THIRD DIVISION

[G.R. No. 149472. October 15, 2002]

JORGE SALAZAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
PUNO, J.:

In an information dated January 21, 1987, petitioner Jorge Salazar was charged with estafa
under Article 315 paragraph 1(b) of the Revised Penal Code. The information reads:

That on or about the 10th date of January 1986 in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being
the Vice President and Treasurer of Aurora/Uni-Group, Inc., received from Olivier Philippines
and Skiva International, Inc. as represented by Teresita M. Tujan the amount of $41,300.00 for
the sole purpose of meeting the cost of textile and labor in the manufacture of seven hundred
dozen stretch twill jeans which he (accused) is duty bound to deliver to said complainant, and the
accused once in possession of the same, far from complying from his obligation, with
unfaithfulness and abuse of confidence and to defraud said complainant, did, then and there
willfully and unlawfully and feloniously misappropriate, misapply and convert the same for his
own personal use and benefit despite repeated demands to return the said amount, failed and
refused and still fails and refuses to do so, to the damage and prejudice of said complainant, in
the aforementioned amount of $41,300.00 or its equivalent in Philippine currency.

Contrary to law.[1]

On arraignment, petitioner pleaded not guilty to the charge.

It appears that Skiva International, Inc. (Skiva) is a New York-based corporation which
imports clothes from the Philippines through its buying agent, Olivier (Philippines)
Inc.(Olivier). Aurora Manufacturing & Development Corporation (Aurora) and Uni-Group
Inc. (Uni-Group) are domestic corporations which supply finished clothes to Skiva. Mr.Werner
Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge Salazar, is
the Vice-President and Treasurer of Uni-Group and a consultant of Aurora.
Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora
and Uni-Group. When an order is procured for the delivery of clothes, Olivier, issues to the local
supplier, Aurora/Uni-Group, a Purchase Contract and Olivier issues to Skiva a Sales Contract. In
these transactions, payment is usually made by way of a letter of credit wherein the supplier is
paid only upon the presentation of the proper shipping documents to the designated bank.[2]
In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered
sometime in January 1986. Olivier, in turn, through its Officer-in-Charge, Ms. Teresita Tujan,
contacted Aurora and Uni-Group to supply the jeans. [3] Thus, a Purchase Contract dated
December 18, 1985 was issued by Olivier to Uni-Group wherein Uni-Group was to supply 700
dozens of three (3) different designs of Ladies Basic 5 Pockets Stretch Twill Jeans payable by
means of a letter of credit at sight.[4] The Purchase Contract was confirmed by Mr. Lettmayr on
December 30, 1985 .[5] A Sales Contract was also issued by Olivier to Skiva containing the same
terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Chehebar of
Skiva.[6]
On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the
amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to

1
US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw materials to
manufacture the jeans.[7] It was also agreed that the amount advanced by Skiva represents
advance payment of its order of 700 dozens of ladies jeans. [8] Skiva then issued a check in the
said amount payable to Uni-Group. [9] However, due to the length of time needed for the check to
be cleared, the parties made arrangements to remit the funds instead by way of telegraphic
transfer. [10] Thus, the check issued by Skiva was returned by Mr. Lettmayr[11] and as agreed, the
funds were remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint
account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.[12]
On January 16, 1986, petitioner, who had possession and control of the passbook of the said
joint account, withdrew the amount of US$21,675.21[13] and on January 22, 1986, petitioner
withdrew the amount of US$20,000.00.[14] The prosecution also presented evidence that
subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the
joint account as telegraphic transfer fee and commission for the remittance of the funds to
another account.[15]
In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of
the jeans. She learned that only 3,000 meters out of the 10,000 meters of Litton fabrics required
for the order were purchased from Litton Mills by the petitioner.[16] 3,000 meters of Litton
fabrics are enough to produce only 200 dozens of ladies jeans - an amount insufficient to satisfy
the order of Skiva of 700 dozens of ladies twill jeans.[17] Upon inquiry with Mr. Lettmayr, the
latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of
securing the materials. [18] However, Ms. Tujan could not locate the petitioner.[19]
Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group
through its President, Mr. Lettmayr, to return the money advanced in the amount of
US$41,300.00.[20]
For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the
US$41,300.00 despite demand, Skiva, through its local agent represented by Ms. Tujan, filed a
criminal complaint for estafa against Mr. Lettmayr and petitioner. After preliminary
investigation, the Public Prosecutor dismissed the complaint against Mr. Lettmayr and an
information was filed against petitioner.[21]
After trial, the lower court convicted herein petitioner of estafa under Article 315 paragraph
1 (b) of the Revised Penal Code, sentencing him to suffer the indeterminate penalty of
imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal as the maximum and to pay
Uni-Group and Aurora the amount of P595,259.00. [22] On March 13, 1997, the lower court
denied petitioners Motion for Reconsideration. [23] On appeal, the Court of Appeals affirmed in
toto the decision of the trial court and denied petitioners Motion for Reconsideration.[24]
Aggrieved by the aforementioned rulings, petitioner files the instant petition for review.
The petition is bereft of merit.
The following are the elements of estafa under Article 315 paragraph 1 (b) of the Revised
Penal Code: a) that money, goods or other personal property is received by the offender in trust,
or on commission, or for administration, or under any other obligation involving the duty to
make delivery of, or to return the same; b) that there be misappropriation or conversion of such
money or property by the offender; or denial on his part of such receipt; c) that such
misappropriation or conversion or denial is to the prejudice of another; and d) there is demand
made by the offended party to the offender.[25]
We agree with the trial courts finding that the contract between Skiva and Aurora/Uni-
Group was one of sale.[26] Thus, upon remittance by Skiva of its advance payment in the amount
of US$41,300.00, ownership thereof was transferred to Aurora/Uni-Group and Aurora/Uni-
Group had no obligation to account or deliver the money to Skiva, its only obligation under the
contract of sale being to deliver the 700 dozens of ladies jeans. However, petitioner, as an
employee of Aurora/Uni-Group who was aware of the specific purpose of the remittance, upon

2
receipt of the amount, had the obligation to account for the proceeds thereof to Aurora/Uni-
Group.
The records establish that: 1) the amount of US$41,300.00 was remitted by telegraphic
transfer to the joint account of the petitioner and his wife and Mr. and Mrs. Werner
Lettmayr;[27] 2) the said amount was remitted as advance payment by Skiva for the jeans it
ordered;[28] and 3) the amount of US$21,675.21 was withdrawn by petitioner on January 16,
1986 and the amount of US$20,000.00 was withdrawn by petitioner on January 22, 1986.[29] In
fact, petitioner himself admits having withdrawn from the joint account on two occasions after
the remittance was made.[30] Petitioner further admits having made such withdrawal for the
purpose of purchasing materials to be used for the jeans ordered by Skiva and a portion thereof
to be given to Aurora.[31] Thus, upon withdrawal by petitioner of the amounts advanced by Skiva,
petitioner received the same in trust with an obligation to return the funds or account for the
proceeds thereof.
With respect to the element of conversion or misappropriation of the amount received,
petitioner claims that a portion of the amount was used to purchase 3,000 meters of Litton fabrics
and the balance was returned to Aurora.[32] However, upon cross-examination, petitioner was
unable to recall the amount paid for the purchase of the fabrics or the amount given to Aurora
nor was petitioner able to identify whether payment for the purchase of fabric or the return of
funds to Aurora was made in cash or in check.[33]
In fact, except for his bare testimony, petitioner failed to present evidence to support his
defense that payment for the purchase of fabrics had been made or that the balance of the amount
received by petitioner was given to Aurora. The only reason why the Court is inclined to believe
that 3,000 meters of Litton fabrics were purchased for the manufacture of the jeans is because the
witness for the prosecution, Ms. Tujan, independently verified the purchase of the said materials
from Litton Mills.[34]
To support petitioners claim that the remainder of the amount withdrawn was returned to
Aurora, petitioner presents a letter dated October 15, 1986 from the Philippine Veterans
Investment Development Corporation (PHIVIDEC) addressed to Mr. Werner Lettmayr,
President of Aurora, regarding the financial audit of Aurora, wherein the amount of P850,780.00
is indicated as an amount due to Uni-Group.[35] Atty. Cesar Singson, witness for the defense,
testified that the amount of P850,780.00 indicated in the said letter represents the peso equivalent
of the advance payment of US$41,300.00 made by Skiva to Uni-Group.[36]
We agree with the trial court that the probative value of the said letter is nil. The trial court
correctly ruled:

The court doubts the probative value of the contents of [the letter] because the person who
testified thereon, a certain Atty. Cesar Singson, was not the one who prepared the document. He
was only one [of] those who was furnished a copy thereof. Moreover, when said piece of
evidence was presented, there were inconsistencies in the testimony of the [petitioner] as to how
he was able to procure said documents. In a hearing he testified that he personally procured said
letter from the records of PHIVIDEC and the person who certified said copy signed the same in
his presence.On cross examination, he testified that he did not personally obtain said letter and
he was not there when the person who authenticated said letter signed it and that it was only
given to him by his former counsel. This is further muddled when Atty. Singson testified that he
was the one who authenticated said document on December 7, 1987 from his copy upon the
request of the accused.Atty. Singson has already severed his ties with PHIVIDEC on the latter
part of the year 1986. This means that Atty. Singson was no longer connected with PHIVIDEC
when he authenticated said document based on his copy which implies that the document was
not obtained from the records of PHIVIDEC.[37]

Further, even assuming that the letter may be given credence, we are unable to see any
indication that the amount of P850,780.00 or at least a portion thereof (assuming that the said
amount represents the advance payment made by Skiva) has been received by Aurora and/or
Uni-Group from petitioner. At most, what said letter indicates is that Aurora acknowledges

3
liability to Uni-Group in the said amount or that said amount has been received by Uni-Group
from Skiva as advance payment which Uni-Group may have, in turn, assigned to Aurora. The
glaring fact remains that nowhere can it be seen from the said letter that there was actual receipt
by Aurora from petitioner of the amount indicated therein, or at least a portion thereof, after
deduction of the cost of the materials purchased to manufacture the jeans ordered.
Moreover, the prosecution was able to establish that upon withdrawal of the said amounts,
petitioner caused the telegraphic transfer of the amount to another account prior to petitioners
receipt of the amount in pesos.[38] In fact, upon being confronted by the prosecution with
Exhibits R and T which are account debit forms showing that certain amounts were deducted by
Citibank N.A. from the joint account as telegraphic transfer fee for the amounts withdrawn by
petitioner, petitioner admitted that upon withdrawal, the dollars was converted by the
bank, remitted abroad, and given to me in pesos.[39] The act committed by petitioner of
remitting the funds abroad constitutes an act of conversion or misappropriation. This Court has
previously held that even a temporary disturbance of property rights constitutes
misappropriation.[40] The words convert and misappropriate as used in Article 315 paragraph 1
(b) of the Revised Penal Code, connote an act of using or disposing of anothers property as if it
were ones own, or of devoting it to a purpose or use different from that agreed upon. To
misappropriate a thing of value for ones own use includes, not only conversion to ones personal
advantage but also every attempt to dispose of the property of another without right.[41] Thus,
when petitioner caused the remittance of the amount withdrawn to another account, such act
constituted conversion or misappropriation or unauthorized disposition of the property, contrary
to the purpose for which the property was devoted.
Petitioner also claims that the third element of estafa is not present as the party prejudiced,
in accordance with the findings of the trial court and the Court of Appeals, is Skiva, when
petitioner had no obligation to account to Skiva the proceeds of the amount
withdrawn. Petitioner argues that consistent with the ruling of the lower court that Aurora is the
owner of the sum remitted as advance payment, petitioner had the obligation to account for the
proceeds thereof to Aurora and not to Skiva. [42] Thus, petitioner maintains that a conviction for
estafa will not hold as no damage to Aurora was alleged in the information nor did the
prosecution present any proof of damage to Aurora.
We are not persuaded.
As held in the case of First Producers Holdings Corporation v. Co,[43] in estafa, the
person prejudiced or the immediate victim of the fraud need not be the owner of the goods
misappropriated. Thus, Article 315 of the Revised Penal Code provides that any person who
shall defraud another by any means mentioned [in Article 315] may be held liable for
estafa. The use by the law of the word another instead of the word owner means that as an
element of the offense, loss should have fallen upon someone other than the perpetrator of the
crime. [44] Thus, the finding of the trial court that Skiva, the party prejudiced, is not the owner of
the sum misappropriated will not nullify the conviction of the petitioner.
Petitioner claims that the element of demand is absent as no demand was made by Skiva on
petitioner. Petitioner argues that although demand was made by Skiva to Aurora/Uni-Group
and/or Mr. Lettmayr, no demand was shown to have been made on petitioner himself.
We hold that the element of demand was satisfied when demand was made upon
Aurora/Uni-Group. To require Skiva to make a demand on petitioner himself would be
superfluous and would serve no other additional purpose. We note that at the time when Ms.
Tujan was following up on the delivery of the jeans, except for the advice of Mr. Lettmayr to
direct her queries to petitioner who was in charge of procuring the materials for the jeans, Ms.
Tujan could not have known that petitioner may be primarily responsible for the non-delivery of
the jeans. As far as Skiva/Olivier was concerned, it was the obligation of Aurora/Uni-Group to
deliver the jeans, which at the time of demand, was not complied with. Thus, Skiva/Olivier acted
appropriately when it demanded from Aurora/Uni-Group the return of the amount advanced.

4
 To require that demand should have been made by Skiva/Olivier upon petitioner himself to
uphold the conviction of the trial court is to sustain a blind application of the law.In the case
of United States v. Ramirez,[45] this Court held:

The consummation of the crime of estafa does not depend on the fact that a request for the return
of the money is first made and refused in order that the author of the crime should comply with
the obligation to return the sum misapplied. The appropriation or conversion of money received
to the prejudice of the owner thereof are the sole essential facts which constitute the crime of
estafa, and thereupon the author thereof incurs the penalty imposed by the Penal Code.

Further, in Tubbs v. People and Court of Appeals[46] this Court ruled that the law does not
require a demand as a condition precedent to the crime of embezzlement. It so happens only that
failure to account, upon demand for funds and property held in trust, is circumstantial evidence
of misappropriation.
In Benito Sy y Ong v. People and Court of Appeals,[47] we also held that in a prosecution
for estafa, demand is not necessary when there is evidence of misappropriation.
Petitioner likewise maintains that Skiva has no authority to institute the present action as
estafa was not committed against Skiva but against Aurora/Uni-Group on the basis of the finding
that the transaction between Skiva and Aurora/Uni-Group was one of sale. Thus, petitioner
argues that pursuant to Section 3, Rule 110 of the Rules on Criminal Procedure,[48] the complaint
should not have been instituted by Skiva as it is not the offended party contemplated by the
Rules and petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn
from the joint account.[49]
The complaint referred to in Rule 110 contemplates one that is filed in court to commence a
criminal action in those cases where a complaint of the offended party is required by law, instead
of an information which is generally filed by a fiscal.[50] It is not necessary that the proper
offended party file a complaint for purposes of preliminary investigation by the fiscal. The rule is
that unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any
competent person may file a complaint for preliminary investigation.[51]
Thus, as a general rule, a criminal action is commenced by a complaint or information, both
of which are filed in court. If a complaint is filed directly in court, the same must be filed by the
offended party and in case of an information, the same must be filed by the fiscal. However, a
complaint filed with the fiscal prior to a judicial action may be filed by any person.[52] Thus, in
the case at bar, the complaint was validly filed by Skiva despite the finding of the lower court
that petitioner had no obligation to account to Skiva.
WHEREFORE, the instant petition is DENIED and the appealed judgment of the court a
quo finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315
paragraph 1 (b) of the Revised Penal Code is AFFIRMED. Costs against appellant.
SO ORDERED.

5
 EN BANC

[G.R. No. 122274. July 31, 1996]

SUSAN V. LLENES, petitioner, vs. HON. ISAIAS P. DICDICAN, Presiding Judge,

Regional Trial Court of Cebu, Branch 11, HON. AMADO B. BAJARIAS, SR.,
Presiding Judge, Municipal Trial Court, Branch 7, and VIVIAN G.
GINETE, respondents.

DECISION
DAVIDE, JR., J.:

The key issue raised in this special civil action for certiorari under Rule 65 of the Rules of
Court is whether the filing with the Office of the Ombudsman of a complaint against a
government official for grave oral defamation interrupts the period of prescription of such
offense.
We find this issue to be important enough to merit our attention. We thus resolved to give
due course to the petition, consider the private respondent's comment on the petition[1] as the
answer thereto, and decide it on the basis of the pleadings which have sufficiently discussed the
issue.
The factual and procedural antecedents are not disputed.
On 13 October 1993, private respondent Vivian G. Ginete, then officer-in-charge of the
Physical Education and School Sports (PESS) Division of the Regional Office of Region VII in
Cebu City of the Department of Education, Culture and Sports (DECS), filed with the Office of
the Deputy Ombudsman for the Visayas (hereinafter Ombudsman-Visayas) a complaint for grave
oral defamation[2] allegedly committed on 23 September 1993 by petitioner Susan V. Llenes, an
Education Supervisor II of the same Regional Office.
The petitioner was required to file a counter-affidavit pursuant to Administrative Order No.
7 of the Office of the Ombudsman, but she failed to do so.
In his resolution of 15 March 1994,[3] Antonio B. Yap, Graft Investigation Officer I of the
said office, recommended that the case be indorsed to the Office of the City Prosecutor of Cebu
City for the filing of the necessary information against the petitioner. This resolution was
approved by the Deputy Ombudsman-Visayas.
On 28 March 1994, the City Prosecutor of Cebu City filed with the Municipal Trial Court
(MTC) in Cebu City an information[4] for grave oral defamation against the petitioner. This was
docketed as Criminal Case No. 35684-R and assigned to Branch 7 thereof.
On 30 May 1994, the petitioner filed a motion to quash[5] the information on the ground that
the "criminal action or liability" has been extinguished. She contended that under Article 90 of
the Revised Penal Code, the offense of grave oral defamation prescribes in months and that since
the information was filed only on 28 March 1994, or 186 days or 6 months and 6 days after its
alleged commission, the crime had then already prescribed. In support thereof, she cited the
decision in "Zalderia[6] vs. Reyes, Jr., G.R. No. 102342, July 3, 1992, 211 SCRA 277," wherein
this Court ruled that the filing of an information at the fiscal's office will not stop the running of
the prescriptive period for crimes.
In her opposition,[7] the private respondent cited Section 1, Rule 110 of the Rules of Court
which provides, inter alia, that for offenses not subject to the rule on summary procedure in
special cases and which fall within the jurisdiction of Municipal Trial Courts and Municipal
Circuit Trial Courts, the filing of the complaint directly with the said court or with the fiscal's
office interrupts the period of prescription of the offense charged. The filing of the complaint by

6
the private respondent with the Office of the Deputy Ombudsman-Visayas was equivalent to the
filing of a complaint with the fiscal's (now prosecutor's) office under said Section 1 pursuant to
its powers under Section 15(1) of R.A. No. 6770, otherwise known as the Ombudsman Act of
1989. The private respondent further claimed that Zaldivia is inapplicable because it involves an
offense covered by the rule on summary procedure and it explicitly stated that Section 1 of Rule
110 excludes cases covered by the Rule on Summary Procedure.
The Municipal Trial Court, per public respondent Judge Bajarias, denied the motion to
quash in the order of 18 July 1994.[8] It fully agreed with the stand of the private respondent.
Her motion to reconsider[9] the above order having been denied on 29 November
1994,[10] the petitioner filed with the Regional Trial Court (RTC) of Cebu a special civil action
for certiorari,[11] which was docketed therein as Civil Case No. CEB-16988. The case was
assigned to Branch 11.
In its decision of 3 July 1995,[12] the RTC, per public respondent Judge Isaias P. Dicdican,
affirmed the challenged orders of Judge Bajarias of 18 July 1994 and 29 November 1994. It
ruled that the order denying the motion to quash is interlocutory and that the petitioner's remedy,
per Acharon vs. Purisima,[13] reiterated in People vs. Bans,[14] was to go to trial without prejudice
on her part to reiterate the special defense she had invoked in her motion to quash and, if after
trial on the merits an adverse decision is rendered, to appeal therefrom in the manner authorized
by law. Besides, the petitioner has not satisfactorily and convincingly shown that Judge Bajarias
has acted with grave abuse of discretion in issuing the orders considering that the ground
invoked by her does not appear to be indubitable. And even assuming that the MTC erred in
venturing an opinion that the filing of the complaint with the Office of the Ombudsman is
equivalent to the filing of a complaint with the fiscal's office, such error is merely one of
judgment. For, there is no decided case on the matter, and the substantive laws have not clearly
stated as to what bodies or agencies of government should complaints or informations be filed in
order that the period of prescription of crimes or offenses should be considered interrupted.
Article 91 of the Revised Penal Code simply states that the prescriptive period shall be
interrupted by the "filing of the complaint or information" and has not specified further where
such complaint or information should be filed.
Since the Regional Trial Court denied her motion to reconsider[15] the decision in the order
of 23 August 1995,[16] the petitioner filed this special civil action wherein she reiterates the
arguments she adduced before the two courts below. The private respondent likewise did nothing
more in her responsive pleading than reiterate what she had raised before the said courts.
The basic substantive laws on prescription of offenses are Articles 90 and 91 of the Revised
Penal Code for offenses punished thereunder, and Act No. 3326, as amended, for those penalized
by special laws. Under Article 90 of the Revised Penal Code, the crime of grave oral defamation,
which is the subject of the information in Criminal Case No. 35684-R of the MTC of Cebu,
prescribes in 6 months. Since Article 13 of the Civil Code provides that when the law speaks of
months it shall be understood to be of 30 days, then grave oral defamation prescribes in 180
days.[17] Article 91 of the Revised Penal Code provides:

ART. 91. Computation of prescription of offenses. The period of prescription shall commence to
run from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being convicted or
acquitted, or are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.

In the instant case, the alleged defamatory words were directly uttered in the presence of the
offended party on 23 September 1993. Hence, the prescriptive period for the offense started to
run on that date.

7
 The matter of interruption of the prescriptive period due to the filing of the complaint or
information had been the subject of conflicting decisions of this Court. In People vs.
Tayco,[18] People vs. Del Rosario,[19] and People vs. Coquia,[20] this Court held that it is the filing
of the complaint or information with the proper court, viz., the court having jurisdiction over the
crime, which interrupts the running of the period of prescription. On the other hand, in the first
case of People vs. Olarte,[21] a case for libel, this Court held that the filing of the complaint with
the justice of the peace court even for preliminary investigation purposes only interrupts the
running of the statute of limitations.
However, the decision of 28 February 1967 of this Court in the second case of People vs.
Olarte[22] resolved once and for all what should be the doctrine, viz., that the filing of the
complaint with the municipal trial court even for purposes of preliminary investigation only
suspends the running of the prescriptive period. Thus:

Analysis of the precedents on the issue of prescription discloses that there are two lines of
decisions following differing criteria in determining whether prescription of crimes has been
interrupted. One line of precedents holds that the filing of the complaint with the justice of the
peace (now municipal judge) does interrupt the course of the prescriptive term: People vs. Olarte,
L-13027, June 30, 1960 and cases cited therein; People vs. Uba, L-13106, October 16, 1959;
People vs. Aquino, 68 Phil. 588, 590. Another series of decisions declares that to produce
interruption the complaint or information must have been filed in the proper court that has
jurisdiction to try the case on its merits: People vs. Del Rosario, L-15140, December 29, 1960;
People vs. Coquia, L-15456, June 29, 1963.

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this
Court has reexamined the question and, after mature consideration, has arrived at the conclusion
that the true doctrine is, and should be, the one established by the decisions holding that the
filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary
examination or investigation, should, and does, interrupt the period of prescription of the
criminal responsibility, even if the court where the complaint or information is filed cannot 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.

And it is no argument that Article 91 also expresses that the interrupted prescription "shall
commence to run again when such proceedings terminate without the accused being convicted or
acquitted," thereby indicating that the court in which the complaint or information is filed must
have power to acquit or convict the accused. Precisely, the trial on the merits usually terminates
in conviction or acquittal, not otherwise. But it is in the court conducting a preliminary
investigation where the proceedings may terminate without conviction or acquittal, if the court
should discharge the accused because no prima facie case has been shown.

Considering the foregoing reasons, the Court hereby overrules the doctrine of the cases of
People vs. Del Rosario, L-15140, December 29, 1960; and People vs. Coquia, L-15456,
promulgated June 29, 1963.

Then, in its decision of 30 May 1983 in Francisco vs. Court of Appeals,[23] this Court not
only reiterated Olarte of 1967 but also broadened its scope by holding that the filing of the
complaint in the fiscal's office for preliminary investigation also suspends the running of the
prescriptive period. Thus:

8
Article 91 of the Revised Penal Code provides that . . . .

Interpreting the foregoing provision, this Court in People vs. Tayco held that the complaint or
information referred to in Article 91 is that which is filed in the proper court and not
the denuncia or accusation lodged by the offended party in the Fiscal's Office. This is so,
according to the court, because under this rule it is so provided that the period shall commence to
run again when the proceedings initiated by the filing of the complaint or information terminate
without the accused being convicted or acquitted, adding that the proceedings in the Office of the
Fiscal cannot end there in the acquittal or conviction of the accused.

The basis of the doctrine in the Tayco case, however, was disregarded by this Court in the Olarte
case, cited by the Solicitor General. It should be recalled that before the Olarte case, there was
diversity of precedents on the issue of prescription. One view declares that the filing of the
complaint with the justice of the peace (or municipal judge) does interrupt the course of
prescriptive term. This view is found-in People v. Olarte, L-13027, June 30, 1960 and cases cited
therein; People v. Uba, L-13106, October 16, 1959; People v. Aquino, 68 Phil. 588, 590. The
other pronouncement is that to produce interruption, the complainant or information must have
been filed in the proper court that has jurisdiction to try the case on its merits, found in the cases
of People v. del Rosario, L-15140, December 29, 1960; People v. Coquia, L-15456, June 29,
1963.

The Olarte case set at rest the conflict views, and enunciated the doctrine aforecited by the
Solicitor General. The reasons for the doctrine which We find applicable to the case at bar read:

xxx xxx xxx

As is a well-known fact, like the proceedings in the court conducting a preliminary investigation,
a proceeding in the Fiscal's Office may terminate without conviction or acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons logically call with equal force, for the express overruling also
of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint
or denuncia by the offended party with the City Fiscal's Office which is required by law to
conduct the preliminary investigation does not interrupt the period of prescription. In chartered
cities, criminal prosecution is generally initiated by the filing of the complaint or denuncia with
the city fiscal for preliminary investigation. In the case of provincial fiscals, besides being
empowered like municipal judges to conduct preliminary investigations, they may even reverse
actions of municipal judges with respect to charges triable by Courts of First Instance x x x.

Clearly, therefore, the filing of the denuncia or complaint for intriguing against honor by the
offended party, later changed by the Fiscal to grave oral defamation, even if it were in the
Fiscal's Office, 39 days after the alleged defamatory remarks were committed (or discovered) by
the accused interrupts the period of prescription. (Italics supplied)

This Court reiterated Francisco in its resolution of 1 October 1993 in Calderon-Bargas vs.
Regional Trial Court of Pasig, Metro Manila.[24]
The procedural law articulating Francisco is the last paragraph of Section 1, Rule 110
(Prosecution of Offenses) of the Rules of Court. We quote the entire Section for a better
understanding of the last paragraph:

SEC. 1. How instituted. For offenses not subject to the rule on summary procedure in special
cases, the institution of criminal actions shall be as follows:

9
 (a) For offenses falling under the jurisdiction of the Regional Trial Courts, 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 or information 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 shall interrupt the period of prescription of the offense charged.
(Italics supplied)

The rule, however, is entirely different under Act No. 3326, as amended, whose Section 2
explicitly provides that the period of prescription shall be interrupted by the institution of judicial
proceedings, i.e., the filing of the complaint or information with the court. The said section reads:

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 double
jeopardy. (Italics supplied)

And so, in Zaldivia vs. Reyes,[25] this Court held that the proceedings referred to in said
Section 2 are "judicial proceedings," which means the filing of the complaint or information with
the proper court.
Zaldivia, however, provides no safe refuge to the petitioner, and her invocation thereof is
misplaced. In the first place, it involved a violation of an ordinance, which is covered by the Rule
on Summary Procedure. By its express mandate, Section 1, Rule 110 of the Rules of Court does
not apply to cases covered by the Rule on Summary Procedure. Second, since the ordinance in
question partakes of a special penal statute Act No. 3326 is then applicable; hence, it is the filing
in the proper court of the complaint or information which suspends the running of the period of
prescription. In Zaldivia, this Court categorically interpreted Section 9 of the Rule on Summary
Procedure to mean 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," which is in consonance with Section 2
of Act No. 3326.
What is then left to be determined is whether the filing of the private respondent's complaint
for grave oral defamation with the Office of the Ombudsman-Visayas is equivalent to filing the
complaint in the prosecutor's office such that it interrupted the prescriptive period for grave oral
defamation.
Sections 12 and 13(1), Article XI of the Constitution provide:

SEC. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the Government,
or any subdivision or instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the action taken and the
result thereof.

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears
to be illegal, unjust, improper, or inefficient.

10
 Corollarily, Sections 13, 15(1), and 16 of R.A. No. 6770, otherwise known as The
Ombudsman Act of 1989, which Congress enacted pursuant to paragraph 8[26] of the
aforementioned Section 13, Article XI of the Constitution, provide as follows:

SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote efficient service by the Government
to the people.

xxx xxx xxx

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following
powers, functions and duties:

1. Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage from any investigatory
agency of the Government, the investigation of such cases.

SEC. 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance,
misfeasance, and nonfeasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure in office.

Needless to state, these broad constitutional and statutory provisions vest upon the
Ombudsman and his Deputies the power to initiate or conduct preliminary investigations in
criminal cases filed against public officers or employees, including government-owned or
controlled corporations. Thus, in Deloso vs. Domingo,[27] this Court held:

As protector of the people, the office of the Ombudsman has the power, function and duty "to act
promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to
"investigate x x x any act or omission of any public official x x x when such act or omission
appears to be illegal, unjust, improper or inefficient." (Sec. 13[1]) The Ombudsman is also
empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to embrace any
crime committed by a public official. The law does not qualify the nature of the illegal act or
omission of the public official or employee that the Ombudsman may investigate. It does not
require that the act or omission be related to or be connected with or arise from, the performance
of official duty. Since the law does not distinguish, neither should we.

It must, however, be stressed that the authority of the Ombudsman to investigate any illegal
act or omission of any public officer is not an exclusive authority; rather, it is a "shared or
concurrent authority in respect of the offense charged."[28]
A public officer, as distinguished from a government "employee," is a person whose duties
involve the exercise of discretion in the performance of the functions of government.[29] The
petitioner, being an Education Supervisor II of the Regional Office of Region VII of the DECS,
is a public officer. The Ombudsman-Visayas then has authority to conduct preliminary
investigation of the private respondent's complaint against the petitioner for grave oral
defamation. Undoubtedly, the rationale of the first Olartecase, reiterated as the controlling
doctrine in the second Olarte case, which was broadened in Francisco and reiterated
in Calderon-Bargas, must apply to complaints filed with the Office of the Ombudsman against

11
public officers and employees for purposes of preliminary investigation. Accordingly, the filing
of the private respondent's complaint for grave oral defamation against the petitioner with the
Ombudsman-Visayas tolled the running of the period of prescription of the said offense. Since
the complaint was filed on 13 October 1993, or barely twenty days from the commission of the
crime charged, the filing then of the information on 28 March 1994 was very well within the six-
month prescriptive period.
WHEREFORE, the instant petition is DISMISSED for want of merit.
No pronouncement as to costs.
SO ORDERED.

12
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,

13
 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

14
 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

15
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.

16
 [G.R. No. 138596. October 12, 2000]

SR. FIDELIS ARAMBULO, petitioner, vs. HON. HILARION LAQUI, SR. HELEN
OJARIO and SR. BERNADINE JUAREZ, respondents.

DECISION
GONZAGA-REYES, J.:

Before us is a Petition for Review on Certiorari of the Decision[1] of the Court of

Appeals[2] in CA-G.R. SP No. 47089 promulgated on March 01, 1999 and the subsequent
Resolution[3]dated May 11, 1999 denying petitioners Motion for Reconsideration.
The facts of the case, as summarized by the appellate court, are as follows:

On February 2, 1994, private respondents filed a joint complaint-affidavit for libel against
petitioners before the Office of the City Prosecutor of Quezon City alleging that the latter
circulated on December 21, 1993 a letter containing malicious imputations against them.

An information for libel then was filed before the Metropolitan Trial Court of Quezon City on
May 18, 1994.

