracy with Pagulayan, either in
obtaining possession of the ring, or in undertaking to return the same or
delivery its value, or in the misappropriation or conversion of the same.

Now, the information charges conspiracy between Vizconde and

Pagulayan, but no adequate proof thereof has been presented. It is of
course true that direct proof of conspiracy is not essential to convict an
alleged conspirator, and that conspiracy may be established by evidence of
acts done in pursuance of a common unlawful purpose. 17Here, however,
the circumstances from which a reasonable inference of conspiracy might
arise, such as the fact that Vizconde and the complainant were friends of
long standing and former classmates, that it was Vizconde who introduced
Pagulayan to Perlas, that Vizconde was present on the two occasions
when the ring was entrusted to Pagulayan and when part payment of
P5,000.00 was made, and that she signed the receipts, Exhibits "A" and
"D," on those occasions are, at best, inconclusive. They are not
inconsistent with what Vizconde has asserted to be an innocent desire to
help her friend dispose of the ring; nor do they exclude every reasonable
hypothesis other than complicity in a premeditated swindle. 18

The foregoing conclusion in nowise suffers from the fact that the second
receipt, Exhibit "D", appears to confirm that the ring "* * * was given to Mrs.
Pilar Pagulayan and Mrs. Corazon de Jesus Vizconde on 22 April 1975, to
be sold on commission basis for eighty five thousand pesos
(P85,000.00)." 19 The implications and probative value of this writing must
be considered in the context of what had already transpired at the time of
its making. The ring had already been given to Pagulayan, and the check
that she had issued in payment therefor (or to secure payment, as the
complainant would have it) had already been dishonored twice. That the
complainant then already entertained serious apprehensions about the fate
of the ring is evident in her having had her lawyers send Vizconde and
Pagulayan demands for restitution or payment, with threat of legal action.
Given that situation, Exhibit "D", insofar as it purports to confirm that
Vizconde had also received the ring in trust, cannot be considered as
anything other than an attempt to "cure" the lack of mention of such an
entrustment in the first receipt, Exhibit "A", and thereby bind Vizconde to a
commitment far stronger and more compelling than a mere civil guarantee
for the value of the ring. There is otherwise no explanation for requiring
Vizconde and Pagulayan to sign the receipt, which needed only the
signature of Perlas as an acknowledgment of the P5,000.00 given in part
payment, and the delivery of the land titles to secure the balance.

The conflict in the recitals of the two receipts insofar as concerns

Vizconde's part in the transaction involving Perlas' ring is obvious and
cannot be ignored. Neither, as the Court sees it, should these writings be
read together in an attempt to reconcile what they contain, since, as
already pointed out, the later receipt was made under circumstances which
leave no little doubt of its truth and ;Integrity. What is clear from Exhibit "A"
is that the ring was entrusted to Pilar A. Pagulayan to be sold on
commission; there is no mention therein that it was simultaneously
delivered to and received by Vizconde for the same purpose or, therefore,
that Vizconde was constituted, or agreed to act as, agent jointly with
Pagulayan for the sale of the ring. What Vizconde solely undertook was to
guarantee the obligation of Pagulayan to return the ring or deliver its value;
and that guarantee created only a civil obligation, without more, upon
default of the principal. Exhibit "D", on the other hand, would make out
Vizconde an agent for the sale of the ring. The undisputed fact that Exhibit
"A" was executed simultaneously with the delivery of the ring to Pagulayan
compellingly argues for accepting it as a more trustworthy memorial of the
real agreement and transaction of the parties than Exhibit "D" which was
executed at a later date and after the supervention of events rendering it
expedient or desirable to vary the terms of that agreement or transaction.

In view of the conclusions already reached, consideration of the Solicitor

General's argument also quite persuasive that Exhibit "D" in fact
evidences a consummated sale of the ring for an agreed price not fully paid
for, which yields the same result, is no longer necessary. It is, however, at
least another factor reinforcing the hypothesis of Vizconde's innocence.
Upon the evidence, appellant Corazon J. Vizconde was a mere guarantor,
a solidary one to be sure, of the obligation assumed by Pilar A. Pagulayan
to complainant Marylon J. Perlas for the return of the latter's ring or the
delivery of its value. Whatever liability was incured by Pagulayan for
defaulting on such obligation and this is not inquired into that of
Vizconde consequent upon such default was merely civil, not criminal. It
was, therefore, error to convict her of estafa.

As already stated, the Solicitor General however maintains, on the authority

of People vs. Padilla, 20 that the appellant should be held hable to pay the
complainant the amount of P55,000.00, or whatever part of such amount
remains unpaid, for the value of the ring. Again, this is a correct
proposition, there being no question as in fact admitted by her that
the appellant executed the guarantee already referred to.

WHEREFORE, except insofar as it affirms the judgment of the Trial Court

ordering appellant Corazon J. Vizconde, solidarity with Pilar A. Pagulayan,
to indemnify the complainant Marylon J. Perlas in the amount of
P55,000.00 for the unaccounted balance of the value of the latter's ring, the
appellant pealed Decision of the Court of Appeals is reversed and set
aside, and said appellant is acquitted, with costs de oficio. As the record
indicates that levies on preliminary attachment and on execution pending
appeal have been made on behalf of the complainant, 21 which may have
resulted in further reducing the abovestated balance, the appellant may,
upon remand of this case to the Trial Court, prove any reductions, by the
operation of said levies or otherwise, to which the amount of the indemnity
adjudged may be justly subject.

SO ORDERED.

MISSING: PEOPLE VS RAMOS

 [G.R. No. 9397. March 30, 1914. ]

THE UNITED STATES, Plaintiff-Appellee, v. JOSE

VAYSON, Defendant-Appellant.

G. E. Campbell for Appellant.

Acting Attorney-General Harvey for Appellee.

SYLLABUS

1. CRIMINAL LAW; REVISION OF JUDGMENTS. The general

principle reaffirmed and held applicable to both civil and criminal
cases that courts in this jurisdiction have control over their
judgments until they become final, and may set them aside or
modify them as law and justice may require.

2. ID.; ID.; INCREASE IN PENALTY AFTER ENTRY OF JUDGMENT.

A court has the power to revise and increase the sentence
imposed upon a convict before it becomes final and before any
part of the original sentence has been performed.

3. ID.; ID.; ID.; DISCRETION. Where a court in passing

sentence has acted under a misapprehension of the facts
necessary and proper to be known in fixing the penalty, it may, in
the exercise of sound judicial discretion and in furtherance of
justice, ex mero motu, before the judgment has become final and
before the original sentence has gone into operation, revise and
increase or diminish such sentence within the limits authorized by
law.

DECISION

TRENT, J. :
An appeal by Jose Vayson from a judgment of the Court of First
Instance of Misamis, sentencing him to six months imprisonment
and to the payment of the costs of the cause for a violation of the
Election Law. The original information is as
follows:jgc:chanrobles.com.ph

"Jose Baison is accused by the undersigned of a violation of

paragraph 4, section 30, of the Election Law, committed as
follows:jgc:chanrobles.com.ph

"That the said Jose Baison, on or about the 4th day of June,
1912, at the municipality of Misamis, Province of Misamis,
knowing that he was not entitled so to do, did then and there
maliciously and unlawfully vote at the general elections for
delegates to the Philippine Assembly, and provincial and
municipal officials, the said Jose Baison being then and there
delinquent in the payment of land taxes in the amount of P56.88
for the years 1908, 1909, 1910, and 1911, contrary to the
statute in such cases made and provided. Misamis, September
29, 1913."cralaw virtua1aw library

The defendant was arraigned on September 29, 1913, at which

time the court asked him the following question:chanrob1es
virtual 1aw library

JUDGE. You are accused of having violated paragraph 4 of section

30, of the Election Law, in that you did maliciously and
intentionally vote in the general election held on June 4, 1912,
you being delinquent in the sum of P56.88 in the payment of your
land taxes for the years 1908, 1909, 1910, and 1911. What do
you say to this charge: Do you plead guilty or not guilty?

DEFENDANT. Guilty.

Upon recommendation of the fiscal the defendant was then, on

September 29th, sentenced to imprisonment of the costs. On the
3d of October, 1913, the defendant was called into court and the
following proceedings were had in his presence:chanrob1es
virtual 1aw library

FISCAL (addressing the court.) I ask permission of the court to

amend the information presented in this case by changing the
word "Baison" to "Vayson" and the number "4" just after the word
"paragraph," substituting therefor number 1, so that the same
will read "Paragraph number 1."cralaw virtua1aw library

COURT. The motion is admitted.

COURT (addressing the defendant). Are you the vice-president of

the town of Misamis, Province of Misamis?

DEFENDANT. Formerly, yes; but now, no. I presented my

resignation in the month of May.

COURT. Were you elected vice-president in 1912?

DEFENDANT. Yes, sir.

The court then revoked the sentence dated September 29, and
imposed in lieu thereof a sentence of six months imprisonment.

The first sentence was imposed upon the recommendation for

leniency made by the fiscal on the ground that the defendant was
one "of a class of poor ignorant persons whose violations of the
Election Law should not be punished too severely, owing to their
want of education." The proceedings had on the 3d of October
developed that the defendant had been vice-president of his
municipality, was a candidate for that office when he committed
the offense for which he was charged, and had been delinquent in
his taxes for four years. The court considered these facts
sufficient to call for the imposition of a heavier penalty. Both
sentences were within the discretion reposed in the trial court
under the first paragraph of section 30 of the Election Law,
defining and penalizing the offense of which the defendant was
guilty. In our opinion the imposition of six months imprisonment
is not excessive. This punishment is now questioned on that
ground.

The information was amended, as above indicated, after the

defendant had entered his plea, but the changes made were mere
corrections of clerical errors and did not change the allegations
concerning the commission of the crime. The defendant was
charged originally with a violation of paragraph 4 of section 30 of
the Election Law, but he allegations which follow in the second
paragraph of the original information and the explanation given
the defendant by the court show that it was the first paragraph of
section 30 which was violated and not the fourth. The fourth
paragraph penalizes the act of taking or subscribing to any false
oath concerning any material fact in any registration or election
proceedings, while the first paragraph penalizes any person who
votes or attempts to vote, knowing that he is not entitled so to
do. The result is that the correction of the clerical errors in the
complaint could not and did not prejudice the rights of the
defendant.

We will now inquire whether the court had the power under the
facts and circumstances above set forth to set aside its original
judgment and impose the penalty of six months. In determining
this question it must be borne in mind that the defendant had
served no part of the original sentence when the second sentence
was pronounced.

In the case of Arnedo v. Llorente (18 Phil. Rep., 257), this Court
said: "When not otherwise provided by statute, all courts in the
Islands have plenary control over the proceedings had before
them, as also of judgments therein, until such judgments become
final in the sense that the party in whose favor they are rendered
is entitled as of right, to have execution thereon, and, in the
exercise of a sound discretion, the courts may take such action
touching the vacation and amendment of these judgments as
truth and justice may require."cralaw virtua1aw library

This doctrine, as to civil cases, recently been affirmed in De

Fiesta v. Llorente (25 Phil. Rep., 554); and Broce v. Apurado (26
Phil. Rep., 581). Does it apply to criminal cases? In United States
v. Crossfield (24 Phil. Rep., 321), this court held that the Court of
First Instance had no power to modify its judgment in a criminal
case after the expiration of the period for appeal. This case
negatively admits the proposition that a Court of First Instance
would have the power to modify its judgment in a criminal case
before it became final, that is, before the expiration of the time
allowed for an appeal. Is it true that the accused may not object
to such action on the part of the court when the proposed change
is not desired by him? Upon this precise question, we are not
aware of any precedents in this jurisdiction. The case of Ex parte
Lange (85 U. S., 163, 21 L. ed., 872), states the general rule as
follows: "The general power of the court over its own judgments,
orders and decrees, in both civil and criminal cases, during the
existence of the term to which they are first made, is
undeniable."cralaw virtua1aw library

That case, however, must be considered as an exception to the

general rule thus announced. Whereas, the statute provided for
imprisonment or a fine, the court had imposed imprisonment and
a fine. The prisoner had paid the latter and had served five days
of the prison sentence, when the court, during the same term,
called him to the bar and amended its judgment so that it called
for imprisonment only. The Supreme Court held that the payment
of the fine was an authorized punishment for the crime and that
the revision of the sentence was in effect subjecting the prisoner
to a second punishment, which was contrary to the jeopardy
clause of the Constitution. This exception to the general rule has
been recognized in a number of cases, the majority of which are
referred to in the Notes of United States Reports, vol. 8, p. 159.
But it is apparent that, as the present defendant had served no
part of the original sentence, he cannot bring himself within the
exception.

In Bradford v. People (22 Colo., 157), judgment calling for

imprisonment for one year was pronounced on January 28. On
January 31, the court, on its own motion, set aside this judgment
and entered another, sentencing the defendant to imprisonment
for one year on each of three counts. As it was specifically
provided, however, that all of these sentences should run
concurrently, the aggregate of the sentences in the revised
judgment was the same as the first.

The court said: "In cases where the defendant has entered upon
the execution of a valid sentence, it is well established that such
sentence cannot be set aside and a new sentence entered. The
sentence in this case was for the full term of one year in the state
penitentiary, and his incarceration in the country jail of Arapahoe
county, temporarily or otherwise could not be credited upon his
term; it was simply a means to an end, in order that the
defendant might not escape until he could be safely conveyed to
and lodged in the state penitentiary. It was no part of his
sentence under the statute, and the time so spent could not be
deducted from his term, as it is provided that the term shall be
computed from and including the day on which he is received into
the penitentiary."cralaw virtua1aw library

In Tillman v. State (58 Fla., 113), it was said that "during the
same term of court at which the sentence is imposed, before the
defendant had begun serving such sentence, the trial judge has
the power to modify such sentence."cralaw virtua1aw library

In State v. Dougherty (70 Iowa, 439), judgment was entered

against the defendant on his plea of guilty for a fine and costs. At
the same term and before any part of the judgment had been
complied with, the court set the judgment aside and entered
another judgment, which imposed a greater fine.

The appellate court said: "The question in the case is whether the
court, after it had entered a judgment in regular from against the
defendant, had the power, at the same term and before any part
of the judgment had been performed, to set that judgment aside,
and enter another judgment against him imposing a heavier
penalty. The power of the courts to revise, correct and change
their sentences, at the term at which they are pronounced, and
before anything has been done under them, has long been
recognized both in this country and in England; and the cases are
numerous in which the power has been exercised. (See Com. v.
Weymouth, 2 Allen, 144; U. S. v. Harmison, 3 Sawy., 556;
Memphis v. Brown, 94 U. S. 715; Ex parte Sawyer, 21 Wall., 325;
Burnside v. Ennis, 43 Ind., 411; Regina v. Fitzgerald, 1 Salk.,
401; Rex v. Price, 6 East, 323; Rex v. Leicestershire Justice, 1
Maule & S., 442.)"

In State v. Hughes (35 Kan., 626), the defendant was sentenced

to imprisonment at hard labor in the penitentiary for six months.
Within an hour after sentence was pronounced, the attention of
the court was called to the fact that no person could be sentenced
to imprisonment at hard labor in the state prison for less than
one year. The court thereupon proceeded to sentence the
prisoner to imprisonment for a term of one year.

The supreme court said: "The sentence first pronounced against

the defendant was not executed or put into operation and so long
as it remained unexecuted, it was, in contemplation of law, in the
breast of the court, and subject to revision and alteration. (Com.
v. Weymouth, 2 Allen, 147.) We think it was clearly within the
discretion and power of the court until the end of the term, to
amend and revise or increase the sentence which had not gone
into effect. (1 Bish. on Cr. Proc., sec. 1298, and cases cited.) As
nothing had been done under the sentence first pronounced, and
as the final sentence did not impose a penalty in excess of that
provided by law, the rights of the defendant were not infringed
upon, nor has he any ground for complaint."cralaw virtua1aw
library

In Commonwealth v. Weymouth (2 Allen, Mass., 144; 79 Am.

Dec., 776), the defendant was first sentenced to two years
imprisonment in a house of correction. On the next day, the
prosecuting attorney moved for a revision of the sentence and,
over the prisoners protest, additional testimony was heard, after
which the original judgment was revised and the defendant
sentenced to imprisonment in the state prison for three and one-
half years, the first two days of which were to be solitary. After
citing authorities, the court held the rule to be that if no action
has been taken, there is no good reason for refusing to vacate
the judgment for sufficient cause and substituting a new one in
its place.

The court said: "The petitioner in the present case is not

subjected by the amended sentence of the court to any
punishment for his offense other or greater than that allowed by
law. He was never taken or charged on the warrant which was
issued on the sentence as originally pronounced. That sentence
never went into operation, and in effect, was the same as if it had
never been passed. So long as it remained unexecuted, it was, in
contemplation of law, in the breast of the court, and subject to
revision and alteration. He was not injured or put in jeopard by it
any further than he would have been by a conclusion or judgment
of the court as to the extent of his punishment, which had not
been announced. Until something was done to carry the sentence
into execution, by subjecting the prisoner to the warrant in the
hands of the officer, no right or privilege to which he was entitled
was taken away or invaded by revoking the sentence first
pronounced and substituting in its stead the one under which he
now stands charged. If it had appeared that the petitioner had
actually been taken and committed under the first sentence, or if
he had been thereby condemned to imprisonment in the state
prison, so that the term of his sentence would be computed from
the time he was first ordered to remain in the custody of the
sheriff, according to the statutes of 1859, chapter 248, we might
have arrived at a different result; but on the record as it stands,
we are all of opinion that the order must be, Prisoner
remanded."cralaw virtua1aw library

In Lee v. State (32 Ohio, 113), the defendant pleaded guilty to a

charge of illegally selling intoxicating liquor and was sentenced to
pay a fine and costs of the cause. These proceedings were had on
May 12, 1874, but no steps were taken to carry the sentence into
execution. On the 15th of the same month, the defendant was
again before the court, this time on a charge of selling liquor to a
minor, and the court then finding that in passing the said
sentence it had acted under a misapprehension of the facts of the
case, and that no portion of said fine and costs had been paid or
secured, and that the defendant had not been taken into custody
under said judgment, set aside the same, and proceeded, over
the defendants objection, to sentence him to a heavier fine.

The court said: "The single question is, had the court the power
to revise and increase its judgment, at the same term before any
part of the fine and costs had been paid, and before any steps
had been taken to execute it?

"That this power exists, is settled by a long line of decisions of

the highest authority. . . .

"It appears from the record, that in passing the first sentence,
the court acted a misapprehension of the facts."cralaw virtua1aw
library

"In the absence of a showing to the contrary, we must presume

that there were sufficient reasons addressing themselves to the
sound judicial discretion of the court for such action, and that it
was deemed to be necessary in furtherance of justice and the due
administration of the law. It is said this is a dangerous power.
The same may be said of the exercise of all judicial discretion.
This is equally as true of the discretion exercised in the first
instance, in fixing the sentence, as in that exercised in revising
it.

"If the court in revising its own sentence confines itself to such
information as it has the right to have in the first instance, no
greater danger of abuse exists than in the exercise of judicial
discretion in rendering its first judgment.

"The power to revise judgments of the same term, and, before

execution has commenced, to correct errors and mistakes is
necessary for the protection of the defendant, as well as the
public, and may be exercised as well in his favor as against him,
when the court has been misled by mistake or fraud."cralaw
virtua1aw library

In Nichols v. United States (106 Fed., 672), the Circuit Court of

Appeals for the Eight District had under consideration the act of a
district judge under the following circumstances: After verdict and
before rendering sentence, the judge called the attorney for the
defendant to the bar and asked if it was the intention to
prosecute the matter any further, and, understanding that it was
not, the court stated that he would enter a fine of $100 against
the defendant and imprisonment for six months. Thereupon
counsel said that he intended to prosecute an appeal, and the
court called up the defendant, who was still within the bar, and
directed the clerk to enter a fine of $100 and imprisonment for
twelve months.

The Circuit Court said: "The extent of the punishment to be

inflicted on the defendant, within the limit prescribed by the
statute for the offense, rested in the sound judicial discretion of
the court. The imposition of the first sentence did not put an end
to the exercise of this discretion. The first sentence was not
recorded. The defendant had not yet left the bar, and had not
satisfied or suffered any part of the punishment thereunder, when
it was set aside and the second sentence imposed. Under these
conditions, it was competent for the court to reconsider its
sentence and impose a different one. (Ex parte Lange, 18 Wall.,
163; 21 L. ed., 872.) The bill of exceptions does not show that
the first sentence was set aside, and the second imposed,
doubling the period of imprisonment, because the defendant had
declared his intention of appealing the case. A new sentence, with
enhanced punishment, based upon such a reason, would be a
flagrant violation of the rights of the defendant. It would be the
infliction of a penalty for the exercise of a clear legal right, and
would call for the severest censure. But no such motive can be
imputed to the court below. This court is bound to presume that
the lower court, in recalling its first and imposing a second and
more severe sentence, did so from right and proper motives, and
for the purpose of imposing a punishment which, upon reflection,
it deemed better suited to the offense."cralaw virtua1aw library
In England the authorities are the same way. In King v. Price (6
East, 323; 102 Eng. Rep., 1310), the defendant was convicted of
illegally voting at an election and was sentenced to one months
imprisonment in Newgate and to be then transported beyond the
seas for seven years. At the same term and upon further
consideration of the law governing the case, the court proceeded
to impose a more severe sentence.

The recently compiled encyclopedia, entitled the Laws of England

(vol. 9, p. 377), affirms the rule as follows: "The court may at
any time during the same assizes or sessions, before the
judgment has been entered on the record, vacate the judgment
passed and substitute another."cralaw virtua1aw library

American textwriters are also in full accord with the doctrine

under discussion. Black on Judgments, section 153 (citing State
v. Dougherty, 70 Iowa, 439, supra), says:jgc:chanrobles.com.ph

"It is even held that the court, in a criminal action, may set aside
a judgment made in regular course, imposing on the defendant a
fine and the costs of the proceedings, during the same term at
which the judgment was rendered, and before any part of it has
been performed, and may impose a greater fine than was
imposed by the first judgment."cralaw virtua1aw library

In 12 Cyc., 783, it is said: "At any time during the term the court
has the power to reconsider the judgment, and to revise and
correct it by mitigating and even by increasing its severity, where
the original sentence has not been executed or put into
operation; but where the prisoner has paid his fine or his
imprisonment has begun, the court has no power to recall him to
revoke his former sentence and impose one which inflicts a
greater punishment."cralaw virtua1aw library

And in 1 Bishops New Crim. Procedure, sec. 1298, it is said: "The

power of the court to alter its docket entries and records during
the term wherein they are made includes the right within such
time to revise, correct and change its sentences, however
formally pronounced, if nothing has been done under them. But
steps taken under a sentence for example, a substantial part
execution thereof will cut off the right to alter it, even during
the term, and with the expiration of the term the power
expires."cralaw virtua1aw library

As was said in the Arnedo case, the term system in vogue in the
United States and England has no place in this country. The
power of the courts in this country over their judgments expires
when they become final. Between the entry of the judgment and
the date it becomes final is a period allowed by law for appeal or
vacation of the judgment entered. It is during this period of time
and to the same extent as the courts of England and America,
that our courts have control over their judgments to modify and
revise. The authorities we have reviewed above demonstrate that
until a criminal judgment has become final and unless the
defendant has complied in whole or in part with the penalty
imposed, the court may revise its judgment by either increasing
of decreasing the penalty imposed, so long as it keeps within the
limits of the penalty provided by law. Such a modification of the
sentence is within the sound discretion of the court, and unless a
review of the evidence shows that such discretion has been
abused, affords no basis for complaint on the part of either the
prosecution or the defendant.

In the present case the revised judgment of the court relates that
the defendant "has not yet begun to serve the sentence imposed
upon him." The facts developed upon the second hearing show
clearly that the court did not abuse its discretion in revising his
sentence. There is therefore no reversible error in the judgment
appealed from and it is hereby affirmed, with costs against
the Appellant.

Arellano, C.J., Carson and Araullo, JJ., concur.

Moreland, J., concurs in the result.

G.R. No. L-62117 April 2, 1984

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HON. JESUS ARLEGUI, Judge Court of First Instance of
Batangas, Branch VII, and WILLIAM ESPANOLA, respondents.

The Solicitor General for petitioner.

Renaldo B. Castelo for private respondent.

GUTIERREZ, JR., J.:+.wph!1

This is a petition for review on certiorari of the order of the Court of First
Instance of Batangas, Branch VII, dismissing on a motion to quash Criminal
Case No. 2170 entitled "People of the Philippines v. William Espaola" on
the ground that from the language used in the information in relation to the
Presidential Decrees punishing the alleged offense, it is not clear that an
offense was committed and that the supposed penal statutes "are not
prohibitive but rather permissive and preceptive statutes."

Respondent Espaola was charged in an information which

reads:t.hqw

The undersigned Third Assistant Provincial Fiscal accuses

William Espanola of the violation of Presidential Decree No.
381 in relation to Section 4-B of Presidential Decree No. 189,
as amended, committed as follows:

That during the month of May 1979 and continuously up to the

present, at Sitio Putat, Barangay Papaya, Municipality of
Nasugbu, Province of Batangas, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused
did then and there, wilfully, unlawfully and feloniously and
without authority of law, establish, construct, manage and
operate development projects for tourism purposes on a land
under the administration and supervision of the Philippine
Tourism Authority, a government corporate body charged with
the planning and development of tourism projects, and situated
 in Putat, Nasugbu, Batangas, containing an area of 30,000
square meters, more or less, otherwise known as the Peco de
Loro Beach Resort, without the prior approval of the said
Authority.

Respondent Espanola moved to quash the information on the following

grounds:t.hqw

The accusation against the accused is not a penal offense, but,

more of administrative in nature, because Sec. 4 of P.D. No.
381 as well as P.D. No. 189, Sec. 4-B do not impose Criminal
liability against the offender. The accused did not commit any
offense in the development of the beach resort because his
application, granting that the area is within the jurisdiction of the
Philippine Tourism Authority, was duly given due course by the
said body as stated in

Annex "A". Instead of charging the accused, he ought to be

commended for assisting the government in the promotion of
tourism. In fact, the beach resort has become so famous that
foreigners have been continuously and regularly patronizing the
place.

The land covered by the beach resort was also given due
course by the Bureau of Lands and covered by a Foreshore
Lease Application as clearly reflected in Annexes "B" and "C".

The grounds in the Fiscal's opposition to the motion to quash

are:t.hqw

1. That the accused has overlooked the fact that Presidential

Decree No. 381 which was made principally as the basis of the
charge against the herein accused provides under Section I
thereof 'that no development project for tourism purposes
shall be undertaken by any person without prior approval of
the Philippine Tourism Authority, in accordance with the
provisions and guidelines prescribed by the Department of
Tourism.' As a corollary thereto, Section 4 provides that any
person violating or causing another to violate any provision of
this decree or the rules and regulations promulgated by the
Phillippine Tourism Authority pursuant to the next preceding
 section wig suffer the penalties provided for under Section 4-B
of P.D. No. 189, as amended. Presidential Decree No. 259
which took effect on August 1, 1973 which among others
provides the penalties for the violation of any provision of the
said decree or of the rules and regulations or circulars of the
Department of Tourism is now known as Section 4-B of PD No.
189. Section 4-b has been misquoted because Section 4 of PD
No. 189 was the one quoted by the accused. Section 4-b as we
have stated is an amendment to Section 4 of PD No. 189 which
section is now included under PD 259 as an amendatory act to
PD No. 189.

xxx xxx xxx

2. That it is not true that the Philippine Tourism Authority gave

due course to the application of the accused for the undertaking
of a particular development project at Sitio Putat, Barangay
Papaya, Nasugbu, Batangas, for tourism purposes because the
letter itself dated February 14, 1979 does not indicate approval
of the authority of his application in the sense that the
implications of the phrase "we may give due course to your
proposal" do not altogether give a guarantee and assurance to
the accused that his application will be approved. ...

Complainant Philippine Tourism Authority likewise interposed an opposition

to the motion to quash and argued:t.hqw

The charge against the accused is an offense punishable by

Special Law, P.D. 381, the penalty of which is provided in
Section 4-B of P.D. 189, as amended by P.D. 259. It should be
noted that P,D. 189 has been amended by P.D. 259 in
which Section 4-B was specifically incorporated providing for
the penalty of any violation of P.D. 381. The citation of the
accused of Sec. 4-b (not capitalized) of P.D. 189, as supposed
to be providing the penalty as mentioned by P.D. 381 is an
error because P.D. 381 mentions Sec. 4-B (capitalized letter) of
P.D. 189 as amended particularly by P.D. No. 259. ...

The allegation of the accused that he did not commit the

offense because his application for beach resort was duly given
 due course by the Authority, is a matter of defense which, at
this stage, is misleading and definitely not a ground for a Motion
to Quash. ...

The respondent court, in a twelve-page order resolved to dismiss the case.

The prosecution, through the Provincial Fiscal and the Philippine Tourism
Authority, raised the matter to this Court in this petition and made the
following assigment of errors:t.hqw

(i)

Respondent Lower Court erred in resorting to interpretation and

construction of the information and the law subject of violation
despite the unambiguous provisions thereof.

(ii)

Respondent Lower Court erred in declaring P.D. 381 as a

permissive statute despite the mandatory nature of the
provisions and the penalty provided for violation thereof.

(iii)

Respondent Lower Court erred in dismissing Criminal Case No.

2170.

Asked to comment on the case at bar, the Solicitor General stated that the
respondent judge did not properly apply the correct provisions of the law
allegedly violated by the private respondent and agreed with the
prosecution that P.D. No. 381 is not a permissive statute and violation of its
provisions constitutes a criminal offense.

The pertinent provisions of P.D. No. 381 (Requiring the Approval of the
Philippine Tourism Authority on Certain Development Projects and Loans
Applied for to Finance their Construction, etc.) are t.hqw

Section 1. Any provision of existing laws, decrees, or rules to

the contrary notwithstanding, no development project for
tourism purposes shall be undertaken by any person without
the prior approval of the Philippine Tourism Authority, in
 accordance with the policies and guidelines prescribed by the
Department of Tourism.

xxx xxx xxx

Section 4. Any person violating or causing mother to violate any

provision of this decree or of the rules and regulations
promulgated by the Philippine Tourism Authority pursuant to the
next preceding section shall suffer the penalties provided
under Section 4-B of Presidential Decree No. 189, as amended
(Empahsis supplied).

Section 4-b (not capitalized) of P.D. No. 189 (Amending Part IX Of The
Integrated Reorganization Plan by Renaming the Department of Trade and
Tourism as the Department of Trade, and Creating the Department of
Tourism with a Philippine Tourism Authority attached to it in lieu of
Philippine Tourism Commission) provides:t.hqw

Section 4. Functions. The Department shall be responsible

for the following functions:

xxx xxx xxx

b. Effect the removal of unnecessary barriers to travel; the

integration and simplification of travel regulations; as well as
their efficient, fair and courteous enforcement to assure
expeditious and hospitable reception of all visitors;

xxx xxx xxx

P.D. No. 189 was later amended by P.D. No. 259 (Amending Certain
Provisions of Presidential Decree No. 189 dated May 11, 1973). Section 2
of the latter decree provides that:t.hqw

SECTION 2. To provide penalties for the violation of any

provision of the said Decree or of the rules and regulations or
circulars of the Department of Tourism, a new section to be
known as Section 4-B is hereby added, which shall read as
follows: (Italics supplied)
 SEC. 4-B. Any person violating or causing another to violate
any provision of this Decree, or of the rules and regulations or
circulars promulgated by the Department of Tourism pursuant
to its power and authority to license, classify, regulate and/or
supervise the operation of all persons, businesses,
establishments, facilities and services that cater to, or have
anything to do with travelers and tourists, both international and
domestic shall, upon conviction by a court of competent
jurisdiction, suffer the penalty of imprisonment of not less than
two (2) years nor more than five (5) years or a fine of not less
than two thousand pesos nor more than five thousand pesos, or
both, at the discretion of the Court. In addition thereto, such
violation shall ipso facto, constitute a valid ground for the
revocation of all privileges, permits and authorization granted to
such person or entity under this Decree by the Department of
Tourism. Provided, however, That if the offender is a
corporation, firm, partnership or association, the penalty shall
be imposed upon the guilty officer or officers, as the case may
be, of the corporation, firm or association, and if such guilty
officer or officers is an alien, in addition to the penalties herein
prescribed, he or they shall be deported without further
proceedings on the part of the Commission on Immigration and
Deportation. "

We purposely emphasize that there are two sections numbered almost

Identically, one with a capitalized "B" and the other with a non-capitalized
"b", ("Section 4-B" and "Section 4-b") since these sections caused the
confusion encountered by the respondent court and the misreading and
misapplication of the law. The two sections must be distinguished from
each other. Under "Section 4-b" of P.D. No. 189, the Department of
Tourism was empowered to "effect the removal of unnecessary barriers to
travel; the integration and simplification of travel regulations; as well as
their efficient, fair, and courteous enforcement to assure expeditious and
hospitable reception of all visitors. 7' It does not provide for any penalty,
much more impose any criminal liability. To that extent respondent
Espanola was correct when he said that the provision was not a penal
offense but that it was more administrative in nature. The respondent court
citing Section 4-b (not capitalized) of P.D. No. 189, arrived at the same
conclusion.
However, P.D. No. 189 has been amended by P.D. No. 259 and a new
provision, Section 4-B, added. Moreover, the information clearly and
expressly accuses respondent Espanola for the violation of P.D. No. 381 in
relation to Section 4-B of P.D. No. 189, as amended, not Section 4-b of
P.D. No. 189 before it was amended This means that "upon conviction of a
court of competent jurisdiction" the "penalty of imprisonment of not less
than two (2) years nor more than five (5) years or a fine of not less than two
thousand pesos nor more than five thousand pesos, or both, at the
discretion of the court' shall be imposed.

In dismissing the case, the respondent court relied on rules of statutory

construction and held that:t.hqw

It is basic that if the writing is plain, certain and free from

ambiguity, a bare reading suffices and interpretation is
unnecessary or stated conversely, if the writing is ambiguous,
or its meaning uncertain, interpretation is required in order to
ascertain what the writer meant. But interpretation may be
required and justified by various factors. Besides the doubt
created by doubtful meaning of words used do not express
the Prosecutor's Information intent perfectly, in which case
interpretation is needed. Such is the case at bar, the Court
honestly believe that the language used exceeds or falls short
of expressing the meaning intended.

An examination of the information shows on its face that it does not suffer
from any material or substantial defect or any so-called ambiguity or double
meaning as to warrant the dismissal of the case. Contrary to the
respondents' claim, the information appears sufficiently explicit. It does not
suffer from the obscurity, unintelligibility, or vagueness alleged by the
respondents. Respondent Espanola created ambiguity where there was
none. Resort to statutory construction or interpretation was, therefore,
unnecessary.

Assuming the information to have been vague and ambiguous, alternative

courses of action could have been taken. Respondent Espanola could have
filed a motion for a bill of particulars if he did not feel like researching into a
Presidential Decree with a Section 4-b and a Section 4-B. A bill of
particulars while provided for under Section 6 of Rule 116 is not a popular
procedure among lawyers for the accused in criminal cases. For one thing,
it may invite an amended information which is not only clearer but may also
be stronger and more incriminating. However, it would have clarified and
corrected at an early stage the kind of doubt which the accused in this
particular case alleged to have entertained. Section 6 of Rule 116
provides:t.hqw

SEC. 6. Bill of Particulars. Defendant may, at the time of or

before arraignment, move for or demand a more definite
statement or a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him
properly to plead or prepare for trial. The motion shall point out
the defects complained of and the details desired.

The more appropriate procedure under the circumstances would have been
an order from the court directing the Fiscal to amend the information
because the defect, if there ever was one, was curable by the simplest of
amendments or clarifications. There was no basis to grant the motion to
quash and dismiss the case.

This Court stated in People v. Plaza (117 Phil. 627), where we found that
the real defect of the information was not that the facts alleged therein did
not constitute a punishable offense but that its allegations were vague,
that:t.hqw

But even assuming that the lower court was right in holding that
the facts alleged in the information do not constitute a
punishable offense, as far as defendant Plaza was concerned,
the case should not have been dismissed with respect to him.
Instead, pursuant to the provisions of Section 7. Rule 113 of the
Rules of Court, the lower court should have given the
prosecution an opportunity to amend the information. That
under the provisions of said rule the trial court may order the
filing of another information or simply the amendment of the
one already filed is clearly in accordance with the rule in this
jurisdiction (U.S. v. Muyo, 2 Phil. 177; People v. Tan 48 Phil.
877, 880).

But the ruling of this Court was not followed. Instead, after Espanola filed a
motion to quash to which the respondent Fiscal together without complaint
Phillippine Tourism Authority interposed an opposition, the same was
granted. To make matters worse, the case had to be brought to this Court
on certiorari. The filing of this petition and the resultant unnecessary
addition to the heavy docket of this Court could have been avoided by the
simple expedient of ordering the heavy docket of this Court could have
been avoided by the simple expedient of ordering the filing of an amended
information.

Respondent Espaola contends that the phrase "as amended" found in the
information cannot be the subject of guessing by the accused. He argues
thatt.hqw

... the purpose of the designation of -the offense "is to secure a

clear specification of the offense charged And inasmuch as in
criminal cases, not only the liberty but even the life of the
defendants may be at stake, it is always wise and proper that
they should be fully apprised of the charged against them, and
thus avoid any and all possible surprise, which might be
detrimental to their rights,and interests"(People v. Abad Santos,
76 Phil. 744) it would be unwise to change the battleground in
criminal cases from issues to guesses and from facts to fancy.

The respondent was not caught in a speculative guessing game. He knew

very well or should have known what law amended P.D. No. 189. And even
if the respondent was sincerely confused at the start, he was properly
apprised of the present status and applicable provision of the decree when
the present status and applicable provision of the decree when the Fiscal
and the complainant Philippine Tourism Authority filed their separate
oppositions to the motion to quash. The respondent court quoted P.D. No.
259, the amendatory decree in its order. The correct action to take on the
motion to quash was obvious.

We have held that an error which specifies the wrong provision of

applicable law does not necessarily vitiate the information (People v.
Arnault, 92 Phil. 252). A fortiori should an imagined ambiguity not vitiate the
information. For it is a well-settled rule that the real nature of the crime
charged in an information or complaint is determined not by the title of the
complaint, nor by the specification of the provision of law alleged to have
been violated, but by the facts alleged in the complaint or information
(People v. Oliveria, 67 Phil. 427).
What is important is not the designation of the offense charged in the
caption of the information but the facts alleged therein (People v. Agito, 103
Phil. 526). The designation by name of the crime in the caption of the
information constitutes a conclusion of law on the part of the fiscal. It is not
necessarily essential, for the protection of the substantial rights of the
accused or for the effective preparation of his defense, that he be informed
of the technical name of the crime of which he stands charged (People v.
Cosare, 95 Phil. 656).

The respondent court further erred in holding that P.D. No. 381 in relation
to Section 4-B of P.D. No. 189, as amended is not prohibitive but rather is a
permissive and preceptive provision of law A perusal of the decrees
involved shows the contrary. Section 1 of P.D. No. 381 is worded in the
negative, i.e., ". . . no development project for tourism purposes. . .".
Moreover, it uses the word "shall" instead of "may" evincing the mandatory
nature of the provision itself. In addition, it contains a "no-exemption
clause", i.e., "any provision of existing laws, decrees or rules to the contrary
notwithstanding. . ." Most important, the decree carries a penalty of
imprisonment or fine or both for a violation of its provisions. It would be
incongruous for permissive provision of law to be sanctioned by stiff
criminal penalties. When all these are combined, the effect is to clearly
express the prohibitive intent of the law.

Respondent Espanola adamantly insists that he has not violated P.D. No.
381 since the Philippine Tourism Authority gave due course to his
application. This is a matter of defense on the part of the accused and
should be properly ventilated during the full-dressed trial on the merits of
the case below.

WHEREFORE, the petition is given due course. The questioned order of

the respondent court is REVERSED and SET ASIDE. The appropriate
Regional Trial Court is directed to proceed with the arraignment of the
private respondent and, thereafter, to proceed with the trial of the case. No
costs.

SO ORDERED.1wph1.t
G.R. No. L-36471 November 19, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS CAMBA y VELASQUEZ, accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision which imposed the death penalty on

CARLOS V. CAMBA.

Before the Circuit Criminal Court of Manila, Camba was accused of murder
with assault upon an agent of a person in authority said to have been
committed in the following manner:

That on or about October 10, 1972, in the City of Manila,

Philippines, the said accused, conspiring and confederating
with Rolando Dungon y Miranda, a minor 15 years of age, who
has also been charged of same offense with the Juvenile Court,
and another whose Identity and whereabouts are still unknown,
and helping one another with intent to kill and with treachery
and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Pat.
Reynaldo Gongora y Sta. Ana, a qualified and duly appointed
member of the Manila Metropolitan Police and acting as such,
and therefore, an agent of a person in authority, with a dagger
wrapped with a comics magazine, while the latter was
responding to a robbery-snatching case, thereby inflicting upon
said Pat. Reynaldo Gongora y Sta. Ana a mortal wound which
was the direct cause of his death thereafter. (Expediente, p. 1.)

Camba pleaded not guilty when arraigned on October 20, 1972. (Id., p. 5.)
After trial, he was sentenced as follows:

WHEREFORE, accused is hereby found guilty beyond

reasonable doubt as principal of the crime of murder qualified
by treachery with assault upon an agent of a person in authority
and there being no modifying circumstance to consider, the
Court sentences him to DEATH, to indemnify the heirs of the
deceased herein, REYNALDO GONGORA y STA. ANA, the
sum of P12,000.00 for the death of the latter, the sum of
 P10,000.00 by way of moral damages, the sum of P10,000.00
by way of exemplary damages and to pay the costs. (Id., pp.
101-102.)

A "Bluebirds Bus" with plate No. 200 was on its usual Guadalupe, Makati,
to Quiapo, Manila, and return run on October 10, 1972. One of those in the
bus was Rodrigo Eser, a mechanic, who was tasked to service it.
According to Eser who was seated at the rear, three men boarded the bus
under the Quezon bridge in Quiapo on its return trip to Guadalupe. Near
Tejeron street, many of the passengers debarked, including two of the
three men who had boarded under Quezon bridge. A passenger shouted
that his wrist watch had been snatched whereupon Patrolman Reynaldo
Gongora who was in uniform and also a passenger went to the rear of the
bus in order to assist the victim of the snatching but before he could do so
the third man who was left behind stabbed Patrolman Gongora. the
assailant was Carlos Camba who was able to escape. It was then about
5:40 p.m.

Patrolman Gongora was brought to the Makati Medical Center where he

died on the same day. The post-mortem examination revealed the
following:

EXTERNAL INJURIES:

(1) Hematoma, lateral surface of the neck measuring 2l0 x 3.0

cm.

(2) Multiple seven (7) stab wounds located as follows: Two (2)
at the left anterior chest both penetrating and causing
downward both lacerating the apex of the heart, one lacerating
the left lung and liver, two lacerating the stomach. One (1) thru
and thru the left arm. Two (2) in the right arm. One (1) in the
testicle. One (1) at the palmar surface of the left hand.

(3) Swelling of the ankle joint.

INTERNAL FINDINGS:

Two stab wounds at the apex of the heart, one not penetrating
into the chamber of the heart. One stab wound in the lower lobe
 of the left lung. One stab wound thru the diaphragm. Two stab
wounds in the stomach.

CAUSE OF DEATH:

Multiple seven (7) stab wounds lacerating the left lung, right
ventricle of the heart, diaphragm and stomach. (Exh. L.)

In the light of the foregoing, it is useful to note the comment of the court a
quo as follows:

It is the observation of the Court that the crime committed is

more of robbery with homicide for the reason that Pat.
Reynaldo Gongora was killed while responding to the call for
help of a victim of snatching and it has been held that in case of
robbery with homicide, it is not necessary that the person killed
is the very victim of robbery. The person killed may even be
one of the robbers (People vs. Carunungan, CA-G.R. 9986-R,
October 17, 1957; People vs. Cardon,et al., CA 56 O.G. 3404).
(Expediente, pp. 100-101.)

The appellant claims that the trial court committed the Following errors,
namely:

I. THE COURT ERRED IN CONVICTING THE ACCUSED

ACCUSED OF THE OFFENSE CHARGED DESPITE THE
FACT THAT WHAT WAS PROVEN WAS A DIFFERENT
CRIME NOT NECESSARILY INCLUDED IN THE OFFENSE
CHARGED NOR DOES THE OFFENSE CHARGED
NECESSARILY IN-INCLUDE THE OFFENSE PROVED.

II. THE COURT ERRED IN FINDING THAT THE

PROSECUTION WITNESSES POSITIVELY IdENTIFIED THE
ACCUSED DESPITE THE NUMEROUS INCONSISTENCIES
AND IMPROBABILITIES IN THEIR TESTIMONIES
CONSEQUENTLY DISREGARDING THE DEFENSE OF ALIBI
PUT UP BY THE ACCUSED. (Brief, p. 1.)