After the prosecution presented its evidence, petitioner filed a Demurrer to Evidence. Without
resolving the incident, the Metropolitan Trial Court in its Order dated November 9, 1996 ruled
that it had no jurisdiction over the case as the same falls under the original and exclusive
jurisdiction of the Regional Trial Court, and ordered that the case be forwarded to the RTC for
further proceedings.

On November 29, 1996, the case was forwarded to branch 215 Regional Trial Court of Quezon
City docketed as Criminal Case No. 96-6870.

On January 3, 1997, petitioner filed a Motion to Dismiss on the ground of lack of jurisdiction
and prescription of the offense of Libel. The RTC dismissed the case in an Order dated April 2,
1997 but, stating that the offense had not yet prescribed, ordered the City Prosecutor of Quezon
City to re-file the Information for Libel with the RTC.

On April 27, 1997, the Information for Libel was re-filed with respondent court docketed as
Criminal Case No. Q-97-70948.

On June 17, 1997, petitioner filed a Motion to quash on the ground of prescription. The motion
was denied in the assailed Resolution dated October 3, 1997.

Petitioners Motion for Reconsideration was also denied in the other Assailed Order dated
December 4, 1997.[4]

Not satisfied with the Resolution and Order of the trial court, herein petitioner appealed to
the Court of Appeals raising the issue of whether or not public respondent committed grave
abuse of discretion or grossly erred in holding that the offense of libel in the instant case has not
yet prescribed.[5] The Court of Appeals, in its decision dated March 01, 1999, upheld the
contention of the trial court that the offense of libel had not yet prescribed and consequently,
dismissed the said petition. The appellate court likewise denied herein petitioners Motion for
Reconsideration in its Resolution dated May 11, 1999.[6]
Petitioner is now before this Court seeking a reversal of the decision of the Court of Appeals
and contending that -
I.

17
THE COURT OF APPEALS ERRED IN RULING THAT THE CRIME OF LIBEL HAS NOT
YET PRESCRIBED.

II.

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER HAS NOT BEEN
DENIED HER CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.[7]

Under Article 90 of the Revised Penal Code, as amended, the crime of libel prescribes in
one (1) year, to wit:

ART. 90. Prescription of crime.- Crimes punishable by death, reclusion perpetua or reclusion
temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in 10 years; with the exception of
those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year. (underscoring supplied)

The said prescriptive period is computed under Article 91 of the Revised Penal Code, as
follows:

Art. 91. Computation of prescription of offenses. - The period of prescription shall commence to
run from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall proceed to
run again when such proceedings terminate without the accused being convicted or acquitted, or
are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.

In the case at bench, the offense of libel allegedly occurred on December 21, 1993 when
petitioner circulated a letter containing allegedly malicious imputations against private
respondents Srs. Helen Ojario and Bernadine Juarez. At this point, the period of prescription for
the alleged crime had already started to run.
The one-year period of prescription for the crime was interrupted on February 2, 1994 when
respondents filed a joint complaint-affidavit[8] for libel against petitioner before the Office of the
city Prosecutor in Quezon city. At this point, the prescription period had already run for forty-
two (42) days.
A preliminary investigation by the Office of the City prosecutor was thus conducted. On
April 27, 1994, Asst. City Prosecutor Ma. Aurora Escasa-Ramos issued a Resolution stating that
probable cause exists against petitioner and recommended the filing of an information for libel
against her. Consequently, an information[9] for libel was filed against petitioner on May 18,
1994 before the Metropolitan Trial Court of Quezon City, Branch 32[10]
Despite the fact that the Metropolitan Trial Court had no jurisdiction over the crime of libel,
the said court proceeded to conduct trial on the merits. After the prosecution had rested,
petitioner filed a Demurrer to Evidence dated September 18, 1996. However, instead of acting on
the said demurrer, the Metropolitan Trial court, on November 08, 1996, issued an Order[11] ruling
that it had no jurisdiction over the crime of libel as the same falls under the exclusive jurisdiction
of the Regional Trial Court. Instead of dismissing the case outright, the MTC ordered the
forwarding of the records of the case to the Regional Trial Court for further proceedings. The
case was eventually raffled off to Branch 215 of the Regional Trial Court of Quezon City[12]

18
 On the basis of a Motion to Dismiss[13] filed by petitioner, Branch 215 of the Regional Trial
Court dismissed the case on April 2, 1997 on the ground of lack of jurisdiction as the information
against petitioner should have been re-filed anew. The court ruled, however, that the crime had
not yet prescribed and ordered the re-filling of the case[14]. On April 27, 1997, the Office of the
City Prosecutor re-filed the case with the Regional Trial Court and eventually the same was
raffled to Branch 218 of the said court[15]. Petitioner tried to have this case dismissed on the
ground of prescription but her motion to quash[16]the information was denied by Branch 218 of
the Quezon City Regional Trial Court in a Resolution[17]dated October 3, 1997. The denial by the
Regional Trial Court of petitioners motion to quash was subsequently upheld by the Court of
Appeals.
It is the contention of petitioner that the prescription period for the crime of libel charged
against her commenced to run again when the Assistant City prosecutor recommended the filing
of the information for libel. Petitioner further argues that the prescriptive period could have been
interrupted again had the information been filed with the Regional Trial Court, the court with the
proper jurisdiction to try the case for libel. Considering however that the case was filed before
the Metropolitan Trial Court, which under the law does not have jurisdiction over the crime of
libel, the period of prescription continued to run its course. Consequently, petitioner concludes
that when the information for libel was finally filed with the Regional Trial Court, the crime had
already prescribed and the State can no longer pursue the case against her.
In support of her arguments, petitioner questions the reliance made by the Regional Trial
Court and the Court of Appeals in the landmark case of People vs. Olarte[18]Petitioner submits
that the adherence to the Olarte case must be examined considering that in the said case, the
principal issue was whether or not the filing of a complaint in the Municipal Trial Court for
purposes of preliminary investigation, interrupts the period of prescription of a crime. Petitioner
argues that the cited case is inapplicable as it is not disputed in the case at bench that the period
of prescription was interrupted during the process of preliminary investigation.
We are not persuaded.
In the landmark case of People vs. Olarte, this Court speaking through Justice J.B.L. Reyes,
finally resolved the then conflicting views as to whether or not the filing of a complaint with the
Municipal Trial Court for purposes of preliminary investigation suspends the running of the
prescriptive period for the crime. The Court restated the correct and prevailing doctrine, as
follows:

In view of this diversity of precedents, and in order to provide guidance for the Bench and Bar,
this Court has reexamined the question and, after mature consideration, has arrived at the
conclusion that the true doctrine is, and should be, the one established by the decisions holding
that the filing of the complaint with 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 the 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 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.

And it is no argument that Article 91 also expresses that the interrupted prescription shall
commence to run again when such proceedings terminate without the accused being convicted or
acquitted, thereby indicating that the court in which the complaint or information is filed must
have the power to convict or acquit the accused. Precisely, the trial on the merits usually
terminates in conviction or acquittal, not otherwise. But it is in the court conducting a

19
preliminary investigation where the proceedings may terminate without conviction or acquittal, if
the court should discharge the accused because no prima facie case had been shown.

Subsequently, this Court, in Francisco vs. Court of Appeals[19], broadened the scope
of Olarte by holding that the filing of the complaint with the fiscals office also suspends the
running of the prescriptive period.
Petitioner insists that the ruling in Olarte with respect to the interruption of the prescriptive
period is not applicable. In the case at bench, the fact that the period of prescription was
interrupted by the filing of private respondents joint affidavit with the Quezon City Prosecutors
Office is not disputed. The Olarte case, however, makes several other pronouncements that are
determinative of the issues raised by petitioner.
It is clear from the Olarte case that the filing of the complaint or information for purposes of
preliminary investigation represents the initial step of the proceedings against the offender. This
is one of the reasons why such filing is deemed as having interrupted the period of prescription
for the prosecution of a crime. This period of prescription commences to run again when the
proceedings terminate without conviction or acquittal, if the court (or prosecutor) should
discharge the accused because no prima facie case has been shown.[20]
It is thus evident that petitioners first premise that the period of prescription commenced to
run again when the Quezon City prosecutors Office recommended the filing of a criminal
complaint against her is incorrect. When the City Prosecutor recommended the filing of libel
charges against petitioner, the proceedings against her were not terminated, precisely because
a prima facie case for libel was found against her. Instead of terminating the proceedings against
petitioner, the resolution of the city prosecutor actually directed the continuation of the
proceedings against the petitioner by the filing of the appropriate information against her and by
the holding of trial on the merits. As such, when the information for libel was filed with the
Metropolitan Trial Court, the period of prescription for the crime was still suspended.
Another important teaching in Olarte is that it is unjust to deprive the injured party of the
right to obtain vindication on account of delays that are not under his control. This is because in
criminal prosecutions, the only thing that the victim of the offense may do on his part to initiate
the prosecution is to file the requisite complaint.
In the case at bench, private respondents were not remiss in their right to seek grievance
against respondent as they filed their complaint before the city prosecutor forty-two days after
the alleged crime of libel occurred. It was the Office of the City Prosecutor that committed an
error when it filed the complaint with the Metropolitan Trial Court.
The error was probably due to the confusion as to the proper venue for the crime of libel
brought about by the passage of R.A. 7691[21] which took effect on April 15, 1994.Under Section
2 of the said Republic Act, the jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts was expanded to include all offenses punishable with
imprisonment not exceeding six (6) years. However, libel, which is punishable by imprisonment
ranging from six months and one day to four years[22]is not covered as the said law excludes
from its coverage cases within the exclusive jurisdiction of the Regional Trial Courts [23]. Under
Article 360 of the Revised Penal Code, the information for libel should be filed with the Court of
First Instance, now the Regional Trial Court. The confusion was cleared up when this Court
issued Administrative Order No. 104-96 dated October 21, 1996 which categorically stated that
LIBEL CASES SHALL BE TRIED BY THE REGIONAL TRIAL COURTS HAVING
JURISDICTION OVER THEM TO THE EXCLUSION OF THE METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS.[24]
Evidently, branch 215 of the Metropolitan Trial Court of Quezon City was not spared the
confusion brought about by R.A. 7691, as its dismissal of the case then pending before it was
made only on November 8, 1996 or more than two years after it had taken cognizance of the
case. Notably, the dismissal by the Metropolitan Trial Court took place a mere eighteen (18)
days after the issuance of S.C. Administrative Order No. 104-96.

20
 The mistake of the Office of the City Prosecutor in filing the complaint and of the
Metropolitan Trial Court in taking cognizance of the case was thus understandable. The error
was immediately rectified by the said court upon realizing its mistake when it ruled it was the
Regional Trial Court which had the proper jurisdiction over the case. This mistake should not
operate to prejudice the interest of the state to prosecute criminal offenses and, more importantly,
the right of the offended party to obtain grievance.
Moreover, the doctrine in People vs. Olarte, as applied in later cases, was not meant to apply
solely to cases where the filing of the complaint with the municipal trial court or the prosecutors
office operates to interrupt the prescription period for the prosecution of a crime.
In People vs. Galano[25], an information was filed with the Batangas Regional Trial Court
even though the evidence of both the prosecution and defense shows that the crime was
committed in Manila. This Court, applying People vs. Olarte, held that it was only when the trial
court dismissed the case due to lack of jurisdiction that the proceedings therein terminated
without conviction and acquittal and it was only then that the prescriptive period (which was
interrupted during the during the pendency of the case in the Batangas Court) commenced to run
again.
In People vs. Enrile[26], informations were filed against civilians before military tribunals
which had no jurisdiction over the persons of these civilians. These civilians questioned the re-
filing of the cases against them before the civil courts raising, among others, that the crimes for
which they are being charged have already prescribed. This Court, applying by analogy the
ruling in the Olarte case, threw out the defense of prescription and held that the filing of the first
indictments suspended the running of the prescriptive period, and the prosecutions under the
informations to be filed should be regarded as mere continuations of the previous
proceedings. At the very least, the Court ruled, the filing of the first charges should be
considered as having interrupted the prescriptive period notwithstanding the lack of jurisdiction
of the military tribunal in which they were filed.
More recently, in the case of Reodica vs. Court of Appeals[27], an information for reckless
imprudence resulting in damage to property with slight physical injuries was filed with the
Regional Trial Court even though the offense was within the exclusive jurisdiction of the
municipal trial court. The Court, even as it dismissed the cases pending before the Regional Trial
Court for lack of jurisdiction, disregarded the defense of prescription raised by the accused. The
Court, citing Olarte and the subsequent cases of Francisco vs. Court of Appeals[28] and People
vs. Cuaresma[29], ruled that the prescriptive period for the quasi offenses in question was
interrupted by the filing of the complaint with the fiscals office three days after the vehicular
mishap and remained tolled pending the termination of the case.
From these cases, it is clear that the Apellate Court committed no reversible error in ruling
that the offense of libel charged against petitioner had not yet prescribed. The period of
prescription for the crime was interrupted when the complaint was lodged with the Office of the
City Prosecutor and remained tolled pending the termination of the case against
petitioner. Branch 218 of the Regional Trial Court of Quezon City, therefore, correctly assumed
jurisdiction over the case of petitioner as the offense of libel for which she was being charged
has not yet prescribed.
Petitioners other argument that she has been denied her right to a speedy trial deserves scant
consideration. Well-established is the doctrine that the right to a speedy trial is violated only
where there is an unreasonable, vexatious and oppressive delay without participation or fault of
the accused, or when unjustified postponements are sought which prolong the trial for an
unreasonable length of time[30]. In the case at bench, besides the filing of the petitions before the
Court of Appeals and this Court, petitioner had likewise filed a Motion to Quash and a Motion
for Reconsideration with the Regional Trial Court of Quezon City, Branch 218. As such, it is
clear that petitioner is not without fault in the delay in the prosecution of the case against her.
Wherefore, the petition is hereby DENIED, and the decision of the Court of Appeals dated
May 1, 1999 is hereby AFFIRMED.
SO ORDERED.

21
 [G.R. Nos. 116259-60. February 20, 1996]

SALVADOR P. SOCRATES, petitioner, vs. SANDIGANBAYAN, Third Division, and

PEOPLE OF THE PHILIPPINES, respondents.

[G.R. Nos. 118896-97. February 20, 1996]

SALVADOR P. SOCRATES, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE

PHILIPPINES, respondents.

DECISION
REGALADO, J.:

Before us are two consolidated original actions for certiorari and prohibition filed by
petitioner Salvador P. Socrates assailing the orders and resolution issued by respondent
Sandiganbayan in Criminal Cases Nos. 18027 and 18028, both entitled People of
the Philippines vs. Salvador P. Socrates. In G.R. Nos. 116259-60, petitioner assails the legality of
(a) the order dated February 9, 1994 denying petitioners Amended and Consolidated Motion to
Quash the Informations;1 (b) the order dated May 24, 1994 denying the Motion for
Reconsideration and/or Reinvestigation;2 and (c) the order dated July 20, 1994 denying the
Motion for Partial Reconsideration of the Order of May 24, 1994.3 On the other hand, in G.R.
Nos. 118896-97 petitioner seeks the annulment of the Resolution dated December 23,
19944 ordering the preventive suspension of petitioner as Provincial Governor of Palawan for a
period of ninety (90) days, and to enjoin respondent court from enforcing the same.
The antecedent facts, as may be culled from the Comment filed by the Solicitor General in
G.R. Nos. 116259-60, are as follows:

Petitioner who is the incumbent governor of Palawan, was first elected governor of the said
province in 1968 and was again reelected in both the 1971 and 1980 elections, until he was
replaced by private complainant Victoriano Rodriguez as Officer-In-Charge Governor after the
EDSA Revolution in February 1986. Subsequently, both petitioner and Rodriguez ran for
governor in the 1988 elections where the latter emerged victorious. In the 1992 synchronized
national and local elections, the two again contested the gubernatorial post; and this time, it was
petitioner who won.

Meanwhile, at the time Rodriguez was still the OIC Governor of the province, the Provincial
Government of Palawan, as represented by Rodriguez and the Provincial Board Members of
Palawan, filed before the Office of the Tanodbayan two (2) complaints both
dated December 5, 1986 and docketed as TBP No. 86-01119. The first complaint charged
petitioner with violation of Section 3(b) of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act, and the second charged petitioner, together with several other
provincial officers, with violation of Section 3(a) and (g) of the same law (Annexes A & A-I ,
respectively, Petition).

Instead of filing a counter-affidavit as directed, petitioner filed a Motion to Suspend Preliminary

investigation dated September 3, 1987 on the ground that upon the ratification of the 1987
Constitution, the present Tanodbayan has been transformed into the Office of the Special
Prosecutor and has, therefore, lost his power to conduct preliminary investigation (Annex
C, ibid).

22
In a letter to the Honorable Tanodbayan dated June 23, 1988, however, Nelia Yap-Fernandez, the
Deputized Tanodbayan Prosecutor from the Office of the City Prosecutor of Puerto Princesa
City, requested that she be allowed to inhibit herself from handling the preliminary investigation
of the present case considering that petitioner appears to be her co-principal sponsor in a
wedding ceremony held last May 28, 1988 (Annex C-3, ibid.).

On January 16, 1989, the Office of the Ombudsman received a letter from Rodriguez, who was
then the incumbent governor of the province, inquiring about the present status of TBP No. 86-
01 119 (Annex D, ibid.). In its 4th Indorsement dated February 7, 1989, the Ombudsman referred
the matter of continuing and terminating the investigation of the present case to the newly
deputized Tanodbayan Prosecutor, Sesinio Belen from the Office of the Provincial Prosecutor
(Annex D-1, ibid.). However, the latter, in his 5th Indorsement dated February 27, 1989 to the
Ombudsman, requested that the present case be reassigned to another Prosecutor considering that
he is a long time close friend and compadre of petitioner and that one of the complainants therein
Eustaquio Gacott, Jr., who was formerly a member of the Sangguniang Panlalawigan, is now the
Provincial Prosecutor of Palawan, his present superior (Annex D-2, ibid.).

On April 25, 1989, petitioner was directed by the Ombudsman to comment on the letter-
manifestation dated April 4, 1989 filed by Rodriguez requesting that an amendment be effected
on certain portions of the present complaint (Annexes E & E-2, ibid.). No comment having been
received by the Ombudsman as of May 24, 1989, petitioner, on an even date, was again directed
to comment thereon (Annex E-1, ibid.). Finally, petitioner filed his required comment dated June
2, 1989 (Annex E-3, ibid.).

Based on the Resolution dated August 27, 1992 of Special Prosecution Officer I Wendell
Barreras-Sulit (Annex F-2, ibid.), which affirmed the Resolution dated February 21, 1992
rendered by Ombudsman Investigator Ernesto Nocos recommending the filing of appropriate
charges against petitioner, the Office of the Special Prosecutor filed on September 16, 1992 with
the respondent Court two (2) Informations against petitioner, docketed as Criminal Cases Nos.
18027 and 18028. The first was for violation of Section 3(h) of Republic Act No. 3019, and the
second for violation of Section 3(e) of the same law (Annexes F & F-1, ibid.).

Before his arraignment could be set, petitioner initially filed an Urgent Motion for Quashal of
Information and/or Reinvestigation in the Light of Supervening Facts. However, when the said
motion was subsequently called for hearing, petitioners counsel was made to choose which of the
aforesaid two (2) conflicting motions he preferred to take up with respondent Court. Thus,
onJanuary 18, 1993, petitioner filed an Amended and Consolidated Motion to Quash the
Information in the Above-entitled Cases. After an Opposition and a Reply were filed by the
prosecution and petitioner, respectively, respondent court issued its first assailed Resolution
on February 9, 1994, denying the same (Annex G, ibid.).

On March 15, 1994, petitioner filed a Motion for Reconsideration and/or Reinvestigation, which
was subsequently denied by respondent court in its second assailed Resolution issued on May 24,
1992 (Annex H-1 , ibid.).5

Petitioner then filed a petition for certiorari and prohibition, docketed as G.R. Nos. 116259-
60, challenging the aforementioned orders of the Sandiganbayan for allegedly having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. It was likewise
prayed that respondent court be enjoined from taking cognizance of and from proceeding with
the arraignment of petitioner and the trial and hearing of Criminal Cases Nos. 18027-28 pending
before it. Respondents thereafter filed their Comment to which a Reply was submitted by
petitioner.
In the meantime, no temporary restraining order having been issued by this Court in G.R.
Nos. 116259-60, respondent court proceeded with the arraignment of herein petitioner
on October 5, 1994 wherein a plea of not guilty was entered for him by the court after he refused
to do so. Thereafter, with the denial of petitioners motion to quash the informations, the

23
prosecution filed on October 11, 1994 before respondent court a Motion to Suspend
Accused Pendente Lite6 pursuant to Section 13 of Republic Act No. 3019. Petitioner opposed
said motion on the ground that the validity of the informations filed against him is still pending
review before the Supreme Court. He further contended therein that Section 13 of Republic Act
No. 3019, on which the motion to suspend is based, is unconstitutional in that it constitutes an
undue delegation of executive power and is arbitrary and discriminatory.
In view of the filing of the motion for his suspension, petitioner filed on October 14, 1994 in
G.R. Nos. 116259-60 a Supplemental Petition7 questioning the veracity of and seeking to restrain
respondent court from acting on said motion to suspend pendente lite, the hearing of which was
scheduled on October 17, 1994. However, before respondents could file their comment thereto as
required by this Court, petitioner, who initially sought the holding in abeyance of further action
on his supplemental petition until after respondent court shall have resolved the motion to
suspend pendente lite, eventually decided to withdraw the same purportedly in order not to delay
the disposition of the main petition. Hence, on January 16, 1995, this Court issued a
resolution8 granting the motion to withdraw the supplemental petition and considering the
petition in G.R. Nos. 116259-60 as submitted for resolution.
In the interim, petitioner filed before respondent court on November 28, 1994 an amended
motion to include as co-principals: (a) in Criminal Case No. 18028, the members of the
Sangguniang Panlalawigan who authorized the purchase and repair of the vessel in question; and
(b) in Criminal Case No. 18027, the Board of Directors of ERA Technology and Resources
Corporation which entered into a contract with the Province of Palawan.9 Petitioner argued that
the non-inclusion of these co-principals violates his right to due process and equal protection of
the laws which thus rendered the informations null and void. It appears that the prosecution did
not oppose nor object to this amended motion.
On December 23, 1994, respondent court, without ruling on petitioners motion to include
co-principals, issued its questioned resolution granting the motion to suspend pendente lite and
ordering the suspension of petitioner as Provincial Governor of Palawan for a period of ninety
(90) days from notice.
His motion for the reconsideration thereof having been denied, another petition for certiorari
and prohibition with prayer for a restraining order was filed by petitioner on February 20, 1995
against the same respondents, docketed as G.R. Nos. 118896-97, and which seeks to annul as
well as to enjoin respondent court from enforcing its resolution dated December 23, 1994
ordering his suspension pendente lite. On March 8, 1995, the Court resolved to consolidate this
second petition with G.R. Nos. 116259-60.
From the mosaic of the foregoing events and the incidents interjected therein, the following
pattern of contentious issues has emerged:
In G.R. Nos. 116259-60, the validity of the informations filed in Criminal Cases Nos.
18027-28 is being contested on three grounds, viz.: (1) the respondent court did not acquire
jurisdiction over the case on the ground that an inordinate delay of six (6) years between the
conduct of the preliminary investigation and the subsequent filing of the informations against
petitioner constitutes a violation of his constitutional rights to a speedy disposition of the case
and due process of law pursuant to the Tatad doctrine; (2) the facts charged do not constitute an
offense; and (3) since the acts charged in the complaints filed before the Tanodbayan are
different from the charges contained in the informations, another preliminary investigation
should have been conducted, in the absence of which there is a denial of due process.
In G.R. Nos. 118896-97, petitioner questions the validity of the suspension order in that: (1)
he may not be suspended while the issue on the validity of the informations filed against him is
still pending review before the Supreme Court; and (2) Section 13 of Republic Act No. 3019,
which forms the basis of the order of suspension, is unconstitutional on the ground that it
constitutes an undue delegation of the authority to suspend which is essentially an executive
power. Petitioner contends that the jurisprudential doctrines relied upon by respondent court in
upholding the constitutionality of Section 13 are not applicable to the cases at bar which involve
an issue not yet passed upon by this Court. In addition, petitioner again attacks the legality of the

24
subject informations for having been filed in violation of the due process and equal protection
clauses by reason of the non-inclusion therein, as co-principals, of the members of the
Sangguniang Panlalawigan who approved the purchase of the vessel, as well as the board of
directors of ERA Technology and Resource Corporation which entered into a contract with the
Province of Palawan.
I. G.R. Nos. 116259-60
1. In asserting that there was a violation of his right to a speedy trial by reason of the
unreasonable delay of six (6) years between the conduct of the preliminary investigation and the
filing of the informations, petitioner invokes the doctrine laid down in the leading case of Tatad
vs. Sandiganbayan, et al.10 In said case, all the affidavits and counter-affidavits had already been
filed with the Tanodbayan for final disposition as of October 25, 1982 but it was only on June
12, 1985, or three (3) years thereafter, that the informations accusing Tatad of a violation of
Republic Act No. 3019 were filed before the Sandiganbayan. The Court held there that an
inordinate delay of three (3) years in the conduct and termination of the preliminary investigation
is violative of the constitutional rights of the accused to due process and speedy disposition of his
case, by reason of which the informations filed against the accused therein were ordered
dismissed. It must be emphasized, however, that in the Tatad case, no explanation or
ratiocination was advanced by the prosecution therein as to the cause of the delay.
In the present case, as distinguished from the factual milieu obtaining in Tatad, respondent
court found that the six-year delay in the termination of the preliminary investigation was caused
by petitioners own acts. Thus:

In the cases at bar, the record shows that delay in the filing of the Informations in these cases was
caused, not by inaction of the prosecution, but by the following actuations of the accused:

(1) Sometime after the complaint of private complainant was filed with the Office of the City
Fiscal of the City of Puerto Princesa, preliminary investigation was held in abeyance on account
of the motion of accused Salvador P. Socrates, entitled Motion to Suspend Preliminary
Investigation. Suspension was prayed for until an Ombudsman, as provided in Executive Order
No. 243, shall have been appointed;

(2) Preliminary investigation was interrupted when private complainant, then Governor
Victoriano J. Rodriguez, filed on April 24, 1989, a letter-manifestation correcting the complaint;

(3) Only on September 22, 1989 did the accused in these cases file with the Office of the
Ombudsman a reply to complainants manifestation;

(4) In view of the foregoing actuations of the parties, preliminary investigation of these cases
was started in earnest only on June 25, 1990. Respondents then, including the accused herein,
were required to submit counter-affidavits;

(5) Interrupting preliminary proceedings again, accused Governor Salvador P. Socrates,

on August 13, 1990, filed a motion to dismiss the complaint upon the following grounds:

(a) That the Honorable Ombudsman has no jurisdiction over the person of respondent; and

(b) That the complaint does not conform substantially to the prescribed form.

The private complainant was, as a matter of right, granted a period of time within which to
oppose the motion. The prosecution necessarily had to ponder on the motion after protracted
deliberations;

(6) On April 1, 1991, counsel for the accused filed an Appearance and Motion for Extension of
Time to File Appropriate Pleading. Counsel prayed that respondents be granted an extension of
twenty (20) days within which to comply with the order of March 11, 1991;

25
(7) The accused Governor Salvador P. Socrates, through counsel, filed a motion to quash/dismiss
on December 17, 1991. This pleading was received by the Office of the Deputy Ombudsman
only on January 13, 1992. It took some time for the prosecution to resolve the motion and there
never was any intimation on the part of the accused that the accused was invoking his right to a
speedy disposition of the complaint against him. The motion to quash/dismiss was in fact denied
by the prosecution in an order dated January 20, 1990;

(8) A motion for reconsideration having been filed thereafter, the Informations in these cases
were after all filed on September 16, 1992, but only after the ruling of the prosecution on the
motion to quash/dismiss.11

Petitioner, in a futile attempt to refute the foregoing factual findings of respondent court,
could only raise the defense that the motion to suspend the preliminary investigation did not
affect the proceedings therein; that the preliminary investigation really started on February 18,
1987 when the Tanodbayan issued subpoenas to the respondents; that the motion to
dismiss/quash the complaints was purposely for the early termination of the preliminary
investigation; that the filing of the complaint was politically motivated, as may be gleaned from
the affidavit of complainant Rodriguez; and that pursuant to Section 3, Rule 112 of the Rules of
Court, the case should have been resolved within ten (10) days from the time the investigation
was concluded.
Clearly, the facts of the case at bar are diametrically opposed to the factual situation
in Tatad because the obviously delaying tactics resorted to by herein petitioner were not present
in the latter case. Furthermore, the allegation that the filing of the complaint was politically
motivated does not serve to justify the nullification of the informations where the existence of
such motive has not been sufficiently established nor substantial evidence presented in support
thereof. The situation in Tatad was quite to the contrary since the accused therein successfully
proved that the charges were filed against him only after it became widely known that he actually
had a falling out with the late President Marcos.
That scenario impelled the Court to make the admonition therein that prosecutors should not
allow, and should avoid, giving the impression that their noble office is being used or prostituted,
wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic
and fundamental objective of serving the interest of justice evenhandedly, without fear or favor
to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Such an
exigency apparently does not obtain in the case at bar. There is nothing in the records from
which it can be conclusively inferred, expressly or impliedly, that the investigating prosecutors
were politically motivated or even coerced into filing these criminal charges against petitioner.
We likewise do not adhere to petitioners asseveration that the orders issued by Branches 51
and 52 of the Regional Trial Court of Puerto Princesa City quashing the informations for
technical malversation filed against herein petitioner, on the ground that the inordinate delay in
the termination of the preliminary investigation constitutes a violation of petitioners right to due
process and speedy disposition of his case which thereby ousted said courts of jurisdiction
thereover, have become final and conclusive by reason of the prosecutions failure to file an
appeal therefrom. We have carefully scrutinized the orders adverted to and we find and so hold
that the same cannot effectively deter the prosecution herein from proceeding with the trial
before the Sandiganbayan.
First, the criminal cases for technical malversation filed before said Regional Trial Court are
different from the charges for violation of Republic Act No. 3019 filed with the Sandiganbayan.
The former is covered by a general law while the latter involves a special law, with variant
elements of the offenses being required, hence double jeopardy cannot set in. Second, and more
importantly, it will be noted that the trial court in the malversation case hastily concluded that
there was an inordinate delay of six (6) years in the termination of the preliminary investigation
through the mere expedient of counting the number of years that had elapsed from the institution
of the complaint with the Ombudsman until the filing of the informations in court, without
bothering to inquire into the pertinent factual considerations and procedural technicalities
involved.

26
 In arriving at such a self-serving conclusion, the trial court confined itself strictly to a
mathematical reckoning of the time involved, instead of undertaking a more substantive
appreciation of the circumstances and particulars which could have possibly caused the delay.
On the contrary, herein respondent court has convincingly shown that the preliminary
investigation dragged on for several years owing, ironically, to petitioners evident propensity to
resort to dilatory tactics. In the cases now before us, it cannot be successfully and validly
contended that petitioners right to speedy trial has been violated.
We have only to reiterate the declaration made in Tatad to the effect that in the application
of the constitutional guaranty of the right to speedy disposition of cases, particular regard must
also be taken of the facts and circumstances peculiar to each case. It is palpably clear that the
application of the Tatad doctrine should not be made to rely solely on the length of time that has
passed but equal concern should likewise be accorded to the factual ambiance and
considerations. It can easily be deduced from a complete reading of the adjudicatory discourse
in Tatad that the three-year delay was specifically considered vis--vis all the facts and
circumstances which obtained therein. Perforce, even on this ground alone, the instant petition
for certiorari should be dismissed.
A speedy trial is one conducted according to the law of criminal procedure and the rules and
regulations, free from vexatious, capricious and oppressive delays. The primordial purpose of
this constitutional right is to prevent the oppression of an accused by delaying criminal
prosecution for an indefinite period of time.12 In the cases at bar, while there may have been
some delay, it was petitioner himself who brought about the situation of which he now
complains.
2. Petitioner then questions the sufficiency of the allegations in the informations in that the
same do not constitute an offense supposedly because (a) in Criminal Case No. 18027, there is
no statement that herein petitioner actually intervened and participated, as a board member of
ERA Technology and Resources Corporation, in the latters contract with the Province of
Palawan, which is allegedly an element necessary to constitute a violation of Section 3(h) of
Republic Act No. 3019; and (b) in Criminal Case No. 18028, the information failed to show a
causal relation between the act done by the accused and the undue injury caused to the provincial
government of Palawan.
With respect to the alleged defects in the information filed in Criminal Case No. 18027 for
violation of Section 3(h) of the anti-graft law, petitioner invokes the ruling in the case of Trieste,
Sr. vs. Sandiganbayan13 where it was held that what is contemplated in Section 3(h) of the anti-
graft law is the actual intervention in the transaction in which one has financial or pecuniary
interest in order that liability may attach. In the cited case, however, the Court found that the
petitioner therein did not, in any way, intervene in making the awards and payment of the
purchases in question since he signed the voucher only after all the purchases had already been
made, delivered and paid for by the municipal treasurer.
The purchases involved therein were previously ordered by the municipal treasurer without
the knowledge and consent of the accused municipal mayor, were subsequently delivered by the
supplier, and were thereafter paid by the treasurer again without the knowledge and consent of
the mayor. The only participation of the accused mayor in the transaction involved the
mechanical act of signing the disbursement vouchers for record purposes only. Thus, the Court
did not consider the act therein of the accused mayor to be covered by the prohibition under
Section 3(h) of the law.
Contrariwise, in the present cases, petitioner Socrates stands charged with a violation of
Section 3(h) for intervening in his official capacity as Governor of Palawan in reviewing and
approving the disbursement voucher dated August 2, 1982 for payment in favor of ERA
Technology Resources Corporation where he was one of the incorporators and members of the
board of directors. Such allegation clearly indicates the nature and extent of petitioners
participation in the questioned transaction. Without petitioners approval, payment could not
possibly have been effected.