On the first assignment of error, the appellant claims that he was charged,
arraigned, tried and convicted for the crime of murder with assault upon an
agent of a person in authority but the facts show that the crime committed
was different-robbery with homicide. Hence his conviction for murder with
assault should be set aside.

Upon the other hand, the Solicitor General claims that there is no disparity
between the offense charged and that which was preyed during the trial.
He insists that the charge in the information spells the crime of murder, not
robbery with homicide; and the evidence shows that the former, not the
latter was committed.

The first claim is partly correct; the second claim is completely wrong.

A careful scrutiny of the information will readily reveal that the charge
against the appellant is robbery with homicide. This is manifest from the
phrase, "while the latter (the deceased) was responding to a robbery-
snatching case." In fact, the appellant's brief makes the same conclusion; it
says, "a close scrutiny of the same information reveals that the crime
committed is the special complex crime of Robbery with Homicide." (Brief,
p. 4) And it should be borned in mind in this connection that the label or
caption in the information in respect of the crime committed is not
controlling what matters are the material allegations in the information.
Also to be noted is the correct observation by the court a quo that the
evidence proved that the crime committed was robbery with homicide and
that there can be such a crime albeit the person killed was not the robbery
victim.

Since the charge in the information is robbery with homicide and the
evidence is to the same effect, the mistake in designating the crime both in
the information and in the judgment is not fatal.

The second assignment of error questions the factual findings of the trial
court as to the appellant's identity and as the person who caused the death
of Patrolman Reynaldo Gongora.

In support of the above, the prosecution had two witnesses, namely:

Rodrigo Eser and Eleazar Pangilinon. To contradict them, the appellant
presented witnesses to support his alibi.

The narration of facts given above is based primarily on Rodrigo Eser's

testimony so that it is not necessary to re-state it. This witness positively
Identified the appellant as the person who stabbed Patrolman Gongora on
the basis of the following: (1) he had stared repeatedly at the three men
who boarded the bus because they told the driver to stop several times but
they did not alight; (2) he had seen Camba at the corner of Paz and
Gregorio streets in Paco before the incident; and (3) he said that Camba
had a mole on his chin which turned out to be true.

Pangilinon's testimony corroborated that of Eser. He further testified that it

was he who wrested the fatal weapon (Exhibit D) from Camba. And in
Pangilinon's statement (Exhibit F) he said that Camba wore a striped T-
shirt and maong pants and said garments were recovered from Camba
when he was apprehended in his house on October 12, 1972.

Commenting on Eser's testimony the trial court said:

The Court has likewise observed that there is sincerity in the

testimony of Eser for the reason that at 10:35 p.m. of October
10, 1972, the date of the incident, or barely five hours after the
incident and before the arrest of accused, Eser already
executed a statement before the police (Exhibit "G") wherein he
spontaneously narrated what he testified to in Court and
emphatically stated, among other things, that the one who
stabbed the police officer is around 5'3" and with a mole. Upon
apprehension of the accused, he was found to be around that
height although he claimed to be only 5'2" and likewise with a
mole on the chin. (Expediente, pp. 92-93.)

As to Pangilinon, the trial court had this to say:

The testimony of Eser is further strengthened by the testimony

of Eleazar Pangilinon who likewise declared with the same
spontaneity and frankness that when the victim who was then in
a policeman's uniform went towards the rear of the bus when
his attention was called by the victim of snatching, he was
immediately stabbed by the accused. Accused and the victim
even grappled for the possession of the bladed instrument
causing the policeman to fall on the rearmost seat and
thereafter, was still stabbed by the accused. (Id, p. 93.)

We are not prepared to disturb the findings of the trial court on the
credibility of Eser and Pangilinon for the simple reason that it was in a
better position to make the determination and there is nothing in the record
to justify reversal of its findings.
Camba's defense is alibi. He said that on October 10, 1972, at about 1:00
p.m. he was at home; he "stepped out to work near Peafrancia, Paco
Manila, less than a kilometer away;" he worked from 1:15 p.m. to 5:15 p.m.
when he returned home; he wore that afternoon a pink T-shirt and cream
pants; he took a snack at his house and thereafter played badminton for
"less than an hour" with William Tengson and Lorna [Maria Lorna
Lemosnero]. William and Lorna testified that Camba played badminton with
them.

We reject the defense of alibi and quote with approval the trial court's
observation in respect thereto:

Accused interposed the defense of alibi but it is, however, a

weak defense not only because of the facility with which it is
fabricated but also because it is so easy for witnesses to get
confused as to the dates (People vs. Ramos, L-17402-03,
August 31, 1963; People vs. Esmael et al., L-28533, February
24, 1971). It cannot prevail in the face of positive Identification
by prosecution witnesses (People vs. Peralta, et al., L-1 9019,
October 29, 1968; People vs. Tanjalali Gajali, et al., No. L-
28534, July 31, 1972). Moreover, for alibi to prosper, it is not
enough to prove that defendant was somewhere else when the
crime was committed, but he must likewise demonstrate that it
was physically impossible for him to have been at the scene of
the crime at the time (People vs. Elmer Estrada, L-26103,
January 17, 1968; People vs. Brioso, et al., L-28482, January
30, 1971).

In this particular case, the defense of alibi of the accused does

not measure up to that standard for he was positively Identified
by Eser and Pangilinon whom the Court considered to have
passed the test of credibility because they both appeared to be
natural and truthful in their behavior, giving quick, frank and
straightforward answers to all materials questions in an easy
and fluent manner. There was no showing of physical
impossibility for accused to be at the scene of the crime as he
claimed that at the time of the commission of the offense, he
was only in Barrio San Jose, Paco, Manila, where he lives and
this Court can take judicial notice that from said place to the
 crime scene it will not take more than an hour to travel. (Id, pp.
97-98.)

The trial court found the appellant guilty of murder qualified by treachery
but without any other modifying circumstance. The crime was compounded,
according to the trial court, with assault upon an agent of a person in
authority. In this light the appropriate penalty, pursuant to Art. 48 of the
Revised Penal Code, is death.

If it be held as We do that the crime committed was robbery with homicide,

the result will be the same for the aggravating circumstances of treachery
and contempt of public authority will have to be assigned.

The death penalty, however, cannot be imposed on the appellant who was
only 20 years old when he committed the crime for lack of the necessary
votes.

WHEREFORE, the judgment of the court a quo is modified by reducing the

sentence on the appellant to reclusion perpetua and consolidating the
damages in the amount of P30,000.00. No special pronouncement as to
costs.

SO ORDERED.
G.R. Nos. L-6861-65 December 28, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
GERVASIA GO CHANCO, defendant-appellant.

G.R. No. L-6862 December 28, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
ANICETA REYES, defendant-appellant.

G.R. No. L-6863 December 12, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
CARLOS ORTIZ, defendant-appellant.

G.R. No. L-6864 December 12, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
MARTA SUMERA(alias SILVESTRA RIVERA), defendant-appellant.

G.R. No. L-6865 December 28, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
MARIANO GABRIEL, defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Carl Kincaid, for appellants.

Office of the Solicitor-General Harvey, for appellee.

JOHNSON, J.:

On the 8th day of December, 1910, the prosecuting attorney of the city of
Manila, Mr. W. H. Bishop, presented a separate complaint in the Court of
First Instance against each of the said defendants, charging each of them
with the crime of perjury. By agreement between the respective attorneys in
the court below, the five cases were consolidated and tried together, by the
Honorable Charles S. Lobingier, judge.

After hearing the evidence, each of the defendants was found guilty of the
crime charged in the complaint, and sentenced to be imprisoned for a
period of six months and to pay a fine of P500, and each was disqualified
from holding any public office or giving testimony in any court in the
Philippine Islands, until said sentence should be reversed.

From that sentence each of the defendants appealed and made the
following assignments of error in this court:.

I. The lower court erred in overruling the demurrer to each of the

complaints presented by the prosecuting attorney for the city of
Manila.

II. The court erred in holding that the board of special inquiry before
whom the oath was taken was a competent tribunal to hear and
determine the case before it.

III. The court erred in holding that the accused were guilty beyond a
reasonable doubt.itc@alf

The complaints filed in each of the respective causes were substantially in

the same language, the only difference being with reference to the
particular declarations presented by each of the defendants. The complaint
against the defendant Gervasia Go Changco alleged:

That on or about November 26, 1910, in the city of Manila, Philippine

Islands, the said Gervasia Go Chanco, did then and there take an
oath before William C. Brady, a competent officer and person duly
authorized by law to administer oaths under the provisions of section
21 of Act No. 355 of the Philippine Commission in a case in which a
law of the Philippine islands authorizes an oath to be administered,
that she would testify the truth in a case then pending before a board
of special inquiry, then, and there duly sitting and acting under the
jurisdiction of the Bureau of Customs, and thereupon, being sworn,
she did testify under oath, as follows:

"Q. Do you know this woman?A. Yes.

"Q. What is her name?A. Silvestre Rivera.

"Q. How long have you known her?A. A long time; over
twenty years.

"Q. Are you related to her?A. No.

"Q. Is she married?A. No; not to that Chinaman.

"Q. What Chinaman?A. One who is dead.

"Q. What was his name?A. Sia Hi.

"Q. Did she have any children by him?A. Yes; three.

"Q. State their names and ages.A. Gavino is the

youngest.1awphil.net

"Q. How old is he?A. It was so long ago that I cannot

remember the age; one of the three has twenty-one digits.

"Q. The next?A. Irineo, about twenty.

"Q. Who is the next?A. I do not remember the name of the

oldest.

"Q. Is it Alberto?A. No.

"Q. Agustin?A. No.

"Q. Cadamaris?A. No.

"Q. Crispin?A. Yes.

"Q. Is Crispin the oldest or the second?A. The oldest.

"Q. How old is he?A. Twenty-one.

"(NOTE.Asks mother who is the oldest.)

"Q. Have you ever been in China?A. No.

 "Q. How many years since those boys went to China?A. Over
ten years, about twelve years ago.

"Q. Who took them to China?A. Their father and mother.

When the mother returned here she was a widow.

"Q. The mother Silvestra Rivera, was she ever married to a

Filipino?A. She told me that she was the widow of a Filipino.

"Q. Can you identify them now?A. No; at the time they left
here they were very small.

"Q. Take a look at them.

(NOTE.She is given an opportunity to identify the detained from

among a number of others present and picks out Irineo and Crispin,
but is unable to identify the youngest, Gavino.)

That all of said testimony above cited was material matter in such
case and is false and untrue, and that at the time of giving such
testimony the accused did then and there wilfully and unlawfully and
contrary to said oath so testify to such material matter which she did
not believe to be true.

Contrary to the statutes in such cases made and

provided.lawphi1.net

W. H. BISHOP,
Prosecuting Attorney.

With reference to the first assignment of error abovenoted, it may be said

that under paragraph 3 of section 6 of General Orders, No. 58, a complaint
or information charging a person with a public offense will be sufficient if
the facts are stated "in such form as to enable a person of common
understanding to know what is intended and the court to pronounce
judgment according to right."

In numerous cases this court has announced the doctrine that a complaint
will be sufficient if it describes the offense in the language of the statute
whenever the statute contains all of the essential elements constituting the
particular offense.(U. S. vs. Salcedo, 4 Phil. Rep., 234.)
It is not necessary, however, to follow the language of the statute in the
complaint, if the complaint sufficiently describes the crime defined by the
law. (U. S. vs. Gatmaitan, 4 Phil. Rep., 265; U. S. vs. Vecina et al., 4 Phil.
Rep., 529;U. S. vs. Sarabia, 4 Phil. Rep., 566; U. S. vs. Grant et al., 18
Phil. Rep., 122.).

An indictment for the crime of perjury, like an indictment for any other
offense, must allege specially and with sufficient certainty every fact and
circumstance necessary to constitute said offense. Perjury in the Philippine
Islands is a statutory offense. A description, therefore, of the offense in the
language of the statute is sufficient. All that is required is that the indictment
shall be stated in plain and intelligible terms, with such particularity as to
apprise the accused with reasonable certainty of the offense with which he
is charged. It must state the substance of the controversy upon which the
false oath was taken, specify the court or officer by whom the false oath
was administered, aver or show that such court or officer had authority to
administer such oath, allege the falsity of the oath, and assign perjury
thereon.

The present prosecution is based upon a violation of section 3 of Act No.

1697 of the Philippine Commission. Said section is as follows:

Any person who, having taken an oath before a competent tribunal,

officer, or person, in any case in which a law of the Philippine Islands
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed is true, willfully and
contrary to such oath states or subscribes any material matter which
he does not believe to be true, is guilty of perjury, and shall be
punished by a fine, etc.

An examination of the complaint above quoted clearly shows that all of the
essential elements of the crime described in said section 3 (Act No. 697)
are included. The facts stated in the complaint are stated with sufficient
clearness therein and certainty so that those who are charged with the
crime therein described, if ordinary understanding, could have no difficulty
in fully comprehending the exact offense with which they are charged.

In our judgment the complaint is sufficient.

With reference to the second assignment of error, it will be noted that the
alleged false oath was given before a board of special inquiry of the
department of customs. Said oath was given by each of the defendants in
an investigation which said board was holding with reference to the right of
three Chinese boys to enter the Philippine Islands. This court has decided
in numerous cases that the customs department of the Philippine Islands is
charged with the duty of inquiring into and finally deciding, in the first
instance, the right of Chinese to enter the Philippine Islands. (In re Allen, 2
Phil. Rep., 630; Ngo-Ti vs. Shuster, 7 Phil. Rep., 355.)

It has also decided in numerous cases that the conclusions of said

department of the Government are final upon matters under its jurisdiction
when there has been no abuse of authority. (Ngo-Ti vs. Shuster, supra; Lo
Po vs. McCoy, 8 Phil. Rep., 343.)

Section 21 of Act No. 355 provides that members of said board may be
authorized by the Collector of Customs to administer oaths. The record
shows that each of the members of said board had been expressly
appointed by the Collector of Customs. By that appointment each had a
right to act as a member of said board. As members of said board they had
a right to inquire into the questions presented in the particular case
submitted to it. They had a right to examine witnesses under oath. They
had a right to administer an oath to the witnesses examined. Such board,
therefore, constituted a tribunal "in a case in which the laws of the
Philippine islands authorized an oath to be administered."

The record discloses the fact that during the investigation relating to the
right of the three Chinese boys to enter the Philippine Islands, the
personnel of the board was changed, i. e., the same members of the board
did not sit continuously during the entire examination. While this is true,
however, it affirmatively appears that all of the members who sat at any
one time had been expressly authorized to act. The fact that the personnel
of the board was changed from day to day might affect the final decision of
the board upon the right of the Chinese boys to enter the Philippine Islands.
We are not, however, called upon to pass upon that question in the present
case. It is sufficient, in our opinion, to justify the present criminal action, if
the following facts appear:

First. That the board was authorized to make investigation into the
particular questions submitted to it.
Second. That the members of said board were legally authorized to act as
members at the time when the alleged false oath was given.

Third. That said board, or members of the same, were duly authorized to
administer an oath.

We think the record clearly shows that all of the foregoing facts existed and
that said board constituted a tribunal, duly authorized in a case in which the
laws of the Philippine Islands authorized it, or its members, to administer an
oath and that, therefore, any person who, having taken an oath before said
tribunal that he will testify, declare, depose, or certify truly, and who willfully
and contrary to such oath testifies to facts which he does not believe to be
true, is guilty of perjury.

In our opinion the board before which the alleged false declarations under
oath were made, was a legally constituted tribunal, under the laws of the
Philippine Islands, authorized to conduct the investigation which it was
making at the same time the said alleged false oaths were given and that
said board, or its members, were authorized to and did administer the oath
to each of said defendants in accordance with the law.

We find no reason for modifying the sentence of the lower court based
upon the second assignment of error. The board was not only a de facto
board, but a de jure board.

With reference to the third assignment of error, the following facts are
proven beyond a question of reasonable doubt:

It appears from the record that on or about the 25th of November, 1910, on
the steamship Yingchow, there arrived at the port of Manila three Chinese
boys, of the respective ages of 13, 15, and 21 years and asked permission
to enter the Philippine Islands. In support of their right to enter the Islands,
the defendants in the present case appeared and gave testimony, under
oath, before the board of special inquiry. The defendant Marta Sumera
(alias Silvestra Rivera) appeared before the board and swore positively that
her name was Silvestra Rivera; that the three Chinese boys were her
children; and that they had been born in the city of Manila and baptized in
the Quiapo Church of the city of Manila.

Each of the other defendants, Gervasia Go Chanco, Aniceta Reyes, Carlos

Ortiz, and Mariano Gabriel, appeared before the board and after being duly
sworn, supported by positive and direct declarations, the facts sworn to by
the defendant, Marta Sumera (alias Silvestra Rivera). Baptismal certificates
were presented (see Exhibits C, D, and E), showing that three boys of the
same names which these three Chinese boys bore, had been baptized on
the dates mentioned in said certificates, in Quiapo Church of the city of
Manila. During the investigation a witness was called who was proved to be
the real Silvestra Rivera, a woman who had always lived in the city of
Manila and who was the real mother of the three boys mentioned in said
certificates, who were then and there living in the city of Manila and whose
names were the same which the three Chinese boys had assumed. She
swore positively that her three boys had been baptized in the Quiapo
Church at the times mentioned in said Exhibits C, D, and E. Her three boys
were called as witnesses and their identity was proved beyond question.
They had always resided in the city of Manila. There was no question that
this woman was the real Silvestra Rivera and that the three boys whom she
presented as witnesses were her sons and the persons mentioned in the
three baptismal certificates; that the defendant Marta Sumera
(alias Silvestra Rivera) was not the person whom she claimed to be, to wit,
the mother of the three Chinese boys who were seeking admission into the
Philippine Islands. The falsity of the oath of each of the defendants, when
the entire record is examined, is so glaring that it is difficult to imagine how
men and women could have secured the consent of their own conscience
to have made them.

Without a further discussion of the facts showing the falsity of the

declarations made by the defendants, we find that the record shows,
beyond any question of doubt, that the defendants are guilty of the crime
charged.

For all the foregoing reasons, the judgment of the Court of First Instance of
the city of Manila is hereby affirmed with reference to each of the
defendants, with costs.
G.R. No. L-41692 April 30, 1976

EUGENIO CABRAL, petitioner,

vs.
HON. BENIGNO M. PUNO, Judge of the Court of First Instance of
Bulacan, PROVINCIAL FISCAL OF BULACAN, and SILVINO SAN
DIEGO, respondents.

Arturo Agustines for petitioner.

Celso B. Poblete for private respondent.

ANTONIO, J.:p

Certiorari and prohibition to nullify the Order of respondent Judge dated

May 21, 1975, reviving the Information in Criminal Case No. B-537-74 of
the Court of First Instance of Bulacan, Baliwag Branch, and to prohibit said
court from conducting further proceedings on the case.

On the complaint of private respondent Silvino San Diego, the Provincial

Fiscal filed an Information on September 24, 1974 with respondent court,
accusing petitioner Eugenio Cabral of the crime of Falsification of Public
Document for allegedly falsifying on August 14, 1948 the signature of
Silvino San Diego in a deed of sale of a parcel of land. Before arraignment,
petitioner moved to quash the Information on the ground of prescription of
the crime charge, as the said document of sale of Lot No. 378-C was
notarized on August 14, 1948, registered with the Register of Deeds of
Bulacan on August 26, 1948 and as a consequence the original certificate
of title was cancelled and a new transfer certificate of title issued, and since
then Eugenio Cabral had publicly and continuously possessed said
property and exercised acts of ownership thereon, which facts are
apparently admitted in the letter of San Diego's lawyer to Cabral on
September 17, 1953. After hearing said motion, Judge Juan F. Echiverri, in
a Resolution dated March 25, 1975, granted the motion to quash and
dismissed the Information on the ground of prescription. The order of
dismissal was predicated upon said court's finding that the factual
averments contained in the notion to quash were supported by the
evidence. Private prosecutor, who was not present during the hearing of
the motion to quash, filed a motion dated April 8, 1975, for the
reconsideration of said Resolution. This was opposed by petitioner on the
ground that San Diego can no longer intervene in the criminal case, having
filed a civil action in April 1974 against the same accused (Eugenio Cabral)
on the basis of the same factual averments contained in the criminal
Information. Acting on the motion for reconsideration, respondent. Judge
Benigno M. Puno, now presiding, ordered on May 12, 1975 the Fiscal to
"make known his position to the Court." In compliance with said Order, the
Fiscal submitted his comment dated May 19, 1975, expressing the view
that the crime, has not prescribed as Silvino San Diego stated that he only
discovered the crime sometime in October 1970, and "... that, in the interest
of justice, arraignment and trial is proper to ventilate the respective
evidence of both parties in their total meaning and import in determining
once and for all the direction direction and thrust of these evidence of both
parties."

Two (2) days later on, or on May 21, 1975, respondent Judge set aside the
Resolution of March 25, 1975, and reinstated the Information. Petitioner
moved for reconsideration of the Order on the ground that (a) "the
judgment of acquittal which became final immediately upon promulgation
and could not, therefore, be recalled for correction or amendment"; and (b)
by instituting Civil Case No. 120-V-74, respondent San Diego lost his right
to intervene in the prosecution of the criminal case. This motion was
denied, as well as the second motion for reconsideration, hence this
petition, raising the issue of whether or not the trial court had jurisdiction to
set aside its Resolution of March 25, 1975.

The issue being purely legal and considering that the matter has been
amply discuss in the pleadings, 1 this case was deemed submitted for
decision without need of memoranda.

The Solicitor General was required to appear in this case, and he

recommends giving due course to the petition and the reversal of the
challenged order. According to the Solicitor General, the Resolution of
March 25, 1975 dismissing the Information on the ground of prescription of
the crime became a bar to another charge of falsification, including the
revival of the Information. This is more so, because said Resolution had
already become final and executory, inasmuch as the Fiscal neither sought
its reconsideration nor appealed therefrom within the. reglementary period
of fifteen (15) days after his receipt of a copy thereof on March 31, 1975.
When the Fiscal moved to reinstate the case on May 21, 1975, or about
two (2) months from receipt of a copy of the order of dismissal, the same
had already long been final.

We agree with the Solicitor General. The Rules of Court is explicit that an
order sustaining a motion to quash based on prescription is a bar to
another prosecution for the same offense. 2 Article 89 of the Revised Penal
Code also provides that "prescription of the crime" is one of the grounds for
"total extinction of criminal liability." Petitioner was charged with the crime
of falsification under Article 172, sub-paragraphs (1) and (2) of the Revised
Penal Code, which carries an imposable penalty of prision correccional in
its medium and maximum periods and a fine of not more than P5,000.00.
This crime prescribes ten (10) years. 3 Here, San Diego had actual if not
constructive notice of the alleged forgery after the document was registered
in the Register of Deeds on August 26, 1948.

In Pangan v. Pasicolan, 4 where the trial court set aside its own order
dismissing the criminal case nine (9) months thereafter, this Court held that
the order was null and void for want of jurisdiction, as the first order had
already become final and executory.

Petition for certiorari to set aside the order of the Court of First
Instance of Pampanga setting aside its order of September 10,
1956 dismissing the case against petitioners nine months
thereafter, or on June 11, 1957. The issue is whether or not the
court had jurisdiction to enter that order. While the court may
find it necessary to hear the views of a private prosecutor
before acting on a motion to dismiss filed by the fiscal, it does
not follow that it can set aside its order dismissing the case
even if the same has already become final. There is no law
which requires notice to a private prosecutor, because under
the rules all criminal actions are prosecuted "under the direction
and control of the fiscal" (Section 4, Rule 106). It appearing that
the order already final, the court acted without jurisdiction in in
issuing the the subsequent order.

And likewise, in People v. Sanchez, 5 it was held that "a judgment in a

criminal case becomes final after the lapse of the period for perfecting an
appeal, ... Under the circumstances, the sentence having become final, no
court, not even this high Tribunal, can modify it even if erroneous ...". We
hold that these rulings are applicable to the case at bar.
While it is true that the offended party, Silvino San Diego, through the
private prosecutor, filed a motion 'for reconsideration within the
reglementary fifteen-day period, such move did not stop the running of the
period for appeal. He did not have the legal personality to appeal or file the
motion for reconsideration on his behalf. The prosecution in a criminal case
through the private prosecutor is under the direction and control of the
Fiscal, and only the motion for reconsideration or appeal filed by the Fiscal
could have interrupted the period for appeal. 6

The right of the offended party to appeal is recognized under

the old Code of Criminal Procedure. Under Section 4 of Rule
110 which provides that the prosecution shall be "under the
direction and control of the fiscal" without the limitation imposed
by section 107 of General Order No. 58 subjecting the direction
of the prosecution to the right "of the person injured to appeal
from any decision of the court denying him a legal right", said
right to appeal by an offended party from an order of dismissal
is no longer recognized in the offended party. ... (U)nder the
new Rules of Court, the fiscal has the direction and control of
the prosecution, without being subject to the right of
intervention on the part of the offended party to appeal from an
order dismis ing a criminal case upon petition of the fiscal would
be tantamount to giving said party as much right the direction
and control of a criminal proceeding as that of fiscal. 7

More important, he lost his right to intervene in the criminal case. Prior to
the filing of the criminal case on September 24, 1974, the spouses Silvino
San Diego and Eugenia Alcantara, on the basis of the same allegations
that San Diego's signature on the deed of August 14, 1948 was a forgery,
filed on May 2, 1974 an action against Eugenio Cabral and Sabina
Silvestre, with the Bulacan Court of First Instance (Civil Case No. 120-V-
74) for the recovery of the same property and damages. It appearing,
therefore, from the record that at the time the order of dismissal was issued
there was a pending civil action arising out of the same alleged forged
document filed by the offended party against the same defendant, the
offended party has no right to intervene in the prosecution of the criminal
case,, and consequently cannot ask for the reconsideration of the order of
dismissal, or appeal from said order.8
WHEREFORE, the petition is hereby granted, and Orders of May 21, 1975,
August 4, 1975 and September 3, 1975, of respondent Judge are hereby
set aside. No pronouncement as to costs.

Fernando, C.J., Barredo (Chairman), Aquino and Concepcion, Jr., JJ.,

concur.
G.R. No. 41248 September 14, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MARCELINO COLLADO (alias NINOY), defendant-appellant.

A. R. Yaranon, A. L. Apusen and Victoriano Yamzon for appellant.

Acting Solicitor-General Pena for appellee.

DIAZ, J.:

Taking advantage of the fact that Paula Bautista, a young married woman,
was alone in her house which is situated in the eastern part of the town of
Bacnotan, of the Province of La Union, with no companion but her three-
year old child who was then asleep, the accused, between 3 and 4 in the
afternoon of July 31, 1933, went to the house of said woman on the pretext
of asking for a glass of water, stealthily approached her and, without giving
her an opportunity to defend herself, embraced and kissed her and caught
hold of her breasts. When Paula Bautista recovered from the shock, she
defended herself as best she could and in spite of the fact that the accused
threatened to kill her with a dagger if she did not accede to his desires, she
bit him on the right side of the chest thereby forcing him to release her
instantly. Simultaneously therewith, she cried for help and, picking up a
bolo nearby, she tried to strike him with it. However, the accused, who is
stronger and more agile than she, succeeded in holding he by the arms
and they were found in this position by Crispulo Ariola who was the first to
come to her aid. Realizing that his designs had been frustrated and having
been surprised in such situation by Ariola, he did not go down the stairs but
jumped from the house to the ground, fleeing from the scene of the crime
with theutmost speed. These are the facts as found by the trial court in
which this court agrees after having carefully reviewed the record and the
evidence.

In view of the above facts, the trial court sentenced the accused to an
indeterminate penalty of from two months and one day of arresto mayor to
two years, four months and one day of prision correccional, with the
corresponding accessories of the law, with costs. Not agreeing with the
sentence imposed upon him, the accused appealed therefrom to this court,
assigning in his brief four alleged errors as committed by the trial court.
In support of his contention that the trial court actually committed the errors
assigned by him, the appellant cites some portions of his own testimony
and later alleges that the crime imputed to him is absolutely improbable on
the ground that at that time he knew that about 6 meters from the house of
the offended party Paula Bautista, her cousin Crispulo Ariola and the
witness for the defense Paulino Palaroan were conversing, claiming
furthermore that at the time when he is alleged to have committed the acts
of lasciviousness on the offended party, which is referred to in her
testimony, the witness for the defense Laureano Nebrija was in her house,
thus conveying the idea that it would have been folly on his part to commit
the crime with which he is charged.

The fact when he went to the house of the offended party the accused
knew that said two witnesses Ariola and Palaroan were not far away, does
not make it improbable for him to have committed the crime charged,
because, inasmuch as the offended party was alone in the house and
furthermore her husband was absent, having gone to Manila about a month
ago to work as an agent, and, in addition thereto, the accused had
threatened to kill her if she did not accede to his desires, at the same time
showing her a dagger, he must have believed that she would neither offer
any resistance nor give a cry of alarm. Moreover he might have thought
that said two witnesses Ariola and Palaroan would not continue conversing
at the same place after he had left them.

That the witness for the defense Laureano Nebrija was not in the offended
party's house when the crime was committed, should be believed
notwithstanding the fact that he testified that he was present and witnessed
said incident from the beginning, because aside from his testimony and that
of the appellant, there is nothing in the record to prove the contrary. Ariola
and Palaroan did not testify that they had seen said witness come out of
the offended party's house either before or after the appellant had escaped
therefrom, in spite of the fact that they were only 6 meters away.
Furthermore, Crispulo Ariola and Luis Cariaso, the other witness for the
prosecution who was the second to come to the aid of the offended party,
testified that when they went up into the house they fond only said offended
party and her small child, not mentioning the appellant who, as was stated,
fled as soon as he saw Crispulo Ariola come up into the house.
Furthermore, leaving aside the witness Palaroan's statement to the fiscal
when the latter summoned him to testify on what he knew about the
incident that he knew nothing about the case, Palaroan could not but admit
that after he had arrived at his boarding which is about 25 meters from
Paula Bautista's house and also after said witness Ariola had gone up into
the latter house, he saw the appellant walking rapidly. This shows that the
appellant actually came out of said house with the utmost speed and that
Palaroan left Ariola when the appellant went to the offended party's house
to ask for a glass of water.

On the other hand if, according to the appellant's version, all that happened
consisted in the offended party having reproached him because she had
heard, that he had been spreading false reports that she was his mistress
or that the two were maintaining illicit relations, it does not account for the
fact that before reproaching him she permitted him to drink water in her
house. The evidence shows that upon going up into the house, the
appellant asked the offended party for a drink which, according to him was
given him. What really happened, according to the evidence, is that the
appellant upon seeing that the offended party, whom he had courted before
her marriage, although in vain because she paid no attention to him, was
alone, he was led into temptation, thus again proving the old age that
"opportunity makes the thief".

There is no doubt that the offended party cried for help notwithstanding the
witness Palaroan's testimony that he heard no such cry coming from the
offended party's house. Her cry was heard by Crispulo Ariola and Luis
Cariaso and, if we are to believe said witness Palaroan, it was also heard
by Ariola's father named Agaton Ariola at his house about 25 meters
distant from that of the offended party. Palaroan testified that while he and
Crispulo Ariola were 6 meters from the offended party's house and
therefore nearer to said house than Agaton Ariola, Palaroan heard Agaton
Ariola tell his son Crispulo to go and find out what was happening at the
offended party's house. This shows that said offended party actually cried
for help for, otherwise, Agaton Ariola, who was very much father than said
witness Palaroan, could not have heard it.

The foregoing proven facts really constitute the crime of facts of

lasciviousness defined in article 336 of the Revised Penal Code and
punished therein with prision correccional. Inasmuch as the aggravating
circumstance of dwelling had been proven at the trial, although it was not
alleged in the information, it should have been taken into consideration by
the trial court on the ground that the appellant had committed the crime in
the offended party's own dwelling. In the case of United States vs. Campo
(23 Phil., 368), this court, in view of the reasons therein stated, held that
although a complaint or information contains no allegation that generic
aggravating circumstance of any kind were present in the commission of
the crime, said circumstances may be proven at the trial and, if proven,
must be taken into consideration in imposing the corresponding penalty.

Wherefore, the sentence appealed from is modified by imposing upon the

appellant an indeterminate penalty of from six months of arresto mayor to
four years, two months and one day of prision correccional, with costs. So
ordered.

Avancea, C.J., Street, Abad Santos and Vickers, JJ., concur.

 [G.R. No. 41523. October 11, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-

Appellee, v. EMILIO H. DOMONDON, Defendant-Appellant.

Rodolfo Baltazar and Delfin B. Flores and Appellant.

Solicitor-General Hilado for Appellee.

SYLLABUS

1. CRIMINAL LAW; ROBBERY; CIRCUMSTANTIAL EVIDENCE.

Under the circumstances in which the appellant was found after
the evidence for the prosecution had been taken, he should have
given some explanation of his acts or omissions on the night in
question and, having failed to do so, this court cannot consider in
his favor any fact, more or less probable, which cannot be
logically inferred from the proven facts.

2. ID.; ID.; ID. Although the evidence against an accused may

be circumstantial in nature, it is sufficient to warrant a judgment
of conviction if the circumstances of which it consists are
complete and convincing and lead to no other rational conclusion
than that he is the author of the crime with which he is charged;
and this is all the more true in the case of the appellant because
the proven facts and his conduct both before and immediately
after the commission of the crime are incompatible with his
innocence. (U.S. v. Lim Sip, 10 Phil., 627; U. S. v. Monteli, 15
Phil., 452; U. S. v. Levente, 18 Phil., 439; U. S. v. Rivera, 23
Phil., 383; U. S. v. Aquino, 27 Phil., 462.)

3. ID.; ID.; APPRECIATION OF AGGRAVATING CIRCUMSTANCES

NOT ALLEGED IN THE INFORMATION. Although it is not alleged
in a complaint or information that generic aggravating
circumstances of any kind have been present in the commission
of the crime, said circumstances may be proven at the trial and, if
proven, must necessarily be taken into consideration in imposing
 the corresponding penalty. Therefore said two circumstances
(subsections 1 and 6, article 14 of the Revised Penal Code), which
are not qualifying circumstances but merely generic, should be
taken into consideration. (U. S. v. Campo, 23 Phil., 368; People
v. Collado, p. 610, ante.)

DECISION

DIAZ, J.:

Emilio H. Domondon who was a postmaster and aspirant to the

post of municipal treasurer assigned to the municipal district of
Kabuyao, subprovince of Apayao, Mountain Province, was
charged with the crime of robbery, convicted and sentenced by
the Court of First Instance of said province to an indeterminate
penalty of from four years, two months and one day of prision
correccional to ten years and one day of prision mayor with the
corresponding accessories of the law, and to indemnify the
Government of the Philippine Islands in the sum of P1,889.67,
with costs. Notwithstanding the fact that he had not presented
any evidence favorable to himself at the trial, because the
affidavit (Exhibit 1) which he attempted to present as such was
rejected by the court, declaring it to be incompetent, and the
testimony of the person who made it proved to be more
damaging to him than anything else, he appealed from the
sentence imposed upon him, seeking the review of his case, and
assigns the four alleged errors relied upon in his brief as
committed by the lower court.

The facts proven without dispute at the trial may be summarized

as follows: After office hours on the afternoon of October 31,
1933, that is, at 5.05 p.m., in spite of the objections of William
Uliwac, the chief clerk in the treasurers office said municipal
district, who told him that it was already after office hours, the
appellant insisted upon delivering to him for deposit some funds
which he had in his office as postmaster and which amounted to
P2,062.70, consisting of checks in the amount of P187.15,
several bundles of bills of various denominations from P1 to P20,
amounting to P1,774, and silver and other fractional coins
amounting to P101.55. The reason then given by the appellant
which induced said clerk Uliwac to accede to his wishes was that,
as it was the last day of the month and he was expecting the mail
that night or on the following day, he would have no time to
deliver said funds to the municipal treasury. After attending to
two igorots who had gone to his office that afternoon for the
purpose of legalizing the transfer of certain large cattle, giving as
a pretext that they were in a hurry to return to their barrio,
Uliwac went to the appellants office to receive and take charge of
the money which the latter was going to deliver to him. The
municipal treasurers office and the post office under the
appellants charge occupied two adjoining rooms on the ground
floor of the municipal building of Kabuyao and were separated
only by a wall with a door the key to which was in the possession
of the appellant. Said door could be opened only from inside the
post office. While the money which the appellant delivered to
Uliwac and which consisted, as above stated, of checks, bills and
coins, was being counted, it was arranged in bundles or rolls
according to its nature and value, and Uliwac noted on each
bundle the amount thereof. As he had no available paper for said
purpose, he made his notations on the back of one of the paper
bills of each bundle, and among the notations made by him on
one of said bills was one reading: "39 x 20 = 780" which meant
that the bundle to which said bill belonged was composed of 39
twenty-peso bills amounting to P780.

After all the money had been counted and Uliwac had issued the
corresponding receipt to the appellant, the former took it to his
office, passing through the main door thereof, and then put the
money in a wooden box which he later placed in a brass box 12
inches long, 8 inches wide and 4 inches deep. In addition to the
money which he received from the appellant. Uliwac kept in the
said brass box some collections for that afternoon amounting to
P15 plus P3 road tax which a policeman delivered to him for
safekeeping. He afterwards locked said brass box with a key
which he had in his possession and policeman Gawang, who was
then present, carried said box thus locked to the storeroom inside
the same room occupied by the municipal treasury, the door of
which he later closed with a padlock ordinarily used for that
purpose in the presence of Uliwac. The two immediately left the
municipal, Uliwac locking the main door thereof with the key in
his possession. Said main door could only be opened by municipal
treasurer Enciso, who was then in another town, and by clerk
Florentino A. Tapiru who was charged jointly with the appellant in
this case but was later released from the information by dropping
the case against him for lack of evidence before the trial actually
began.

It was likewise proven at the trial that when policeman Gawang

took the brass box containing the money in question and the
other sums above stated to the storeroom and placed it on top of
the safe therein, the appellant had already left the municipal
building, and that the brass box where said money was kept
could not be placed in the safe because as night had already
fallen, it was naturally dark in the storeroom and the numbers on
the dial of the combination safe could not be seen.

After Uliwac had closed the main door of the municipal treasury,
he went home leaving policeman Gawang, who was later joined
by the chief of police Vicente Daoang, in the municipal building.

At about 6 oclock on that same evening, the appellant returned

to the municipal building with no other apparent purpose than to
request the chief of police to buy him two packages of a certain
brand of cigarettes from the store of one Marques. As soon as the
chief of police was gone, he requested policeman Gawang, who
was the only one left to guard the building, to buy him a package
of another kind of cigarettes at the store of one Guzman. When
Gawang stated that he could not leave because the municipal
building would then be left unguarded, the appellant told him not
to worry as he would take care of it while he was away. Both
policeman were out on said errand for about 30 or 40 minutes
and upon their return and after they had delivered to the
appellant the cigarettes which he had requested them to buy for
him, he left them. On the following day, the first to arrive at the
municipal building long before office was the appellant, but then
the boy Benigno Gorio, who was under detention at the municipal
building, had already cleaned the employees toilet which is
situated behind said building, and, on that occasion he had
neither seen nor noticed any brass box or any other object that
might have attracted his attention inside or around said toilet.
However, at about 7.30 oclock on that same morning when
Florentino A. Tapiru went to the toilet, he found there the same
brass box where the money which the appellant had delivered to
Uliwac the afternoon before had been kept, which evidently had
been forced open, containing then only the checks for said
amount of P187.15 together with the envelope which contained
P3 and some stubs of certain Bureau of Internal Revenue forms.
Notwithstanding the fact that the appellant was the first to arrive
at the municipal building that morning, he was not seen in his
office on that occasion. When Uliwac became aware of the
disappearance of the money which he received for safekeeping,
he immediately informed Enciso, who had already returned, and
the latter official reported the matter to the proper authorities for
investigation. Lieutenant W. A. Johnson of the Constabulary was
the first to reach Kabugao to conduct the necessary investigation
and among the first to be questioned by him was Uliwac, from
whose testimony he learned the fact that he (Uliwac) had made
some notations on each of the several bundles of bills
representing the money which the appellant delivered to him for
safekeeping, showing the amount of money in each bundle.

After Uliwac, Lieutenant Johnson questioned the appellant in the

latters office where the former, accompanied by municipal
treasurer Enciso, went to examine the appellants accounts and
books and at the same time to find out how much money he
actually had in his possession. In one of the drawers in said
appellants office, the two found the twenty-peso bill (Exhibit D),
with the following numbers: "39 x 20 = 780", in Uliwacs
handwriting written thereon. Uliwac, who was called by the
municipal treasurer and Lieutenant Johnson while they were
investigating the appellant, recognized and identified said bill
(Exhibit D) as one of those which the appellant had delivered to
him on the afternoon in question by means of the notation in his
own handwriting appearing thereon, saying that it formed part of
the bundle of 39 twenty-peso bills. Considering his suspicion still
unfounded, Lieutenant Johnson requested the appellant in an
almost commanding tone to keep said bill in his safe. After two
days however, it was found that the bill in question had
disappeared from the appellants possession and upon being
asked to explain the matter, he merely gave the excuse that he
did not know what had happened to it. Luckily enough, said bill
was later discovered in the municipal treasury, having been found
among the bills received in said office. Lieutenant Johnsons
explanation thereof, in the absence of another, seems reasonable
to this court. In answer to one of the questions asked him for the
purpose of learning from him how the marked bill came into the
possession of the municipal treasury, said officer
said:jgc:chanrobles.com.ph

"He might have paid any voucher to somebody outsider and paid
him this twenty-peso bill and because the town of Kabugao is
very small and hard to make some change, especially a twenty-
peso bill, and he might have exchanged it in the office of the
treasurer. That is the only possibility why this bill was found in
the safe of the treasurer."cralaw virtua1aw library

The proven facts constitute a real complete chain of

circumstances that necessarily lead us to the conclusion that the
appellant was the author of the crime charged in the information;
and the force thereof is all the more insuperable because the
appellant dared not even testify in order to explain said facts or
some of them, at least. Said circumstances are: the appellants
insistence in leaving the lost money in Uliwacs possession after
office hours on the afternoon in question, which he had never
done before, when he could have made delivery thereof during
office hours; his returning to the municipal building at 6 oclock in
the evening of the same day for no other than the childish
purpose of requesting the chief of police Daoang and policeman
Gawang to buy him three packages of cigarettes at two different
stores, as there was no necessity of sending both of them, one
after another, for the same purpose; his offer to policeman
Gawang to take care of the municipal building while the latter
was away when said policeman told him that he could not go out
and leave the municipal building unguarded; his failure to explain
why he did not personally go to buy said cigarettes inasmuch as
he himself could have done so; he alone had the key to the door
connecting his office with that of the municipal treasury, it being
a fact that said door could be open only from the inside of his
office; his presence in the municipal building long before the
opening hour for his office situated therein on the morning of
November 1, 1933, the day after he delivered his funds to clerk
Uliwac; the unexplained finding in his possession of one of the
twenty-peso bills belonging to the bundle of bills of said
denomination which formed part of the money which he delivered
to clerk Uliwac for safekeeping on the afternoon of October 31,
1933; and finally his having disposed of the bill (Exhibit D)
against Lieutenant Johnsons express request to keep it in his
safe. Considered together, these circumstances lead whomsoever
considers them to the same conclusion arrived at by this court.

There is no doubt but that the crime committed is robbery on the

ground that it took place under the circumstances provided in
article 299 (subsection 2), of the Revised Penal Code.

It is true that the evidence shows that when policeman Gawang

took the brass box containing the lost money to the storeroom of
the municipal treasury, and placed it on top of the safe therein,
the appellant was already out of the municipal building; but it is
also true that the appellants unexplained presence in the building
at the time he requested the chief of police and policeman
Gawang to buy him some cigarettes, gives rise to the belief that
it was during the absence of said two policemen that he entered
his office and opened the door connecting it with the municipal
treasury with the key in his possession in order to find out in the
latter office where Uliwac kept the money which he had just
delivered to him a few moments ago. He neither denied that he
had the key to said door nor that he had opened it. Therefore, it
must be taken for granted that he opened it.

It is likewise true that the evidence fails to show that when the
appellant left the chief of police and policeman Gawang on the
afternoon in question, after the two had delivered the cigarettes
which he had requested them to buy for him, he carried
something which might have attracted their attention; but it is a
fact proven by the testimony of the boy Benigno Gorio, who had
slept in the municipal building that night and who was presented
as a witness by the same appellant, that at about 8 oclock on
that same night he saw a man, whom he said he could not
recognize due to the darkness of the night, arrive at the
municipal building. Said man must have been the accused who
went there to take away the brass box with the contents in order
to open it in the manner shown by its condition when it was
presented as evidence, that is, by means of force. The appellant
failed to explain where he was on that night or to state that he
could not have been the individual who had visited the municipal
building at the hour stated by said boy. It could not have been
policeman Gawang and his companion because they were asleep
then.