27
 We likewise do not find any flaw in the information filed in Criminal Case No. 18028, for
violation of Section 3(e), which would warrant the dismissal thereof. Evidentiary facts need not
be alleged in the information because these are matters of defense. Informations need only state
the ultimate facts; the reasons therefor could be proved during the trial.14 Hence, there is no need
to state facts in the information which would prove the causal relation between the act done by
the accused and the undue injury caused to the Province of Palawan. Antipodal to petitioners
contention, a reading of the information in Criminal Case No. 18028 will readily disclose that the
essential elements of the offense charged have been sufficiently alleged therein. It is not proper,
therefore, to resolve the charges right at the outset without the benefit of a full-blown trial. The
issues require a fuller ventilation and examination. Given all the circumstances of this case, we
feel it would be unwarranted to cut off the prosecutory process at this stage of the proceedings
and to dismiss the information.15
3. It is likewise asserted by petitioner that the elements of the offenses charged in the
complaints are different from those stated in the informations which were filed before the
Sandiganbayan, and that since there was no preliminary investigation conducted with respect to
the latter, such informations should be declared null and void for lack of due process.
The first complaint for violation of Section 3(b) became the basis for the filing of an
information in Criminal Case No. 18027 for a violation of Section 3(h). In both, petitioner is
accused of intervening in his official capacity as Provincial Governor in the contracts for the
installation and construction of waterwork projects, with the ERA Technology and Resources
Corporation, where he was an incorporator and a member of the board of directors, thereby
directly or indirectly benefiting from said transactions. In Criminal Case No. 18028, petitioner
was charged with a violation of Section 3(e) as a result of the complaint filed against him and
several others for a violation of Section 3(a) and (g). In both instances, petitioner is charged with
the disbursement of public funds for the purchase of a motor launch which was grossly and
manifestly disadvantageous to the provincial government of Palawan because the same broke
down only after its maiden voyage.
It is thus clearly apparent that the complaints and the informations are based on substantially
the same factual settings, except that the respective designations are different. Axiomatic is the
rule that what controls is not the designation of the offense but its description in the complaint or
information.16 The real nature of the criminal charge is determined not from the caption or
preamble of the information nor from the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the actual recital of facts in the complaint or
information. It is not the technical name given by the fiscal appearing in the title of the
information that determines the character of the crime but the facts alleged in the body of the
information.17
This Court has repeatedly held that when the facts, acts and circumstances are set forth in
the body of an information with sufficient certainty to constitute an offense and to apprise the
defendant of the nature of the charge against him, a misnomer or innocuous designation of a
crime in the caption or other parts of the information will not vitiate it. In such a case, the facts
set forth in the charge controls the erroneous designation of the offense and the accused stands
indicted for the offense charged in the statement of facts. The erroneous designation may be
disregarded as surplusage.18
Furthermore, it will be observed that it is the same section of the law which is involved in
the present case, that is, Section 3 of Republic Act No. 3019, albeit it defines several modes of
committing the same offense. It is an old and well-settled rule in the appreciation of indictments
that where an offense may be committed in any of several different modes, and the offense, in
any particular instance, is alleged to have been committed in two or more of the modes specified,
it is sufficient to prove the offense committed through any one of them, provided that it be such
as to constitute the substantive offense. Thereafter, a judgment of conviction must be sustained if
it appears from the evidence in the record that the accused was guilty as charged of any one of
these modes of the offense.19
Neither will the absence of a preliminary investigation, assuming that it is necessary to
conduct a new one, affect the validity of the informations filed against petitioner. It has been

28
consistently held that the absence of a preliminary investigation does not impair the validity of
the criminal information or render it defective. Dismissal of the case is not the remedy.20 It is not
a ground for the quashal of a complaint or information. The proper course of action that should
be taken is for the Sandiganbayan to hold in abeyance the proceedings upon such information
and to remand the case to the office of the Ombudsman for him or the Special Prosecutor to
conduct a preliminary investigation,21 if the accused actually makes out a case justifying such
relief.
On the bases of the foregoing disquisitions, therefore, we rule and so hold that the
informations filed against petitioner are valid and legal.
II. G.R. Nos. 118896-97
The main issue submitted herein for resolution is the legality of the petitioners preventive
suspension, which is premised on several grounds.
1. Initially, petitioner claims that the Sandiganbayan committed a grave abuse of discretion
in ordering his suspension despite the fact that the validity of the informations filed against him
is still pending review before the Supreme Court. In support thereof, he invokes the rule laid
down in Eternal Gardens Memorial Park Corporation vs. Court of Appeals, et al.22 that even if
no temporary restraining order was issued by the Supreme Court, the Court of Appeals could
have refrained from taking any action while the petition for certiorari was pending with the
Supreme Court. Petitioner insists that this is what respondent court should have done. Under this
particular issue, petitioner is in effect seeking a review of the order issued by the Sandiganbayan,
dated February 9, 1994, denying his amended and consolidated motion to quash the information.
We have but to reiterate the fundamental rule that an order denying a motion to quash is
interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari.
Such order may only be reviewed in the ordinary course of law by an appeal from the judgment
after trial.23 In other words, it cannot be the subject of appeal until the judgment or a final order
is rendered. The ordinary procedure to be followed in that event is to enter a plea, go to trial and
if the decision is adverse, reiterate the issue on appeal from the final judgment. 24 Although the
special civil action for certiorari may be availed of in case there is a grave abuse of discretion or
lack of jurisdiction, that vitiating error is not attendant in the present case.
Section 13 of Republic Act No. 3019 provides that:

SEC. 13. Suspension and Loss of Benefits. - Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving fraud upon government or public funds or
property whether as a simple or as complex offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended from office. Should he be convicted by
final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings have been filed
against him.25

This Court has ruled that under Section 13 of the anti-graft law, the suspension of a public
officer is mandatory after the validity of the information has been upheld in a pre-suspension
hearing conducted for that purpose. This pre-suspension hearing is conducted to determine
basically the validity of the information, from which the court can have a basis to either suspend
the accused and proceed with the trial on the merits of the case, or withhold the suspension of the
latter and dismiss the case, or correct any part of the proceeding which impairs its validity. That
hearing may be treated in the same manner as a challenge to the validity of the information by
way of a motion to quash.26
In the leading case of Luciano, et al. vs. Mariano, et al.27 we have set out the guidelines to
be followed by the lower courts in the exercise of the power of suspension under Section 13 of
the law, to wit:

29
(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension
from office of public officers charged under a valid information under the provisions of Republic
Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to Section
13 of said Act, it may be briefly stated that upon the filing of such information, the trial court
should issue an order with proper notice requiring the accused officer to show cause at a specific
date of hearing why he should not be ordered suspended from office pursuant to the cited
mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an
order of suspension or the accused in turn files a motion to quash the information or challenges
the validity thereof, such show-cause order of the trial court would no longer be necessary. What
is indispensable is that the trial court duly hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its ruling, issuing the corresponding order
or suspension should it uphold the validity of the information or withhold such suspension in the
contrary case.

(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not constitute a violation of the
provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under Section 13 of the Act; or he
may present a motion to quash the information on any of the grounds provided in Rule 117 of the
Rules of Court. The mandatory suspension decreed by the Act upon determination of the
pendency in court of a criminal prosecution for violation of the Anti-Graft Act or for bribery
under a valid information requires at the same time that the hearing be expeditious, and not
unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the
trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall
be called upon to issue the suspension order upon its upholding the validity of the information
and setting the same for trial on the merits.

With the aforequoted jurisprudential authority as the basis, it is evident that upon a proper
determination of the validity of the information, it becomes mandatory for the court to
immediately issue the suspension order. The rule on the matter is specific and categorical. It
leaves no room for interpretation. It is not within the courts discretion to hold in abeyance the
suspension of the accused officer on the pretext that the order denying the motion to quash is
pending review before the appellate courts. Its discretion lies only during the pre-suspension
hearing where it is required to ascertain whether or not (1) the accused had been afforded due
preliminary investigation prior to the filing of the information against him, (2) the acts for which
he was charged constitute a violation of the provisions of Republic Act No. 3019 or of the
provisions of Title 7, Book II of the Revised Penal Code, or (3) the informations against him can
be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of Court. 28
Once the information is found to be sufficient in form and substance, then the court must
issue the order of suspension as a matter of course. There are no ifs and buts about it. This is
because a preventive suspension is not a penalty. It is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during suspension. In view of this latter
provision, the accused elective public officer does not stand to be prejudiced by the immediate
enforcement of the suspension order in the event that the information is subsequently declared
null and void on appeal and the case dismissed as against him. Taking into consideration the
public policy involved in preventively suspending a public officer charged under a
valid information, the protection of public interest will definitely have to prevail over the private
interest of the accused.29
To further emphasize the ministerial duty of the court under Section 13 of Republic Act No.
3019, it is said that the court trying a case has neither discretion nor duty to determine whether or
not a preventive suspension is required to prevent the accused from using his office to intimidate
witnesses or frustrate his prosecution or continue committing malfeasance in office. The
presumption is that unless the accused is suspended, he may frustrate his prosecution or commit

30
further acts of malfeasance or do both, in the same way that upon a finding that there is probable
cause to believe that a crime has been committed and that the accused is probably guilty thereof,
the law requires the judge to issue a warrant for the arrest of the accused. The law does not
require the court to determine whether the accused is likely to escape or evade the jurisdiction of
the court.30
Applying now the procedure outlined in Luciano, the records of the instant case do not show
that the proceedings leading to the filing of the informations against petitioner were tainted with
any irregularity so as to invalidate the same. Likewise, the informations show that the allegations
contained therein meet the essential elements of the offense as defined by the substantive law.
The record is also bereft of undisputed facts to warrant the quashal of the informations under any
of the grounds provided in Section 2, Rule 117 of the Rules of Court.31 Finally, a cursory reading
of the order dated February 9, 1994 issued by respondent court will show that petitioner was
given the opportunity to be heard on his motion to quash. Veritably, the Sandiganbayan did not
commit a grave abuse of discretion in denying the motion to quash and ordering the preventive
suspension of herein petitioner.
2. Additionally, petitioner avers that the informations filed against him on which the order of
suspension was based, are null and void in view of the non-inclusion of his co-principals which
thus constitutes a violation of petitioners right to due process and equal protection of the law and,
therefore, ousted respondent court of its jurisdiction over the case. Petitioner alleges that in
Criminal Case No. 18027, the board of directors of ERA Technology Corporation should have
been included as principals by indispensable cooperation because without them he could not
possibly have committed the offense.
Also, he claims that in Criminal Case No. 18028, the members of the Sangguniang
Panlalawigan who issued the resolutions authorizing the purchase and repair of the motor launch
should likewise have been included as principals by inducement or indispensable cooperation,
considering that petitioner was allegedly merely implementing their resolutions. Hence,
according to him, since the informations are null and void, the suspension order which is based
thereon should necessarily also be declared null and void. We find no merit in petitioners
arguments.
First, the rule under Section 1, Rule 110 of the Rules of Court, as reformulated in Section 2,
Rule 110 of the 1985 Rules on Criminal Procedure, is that all criminal actions must be
commenced either by complaint or information in the name of the People of the Philippines
against all persons who appear to be responsible for the offense involved. The law makes it a
legal duty for prosecuting officers to file the charges against whomsoever the evidence may
show to be responsible for an offense. This does not mean, however, that they shall have no
discretion at all; their discretion lies in determining whether the evidence submitted 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 conversely implies
that those against whom no sufficient evidence of guilt exists are not required to be included.32
This notwithstanding, it has equally been ruled that the failure of the fiscal to include the
other public officials who appear to be responsible for the offense charged as co-accused in the
information filed against the accused does not in any way vitiate the validity of the information
under the Rules.33
Second, a failure to include other persons who appear to be responsible for the crime
charged is not one of the grounds provided under Section 3, Rule 117 for which a motion to
quash the information against the accused may be filed, most especially in the case at bar where
there is prima facie proof that petitioner is probably guilty of the offense charged, aside from the
fact that there is no allegation of conspiracy in the informations. Besides, such an infirmity
would neither have the effect of extinguishing or mitigating petitioners liability if he is
subsequently found guilty of the offense charged. No one would contend that if for lack of
knowledge of the facts, by mistake or for any other reason the prosecuting officer fails to include
the names of one or more persons in an information filed by him, who were in fact guilty
participants in the commission of the crime charged therein, such persons will be relieved of
criminal liability; or that those accused who have been charged with the offense, brought to trial,

31
and found guilty will be permitted to escape punishment merely because it develops in the course
of the trial, or after the trial, that there were other guilty participants in the crime.34
Granting arguendo that this plaint of petitioner may be invoked as a ground for the quashal
of the informations, the motion to quash must still be denied for having been filed only after
petitioner had been arraigned. Section 8, Rule 117 of the 1985 Rules on Criminal Procedure
provides that (t)he failure of the accused to assert any ground of a motion to quash before he
pleads to the complaint or information, either because he did not file a motion to quash or failed
to allege the same in said motion, shall be deemed a waiver of the grounds of a motion to quash,
except the grounds of no offense charged, lack of jurisdiction over the offense charged,
extinction of the offense or penalty and jeopardy. The failure to include a co-accused is not
covered by the exception; hence, the same is deemed waived.
Third, where the government prosecutor unreasonably refuses to file an information or to
include a person as an accused therein despite the fact that the evidence clearly warrants such
action, the offended party has the following remedies: (1) in case of grave abuse of discretion, he
may file an action for mandamus to compel the prosecutor to file such information; (2) he may
lodge a new complaint against the offenders before the Ombudsman and have a new examination
conducted as required by law; (3) he may institute administrative charges against the erring
prosecutor, or a criminal complaint under Article 208 of the Revised Penal Code, or a civil action
for damages under Article 27 of the Civil Code; (4) he may secure the appointment of another
prosecutor; or (5) he may institute another criminal action if no double jeopardy is involved.
Fourth, it is significant and demonstrative of petitioners strategy that from the inception of
the criminal complaint before the Ombudsman and during the conduct of the preliminary
investigation, until the filing of the informations before the Sandiganbayan and up to the denial
of his amended and consolidated motion to quash, herein petitioner has not been heard to
complain about the alleged non-inclusion of the other supposed offenders. Indeed, it is now
much too late for petitioner to invoke and exploit this particular unfounded issue.
Prescinding from the averments raised in the complaint and information, from the facts and
evidence of record, we do not deem it necessary to include the members of the Sangguniang
Panlalawigan of Palawan and the board members of the ERA Technology and Resources
Corporation as co-accused in the informations filed against herein petitioner. Insofar as the board
members of said corporation are concerned, they may be prosecuted only under Section 4(b) of
Republic Act No. 3019 which provides that (i)t shall be unlawful for any person knowingly to
induce or cause any public official to commit any of the offenses defined in Section 3 thereof. In
the information filed in Criminal Case No. 18027, petitioner stands charged with a violation of
Section 3(h). It does not contain any allegation to the effect that the board members knowingly
induced or caused herein petitioner to commit the offense defined therein, which is an essential
element of the crime in Section 4(b). Indubitably, therefore, the board members cannot be
included as co-principals in Criminal Case No. 18027.
On the other hand, the members of the Sangguniang Panlalawigan cannot likewise be
included in the information for violation of Section 3(e) filed in Criminal Case No. 18028, for
the simple reason that it is not the validity of their resolution which is in issue here. While it is
true that said sanggunian passed a resolution authorizing the allocation of funds for the purchase
of a motor launch, and that petitioner merely acted on the strength thereof, it is not the fact of
such authorization which is the subject of the charges against petitioner but rather the manner by
which that resolution was implemented by the latter. There is nothing in the averments in the
information from which it could be inferentially deduced that the members of
the sanggunian participated, directly or indirectly, in the purchase of the vessel, and which fact
could be the basis for their indictment.
3. Lastly, petitioner questions the legality of his suspension on the ground that Section 13 of
Republic Act No. 3019, which is the basis thereof, is unconstitutional for being an undue
delegation of executive power to the Sandiganbayan. He postulates that the power of suspension,
which is an incident of the power of removal, is basically administrative and executive in nature.
He further submits that the power of removal vested in the court under Section 9 of Republic Act
No. 3019 is an incident of conviction, that is, it can only be exercised after a conviction has been

32
handed down. Hence, according to petitioner, since the power to suspend is merely incidental to
the power of removal, the former can only be exercised as an incident to conviction. Also,
considering that Section 13 authorizes the court to exercise the power of suspension even prior to
conviction of the accused, it cannot be considered as an exercise of judicial power because it is
not within the ambit of the courts power of removal. In addition, petitioner avers that Section 13
is arbitrary and discriminatory because it serves no purpose at all, in that it does not require a
proceeding to determine if there is sufficient ground to suspend, except for the fact that it is
required by law.
Although presented differently, the issue on the courts power of suspension under Section
13 has been squarely and directly raised and adjudicated in the case of Luciano vs. Provincial
Governor, et al.,35 the pronouncements wherein we quote in extenso:

3. Proceeding from our holding that suspension is not automatic, who should exercise the
mandatory act of suspension under Section 13 of the Anti-Graft and Corrupt Practices Act?

Three theories have been advanced. One is that the power of suspension - where a criminal
case has already been filed in court - still is with the Provincial Governor, relying on Section
2188 of the Revised Administrative Code. Another is that, following the ruling in Sarcos vs.
Castillo x x x, because the main respondents are elective municipal officials, that power of
suspension must be held to repose in the Provincial Board, under Section 5 of the
Decentralization Act of 1967 (Republic Act 5185). The third is that, by Section 13 of the Anti-
Graft and Corrupt Practices Act, solely the court in which the criminal case has been filed shall
wield the power of suspension.
We opt for the third. Common sense and the scheme of the law so dictate.

It is true that nothing in Section 13 of the Anti-Graft and Corrupt Practices Act grants with
specificity upon the Court of First Instance the power to suspend an official charged with a
violation thereof. It would seem to us though that suspensions by virtue of criminal proceedings
are separate and distinct from suspensions in administrative cases. An accurate reading of
Section 13 yields two methods of investigation, one separate from the other: one criminal before
the courts of justice, and the other administrative. This is the plain import of the last sentence of
Section 13, which says that if acquitted, defendant in an Anti-Graft and Corrupt Practices case
shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against him. Our
interpretation but preserves, as it should, the substantial symmetry between the first part of
Section 13 and the last part thereof just quoted.

And so, there is in this legal provision a recognition that once a case is filed in court, all other
acts connected with the discharge of court functions - which here include suspension - should be
left to the Court of First Instance.

Not that this view finds no statutory support. By Section 9 of the Anti-Graft and Corrupt
Practices Act, the court is empowered to punish any public official committing any of the
unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of the law, amongst others, to
perpetual disqualification from public office. Here, the Makati elective officials heretofore
named have been charged with and found guilty of a violation of Section 3(g) of the Anti-Graft
and Corrupt Practices Act and were sentenced by the court below, amongst others to be
perpetually disqualified to hold office. Article 30 of the Revised Penal Code declares that the
penalty of perpetual absolute disqualification entails (t)he deprivation of the public offices and
employments which the offender may have held, even if conferred by popular election. No
stretch of the imagination is necessary to show that perpetual absolute disqualification - which,
in effect, is encompassed in the punishment set forth in Section 9 of the Anti-Graft and Corrupt
Practices Act - covers that of removal from the office which each of the respondent municipal
official holds.

33
Since removal from office then is within the power of the court, no amount of judicial
legerdemain would deprive the court of the power to suspend. Reason for this is that suspension
necessarily is included in the greater power of removal. It is without doubt that Congress has
power to authorize courts to suspend public officers pending court proceedings for removal and
that the congressional grant is not violative of the separation of powers. For, our Constitution
being silent, we are not to say that from Congress is withheld the power to decide the mode or
procedure of suspension and removal of public officers.

A look into the legislative intent, along with the legislative scheme, convinces us the more that
the power of suspension should be lodged with the court. While the law may not be a model of
precise verbal structure, the intent is there. Section 13 requires as a pre-condition of the power to
suspend that there be a valid information. Validity of information, of course, is determined by the
Court of First Instance where the criminal case is pending. That is essentially a judicial function.
Suspension is a sequel to that finding, an incident to the criminal proceedings before the court.
Indeed, who can suspend except one who knows the facts upon which suspension is based? We
draw support from Lacson vs. Roque, supra, at page 469: We are certain that no authority or
good reason can be found in support of a proposition that the Chief Executive can suspend an
officer facing criminal charges for the sole purpose of aiding the court in the administration of
justice. Independent of the other branches of the Government, the courts can well take care of
their own administration of the law.

The Anti-Graft and Corrupt Practices Act, an important legislation, should not be artificially
construed so as to exclude the courts from the power to suspend - a prime tool designed by
Congress to prevent the power which an official wields from frustrating the purity and certainty
of the administration of justice. Surely, we should not be pedantically exacting in reading its
provisions. We should rather say that if the courts power of suspension incident to the court
proceedings is to be withheld or narrowed by construction, Congress should have spelled it out in
no uncertain terms x x x.
The Court then hastened to clarify that such a view may not be taken as an encroachment
upon the power of suspension given other officials, reiterating in the process that a line should be
drawn between administrative proceedings and criminal actions in court, that one is apart from
the other. Elucidating further on the possible danger which may arise if the power of suspension,
in consequence of a criminal action under Republic Act No. 3019 is vested in any authority other
than the court, it declared that:

There is reasonable ground to believe that Congress did really apprehend danger should the
power of suspension in consequence of a criminal case under the Anti-Graft and Corrupt
Practices Act be lodged in any authority other than the court. Quite apart from the fact that the
court has a better grasp of the situation, there is one other factor, and that is, the rights of the
person accused. The court could very well serve as a lever to balance in one equation the public
interests involved and the interests of the defendant. And then, there is the danger that partisan
politics may creep in. The hand of political oppression cannot just be ignored especially if the
majority members of the Provincial Board and the defendant public local elective officer are on
opposite sides of the political fence. Power may be abused. Conversely, if both are of the same
political persuasion, the suspending authority will display reluctance in exercising the power of
suspension. It is thus that the statute should catch up with the realities of political life. There is
indeed the dispiriting lesson that in a clash between political considerations and conscience it is
the latter that quite often gets dented. xxx

xxx xxx xxx

Therefore, since suspension is incident to removal and should proceed from one who should
logically do so, and considering that in the operation of a given statute fairness must have been in
the mind of the legislators, we brush aside needless refinements, and rule that under Section 13
of the Anti-Graft and Corrupt Practices Act, once a valid information upon the provisions thereof

34
is lodged with the Court of First Instance, that court has the inescapable duty to suspend the
public official indicted thereunder.

These cases have long been on the line, unduly stretched beyond their logical parameters
and the permissible time frame. Indeed, it is high time, ironically in fairness to petitioner himself,
that the same be now calcined in the judicial crucible into their ultimate configuration.
WHEREFORE, premises considered, the petitions in G.R. Nos. 116259-60 and 118896-97
are hereby DISMISSED for lack of merit, with costs against the petitioner.
SO ORDERED.

35
 [A.M. No. RTJ-04-1879. January 17, 2005]

SPO4 EDUARDO ALONZO, complainant, vs. JUDGE CRISANTO C. CONCEPCION,

Presiding Judge, Regional Trial Court of Malolos City, Branch 12, Province of
Bulacan, respondent.

RESOLUTION
PUNO, J.:

The zeal to uphold justice, albeit an admirable and desirable trait, must never be allowed to
blind judges to the limits of judicial power or to obscure the boundaries set by the law.
The facts are as follows:
On May 10, 2003, in the municipality of Paombong, Bulacan, a wedding party was being
celebrated behind the house of the newly-married couple. At the party and drinking together at
the same table were SPO4 Eduardo Alonzo (SPO4 Alonzo), Jun Rances (Rances), Zoilo Salamat
(Salamat) and Rey Santos (Santos). While waiting to be seated, Pedrito Alonzo (Pedrito) was
introduced by SPO4 Alonzo to Rances as his nephew and as the son of ex-Captain Alonzo. SPO4
Alonzo then introduced him to Salamat. Pedrito and his companions took their seats and started
drinking at the table across SPO4 Alonzos table. After some time, Pedrito stood up to urinate at
the back of the house. Santos passed a bag to Salamat, and they followed Pedrito. Rances
likewise followed them. A shot rang out. Salamat was seen placing a gun inside the bag as he
hurriedly left. The wedding guests ran after Salamat. They saw him and Rances board a vehicle
being driven by Santos. Pedritos uncle, Jose Alonzo, sought the help of SPO4 Alonzo to chase
the culprits. He refused and even disavowed any knowledge as to their identity.
Jose Alonzo filed a complaint for murder against Salamat, Rances, Santos, SPO4 Alonzo
and a certain Isidro Atienza. A preliminary investigation1 was conducted by the Assistant
Provincial Prosecutor where Jose Alonzo and his four witnesses testified. Upon review of the
records of the case by the 3rd Assistant Provincial Prosecutor, it was recommended that Salamat
be charged with murder as principal, and Santos and Rances as accessories. With regard to SPO4
Alonzo and Isidro Atienza, the prosecutor found that no sufficient evidence was adduced to
establish their conspiracy with Salamat.2 Thereafter, under the direction of the Officer-in-
Charge,3 an Information4 was prepared, charging Salamat as principal, and Rances and Santos as
accessories, for the murder of Pedrito. No bail was recommended. The case was docketed as
Criminal Case No. 4767-M-2003 with Branch 12 of the Regional Trial Court of Malolos City,
Bulacan, under presiding judge Crisanto C. Concepcion. On December 17, 2003, Judge
Concepcion issued an Order,5 where he stated:

The assassination of the victim has all the color of a planned liquidation. Zoilo Salamat, not
known in that place, appears to be a hired killer with Rey Santos as the supplier of the death gun.
SPO4 Alonzo appears to be the brain or mastermind, pointing Pedrito to the assassin as the target
of the planned killing. Jun Rances appears to be the back-up of Salamat in executing and
gunslaying. A conspiracy clearly appears among them with the common design to kill the victim.
Their respective actions were concerted to attest to that. Jun Rances and Rey Santos are not
merely accessories-after-the[-] fact, but as principals themselves who should be charged as such
along with gunman Zoilo Salamat and mastermind SPO4 Eduardo Alonzo. This is very apparent
from the facts on record as borned [sic] out by the statements of witnesses given to the police.

WHEREFORE, in the interest of justice that should be given the victim in this case and
prosecute all the persons against whom probable cause exists as principals in this case of murder,
the Office of the Provincial Prosecutor of Bulacan is hereby directed to amend the information,
so as to include all the aforenamed persons as accused in this case, all as principals, within five
(5) days from notice hereof.6

36
 On January 5, 2004, SPO4 Alonzo filed his Motion for Reconsideration7 to the Order, on the
ground that the court had no authority to review and reverse the resolution of the Office of the
Provincial Prosecutor or to find probable cause against a respondent for the purpose of amending
the Information. SPO4 Alonzo averred that the prosecutors resolution can only be reviewed by
the Department of Justice, by the Court of Appeals or by the Supreme Court, when a case
for certiorari is filed.
On January 12, 2004, SPO4 Alonzo filed an Urgent Motion for Inhibitation [sic], 8 alleging
that by issuing the aforementioned Order, Judge Concepcion has shown his prejudice against him
and bias in favor of private complainant Jose Alonzo. He prayed that the case be re-raffled to
another judge.
On January 13, 2004, Judge Concepcion issued an Order9 denying the Motion for
Reconsideration and the Motion for Inhibition. Judge Concepcion stated that SPO4 Alonzo had
no personality to file the said motions as he was not an accused in that case. Respondent held
that only the Office of the Provincial Prosecutor could question the first Order.
On January 16, 2004, SPO4 Alonzo filed a verified affidavit-complaint10 against Judge
Concepcion for rendering the December 17, 2003 Order. Complainant averred that respondent x
x x clearly acted without any authority of law as the same clearly violated Section 2, Article III
of the 1987 constitution [sic] and Section 6, Rule 112 of the Revised Rules of Criminal
Procedure which only authorizes him to determine if probable cause exist [sic] against those
accused impleaded in the information before issuing a warrant of arrest against them. He accused
respondent judge of: a) gross ignorance of the law; b) violation of Section 2, Article 3 of the
1987 Constitution;11 c) abuse of authority under Section 6, Rule 112 of the Rules of Court;12 d)
knowingly rendering an unjust order; e) conduct unbecoming of a judge; and f) oppression and
partiality.13
On February 26, 2004, respondent received the First Indorsement14 from the Office of the
Court Administrator (OCA), requiring him to file his comment to the complaint within ten days
from receipt thereof. On March 4, 2004, respondent filed his Comment.15 Respondent attached
copies of the sworn statements of the prosecution witnesses.16He claimed that while evaluating
the records of the case, his curiosity was piqued as to why no bail was recommended for the
three accused. He noticed that the five witnesses17 who testified during the preliminary
investigation had consistent accounts of the incidents leading to the death of Pedrito. From these
accounts, respondent concluded that SPO4 Alonzo and all the accused conspired to kill Pedrito,
thus the Office of the Provincial Prosecutor erred when it merely charged Salamat as principal,
and Rances and Santos as accessories, while complainant was exonerated. Respondent averred
that [c]ourts speak thru order issuances [sic].18 Hence, on December 17, 2003, he issued the
Order, directing the Office of the Provincial Prosecutor to amend the Information to include
complainant, Rances and Santos as principal participants in the murder of Pedrito. Respondent
stressed that he bade the prosecution to amend the Information xxx without any sanction even
hinted, should it fail to do so.19 After respondent issued the Order, the prosecution stood pat on
its position that there was no compelling reason to disturb its original resolution or to amend the
Information.
The OCA recommended that the complaint be dismissed on the ground that the Order and
the acts complained of were done by respondent in his judicial capacity and were not actuated by
bad faith, dishonesty or similar motive. In addition, the proper remedy of the aggrieved party is
to file a special civil action for certiorari under Rule 65 of the Rules of Court, and not an
administrative complaint.
The Court cannot follow the recommendation of the OCA. Respondent clearly erred when
he rendered the assailed Order. The rules set the proper procedure20 for the investigation of
complaints and designate the prosecutor to conduct the preliminary investigation.21 The function
of a preliminary investigation is to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.22 It is through the conduct of a preliminary investigation that
the prosecutor determines the existence of a prima facie case that would warrant the prosecution
of a case. As a rule, courts cannot interfere with the prosecutor's discretion and control of the

37
criminal prosecution.23 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.24 However, while prosecuting officers have the authority to prosecute persons shown to
be guilty of a crime,25 they have equally the legal duty not to prosecute when after an
investigation, the evidence adduced is not sufficient to establish a prima facie case.26 Judges
should not unduly interfere with the exercise of the power to prosecute on the part of fiscals.
It is not a sufficient excuse for respondent to aver that he did not impose any sanction for
non-compliance with his Order. In itself, his Order does violence to the principle of separation of
powers enshrined in our Constitution. In a clash of views between the judge who did not
investigate and the prosecutor who did, or between the fiscal and the offended party or the
accused, that of the prosecutor's should normally prevail.27 Thus, we held in People vs.
Pineda,28 viz.:

x x x 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 cases. Worse still, a criminal
suspect's right to due process the sporting idea of fair play may be transgressed. x x x

The impact of respondent Judge's orders is that his judgment is to be substituted for that of the
prosecutor's on the matter of what crime is to be filed in court. 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. In this regard, he cannot ordinarily be
subject to dictation. We are not to be understood as saying that criminal prosecution may not be
blocked in exceptional cases. A relief in equity may be availed of to stop a purported
enforcement of a criminal law where it is necessary (a) for the orderly administration of justice;
(b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to
avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in
proper cases, because the statute relied upon is unconstitutional or was held invalid.