Under the circumstances in which the appellant was found, after

the evidence for the prosecution had been taken, he should have
given some explanation of his acts or omissions on the night in
question, and having failed to do so, this court cannot consider in
his favor any fact more or else probable, which cannot be
logically inferred from the proven facts. Although the evidence
against an accused may be circumstantial in nature, it is sufficient
to warrant a judgment of conviction if the circumstances of which
it consists are complete and convincing and lead to no other
rational conclusion than that he is the author of the crime with
which he is charged; and this is all the more true in the case of
the appellant because the proven facts and his very conduct both
prior to and immediately after the commission of the crime are
incompatible with his innocence. (U. S. v. Lim Sip, 10 Phil., 627;
U.S. v. Monteli, 15 Phil., 452; U.S. v. Levente, 18 Phil., 439; U.S.
v. Rivera, 23 Phil., 383; U.S. v. Aquino, 27 Phil., 462.)

For the foregoing reasons and considerations, it is clear that the

appellant is guilty of the crime with which he is charged, although
his civil liability should be understood to be reduced to that of
paying an indemnity of only P1,889.67 on the ground that of the
amount taken from it this is the only sum which the Government
did not recover.

As to the penalty which should be imposed, it should be stated

that the lower court committed an error. The same should be
prision correccional in its medium period to prision mayor in its
minimum period, that is, from two years, four months and one
day to eight years, because this is the penalty next lower in
degree to that prescribed for the first case of robbery provided in
article 299 of the Revised Penal Code, it being clear that the
crime committed by the appellant is of the nature of that
provided in the second case of said article.

The lower court failed to consider two aggravating circumstances

which had been clearly proven at the trial, to wit: nocturnity and
the appellant taking advantage of his public position as
postmaster. The reason given by said court was that said
circumstances were not alleged in the information. Said requisite
is not essential. In the case of United States v. Campo (23 Phil.,
368), and in that of People v. Collado (p. 610, ante), this court
stated, and reiterates herein, that although it is not stated in a
complaint or information that generic aggravating circumstances
of any kind have been present in the commission of the crime,
said circumstances may be proven at the trial and, if proven,
must necessarily be taken into consideration in imposing the
corresponding penalty. Therefore, said two circumstances
(subsections 1 and 6 of article 14 of the Revised Penal Code),
which are not qualifying circumstances but merely generic, should
be taken into consideration.

The appealed judgment is hereby modified by sentencing the

appellant to six years and one day of prision mayor, and in
conformity with the provisions of Act No. 4103, the minimum of
said penalty is fixed at two years, affirming said judgment in all
other respects, with costs against the appellant. So ordered.

Avancea, C.J., Abad Santos, Hull and Vickers, JJ., concur.

 [G.R. No. 7321. November 5, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. PATRICIO

CAMPO, Defendant-Appellant.

Chas. A. McDonough for Appellant.

The Attorney-General for Appellee.

SYLLABUS

1. CRIMINAL PRACTICE AND PROCEDURE; RIGHTS OF ACCUSED.

The accused in a criminal case has a right to be informed as to
the nature of the offense with which he is charged before he is
put on trial, and to convict him of a higher offense than that
charged in the complaint or information on which he is tried,
would be an unauthorized denial of that right.

2. ID.; SUFFICIENCY OF INFORMATION; CONVICTION. Except

in a very early case (U. S. v. Dinsing, 1 Phil. Rep., 738), wherein
a contrary view appears to have been taken apparently without
extended discussion, but which has long since been overruled, we
have uniformly and frequently laid down the rule that an accused
person may be convicted of "any crime described and charged by
the facts set out in the information" irrespective of and without
regard to the designation or characterization of the crime set
forth in the title of the complaint or information by the private
complainant or the public prosecuting officer.

3. ID.; ID.; ADMISSIBILITY OF PROOF OF CIRCUMSTANCES.

Although a complaint or information contains no allegation as to
the fact that the commission of the crime charged therein was
marked with one or more of the generic aggravating
circumstances set out n chapter 4, book 1 of the Penal Code,
nevertheless that fact may be proven at the trial, and if proven
must be taken into consideration in imposing the penalty.

4. ID.; ID.; ID. Evidence as to the existence of these

 aggravating circumstances is admissible for the purpose of
showing the precise manner in which the offense actually charged
in the complaint was committed, but it cannot be used for the
purpose of changing the legal characterization or designation of
the offense actually charged in the complaint or information, or in
order to show that the offense committed was in fact a higher
offense than that charged in the complaint or information.

5. ID.; ID.; CONSIDERATION OF CIRCUMSTANCES. In those

cases wherein, under the provisions of the Penal Code, the legal
designation or characterization of an offense is modified by an
allegation set forth in the complaint or information showing that
such offense had been marked with one of the above-mentioned
generic aggravating circumstances, this aggravating circumstance
when alleged and proven is treated as a qualifying circumstance,
and in that even, having once been taken into consideration for
the purpose of giving to the acts committed by the convict a legal
qualification or characterization higher than they would otherwise
have had, it should not be again taken into consideration as an
aggravating circumstance marking the commission of this higher
offense.

6. ID.; ID.; ID. Where an aggravating circumstance, which

when charged and proven becomes a qualifying circumstance
under the provisions of the Code, has not been alleged in the
complaint or information, proof of its existence is nevertheless
admissible, but in that event such circumstance is not to be
treated as a qualifying circumstance justifying the conviction of
the defendant of a higher offense than that with which he is
charged, but merely as an aggravating circumstance justifying
the imposition of the penalty in a severer form but within the
limits prescribed for the less serious offense charged in the
complaint or information.

7. ID.; NUMEROUS QUALIFYING CIRCUMSTANCES. When a

conviction is had on a complaint or information charging the
crime of assassination, and it appears that the unlawful taking of
the life of another was marked with two or more of the qualifying
 circumstances mentioned in article 403 defining and penalizing
the crime of assassination, any one of these circumstances may
be treated as a qualifying circumstance which raises the unlawful
taking of the life of anothers are then treated as generic
aggravating circumstances to be taken into consideration in
determining the degree of severity with which the penalty
prescribed for the crime of assassination should be imposed.

DECISION

CARSON, J. :

The appellant, Patricio Campo, was convicted in the court below

of the crime of homicide as defined and penalized in article 404 of
the Penal Code, and sentenced to twenty years of reclusion
temporal and to the payment of the costs of the proceedings. The
penalty prescribed by law was imposed in its maximum degree
because the trial judge was of opinion that the commission of the
crime was marked with the aggravating circumstances of alevosia
(treachery).

Accepting, as we do, the findings of the court below as to the

credibility of the witnesses, we are of opinion that the evidence of
record leaves no room for reasonable doubt that the appellant
unlawfully and treacherously (con alevosia) took the life of one
Isidro Palejo, at or about the time and place mentioned in the
information. It is very clear therefore that the crime actually
committed by the appellant, as disclosed by the evidence, was
that of asesinato (murder), which, as defined and penalized in
article 403 of the Penal Code, is the unlawful taking of the life of
another, other than parricide, when the act is marked by any of
the following qualifying aggravating circumstances: (1) With
treachery (alevosia); (2) for a price or promise of reward; (3) by
means of an inundation, fire, or poison; (4) with deliberate
premeditation; (5) with cruelty, by deliberately and inhumanly
increasing the sufferings of the offended party.

The trial judge, nevertheless, properly convicted the defendant of

the crime of homicide, marked with the generic aggravating
circumstance of treachery (alevosia), and justified his action in
this regard on the ground that, in the information upon which the
defendant was tried, he was charged, not with murder
(asesinato), but with homicide (homicidio).

The action of the trial judge in this regard must be sustained. We

have invariably held that an accused person cannot be convicted
of a higher offense than that with which he is charged in the
complaint or information on which he is tried. It matters not how
conclusive and convincing the evidence of guilt may be, an
accused person cannot be convicted in the courts of these Islands
of any offense, unless it is charged in the complaint or
information on which he is tried, or necessarily included therein.
He has a right to be informed as to the nature of the offensed
with which he is charged before he is put on trial, and to convict
him of a higher offense than that charged in the complaint or
information on which he is tried would be an unauthorized denial
of that right. (U. S. v. Sevilla, 1 Phil. Rep., 143; U. S. v. Pascua,
1 Phil. Rep., 631; U. S. v. Ayao, 4 Phil. Rep., 114; U. S. v. Nery,
4 Phil. Rep., 158; U. S. v. Roque, 4 Phil. Rep., 242; U. S. v.
Luzon, 34 Phil. Rep., 343; U. S. v. Andrada, 5 Phil. Rep., 464; U.
S. v. Torres, 5 Phil. Rep., 501; U. S. v. De los Santos, 5 Phil.
Rep., 565; U. S. v. De Guzman, 8 Phil. Rep., 21; U. S. v. Rojo, 10
Phil. Rep., Phil. Rep., 369; U. S. v. Gellada, 15 Phil. Rep., 120; U.
S. v. Jeffrey, 15 Phil. Rep., 391.)

Perhaps, however, it should be observed that, when speaking in

this connection of the offense charged in the complaint, we refer
to the offense of which the court would be justified in holding the
defendant guilty on proof of the facts alleged in the body of the
information. For, except in a very early case (U. S. v. Dinsing, 1
Phil. Rep., 738), wherein a contrary view appears to have been
taken, apparently without extended discussion, but which has
long since been overruled, we have uniformly and frequently laid
down the rule that an accused person may be convicted of "any
crime described and charged by the facts set out in the
information," irrespective of, and without regard to the
designation or characterization of the crime set forth in the title of
the complaint or information by the private complainant or the
public prosecuting officer. (U. S. v. Supila, 13 Phil. Rep., 671; U.
S. v. Treyes, 14 Phil. Rep., 270; U. S. v. Jeffrey, 15 Phil. Rep.,
391; U. S. v. Lim San, 17 Phil. Rep., 273; U. S. v. De Guzman,
19 Phil. Rep., 350.

The information in this case charges the defendant with the

commission of the crime as follows:jgc:chanrobles.com.ph

"That on or about December 7, 1910, in the municipality of Santo

Nino, Province of Cagayan, P. I., the said Patrico Campo did
willfully, illegally and criminally and with a blunt instrument
attack and strike Isidro Palejo, inflicting upon his head various
words and bruises which caused the death of the said Isidro
Palejo. An act committed in violation of the law."cralaw virtua1aw
library

It will be seen that the information does not charge that the
unlawful taking of the life of the deceased was marked with
treachery, or any one of the five qualifying circumstances in the
absence of which the act cannot be held to be asesinato (murder)
as defined in article 403 of the Code. Manifestly, therefore, in
accordance with the doctrine laid down in the cases cited above,
the trial judge properly declined to convict the defendant of that
crime, although the evidence introduced at the trial conclusively
established the fact that he had committed it.

It is suggested in the brief of the Attorney-General that since

alevosia (treachery) is?? expressly charge in the complaint, it was
improper for the court to take it into consideration in imposing
the prescribed penalty for the homicide of which the appellant
was convicted. In support of this contention reference is made to
a decision of the supreme court of Spain wherein that court, in
discussing the penalty to be imposed on one convicted of
homicide, held than the generic aggravating circumstance of
alevosia (treachery) should not be taken into consideration
"because if it really exists, it increases the penal responsibility by
converting the homicide into murder; and if it is not sufficiently
proved, for the same reason that it is rejected as constituent it
must be rejected as generic, for that which is legally unjustified
cannot in any way be regarded as aggravating." (Viada, Penal
Code, Vol. I, p. 253.) But this comment of the supreme court of
Spain is to be construed with reference to the judicial system of
procedure in force in the jurisdiction wherein system of procedure
in force in the jurisdiction wherein sufficient to establish the
existence of the attendant circumstance alevosia, it would have
been the duty of the court to convict the defendant of the crime
of asesinato (murder); and what the court really held was, that in
the case then under consideration, alevosia (treachery) had not
been proven, and for that sufficient reason could not be taken
into consideration either as a qualifying circumstance
(circunstancia cualificativa) or as a generic aggravating
circumstance.

Under our Penal Code, the penalty prescribed for the offenses
defined therein must be imposed in a more severe degree, within
the prescribed limits, when it appears that the commission of
those offenses is attended by one or more of the generic
aggravating circumstances expressly set out in chapter 4 book 1
of the Code: and we have uniformly held that, although the
information contains no allegation as to the fact that the
commission of the crime charged was marked with one or more
of these generic aggravating circumstances, nevertheless that
fact may be proven at the trial, and, if proven, must be taken into
consideration in imposing the penalty.

This rule of practice is justified on the ground that the

introduction of such evidence is admitted only for the purpose of
showing the precise manner in which the offense actually charged
in the complaint was committed; and not for the purpose of
changing the legal characterization or designation of the offense
charged in the information, or of showing that the offense
committed was in fact a higher offense than that charged in the
information. It follows, of course, that proof of the existence of
one or more aggravating circumstances, not expressly charged in
the complaint can and should serve no other purpose than that of
aiding the court in determining whether the penalty should be
imposed in a more or less severe form, within the limits
prescribed for the offense charge in the complaint or information.

Proof that the commission of an offense charged in the complaint

or information was marked by an aggravating circumstance not
mentioned therein should not and will not be denied its logical
and normal effect in increasing the severity of the penalty to be
imposed within the limits prescribed by law for that offense, on
the sole ground that, had the aggravating circumstance been set
forth in the complaint or information, proof of its existence would
have justified the treatment of that circumstance as a qualifying
circumstance, and the conviction of the accused of a higher
offense than that actually charged.

As throwing some light on this holding, attention is directed to

the fact that, when a conviction is had on a complaint or
information charging the crime of assassination, and it appears
that the unlawful taking of the life of another was marked with
two or more of the above set out circumstances, any one of which
is sufficient to qualify the crime as that of assassination, then
under the practice of this court, adhering to the practice
established in the supreme court of Spain, any one of these
circumstances may be treated as the qualifying circumstance
which raises the crime to that of assassination, and the others are
then treated as generic aggravating circumstances to be taken
into consideration in determining the degree of severity with
which the penalty prescribed for that crime should be imposed.

Since the existence of this aggravating circumstance alone, in the

absence of proof of any extenuating circumstance, is sufficient to
sustain the action of the trial court in imposing the penalty in its
maximum degree, it is not necessary for us to consider the
questions which have been raised as to the existence or
nonexistence of other aggravating circumstances.

The judgment of the court below convicting the defendant and

appellant of the crime of homicide with which he was charged,
marked with the aggravating circumstance of alevosia, and
sentencing him therefor is affirmed, with the costs of this
instance against the Appellant.

Arellano, C.J., Mapa, Johnson, and Trent, JJ., concur.

G.R. No. 45178 September 30, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BRUNO OCBINA Y DE LOS SANTOS (alias BRUNO OCVINA) and
MANUEL PAMERO, defendants.
BRUNO OCBINA Y DE LOS SANTOS (alias BRUNO
OCVINA), appellant.

Claro Reyes for appellant.

Office of the Solicitor-General Hilado for appellee.

ABAD SANTOS, J.:

Appellant was prosecuted in the Court of First Instance of Manila for the
crime of theft. Upon his plea of guilty, he was sentenced to suffer four
months and one day of arresto mayor, and an additional penalty of six
years and one day of prision mayor for habitual delinquency.

In support of this appeal counsel de oficio for the appellant contends that
the lower court erred (1) in not advising the appellant of his right to have
counsel; and (2) in sentencing him to suffer the penalty above indicated.

1. In United States vs. Escalante (36 Phil., 743), this court held that the
failure the record to disclose affirmatively that the trial judge advised the
accused of his right to have counsel is not sufficient ground to reverse a
judgment of conviction. The reason for this doctrine is that the trial court
must be presumed to have complied with the procedure prescribed by law
for the hearing and trial of cases; and that such a presumption can only be
overcome by an affirmative showing to the contrary. (U. S. vs. Labial and
Abuso, 27 Phil., 82; People vs. Del Rosario, G. R. No. 44239, promulgated
January 8, 1936 [62 Phil., 975].) In the instant case, there is no affirmative
showing that the appellant was not advised of his right to have counsel.
We, therefore, find no merit in the first error assigned by counsel for the
appellant.

2. Although the point is not discussed in the brief of counsel for the
appellant, the second assignment of error is sufficiently broad to raise the
question of whether the additional penalty of six years and one day
of prision mayor for habitual delinquency was properly imposed. The only
allegation in the information concerning this matter is the following:
 That the accused Bruno Ocbina y De los Santos (alias Bruno Ocvina)
is an habitual delinquent, he having already been convicted three (3)
times of the crime of theft, by virtue of final judgments of a competent
court, the date of his last conviction being December 13, 1935.

In the recent case of People vs. Venus (G. R. No. 45141, p. 435, ante), this
court held that an allegation of this nature in an information was too general
and therefore insufficient to sustain a conviction for habitual delinquency
upon a plea of guilty. It follows that the additional penalty of six years and
one day of prision mayor imposed on the appellant must be eliminated from
the judgment below.

Modified as above indicated the judgment is affirmed with costs de oficio in

this instance. So ordered.
 [G.R. No. 38485. January 16, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-

Appellee, v. M. X. BURGOS, JR., Defendant-Appellant.

Benj. S Ohnick for Appellant.

Solicitor-General Hilado for Appellee.

SYLLABUS

1. LIBEL AND SLANDER; LIBELOUS EXPRESSIONS. It is

elementary law that in any prosecution for libel the offensive
expressions must be set out verbatim. In the present case, it
there are any such nuggets in the information, they are buried
under a mountain of valueless and irrelevant matter. It is not
incumbent upon the courts to mine them out.

2. ID.; ID. Where an article is lengthy and contains matter that

is libelous with much that is not, the libelous matter must be
singled out and the prosecution based thereon.

3. ID.; ID.; PRIVILEGED MATTER. As to the fifth and sixth

articles which relate to the judicial proceedings, although they are
possibly included indiscriminately in the term "los articulos"
occurring so often in the decision of the court a quo, it is not clear
that they were condemned; nor are they mentioned in the
Solicitor-Generals brief on this appeal. They are too clearly
privileged to require any discussion.

4. ID.; MALICE NOT TO BE IMPLIED FROM THE MERE FACT OF

PUBLICATION. There is no proof of express or actual malice on
the part of the appellant in the publication of the six news articles
in the Philippines Herald. Such malice is not to implied from the
mere fact of publication.

5. ID.; "BONA FIDE" PUBLICATION. There is not a scintilla of

evidence in the record that impugns the bona fides of the
 Philippines Herald or of the appellant as its managing editor, in
the publication of the articles in question.

DECISION

BUTTE, J.:

This is an appeal from a judgment of the Court of First Instance

of Manila convicting the defendant-appellant of the crime of libel
and sentencing him to pay a fine of P100.

During the years 1929 and 1930, the appellant was the managing
editor of the Philippines Herald, a reputable daily newspaper
published in the English language and of general circulation in the
Philippine Islands. The information charges that as such
managing editor, he published in the Philippines Herald "a series
of defamatory and libelous articles" which are reproduced in full
and extend over seven typewritten pages in the information. It is
alleged that the appellant published said articles "for the purpose
of impeaching the virtue, reputation, integrity, and honesty of
Jose Topacio, then Director of the Bureau of Posts, and with the
evident intent of exposing him to public hatred, contempt, and
ridicule, both in his capacity as such Director of Posts and as a
private citizen."cralaw virtua1aw library

As a background for the understanding of the articles complained

of, it should be noted that on May 8, 1929, the Secretary of
Commerce and Communications, by Department Order No. 89,
appointed a committee of investigators to report on the manner
in which the Bureau of Posts was administered with respect to its
various functions and activities and special reference to the
following matters (Exhibit 20):jgc:chanrobles.com.ph

"1. The manufacture and sale of postage stamps, including

special issues;
"2. The management and administration of the Post and
Telegraph Review;

"3. The method of requisitions for and use of supplies and

equipment in the central and provincial offices and the manner of
accounting therefor;

"4. The handling and delivery of mail subject to customs duty;

"5. The administration and handling of the registry systems,

money orders, telegraphic transfers, indemnity system, C.O.D.,
and insured parcels; and

"6. Any other feature or activities of the Bureau of Posts which

the committee may, in the course of its work, find it necessary
and advisable to investigate."cralaw virtua1aw library

On November 27, 1929, the committee of investigators made its

report (Exhibit 18), which is as follows: 1

On November 27, 1929, the Philippines Herald published

Topacios reply to the eight charges made by the investigating
committee.

On March 27, 1930 (Exhibit 1), the Governor-General called for

the resignation of Topacio as Director of Posts effective
immediately, stating that after careful consideration of the
complete record in the administrative investigation, Director
Topacio "lost the confidence of your Department Secretary and
myself and your usefulness to the Government has
terminated."cralaw virtua1aw library

It was during the course of the administrative proceedings

conducted by the investigating committee that the Philippines
Herald published the following four articles which are set up in
the information as being libelous:jgc:chanrobles.com.ph
"CHARGES AGAINST TOPACIO TO BE FILED BY PROBERS BEFORE
END OF OCTOBER

"Investigators To Hold Him Directly of Indirectly or Indirectly

Responsible for Nearly All Anomalies

"Concrete charges will be filed against Director of Post Jose

Topacio before the end of this month by the special investigating
committee of the post office in connection with the anomalies in
the various divisions of the Bureau as well as in different
transactions in which the Government is involved, it was learned
in official circles yesterday.

"The special investigating committee is now preparing the

different charges against Director Topacio, it was learned.
Director Topacio, according to the findings of the committee, is
either directly or indirectly involved in the various irregularities
committed in the Bureau of Posts particularly those in the
property and mailing divisions. The committee holds Director
Topacio responsible for the appellant shortage in the property
division amounting to more than P150,000, and for the apparent
lax in supervision over the different divisions which made possible
the existence of gross irregularities.

"Director Topacio has already been officially informed by the

investigating committee that his investigation is finished. He was,
however, made to understand by the chairman of the committee,
that the probe committee is ready at any time to listen to any
explanation or any witness he may present for his defense. The
posts head will be given five days by the committee to answer
the charges now being prepared against him.

"One of the gravest charges against Director Topacio is in

connection with the falsification of practically all requisitions for
supplies in the property division. According to testimonies of
former cashier Buenaventura and other postal officials, Director
Topacio signs all requisitions for supplies of the bureau, and
oftentimes what requisitions should be made.
"The committee, it was learned yesterday, is filing separate
charges against Director Topacio in connection with the following:
smuggling opium into the mails, the loss of stamps amounting to
P374,00, publication of the POST AND TELEGRAPH REVIEW
personally edited by Director Topacio, the shortage in the
property division, and various other anomalies.

"It was announced yesterday that no more suspensions or

dismissals will be ordered until after formal charges have been
filed against Director Topacio, before the end of the month. After
the committee is through with Director Topacio, it will
concentrate on the property division where practically all of the
officials and employees and laborers are reported to have directly
or indirectly participated in the falsification or requisitions which
resulted in a shortage of more than P150,000.

"The investigating committee has temporarily suspended the

investigation of the property division pending failure of several
laborers from that division to appear. The investigation will be
resumed early next month, it was indicated yesterday."
(Published October 18, 1929.)

Second Article

"POSTAL HEAD IMPLICATED IN EVERY IRREGULARITY, SPECIAL

PROBERS FIND

"Director To Be Given Five Days To Reply To Charges; Inquiry

Now Nearing Close

"Eight principal charges will be formally filed by the special

investigating committee of the Bureau of Posts, against Director
of Posts Jose Topacio on or before November 15 in connection
with the various anomalies in the administration of the post
office, it was learned from official circles yesterday.

"Director Topacio, the special investigators found, has some

connection either directly or indirectly with practically every
phase of the irregularities in the Bureau of Posts, particularly
those unearthed in the mailing, property and money order
divisions. The investigating committee is now busy preparing the
charges against the Posts head.

"The probe committee holds Director Topacio civilly responsible

for the shortage in the accounts of the Bureau which is estimated
conservatively at half a million pesos. Separate charged are also
being preferred against Director Topacio in connection with the
publication of the POST AND TELEGRAPH REVIEW, the
commemorative stamps, the smuggling of opium through the
mails, and the anomalies in the preparation of requisitions for
supplies in the property division, which resulted in the loss of a
considerable sum to the Government.

"Several minor charges will be filed against Director Topacio in

addition to the eight principal ones, it was learned. These charges
have something to do with the administration of the various
divisions of the Bureau of Posts and outside transaction in which
the post office is involved.

"Director Topacio will be given five days within which to answer

the charges preferred against him by the special investigating
committee. The recommendations of the committee will be
submitted earlier in order to give ample time for Secretary
Filemon Perez of Commerce and Communications to study the
matter, before the end of the month.

"It was indicated yesterday that the investigation of the post-

office anomalies is now practically through. Fiscal Arsenio Paez,
chairman of the committee, is working of the charges against the
Posts head. The two other members of the committee are in the
provinces on vacation. Colonel Francisco, whose leave expires
next Monday, is not expected in the city until the end of this
month in time for the finishing touches of the probe.

"Secretary Perez is expected to render his final decision on the

case before the end of this month. His decision will be largely
based on the findings of the special investigating committee and
the auditors special investigating committee and the auditors
specially detained at the property division to make an inventory
of the supplies and materials.

"The special auditors, in their recent report to the committee in

connection with the inventory, hold Director Topacio accountable
for the shortage in the accounts amounting to more than
P150,000. According to the findings of the auditors, the
Government suffered losses in the purchase of supplies for the
provinces in view of an unsystematic requisition system long
practised in the bureau.

"The investigation of the Bureau of Posts was started last May

shortly after departure of Director Topacio as one of the two
Philippine delegates to the World Postal Congress held in London.
As a result of the investigation, 11 postal officials and employees
were subsequently either dismissed or forced to resign. Five more
employees connected with the property division are facing
charges." (Published November 10, 1929.)

Third Article

"NEW INQUIRY FOLLOWS PAEZ RECOMMENDATION TO

COMMERCE SECRETARY

"Valuable Portions of Collection Believed Missing; Quilon

Designated for Job

"Revision of the foreign stamps in stock in the Bureau of Posts

was ordered yesterday by Secretary Filemon Perez of Commerce
and Communications, upon recommendation of Fiscal Arsenio
Paez, chairman of the special postal probe committee, following
alleged disappearance of foreign stamps, it was learned yesterday
at the Ayuntamiento.

"Nicolas Quilon, superintendent of the inspection division of the

post office, started the check-up yesterday. He is expected to be
through with his work, and get his report ready sometime next
week.

"It was indicated yesterday that any loss which might be

discovered in the foreign stamps collection will be charged
against of the collection of foreign stamps in the post-office is
reported to have disappeared.

"The special investigating committee is now preparing the

charges against the postal officials responsible for the various
anomalies in the Bureau of Posts. Formal charges will be filed
shortly.

"It is understood that eight principal charged will be filed against

Director of Posts Jose Topacio. According to the findings of the
committee, the Posts head is directly or indirectly connected with
practically every phase of irregularities unearthed in the Bureau."
(Published November 15, 1929.)

Fourth Article

"DIRECTOR TOPACIO IS DOOMED, SAYS COMMITTEE MAN

"SPECIAL INVESTIGATORS HOLD HIM RESPONSIBLE FOR

ANOMALIES AS CHIEF OF POSTS BUREAU

"Committee Will Give J. Ruiz Clean Slate

"Theory of Defense Director Is Expected To Put Up Is Not

Sustained By Inquiry Board

"The main line of defense which Director Jose Topacio is expected

to pursue in answering the charges to be filed against him by the
special investigating committee on the Bureau of Posts anomalies
will fail as the investigators have virtually decided to give Acting
Director Juan Ruiz a clean slate and to hold Mr. Topacio
responsible as Chief of the Bureau, for the irregularities, it was
learned from a ranking member of the committee yesterday.

"In his testimony before the investigators, Director Topacio

sought to clear himself by shifting the blame on the Acting
Director. The committee has also been informed that Mr. Topacio
is now exerting all efforts to gather incriminating data and facts
against Mr. Ruiz.

"In this connection, Fiscal Arsenio Paez declared some time ago
that the question involves a difficult point of law and admitted
that Director Topacios contention may be justified by the
accounting law. Director Topacio maintains that the anomalies
may have taken place during his absence and further points out
that he was given a certificate of clearance by Ruiz and other
division chiefs before he left the Islands to attend the postal
convention in London.

"After a careful study of the whole question, however, it is a

understood that the special committee has come to the
conclusion that Director Topacio and not Mr. Ruiz should answer
for the postal anomalies. It was explained that the irregularities
did not take place during Mr. Topacios absence, but while he was
in the Bureau as director.

"Two ranking members of the special committee have intimated

to the Herald that Director Topacio is doomed, and that he has
not the slightest chance to escape from the charges to be
presented by the committee. It is understood that many concrete
charges, most of them administrative in nature, but some of
them making Mr. Topacio liable to criminal prosecution, will be
filed by the committee within two weeks.

"The investigation into the foreign stamps collection of the Bureau

of Posts, now being conducted by the committee with the aid of
Nicolas Quilon of the Bureau of Posts, is still going on. It is
reported that a great part of the collection have disappeared."
(Published November 19, 1929.)
As a result of the findings of the investigating committee, the
Government of the Philippine Islands brought suit against Jose
Topacio to recover P153,470.63. A photograph taken during the
trial of this case appeared in the Philippines Herald of February
14, 1930, which was accompanied by the following
explanation:jgc:chanrobles.com.ph

"GOVERNMENT OPENS EFFORT IN COURT TO RECOVER

P153,470.63 FROM POSTS DIRECTOR JOSE TOPACIO

"The photograph shows a view of the courtroom during the trial

of Director Jose Topacio of the Bureau of Posts which opened
before Judge Imperial of Manila yesterday. The accused is shown
at the end of the table standing between his attorneys, Messrs.
Guevara and Del Rosario." (February 14, 1930.) The publication
of the photograph and the explanation are set up in the
information as a libelous publication.

The result of the Governments suit for the said P153,470.63 is

stated in an issue of the Philippines Herald of June 2, 1930, as
follows and constitutes the sixth of the alleged libelous articles
set out in the information:jgc:chanrobles.com.ph

"COURT ACQUITS TOPACIO, PAYS SALARY CLAIMS

"Government Fails To Collect Big Sum From Former Director of

Posts

"P100,000 Claim Also Dismissed

"Attempt of Accused To Collect Damages Fails Also; Perez

Comments

"The Insular Government this morning lost its claim instituted in

the City Court of First Instance against former Director Topacio of
Posts in connection with alleged damages amounting to
P153,470.63 sustained by the Government through Topacios
questionable conduct during his incumbency. Judge Carlos A.
Imperial, who heard the case, rendered his decision this morning
absolving the former director.

"In accordance with the decision, the former director will recover
from the Government P2,773.42 which represents the expenses
he incurred when he went to London as Philippine delegate to the
International Posts Convention held there in 1929, and P4,200
representing his salary from the date of his arrival from London
to the time he submitted his resignation as Director of the Bureau
of Posts.

"In his counterclaim, Mr. Topacio asked for damages amounting

to P100,000 he alleged to have sustained as a result of the
attachment of all his properties, real and personal. Judge Imperial
did not sustain the contention of the former director, also
absolving the Insular Government of the demand for damages.
The judge says that there have been sufficient grounds for the
attachment asked by the Government, among the incidents
mentioned being the sale of certain shares owned by the
defendant during the pendency of his case.

"The court also contends that the damages supposed to have

been sustained by the former director were not proven, being
merely uncertain and speculative.

"The court based its decision on the ground that it had not been
shown that the defendant had been negligent in the performance
of his duties, resulting in the loss alleged to have been sustained
by the Government.

"The court accepts the theory of the Office of the Attorney-

General that the accounts of the former director could be
reopened by the Insular Auditor. It was contended by the
defendant that the reopening of the accounts of the former
director after they had been approved was illegal.

"Likewise the court sustains the contention that the former

Director of Posts cannot be held liable for the negligence of his
subordinates. To sustain the contrary is inconceivable under the
present system of government. This ruling is in conflict with an
opinion rendered by the corresponding Department Secretary
that the chief of an office is responsible for the losses which may
be caused through the negligence of his subordinates.

"With regard to the salary of the former chief of the Bureau of

Posts, the decision says that there has been no proof that he was
under suspension from the time of his arrival from London to the
date of his resignation, and, therefore, he should be paid the
corresponding salaries for that period of time.

"The court orders the attachment of his properties discharged.

However, this order will not take effect until the decision becomes
final. The decision will become final 30 days after the Office of the
Attorney-General receives official notice of the judgment. This
morning no official notice was yet received by the Office of the
Attorney-General. So the 30-day period will be counted, most
probably, from tomorrow. The 30-day period will hold good only if
no appeal is taken during that period of time.

"It is very likely, however, that the case will be appealed to the
local Supreme Court and, probably to the Federal Supreme
Court.

"Immediately after Solicitor-General Alex. Reyes, who is acting in

the place of Attorney-General Delfin Jaranilla who was out this
morning, was advised of the decision of the court, he went to the
office of the Secretary of Justice for a conference. The decision of
the court will be thoroughly studied a definite step will be taken
by the Government. At any rate in which to appeal from the
judgment.

"The former director refused the plaintiff holds that there is

sufficient ground for an appeal.

"Former Director Topacio refused to make any comment when he

was asked this noon to comment on the decision of the court. His
lawyers, Attorneys Guillermo B. Guevara of the law firm of
Guevara, Francisco, and Pantaleon del Rosario, will be notified
tomorrow of the decision of the court.

"Whether or not the defendant will appeal from the decision of

the court in view of the ruling with regard to the damages of
P100,00, it could not be definitely ascertained this morning. It is
believed, however, that, unless the plaintiff appeals, the decision
will become final.

"The case against the former Director of Posts aired in the local
court in accordance with the recommendations of the postal
investigating board which inquired into alleged irregularities in
the Bureau of Posts. This board has been the subject of bitter
criticism on the part of Mr. Topacio and one of his lawyers, Mr.
Guevara. The committee was charged with being biased and
being ignorant of the real facts of the case.

"Filemon Perez, Secretary of Commerce and Communications,

commenting today on the acquittal of Jose Topacio, former
Director of Posts, stated that the court decision in no way has
anything to do with the administrative case which resulted in the
forced resignation of Mr. Topacio.

"The case decided by the court, explained Secretary Perez,

refers only to the disallowances made by the former Insular
Auditor, Ben. F. Wright, against Mr. Topacio. The administrative
case investigated by the special postal investigating committee
and decided by the Governor-General has not been submitted to
the consideration of the court."

The court below concluded that "los articulos" are libelous.

Neither in the information nor in the decision of the court below
nor in the brief of the Solicitor-General in this court is any specific
word, phrase, sentence or paragraph quoted or discussed that is
thought to be libelous. We are left to grope through a mass of
published statements, most of which are admittedly non-libelous,
covering seven typewritten pages, in order to sift out expressions
which we might guess the prosecution and the court below had in
mind as being "defamatory and libelous." Had any previous effort
been made to discover and single out supposedly libelous words,
had the parties carefully scrutinized the facts instead if indulging
in temperamental irrelevancies of fact and nebulous generalities
of law, this painful litigation (which so far from alleviating actually
irritated the sore spots) might have been avoided.

The court below did not concern itself to single out any specific
word, phrase, sentence, or paragraph that is libelous. It evidently
considered "los articulos" libelous in their entirety. That they are
not so in their entirety is obvious.

The information is fatally defective and this defect was not

cured by the evidence in that it sets out seven pages of
published statements alleging in effect that they are all and singly
libelous, whereas upon their face, both as a matter of fact and as
a matter of law, the greater part thereof is not libelous. Nowhere
does the prosecution single out of this mass any expression
alleged to be of libelous character. This court is left to grope its
way through all these pages to arrive at a surmise as to what
statements the prosecution and the court below had in mind
when the entire articles were denounced and condemned as
libelous. It is elementary law that in any prosecution for libel the
offensive expressions must be set out verbatim. In the present
case, if there are any such nuggets in the information, they are
buried under a mountain of valueless and irrelevant matter. It is
not incumbent upon the courts to mine them out. Where an
article is lengthy and contains matter that is libelous with much
that is not, the libelous matter must be singled out and the
prosecution based thereon. (Jackson v. State, 77 Southwestern
Reporter, 223.)

The first four articles are reports of proceedings had or to had in

the administrative investigation of the Bureau of Posts and in the
courts. The merest glance at their contents shows that the
articles which appeared in the news columns of the Herald were
published as news items without comment or expressions of
opinion whatever of the appellant, either adverse or favorable.
There is no evidence in the record tending to show that they were
in any way unfair. in so far as the reports, upon information of a
member of the investigating committee, state, by way of
anticipation, some resolution or conclusion of the committee,
agreed upon but not yet formulated, the reports are amply
confirmed by the formal charges published on November 27,
1930 (Exhibit 18). The assumption that the proceedings were
secret is not borne out by the evidence. Moreover, there is
nothing in the Secretarys Order No. 89 (Exhibit 20), by which the
investigation was governed, that required or authorized secrecy
in the proceedings. Nor was there anything in the nature of the
subject matter that required secrecy in the interest of public
morals or public welfare indeed, quite the contrary seems to be
true.

As to the fifth and sixth articles which relate to the judicial

proceedings, although they are possibly included indiscriminately
in the term "los articulos" occurring so often in the decision of the
court a quo, it is not clear that they were condemned; nor are
they mentioned in the Solicitor-Generals brief on this appeal.
They are too clearly privileged to require any discussion.

Section 7 of Act No. 2277 being an act to define the law of libel,
is as follows:jgc:chanrobles.com.ph

"No reporter, editor, or proprietor of any newspaper is liable to

any prosecution for a fair and true report of any judicial,
legislative, or other public official proceedings, or of any
statement, speech, argument, or debate in the course of the
same, except upon proof of malice in making such report, which
shall not be implied from the mere fact of publication."cralaw
virtua1aw library

There is no proof of express or actual malice on the part of the

appellant in the publication of the six news articles in the
Philippines Herald. Such malice is not to be implied from the mere
fact of publication. This court stated in the case of United States
v. Bustos (37 Phil., 731, 743):jgc:chanrobles.com.ph

"A privileged communication should not be the subjected to

microscopic examination to discover grounds of malice of falsity.
Such excessive scrutiny would defeat the protection which the
law throws over privileged communication. The ultimate test is
that of bona fides. (See White v. Nicholls [1845], 3 How., 226;
Bradley v. Heath [1831], 12 Pick. [Mass. ], 163; Kent v. Bongartz
[1885], 15 R. I., 72; Street, Foundations of Legal Liability, vol. 1,
pp. 308, 309; Newell, Slander and Libel, various citations; 25
Cyc., pages 385 et seq.)"

There is not a scintilla of evidence in the record that impugns the

bona fides of the Philippines Herald or of the appellant as its
managing editor, in the publication of the articles in question.

For the reasons stated, the judgment of the court below is

reversed with costs de oficio.
G.R. No. L-35366 August 5, 1931

THE PROVINCIAL FISCAL OF PAMPANGA, petitioner,

vs.
HERMOGENES REYES, Judge of First Instance of Pampanga, and
ANDRES GUEVARRA, respondents.

Provincial Fiscal Daza in his own behalf.

Monico R. Mercado for respondent judge.
Francisco Lazatin for respondent Guevarra.

VILLAMOR, J.:

The petitioner prays for a writ of mandamus to compel the respondent

judge to admit Exhibits A, B, C, and D (attached to the petition), as
evidence for the prosecution in criminal cases Nos. 4501 and 4502 of the
Court of First Instance of Pampanga.

The provincial fiscal of Pampanga filed two informations for libel against
Andres Guevarra. The informations alleged that the defendant, with
malicious intent, published on page 9 of the weekly paper Ing
Magumasid in its issue of July 13, 1930, a squib in verse, of which a
translation into Spanish was included therein, intended to impeach the
honesty, integrity, and reputation of Clemente Dayrit (information in criminal
cause No. 4501) and of Mariano Nepomuceno (information in criminal
cause No. 4502).

The defendant demurred on the ground of duplicity of informations, he

having published only one libelous article in the Ing Magumasid for July 13,
1930. The court overruled the demurrer.

A joint trial was held of criminal cases Nos. 4501 and 4502. The fiscal
attempted to present as evidence for the prosecution, the aforementioned
Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing
the libelous article with the innuendo, another article in the vernacular
published in the same weekly, and its translation into Spanish. Counsel for
the defendant objected to this evidence, which objection was sustained by
the court.

The respondents answered the petition for mandamus, praying for its
dismissal with costs against the petitioner.
At the hearing of this case, both parties appeared and moved that they be
allowed to present memoranda in lieu of an oral argument, which
memoranda are in the record.

The petitioner contends that the exhibits in question are the best evidence
of the libel, the subject matter of the information, and should therefore be
admitted; while the respondents maintain that, inasmuch as the libelous
articles were not quoted in the information, said evidence cannot be
admitted without amending the information. The prosecution asked for an
amendment to the information, but the court denied the petition on the
ground that it would impair the rights of the defendant, holding that the
omission of the libelous article in the original was fatal to the prosecution.

The first question raised here is whether an information charging a libel

published in an unofficial language, without including a copy of the libelous
article, but only a translation into Spanish, is valid or not. It is true that in
United States vs. Eguia and Lozano (38 Phil., 857), it was stated: "The
general rule is that the complaint or information for libel must set out the
particular defamatory words as published, and a statement of their
substance and effect is usually considered insufficient." But this general
rule does not exclude certain exceptions, such as, cases where the libel is
published in a non-official language. "When the defamation has been
published in a foreign tongue, it is proper, and in general, necessary, to set
out the communication as it was originally made, with an exact translation
into English; and if from the translation no cause of action appears, it is
immaterial that the foreign words were actionable. In some jurisdictions,
however, under the influence of the liberality of laws on practice, it is held
unnecessary to set out the communication in the foreign language in which
it is alleged to have been published, so long as the foreign publication is
alleged, with an English translation attached." (37 C. J., 27, sec. 336.)

If the libelous article had been published in one of our official languages,
English or Spanish, it would have been necessary to follow the general
rule; but since the article in question was published in the Pampango
dialect, it is sufficient to insert a Spanish translation in the information. The
justice of this exception to the general rule becomes more evident if we
consider a libelous article published, for instance, in Moro or Chinese, who
use characters different from our own.
The second question refers to the admissibility of the aforesaid exhibits.
The general rules regarding the admissibility of evidence are applicable to
cases of libel or slander. The evidence must be relevant, and not hearsay.
(37 C.J., 151, sec. 688.) This being so, the rule of procedure which requires
the production of the best evidence, is applicable to the present case. And
certainly the copies of the weekly where the libelous article was published,
and its translation, constitute the best evidence of the libel charged. The
newspaper itself is the best evidence of an article published in it.
(Bond vs. Central Bank of Georgia, 2 Ga., 92.).

The respondent judge undoubtedly has discretion to admit or reject the

evidence offered by the fiscal; but in the instant case his refusal to admit
such evidence amounts to an abuse of that discretion, which may be
controlled by this court by means of mandamus proceedings. In so far as
the jurisdiction of this court is concerned, we believe the doctrine is
applicable which was held in Orient Insurance Co. vs. Revilla and Teal
Motor Co. (54 Phil., 919), namely, that the Supreme Court has jurisdiction
to entertain an application for a writ of mandamus to compel a Court of First
Instance to permit the attorney of a litigant to examine the entire written
communication, when part of the same has been introduced in evidence by
the other party.

Wherefore, the writ prayed for against the respondent judge of the Court of
First Instance of Pampanga should be issued, requiring him to admit
Exhibits A, B, C, and D, in question in criminal cases Nos. 4501 and 4502
of that court, and it is so ordered, without special pronouncement of costs.
 [G.R. No. 7969. October 5, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. CHUA

MO, Defendant-Appellant.

Jos. N. Wolfson, for Appellant.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. OPIUM LAW; EVIDENCE; JUDICIAL NOTICE. The complaint

charged that the defendant did "on or about the 19th of March,
1912, in the city of Manila, Philippine Islands, voluntarily,
illegally, and criminally have in his possession and under his
control a certain quantity of opium." The lower court found that
the crime had been committed "at No. 717 Calle Sacristia in the
city of Manila." An examination of the evidence shows that the
crime was committed "at No. 717 Calle Sacristia." None of the
witnesses stated where or in what city No. 717 Calle Sacristia was
located. Held: Under the provisions of section 275 of the Code of
Procedure in Civil Actions (Act No. 190) that the lower court was
duly authorized to take judicial notice of the fact that said house
and said street were within its jurisdiction. Cities and
municipalities are created by public law. Their limits are also
prescribed by public law. The streets are laid out, surveyed and
established by virtue of public authority. Courts of justice are
bound to take judicial notice of the territorial extent of their
jurisdiction. Courts may take judicial notice that a certain city has
been surveyed into lots, blocks and streets and judicial notice
may be taken of such divisions.

DECISION

JOHNSON, J. :
This defendant was charged with the illegal possession of opium,
in violation of the provisions of the Opium Law.

After hearing the evidence, the Honorable A. S. Crossfield, judge,

found the defendant guilty of the crime charged in the complaint,
and sentenced him to pay a fine of P300 and the costs of the
action, with subsidiary imprisonment in case of insolvency.

From that sentence the defendant appealed. The defendant

alleged in his defense in this court that the Court of First Instance
of the city of Manila did not have jurisdiction to try him; that the
testimony adduced during the trial of the cause fails to show
where the offense was committed.