We understand respondents zeal in trying to uphold the ends of justice. However, respondent
overlooked the fact that there is a remedy where a prosecutor errs in not charging a person in an
Information. The recourse is to appeal to the Secretary of Justice.29 By ordering the prosecutor to
include complainant, Rances and Santos as principals in the Information, respondent arrogated
unto himself the executive power of supervision and control over public prosecutors. His conduct
is not only unbecoming of a judge; more importantly, it transgresses our Constitution.
Yet, this is not all. Respondent judge also erred when he issued warrants of arrest for Rances
and Santos without bail. As the Information has not yet been amended charging these two
accused as principals to the crime of murder, they are still entitled, as mere accessories, to bail
under Rule 114, Section 4 of the Revised Rules of Criminal Procedure.30 The Court notes with
approval that respondent corrected this error by allowing Rances and Santos, with the
recommendation of the prosecution, to post bail.
For lack of evidence, respondent is exonerated of the other charges brought against him.
IN VIEW WHEREOF, respondent Judge Crisanto C. Concepcion is found liable for
conduct unbecoming of a judge and is REPRIMANDED. He is sternly warned that a repetition
of the same or similar acts in the future shall be dealt with more severely. Let a copy of this
resolution be entered upon his record.
SO ORDERED.

38
G.R. No. L-33628 December 29, 1987

BIENVENIDO A. EBARLE, SANTIAGO EISMA, MIRUFO CELERIAN, JOSE

SAYSON, CESAR TABILIRAN, and MAXIMO ADLAWAN, petitioners,
vs.
HON. JUDGE MELQUIADES B. SUCALDITO, RUFINO LABANG, MENELEO
MESINA, ARTURO GUILLERMO, IN THEIR RESPECTIVE CAPACITIES AS JUDGE
OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA DEL SUR, CITY FISCAL
OF PAGADIAN CITY AND STATE PROSECUTOR, and ANTI-GRAFT LEAGUE OF
THE PHILIPPINES, INC., respondents.

No. L-34162 December 29, 1987

BIENVENIDO A. EBARLE, petitioner,

vs.
HON. JUDGE ASAALI S. ISNANI, RUFINO LABANG, ALBERTO S. LIM, JR., JESUS
ACEBES, IN THEIR RESPECTIVE CAPACITIES AS JUDGE OF THE COURT OF
FIRST INSTANCE OF ZAMBOANGA DEL SUR, CITY FISCAL OF PAGADIAN CITY
AND STATE PROSECUTORS, ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC.,
and ARTEMIO ROMANILLOS, respondents.

SARMIENTO, J.:

The petitioner, then provincial Governor of Zamboanga del Sur and a candidate for reelection in
the local elections of 1971, seeks injunctive relief in two separate petitions, to enjoin further
proceedings in Criminal Cases Nos. CCC XVI-4-ZDS, CCC XVI-6-ZDS, and CCC XVI-8-ZDS
of the then Circuit Criminal Court sitting in Pagadian City, as well as I.S. Nos. 1-70, 2-71, 4-71,
5-71, 6-71, and 7-71 of the respondent Fiscal's office of the said city, all in the nature of
prosecutions for violation of certain provisions of the Anti-Graft and Corrupt Practices Act
(Republic Act No. 3019) and various provisions of the Revised Penal Code, commenced by the
respondent Anti-Graft League of the Philippines, Inc.

On June 16, 1971 and October 8, 1971, respectively, we issued temporary restraining orders
directing the respondents (in both petitions) to desist from further proceedings in the cases in
question until further orders from the Court. At the same time, we gave due course to the
petitions and accordingly, required the respondents to answer.

The petitions raise pure question of law. The facts are hence, undisputed.

On September 26, 1970, the private respondent Anti-Graft League of the Philippines, Inc., filed a
complaint with the respondent City Fiscal, docketed as Criminal Case No. 1-70 thereof, for
violation of the provisions of the Anti-Graft Law as well as Article 171 of the Revised Penal
Code, as follows:

xxx xxx xxx

SPECIFICATION NO. I

That on or about October 10, 1969, above-named respondents, conspiring and

confabulating together, allegedly conducted a bidding for the supply of gravel and
sand for the Province of Zamboanga del Sur: that it was made to appear that
Tabiliran Trucking Company won the bidding; that, thereafter, the award and
contract pursuant to the said simulated bidding were effected and executed in
favor of Tabiliran Trucking Company; that, in truth and in fact, the said bidding
was really simulated and the papers on the same were falsified to favor Tabiliran

39
 Trucking Company, represented by the private secretary of respondent
Bienvenido Ebarle, formerly confidential secretary of the latter; that said awardee
was given wholly unwarranted advantage and preference by means of manifest
partiality; that respondent officials are hereby also charged with interest for
personal gain for approving said award which was manifestly irregular and
grossly unlawful because the same was facilitated and committed by means of
falsification of official documents.

SPECIFICATION NO. II

That after the aforecited award and contract, Tabiliran Trucking Company,
represented by respondent Cesar Tabiliran, attempted to collect advances under
his trucking contract in the under his trucking contract in the amount of P4,823.95
under PTA No. 3654; that the same was not passed in audit by the Provincial
Auditor in view of the then subsisting contract with Tecson Trucking Company;
which was to expire on November 2, 1969; that nevertheless the said amount was
paid and it was made to appear that it was collected by Tecson Trucking
Company, although there was nothing due from tile latter and the voucher was
never indorsed or signed by the operator of Tecson Trucking; and that in
facilitating and consummating the aforecited collection, respondent officials,
hereinabove cited, conspired and connived to the great prejudice and damage of
the Provincial Government of Zamboanga del Sur. 1

xxx xxx xxx

On the same date, the private respondent commenced Criminal Case No. 2-71 of the respondent
City Fiscal, another proceeding for violation of Republic Act No. 3019 as well as Article 171 of
the Revised Penal Code. The complaint reads as follows:

xxx xxx xxx

That on or about April 8, 1970, a bidding was held for the construction of the
right wing portion of the Capitol Building of the Province of Zamboanga del Sur,
by the Bidding Committee composed of respondents cited hereinabove; that the
said building was maliciously manipulated so as to give wholly unwarranted
advantage and preference in favor of the, supposed winning bidder, Codeniera
Construction, allegedly owned and managed by Wenceslao Codeniera, brother-in-
law of the wife of respondent Bienvenido Ebarle; that respondent official is
interested for personal gain because he is responsible for the approval of the
manifestly irregular and unlawful award and contract aforecited; and that,
furthermore, respondent, being a Member of the Bidding Committee, also
violated Article 171 of the Revised Penal Code, by making it appear in the very
abstract of bids that another interested bidder, was not interested in the bidding,
when in truth and in fact, it was not so. 2

xxx xxx xxx

On January 26, 1971, the private respondent instituted I.S. No. 4-71 of the respondent Fiscal, a
prosecution for violation of Articles 182, 183, and 318 of the Revised Penal Code, as follows:

xxx xxx xxx

That on or about April 4, 1967, in Pagadian City, said respondent testified falsely
under oath in Cadastral Case No. N-17, LRC CAD REC. NO. N-468, for
registration of title to Lot No. 2545 in particular;

40
 That respondent BIENVENIDO EBARLE testified falsely under oath during the
hearing and reception of evidence that he acquired said lot by purchase from a
certain Brigido Sanchez and that he is the owner, when in truth and in fact Lot
2545 had been previously acquired and is owned by the provincial Government of
Zamboanga del Sur, where the provincial jail building is now located.

2. That aforesaid deceit, false testimony and untruthful statement of respondent in

said Cadastral case were made knowingly to the great damage and prejudice of
the Provincial Government of Zamboanga del Sur in violation of aforecited
provisions of the Revised Penal Code. 3

On February 10, 1971, finally, the private respondent filed a complaint, docketed as I.S. No. 5-71
of the respondent Fiscal, an action for violation of Republic Act No. 3019 and Articles 171 and
213 of the Revised Penal Code, as follows:

xxx xxx xxx

We hereby respectfully charge the above-named respondents for violation of Sec.

3, R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
Articles 171 and 213, Revised Penal Code and the rules and regulations of public
bidding, committed as follows:

1. That on June 16, 1970, without publication, respondents

conducted the so-called "bidding" for the supply of gravel and sand
for the province of Zamboanga del Sur; that said respondents,
without any valid or legal ground, did not include or even open the
bid of one Jesus Teoson that was seasonably submitted, despite the
fact that he is a registered duly qualified operator of "Teoson
Trucking Service," and notwithstanding his compliance with all the
rules and requirements on public bidding; that, instead, aforecited
respondents illegally and irregularly awarded said contract to Cesar
Tabiliran, an associate of respondent Governor Bienvenido Ebarle;
and

2. That in truth and in fact, aforesaid "bidding" was really

simulated and papers were falsified or otherwise "doctored" to
favor respondent Cesar Tabiliran thereby giving him wholly
unwarranted advantage, preference and benefits by means of
manifest partiality; and that there is a statutory presumption of
interest for personal gain because the transaction and award were
manifestly irregular and contrary to applicable law, rules and
regulations. 4

xxx xxx xxx

The petitioner initially moved to dismiss the aforesaid preliminary investigations, but the same
having been denied, he went to the respondent Court of First Instance of Zamboanga del Sur, the
Honorable Melquiades Sucaldito presiding, on prohibition and mandamus (Special Case No.
1000) praying at the same time, for a writ of preliminary injunction to enjoin further proceedings
therein. The court granted preliminary injunctive relief (restraining order) for which the Anti-
Graft League filed a motion to have the restraining order lifted and to have the petition itself
dismissed.

On May 14, 1971, the respondent, Judge Sucaldito, handed down the first of the two challenged
orders, granting Anti-Graft League's motion and dismissing Special Case No. 1000.

41
On June 11, 1971, the petitioner came to this Court on certiorari with prayer for a temporary
restraining order (G.R. No. 33628). As we said, we issued a temporary restraining order on June
16, 1971.

Meanwhile, and in what would begin yet another series of criminal prosecutions, the private
respondent, on April 26, 1971, filed three complaints, subsequently docketed as Criminal Cases
Nos. CCC XVI-4-ZDS, CCC XVI-6-ZDS, and CCC XVI-8-ZDS of the Circuit Criminal Court
of Pagadian City for violation of various provisions of the Anti-Graft Law as well as Article
171(4) of the Revised Penal Code, as follows:

xxx xxx xxx

That on or about December 18, 1969, in Pagadian City, and within the jurisdiction
of this Honorable Court, BIENVENIDO A. EBARLE, Provincial Governor of
Zamboanga del Sur, did then and there unlawfully and feloniously extended and
gave ELIZABETH EBARLE MONTESCLAROS, daughter of his brother, his
relative by consanguinity within the third degree, and appointment as Private
Secretary in the Office of the Provincial Governor of Zamboanga del Sur,
although he well know that the latter is related with him within the third degree by
consanguinity.

CONTRARY TO LAW. 5

xxx xxx xxx

xxx xxx xxx

That on or about December 18, 1969, in Pagadian City, and within the jurisdiction
of this Honorable Court, BIENVENIDO A. EBARLE, then and there unlawfully
and feloniously made untruthful statements in a narration of facts by
accomplishing and issuing a certificate, to wit: ,

c. That the provisions of law and rules on promotion, seniority and nepotism have
been observed.

required by law in such cases, in support of the appointment he extended to

ELIZABETH EBARLE-MONTESCLAROS as Private Secretary in the Office of
the Provincial Governor of Zamboanga del Sur, although he well know that the
latter is related with him within the third degree of consanguinity.

CONTRARY TO LAW. 6

xxx xxx xxx

xxx xxx xxx

That on or about December 18, 1969, in Pagadian City, and within the jurisdiction
of this Honorable Court, BIENVENIDO A. EBARLE, then and there unlawfully
and feloniously made untruthful statements in a narration of facts by
accomplishing and issuing a certificate, to wit:

c. That the provisions of law and rules on promotion, seniority and nepotism have
been observed.

required by law in such cases, in support of the appointment he extended to

TERESITO MONTESCLAROS, husband of his niece Elizabeth Ebarle, as Motor
Pool Dispatcher, Office of the Provincial Engineer of Zamboanga del Sur,

42
 although he well knew that the latter is related with him within the third degree
affinity.

CONTRARY TO LAW. 7

xxx xxx xxx

Subsequently, on August 23, 1971, the private respondent brought I.S. No. 6-71 of the
respondent Pagadian City Fiscal against the petitioner, still another proceeding for violation of
Republic Act No. 3019 and Article 171 (4) of the Revised Penal Code, thus:

xxx xxx xxx

First Count.

That on or about December 1, 1969, in Pagadian City, BIENVENIDO A.

EBARLE, Provincial Governor of Zamboanga del Sur, did then and there
unlawfully and feloniously extended and gave MARIO EBARLE, son of his
brother, his relative by consanguinity within the third degree, an appointment as
SECURITY GUARD in the Office of the Provincial Engineer of Zamboanga del
Sur although he well knew that the latter is related with him in the third degree by
consanguinity and is not qualified under the Civil Service Law.

Second Count.

That in January, 1970, at Pagadian City, Gov. BIENVENIDO A. EBARLE

replaced JOHNNY ABABON who was then the incumbent Motor Pool Dispatcher
in the Office of the Provincial Engineer of Zamboanga del Sur with his nephew-
in-law TERESITO MONTESCLAROS relative by affinity within the third Civil
degree, in violation of the Civil Service Law, this knowingly causing undue injury
in the discharge of his administrative function through manifest partiality against
said complaining employee.

Third Count:

That on or about December 18, 1969, in Pagadian City, BIENVENIDO A.

EBARLE, Provincial Governor of Zamboanga del Sur, did then and there
unlawfully and feloniously extended and gave ELIZABETH EBARLE
MONTESCLAROS, daughter of his brother, his relative by consanguinity within
the third degree, an appointment as Private Secretary in the Office of the
Provincial Governor of Zamboanga del Sur, although he well know that the latter
is related with him within the third degree of consanguinity, and said appointment
is in violation of the Civil Service Law.

Fourth Count.

That on or about January 22, 1970, in Pagadian City, BIENVENIDO A.

EBARLE, Provincial Governor of Zamboanga del Sur, did then and there
unlawfully and feloniously extended and gave ZACARIAS UGSOD, JR., son of
the younger sister of Governor Ebarle, his relative by consanguinity within the
third degree, an appointment as Architectural Draftsman in the Office of the
Provincial Engineer of Zamboanga del Sur although he well know that the latter is
related with him in the third degree of consanguinity.

Fifth Count.

43
That on February 5, 1970, at Pagadian City, BIENVENIDO A. EBARLE,
Provincial Governor of Zamboanga del Sur, did then and there unlawfully and
feloniously extended and gave TERESITO MONTESCLAROS, husband of his
niece ELIZABETH EBARLE, his relative by affinity within the third degree, an
appointment as Motor Pool Dispatcher, Office of the Provincial Engineer of
Zamboanga del Sur, although he wen knew then that the latter was not qualified
to such appointment as it was in violation of the Civil Service Law, thereby
knowingly granting and giving unwarranted advantage and preference in the
discharge of his administrative function through manifest partiality.

II. SPECIFICATION FOR VIOLATION OF SECTION 4 (b), R.A. 3019

That on August 19, 1967, respondent BIENVENIDO A. EBARLE, Governor of

Zamboanga del Sur, taking advantage of his position caused, persuaded, induced,
or influence the Presiding Judge to perform irregular and felonious act in violation
of applicable law or constituting an offense into awarding and decreeing Lot 2645
of the Pagadian Public Lands subdivision to him who, according to the records of
the case, failed to establish his rights of ownership pursuant to the provisions of
the Land Registration law and the Public Land Act, it appearing that the
Provincial Government of Zamboanga del Sur as and is a claimant and in adverse
possession of Lot 2545 whereon the Provincial Jail Building thereon still stands.

III. SPECIFICATION FOR VIOLATION OF ARTICLE 171 (4), REVISED

PENAL CODE

First Count.

That on or about December 18, 1969, in Pagadian City, BIENVENIDO A.

EBARLE, then and there unlawfully and feloniously made untruthful statement in
a narration of facts by accomplishing and issuing a certificate, to wit:

c. That the provisions of law and rules on promotion, seniority and nepotism have
been observed.

required by law in such cases, in support of the appointment he extended to

TERESITO MONTESCLAROS, husband of his niece ELIZABETH EBARLE, as
Motor Pool Dispatcher, Office of the Provincial Engineer of Zamboanga del Sur,
although he wen knew that the latter is related with him within the third degree of
affinity and is in violation of the Civil Service Law.

Second Count.

That on or about December 18, 1969, in Pagadian City, BIENVENIDO A.

EBARLE, then and there unlawfully and feloniously made untruthful statements a
certificate, to wit:

c. That the provisions of the law and rules on promotion, seniority and nepotism
have been observed.

required by law in such cases, in support of the appointment he extended to

ELIZABETH EBARLE-MONTESCLAROS as Private Secretary in the Office of
the Provincial Governor of Zamboanga del Sur, although he well knew that the
latter is related with him within the third degree of consanguinity, and is in
violation of the Civil Service Law. CONTRARY to aforecited laws. 8

xxx xxx xxx

44
On September 21, 1971, the private respondent instituted I.S. No. 7-71 of the said City Fiscal,
again charging the petitioner with further violations of Republic Act No. 3019 thus:

xxx xxx xxx

First Count.

That on or about December 2, 1969, in Pagadian City, BIENVENIDO EBARLE,

Provincial Governor of Zamboanga del Sur, did then and there unlawfully and
feloniously extend and give unwarranted benefits and privileges BONINDA
EBARLE, wife of his brother Bertuldo Ebarle, the former being his relative by
affinity within the second civil degree, an appointment as LABORATORY
TECHNICIAN in Pagadian City, although he well knew that the latter is related
to him in the second degree by affinity and is not qualified under the Civil Service
Law.

Second Count.

That on or about January 1, 1970, at Pagadian City, BIENVENIDO EBARLE,

Provincial Governor of Zamboanga del Sur, did then and there unlawfully and
feloniously extend and give unwarranted benefits and privileges JESUS
EBARLE, nephew of said respondent, an appointment as DRIVER of the
Provincial Engineer's Office, Pagadian City, although he well knew that Jesus
Ebarle is related to him within the third civil degree by consanguinity and is not
qualified under the Civil Service Law.

Third Count.

That on or about November 1, 1969, at Pagadian City, BIENVENIDO EBARLE,

Provincial Governor of Zamboanga del Sur, did then and there unlawfully and
feloniously extend and give unwarranted benefits and privileges PHENINA
CODINERA, sister-in-law of said respondent, an appointment as
CONFIDENTIAL ASSISTANT in the Office of the Provincial Governor,
Pagadian City, although he well knew that Phenina Codinera is related to him in
the second civil degree of consanguinity and is not qualified under the Civil
Service Law.

ALL CONTRARY TO AFORECITED LAW.

Please give due course to the above complaint and please set the case for
immediate preliminary investigation pursuant to the First Indorsement dated
August 27, 1971 of the Secretary of Justice, and in the paramount interest of good
government. 9

xxx xxx xxx

The petitioner thereafter went to the respondent Court of First Instance of Zamboanga del Sur,
the Honorable Asaali Isnani presiding, on a special civil action (Special Civil Case No. 1048) for
prohibition and certiorari with preliminary injunction. The respondent Court issued a restraining
order. The respondent Anti-Graft League moved to have the same lifted and the case itself
dismissed.

On September 27, 1971, Judge Isnani issued an order, dismissing the case.

On October 6, 1971, the petitioner instituted G.R. No. 34162 of this Court, a special civil action
for certiorari with preliminary injunction. As earlier noted, we on October 8, 1971, stayed the
implementation of dismissal order.

45
Subsequently, we consolidated both petitions and considered the same submitted for decision.

Principally, the petitioner relies (in both petitions) on the failure of the respondents City Fiscal
and the Anti-Graft League to comply with the provisions of Executive Order No. 264,
"OUTLINING THE PROCEDUE BY WHICH COMPLAINANTS CHARGING
GOVERNMENT OFFICIALS AND EMPLOYEES WITH COMMISSION OF
IRREGULARITIES SHOULD BE GUIDED," 10 preliminary to their criminal recourses. At the
same time, he assails the standing of the respondent Anti-Graft League to commence the series
of prosecutions below (G.R. No. 33628). He likewise contends that the respondent Fiscal (in
G.R. No. 34162), in giving due course to the complaints notwithstanding the restraining order we
had issued (in G.R. No. 33628), which he claims applies as well thereto, committed a grave
abuse of discretion.

He likewise submits that the prosecutions in question are politically motivated, initiated by his
rivals, he being, as we said, a candidate for reelection as Governor of Zamboanga del Sur.

We dismiss these petitions.

The petitioner's reliance upon the provisions of Executive Order No. 264 has no merit. We
reproduce the Order in toto:

MALACAANG

RESIDENCE OF THE PRESIDENT

OF THE PHILIPPINES

MANILA

BY THE PRESIDENT OF THE PHILIPPINES

EXECUTIVE ORDER NO. 264

OUTLINING THE PROCEDURE BY WHICH COMPLAINANTS CHARGING

GOVERNMENT OFFICIALS AND EMPLOYEES WITH COMMISSION OF
IRREGULARITIES SHOULD BE GUIDED.

WHEREAS, it is necessary that the general public be duly informed or reminded

of the procedure provided by law and regulations by which complaints against
public officials and employees should be presented and prosecuted.

WHEREAS, actions on complaints are at times delayed because of the failure to

observe the form.91 requisites therefor, to indicate with sufficient clearness and
particularity the charges or offenses being aired or denounced, and to file the
complaint with the proper office or authority;

WHEREAS, without in any way curtailing the constitutional guarantee of

freedom of expression, the Administration believes that many complaints or
grievances could be resolved at the lower levels of government if only the
provisions of law and regulations on the matter are duly observed by the parties
concerned; and

WHEREAS, while all sorts of officials misconduct should be eliminated and

punished, it is equally compelling that public officials and employees be given
opportunity afforded them by the constitution and law to defend themselves in
accordance with the procedure prescribed by law and regulations;

46
 NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by law, do hereby order:

1. Complaints against public officials and employees shall be in writing,

subscribed and sworn to by the complainants, describing in sufficient detail and
particularity the acts or conduct complained of, instead of generalizations.

2. Complaints against presidential appointees shag be filed with the Office of the
President or the Department Head having direct supervision or control over the
official involved.

3. Those against subordinate officials and employees shall be lodged with the
proper department or agency head.

4. Those against elective local officials shall be filed with the Office of the
President in case of provincial and city officials, with the provincial governor or
board secretary in case of municipal officials, and with the municipal or city
mayor or secretary in case of barrio officials.

5. Those against members of police forces shall be filed with the corresponding
local board of investigators headed by the city or municipal treasurer, except in
the case of those appointed by the President which should be filed with the Office
of the President.

6. Complaints against public officials and employees shall be promptly acted

upon and disposed of by the officials or authorities concerned in accordance with
pertinent laws and regulations so that the erring officials or employees can be
soonest removed or otherwise disciplined and the innocent, exonerated or
vindicated in like manner, and to the end also that other remedies, including court
action, may be pursued forthwith by the interested parties after administrative
remedies shall have been exhausted.

Done in the City of Manila, this 6th day of October, in the year of Our Lord,
nineteen hundred and seventy.

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary 11

It is plain from the very wording of the Order that it has exclusive application to administrative,
not criminal complaints. The Order itself shows why.

The very title speaks of "COMMISSION OF IRREGULARITIES." There is no mention, not

even by implication, of criminal "offenses," that is to say, "crimes." While "crimes" amount to
"irregularities," the Executive Order could have very well referred to the more specific term had
it intended to make itself applicable thereto.

The first perambulatory clause states the necessity for informing the public "of the procedure
provided by law and regulations by which complaints against public officials and employees
should be presented and prosecuted. 12 To our mind, the "procedure provided by law and
regulations" referred to pertains to existing procedural rules with respect to the presentation of

47
administrative charges against erring government officials. And in fact, the aforequoted
paragraphs are but restatements thereof. That presidential appointees are subject to the
disciplinary jurisdiction of the President, for instance, is a reecho of the long-standing doctrine
that the President exercises the power of control over his appointees. 13 Paragraph 3, on the
other hand, regarding subordinate officials, is a mere reiteration of Section 33 of Republic Act
No. 2260, the Civil Service Act (of 1959) then in force, placing jurisdiction upon "the proper
Head of Department, the chief of a bureau or office" 14 to investigate and decide on matters
involving disciplinary action.

Paragraph 4, which refers to complaints filed against elective local officials, reiterates, on the
other hand, the Decentralization Act of 1967, providing that "charges against any elective
provincial and city officials shall be preferred before the President of the Philippines; against any
elective municipal official before the provincial governor or the secretary of the provincial board
concerned; and against any elective barrio official before the municipal or secretary
concerned. 15

Paragraph 5, meanwhile, is a reproduction of the provisions of the Police Act of 1966, vesting
upon a "Board of Investigators" 16 the jurisdiction to try and decide complaints against members
of the Philippine police.

Clearly, the Executive Order simply consolidates these existing rules and streamlines the
administrative apparatus in the matter of complaints against public officials. Furthermore, the
fact is that there is no reference therein to judicial or prejudicial (like a preliminary investigation
conducted by the fiscal) recourse, not because it makes such a resort a secondary measure, but
because it does not intend to serve as a condition precedent to, much less supplant, such a court
resort.

To be sure, there is mention therein of "court action[s] [being] pursued forthwith by the
interested parties, " 17 but that does not, so we hold, cover proceedings such as criminal actions,
which do not require a prior administrative course of action. It will indeed be noted that the term
is closely shadowed by the qualification, "after administrative remedies shall have been
exhausted," 18 which suggests civil suits subject to previous administrative action.

It is moreover significant that the Executive Order in question makes specific reference to
"erring officials or employees ... removed or otherwise vindicated. 19 If it were intended to apply
to criminal prosecutions, it would have employed such technical terms as "accused", "convicted,"
or "acquitted." While this is not necessarily a controlling parameter for all cases, it is here
material in construing the intent of the measure.

What is even more compelling is the Constitutional implications if the petitioner's arguments
were accepted. For Executive Order No. 264 was promulgated under the 1935 Constitution in
which legislative power was vested exclusively in Congress. The regime of Presidential
lawmaking was to usher in yet some seven years later. If we were to consider the Executive
Order law, we would be forced to say that it is an amendment to Republic Act No. 5180, the law
on preliminary investigations then in effect, a situation that would give rise to a Constitutional
anomaly. We cannot accordingly countenace such a view.

The challenge the petitioner presents against the personality of the Anti-Graft League of the
Philippines to bring suit is equally without merit. That the Anti-Graft League is not an "offended
party" within the meaning of Section 2, Rule 110, of the Rules of Court (now Section 3 of the
1985 Rules on Criminal Procedure), cannot abate the complaints in question.

A complaint for purposes of preliminary investigation by the fiscal need not be filed by the
"offended party." The rule has been that, unless the offense subject thereof is one that cannot be
prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any
competent person. 20 The "complaint" referred to in the Rule 110 contemplates one filed in court,
not with the fiscal, In that case, the proceeding must be started by the aggrieved party himself. 21

48
For as a general rule, a criminal action is commenced by complaint or information, both of which
are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an
information, it is the fiscal who files it. But a "complaint" filed with the fiscal prior to a judicial
action may be filed by any person.

The next question is whether or not the temporary restraining order we issued in G.R. No. 33628
embraced as well the complaint subject of G.R. No. 34162.

It is noteworthy that the charges levelled against the petitioner whether in G.R. No. 33628 or
34162 refer invariably to violations of the Anti-Graft Law or the Revised Penal Code. That
does not, however, make such charges Identical to one another.

The complaints involved in G.R. No. 34162 are, in general, nepotism under Sections 3(c) and (j)
of Republic Act No. 3019; exerting influence upon the presiding Judge of the Court of First
Instance of Zamboanga del Sur to award a certain parcel of land in his favor, over which the
provincial government itself lays claims, contrary to the provisions of Section 4(b) of Republic
Act No. 3019; and making untruthful statements in the certificates of appointment of certain
employees in his office. On the other hand, the complaints subject matter of G.R. No. 33628
involve charges of simulating bids for the supply of gravel and sand for certain public works
projects, in breach of Section 3 of the Anti-Graft statute; manipulating bids with respect to the
construction of the capitol building; testifying falsely in connection with Cadastral Case No. N-
17, LRC Cad. Rec. N-468, in which the petitioner alleged that he was the owner of a piece of
land, in violation of Articles 182, 183, and 318 of the Revised Penal Code; and simulating bids
for the supply of gravel and sand in connection with another public works project.

It is clear that the twin sets of complaints are characterized by major differences. When,
therefore, we restrained further proceedings in I.S. Nos. 1-71, 2-71, and 4-71, subject of G.R.
No. 33628. we did not consequently stay the proceedings in CCC-XVI-4-ZDS, CCC XVI-6-
ZDS, CCC XVI-8-ZDS, and I.S. Nos. 6-71 and 7-71, the same proceedings we did restrain in
G.R. No. 34162.

This brings us to the last issue: whether or not the complaints in question are tainted with a
political color.

It is not our business to resolve complaints the disposition of which belongs to another agency, in
this case, the respondent Fiscal. But more than that, and as a general rule, injunction does not lie
to enjoin criminal prosecutions. 22 The rule is subject to exceptions, to wit: (1) for the orderly
administration of justice; (2) to prevent the use of the strong arm of the law in an oppressive and
vindictive manner; (3) to avoid multiplicity of actions; (4) to afford adequate protection to
constitutional rights; and (5) because the statute relied on is constitutionally infirm or otherwise
void. 23 We cannot perceive any of the exceptions applicable here. The petitioner cries foul, in a
manner of speaking, with respect to the deluge of complaints commenced by the private
respondent below, but whether or not they were filed for harassment purposes is a question we
are not in a position to decide. The proper venue, we believe, for the petitioner's complaint is
precisely in the preliminary investigations he wishes blocked here.

WHEREFORE, the petitions are DISMISSED. The temporary restraining orders are LIFTED
and SET ASIDE. Costs against the petitioners.

It is so ORDERED.

49
 [G.R. No. 132546. July 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSENDO MENDEZ, accused-

appellant.

DECISION

GONZAGA-REYES, J.:

ROSENDO MENDEZ (ROSENDO) was found guilty by the Regional Trial Court (Branch 81),
Romblon, Romblon, of raping his 16-year-old stepdaughter. The supreme penalty of death was
imposed upon him. His case is now before this Court on automatic review.

The Information upon which he was arraigned reads:

"UNDERSIGNED, on the basis of the criminal complaint instituted by the

offended party accused ROSENDO MENDEZ of the heinous crime of "Rape" as
penalized under Republic Act 7659, committed as follows:

That on or about the 11th day of December, 1996, at around 10:00 o clock in the
evening, in barangay Agbudia, municipality of Romblon, province of Romblon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
did then and there willfully, unlawfully and feloniously had carnal knowledge of
his daughter VIRGINITA MENDEZ, a sixteen-year-old girl, against her will.

Contrary to law."[1]

On July 9, 1997, ROSENDO pleaded not guilty to the charge embodied in the above-quoted
Information. Trial then ensued wherein the prosecution presented as its witnesses the victim,
VIRGINITA MENDEZ (VIRGINITA), an elementary school teacher, Milagros Thornton, and
the municipal health physician of Romblon, Romblon, Dr. Victorio Benedicto, and adduced in
evidence Exhibits "A" to "C" and their sub-markings. The defense for its part presented another
daughter of the accused, Marian Mendez (Marian) and the accused, ROSENDO, as witnesses
and offered no documentary evidence.