The complaint filed in the present cause alleges that "on or about
the 19th of March, 1912, in the city of Manila, Philippine Islands,
the said Chua Mo, voluntarily, illegally and criminally was the
owner and had in his possession and under his control" a certain
quantity of opium.

The judge of the lower court, after hearing the evidence, made
the following finding of facts:jgc:chanrobles.com.ph

"From the evidence presented at the trial, I find that internal

revenue agents went to the place described as 717 Calle Sacristia
in the city of Manila, and entering the premises there found the
defendant, etc."cralaw virtua1aw library

It appears, therefore, that the complaint charge that the crime

was committed in the city of Manila. The judge who tried the
cause found from the evidence presented that the crime was
committed in the city of Manila. An examination of the evidence
adduced during the trial shows simply that the internal revenue
agents, on or about the 19th of March, 1912, entered the
residence at 717 Calle Sacristia, etc., etc. There is nothing in the
record which shows where or in what political division of the
Philippine Islands the said residence at No. 717 Calle Sacristia is
located. The judge of the lower court evidently took judicial notice
of the fact that Calle Sacristia was one of the public streets of the
city of Manila. We have then the question presented whether or
not a trial judge can take judicial notice of the fact that a certain
public street is located in a certain city or political division of the
Philippine Islands. Section 275 of the Code of Procedure in Civil
Actions (Act No. 190) provides:jgc:chanrobles.com.ph

"Matters judicially recognized. The existence and territorial

extent of states, and of the several islands forming the Philippine
Archipelago, their forms of government, and symbols of
nationality, the laws of nations, the admiralty and maritime
courts of the world and their seals, the political constitutions and
history of the United States and of the Philippine Islands, the
seals of the several departments of the Government of the United
States, and of the States of the Union, and of the Philippine
Islands, public and private, and official acts of the legislative,
executive, and judicial departments of the United States and of
the Philippine Islands, the laws of nature, and the measure of
time, the geographical divisions and political history of the world,
and all similar matters of public knowledge shall be judicially
recognized by the court without the introduction of proof; but the
court may receive evidence upon any of the subjects in this
section stated, when it shall find it necessary for its own
information, and may resort for its aid to appropriate books,
documents, or evidence."cralaw virtua1aw library

In the case of Marzon v. Udtujan (20 Phil. Rep., 232), this court
held, under the provisions of section 275 above quoted, that the
trial court had a right to take judicial notice of the fact that a
certain municipality or barrio was within its jurisdiction.

In the present case the question presented is whether or not the

trial court had a right to take judicial notice of the fact that a
certain house, upon a certain street, was within a city in its
jurisdiction. Said section 275 above quoted provides that trial
courts may take judicial notice, among other things, of the
geographical division of the state. Cities and municipalities are
created by public law. Their limits are also prescribed by public
law. The streets are laid out, surveyed and established by virtue
of public authority. In the present case the complaint alleged that
the crime was committed in the city of Manila. The court, in his
findings of fact "from the evidence, found that the crime was
committed in the city of Manila." We are of the opinion and so
hold that the lower court was authorized, under the provisions of
section 275, to take judicial notice of the fact that the house
located at No. 717 Calle Sacristia, was located within the city of
Manila.

Mr. Justice Gray, of the Supreme Court of the United States, in

the case of Jones v. United States (137 U. S., 202) in discussing
the right of the court to take judicial notice of territorial extent,
said:jgc:chanrobles.com.ph

"All courts of justice are bound to take judicial notice of the

territorial extent of the jurisdiction exercised by the government
whose laws they administer . . . as appearing from the public acts
of the legislature and executive, although those acts are not
formally put in evidence nor are in accord with the pleadings." (U.
S. v. Reynes, 9 How., 127; Kennett v. Chambers, 14 How., 38;
Hoyt v. Russell, 117 U. S., 401-404; Coffee v. Grover, 123 U. S.,
1; State v. Dunwell, 3 R. I., 127; States v. Wagner, 61 Me., 178;
Taylor v. Barclay, 2 Sim., 213.)

So far as the facts of the political organization and operation of

the State are determined by law, they are judicially noticed as a
part of the law. The chief difficulty comes in distinguishing
between what is contained solely and abstractly in the law and
what depends more or less on specific official acts done under the
law or upon the application of the terms of the law to concrete
things. Courts should be permitted to give a liberal interpretation
to the law permitting them to take judicial notice of the facts
mentioned in such laws, especially when a technical interpretation
would have the effect of defeating the very purpose and object of
the law. (Wigmore on Evidence, sec. 2575.)
In the case of Master v. Morse (18 Utah, 21) it was held that
courts might take judicial notice that a certain city had been
surveyed into lots, blocks and streets and that judicial notice
would be taken of such divisions.

In the case of "The Apollon" (9 Wheaton, 362-374) the Supreme

Court of the United States held that "public facts of geographical
divisions might betaken judicial notice of."cralaw virtua1aw
library

In the case of Peyrox v. Howard (7 Peters, 324-342), the

Supreme Court of the United States held that the court would
take judicial notice of the fact that the port of New Orleans was
within its jurisdiction, as depending on the ebb and flow of the
tide.

In the case of Board v. State (147 Ind., 476) the supreme court
of the State of Indiana held that trial courts might take judicial
notice of the area and boundary lines of a county.

The cases holding that courts may take judicial notice of the fact
that certain towns are within the limits of the jurisdiction of the
courts are almost innumerable. (St. Louis I. M. & S. Ry. Co. v.
Magness, 68 Mo., 289; People v. Etting, 99 Cal., 577; People v.
Faust, 113 Cal., 172; State v. Powers, 25 Conn., 48; Perry v.
State, 113 Ga., 936; Gilbert v. National C. R. Co., 176 Ill., 288;
Ham v. Ham, 39 Me. 263; Commonwealth v. Desmond, 103
Mass., 445; Baumann v. Trust Co., 66 Minn., 227.)

In the case of Gardner v. Eberhart (82 Ill., 316), the supreme

court of Illinois held that trial courts had authority to take judicial
notice of the subdivision of towns and city property into blocks,
lots, etc. (See also Sever v. Lyons, 170 Ill., 395.)

We believe, considering the ample provisions of said section 275

and the jurisprudence already established by reputable courts,
that we have authority for holding that the lower court committed
no error in taking judicial notice of the fact that the place where
the crime was committed was within its jurisdiction. Therefore the
sentence of the lower court is hereby affirmed, with costs. So
ordered.

Arellano, C.J., Torres, Mapa, and Carson, JJ., concur.

Trent, J., dissents.

G.R. No. L-8957 April 29, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
ANDRES O. FERRER, defendant-appellee.

Jacinto Calanta for appellee.

Office of the Solicitor General Ambrosio Padilla and Solicitor Pacipico P. de
Castro for appellant.

PADILLA, J.:

This is an appeal from an order of the Court of First Instance of

Pangasinan, the dispositive part of which states:

Five (5) days after receipt of a copy of this Order by the prosecution,
the information in this case shall be deemed cancelled and released,
unless in the meantime the prosecution amends the information so as
to allege sufficient facts constituting an offense under section 51 of
our Revised Election Code.

The information held defective by the trial court reads as follows:

The undersigned Provincial Fiscal of Pangasinan and the Provincial

Fiscals of Nueva Ecija and Batanes, on special detail in Pangasinan
by Administrative Orders Nos. 6 and 13, dated January 12 and 27,
1954, respectively, of the Secretary of Justice, accuse Andres G.
Ferrer of the offense violation of Sections 51 and 54 in the relation to
Sections 51 and 54 in relation to Section 183, 184 and 185 of the
revised Election Code, committed as follows:

That on or about 10th day of November, 1953, (Election Day), and for
sometime prior thereto in the municipality of Binmaley, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Andres G. Ferrer, being then and
there a Foreign Affairs Officer, Class III, Department of Foreign
Affairs, and classified civil service officer, duly qualified and appointed
as such, did then and there wilfully, unlawfully, feloniously and
knowingly, in utter disregard and defiance of the specific and several
legal prohibition on the subject, and in disregard of the civil service
rules and regulations, induce, influence, sway and make the electors
 vote in favor of the candidates of the Liberal Party in the following
manner, to wit: (1) that sometime before the elections on November
10, 1958, the said accused, Andres G. Ferrer, delivered a speech
during a political rally of the Liberal Party in Barrio Caloocan Norte, of
the said municipality of Binmaley, Pangasinan, inducing the electors
to vote for the candidates of the Liberal Party but more particularly for
President Quirino and Speaker Perez; that during said political
meeting the said accused caused to be distributed to the people who
attended said meeting cigarettes and pamphlets concerning the
Liberal Party; and (2) that the said accused, Andres G. Ferrer,
sometime prior to the last elections campaigned in the Barrio of
Caloocan Norte, of the said municipality of Binmaley, going from
house to house and induced the electors to whom he distributed
sample, ballots of the Liberal Party.

Contrary to sections 51 and 54 in relation to Sections 183, 184 and

185 of Republic Act No. 180, as amended. (Crim. Case No. 20320.)

The defendant moved to quash the information on the ground that it

charges more than one offense and that the facts alleged in the information
do not constitute a violation of either section 51 or section 54 of the
Revised Election Code.

The trial court is of the opinion that causing cigarettes or pamphlets

concerning the Liberal Party to be distributed to the people who attended a
political meeting, charged against the defendant, does not constitute a
violation of section 51 of the Revised Election Code, because it is not
giving "food" for tobacco is not food; nor does it constitute a violation of that
part of section 51 which makes unlawfully the contributing or giving, directly
or indirectly, of money or things of value, because the information merely
charges the defendant with-having caused cigarettes, etc. to be distributed,
and it does not state that the cigarette belonged to the defendant and were
being given away by him as his contribution for electioneering purposes.
True, cigarettes are not food, but they have and are of value and the
charge that the defendant caused cigarettes and pamphlets concerning the
Liberal Party to be distributed to the people who attended a political
meeting mentioned in the information is a sufficient allegation that he gave
or contributed things of value for electioneering purposes. If the cigarettes
did not belong to him, that is a matter of defense. The trial court is also of
the opinion that the defendant is not a classified civil service officer or
employee, because to be such it is necessary that he be assigned in the
Department of Foreign Affairs under section 6, Republic Act. No. 708 and if
and when thus assigned he will for purposes of civil service law and
regulations, be considered as first grade civil service eligible," and that
even if the prosecution could establish that the defendant at the time of the
commission of the violation charged was assigned in the Department of
Foreign Affairs under the section just mentioned, still such assignment
would not make him a classified civil service officer embraced within the
provisions of section 54 of the Revised Election Code, for, according to the
trial court, section 670 of the Revised Administrative Code provides that the
classified civil service embraces all persons not expressly declared to be
the unclassified civil service and section 671 enumerates the persons
embraced in the unclassified civil service; and concludes; that the
defendant is in the unclassified civil service under section 671, paragraph
b, of the Revised Administrative Code, because the defendant was
appointed by the President first as Foreign Affairs Officer Class III,
Department of Foreign Affairs, and later on as Vice Consul the last
appointment having been duly confirmed by the Commission on
Appointments, and that the, assignment or detail in the Department of
Foreign Affairs would make him by mere legal fiction a first grade civil
service eligible under section 6, Republic Act No. 708.

The reason advanced by the trial court are defense matters. The allegation
in the information that the defendant is "a classified civil service officer, duly
qualified and appointed as such," for purposes the motion to quash, is
deemed admitted. The trial court cannot go beyond the allegations of the
information.

Nevertheless, the information is defective, because it charges two

violations of the Revised Election Code, to wit: section 51 to which a
heavier penalty is attached, and section 54 for which a lighter penalty is
provided. And the prosecuting attorneys had that in mind when at the end
of the information filed by them they stated: "Contrary to Sections 51 and
54 in relation to Sections 183, 184 and 185 of Republic Act No. 180, as
amended." Causing cigarettes which are things of value to be distributed,
made unlawful by section 51 and punished by section 183, cannot be
deemed a necessary means to commit the lesser violation of section 54
were the penalty attached to it taken into consideration. The rule in the
case of People vs. Buenviaje, 47 Phil., 536, cited and invoked by the State,
has no application to the case, because there the defendant, who was not
a duly licensed physician, gave medical assistance and treatment to a
certain person and advertised himself and offered services as a physician
by means of cards or letterheads and advertisement in the newspapers,
latter being a means to commit the former, and both violations are
punishable with the same penalty, whereas in the present case causing
cigarettes or things of value to be distributed by the defendant to the people
who attended a political meeting is a violation distinct from that of
electioneering committed by a classified civil service officer or employee.
The former has no connection with the latter.

If the penalty provided for violation of section 51 and 54 were the same as
in the case of the violation of the Medical Law, the rule in the case
of People vs. Buenviaje supra, might be invoked and applied.

That a violation of section 51 is distinct from that of section 54 is further

shown by the fact that a violation of the former may be committed by any
candidate, political committee, voter or any other person, whereas a
violation of the latter may only be committed by a justice, judge, fiscal,
treasurer or assessor of any province, officer or employee of the Army,
member of the national, provincial, city, municipal or rural police force, and
classified civil service officer or employee.

Under the information in question, if the charges be proved, the defendant

may be convicted and sentenced under either section or both. The rule
enjoining the charging of two or more offenses in an information has for aim
to give the defendant the necessary knowledge of the charge to enable,
him to prepare his defense. The State should not heap upon the defendant
two or more charges which might confuse him in his defense.

The order appealed from is affirmed, not upon the grounds relied upon by
the trial court, but on the ground that the information charges two different
violations, without pronouncement as to costs.

Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion,

Reyes, J.B.L., Endencia, and Felix, JJ.,concur.
 G.R. No. L-45739 April 25, 1939

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. SOTERO

PEJI BAUTISTA,accused-appellee.

Office of the Solicitor-General Tuason for appellant.

Emiliano T. Tirona for appellee.

DIAZ, J.: chanrobles virtual law library

This case is before us by virtue of an appeal interposed by the

Solicitor-General to the resolution of the Court of First Instance of
Cavite of September 10, 1937 dismissing said case for the
following reasons: first, that the accused Sotero Peji Bautista was
not given a preliminary investigation before trial; and second,
that said accused had been twice put in
jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library

The undisputed facts bearing upon the case are the following: On
July 22, 1935 the accused Sotero Peji Bautista was charged by
one Ong Loo in the justice of the peace court of Kawit, Cavite,
with having violated the provisions of article 183 of the Revised
Penal Code on May 30, 1935 by knowingly subscribing under oath
a false affidavit couched in the following language:

I, the undersigned herein affirmed, of lawful age, and a native of

Binakayan, Kawit, Cavite, under the guidance of normal mind, in
the name of the law, and in the presence of lawful authority do
hereby declare the following:chanrobles virtual law library

That Ong Lo, the alleged defendant to the case, is personally

known to me and we had been acquainted with each other within
a period of several months.chanroblesvirtualawlibrary chanrobles
virtual law library

That several times and oft during the period of our

acquaintanceship I had told and informed the said defendant of
the value of manuscript as specified thereto in the
complaint.chanroblesvirtualawlibrary chanrobles virtual law
library

That on or about December 12, 1934, in the municipality of

Kawit, Province of Cavite, after a skillful management actually
taking due advantage of our acquaintanceship, defendant
succeeded to acquire possession of said
manuscript.chanroblesvirtualawlibrary chanrobles virtual law
library

That said defendant guaranteed himself by delivering to me

wilfully, voluntarily, and under no constraint whatsoever, a pledge
of security.chanroblesvirtualawlibrarychanrobles virtual law
library

That defendant promised upon his word of honor to abide by the

obligation to return and produce said manuscript upon my
demand as rightful owner.chanroblesvirtualawlibrary chanrobles
virtual law library

That later and again, on or about January 1, 1935, said defendant

willfully, voluntarily, and unlawfully managed to dispossess me of
the pledge of security through an incriminatory machination
prepared and devised by the same defendant, effected and
executed contrary to law by city policeman badge No. 733 and
thus having deprived of the necessary instruments as a lawful
means of defense in case of a controversy like this, the defendant
herein named willfully, voluntarily, and feloniously refused and
still refuses, and will even refuse to return and produce the
manuscript upon my demand as rightful owner, and has
thereafter denied, and still denies, and will even deny having
received said manuscript, deceitfully, fraudulently, and unlawfully
converts and misappropriates the same with intent to profit
himself at my own detriment and
prejudice.chanroblesvirtualawlibrary chanrobles virtual law library

That the manuscript is my source of income and it must therefore

be valued according to its earning capacity to the amount of two
thousand pesos (P2,000) Philippine currency or its equivalent
value in pesetas.chanroblesvirtualawlibrarychanrobles virtual law
library

That I am willing to submit this to trial for the speedy

administration of Justice.

(Sgd.) SOTERO PEJI Y BAUTISTA

Complainant chanrobles virtual law library

Subscribed and sworn to before me this 30, day of March, 1935.

(Sgd.) FERNANDO T. VINIEGRA

Justice of the Peace
Municipality of Kawit

(Causa Criminal No. 1047, Juzgado de Paz de Kawit, Cavite).

After the preliminary investigation required by law, the justice of

the peace of Kawit remanded the case to the Court of First
Instance because it did not fall under his jurisdiction and he
reached the conclusion that there were reasonable grounds to
believe that the crime was committed and that the accused was
the one who committed it. Instead of filing an information against
the accused for the purpose of charging him with the aforesaid
violation of the Revised Penal Code, the provincial fiscal, without
further proceedings, filed another charging him with false
testimony in a criminal case under article 180 of the said Code,
which is a felony entirely different from that which had been the
subject of the preliminary investigation by the justice of the
peace of Kawit. The information so filed by the fiscal contains the
following allegations:

That on or about September 26, 1935, in the municipality of

Kawit, Province of Cavite, Philippine Islands, the said accused did
then and there and there voluntarily, illegally and maliciously and
knowingly make under oath untruthful statements and give false
testimony against one by the name Ong Loo, the defendant in the
criminal case for estafa No. 1044 of the justice of the peace of
Kawit, Cavite, declaring falsely and knowingly that Ong Loo had
borrowed from him a certain manuscript for English Idioms in the
municipality of Kawit, Cavite, and that he had had given him as
security for the return to him of the said manuscript, two books
(Webster dictionary and English grammar), when in truth and in
fact, as the accused knew it full well, that Ong Loo did not borrow
in Kawit from him nor elsewhere the said manuscript nor he gave
him the Webster dictionary and English grammar as security for
the return of the supposed manuscript.

Contrary to law.

(Criminal case No. 6999, Court of First Instance of

Cavite.)chanrobles virtual law library

The accused on arraignment pleaded "not guilty." After trial has

commenced with the fiscal presenting his first witness, the
accused objected that he had not been given a preliminary
investigation and that the crime with which he was then charged
was entirely different from that which had been imputed to him in
the justice of the peace court. The judge then presiding over the
Court of First Instance of Cavite, the Honorable Emilio Pea,
having found the objection of the accused to be well taken,
ordered the transfer of the case to the justice of the peace court
of the capital of the province to the end that the necessary
preliminary investigation be there made. This done, the justice of
the peace returned the case to the Court of First Instance with
the report that he did not find reasonable grounds to believe that
the accused had committed the crime of false testimony in a
criminal case which had been imputed to him. In view thereof, on
May 16, 1936, the said Court of First Instance then presided by
the Honorable Leopoldo Rovira, ordered the filing away of the
case, reserving, however, to the provincial fiscal the right to file a
new information whenever should he deem proper with the aid of
the same preliminary investigation which the justice of the peace
of the capital of said province had already conducted. Five days
after, or on March 21, 1936, the provincial fiscal filed a new
information in a separate case (criminal case No. 7167 of the
Court of First Instance of Cavite) charging the same accused
Sotero Peji Bautista with false testimony in a criminal case, and
asked the Judge Pastor M. Endencia, then acting in the place of
Judge Rovira, personally to conduct the necessary preliminary
investigation on the ground that the justice of the peace of the
provincial capital had previously expressed the opinion that there
were no reasonable grounds to believe that the accused was
guilty. This was done, and when formal trial was about to be held
before another judge (the Honorable Marcelo T. Boncan ), the
accused raised the two questions which, resolved favorably to
him through the appealed order, led to the final dismissal of the
case.

1. It is not true, as has been shown by the Solicitor-General, that

the accused has not been given a preliminary investigation, for
this was conducted precisely by the judge himself Honorable
Pastor M. Endencia, on May 20, 1936 as evidenced by his order of
said date, which says:

It appearing from the preliminary investigation made in this case

that there are reasonable grounds to believe that the accused has
committed the crime of false testimony and that he is liable
therefor, the arrest of the accused Sotero Peji Bautista is ordered
after which a day shall be set for the corresponding trial.

2. Neither is it true that said accused had been twice put in

jeopardy or in danger of being tried for the same crime of false
testimony in a criminal case. All that took place was a preliminary
investigation in the first case, namely, that endorsed to the
justice of the peace of the capital of the province so that said
investigation might be conducted. And this proceeding had to be
taken because the accused asked for it, invoking his right to a
preliminary investigation before the submission of the charge
against him. He had then undoubtedly a right to said
investigation because when the fiscal first charged him with false
testimony in a criminal case, case No. 6999, said fiscal
disregarded the aforementioned procedure and formality, it not
being possible to declare that the same were observed just
because he had them in case No. 1047 of the justice of the peace
court of Kawit for the reason that in the latter case a crime
distinct from that imputed to him afterwards was involved. The
Revised Penal Code divides false testimony into three forms: first,
false testimony in a criminal case (arts. 180 and 181) ; second,
false testimony in a civil case (art. 182); and third, false
testimony in other cases. The requisites for each of these three
forms are different, and the penalties for each one of them and
for each of their variations are also different. From the foregoing
it is obvious that it is not the same thing to charge one with false
testimony in a criminal case and to charge him with false
testimony in a civil case, and with the same crime in other cases.