ROSENDO denied the charge against him and countered that VIRGINITA was not his true
daughter having been conceived and born before he married her mother.[2] He testified that on
December 11, 1996, he slept in one bed together with his daughter named Marian and
VIRGINITA;[3] that their sleeping arrangement is that Marian was in between him and
VIRGINITA;[4] and that he did not rape VIRGINITA on December 11, 1996.[5] The testimony of
Marian, ROSENDOs other daughter and half-sister of VIRGINITA, supported the claim of
ROSENDO that no rape occurred on that fateful night of December 11, 1996. Marian testified
that on December 11, 1996, she together with VIRGINITA and ROSENDO slept in one
bed;[6] that her sister slept between her and her father;[7] and that she did not notice nor witness
any unusual incident throughout the evening of December 11, 1996.[8]

On December 9, 1997, the trial court rendered its decision[9] that disregarded ROSENDOs
version and found the facts of this case to be the following:

"On December 11, 1996, in the evening, private complainant Virginita was
staying in the house of the elder sibling of her father, the accused herein Rosendo
Mendez, in bgy. Agbudia, Romblon, Romblon. Her companion was her younger
sister, Marian Mendez. At around 10:00 oclock that evening, Marian Mendez and
she were already asleep. Her father, the accused, awakened her. He instructed her
to buy cigarette. She bought five (5) sticks of Fortune cigarette from the store of
Melba Montero. She handed the cigarettes to him. He ate. She went back to her
place where she sleeps. She fell asleep. After that, she noticed that she had no

50
 panty anymore. Her father inserted his penis into her vagina and made pumping
motion. His penis entered her vagina. She was crying. She did not shout because
she was afraid because according to him if she would reveal he would kill her and
chop her to small pieces. In 1993, he raped her four (4) times but she did not
report these acts because she was afraid. That evening of December 11, 1996 was
the last that he did it to her. The following day, December 12, she went to town
with her auntie Norma Tome. In town, she stayed with Mrs. Milagros Thornton as
baby sitter. Her father visited her and he was trying to get her. She trembled
because he was trying to get her again. Mrs. Thornton did not allow her to go with
her father. She did not go along with him.

Mrs. Thornton, who knew later what happened to her, accompanied her to the
police and then to Dr. Benedicto who examined her (Exh. C),

Her parents Jocelyn Mieque and Antonio Montero later separated but they begot
three (3) children, namely, Ruel, Lian and private complainant. Her natural father
was still alive. The accused nurtured her. He is not her natural father. Her late
mother lived with Rosendo Mendez. She was used first by Rosendo Mendez in
1993. She was not schooling then. She was not allowed to go to school. They
were still small when their mother left them. She was about two (2) years old
then. In 1993, her companions in the house were her younger sister Marian
Mendez, a natural child of her father Rosendo Mendez, and the latter. So also in
December 11, 1996 when she was raped, they were only three (3) of them in the
house.

She was already awake and she knew what her father was doing to her that
evening. There was no blood that came out of her vagina; that was at first. There
was no pain and injuries. She was afraid to complain because she was afraid to be
killed. During the previous sexual intercourse against her by her father she was
threatened that if she would reveal, her body would not be enough to be chopped
into pieces. This was so because she was not his natural child. He told her not to
tell it to anybody because according to him it was only he who had the right to use
her body. There was no threat against her that evening from the accused. He used
to tell her every time he used her that if she tells it to anybody her body was not
enough to be chopped and he would kill her. After he finished, her father returned
to the place where he was sleeping. She cried. She did not fall asleep that night
anymore."[10]

The dispositive portion of the decision reads:

"WHEREFORE, this Court finds the accused ROSENDO MENDEZ GUILTY

beyond reasonable doubt of the heinous crime of rape and hereby sentences him
to suffer the supreme penalty of DEATH. He is ordered to pay his victim, his
step-daughter Virginita Mendez, the sum of P50,000.00 as indemnity, without
subsidiary imprisonment incase of insolvency, and to pay the costs."[11]

To stave off the imposition of the death penalty, ROSENDO maintains his innocence, faults the
information upon which he was charged as substantially defective and asserts that the evidence
was insufficient to warrant his conviction.[12] ROSENDO also points out that the information
does not charge an offense since it does not aver that the rape was committed by means of force
and intimidation. He also draws attention to the fact that the information alleges an erroneous
qualifying circumstance, that 16-year-old VIRGINITA is his daughter when in truth she is only
his stepdaughter. The lone assignment of error in this case claims that:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED

OF THE CRIME CHARGED AND IN IMPOSING THE DEATH PENALTY

51
 DESPITE DEFECTIVE INFORMATION AND INSUFFICIENCY OF
EVIDENCE.[13]

ROSENDO capitalizes on the failure of the information to allege that the rape was committed
through "force and intimidation"; he reasons that he "cannot be validly convicted in an
indictment which does not charge an offense".[14] Article 335 of the Revised Penal Code
enumerates three ways of committing rape, to wit:

1.....By using force or intimidation;

2.....When the woman is deprived of reason or otherwise unconscious; and

3.....When the woman is under twelve years of age or is demented.

As correctly pointed out by ROSENDO, the information or complaint for rape should expressly
allege the commission of the rape in the manner prescribed in Article 335.[15]Hence, in the case
of People vs. Oso[16] the allegation in the complaint that the accused had carnal intercourse with
the offended woman "against her will" or "without her consent" is insufficient to warrant a
conviction for rape, although the evidence proves the commission of the crime.[17] However, in
this case, the complaint filed by VIRGINITA expressly alleges that the rape was committed "by
means of force", viz:

"The undersigned Complainant after being duly sworn in accordance with law
accuses ROSENDO MENDEZ, a resident of Bgy. Agbudia, Romblon, Romblon
of the crime of RAPE, ARTICLE 335 REVISED PENAL CODE, committed as
follows:

That on or about the 11th day of December, 1996, in Bgy. Agbudia, Romblon,
Romblon and within the preliminary jurisdiction of this Honorable Court, said
accused ROSENDO MENDEZ, by means of force did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the complainant
VIRGINITA MENDEZ, against the latters (sic) will and without her consent to
the damage and prejudice of said victim.

Contrary to law."[18] (Emphasis ours)

What we have here is a complaint specifically accusing ROSENDO of rape committed "by
means of force" and an information that failed to allege this essential element. The case
of People vs. Oso[19] also established the principle that in case of variance between the complaint
filed by the offended party and the information in crimes against chastity, the complaint
controls.[20] The failure of the information to state that ROSENDO raped VIRGINITA "through
force or intimidation" is not a fatal omission in this case because the complaint alleged the
ultimate fact that ROSENDO raped VIRGINITA "by means of force". So, at the outset,
ROSENDO could have readily ascertained that he was being accused of rape committed through
force, a charge that sufficiently complies with Article 335.[21]

As to the crucial issue of whether ROSENDO raped VIRGINITA, a careful evaluation of the
evidence points to the conclusion that ROSENDO raped VIRGINITA. The victim in this case is
sixteen (16) years old. We have held that when the offended parties are young and immature
girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of
what transpired, considering not only their relative vulnerability but also the shame and
embarrassment to which they would be exposed by court trial if the matter about which they
testified is not true.[22] Moreover, VIRGINITA has no evil motive in prosecuting this case, in
fact, her regard for ROSENDO as the one who nurtured her, buttresses the belief that she was
mainly moved by her quest for justice in charging her stepfather with a crime which he could pay
for with his life.

52
In ruling that ROSENDO is guilty of rape, the trial court relied mainly on the testimony of
VIRGINITA. We find no reason to disagree with the finding of the trial court that the version of
VIRGINITA is believable and credible. When it comes to the issue of credibility, the trial court
is in a better position than the appellate court to properly evaluate testimonial evidence having
the full opportunity to observe directly the witnesses deportment and manner of
testifying.[23] Hence, in the absence of a palpable error or grave abuse of discretion on the part of
the trial judge, the trial courts evaluation of the credibility of witnesses will not be disturbed on
appeal.[24]

The testimony of VIRGINITA is far from being perfect in all details; nevertheless, she gave a
straightforward and faithful account of the rape that occurred on December 11, 1996, as can be
seen from the following:

PROS. MORTEL:

Q:....Now Virginita, on the December 11, 1996 in the evening of that date, where
do (sic) you stay?

A:....In Bgy. Agbudia, Romblon, Romblon.

Q:....In whose house?

A:....Our house.

Q:....When you say your house, is that the house of your father and mother?

A:....No sir, but we were residing there.

Q:....Whose house was that?

A:....To the elder sibling of my father.

Q:....Now that evening of December 11, 1996, who were your companions in the
house?

A:....My younger sister Marian Mendez.

Q:....How about your Auntie, was she there that night?

A:....No, sir.

Q:....Now at around 10:00 oclock that night, what were you doing?

A:....We were already asleep.

Q:....When you said you were already asleep together, with whom were you
asleep (sic)?

A:....My younger sister.

Q:....What is her name?

A:....Marian Mendez.

Q:....Now at around that time, do you remember having been awakened?

A:....Yes, sir.

53
Q:....Why were you awakened?

A:....My father awakened me (sic).

Q:....When you said your father, what is the name of your father?

A:....Rosendo Mendez.

Q:....And look around please and tell us if your father is inside this courtroom?

A:....Yes, sir.

Q:....Will you please point to (sic) him?

A:....There, sir.

INTERPRETER:

....Witness is pointing to the man who when asked his name answered Rosendo
Mendez.

PROS. MORTEL continuing:

Q:....And because your father awakened (sic) you that night, did you wake up?

A:....Yes, sir.

Q:....How about your younger sister Marian, did you wake her up?

A:....No, sir.

Q:....And when you have already awaken (sic), what did your father do?

A:....He instructed me to buy cigarette.

Q:....By the way, do you know how to observe a person whether he is drank (sic),
or in his physical appearance, his movements and in speaking?

A:....Yes, sir.

Q:....When your father arrived that night, how did you observe him?

A:....He just awakened (sic) me.

Q:....No my question is, did you observe him whether he was drank (sic) or not?

A:....Yes, sir.

Q:....When you said yes sir, what do you mean?

COURT:

....Please avoid leading questions.

PROS. MORTEL:

....Yes, Your Honor.

54
A:....He awakened (sic) me and instructed me to buy cigarette.

Q:....Now, going to my previous question, did you observe a person if he has

taken drinks through his physical appearance, mannerism, movements and in
speaking. When your father arrived, did you observe him whether he had taken
intoxicating drinks?

ATTY. MADRONA:

....No basis, Your Honor.

COURT:

....Leading.

PROS. MORTEL continuing:

Q:....Now, when he told you to buy for him to buy (sic) cigarette, did you obey
him?

A:....Yes, sir.

Q:....And did you go out to buy cigarette?

A:....Yes, sir.

Q:....And to whose store did you buy cigarette?

A:....Melba Montero.

Q:....What kind of cigarette did your father tell you to buy for him?

A:....Fortune.

Q:....How many sticks of cigarette of fortune?

A:....Five (5), sir.

Q:....And after buying cigarette, where did you go?

A:....I returned to our house.

Q:....And when you returned to your house, what did you do with your cigarette?

A:....I handed the cigarette to him.

Q:....And after you have handed the cigarette to him, what did your father do?

A:....He ate.

Q:....And you, what did you do?

A:....I went back to my place where I sleep.

Q:....Now while you were already in your place where you were sleeping, what
happened?

55
A:....I fall (sic) asleep.

Q:....And were you awaken?

A:....Yes, sir.

Q:....When you awoke, what did you observe?

A:....I fall (sic) asleep.

Q:....When you fell asleep, what happened after that?

A:....I noticed that I had no panty anymore.

Q:....And when you had already no more panty, what happened?

A:....He inserted his penis into my vagina and make (sic) pumping motion.

Q:....Who was that?

A:....My father Rosendo Mendez.

Q:....Did his penis enter your private organ when he inserted it?

A:....Yes, sir.

Q:....And how did you feel?

A:....I was crying.

Q:....Did you not shout?

A:....No sir, because I was afraid.

Q:....Why were you afraid?

A:....Because according to him if I would reveal he would kill me and chopped

(sic) to small pieces.

Q:....Now you said that the penis of your father when he inserted it in your vagina
entered (sic), was that the first time that your father did this to you in the past?

A:....That was the last.

Q:....When you said that was the last, were there other occasions in the past that
he did this to you?

A:....No more.

Q:....In 1993, do you remember if anything had happen (sic) to you and which
was done by your father?

ATTY. MADRONA:

....That is leading, Your Honor.

COURT:
56
 ....Answer.

A:....Yes, sir.

PROS. MORTEL continuing:

Q:....What did your father do to you in 1993?

A:....He raped me.

Q:....How many times in 1993 did he did (sic) this to you?

A:....Four (4) times.

Q:....Did you not report this (sic) acts which your father did in 1993 to anyone?

A:....No, sir.

Q:....Why?

A:....Because I was afraid.

Q:....According to you, the last time that he did this act to you was in 1996
December 11. On December 12, 1996, do you remember (sic) did you go
anywhere?

A:....I went (sic) home here in town.

Q:....Who was your companion in going to town?

A:....Auntie Norma Tome.

Q:....Now when you were going to town you were with your Auntie Norma, did
you tell her what happened to you the night before?

ATTY. MADRONA:

....Leading.

COURT:

....Leading. Please avoid leading question. This is a very serious case.

PROS. MORTEL continuing:

Q:....Now, when you were together with your Auntie Norma in going to town,
what was the conversation or whether you have (sic) any conversation with her?

A:....None, sir.

Q:....And when you were already in town, where did you stay?

A:....With Mrs. Thornton."[25]

xxx

COURT CONDUCTING CLARIFICATORY QUESTIONS:

57
Q:....Virginita, that evening you said that he inserted his penis to your vagina,
right?

A:....Yes, sir.

Q:....You were awake at that moment?

A:....Already awake.

Q:....So you know (sic) what your father was doing to you?

A:....Yes, sir.

Q:....So he was doing it then he finished it, right?

A:....Yes, sir.

Q:....What did he do next after he finished?

A:....He left and returned to the place where he was sleeping.

Q:....He left and returned to the place where he was sleeping?

A:....Yes, sir.

Q:....How about you, what did you do?

A:....I cried.

Q:....You cried, what else did you do?

A:....I was afraid.

Q:....What else?

A:....I did not fall asleep that night anymore.

Q:....So your (sic) still awake?

A:....Yes, sir.

Q:....So, where is the threat you are talking about?

....According to you he went back to the place where he was sleeping, where is
that threat you are talking (sic)?

A:....While he was using me.

Q:....While he was using you, what?

A:....That if I reveal it to anybody he would kill me.

Q:....Tell us that in the Romblomanon, Rosendo was talking in English?

A:....Vernacular.

Q:....Tell us in Bisaya?
58
A:....He told me that if I tell it to anybody my body is not enough to be chopped
and he would kill me.

Q:....When he was (sic) saying that you?

A:....Everytime (sic) he used me he tells (sic) me that.

Q:....No, we are talking only of that evening 10:00 oclock in the evening of
December 11, 1996, you mean to say Rosendo told you that?

A:....He told me not to tell it to anybody because according to him it is only he

who has the right to use my body.

Q:....That is another one you also said that something about your body not being
enough to be chopped into pieces and he would kill me (sic), right?

A:....Yes, sir.

Q:....When did he tell you that?

A:....When he was using me.

Q:....When was that?

A:....I can no longer remember.

Q:....How about December 11, 1996 evening around 10:00 oclock he did not tell
you that?

A:....No, sir.

Q:....So while he was raping you he was not talking, is that it?

A:....No, sir.

Q:....He was not saying anything?

A:....None, sir.

Q:....So, there was no threat on (sic) him?

A:....The first time he used me he threatened me.

Q:....But we are talking of December 11, 1996 at around 10:00 oclock?

A:....He just told me that the following morning I would come (sic) along with
him in going to Auntie Norma.

Q:....That is all?

A:....Yes, sir.

Q:....The evening before while he was raping you he was not talking anything he
was not saying anything?

A:....None, sir.

59
Q:....You are sure?

A:....Yes, sir.

Q:....So, where is that threat you are telling us that your body will be chopped into
pieces that he will kill us (sic), tell us you only invented these things?

A:....No, sir.

Q:....What do you mean by no, sir?

A:....That was not invented by me it came from his mouth.

Q:....Whose mouth?

A:....Of Rosendo Mendez.

Q:....Not from Mrs. Thornton?

A:....From Rosendo Mendez.

Q:....When did it come from the mouth Rosendo?

A:....I can no longer remember because of (sic) many times that he used me.

Q:....How many times that (sic) he used (sic) you?

A:....Many times already.

Q:....How many times?

A:....I can no longer remember but many times.

Q:....1, 2, 3, 4, 5, 6, 7, 8, 9, 10 times. Court showing extended two (2) hands? (sic)

A:....I can no longer remember.

Q:....More than ten (10) times?

A:....But many times.

Q:....You cannot estimate?

A:....No, Your Honor.

Q:....About five (5) times?

A:....I can no longer remember because many times (sic).

Q:....So there was no threat on the evening of December 11, 1996 against you by
Rosendo there was no threat?

A:....None, sir.

COURT:

....Thank you, Virginita."[26]

60
The fact that VIRGINITA was raped is supported by the medico-legal certificate prepared by Dr.
Victorio F. Benedicto (Dr. Benedicto), Municipal Health Officer of Romblon, Romblon. Based
on the certificate, VIRGINITAs "vagina easily admits thumb" and has "old lacerations,
multiple".[27] Dr. Benedicto explained in his testimony that the laceration in the labia menora
may have been inflicted by a hard object, or an erect penis.[28]

VIRGINITA positively identified ROSENDO as her assailant and she even recounted that the
rape that took place on December 11, 1996 was only the last of the many rapes perpetrated by
ROSENDO against her. To support his claim that no rape happened on December 11, 1996,
ROSENDO presented Marian, the half-sister of VIRGINITA. Marian testified that she did not
witness anything unusual that fateful night. However, the positive declaration of VIRGINITA
that she was raped by ROSENDO prevails over the negative testimony of Marian. It is an
established rule that an affirmative testimony is far stronger than negative testimony, especially
so when it comes from the mouth of a credible witness.[29] Marian testified that the sleeping
position was that VIRGINITA was in between her and her father, ROSENDO, which notably
runs counter to the testimony of ROSENDO that it was Marian who slept in between him and
VIRGINITA. It is thus possible that Marian could not have witnessed the rape of VIRGINITA
because Marian was sleeping at the time that the crime was being committed. It is also not
farfetched for the rape to have been perpetrated despite the presence of Marian considering the
doctrine that the nearby presence of people in a certain place is no guarantee that rape will not
and cannot be committed.[30] Up to now, there is no rule that rape can be committed only in
seclusion.[31]

ROSENDO calls attention to the testimony of VIRGINITA wherein she declared that force and
intimidation was employed on the previous incidents of rape allegedly committed by him.
VIRGINITA allegedly failed to categorically state that force and intimidation attended the rape
that occurred in the evening of December 11, 1996, the rape for which ROSENDO is
charged.[32] The following testimony of VIRGINITA allegedly proves his point:

"Q:....So while he was raping you he was not talking, is that it?

A:....No, sir.

Q:....He was not saying anything?

A:....No, sir.

Q:....So, there was no threat to (sic) him?

A:....The first time he used me he threatened me.

Q:....But we are talking of December 11, 1996 at around 10:00 oclock?

A:....He just told me that the following morning I would come (sic) along with
him in going to Auntie Norma.

Q:....That is all?

A:....Yes, sir.

Q:....The evening before while he was raping you he was not talking (sic)
anything he was not saying anything?

A:....None, sir.

Q:....You are sure?

61
 A:....Yes, sir."[33]

Contrary to the contention of ROSENDO, a rape victim might be compelled to submit herself,
against her will, to the rapists demands simply because of fear for life and personal safety.[34] In
her testimony, VIRGINITA mentioned that every time ROSENDO would ravish her, he would
threaten her not to tell anyone or else he would kill her and that her body "would not be enough
to be chopped".[35] The fact that VIRGINITA failed to unequivocally declare that she was
threatened or forced by ROSENDO on December 11, 1996 to have sexual congress with him
does not negate the fact that the repeated and menacing threats of ROSENDO instilled fear in the
mind of VIRGINITA. Furthermore, the moral ascendancy and influence of ROSENDO over
VIRGINITA, his stepdaughter, can substitute for violence or intimidation.[36] The use of actual
force or intimidation for the rape that ROSENDO committed on December 11, 1996 is therefore
not indispensable in sustaining his conviction.

ROSENDO further argues that the inaccuracy of the information in alleging the relationship
between him and VIRGINITA precluded the trial court from imposing the penalty of death. He
invokes the case of People vs. Perez[37] wherein we declared that the minority of the victim and
the relationship of the accused and the victim must be alleged in the information so as not to
violate the right of the accused to be fully informed of the nature of the charge against him.

The contention has merit. In this case, the information indeed falls short of satisfying the
constitutional mandate to duly inform the accused of the gravity of the nature of the accusation
against him.

Republic Act 7659 introduced seven modes of committing rape,[38] including the twin special
qualifying circumstances of the victims age and the relationship between the victim and the
culprit, which would warrant the automatic imposition of the death penalty. The seven modes of
committing rape partake of the nature of a qualifying circumstance under the Revised Penal
Code since their presence increases the penalty of rape to one (1) degree.[39] The long-standing
rule is that qualifying circumstances must be properly pleaded in the indictment, if the same are
not pleaded but proved, they shall be considered only as aggravating circumstances.[40] For rape
to be qualified as heinous, warranting the imposition of the death penalty, the circumstances of
the minority of the victim and her relationship with the offender must be both alleged in the
information for rape.[41]

The importance of duly informing the accused of the accusation against him is a constitutional
right that cannot be taken lightly, more so if the penalty to be imposed is grave, such as the
forfeiture of his life. The essence of the constitutional right of the accused to be informed of the
nature and cause of the accusation against him is that "every element of the offense must be
alleged in the complaint or information"[42] so as to "enable the accused to suitably prepare his
defense. He is presumed to have no independent knowledge of the facts that constitute the
offense."[43]

In setting out the elements of a crime in the information or complaint, the pertinent provisions of
the Rules on Criminal Procedure, specifically, Section 9 of Rule 110, provides the following
guideline:

"Section 9. Cause of accusation. -- The acts or omissions complained of as

constituting the offense must be stated in ordinary and concise language without
repetition, not necessarily in the terms of the statute defining the offense, but in
such form as is sufficient to enable a person of common understanding to know
what offense is intended to be charged and enable the court to pronounce a
judgment."

The cited provision is one of the many provisions in the Rules of Court that serves to implement
the constitutional right of the accused to be informed of the charges against him. Relevant to this

62
case is the phrase "a person of common understanding," which has its origin in this jurisdiction
in the phrase "a person of ordinary intelligence".[44]

In one case wherein the informations therein alleged:

"[A]nd taking advantage of his superior strength over the person of his own
daughter who is only thirteen years old"

"[T]aking advantage of his superior strength over the person of his thirteen (13)
year old (sic) daughter"

this Court spared the life of the accused, despite the mention of the age of the victim and the
word "daughter" in said informations, on the ground that the quoted informations failed to duly
allege the special qualifying circumstances of the victims minority and the relationship between
the victim and the accused because as phrased, they unduly lay stress on the generic aggravating
circumstance of "taking advantage of superior strength".[45] We further explained that:

"Be it in terms of syntax or composition, the wording of the informations is

unable to sufficiently notify the accused, a person of common understanding or
ordinary intelligence, of the gravity or nature of the crime he had been charged
with, especially considering that the generic aggravating circumstance of taking
advantage of superior strength is not even an element of the attendant
circumstances treated under number 1 of the last paragraph of Article 335. The
aforequoted clauses in the informations can thus not be read nor understood as
constituting a specific allegation of the special circumstances of relationship of
father and daughter and that the daughter was less than 18 years of age at the time
the crime of rape was committed."[46]

In People vs. Dimapilis[47], the accused escaped the imposition of the death penalty when the
information failed to properly allege the actual relationship of the minor victim with the accused.
The information stated that the accused was the stepfather of the victim when in reality, the
accused was the common-law spouse of the victims mother. We stressed that a stepdaughter is a
daughter of ones spouse by a previous marriage or the daughter of one of the spouses by a former
marriage.[48] The inaccurate designation in the information of the relationship between the victim
and the accused in said case was considered a technical flaw committed by the prosecution that
cannot be ignored.[49]Furthermore, the incorrect allegation that the accused is the stepfather of
the victim when the accused is the common-law spouse of the victims mother precludes a finding
of qualified rape since the relationship alleged in the information against the accused is different
from that actually proven.[50] Similarly, in the more recent case of People vs. Poado[51], the
information also failed to correctly allege that the accused was the common-law spouse of the
victim, instead, the information erroneously alleged that the accused was the stepfather of the
victim. On this basis, the accused was not convicted of qualified rape and was merely meted out
the penalty of reclusion perpetua, this Court thus emphasized that:

"Taking into account the growing number of cases where qualified rape under
Section 11 of RA 7659, although proven during trial, could still not be properly
penalized because of defects in the Information, We urge the prosecuting fiscals
who are charged with the responsibility of preparing Informations to state with
particularity the attendant circumstances provided for under Section 11 of RA
7659. More specifically, in qualified rape, both the fact of minority of the victim
and the actual relationship between the parties, as worded in RA 7659, must be
alleged in the Information. Otherwise, we shall continue to fail both the law and
the victims whom the law sought to protect".[52] (Emphasis ours)

Here, to deem that the information against ROSENDO duly alleged the special circumstances of
relationship of stepfather and stepdaughter would be to deprive him of his constitutional right to
be correctly informed of the nature and the cause of the accusation against him. What the

63
information in this case specifically designated was that the said accused "did then and there
willfully, unlawfully and feloniously had carnal knowledge of his daughter, VIRGINITA
MENDEZ"[53] when in truth, the actual relationship of ROSENDO with the victim is that of
stepfather and stepdaughter. The fact that VIRGINITA is merely the stepdaughter of ROSENDO
was duly proven in the trial and admitted by the parties.

The recent pronouncements of this Court in People vs. Teves[54] and People vs.
Poado[55] decidedly indicate this Courts insistence on no less than an accurate description in the
information of the inculpatory relationship that would aggravate the offense to one of qualified
rape, in order to satisfy the constitutional requirement that an accused should be properly
informed of the nature and cause of the accusation against him.[56] We therefore cannot sanction
the imposition of the death penalty on ROSENDO for raping his stepdaughter when the
information fatally failed to designate the actual or correct relationship of ROSENDO and
VIRGINITA. The penalty should thus only be for simple rape, which is punishable by reclusion
perpetua.

With respect to the civil liability, in line with current rulings, if in the crime of rape, the death
penalty is imposed, the indemnity ex delicto for the victim should be in the amount
of P75,000.00; if the death penalty is not decreed by the court, the victim would instead be
entitled to P50,000.00.[57] An additional award of P50,000.00 by way of moral damages is
automatically granted in rape cases, separate and distinct from the indemnity.[58]

WHEREFORE, the appealed decision of the Regional Trial Court (RTC), Branch 81, Romblon,
Romblon, in Criminal Case No. 2061 finding accused-appellant Rosendo Mendez guilty beyond
reasonable doubt of rape, is AFFIRMED, with the MODIFICATION that the sentence is reduced
from DEATH to Reclusion Perpetua and accused-appellant is ordered to pay P50,000.00 as civil
indemnity, and P50,000.00 as moral damages to the offended party, Virginita Mendez.

SO ORDERED.

64
 [A.M. No. RTJ-04-1837. March 23, 2004]

VISITACION L. ESTODILLO, ET AL., complainants, vs. JUDGE TEOFILO D.

BALUMA, respondent.

RESOLUTION
AUSTRIA-MARTINEZ, J.:

In a verified complaint dated December 26, 2002, Jovelyn Estudillo (Jovelyn) assisted by
her mother, Visitacion L. Estodillo, charges Judge Teofilo D. Baluma with Gross and
Inexcusable Ignorance of the Law.
Complainant alleges that her administrative complaint arose from the dismissal of Criminal
Case No. 11627 for Other Acts of Child Abuse[1] entitled People of the Philippines, Plaintiff vs.
Fredie Cirilo Nocos y Urot by respondent Judge of the Regional Trial Court of Bohol, Branch 1,
a Family Court.
The criminal case was originally filed for preliminary investigation with the 2 nd Municipal
Circuit Trial Court of Tubigon-Clarin, Bohol. After the requisite preliminary investigation, Judge
James Stewart E. Himalaloan found that there was sufficient ground to hold the herein accused
for trial for the offense of Other Acts of Child Abuse defined in Sec. 10 (1), Article VI of
Republic Act No. 7610.[2] The record of the case was transmitted to the Office of the Provincial
Prosecutor where, after a review by Third Assistant Provincial Prosecutor, Macario I. Delusa, he
failed an Information dated October 28, 2002[3].
Respondent dismissed the Information in an Order dated November 21, 2002[4] ratiocinating,
thus:

EXAMINING the Information, the two (2) copies of the same forming parts of the Records in
this case appearing in pages 28 and 30, the court finds that the same is not subscribed and sworn
to by the prosecutor.

...

A CAREFUL EXAMINATION on the four corners of the Information will readily show that the
information had not been subscribed by the prosecutor and this will militate against the validity
of the information and towards nullity and total worthlessness of the same. Since the Information
is defective, the Court is left without any alternative except to dismiss this case. Any other act by
the Court will tantamount to validating the defective information. The Court can act in this case
only when a correct information is filed, which is beyond procedure for the Court to order.

The prosecution through Prosecutor Delusa filed a Motion for Reconsideration and
Revival[5] on December 12, 2002 alleging that there was no necessity for the Information to be
under oath since he merely concurred with the resolution of the investigating judge and that he
has properly subscribed and signed the Information with the approval of the Provincial
Prosecutor.
On January 10, 2003, respondent issued an Order[6] granting the motion for reconsideration,
reinstating and reviving the case but at the same time requiring the public prosecutor to file a
new information incorporating the formalities called for under Rule 112, Section 4 and the
circular of its department implementing the pertinent laws on the matter, within ten (10) days
from notice hereof.
On January 30, 2003, the prosecution filed an ex parte motion to increase the bail bond of
the accused[7] but respondent refused to act on it because the prosecution had not yet complied
with his order to file a new information.[8]

65
 On January 31, 2003, the prosecution filed a Manifestation[9] stating that it will not file a
new information as ordered, the same being contrary to law and jurisprudence and is
unprocedural.
Complainant, therefore, seeks the assistance of the Court to investigate this impasse
considering that the bond of the accused had been cancelled earlier.
Complainant also alleges that previously, respondent judge had dismissed Criminal Case
No. 11514 against a certain Eduardo Vedra for Unjust Vexation on the same ground. The
prosecution, in a motion for reconsideration, explained that what is required to be under oath is a
complaint, not an information where the Rules merely require that it be subscribed. Respondent
granted the motion and revived the case without requiring the filing of a new information.
Complainant wonders why respondent did not require the filing of a new information in the
Vedra case, but insisted on the filing of such new information in the present case.This, according
to the complainant, is clearly gross ignorance of the law.
In his Comment, respondent avers: The complaint did not comply with Rule 7, Section 5,
Rules of Civil Procedure, as amended, which required a certification of non-forum shopping. He
denies that he stood pat on his original order because he had already issued an Order dated 27
February 2003 which found probable cause to warrant the placing of the accused, Fredie Cirilo
Nocos, under custody in order to stand trial and fixed his bond at P60,000.00. The complainant,
including Prosecutor Eric M. Ucat, the trial prosecutor who instigated the filing of herein
administrative complaint and Atty. Esther Gertrude Biliran, who notarized and obviously
prepared the complaint, were mentally dishonest for not mentioning the fact that before herein
complaint was filed on March 8, 2003, he had already issued the aforecited Order dated February
27, 2003. Prosecutor Ucat and Atty. Biliran had evil motives when they instigated the filing of
the complaint against him even before he had issued the new order and for continuing with it
after he issued the Order of 27 February 2003.
Respondent maintains that he had efficiently discharged his duties as judge although his
Branch is one of the most heavily burdened branches in the Tagbilaran City area and that to cope
with this heavy load, he works even at night and on Sundays and holidays, writing decisions and
drafting orders.
Respondent included in his Comment a Counter-complaint against Prosecutor Eric M. Ucat
and Atty. Esther Gertrude D. Biliran an administrative case for disbarment or for disciplinary
sanction for gross violation of the canons under the Code of Professional conduct and for deceit,
dishonesty, failure to exercise candor, fairness, good faith, doing falsehood or consenting to its
doing and abuse of procedures.
Prosecutor Eric M. Ucat filed a Rejoinder[10] stating that he is in quandary why the
respondent tagged him as the trial prosecutor when in fact the record shows that Prosecutor
Helen T. Cabatos was the one who handled the subject criminal case (Criminal Case No. 11627)
and Prosecutor Macario I. Delusa was the one who filed the Information. He asserts that the only
thing he did was to administer the oath of the complainant in the original letter-complaint subject
matter of the herein administrative case.He points out that it was in another case, Criminal Case
No. 11514 for Unjust Vexation entitled The People of the Philippines vs. Eduardo Vedra, a.k.a.
Eddie that he acted as the prosecutor. That case was dismissed by respondent in an Order dated
November 25, 2002 on the same ground that the Information was not subscribed by the
prosecutor.Upon a Motion for Reconsideration with Prayer For Revival of the Case, respondent
granted it in an Order[11] dated January 2, 2003. He likewise answered point by point all the
accusations hurled by respondent in the latters counter-complaint.
Atty. Esther Gertrude D. Biliran also filed a Rejoinder[12] wherein she denied having
participated in the filing of the complaint except to take the oath of the complainant. She avers
that at the time herein administrative case was filed on March 8, 2003, complainants have not yet
received the February 27, 2003 Order issued by respondent judge which found probable cause to
warrant the placing of the accused, Fredie Cirilo Nocos under custody in order to stand trial and
fixed his bond at P60,000.00. Likewise, she denied the accusations of the respondent judge and
proferred her defenses against it.