Therefore, if there had been nothing more than a preliminary

investigation, clearly it could not be said that the accused had
ever been in jeopardy. This is because a preliminary investigation
is not a trial or any part thereof and does not have for its object
that of determining definitely the guilt of the accused by proofs,
counterproofs, and the other formalities prescribed by law. (U.
S. vs. Yu Tuico, 34 Phil., 209.)chanrobles virtual law library

The justice of the peace of the capital of the Province of Cavite,

by reason of the penalty prescribed by law for the crime with
which the accused was then charged, was not competent to take
cognizance of case No. 6999 in which he did nothing more than to
conduct, by delegation of the judge of the Court of First Instance,
a preliminary investigation prayed for by the accused himself. In
this connection it must be noted that the penalties prescribed for
false testimony against an accused in criminal cases are not, nor
may they be lower than arresto mayor or a fine not exceeding
one thousand pesos, and that the penalties which justices of the
peace of capitals of provinces may impose by virtue of their
original jurisdiction are arresto which cannot exceed six months
or a fine which cannot exceed two hundred pesos or both
penalties at the same time. (Section 2, Act No. 2131.)chanrobles
virtual law library
One cannot be considered to have been in jeopardy unless the
prior judgment, whether one of acquittal or conviction in the
proper case, has been rendered by a court having jurisdiction to
try the same by reason of the crime with which he was charged
and the penalty prescribed therefor. (Grafton vs. U.S. 206 U. S.,
333; 11 Phil., 776; U. S. vs.Rubin, 28 Phil., 631.)chanrobles
virtual law library

In cases of lack of authority or jurisdiction on the part of the

judge, the proceedings taken by him are null and the trial of the
accused under said circumstances has not placed him in danger
of conviction because there has been no really valid trial.
Therefore, the right of the government to prosecute the crime
subsists and must be attended to by the competent judge called
upon to take cognizance of the same, and the defense of
jeopardy does not lie against it. (U. S. vs. Arceo, 11 Phil., 530;
Kepner vs. U. S., 195 U. S., 100; 11 Phil., 669; U. S., vs. Jayme,
24 Phil., 90; U. S. vs. Ledesma and Bernad, 29 Phil.,
431.)chanrobles virtual law library

For the reasons set forth, it is evident that the final dismissal of
the case ordered by the lower court under the circumstances
above-mentioned was clearly erroneous. The order appealed
from, not being in accordance with law, must be
reversed.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the aforesaid order is reversed and it is ordered that

the case be returned to the lower court so that the trial may
proceed for the purpose of receiving the evidence which the
prosecution and the defense may present, and judgment may be
rendered according to law, with costs de oficio. So ordered.
G.R. No. L-46656 June 26, 1940

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELIPE MAGPALE, defendant-appellant.

Constancio Padilla and Zoilo P. Perlas for appellant.

Assistant Solicitor-General Concepcion and Acting Assistant Attorney
Roxas for appellee.

LAUREL, J.:

A criminal complaint was lodged against Felipe Magpale in the justice of

the peace court of San Jose, Province of Nueva Ecija, charging him with a
violation of Article 176 of the Revised Penal Code allegedly committed as
follows:

That, on or about the 25th day of March, 1938, in the municipality of

San Jose, Nueva Ecija, Philippine Islands, and within the jurisdiction
of this court, the above-named accused did then and there wilfully,
feloniously, knowingly and without lawful purpose, have in his
possession, custody and control one brand of the municipal
government of San Jose, Nueva Ecija, to wit:. . . ., with the intent of
using it for falsifying the official brand of the said municipality of San
Jose, Nueva Ecija, in public documents, to wit: Certificate of
Ownership of Large Cattle. All contrary to law.

The preliminary investigation conducted by the justice of the peace was

marked by the presentation of evidence by the prosecution and by the
waiver of the defense to present any evidence in rebuttal. Convinced, from
the evidence before him, that there was reasonable ground to believe that
the defendant committed the crime complained of, the justice of the peace
remanded the records of the case to the Court of First Instance of Nueva
Ecija for further proceedings. In the latter court, the defendant was
informed against by the provincial fiscal as follows:

That on or about the 25th day of March, 1938, in the municipality of

San Jose, Province of Nueva Ecija, P. I., and within the jurisdiction of
this court, the above-named defendant, Felipe Magpale, did then and
there voluntarily, maliciously, illegal and criminally make an iron
brand purported to be of the municipality of San Jose, Nueva Ecija,
 with the intention of using it knowingly in the falsification of certificates
of ownership of large cattle, said manufactured brand having been
found in the possession of said accused. All contrary to law.

After trial, the Court of First Instance of Nueva Ecija rendered a decision
the dispositive part which reads:

Wherefore, the court finds the defendant Felipe Magpale guilty of a

violation of article 176 of the Revised Penal Code, and hereby
sentences to an indeterminate penalty ranging from four months and
one day of arresto mayor to two years, four months and one day
of prison correccional, to pay a fine of P100 with subsidiary
imprisonment in case of insolvency, to the accessories of the law and
to pay the costs.

The case is before this court on appeal by the defendant and appellant,
who makes the following assignment of errors:

1. The lower court erred in overruling the demurrer interposed by the

defendant that the said court has no jurisdiction over the case on the
ground that the accused is deprived of the right to preliminary
investigation on the information charged.

2. The lower court erred in finding the acts imputed to the defendant
punishable, as coming within the purview of article 176 of the Revised
Penal Code.

3. The lower court erred in finding the accused guilty of the crime
charged in the information, and in not acquitting him of the same.

In varying phraseology, but conveying the same central thought, this court
has set out the purposes of a preliminary investigation as follows: "The
object of a preliminary investigation, or a previous inquiry of some kind,
before an accused person is placed upon trial, is to secure the innocent
against hasty, malicious and oppressive prosecutions, and to protect him
from an open and public accusation of crime, from the trouble, expenses
and anxiety of a public trial, and also to protect the State from unless and
expensive prosecutions." (U. S. vs. Grant and Kennedy, 18 Phil., 122.)
"Preliminary investigations are intended to secure the right to every person
charged which crime to be free from the inconvenience, expenses and
burden of defending himself in the course of a formal trial until the
reasonable probability of his guilt has been passed upon in a more or less
summary proceeding by a competent officer designated by law for that
purpose; and that they are intended further to guard the state from the
burden of unnecessary expense involved in holding trials based on false,
frivolous or groundless charges." (U.S. vs. Marfori, 35 Phil., 666.) "A
preliminary investigation is not a trial or any part thereof and has no
purpose except that of determining whether a crime has been committed
and whether there is probable cause to believe the accused guilty thereof."
(U.S. vs. Yu Tuico, 34 Phil., 209.) In the case at bar, it will be noted that the
officer charged in the complaint and that alleged in the information are
defined and penalized by the same article 176 of the Revised Penal Code,
and are so related that an inquiry into one would have elicited substantially
if not precisely the same facts that an inquiry into the other would have
brought into light. It will further be noted, that in the notices sent out by the
justice of the peace in connection with the preliminary investigation of the
complaint, he did not specially refer to only one of said offenses but to both,
as he invariably spoke of a violation of article 176 of the Revised Penal
Code, thus giving the appellant a chance, and putting him on his guard, to
defend himself not only against the charge of illegal possession of the iron
brand but also against that of making or ordering the making thereof. But
the appellant has seen fit to waive his right to present any evidence at said
investigation, and we cannot now entertain his last-minute defense that he
should have been investigated anew for the crime alleged in the
information. To grant him such a belated remedy would not be in obedience
to, but in disregarded of, the prime purposes for which preliminary
investigations are ordained by law and sanctioned of the decisions.

Granting, however, that he was entitled to a second preliminary

investigation, still his right thereto was invoked after he pleaded not guilty
when arraigned. In People vs. Solon, (47 Phil., 443, 448), it was intimidated
that "Whether said motion was made or after the arraignment, is of some
importance for the reason that if it was not made before the arraignment or
before the plea of the defendants was entered, it would indicated that they
have waived their right to a preliminary examination, and for that reason the
court a quo would have been justified in denying the said motion." After his
motion contesting the jurisdiction of the trial Court was denied, the
appellant should have brought the appropriate proceedings to compel the
trial court to grant him another preliminary investigation, this right being a
substantial one. Instead, the appellant folded his arms and went forward
with the trial, at which the prosecution presented who brought in testimony,
without any objection on the part of the appellant, establishing the fact that
the appellant was the one who ordered the making of the iron brand in
question.

As to the last two assigned errors, article 176 of the Revised Penal Code
provides as follows:

ART. 176. Manufacturing and possession of instruments or

implements for falsification. The penalty of prision correccional in
its medium and maximum periods and a fine not to exceed 10,000
pesos shall be imposed upon any person who shall make or
introduce into the Philippine Islands any stamps, dies, marks, or other
instruments or implemented intended to be used in the commission of
the offenses of counterfeiting or falsification mentioned in the
preceding sections of this chapter.

Appellant himself admits that the ordered the questioned iron brand to be
made, wherefore, he is criminally liable for the making thereof. (Article 17,
Revised Penal Code.) It also appears that the said brand is an exact
imitation of that owned and used by the municipality of San Jose, Nueva
Ecija, to brand its own large cattle and to counterbrand large cattle
belonging to its inhabitants.

The offense committed by the appellant under the aforecited article of the
Revised Penal Code is penalized withprision correccional in its medium
and maximum periods, and a fine to exceed P10,000, imposable in its
medium period (three years, six months, and twenty-one days to four
years, nine months, and ten days) because unattended by any modifying
circumstances. The judgment is thus modified and the defendant
sentenced, under Act No. 4103, to an indeterminate penalty, the minimum
of which is four months and one day of arresto mayor, and the maximum
three years, six months and twenty-one days of prision correccional. As
thus modified, the appealed judgment is affirmed, with costs to the
defendant and appellant. So ordered.

Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

G.R. Nos. L-45471 and L-45472 June 15, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
FRANCISCO MERCADO, defendant-appellee.

Office of the Solicitor-General Tuason for appellant.

Mariano Sta. Romana for appellee.

DIAZ, J.:

This is an appeal by the prosecution form an order of the Court of First

Instance of Pampanga whereby said court declared itself without
jurisdiction to take cognizance of and decided two criminal cases pending
before it, for theft of large cattle, against the appellee Francisco Mercado,
on the ground that, although the stolen animals were afterwards brought by
the appellee to the municipality of Candaba, Pampanga, where they were
found in his possession, said crimes had taken place and had been
committed in the municipality of Gapan, of the Province of Nueva Ecija.

The informations which gave rise to the criminal cases above-mentioned

are of the following tenor:

That on or about the 21st day of June, 1936, in the municipality of

Candaba, Province of Pampanga, Philippine Islands, and within the
jurisdiction of this court, the abovenamed accused, Francisco
Mercado, with intent of gain, did, then and there, voluntarily,
maliciously, illegally and criminally, take, steal, and carry away two
male carabaos branded as ................. and ................... with
certificates Nos. 7361553, dated at Pearanda, Nueva Ecija, on
October 29, 1929 and 6993322 dated at Gapan, Nueva Ecija, on
June 3, 1933, respectively, both belonging to Pedro A. Ladores,
worth sixty pesos (P60) each and to his damage and prejudice in the
total amount of P120. The commission of the crime having been
commenced at Gapan, Nueva Ecija, and consummated at the
municipality of Candaba, Pampanga, and without the knowledge and
consent of the owner.

That on or about the 21st day of June 1936, in the municipality of

Candaba, Province of Pampanga, Philippine Islands, and within the
jurisdiction of this court, the abovenamed accused, Francisco
 Mercado, with intent of gain, but without the use of violence upon
persons nor force upon things, did, then and there, voluntarily,
maliciously illegally and criminally take, steal, and carry away a male
carabao branded as .............. with certificate No. 6696261, dated at
Pearanda, Nueva Ecija, on April 11, 1928, valued at ninety pesos
(P90), owned by Leon Ladores, without his knowledge and consent,
and to his damage and prejudice in the said sum of P90. The
commission of the crime having been commenced at Gapan, Nueva
Ecija, and completed at the municipality of Candaba, Pampanga.

The foregoing informations were filed by the provincial fiscal of Pampanga

in the Court of First Instance of said province after receiving the report of
the preliminary inquiries made, upon complaint, by the justice of the peace
court of Candaba, Pampanga, where the case originated. The appellee
waived his right to a preliminary investigation and asked that the two cases
be remanded to the Court of First Instance for trial and final judgment.

Briefly, the question raised by the prosecution on appeal is the following:

Has the Court of First Instance of Pampanga jurisdiction to try and decide
the two cases in question, it being alleged in the informations by which they
were commenced that the accused stole the carabaos described therein in
Gapan, in the Province of Nueva Ecija, which is beyond the jurisdiction of
the court, in order to bring them, as he in fact did afterwards, to Candaba,
Pampanga, where they were found in his possession?

The lower court upheld the negative, being of the opinion that the appellee
committed the two thefts in question no in the Province of Pampanga over
which its jurisdiction is exclusive of the Province of Nueva Ecija, but in the
latter province.

In criminal proceedings, the rule is that one can not be held to answer for
any crime committed by him except in the jurisdiction where it was
committed. Said rule is based on the legal provision which prescribes the
essential requisites of a good complaint or information, one of which is the
allegation that the crime was committed within the jurisdiction of the court
where the complaint or information is filed and that said court has authority
to try it. (Sec. 6, General Orders, No. 58.) As was said in the case of United
States vs. Cunanan (26 Phil., 3760, the jurisdiction of the Courts of First
Instance of the Philippine Islands, in criminal cases, is limited to certain
well-defined territory, so that they can not take jurisdiction of persons
charged with an offense alleged to have been committed outside of that
limited territory. Appellant, however, contends that there are crimes which
are considered as continuing, as for instance those whose commission
does not terminate where the acts of execution began, or where they are
consummated for the first time, because the execution or consummation of
those crimes continues successively and uninterruptedly until stopped by a
cause independent of the will of the offender. It alleges that certain cases of
abduction, like that of United States vs. Bernabe (23 Phil., 154), partake of
this nature because they are partly executed in one province and partly in
another. We can not, in truth, find any similarity between the Bernabe case
and those now under consideration. It was held in that case that the
carrying away of the offended party took place in Manila and that the
unchaste designs, an essential element of abduction, were not made
manifest or begun until the offender and his victim were already in Rizal.
For this reason, although the offense was commenced in Manila, it was
held that it was consummated only in said province. Neither do the present
cases bear any similarity with those of estafa which appear in 23 Phil., 207
(U.S. vs. Cardell) and 27 Phil., 408 (U.S. vs. Santiago), because although
the accused in said cases appropriated their collections in Cebu and in
Iloilo. respectively, in compliance with the order which they had previously
received fro their principals, however, they expressly and formally bound
themselves to render an accounting or to deliver their collections in Manila,
wherefore, it could correctly be held in said cases that the crimes
committed by the accused were triable in the City of Manila. To sustain its
theory, the appellant invokes the commentary found on pages 192 and 193
of Volume 16 of Corpus Juris and what Wharton has to say in his criminal
law (11th edition, page 1389), and what Clark, in turn, states in his
commentary on Criminal Law, pages 366, in the following language:

PAR. 1116. Thief carrying goods from county to county may be

convicted in either country. Where a larceny has been committed
in one country and the thief removes the stolen property into another
county (animus furandi) he is, in the eye of the law, guilty of larceny in
every country into which the subject may thus have been carried. The
rule applied as well to property which is made the subject of larceny
by statute, as to property which is made the subject of larceny by the
common law. (2 Wharton's Criminal Law, 11th ed., p. 1389.)
 Again, property may be stolen in one state, and brought into another.
Can the latter state punish the thief? It has been held from the
earliest times that if a thief steals goods in one country, and brings
them into another, he may be indicted in either, because his unlawful
carrying in the second is deemed a continuance of the unlawful
taking, and so all the essential elements of larceny exist in the
second. (Clark's Criminal Law, p. 366.)

We do not believe that these American precedents, much as they are

entitled to our respect, apply to the cases in question; for, according to
them, "to constitute larceny the first essential is that the thing which is the
subject of the crime should be taken from the possession of the owner into
the possession of the thief, and be carried away by him, for until this is
done there is no larceny, however definite may be the intent of the
prospective thief to commit the theft, and however elaborate his
preparations for doing so."
(36 C.J., 747.)

To constitute larceny, there must be a taking and a carrying away of

personal property with intent to steal it. Taking without carrying away
is not larceny. (Com. vs. Adams, 73 Mass., "1 Gra" 43, 44.)" This is
so because their definition of larceny is the following:

"Larceny at common law may be defined to be the taking and carrying

away from any place, at any time, of the personal property of another,
without his consent, by a person not entitled to the possession thereof,
feloniously, with intent to deprive the owner of his property permanently,
and to convert it to the use of the taker or of some person other than the
owner." (36 C.J., 734.) It may be inferred from the foregoing definition of
"larceny" that the essential elements of this crime are in a sense distinct
from those of theft as the latter offense is known in this jurisdiction.

In larceny, except in the State of Texas (36 Corpus Juris, 748), it is not only
essential that there must be a taking away or abstracting of personal
property belonging to another, but the person taking must also carry it
away. In the aforesaid State, the last requisite is not indispensable. But in
all the other States, the courts have generally held that, "where goods are
stolen in one state and carried into another, there is a larceny in the latter,
on the ground that each moment's continuance of the trespass and felony
amounts to a new taking and asportation, and that the courts of the state
into which the goods are brought have jurisdiction to punish as for larceny
in such state." (16 Corpus Juris, p. 167.) This is also the rule in Texas
because an express provision is to be found in its procedural law which
embodies it. Said provision is section 235 of its Code of Criminal
Procedural, which says:

Where property is stolen in one county and carried off by the offender
to another, he may be prosecuted either in the country where he took
the property or in any other country through or into which he may
have carried the same.

On the other hand, the elements of theft in this jurisdiction are: First, taking
away of personal property; second, that the property belongs to another;
third, that the taking must be with intent to gain; fourth, that it is done
without the consent of the owner; and fifth, that there is no violence or
intimidation against persons, or force upon things. It is not an indispensable
requisite of theft that the pickpocket or their carry, more or less far away,
the thing taken by him from its owner. Wherefore, relying upon the
provisions of article 308 of the Revised Penal Code, which reads:

"Theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take
personal property of another without the latter's consent," we hold that the
thefts charged in the two informations already referred to were wholly
committed in Gapan, Nueva Ecija, and that for their consummation nothing
else remained to be done from the moment that the appellee took away,
with intent to gain, said animals while they were yet in said municipality and
province. It was not necessary that there had been real or actual gain on
his party or that he had removed the stolen animals to the town of
Candaba, in the Province of Pampanga, in order to make use of or derive
some benefit from them. It was enough that on taking them in Gapan, he
was then actuated by the desire or intent to gain. This opinion accords
completely with that stated in the case of United States vs. Adiao (38 Phil.,
754). In that case a Manila customs inspector took a leather belt from the
baggage of a passenger who had just landed at the port of Manila and kept
it in his office desk where the other employees found it afterwards. He was
not able to make use of said belt, but he was found guilty of theft for the
reason that he had performed all the acts of execution necessary for
consummation of the crime. Our opinion is also in conformity with that
expressed by the Supreme Court of Spain in its decisions of December 1,
1897 and October 14, 1898, referred to in the Adiao case, and that of the
same tribunal of November 16, 1895 where it was said that "the crime of
theft consists in taking personal property belonging to another person
without his consent and it is no bar to its consummation that the offender
may not have been able to make use of the stolen articles, for it is not the
gain obtained, but his intention which, together with the other elements
above-mentioned, constitutes the crime in question." (II Hidalgo, Codigo
Penal, p. 662.) Therefore, in accordance with the clear provision above-
cited of section 6, No. 4, of General Orders, No. 58, the prosecution of the
appellee should have been and should be commenced in Nueva Ecija.

Besides the foregoing, the following observations may also be made: From
a reading of the two information in the two cases in question, it may be
seen that the appellee illegally took the carabaos from the owner thereof in
Gapan because the allegation to be found therein, particularly in one of the
informations (C.F.I. No. 5224; G.R. No. 45471), that the appellee "did, then
and there, voluntarily, maliciously, illegally and criminally, take, steal, and
carry away a male carabao branded as ................... with certificate No.
669261, dated at Pearanda, Nueva Ecija, on April 11, 1928, valued at
ninety pesos (P90), owned by Leon Ladores, without his knowledge and
consent, and to his damage and prejudice in the said sum of P90. The
commission of the crime having been commenced at Gapan, Nueva Ecija,
and completed at the municipality of Candaba, Pampanga," it to this effect.

There is not a single allegation or insinuation in the two informations from

which it might be deduced that the desire to gain was not that which led the
appellee to steal the animals. It is, therefore, natural and reasonable to
conclude that he took them with intent to gain. In so holding, we adopt the
same rule followed by the Supreme Court of Spain, which we have seen
applied in those cases to which its decisions of October 14, 1898, 18, 1899,
January 10, 1900, February 6, 1902, November 15, 1894, and others relate
and in which it was held that:

The intent to gain is the usual motive to be presumed from all furtive
taking of useful property appertaining to another, unless special
circumstance reveal a different intent on the part of the perpetrator.
(Decision of October 14, 1898.)

It being stated as a proven fact in the appealed decision that the

accused took two bundles of barley from a farm, it is clear that,
 without a declaration as also proven that he did so with a purpose
other than to gain and with the authorization of the owner, the
elements constituting the crime of theft are included in the word
"take." (Decision of October 18, 1899.)

The act of taking figs from the tree of another without his consent
constitutes asportation in which the intent to gain is inherent, which
intent is made manifest by the act of carrying them away. (Decision of
January 10, 1900.)

Although the asportation of a thing belonging to another without his

consent does not always imply the intent to gain on the part of the
perpetrator, who might have some other purpose in mind, when said
purpose is not shown, it is reasonable to believe that the taking was
made with that essential element of the crime of theft. (Decision of
February 6, 1902.)

Although the asportation of a thing appertaining to another without his

consent does not necessarily imply in all cases the intent to gain on
the part of its author, since his purpose might be different; when this
is not shown, but on the contrary, in order to justify his holding and
free disposition of the thing taken, he alleges title thereto by virtue of
a contract of purchase and sale which he has not been able to prove
beyond doubt, it is reasonable to infer that the taking was done with
intent to gain in the juridical sense which such concept has for
purposes of the crime of theft, whatever may be the class or condition
of the persons doing the illegal taking. (Decision of November 15,
1894.) (II Hidalgo, Codigo Penal, pp. 664, 665, 667, and 660.)

Practical reasons and considerations, however, require that no pass be

opened to the thief through which he may easily frustrate the right of the
owner of a stolen thing to recover it from him or to go after it, or which may
make if difficult, it not impossible, for him to secure the punishment of the
offender. By allowing the owner of the stolen thing to follow the thief no
matter how far from the scene of the crime the latter may have brought it, in
order to have him prosecuted which, surely, will be the effect of sustaining
a contrary opinion, is to put obstacles in his way precisely because this will
result in expenses and delay. If this were done, the thief would contrive in
all cases to carry as far as possible what he may have stolen so that he
would have greater chances of getting unpunished.
In conclusion, we are of the opinion and so hold that the sole court
possessing jurisdiction over the cases against the appellee for the theft of
the carabaos in question is not that of Pampanga, but that of Nueva Ecija in
which they should have been and must be instituted.

Wherefore, the appealed order is hereby affirmed, with costs de oficio. So

ordered.

Avancea, C.J., Villa-Real, Abad Santos, Imperial and Concepcion, JJ.,

concur.