66
 Court Administrator Presbitero J. Velasco, Jr. recommends that: 1) this case be re-docketed
as a regular administrative matter; and 2) respondent be reprimanded with a stern warning that a
repetition of the offense will merit a more drastic action of the Court.
Section 4, Rule 110 of the Revised Rules of Criminal Procedure provides:

Sec. 4. Information defined. An information is an accusation in writing charging a person with an

offense, subscribed by the prosecutor and filed with the court.

There is no requirement that the information be sworn to. Otherwise, the rules would have
so provided as it does in a complaint which is defined as a sworn written statement charging a
person with an offense, subscribed by the offended party, any peace officer, or other public
officer charged with the enforcement of the law violated.[13] In a case, we ruled that the
information need not be under oath, the reason therefore being principally that the prosecuting
officer filing it is charged with the special duty in regard thereto and is acting under the special
responsibility of his oath of office.[14] Clearly, respondent had confused an information from a
complaint.
A perusal of the subject Information shows that it was subscribed or signed by Prosecutor
Macario I. Delusa. It is thus clear that respondent erred in dismissing the subject Information on
the ground that it was not under oath.
As aptly observed by the Court Administrator in the evaluation submitted by him:

It is clear that respondent erred in dismissing the information filed by Prosecutor Eric M. Ucat on
the ground that it was not sworn to. The Rules of Criminal Procedure clearly defines an
information as an accusation in writing charging a person with an offense, subscribed by the
prosecutor and filed with the court (Section 4, Rule 110). The Rules do not require that it be
under oath for otherwise, it would have provided so. On the other hand, a complaint is defined as
a sworn statement charging a person with an offense, subscribed by the offended party, any
peace officer, or other public officer charged with the enforcement of the law violated (Section 5,
Rule 110).

Evidently, respondent was of the belief, albeit erroneous, that both a complaint and an
information need to be under oath. But the oath is not required when it is a public prosecutor
who files the information because he does so under the oath he took when he qualified for his
position. The position of the public prosecutor was that the preliminary investigation had been
conducted by the municipal circuit trial judge of Tubigon-Clarin and the latters resolution was
concurred in by the prosecutors.

It appears from the record that the respondent corrected himself by issuing his Order of 27
February 2003 where he found that the complaint, the affidavit of Alberto V. Estudillo, father of
the victim, the affidavit of Jovelyn L. Estudillo, the victim executed with the assistance of
Visitacion Estudillo, her mother, the medico-legal certificate issued by Isidro Fermites, Jr., on
Jovelyn Estudillo, the certification of the facts of birth of Jovelyn L. Estudillo, the records of the
proceedings during the preliminary examination at the First Level Court, its Order dated
September 6, 2002 and the Resolution dated September 19, 2002, this court finds probable cause
to warrant that the accused be placed in the custody of the law to stand trial.

The error of the respondent is not a serious one. He, however, must be reminded that as judge he
must be conversant with the rules and laws that it is his office of apply. He deserves a reprimand
for his failure to understand an elementary rule of law.[15]

We agree with Court Administrator Velasco.

The records disclose that respondent, in effect, apparently rectified his error when he issued
an Order dated February 27, 2003, portions of which read as follows:

67
EXAMINING the complaint, the affidavit of Alberto V. Estodillo, father of the victim, the
affidavit of Juvelyn L. Estodillo, the victim executed with the assistance of Visitacion-Estodillo
her mother, the medico legal certificate issued by Isidro Permites, Jr., M.D., on Juvelyn L.
Estodillo, the certification on the facts of birth of Juvelyn L. Estodillo, the records of the
proceedings during the preliminary examination at the First Level Court, its Order dated
September 6, 2002 and the Resolution dated September 19, 2002, this Court finds probable cause
to warrant that the accused be placed in the custody of the law to stand trial.[16]

However, it is noted that said Order did not have any reference at all nor did it attempt to
reconcile the previous Orders he issued on which bases the herein administrative complaint was
based, namely: the Order dated November 21, 2002 dismissing the Information, the Order dated
January 10, 2003 reinstating and reviving the case but requiring the prosecution to file a new
information, and the Order dated January 30, 2003 refusing to act on the prosecutions ex-parte
motion to increase amount of bail until the filing of a new information, thus resulting in the
grievance submitted by complainant which could have been easily averted had respondent been
more meticulous in the performance of his duties as presiding judge of a regional trial court.
Canon 3, Rule 3.01, Code of Judicial Conduct mandates judges to be faithful to the law and
maintain professional competence. It is imperative that judges must be conversant with basic
legal principles[17]. Judges are called to exhibit more than just a cursory acquaintance with
statutes and procedural laws.[18] They are not common men and women, whose errors, men and
women forgive and time forgets[19]. Judges sit as the embodiment of the peoples sense of justice,
their last recourse where all other institutions have failed.[20]
As to the counter-complaint of respondent Judge against Prosecutor Eric M. Ucat and Atty.
Esther Gertrude D. Biliran, the same should be dismissed for failure of respondent to refute their
respective rejoinders, dated June 11, 2003 and June 6, 2003.
WHEREFORE, respondent Judge Teofilo D. Baluma is found guilty of violation of Canon
3, Rule 3.01, Code of Judicial Conduct and REPRIMANDED with a stern warning that a
repetition of the same or similar acts shall be dealt with more severely.
The counter-complaint of Judge Teofilo D. Baluma against Prosecutor Eric M. Ucat and
Atty. Esther Gertrude D. Biliran is dismissed for lack of merit.
SO ORDERED.
Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

68
 [G.R. No. 126005. January 21, 1999]

PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs. COURT
OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents.

DECISION
PANGANIBAN, J.:

In our criminal justice system, the public prosecutor has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court. Courts must respect the
exercise of such discretion when the information filed against the accused is valid on its face,
and no manifest error, grave abuse of discretion or prejudice can be imputed to the public
prosecutor.

The Case

Before us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996
Decision and the August 27, 1996 Resolution if the Court of Appeals[1] in CA- GR SP No.
36018.[2]The assailed Decision dismissed the Petition for Certiorari filed by the petitioners,
which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan,
Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private
Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners motion for
reconsideration.
The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners
motion for reconsideration.

The Facts

The case below arose from the fatal shooting of Petitioner Dys mother, Rosalinda Dy, in
which the primary suspect was Private Respondent Jonathan Cerbo, son of Private Respondent
Billy Cerbo.
The procedural and factual antecedents of the case were summarized in the challenged
Decision of the Court of Appeals as follows:

On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by
private respondent Jonathan Cerbo in the presence and at the office of his father, private
respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao.

On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying

private respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34).

On September 20, 1993, private respondents Jonathan Cerbo executed a counter-affidavit

interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36).

On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a
preliminary investigation, found sufficient ground to engender a well-founded belief that the
crime of murder has been committed by private respondent Jonathan Cerbo and resolved to
forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E,
Rollo, pp. 37-38).

69
After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette
Dy, daughter of the victim Rosalinda Dy, executed an affidavit-complaint charging private
respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a
supplemental affidavit of Elsa B. Gumban, alleging in addition to her previous statement that:

3. In addition to my said sworn statement, I voluntarily and freely aver as follows:

a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at
about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from
the kitchen [and to bring it] to the office instead of the dining room.

b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table
and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned
Rosalinda [on] a chair facing the entrance door for an easy target.

c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was
running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first
aid.

d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to
the funeral parlor and immediately ordered her to be embalmed without even informing her
children or any of her immediate relatives xxx. Annex G, Rollo, p. 40.)

Private respondent Billy Cerbo Submitted a counter-affidavit denying the allegations of both
petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 41-42).

On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a Motion for leave of court to
reinvestigate the case (Annex I. Rollo, pp43-44) which was granted by the respondent judge in
an order dated April 28, 1994 (Annex J, Rollo, p. 45).

In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an
amended information including Billy Cerbo xxx as one of the accused in the murder case xxx
(Annex K: rollo, pp. 46-49).

Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder
case. A warrant for his arrest was later issued on May 27, 1994 (Rollo, p. 27).

Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the
same was issued without probable cause (Rollo, p. 27).

On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against
Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads:

'IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the
case as against Billy Cerbo only.

Let, therefore, the warrant of arrest, dated may 27, 1994, be RECALLED.

The prosecution is hereby ordered to withdraw its Amended Information and file a new one
charging Jonathan Cerbo only.

SO ORDERED. (Rollo, pp. 29-30).

Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the
respondent judge in his second assailed order dated August 18, 1994 (Annex B, Rollo, pp. 31-
33).[3]

70
 The Ruling of the Court of Appeals

In its 10-page Decision, the Court of Appeals debunked petitioners assertion that the trial
judge committed grave abuse of discretion in recalling the warrant of arrest and subsequently
dismissing the case against Billy Cerbo, Citing jurisprudence,[4] the appellate court held as
follows:

The ruling is explicit. If upon the filing of the information in court, the trial judge, after
reviewing the information and the documents attached thereto, finds that no probable cause exist
must either call for the complainant and the witnesses or simply dismiss the case.

Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case,
alleging that the facts therein are different from the instant case. We rule that the disparity of
facts does not prevent the application of the principle.

We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the
additional facts and circumstance alleged therein, we cannot say that respondent judge gravely
abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of
probable cause

xxx xxx xxx

"The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should
have presented additional evidence sufficiently and credibly demonstrating the existence of
probable cause.

xxx xxx xxx[5]

In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of
discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and
subsequently dismissing the Information for murder filed against the private respondent, because
the evidence presented thus far did not substantiate such charge.
Hence, this petition.[6]

The Assigned Errors

Petitioner Dy avers:

1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had
the authority to reverse [the public prosecutors] finding of probable cause to prosecute
accused xxx and thus dismiss the case filed by the latter on the basis of a motion to quash
warrant of arrest.

2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of
Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear
difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on
the matter.[7]

On the other hand, the solicitor general posits this sole issue:

Whether the Court of Appeals erred in finding that no probable cause exists to merit the filing of
charges against private respondents Billy Cerbo.[8]

71
 Essentially, the petitioners are questioning the propriety of the trial courts dismissal, for
want of evidence, of the Information for murder against Private Respondent Billy Cerbo.
In resolving this petition, the discussion of the Court will revolve two points: first, the
determination of probable cause as an executive and judicial function and, second, the
applicability of Allado and Salonga to the case at bar.

The Courts Ruling

The petition is meritorious. The trial court erred in dismissing the Information filed against
the private respondent. Consequently, the Court of Appeals was likewise in error when it upheld
such ruling.

Executive Determination of Probable Cause

The determination of probable cause during a preliminary investigation is a function that

belongs to the public prosecutor. It is an executive function,[9] the correctness of the exercise of
which is a matter that the trial court itself does not and may not be compelled to pass upon. The
Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of
Appeals[10] succinctly elucidates such point in this wise:
xxx xxx xxx

In this special civil action, this Court is being asked to assume the function of a public
prosecutor. It is being asked to determine whether probable cause exists as regards
petitioners. More concretely, the Court is being asked to examine and assess such evidence as
has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to
whether or not it suffices to engender a well founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should be held for trial.

It is a function that this Court should not be called upon to perform. It is a function that properly
pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court
are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively
pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in
the established scheme of things, is supposed to be performed at the very genesis of, indeed,
prefatorily to, the formal commencement of a criminal action. The proceedings before a public
prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a
final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with
a felony or crime.

Whether or not that function has been correctly discharged by the public prosecutor i. e.,
whether or not he has made a correct ascertainment of the existence of probable cause in a case,
is a matter that the trial court itself does not and may not be compelled to pass upon. It is not for
instance permitted for an accused, upon the filing of the information against him by the public
prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or
dismissal of the indictment on the ground that the evidence upon which the same is based is
inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate,
for the complaining party to present a petition before the Court praying that the public prosecutor
be compelled to file the corresponding information against the accused.

xxx xxx xxx

Indeed, the public prosecutor has broad discretion to determine whether probable cause exist
and to charge those whom be or she believes to have committed the crime as defined by

72
law.Otherwise stated, such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court.[11] Thus, in Crespo v. Mogul,[12] we ruled:

It is a cardinal principle that all criminal actions either commenced by complaint or by

information shall be prosecuted under the direction and control of the fiscal. 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 follow 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. The reason for placing the criminal prosecution under the direction and
control of the fiscal is to prevent malicious or unfounded prosecutions by private persons.
xxx 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. They have equally the duty not to prosecute when the evidence adduced is not sufficient
to establish a prima facie case.

This broad prosecutorial power is however not unfettered, because just as public prosecutors
are obliged to bring forth before the law those who have transgressed it, they are also constrained
to be circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by
regional trial courts preliminary investigations are usually conducted. In Ledesma v. Court of
Appeals,[13] we discussed the purposes and nature of a preliminary investigation in this manner:

The primary objective of a preliminary investigation is to free respondent from the

inconvenience, expense, ignominy and stress of defending himself/herself in the course of a
formal trial, until the reasonable probability of his or her guilt in a more or less summary
proceeding by a competent office designated by law for that purpose. Secondarily, such
summary proceeding also protects the state from the burden of the unnecessary expense an effort
in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless
charges.

"Such investigation is not part of the trial. A full and exhaustive presentation of the parties
evidence is not required, but only such as may engender a well-grounded belief than an offense
has been committed and that the accused is probably guilty thereof. By reason of the abbreviated
nature of preliminary investigations, a dismissal of the charges as a result thereof is not
equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.

Judicial Determination of Probable Cause

The determination of probable cause to hold a person for trial must be distinguished from
the determination of probable cause to issue a warrant of arrest, which is judicial function. The
judicial determination of probable cause in the issuance of arrest warrants has been emphasized
in numerous cases. In Ho v. People,[14] the Court summarized the pertinent rulings on the subject,
as follows:

The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we
explained again what probable cause means. Probable cause for the issuance of a warrant of
arrest is the existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person sought to be
arrested. Hence, the judge, before issuing a warrant of arrest, must satisfy himself that based on
the evidence submitted, there is sufficient proof that a crime has been committed and that the
person to be arrested is probably guilty thereof. At this stage of the criminal proceeding, the
judge is not yet tasked to review in detail the evidence submitted during the preliminary
investigation. It is sufficient that he personally evaluates such evidence in determining probable
cause. In Webb v. De Leon, we stressed that the judge merely determines the probability, not the
certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He

73
simply personally reviews the prosecutors initial determination finding probable cause to see if it
is supported by substantial evidence.

xxx xxx xxx

In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be
too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the
determination of probable cause by the prosecutor is for the purpose different from that which is
to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty
of the offense charged and should be held for trial is what the prosecutor passes upon. The
judge, on the other hand, determines whether a warrant of arrest should be issued against the
accused, i.e., whether there is a necessity for placing him under immediate custody in order not
to frustrate the ends of justice. Thus, even if both should base their findings on one and the same
proceedings or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and
understandably, the contents of the prosecutors report will support his own conclusion that there
is reason to charge the accused of an offense and hold him for trial. However, the judge must
decide independently. Hence, he must have supporting evidence, other than the prosecutors bare
report upon which to legally sustain his own findings on the existence or non-existence of
probable cause to issue an arrest order. This responsibility of determining personally and
independently the existence of non-existence of probable cause is lodge in him by no less than
the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge
and speed up the litigation process by forwarding to the latter not only the information and his
bare resolution, but also so much of the records and the evidence on hand as to enable His Honor
to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the time simply for the
purpose of ordering the arrest of the accused. What is required, rather, is that the judge must have
sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic notes, if any) upon which to make his
independent judgment, or at the very least, upon which to verify the findings of the prosecutor as
to the existence of probable cause. The point is: he cannot rely solely and entirely on the
prosecutors recommendation, as the Respondent Court did in this case. Although the prosecutor
enjoys the legal presumption of regularity in the performance of his duties and functions which
in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the
judge to personally determine probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on the certification or
the report of the investigating officer.

xxx xxx xxx

Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there
is no probable cause for doing so. Corollary to this principle, the judge should not override the
public prosecutors determination of probable cause to hold an accused for trial, on the ground
that the evidence presented to substantiate the issuance of an arrest warrant insufficient, as in the
present case.
Indeed, it would be unfair to expect the prosecution to present all the evidence needed to
secure the conviction of the accused upon the filing of the information against the latter. The
reason is found in the nature and the objective of a preliminary investigation. Here, the public
prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the
person charged; they merely determine whether there is sufficient ground to engender a well-
founded belief that a crime x x x has been committed and that the respondent is probably guilty
thereof, and should be held for trial.[15] Evidentiary matters must be presented and heard during

74
the trial.[16] Therefore, if the information is valid on its face, and there is no showing of manifest
error, grave abuse of discretion and prejudice on the part of public prosecutor, the trial court
should respect such determination.

Inapplicability of Allado and Salonga

The Court of Appeals anchored its ruling on the pronouncement made in Allado v.
Diokno: xxx [I]f, upon the filing of the information in court, the trial judge, after reviewing the
information and the documents attached thereto, must either call for the complainant and the
witnesses themselves or simply dismiss the case. there is no reason to hold the accused for trial
and further expose him to an open and public accusation of the crime when no probable cause
exists.[17]
In Allado, Petitioners Diosdado Jose Allado and Roberto L. Mendoza, practicing lawyers,
were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder
and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned
the issuance of the warrants for their arrest, contending that the respondents judge acted with
grave abuse of discretion and in excess of his jurisdiction in holding that there was probable
cause against them. They contended that the trial court relied merely on the resolution of the
investigating panel and its certification that probable cause existed, without personally
determining the admissibility and sufficiency of the evidence for such finding and without
stating the basis thereof. they maintained that the records of the preliminary investigation, which
was the sole basis of the judges ruling, failed to establish probable cause against them that would
justify the issuance of the warrants for their arrest.
The Court declared that Judge Diokno had indeed committed grave abuse of discretion in
issuing the arrest warrants. Contrary to the constitutional mandate and establish jurisprudence, he
merely relied on the certification of the prosecutors as to the existence of probable cause, instead
of personally examining the evidence, the complainant and his witnesses. For otherwise, the
Court said, he would have found out that the evidence thus far presented was utterly insufficient
to warrant the arrest of the petitioners.[18]
In categorically stating that the evidence so far presented did not meet the standard of
probable cause and subsequently granting the petition, the Court noted the following
circumstances: first, the corpus delicti was not established, and there was serious doubt as to the
alleged victims death; second, the extrajudicial statement of the principal witness, who had
priorly confessed his participation in the crime, was full of material inconsistencies; and third,
the PACC operatives who investigated the case never implicated the petitioners.
Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out that when there was no prima
facie case against a person sought to be charged with a crime, the judge or fiscal, therefore,
should not go on with the prosecution in the hope that some credible evidence might later turn
out during trial, for this would be a flagrant violation of a basic right which the courts are created
to uphold.[19]
In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information
for violation of the Revised Anti-Subversion Act, which Judge Ernani Cruz-Pano had ordered to
be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the
Information was based was not sufficient to charge him for a violation of the Revised Anti-
Subversion Act.
In all, the Court decreed in both cases that there was no basis in law and in fact for the
judicial and executive determination of probable cause. The Court also held that the government,
while vested with the right and the duty to protect itself and its people against transgressors of
the law, must perform the same in a manner that would not infringe the perceived violators rights
as guaranteed by the constitution.
However, the present case is not at all fours with Allado and Salonga. First, Elsa Gumban,
the principal eyewitness to the killing of Rosalinda Dy, was not a participant or conspirator in the

75
commission of said crime. In Allado and Salonga, however, the main witness were the confessed
perpetrators of the crimes, whose testimonies the Court deemed tainted. [20] Second, in the case at bar the
private respondent was accorded due process, and no precipitate haste or bias during the investigation of
the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue
haste in the filing of the Information and the inordinate interest of the government in pursuing the
case;[21] and in Salonga, xxx the failure of the prosecution to show that the petitioner was probably guilty
of conspiring to commit the crime, the initial disregard of petitioners constitutional rights [and] the
massive and damaging publicity made against him.[22]In other words, while the respective sets of evidence
before the prosecutors in Allado and Salonga were utterly insufficient to support a finding of probable
cause, the same cannot be said of the present case.
We stress that Allado and Salonga constitute exceptions to the general rule and may be invoke only
if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such
similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply
to it.

Motion Without Requisite Notice

One more thing. Petitioners aver that Private Respondents Cerbo did not give them a copy of the
motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the schedule
hearing. Thus, they contend, Judge Valles should not have entertained such motion.
It is settled that every written motion in a trial court must be set for hearing by the applicant and
served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The
provisions on this matter in Sections 4 and 5, Rule 15 of the Rules of Court,[23] are categorical and
mandatory in character.[24] Under Section 6 of the said rule, no motion shall be acted upon by the court
without proof of service thereof. The rationale for this is simple: unless the movants set the time and the
place of hearing, the court will be unable to determine whether the adverse parties agree or object to the
motions, since the rules themselves do not fix any period within which they may file their replies or
oppositions.[25]
The motion to quash the warrant of arrest in the present case being pro forma, inasmusch as the
requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to
act on it.

Epilogue

In granting this petition, we are not prejudging the criminal case or guilt or innocence of Private
Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its
face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the
public prosecutor, courts should not dismiss it for want of evidence, because evidentiary matters should
be presented and heard during the trial. The functions and duties of both the trial court and the public
prosecutor in the proper scheme of things in our criminal justice system should be clearly understood.
The rights of the people from what could sometimes be an oppressive exercise of government
prosecutorial powers do need to be protected when circumstance so require. But just as we recognize this
need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no
showing of nefarious irregularity or manifest error in the performance of a public prosecutors duties,
courts ought to refrain from interfering with such lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the public prosecutors finding
of probable cause, the accused can appeal such finding to the justice secretary[26] and move for the
deferment or suspension of the proceedings until such appeal is resolved.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan,
Davao, which is ordered to reinstate the amended Information against Private Respondent Billy Cerbo
and to proceed with judicious speed in hearing the case. No costs.
SO ORDERED.

76
 [A.M. No. MTJ-99-1221. March 16, 2000]

JOSEFINA M. VILLANUEVA, complainant, vs. JUDGE BENJAMIN E.

ALMAZAN, respondent.

DECISION

PURISIMA, J.:

At bar is an administrative case instituted by Josefina M. Villanueva against Judge Benjamin E.

Almazan for gross ignorance of the law, abuse of discretion, partiality and gross misconduct.

The verified letter-complaint[1] filed with the Office of the Court Administrator averred that the
acts of Judge Benjamin E. Almazan complained of were committed as follows:

On October 9, 1997, the complainant filed with the Municipal Trial Court of Santo Tomas, La
Union, presided over by respondent Judge, two (2) Complaints for Grave Oral Defamation
against one Teresita Nabayan, docketed as Criminal Cases Nos. 3097 and 3098, respectively.

On the same day, the respondent Judge, conducted a "preliminary examination", after which he
issued the following Order downgrading the crimes charged to simple slander, to wit:

"The Court conducted the necessary preliminary examination to determine the

existence of probable cause by asking searching questions to the witnesses for the
prosecution. In the course of investigation, the Court is convinced that the offense
committed by the accused was just simple slander.

In view of the findings of the Court in the two (2) entitled cases, the accused is
hereby ordered to submit her counter-affidavit including that of her witness/es
well as exhibits or evidence/s if there be any within ten (10) days from receipt of
this order. Failure on her part to comply with his order, she is barred to present
evidence during the trial of this case."

On the November 21, 1997, the complainant presented a Manifestation with Motion for
Reconsideration, contending that the aforesaid action of respondent judge does not accord with
the Rules of Court under which the judge has no authority to downgrade subject accusation from
grave oral defamation to simple slander. In due time, the motion for reconsideration[2] was
denied for failure of the private prosecutor[3] to get the conformity thereto of the public
prosecutor.[4]

On January 20, 1998, the day before the scheduled arraignment and pre-trial in the said cases,
complainant asked for the inhibition of Judge Benjamin E. Almazan from the said cases on the
ground that the latter used to be a law partner of the defense counsel. Said request or motion for
inhibition, which was denied, infuriated the respondent Judge who then subjected her
(Complainant) to verbal abuse. When asked why he downgraded the charge to that of simple
slander, respondent Judge explained to the complainant that he did so "because your answers
were wrong".

On January 21, 1998, accused Teresita Nabayan was arraigned in the absence of the public
prosecutor, who did not receive any calendar of cases for that day.

The same complaint sought to have Clerk of Court Violeta R. Villanueva investigated for blatant
partiality and influence peddling, alleging that the latter discussed the cases during mahjong
sessions where she entertained some litigants. Also, she (Violeta R. Villanueva) refused to
officially receive the pleading of the herein complainant so as not to mess up the records, and
was only forced to receive the same when she got a dressing down from the lawyer of
complainant.

77
Respondent Judge and respondent Violeta R. Villanueva submitted their Comments, dated
December 24, 1998, which the Office of the Court Administrator received on January 18, 1999.

Explaining his aforementioned action complained of, respondent Judge contended that he
conducted a preliminary examination of the complainant and her two (2) eye witnesses, and
thereafter, arrived at the conclusion that the acts allegedly committed were not grave oral
defamation, as averred in the complaint, such that he issued his questioned Order to the effect
that the accused in subject cases should be charged with simple slander only.

Respondent Judge theorized that his trouble with the complainant started when he denied her
motion in subject criminal cases to amend the Complaint so as to reflect the correct dates of
commission of the crimes charged, and the complainant was incensed by the failure of the court
to grant her motion, and by the adverse effect on complainants position of the action thus taken
by respondent judge in the said cases when she requested him to inhibit therefrom. Respondent
Judge maintained that the denial of the motion for reconsideration of complainant was proper
because amendment of the complaint could only be made with conformity of the public
prosecutor who intervened to prosecute the said cases.

Respondent Clerk of Court Violeta R. Villanueva denied the allegations of the complaint,
branding the same baseless, motivated by ill will and a mere harassment, considering that she has
no power to influence or interfere with the issuance of the orders, decisions, or actuations of
respondent judge. She brushed aside as blatant lies the allegation that she attends mahjong
sessions during office hours and entertains thereat litigants who need her services. That she
discussed cases during such sessions is a mere speculation, since the complainant could not have
gotten such information as she spent most of her time in Manila.

As regards the accusation that she was taking sides, this respondent maintained that the same is a
fabrication by the complainant who wanted to impose her will upon the court.

On July 27, 1999, there was received from the Court Administrator[5] the report finding
respondent judge administratively liable and recommending that he be fined Five Thousand
(P5,000.00) Pesos, with stern warning that a repetition of the same or similar act shall be dealt
with more severely.

The same report recommended the dismissal of the complaint against Violeta R. Villanueva for
insufficiency of evidence.[6]

In response to the Resolution of the Court dated August 23, 1999, respondent Judge manifested
in a letter, dated September 20, 1999, that he was submitting the case on the basis of the
pleadings and records.

The principal issues for resolution here concern the propriety of the preliminary investigation
conducted by respondent judge, and the arraignment of the accused in subject criminal cases.
Corollarily, the downgrading of the said cases, and denial of complainant's motion to inhibit
respondent judge from trying the same cases are denounced.

After a thorough examination of the report and the records on hand, the Court finds merit in the
recommendation of the Court Administrator.

The root of the controversy is the unfamiliarity of respondent judge with the rules applicable in
cases requiring preliminary investigation.

Section 1, Rule 112 of the Rules of Court reads:

SECTION 1. Definition. -- reliminary investigation is an inquiry or proceeding for

the purpose of determining whether there is sufficient ground to engender a well-
founded belief that a crime cognizable by the Regional Trial Court has been

78
 committed and that the respondent is probably guilty thereof, and should be held
for trial.[7]

Section 9, of the same Rules provides:

SEC 9. Cases not falling under the original jurisdiction of the Regional Trial
Courts nor covered by the Rule on Summary Procedure. -

xxx.....xxx.....xxx

(b) Where filed directly with the Municipal Trial Court. -- If the complaint or
information is filed directly with the Municipal Trial Court, the procedure
provided for in Section 3(a) of this Rule shall likewise be observed. If the judge
finds no sufficient ground to hold the respondent for trial, he shall dismiss the
complaint or information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing an under oath the complainant and his witnesses
in the form of searching questions and answers.

Contrary to the clear mandate of the aforestated rules, the respondent Judge conducted the
preliminary investigation culminating in the lowering of the charge to simple slander. The
original charge for grave oral defamation is punishable[8] by arresto mayor in its maximum
period to prision correccional in its minimum period, while simple slander is punishable
by arresto menor or a fine not exceeding 200 pesos. Thus, the original charges were cognizable
by the Municipal Trial Court and did not require a preliminary investigation. The proper action
the respondent judge could have taken under the premises was to dismiss the complaint if found
to be without any basis for further proceedings or if warranted, to issue a warrant of arrest for the
respondent, and after arrest, to hold him for trial. It is decisively clear that in conducting the
preliminary investigation under attack, the respondent judge exceeded his authority under the
pertinent rules.

In his Comment, respondent judge was careful to refer to his challenged action as a preliminary
examination. Be that as it may, when he concluded that the proper charge should be simple
slander, after examining the complainant and her witnesses in subject criminal cases, respondent
Judge, in effect, conducted a preliminary investigation. Not only was such preliminary
investigation defective; it was a patent error because no preliminary investigation is required for
criminal cases cognizable by Municipal Trial Courts. It is only required for those cognizable by
the Regional Trial Court.[9] Consequently, the respondent judge was devoid of jurisdiction or
authority to reduce the charge to simple slander.

Furthermore, in Bagunas vs. Fabillar,[10] the Court reiterated that under the new rules of
procedure, preliminary investigation has only one stage, viz.:

"(u)nder the old rules, the preliminary investigation conducted by a municipal

judge had two stages: (1) the preliminary examination stage during which the
investigating judge determines whether there is reasonable ground to believe that
an offense has been committed and the accused is probably guilty thereof, so that
a warrant of arrest may be issued and the accused held for trial; and (2) the
preliminary investigation proper where the complaint or information is read to the
accused after his arrest and he is informed of the substance of the evidence
adduced against him, after which he is allowed to present evidence in his favor if
he so desires. Presidential Decree 911, upon which the present rule is based,
removed the preliminary examination stage and integrated it into the preliminary
investigation proper. Now, the proceedings consist only of one stage."
(Underscoring supplied)

In the present cases, the respondent judge showed his ignorance not only of the scope of his
authority to conduct preliminary investigation[11] but also of the procedure to follow in

79
conducting a preliminary investigation. Where, as in this case, the law involved is simple and
elementary, lack of conversance therewith constitutes gross ignorance of the law. Judges are
expected to exhibit more than just cursory acquaintance with statutes and procedural laws. They
must know the laws and apply them properly in all good faith. Judicial competence requires no
less.[12]

Equally erroneous was the action of respondent judge in proceeding with the arraignment of the
accused in subject criminal cases without the participation of a government prosecutor. The
Court need not belabor the point that as the officer in charge of prosecuting criminal cases for the
government, rudiments of due process require that the public prosecutor must be afforded an
opportunity to intervene in all stages of the proceedings. Here, it cannot be denied that the public
prosecutor assigned to handle Criminal Cases Nos. 3097 and 3098 was not notified by
respondent judge of the scheduled trial of said cases. That the public prosecutor in the said
criminal cases had an arrangement with the respondent Judge as early as June 1997 - that trial of
cases requiring his appearance be transferred from the previous Tuesday schedule to
Wednesdays, did not excuse the failure of the latter to notify the former of the scheduled trial on
January 21, 1998 (a Wednesday) in subject criminal cases.

Concerning the refusal of respondent judge to inhibit from the cases in question, the Court is not
convinced of the need therefor. In this connection, the Court Administrator observed that the
complainant wrote respondent judge, asking him to inhibit from subject criminal cases, but a
formal motion therefor was necessary so that the alleged grounds thereof could be ventilated
properly.[13]

As a matter of fact, the request or motion for inhibition was taken up during the scheduled
arraignment of the accused on November 12, 1997, when the private prosecutor asked the
respondent Judge to inhibit himself from subject cases. Acting thereupon, respondent judge
ordered the lawyer to file the corresponding motion within five (5) days from receipt of the
Order; and in the meantime, he suspended the arraignment of the accused. However, the private
prosecutor did not file the required motion for inhibition, an omission which was interpreted as
abandonment of the stance of the complainant to inhibit the respondent Judge from hearing
subject cases.[14]

WHEREFORE, Judge Benjamin E. Almazan is hereby found GUILTY of gross ignorance of

the law and is hereby sentenced to pay a fine of Five Thousand (P5,000.00) Pesos, with stern
warning that a repetition of the same or similar act shall be dealt with more severely. Let copy of
this Decision be attached to the personal records of respondent Judge.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

80
 [A.M. No. MTJ-02-1398. February 27, 2002]

JOSELITO R. ENRIQUEZ, complainant, vs. JUDGE PLACIDO B. VALLARTA,

Municipal Circuit Trial Court (MCTC), Cabiao- San
Isidro, NuevaEcija, respondent.

DECISION
MENDOZA, J.:

This is a complaint against Judge Placido B. Vallarta, Presiding Judge of the Municipal
Circuit Trial Court (MCTC), Cabiao-San Isidro, Nueva Ecija, for falsification of certificates of
service, gross ignorance of the law, and grave abuse of authority and discretion, in connection
with his handling of Criminal Case No. 215-98, entitled People of
the Philippines vs. Venancio Santos. The complainant, Atty. Joselito R. Enriquez, was counsel
for the accused in Criminal Case No. 215-98 for malicious mischief, before the court of
respondent judge. The criminal case involved the alleged malicious cutting by the
accused Venancio Santos of the branches of a tamarind tree worth P20,000.00. Since the penalty
for the crime under Art. 329 (1) of the Revised Penal Code is arresto mayor, or from one (1)
month and one (1) day to six (6) months, the case is governed by the Revised Rule on Summary
Procedure.
Complainant claims in the case at bar that respondent judge allowed the prosecution of the
case to be conducted by a private prosecutor without the participation of a public prosecutor. He
further alleges that upon the conclusion of the case, respondent judge ordered the parties to
submit memoranda, which is prohibited under 19(f) of the Revised Rule on Summary Procedure.
It appears that complainant complied with the submission of the memorandum, but the private
prosecutor did not. On March 28, 2000, noting the failure of the prosecution to file a
memorandum, respondent judge considered the case submitted for decision.
Respondent judge subsequently found complainants client guilty of the crime charged and
sentenced him to 25 days of imprisonment without costs. The decision, dated April 27, 2002,
was actually promulgated on September 26, 2000. Complainant claims that respondent judge
might have falsified his Certificate of Service for the period covering June to September 2000 by
not stating that the case in question was still pending decision despite the lapse of the 90-day
period prescribed in Art. VIII, 15(1) of the Constitution. The case is now before the Regional
Trial Court of Gapan, Nueva Ecija in view of the appeal of the accused.
In his comment, respondent judge argues that the appearance and intervention of a private
prosecutor in the criminal case is authorized by Rule 110, 5 of the 1985 Rules of Criminal
Procedure (now Revised Rules of Criminal Procedure), as held in People v. Beriales.[1] As for his
order requiring the parties to submit their memoranda, respondent judge says that what he
actually meant was for them to submit a position paper. Respondent judge explained that such
lapse was due to the fact that he had so many things to do, having been assigned to three courts
and holding daily hearings. Finally, he maintains that the decision, dated April 27, 2000, was
rendered within 30 days counted from the order, dated March 28, 2000, as provided in the
Revised Rule on Summary Procedure.
The Office of the Court Administrator found the explanation of respondent judge on the use
of memorandum as merely a lapse in language and agreed that the intervention of a private
prosecutor was authorized under the Rules of Criminal Procedure. However, it found respondent
liable for his failure to timely decide the case within 30 days from the date it was submitted for
decision and recommended that respondent be ordered to pay a fine of P1,000.00 with warning
that a repetition of the same offense will be dealt with more severely.
First. We agree with the Office of the Court Administrator that respondent judge cannot be
faulted for allowing the intervention of a private prosecutor in the trial of Criminal Case No.
215-98.

81
 Rule 110, 5 of the Revised Rules of Criminal Procedure (2000) provides:

All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit
Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended
party, any peace officer or public officer charged with the enforcement of the law violated may
prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court. . . . (emphasis supplied)

Absent any showing to the contrary, it will be presumed that official duty was regularly
performed. This presumption is reinforced in this case by the fact that complainant, as counsel
for the accused, failed to object to the absence of the public prosecutor, giving rise to the
presumption that the intervention of a private prosecutor was due to the unavailability of the
public prosecutor. By failing to make a timely objection, complainant must be deemed to have
waived his objection to the proceedings before respondent judge.
Second. The Revised Rule on Summary Procedure provides in pertinent parts:

Section 1. Scope. This rule shall govern the summary procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial
Courts in the following cases falling within their jurisdiction:

....

B. Criminal Cases:

....

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

Sec. 19. Prohibited pleadings and motions. The following pleadings, motions or petitions shall
not be allowed in the cases covered by this Rule:

....

(f) memoranda, . . . (emphasis supplied)

By directing the filing of memoranda in the criminal case, respondent judge evidently was
unaware that a requirement to submit a memorandum is prohibited in a summary
proceeding. The purpose of the prohibition is to carry out the objective of the Revised Rule on
Summary Procedure to promote the expeditious and inexpensive determination of small or
simple cases, such as the criminal case at bar which, as already stated, simply involved the
cutting of the branches of a tamarind tree by the accused.
The explanation of respondent judge that what he really meant was a position paper and he
only stated in his order memorandum through inadvertence cannot be accepted by the
Court. Such mistake cannot be an innocuous one because a position paper is required at the
beginning of the case, after the filing by the parties of their affidavits constituting their
evidence.[2] On the other hand, a memorandum is one which other trial courts may require at the
conclusion of a trial.[3] What is more, the provision on position papers applies to civil cases only.
In criminal cases, no provision for a position paper is allowed for the reason that after the filing
of affidavits and counter-affidavits the court is required to proceed with the trial of the
case.[4] Consequently, respondent judges excuse that what he meant was a position paper and not
a memorandum is even more revealing of his unawareness of the applicable rules.

82
 That respondent judge had a heavy caseload cannot justify his failure to observe a provision
that particularly applies to him. The Code of Judicial Conduct pertinently provides:

Rule 3.01. A judge shall be faithful to the law and maintain professional competence. (emphasis
supplied)

Canon 18 of the Code of Judicial Ethics is equally clear:

Canon 18. INFLUENCE OF DECISIONS UPON THE DEVELOPMENT OF THE LAW

A judge should be mindful that his duty is the application of general law to particular instances,
that ours is a government of laws and not of men, and that he violates his duty as a minister of
justice under such a system if he seeks to do what he may personally consider substantial justice
in a particular case and disregards the general law as he knows it to be binding on him. Such
action may become a precedent unsettling accepted principles and may have detrimental
consequences beyond the immediate controversy. He should administer his office with a due
regard to the integrity of the system of the law itself, remembering that he is not a depository of
arbitrary power, but a judge under the sanction of law. (emphasis supplied)

Considering, however, that complainant failed to object to the order requiring the parties to
file memoranda and that generally the prohibition is intended for the benefit of the prosecutor, a
fine of P1,000.00 will suffice for the purposes of this case.
Third. As to the failure of respondent judge to promulgate the decision on the criminal case
within the period provided under the Revised Rule on Summary Procedure, we find the report
and recommendation of the Office of the Court Administrator to be well taken.
Article VIII, 15 of the Constitution requires courts to decide cases submitted for decision generally within three
(3) months from the date of submission, unless the period is reduced by this Court. With respect to cases falling
under the Revised Rule on Summary Procedure, promulgated by this Court to implement the constitutional
provision on the speedy disposition of cases, first level courts are allowed only 30 days following the receipt of the
last affidavit and position paper, or the expiration of the period for filing the same, within which to render
judgment.[5]
The Revised Rule on Summary Procedure provides in 17 that the lower court shall promulgate the judgment
not later than 30 days after the termination of the trial. In Criminal Case No. 215-98, the trial was terminated
on January 17, 2000, per the order of respondent judge himself. However, respondents decision was promulgated
only on September 26, 2000. Therefore, the promulgation of the judgment took place 253 days after the termination
of the trial. Even if the trial was terminated on February 29, 2000, when the parties were supposed to submit their
memorandum, the promulgation of the judgment would still be beyond the limit of 30 days, being 210 days after the
termination of the trial.
Indeed, although the decision was dated April 27, 2000, no reason has been given why it was not promulgated
shortly after that date, but only after five months from the date the decision was allegedly written. Promulgation of
judgment means the reading of the judgment or sentence in the presence of the accused and the judge of the court
who rendered it.[6] It is not the date of the writing of the decision or judgment, as respondent claims. From March 28,
2000, when the case was submitted for decision, to September 26, 2000, when the decision was promulgated, was a
period of 182 days. Clearly, this is way beyond the period allowed by the rules.
Respondents failure to decide the case on time constitutes a violation of Canon 3, Rule 3.05 of the Code of
Judicial Conduct, which enjoins judges to dispose of their business promptly and decide cases within the required
period.[7] The need to decide cases promptly and expeditiously cannot be overemphasized, for justice delayed is
justice denied. Delay in the disposition of cases undermines the peoples faith and confidence in the judiciary. Hence,
the failure of judges to render judgment within the required period constitutes gross inefficiency, warranting the
imposition of administrative sanctions on them.[8] For this lapse, respondent should be fined P1,000.00.
WHEREFORE, Judge Placido B. Vallarta is found guilty of ignorance of the law and delay in the disposition
of cases and is hereby ordered to pay a fine of P2,000.00, with admonition to be more conscientious and prompt in
the performance of his duties and with warning that repetition of similar infractions will be sanctioned more
severely.
SO ORDERED.

83
 [G.R. No. 151068. May 21, 2004]

BENITO C. SALAZAR, petitioner, vs. HON. TOMAS R. ROMAQUIN, in his capacity as

Presiding Judge of Br. 2 of the Regional Trial Court of Kalibo, Aklan, THE
PEOPLE OF THE PHILIPPINES, represented by AKLAN PROVINCIAL
PROSECUTOR HON. LOURDES QUIMPO-MAYOR, HEIRS OF RAYMUNDO
RODRIGUEZ, and JODEL B. RENTILLO, respondents.

RESOLUTION
CALLEJO, SR., J.:

This is a petition for review of the Resolution[1] of the Court of Appeals in CA-G.R. SP No.
67252 denying due course and dismissing the petition for certiorari of petitioner Benito Cortez
Salazar, on the ground that he served a copy of his petition on the respondent People of the
Philippines, through the Provincial Prosecutor, and not through the Office of the Solicitor
General; and, the resolution of the appellate court denying the petitioners motion for
reconsideration of the said resolution.

The Antecedents

On May 12, 2001, the Provincial Prosecutor of Aklan filed an Information in the Regional
Trial Court of Kalibo, Aklan, charging the petitioner with murder. The accusatory portion reads:

That on or about 8:30 oclock in the morning of April 26, 2001, in Barangay Dumaguit,
Municipality of New Washington, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with treachery
and use of superior strength, with intent to kill and without any justifiable cause, did then and
there willfully, unlawfully and feloniously attack, assault and shoot one RAYMUNDO
RODRIGUEZ, hitting the latter on the different parts of his body which caused his instantaneous
death. Xeroxed copy of the Post-Mortem Examination is hereto attached as Annex A and made
an integral part of this information.

By reason of the unlawful acts of the accused, the family of the victim suffered P100,000.00
actual damages.

CONTRARY TO LAW.[2]

The Provincial Prosecutor recommended no bail in this case, docketed as Criminal Case No.
6002.
Barely three hours after filing the Information, the Provincial Prosecutor filed an Urgent Ex-
Parte Motion for Issuance of Warrant of Arrest in the said case alleging, inter alia, that:

There is an urgent need for the issuance of Warrant of Arrest against the accused as the lives of
some people are in danger considering that the motive is political and with the election day on
May 14, 2001, there is an urgent need to protect the public from anymore bloodshed and as
wrongly or intentionally design by the accused, if the motive is infidelity, to protect the life of
her wife, Noli Marie Salazar, who is residing on the same address in Dumaguit, New
Washington, Aklan.[3]

On May 12, 2001, Executive Judge Sheila Martelino-Cortes issued an Order granting the
motion.[4] On the same day, the trial court issued a warrant for the petitioners arrest. [5] However,
the petitioner was nowhere to be found, and as such, the police officers failed to serve the

84
warrant on him. The case was later raffled to Branch 2 of the court, presided by Judge Tomas R.
Romaquin.
On May 15, 2001, the petitioner received a copy of the Joint Resolution of the Investigating
Prosecutor finding probable cause for murder against him which formed the basis for the filing
of the Information.
On May 16, 2001, the petitioner filed in the RTC an Urgent Motion to Suspend Proceedings
and to Lift Warrant of Arrest. The petitioner alleged, inter alia, that he had filed a petition for
review of the Joint Resolution of the Investigating Prosecutor finding probable cause for murder
against him in the Office of the Secretary of Justice. The petitioner cited Rule 112, Section 4 of
the Rules of Court and the ruling of this Court in Roberts, Jr. vs. Court of Appeals,[6] to support
his plea for the suspension of the proceedings. To justify his motion for the lifting of the warrant
of arrest issued against him, the petitioner alleged, thus:

... He further submits that this motion is in consonance with his constitutional presumption of
innocence and will not prejudice anyone. Accused is a person of good moral standing, a member
of the bar and an officer of the court, a noted businessman, and had served the Philippine
government until April 2001, as President of the Food Terminal, Inc. He is innocent of the
charges in this case and has no intention whatsoever to avoid the jurisdiction of the Honorable
Court and the proceedings in this case.[7]

The provincial prosecutor opposed the motion, contending that the filing of a petition for
review of the investigating prosecutors resolution in the Office of the Secretary of Justice was
not a justification for the suspension of the enforcement of the warrant of arrest issued by the
court. The petitioner, the Provincial Prosecutor averred, cannot rely on the ruling in Roberts, Jr.
vs. Court of Appeals[8] because the facts therein are different from those in the case before the
court. Moreover, the Provincial Prosecutor averred, the petitioner had not yet been arrested;
hence, the court had not yet acquired jurisdiction over his person. The prosecution asserted that
the petitioners filing of a motion for the lifting of the warrant of arrest against him did not
constitute a voluntary appearance before the court.
The petitioner filed on May 29, 2001 a supplement to his motion, alleging that since
Executive Judge Martelino-Cortes was the aunt of the wife of the deceased, it was illegal for her
to have acted on the provincial prosecutors motion for the issuance of a warrant of arrest against
him, and to thereafter grant the motion and issue the said warrant. Hence, according to the
petitioner, the Executive Judge was disqualified to act on the motion, viz:

4. Finally, the Honorable Executive Judge is related within the fifth degree of consanguinity to
Vivien Y. Bontogon-Rodriguez, wife of the deceased, Raymundo Rodriguez. Vivien is the
daughter of her first cousin Angela Yap-Bontogon, and therefore, a niece of the Honorable
Executive Judge. In view of this relationship, the Honorable Executive Judge is disqualified to sit
in any case or in any proceedings involving the death of Raymundo Rodriguez. She should have
refused to act on Prosecutor Mayors motion for issuance of the warrants of arrest.[9]

The provincial prosecutor disagreed with the petitioner and averred in his reply to the
supplement to the petition that the petitioner failed to prove the relationship of the Executive
Judge to the wife of the deceased. He asserted that the matter of the inhibition of the judge
should have been addressed to her, and that even with her disqualification, the warrant of arrest
and the order she issued were valid.
On August 10, 2001, Judge Tomas R. Romaquin, who presided over Branch 2 of the court,
issued an Order granting the petitioners motion to suspend the proceedings.However, the
petitioners motion to lift warrant of arrest was denied. The petitioner filed a motion for partial
reconsideration of the order, but the court denied the same. The trial court declared that the
issues raised by the petitioner had become moot and academic since the Secretary of Justice had
denied his petition for review and affirmed the joint resolution of the investigating prosecutor
finding probable cause against him.

85
 The petitioner forthwith filed a petition for certiorari in the Court of Appeals on November
5, 2001, assailing the orders of the RTC. However, the petitioner failed to submit proof of
service of copies of his petition on the respondent RTC, the People of the Philippines and Jodel
Rentillo.
On November 12, 2001, the Court of Appeals issued a Resolution denying due course and
dismissing the petition, on the ground that the petitioner failed to show proof of service of the
petition on the respondents, as mandated by Rule 46, Section 3 in relation to Rules 65 and 13 of
the 1997 Rules of Court, as amended.
On November 20, 2001, the Court of Appeals received a Manifestation and Submission
which the petitioner filed through registered mail on November 5, 2001 alleging that, on the
latter date, copies of the petition were served on the respondents through registered mail, as
evidenced by the affidavit of service executed by Danilo B. Elardo, the messenger in the law
office of the petitioners counsel. The petitioner also filed a motion for reconsideration of the
resolution of the Court of Appeals, on the ground that he had substantially complied with the
requirements of the Rules of Court, as amended.
On December 13, 2001, the Court of Appeals issued a Resolution denying the said motion,
on the ground that the petitioner failed to serve a copy of his petition on the Solicitor General,
the counsel of the respondent People of the Philippines.

The Issues

In his petition at bar, the petitioner contends that:

THE HONORABLE COURT OF APPEALS DEPARTED FROM THE USUAL
COURSE OF JUDICIAL PROCEEDINGS, AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH SECTION 1 OF RULE 6,
AND SECTION 4 OF RULE 46, OF THE RULES OF COURT, AS WELL AS
SECTION 35(1), CHAPTER 12, TITLE III OF BOOK IV OF THE
ADMINISTRATIVE CODE OF 1987, AND APPLICABLE DECISIONS OF THE
SUPREME COURT, WHEN IT IGNORED THE IMPORTANT AND
SUBSTANTIVE LEGAL ISSUES RAISED BY PETITIONER, AND REFUSED TO
SET ASIDE ITS DISMISSAL OF THE PETITION FOR CERTIORARI PETITIONER
FILED EVEN AFTER IT FOUND THAT A COPY OF THAT SERVICE OF THE
PETITION FOR CERTIORARI HAD BEEN MADE UPON THE PROVINCIAL
PROSECUTOR WHO HAD REPRESENTED THE PEOPLE OF THE PHILIPPINES
IN THE PROCEEDINGS WHICH GAVE RISE TO THE PETITION.[10]
The petitioner avers that the exclusive authority of the Solicitor General to represent the
People of the Philippines in the Court of Appeals and in the Supreme Court under Section 35(1),
Chapter 12, Title III, Book IV of the 1987 Revised Administrative Code, comes into being only
when the appellate court has already acquired jurisdiction over the case which, in turn, takes
place only upon the service on the State of the order or resolution of the appellate court
indicating its initial action on the petition, or by the respondents voluntary submission to such
jurisdiction as provided for in Rule 46, Section 4 of the Rules of Court, as amended, which reads:

SEC. 4. Jurisdiction over the person of respondent, how acquired. The court shall acquire
jurisdiction over the person of the respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary submission to such jurisdiction.

Before then, the petitioner submits, service of a copy of his petition on the respondent
People of the Philippines may be effected through the Provincial Prosecutor who appeared as its
counsel in the trial court, conformably to Rule 13, Section 2 of the Rules of Court, as amended.

The Courts Ruling

86
 The contention of the petitioner is devoid of merit.
The authority of the Provincial Prosecutor to appear for and represent the respondent People
of the Philippines is confined only to the proceedings before the trial court.This is based on
Section 5, Rule 110 of the Revised Rules of Criminal Procedure which provides, viz:

SEC. 5. Who must prosecute criminal actions. All criminal actions commenced by a complaint
or information shall be prosecuted under the direction and control of the prosecutor. However, in
Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or
to the case is not available, the offended party, any peace officer, or public officer charged with
the enforcement of the law violated may prosecute the case. This authority shall cease upon
actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.

The pleadings of the accused and copies of the orders or resolutions of the trial court are
served on the People of the Philippines through the Provincial Prosecutor.However, in appeals
before the Court of Appeals and the Supreme Court either (a) by writ of error; (b) via petition for
review; (c) on automatic appeal; or, (d) in special civil actions where the People of the
Philippines is a party, the general rule is that the Office of the Solicitor General is the sole
representative of the People of the Philippines. This is provided for in Section 35 (1) Chapter 12,
Title III of Book IV of the 1987 Administrative Code, viz:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent
the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a
party.

A copy of the petition in such action must be served on the People of the Philippines as mandated by Section 3,
Rule 46 of the Rules of Court, through the Office of the Solicitor General. [11] The service of a copy of the petition on
the People of the Philippines, through the Provincial Prosecutor would be inefficacious. The petitioners failure to
have a copy of his petition served on the respondent, through the Office of the Solicitor General, shall be sufficient
ground for the dismissal of the petition as provided in the last paragraph of Section 3, Rule 46 of the Rules of
Court. Unless and until copies of the petition are duly served on the respondent, the appellate court has no other
recourse but to dismiss the petition.
The purpose of the service of a copy of the petition on the respondent in an original action in the appellate
court prior to the acquisition of jurisdiction over the person of the respondent is to apprise the latter of the filing of
the petition and the averments contained therein and, thus, enable the respondent to file any appropriate pleading
thereon even before the appellate court can act on the said petition, or to file his comment thereon if so ordered by
the appellate court. But if a copy of the petition is served on the Provincial Prosecutor who is not authorized to
represent the People of the Philippines in the appellate court, any pleading filed by the said Prosecutor for and in
behalf of the People of the Philippines is unauthorized, and may be expunged from the records.
On the petitioners plea that we brush aside his procedural lapse and order the appellate court to take
cognizance of and act on his petition for certiorari, we are not persuaded. As gleaned from his petitions in the Court
of Appeals and in this Court, the petitioner contends that the assailed order of Executive Judge Martelino-Cortes
dated May 12, 2001 and the warrant of arrest issued by her are null and void, considering that she was the aunt of
Vivien Bontogon-Rodriguez, the wife of the deceased Raymundo Rodriguez, as Angela (Urgino) Yap-Bontogon,
Vivien Rodriguez mother, is her first cousin. Thus, the Executive Judge was disqualified to take cognizance of
Criminal Case No. 6002 and to grant the motion of the provincial prosecutor. However, we have reviewed the
pleadings of the parties in the Court of Appeals and in this Court, and find that the petitioner failed to adduce
preponderant evidence in the trial court to prove the said relationship of the Executive Judge to the deceased and the
latters wife, let alone append in his petition in the Court of Appeals and in this Court, documents to prove such
relationship. The barefaced fact that the provincial prosecutor or the private prosecutor did not specifically and
categorically deny the petitioners allegations in his supplement to his motion for reconsideration, that the Executive
Judge and the deceased and his wife are related, did not relieve the petitioner of his burden to prove the same with
the requisite quantum of evidence. Such allegation should have been proven during the hearing of the petitioners
motion to suspend proceedings and to lift the warrant of arrest, and of his supplement to the said motion for
reconsideration.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED due course for lack of merit.
SO ORDERED.

87
G.R. No. L-44723 August 31, 1987

STA. ROSA MINING COMPANY, petitioner

vs.
ASSISTANT PROVINCIAL FISCAL AUGUSTO ZABALA, in his capacity as OFFICER-
IN-CHARGE of the Provincial Fiscal's OFFICE of Camarines Norte, and GIL ALAPAN
et. al., respondents.

BIDIN, J.:

Mandamus to compel respondent Fiscal to prosecute Criminal Case No. 821 of the then Court of
First Instance of Camarines Norte until the same is terminated.

The facts of the case are not disputed. On March 21, 1974, petitioner filed a complaint for
attempted theft of materials (scrap iron) forming part of the installations on its mining property at
Jose Panganiban, Camarines Norte against private respondents Romeo Garrido and Gil Alapan
with the Office of the Provincial Fiscal of Camarines Norte, then headed by Provincial Fiscal
Joaquin Ilustre.

The case was assigned to third Assistant Fiscal Esteban P. Panotes for preliminary investigation
who, after conducting said investigation, issued a resolution dated August 26, 1974
recommending that an information for Attempted Theft be filed against private respondents on a
finding of prima facie case which resolution was approved by Provincial Fiscal Joaquin Ilustre.
Private respondents sought reconsideration of the resolution but the same was denied by Fiscal
Ilustre in a resolution dated October 14, 1974.

On October 29, 1974, Fiscal Ilustre filed with the Court of First Instance of Camarines Norte an
Information dated October 17, 1987 docketed as Criminal Case No. 821, charging private
respondents with the crime of Attempted Theft.

In a letter dated October 22, 1974, the private respondents requested the Secretary of Justice for a
review of the Resolutions of the Office of the Provincial Fiscal dated August 26, 1974 and
October 14, 1974.

On November 6, 1974, the Chief State Prosecutor ordered the Provincial Fiscal by telegram to
"Please elevate entire records PFO Case 577 against Garrido et al., review in five days and defer
all proceedings pending review."

The letter-request for review was opposed by petitioner in a letter to the Secretary of Justice
dated November 23, 1974 alleging, among other things, that an information for Attempted Theft
had already been filed against private respondents for which reason the request for review has
become a moot question as the Provincial Fiscal has lost jurisdiction to dismiss the charge for
attempted theft.

On March 6, 1975, the Secretary of Justice, after reviewing the records, reversed the findings
of prima facie case of the Provincial Fiscal and directed said prosecuting officer to immediately
move for the dismissal of the criminal case. Petitioner sought reconsideration of the directive of
the Secretary of Justice but the latter denied the same in a letter dated June 11, 1975.

A motion to dismiss dated September 16, 1975 was then filed by the Provincial Fiscal but the
court denied the motion on the ground that there was a prima facie evidence against private
respondents and set the case for trial on February 25, 1976.

88
Private respondents sought reconsideration of the court's ruling but in an Order dated February
13, 1976, the motion filed for said purpose was likewise denied. Trial of the case was reset to
April 23, 1976.

Thereafter, Fiscal Ilustre was appointed a judge in the Court of First Instance of Albay and
respondent Fiscal Zabala became officer-in-charge of the Provincial Fiscal's Office of Camarines
Norte.

On April 19, 1976, respondent Fiscal filed a Second Motion to Dismiss the case. This second
motion to dismiss was denied by the trial court in an order dated April 23, 1976. Whereupon,
respondent fiscal manifested that he would not prosecute the case and disauthorized any private
prosecutor to appear therein. Hence, this petition for mandamus.

In this action, petitioner prays for the issuance of the writ of mandamus "commanding
respondent fiscal or any other person who may be assigned or appointed to act in his place or
stead to prosecute Criminal Case No. 821 of the Court of First instance of Camarines Norte"
(Petition, Rollo, p. 27).

There is no question that the institution of a criminal action is addresses to the sound discretion
of the investigating fiscal. He may or he may not file the information according to whether the
evidence is in his opinion sufficient to establish the guilt of the accused beyond reasonable
doubt. (Gonzales vs. Court of First Instance, 63 Phil. 846) and when he decides not to file the
information, in the exercise of his discretion, he may not be compelled to do so (People vs.
Pineda, 20 SCRA 748). However, after the case had already been filed in court, "fiscals are not
clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal
actions actually instituted and pending further proceedings. The power to dismiss criminal
actions is vested solely in the court" (U.S. vs. Barredo, 32 Phil. 444, 450; Gonzales vs. Court of
First Instance, supra).

However, the matter of instituting an information should be distinguished from a

motion by the fiscal for the dismissal of a case already filed in court. The judge
may properly deny the motion where, judging from the record of the preliminary
investigation, there appears to be sufficient evidence to sustain the prosecution.
This is, as it should be, because the case is already in court and, therefore, within
its discretion and control (Abela vs. Golez, 131 SCRA 12).

This ruling is just being consistent with the principle first laid down in U.S. vs. Valencia (1 Phil.
642) where it was held that "after the complaint has been presented, and certainly after the trial
has been commenced, the court and not the fiscal has full control of it. The complaint cannot be
withdrawn by the fiscal without the consent of the court." It is discretionary on the court where
the case is pending to grant the motion to dismiss or deny the same (Asst. Provincial Fiscal of
Bataan vs. Dollete, 103 Phil. 914).

In the case at bar, the court below denied the fiscal's motion to dismiss on the ground that there
was a prima faciecase against private respondents. The question presented for determination now
is-after a case has been filed in court, can a fiscal be compelled to prosecute the same, after his
motion to dismiss it has been denied?

This court is of the view that the writ prayed for should issue. Notwithstanding his personal
convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the court
to enable the court to arrive at its own independent judgment as to the culpability of the accused.
The fiscal should not shirk from his responsibility much less leave the prosecution of the case at
the hands of a private prosecutor. At all times, the criminal action shall be prosecuted under his
direction and control (Sec. 4, Rule 110, Rules of Court). Otherwise, the entire proceedings wig
be null and void (People vs. Beriales, 70 SCRA 361).

89
In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government
since an offense is an outrage to the sovereignty of the State." (Moran, Comments on the Rules
of Court, Vol. IV, 1980 Ed., p. 10). This is so because "the prosecuting officer is the
representative not of an ordinary party to a controversy but of a sovereignty where obligation to
govern impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which
is that guilt shall not escape or innocence suffer (Suarez vs. Platon, 69 Phil. 556).

Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot
move for the dismissal of the case and, when denied, refuse to prosecute the same. He is obliged
by law to proceed and prosecute the criminal action. He cannot impose his opinion on the trial
court. At least what he can do is to continue appearing for the prosecution and then turn over the
presentation of evidence to another fiscal or a private prosecutor subject to his direction and
control (U.S. vs. Despabiladeras, 32 Phil. 442; U.S. vs. Gallegos, 37 Phil. 289). Where there is
no other prosecutor available, he should proceed to discharge his duty and present the evidence
to the best of his ability and let the court decide the merits of the case on the basis of the
evidence adduced by both parties.

The mere fact that the Secretary of Justice had, after reviewing the records of the case, directed
the prosecuting fiscal to move for the dismissal of the case and the motion to dismiss filed
pursuant to said directive is denied by the trial court, is no justification for the refusal of the
fiscal to prosecute the case. It is the court where the case is filed and not the fiscal that has full
control of it. Very recently, this Court in Mario Fl. Crespo vs. Hon. Leodegario L. Mogul (G.R.
No. 53373, promulgated June 30, 1987) ruled:

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

WHEREFORE, petition is hereby Granted. Public respondent or any other person who may be
assigned or appointed to act in his place or stead, is hereby ordered to continue prosecuting
Criminal Case No. 821 until the same is terminated.

SO ORDERED.

90
 [G.R. No. 135022. July 11, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO DELA

CRUZ, accused-appellant.

DECISION
DAVIDE, JR., C.J.:

A man descends into the depths of human debasement when he inflicts his lechery upon a
minor, and all the more when he imposes such lasciviousness upon a woman whose capacity to
give consent to a sexual union is diminished, if not totally lacking. Such is the case of Jonalyn
Yumang (hereafter JONALYN).
Upon a complaint[1] dated 5 July 1996 signed by JONALYN with the assistance of her aunt
Carmelita Borja, two informations were filed by the Office of the Provincial Prosecutor before
the Regional Trial Court of Malolos, Bulacan, charging Bienvenido Dela Cruz (hereafter
BIENVENIDO) with rape allegedly committed on 3 and 4 July 1996.The informations were
docketed as Criminal Cases Nos. 1274-M-96 and 1275-M-96. The accusatory portion of the
information docketed as Criminal Case No. 1275-M-96, which is the subject of this appellate
review, reads:

That on or about the 3rd day of July 1996, in the Municipality of Calumpit, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
[Bienvenido dela Cruz @ Jun] did then and there wilfully, unlawfully and feloniously with lewd
design have carnal knowledge of one Jonalyn Yumang y Banag, a mentally deficient female
person, against her will and without her consent.

Contrary to law.[2]

Upon arraignment on 14 October 1996, BIENVENIDO entered a plea of not guilty.[3] The
cases were consolidated, and joint trial on the merits ensued thereafter.
When JONALYN was presented as its first witness, the prosecution sought to obtain from
the trial court an order for the conduct of a psychiatric examination on her person to determine
her mental and psychological capability to testify in court. The purpose was that should her
mental capacity be found to be below normal, the prosecution could propound leading questions
to JONALYN. The defense, through Atty. Jesus M. Pamintuan, vigorously opposed the
prosecutions manifestation. Nonetheless, the trial court allowed the prosecutor to conduct direct
examination on JONALYN so that if in its perception she would appear to be suffering from
mental deficiency, the prosecutor could be permitted to ask leading questions. JONALYN was
then made to identify her signature in her sworn statement and to identify the accused, and was
asked about her personal circumstances. Thereafter, noticing that JONALYN had difficulty in
expressing herself, the trial court decided to suspend the proceedings to give the prosecution
sufficient time to confer with her.[4]
At the next hearing, the trial court allowed the prosecution to put on the witness stand Dr.
Cecilia Tuazon, Medical Officer III of the National Center for Mental Health, Mandaluyong
City. Dr. Tuazon testified that she conducted a psychiatric examination on JONALYN on 12 July
1996. She found that JONALYN was suffering from a moderate level of mental retardation and
that although chronologically the latter was already 20 years of age (at the time of the
examination), she had the mental age of an 8-year-old child under the Wechsler Adult
Intelligence Scale. Dr. Tuazon also found that JONALYN could have attained a higher degree of
intelligence if not for the fact that she was unschooled and no proper motivation was employed
on her, and that she had the capacity to make her perception known to others. She, however,
observed that she had to prompt JONALYN most of the time to elicit information on the sexual
harassment incident. She then narrated that JONALYN was able to relate to her that she

91
(JONALYN) was approached by a tall man named Jun-Jun who led her to a house that
supposedly belonged to her cousin, and that Jun-Jun disrobed JONALYN and raped her twice.[5]
After said testimony or on 11 March 1997, the trial court issued an order[6] allowing leading
questions to be propounded to JONALYN in accordance with Section 10(c), Rule 132 of the
Rules on Evidence.[7] Thus, JONALYN took the witness stand. She again identified her signature
and that of her aunt on her Sinumpaang Salaysay. She also identified BIENVENIDO as the
person against whom she filed a complaint for rape. She declared in open court that
BIENVENIDO raped her twice inside the house of a certain Mhel located at Barangay Gatbuca,
Calumpit, Bulacan. She stated that BIENVENIDO placed himself on top of her and inserted his
private part into her womanhood.[8]
Dr. Edgardo Gueco, Chief and Medico-Legal Officer of the Philippine National Police
Crime Laboratory, Camp Olivas, Pampanga, testified that he examined JONALYN on 8 July
1996, and the results of the examination were indicated in his Medico-Legal Report.[9] He found
that she was in a non-virgin state physically, as her hymen bore deep fresh and healing
lacerations at 3, 8 and 11 oclock positions. He then opined that the hymenal lacerations were
sustained a week before the examination and, therefore, compatible with the time the rapes were
allegedly committed.[10]
Carmelita Borja, aunt of JONALYN, testified that on 5 July 1996, she accompanied
JONALYN to the Philippine National Police (PNP) Office in Calumpit, Bulacan, to lodge a
complaint against BIENVENIDO. With them were JONALYNs mother Conchita Yuson and
Barangay Councilman Roberto Dungo. Carmelita testified that in instituting this case, their
family incurred expenses amounting to P30,000.[11]
After the prosecution rested its case and formally offered its exhibits, the defense filed a
motion for leave of court to file a demurrer to evidence, which was granted. Thus, the defense
filed on 5 December 1997 a Demurrer to Evidence[12] on the following grounds:

(a) That the court had no jurisdiction to take cognizance of the cases; and

(b) The presumption of accuseds innocence had not even [sic] been overcome by the prosecution
due to the insufficiency of its evidence.

Expounding its theory, the defense first admitted that it could have moved to quash the
information but it did not because the complaint on which the information was based was on its
face valid, it having been signed by JONALYN as the offended party. However, the undeniable
truth is that JONALYN had no capacity to sign the same considering her mental deficiency or
abnormality. The assistance extended to JONALYN by her aunt Carmelita Borja did not cure the
defect, as the enumeration in Article 344 of the Revised Penal Code of the persons who could
file a complaint for rape is exclusive and successive and the mother of JONALYN was still very
much alive.
The defense also insisted on assailing the competency of JONALYN as a witness. It claimed
that JONALYNs testimony, considering her mental state, was coached and rehearsed. Worse, she
was not only asked leading questions but was fed legal and factual conclusions which she was
made to admit as her own when they were in fact those of the prosecution.
In its Order of 26 January 1998,[13] the trial court denied the Demurrer to Evidence and set
the dates for the presentation of the evidence for the defense. However, BIENVENIDO filed a
Motion for Judgment, stating in part as follows:

[A]fter going over the Records and carefully analyzing the proceedings as well as meticulously
evaluating the evidence presented and offered [by] the private complainant, in consultation with
his parents, and assisted by undersigned counsel, [he] had decided to submit the cases for
judgment without the need of presenting any evidence to explain his terse PLEA OF NOT
GUILTY to the charges upon his arraignment.[14]

92
 Noting this new development, the trial court, in its Order of 17 February 1998, considered
the case submitted for decision.[15]
In its Joint Decision of 3 April 1998, [16] the trial court convicted BIENVENIDO of the
crime of rape in Criminal Case No. 1275-M-96, but acquitted him in Criminal Case No. 1274-M-
96 for insufficiency of evidence. While conceding that JONALYNs narration of how she was
sexually abused by BIENVENIDO was not detailed, the trial court, nonetheless, concluded that it
was candidly related by one who had the mental age of an 8-year-old child. The trial court was
convinced that JONALYN was able to show in her own peculiar way that she was indeed raped
by BIENVENIDO on 3 July 1996. Finally, the trial court ruled that BIENVENIDOs culpability
was further bolstered by his choice not to offer any evidence for his defense despite ample
opportunity to do so. Accordingly, it sentenced him to suffer the penalty of reclusion
perpetua and to pay JONALYN the amount of P60,000 by way of civil indemnity.
In his Appellants Brief,[17] BIENVENIDO asserts that the trial court committed the
following errors:
1. ... in having taken the fatally defective criminal complaint for a valid conferment
upon it of jurisdiction to try and dispose of said two (2) charges of rape.
2. ... in having accepted as competent the mentally deficient private complainant even
without first requiring any evidence of her capacity as such a witness.
3. ... in having considered the narration read to the complaining witness from prepared
statements and asked of her simply to confirm as true, as her own.
4. ... in having given full credence and weight to complainants conclusions of facts
merely put to her mouth by leading questions of the prosecutor.
5. ... in having convicted the accused-appellant in Criminal Case No. 1275-M-96, but
acquitting in Criminal Case No. 1274-M-96, on the basis of private complainants
purported sworn versions supposedly given in both charges.
BIENVENIDO reiterates the issues he raised in his Demurrer to Evidence. He assails the
competency of JONALYN as signatory to the complaint she filed. He adds that the defect in the
complaint was not cured by his failure to interpose a motion to quash nor by the assistance lent
by JONALYNs aunt, which contravened Article 344 of the Revised Penal Code. Consequently,
BIENVENIDO asserts that the trial court had no jurisdiction to try the case.
BIENVENIDO also stresses the incompetency of JONALYN as a trial witness for the
reason that the prosecution failed to prove her competency. Further, JONALYN was merely
asked to affirm the legal and factual conclusions of the prosecution which evinced quite clearly
the girls lack of comprehension of the court proceedings and the nature of her oath. Besides, her
statements concerning the alleged sexual penetration were elicited a month after her initial offer
as a witness, which reinforces the rehearsed and coached nature of her testimony.
Finally, he wonders why he was convicted in Criminal Case No. 1275-M-96 but acquitted in
Criminal Case No. 1274-M-96 when it was a joint trial and the evidence was the same. He insists
that he should also be acquitted in the case at bar.
In the Appellees Brief,[18] the Office of the Solicitor General (OSG) counters that the trial
court had jurisdiction over the case, since the complaint and information filed were
valid. JONALYNs mental retardation does not render her incompetent for initiating the
prosecution of the crime committed against her and for testifying in court. If minors are allowed
not only to initiate the prosecution of offenses under Article 344 of the Revised Penal Code and
Section 5, Rule 110 of the 1985 Rules of Criminal Procedure, but also to testify under the Rules
on Evidence, JONALYN, who had the mentality of an 8-year-old child, was competent to sign
the criminal complaint and to be a witness in court.JONALYNs competency as a court witness
was aptly proved when she was able to answer the leading questions asked of her as allowed by
Section 10(c), Rule 132 of the Rules on Evidence. Moreover, the OSG asseverates that
JONALYNs testimony on the fact of rape is corroborated by medical and physical evidence. As
to BIENVENIDOs quandary that he should be acquitted also in this case, it is convinced that he

93
should have been convicted for two counts of rape, as JONALYN expressly testified that she was
raped twice by BIENVENIDO. Finally, the OSG seeks an award of moral damages in the
amount of P50,000 for JONALYN, as well as a reduction of the award of civil indemnity
to P50,000 in conformity with current jurisprudence.
We shall discuss the issues in seriatim.

I. Validity of the Complaint for Rape

We agree with the disputation of the OSG that the trial court validly took cognizance of the
complaint filed by JONALYN. The pertinent laws existing at the time the crimes were
committed were Article 344 of the Revised Penal Code (prior to its amendment by R.A. No.
8353[19] otherwise known as The Anti-Rape Law of 1997, which took effect on 22 October
1997[20]) and Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure. Article 344 of the
Revised Penal Code provides:

Article 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and
acts of lasciviousness. --

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted
except upon a complaint filed by the offended party or her parents, grandparents, or guardian,
nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the
case may be.

Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure states:

Section 5. Who must prosecute criminal actions.All criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and control of the
fiscal. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when there is no
fiscal available, the offended party, any peace officer or public officer charged with the
enforcement of the law violated may prosecute the case. This authority ceases upon actual
intervention of the fiscal or upon elevation of the case to the Regional Trial Court.

The offenses of seduction, abduction, rape or acts of lasciviousness shall not be prosecuted
except upon a complaint filed by the offended party or her parents, grandparents, or guardian,
nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the
case may be. In case the offended party dies or becomes incapacitated before she could file the
complaint and has no known parents, grandparents, or guardian, the State shall initiate the
criminal action in her behalf.

The offended party, even if she were a minor, has the right to initiate the prosecution for the
above offenses, independently of her parents, grandparents or guardian, unless she is
incompetent or incapable of doing so upon grounds other than her minority. Where the offended
party who is a minor fails to file the complaint, her parents, grandparents or guardian may file
the same. The right to file the action granted to the parents, grandparents or guardians shall be
exclusive of all other persons and shall be exercised successively in the order herein provided,
except as stated in the immediately preceding paragraph.

A complaint of the offended party or her relatives is required in crimes against chastity out
of consideration for the offended woman and her family, who might prefer to suffer the outrage
in silence rather than go through with the scandal of a public trial. The law deems it the wiser
policy to let the aggrieved woman and her family decide whether to expose to public view or to
heated controversies in court the vices, fault, and disgraceful acts occurring in the family.[21]
It has been held that [w]hen it is said that the requirement in Article 344 (that there shall be a
complaint of the offended party or her relatives) is jurisdictional, what is meant is that it is the

94
complaint that starts the prosecutory proceeding. It is not the complaint which confers
jurisdiction on the court to try the case. The courts jurisdiction is vested in it by the Judiciary
Law.[22]
The complaint in the instant case has complied with the requirement under the Revised
Penal Code and the Rules of Criminal Procedure, which vest upon JONALYN, as the offended
party, the right to institute the criminal action. As signed by JONALYN, the complaint started
the prosecutory proceeding. The assistance of JONALYNs aunt, or even of her mother, was a
superfluity. JONALYNs signature alone suffices to validate the complaint.
We agree with the OSG that if a minor under the Rules of Court can file a complaint for rape
independently of her parents, JONALYN, then 20 years of age who was found to have the
mentality of an 8-year-old girl, could likewise file the complaint independently of her relatives.
Her complaint can be rightfully considered filed by a minor.
The overriding intention of BIENVENIDO is to challenge the validity of the complaint by
assailing the competency of JONALYN to file the complaint. But even he admits in his
Demurrer to Evidence that the complaint is proper and valid on its face for which reason he did
not move to quash the information. Thus, even he admits and recognizes the futility of his
argument.

II. Competence of JONALYN to Testify

The determination of the competence of witnesses to testify rests primarily with the trial
judge who sees them in the witness stand and observes their behavior or their possession or lack
of intelligence, as well as their understanding of the obligation of an oath.[23]
The prosecution has proved JONALYNs competency by the testimony of Dr. Tuazon. The
finding of the trial court, as supported by the testimony of Dr. Tuazon that JONALYN had the
understanding of an 8-year-old child, does not obviate the fact of her competency. Its only effect
was to consider her testimony from the point of view of an 8-year-old minor. Even a mental
retardate is not, per se, disqualified from being a witness.[24] JONALYN, who may be considered
as a mental retardate but with the ability to make her perceptions known to others, is a competent
witness under Section 20 of Rule 130 of the Rules on Evidence.[25]
JONALYNs competency is also better established in the answers she gave under direct
examination relative to the harrowing defilement she suffered in the hands of BIENVENIDO,
thus:
Q And the nature of your complaint was that you were abused or you were raped by the
herein accused Bienvenido de la Cruz y Santiago, is that correct?
A Yes, sir.
...
Q And do you know in what place where you raped by the accused, Bienvenido dela Cruz y
Santiago?
A Inside the house, sir.
Q Whose house?
A In the house of Mhel, sir.[26]
Q How many times were you raped by the herein accused Bienvenido dela Cruz y Santiago
alias Jun Jun?
A Twice, sir.
Court: Where?
Fiscal: Where?

95
Witness: On top of the wooden bed, sir.[27]
Q You said you were raped twice by the herein accused, Bienvenido dela Cruz alias Jun-Jun
on a papag inside the house of Mhel at Barangay Gatbuca, Calumpit, Bulacan, how did
Jun Jun the herein accused rape[] you?
Court: On the first time?
A He layed [sic] me to bed, sir.
Q After you were layed [sic] on the bed what happened next?
A He went on top of me, sir.[28]
Q Last time, you stated that the herein accused whom you called Jun laid you on top of a bed
and after that, he went on top of you. My question is, when he went on top of you, what
did he do to you, if any?
A: Pumaloob sa akin.[29]
Q Now, when the accused, which you called Jun, pumaloob sa iyo, what did you feel at that
time?
A I felt a hard object, sir.
Q Now since you said it [was] a hard object, you could now tell the Court, what that hard
object [was]?
A I cannot remember.[30]
Public Prosecutor:
Q When you said the last time around, you were asked about, what you mean by pumaloob
siya sa akin and then you said that there was a hard object inserted and after that, the
follow-up question was asked on you, you said you cannot remember, what is that hard
object, what do you mean when you say I cannot remember?
Atty. Pamintuan:
Leading.
Court:
Witness may answer, subject to your objection.
Witness:
His private part was inserted in my private part, sir.[31]
Court: But there was an answer a while ago. Witness may answer.
Witness:
A Yes, sir.
Public Pros.:
Q And, when you say he did the same to you, he inserted his penis to your vagina?
A Yes, sir.
Public Pros.:
No further question, Your Honor.[32]

III. Credibility of JONALYN as a Witness

96
 The foregoing narrative has established not only JONALYNs competency but also her
credibility. Moreover, considering her feeble mind, she could not have fabricated or concocted
her charge against BIENVENIDO. This conclusion is strengthened by the fact that no improper
motive was shown by the defense as to why JONALYN would file a case or falsely testify
against BIENVENIDO. A rape victims testimony as to who abused her is credible where she has
absolutely no motive to incriminate and testify against the accused.[33] It has been held that no
woman, especially one of tender age, would concoct a story of defloration, allow an examination
of her private parts, and thereafter permit herself to be subjected to a public trial if she is not
motivated solely by the desire to have the culprit apprehended and punished.[34]
We, therefore, affirm the trial courts decision to lend full credence to the testimony of
JONALYN on the circumstances of the rape, thus:

In so few a word, complainant has made herself clear about the sexual molestation she suffered
in the hands of the accused. Plain and simple her testimony may have been, unembellished, as it
is, with details, yet, it is in its simplicity that its credence is enhanced. Certainly, we cannot
expect complainant, in her present state of mind, to come out with a full account of her
misfortune with all its lurid details. That, to this Court, is simply beyond the reach of her
enfeebled mind. She came to talk on her sad plight from the viewpoint of an 8-year-old child,
and she must, by all means, be understood in that light.[35]

Absent any cogent reason warranting a disturbance of the findings of the trial court on the
credibility and competency of JONALYN, this Court has to give these findings utmost respect, if
not complete affirmation. Settled is the rule that the trial courts evaluation of the testimonies of
witnesses is accorded the highest respect, for it has an untrammeled opportunity to observe
directly the demeanor of witnesses on the stand and, thus, to determine whether they are telling
the truth.[36]

IV. Propriety of Propounding Leading Questions to JONALYN

We likewise agree with the trial courts conclusion that JONALYNs testimony should be
taken and understood from the point of view of an 8-year-old child. JONALYNs testimony is
consistent with the straightforward and innocent testimony of a child. Thus, the prosecutions
persistent, repetitious and painstaking effort in asking leading questions was necessary and
indispensable in the interest of justice to draw out from JONALYNs lips the basic details of the
grave crime committed against her by BIENVENIDO.
The trial court did not err in allowing leading questions to be propounded to JONALYN. It
is usual and proper for the court to permit leading questions in conducting the examination of a
witness who is immature; aged and infirm; in bad physical condition; uneducated; ignorant of, or
unaccustomed to, court proceedings; inexperienced; unsophisticated; feeble-minded; of sluggish
mental equipment; confused and agitated; terrified; timid or embarrassed while on the stand;
lacking in comprehension of questions asked or slow to understand; deaf and dumb; or unable to
speak or understand the English language or only imperfectly familiar therewith.[37]
The leading questions were neither conclusions of facts merely put into the mouth of
JONALYN nor prepared statements which she merely confirmed as true. The questions were
indeed carefully phrased and sometimes based on her Sinumpaang Salaysay to make JONALYN
understand the import of the questions. In the same vein, the prosecutions referral to
JONALYNs Sinumpaang Salaysay to refresh her memory was also reasonable. The purpose of
refreshing the recollection of a witness is to enable both the witness and her present testimony to
be put fairly and in their proper light before the court.[38]
Thus, JONALYNs behavior merely conformed to Dr. Tuazons clinical and expert
observation that JONALYN had to be continuously and repetitiously prompted so that she could
answer and recount a terrible experience. JONALYNs constant eyeball fixature towards her aunt
and mother does not by itself indicate coaching, in the face of a dearth of other evidentiary bases

97
that the latter did coach her. There was nothing in the behavior of JONALYN which was
indicative of her failure to understand the import of the trial proceedings. Her identification of
BIENVENIDO as her assailant is quite telling on how simple, yet unassuming, her grasp of the
situation was. Thus:
Stenographer:
Reading back the question.
Q Because you understand that this was explained to you, I would like to read to you
particularly question number 3.
Tanong: Sino naman ang ibig mong idemanda?
Answer: Si Bienvenido dela Cruz y Santiago alias Jun Jun po.
Was this explain[ed] to you?
Atty. Pamintuan:
I stand correct[sic].
Witness:
Yes, sir.
Fiscal:
(to the witness)
Q Now, this Bienvenido dela Cruz y Santiago alias Jun Jun, which was the person whom you
are filing the complaint of [sic], will you kindly look around to this Court and tell us
whether or not he is inside.
A Yes, sir.
Q Would you mind to point him?
Interpreter:
Witness pointing to a man wearing orange T-shirt and when asked his name answered
Bienvenido dela Cruz.[39]

V. Sufficiency of Prosecutions Evidence

It is, therefore, beyond doubt that JONALYNs lone testimony, which was found to be credible by the trial
court, is enough to sustain a conviction.[40] At any rate, medical and physical evidence adequately corroborated
JONALYNs testimony. Time and again we have held that the laceration of the hymen is a telling, irrefutable and
best physical evidence of forcible defloration.[41]
On the basis of the foregoing, we agree with the trial courts conviction of BIENVENIDO under Criminal Case
No. 1275-M-96. His acquittal under Criminal Case No. 1274-M-96 is, at this point, beyond the review powers of
this Court.
Since the information charges BIENVENIDO with simple rape only and no other modifying circumstances has
been proved, the penalty of reclusion perpetua, which is the lesser of the penalties prescribed by Article 335 of the
Revised Penal Code, as amended by R.A. No. 7659, was correctly imposed by the trial court.
We rectify the error of the trial court in granting JONALYN the amount of P60,000 as civil indemnity. In
conformity with current jurisprudence, we hereby reduce it to P50,000.[42] An award of moral damages in the
amount of P50,000 is also just under the circumstances.[43]
WHEREFORE, the decision of the Regional Trial Court, Branch 11, Malolos, Bulacan, in Criminal Case No.
1275-M-96 finding accused-appellant BIENVENIDO DELA CRUZ guilty of the crime of rape and sentencing him
to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the modification that accused-appellant is
ordered to pay the victim JONALYN YUMANG civil indemnity in the reduced amount of P50,000 and moral
damages in the amount of P50,000.
Costs de oficio.

98
 [G.R. No. 135877. August 22, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO NICOLAS y

OCAMPO, accused-appellant.

DECISION
QUISUMBING, J.:

For automatic review is the decision[1] dated October 9, 1998 of the Regional Trial Court of
Paraaque City, Branch 259, finding appellant Ernesto Nicolas guilty of rape. The heinous nature
of the offense is underscored by the charge against him in the amended information [2] which
reads as follows:

That on or about the 21st day of October 1997, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused did
then and there willfully, unlawfully and feloniously have carnal intercourse with Flabiana
Mendoza, a paralyzed, 53 years (sic) old, mother of complainant, and who was then unconscious
and deprived of reason, against her will and consent.

CONTRARY TO LAW.

Upon arraignment, appellant, assisted by counsel, pleaded not guilty. Trial commenced
thereafter. Four witnesses testified for the prosecution.
MA. VICTORIA PUNZALAN, a daughter of the victim Flaviana Mendoza,[3] testified that
in August 1997, her mother was brought to the Philippine General Hospital for treatment. Upon
being brought home in September of that same year, Flavianas medical records[4] and actual
condition showed that she was almost physically paralyzed and in a very weak state of mind and
health. According to Ma. Victoria, her sisters Annaliza Urmelita[5] and Daisy Mendoza told her
that their mother was raped by appellant on October 21, 1997. She added that at the time of the
rape, her mother was persistently ill, and was physically and mentally incapacitated. Her mother
eventually died on November 15, 1997.[6]
DAISY MENDOZA, another daughter of the victim, testified that on October 21, 1997, she
was sleeping on the floor of her grandparents house where her mother, grandparents, and nephew
Lorenzo Mendoza also slept. At around 3:00 A.M., she woke up and saw appellant Ernesto
Nicolas on top of her mother, Flaviana Mendoza. Both had their shorts pulled down. Appellant
appeared to be doing a pumping motion, with her mother underneath him. She hurriedly went out
of the house and called her brother Joel, whose house was about six meters away. When they
returned, they saw Ernesto still on top of their mother. Her brother shouted at appellant to move
down. Appellant then went out of the house. Thereafter, they reported the incident to
the barangay office.
Appellant was apprehended at his sisters house and brought to the Coastal Police Station
where an investigation was conducted. Daisy testified that even prior to the incident, Flaviana
was already mentally and physically weak. She said she accompanied her sister Annaliza
Urmelita, private complainant in this case, to the barangay office to file a complaint against
appellant.[7]
JOEL MENDOZA, son of the victim, corroborated the testimony of his sisters on what
transpired between 2:00-3:00 A.M. of October 21, 1997. He added that upon seeing Ernesto atop
his mother, he shouted invectives at him and ordered him to stop what he was doing. Appellant
got off Flaviana and pretended to be asleep. It was at this point where Joel saw that his mother
also had her shorts pulled down. As he was furious, his wife stopped him from assaulting
appellant and so he went to his other sisters house, adjacent to his own, to tell her about the
incident. Later, they went back to see their mother. He recalled he was wielding a wooden stick
to hit appellant. He and Daisy told appellant to get out of the house. According to Joel, he
99
remembered that Daisy slapped appellant while he hit the appellant. Appellant hurriedly
left. Joels sisters then went to the barangay officials to report the incident and lodge a complaint
against appellant.[8]
DR. LUDIVINO[9] LAGAT testified that he was the physician who conducted a physical
and genital examination on the victim, Flaviana Mendoza, on October 21, 1997, a few hours
after the alleged rape was committed. The victim was weak, needed assistance to move, and had
difficulty answering questions. He further testified[10] that based on his examination, there could
have been prior sexual intercourse without necessarily producing any genital injury on the
victim.[11]
For the defense, appellant Ernesto Nicolas and his nephew Herminio Nicolas testified.
Appellant ERNESTO NICOLAS testified that Flaviana Mendoza was his first cousin and
that he lived with his nephews and nieces in his brothers house, located a street away from the
house of his aunt, Flavianas mother, where Flaviana was staying. On October 21, 1997, he went
to his aunts house, looking for a place to sleep, as his house was already closed. It was there that
he saw Flaviana. Upon seeing that there was no more space for him, he left. He also testified that
earlier that morning Flavianas son Joel confronted him and told him to leave the
house. Thereafter, he proceeded to his brothers house next door. He was sleeping by the door
when he was arrested by barangay officials. Thereafter, he was brought to the Coastal Police
Station where he was detained. He claimed he did not know the reason for his arrest. He denied
having sexual intercourse with Flaviana and claimed that he had no idea why he was being
accused of raping her. He admitted that he knew that Flaviana was almost paralyzed, mentally
and physically.[12]
Appellants nephew, HERMINIO NICOLAS, testified that at around 1:00 A.M. of October
21, 1997, as he arrived from a derby, he saw Ernesto Nicolas sitting on a broken
refrigerator. Appellant said that he was just going to sleep where he sat, just 10 meters away
from where Flaviana was allegedly raped. At that time, the witness said he did not notice
anything unusual or strange, only that the occupants of the house were still awake. At around
2:00 A.M., he saw appellant near his house, and by 3:00 A.M., he (Herminio) went inside to
sleep, and saw and heard nothing beyond 3:00 A.M.[13]
In its decision dated October 9, 1998, the trial court found appellant guilty of the crime
charged and rendered judgment as follows:

WHEREFORE, PREMISES CONSIDERED, finding accused Ernesto Nicolas GUILTY beyond

reasonable doubt for the crime of Rape as defined and penalized under No. 10, Art. 266-B RA
8353, this Court hereby sentences him to the maximum penalty of DEATH and to suffer the
accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. For the civil
liability, he is further condemned to indemnify the heirs of the victim P50,000.00 in line with
existing jurisprudence; P50,000.00 as moral damages and P50,000.00 as exemplary damages.

The Branch Clerk of Court is directed to prepare the Mittimus for the immediate transfer of
accused Ernesto Nicolas from Paraaque City Jail to the Bureau of Corrections in Muntinlupa
City and finally to forward all the records of this case to the Supreme Court for automatic review
in accordance with Section 9 (sic) Rule 122 of the Rules of Court and Article 47 of the Revised
Penal Code as amended by Section 22 of RA 7659.

SO ORDERED.[14]

This case is now before us on automatic review, with appellant alleging that the trial court:
I. . . . ERRED IN FINDING THE ACCUSED-APPELLANT ERNESTO NICOLAS
Y OCAMPO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
RAPE DEFINED AND PENALIZED UNDER RA 8353 (THE ANTI-RAPE LAW
OF 1997) AMENDING ART. 335 OF THE REVISED PENAL CODE.

100
 II. . . . GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT
DESPITE FAILURE ON THE PART OF THE PROSECUTION TO PRESENT
THE VERY COMPLAINANT ANNALIZA ORMELITA.[15]
Considering the assigned errors, two issues are for resolution. First, whether or not it is
indispensable for the prosecution to present Annaliza Urmelita, the daughter of the victim who
subscribed to the complaint for rape. Second, whether or not the evidence for the prosecution
suffices to prove beyond reasonable doubt that petitioner is guilty of the heinous crime of rape
for which he has been sentenced to death.
On the first issue, appellant contends that Annaliza Urmelita should have been presented in
order to identify her complaint during the trial. Appellant avers that her failure to do so amounts
to a lack of a valid complaint, because under Section 5, Rule 110 of the 1985 Rules on Criminal
Procedure,[16] such identification by complainant is jurisdictional in a prosecution for
rape. Appellant also contends that Annalizas non-presentation during trial violates the
constitutional right of the accused to meet and confront his accuser.
For the appellee, however, the OSG avers that considering Flavianas state of health, it
devolved upon her children, of sufficient age and discretion, to execute the complaint on her
behalf. Note that Flavianas own parents, said to be about aged 97,[17] were already too feeble for
the ordeal. Her daughter Annaliza Urmelita undertook the task and filed the affidavit-complaint
sufficient to vest jurisdiction on the court. The OSG further contends that there was no need to
present Annaliza during trial since she did not witness the rape incident. It was sufficient to have
presented her siblings Joel and Daisy who saw what had happened. These witnesses had in fact
been confronted and cross-examined by the defense, in satisfaction of the right of the accused
guaranteed under the Constitution.[18]
The contentions of the OSG are well-taken.
It is true that at the time, the 1985 Rules of Criminal Procedure required a sworn complaint
of the offended party in the prosecution of rape and other private crimes. The purpose of this
requirement was to serve as a condition precedent to the exercise by the proper authorities of the
power to prosecute the guilty parties.[19] The overriding consideration in determining compliance
with the requirement is the intent and determination of the aggrieved party to seek judicial
redress.[20] Once the requirement is satisfied by the proper affidavit or complaint, the
prosecutorial process is then commenced, and the court could validly exercise its legally
mandated jurisdiction over the rape case.
The rule is that when the offended party has executed and subscribed to a complaint, the
prosecution before the court may be initiated by means of an information signed by the
prosecutor alone.[21] But there is nothing in the rule that requires the complaint to still be
identified in court during trial. The rule, in our view, is not vitiated by the fact that the complaint
was signed by the daughter of the disabled and mentally ill victim. Otherwise the rule would be
requiring the impossible, which is absurd.
Annaliza Urmelitas affidavit-complaint, we believe, is sufficient compliance with the
rules. Annaliza swore to the contents of her affidavit-complaint, which was duly filed.Moreover,
all of Flavianas other children have shown their intent to proceed with the case by actively
participating in the trial. These include Ma. Victoria, Joel, and Daisy, who were presented as
witnesses. In our view, it is clear that the offended partys children are firm in their resolve to
seek judicial redress.
In any event, we have previously ruled in the case of People vs. Barrientos[22] that any issue
on the validity and sufficiency of the complaint should be raised in a motion to quash the
information pursuant to Section 3,[23] Rule 117 of the Rules of Court.[24] As in the cited case
of Barrientos, this Court considers any attack on the validity and efficacy of the affidavit-
complaint at this time rather belated.
We must also note that, even if considered in the light of current provisions of law and the
rules, the same ruling would be reached. Under R.A. 8353,[25] rape has been reclassified from
being a private crime into a crime against persons.[26] As a result, the prosecution of the crime of

101
rape has been effectively removed from the ambit of the requirements of Chapter Five, Title
Eleven of the Revised Penal Code and Section 5, Rule 110 of the 1985 Rules of Criminal
Procedure. We note further that on December 1, 2000, the Revised Rules on Criminal Procedure
took effect and, following the amendments brought about by R.A. 8353, Section 5, Rule 110
thereof has correspondingly been amended.[27] Rape may now be prosecuted de oficio.[28]
As to the alleged violation of appellants right to confrontation, we find appellants contention
without merit.
The right to confrontation has a two-fold purpose: (1) primarily, to afford the accused an
opportunity to test the testimony of the witness by cross-examination; and (2) secondarily, to
allow the judge to observe the deportment of the witness.[29]
In this case, Annaliza was the one who signed the complaint, considering the physical
disability of her paralyzed mother. However, it was her sister Daisy and brother Joel who saw
what had happened on October 21, 1997. The occurrences that constitute the crime charged were
culled from their testimony. Notably, appellant had the opportunity to confront both Daisy and
Joel, along with the other prosecution witnesses. Daisy and Joel were presented in court, and
their testimonies were adequately tested by the defense who subjected them to cross-
examination. Likewise, the judge had ample opportunity to observe their demeanor while
testifying, and evaluate their testimony. The judge found their testimony candid, straightforward
and credible.[30] It was not, in our view, indispensable under the circumstances of this case to
present Annaliza on the witness stand.
Now, we resolve the second issue. Has appellants guilt been proved beyond reasonable
doubt?
Rape is committed by, inter alia, having carnal knowledge of a woman who is deprived of
reason or otherwise unconscious.[31] The prosecution needs to prove in this case (1) the fact of
sexual intercourse between the accused and the victim; and (2) the mental disability of the
latter. Being deprived of reason means to suffer from mental abnormality, deficiency or
retardation.[32]
At the trial, both the mental and the physical states of the victim were proved by testimonies
of witnesses and by her clinical records presented by the prosecution.Witnesses testified that
Flaviana was physically incapable of moving about on her own.[33] She had difficulty
understanding what was being said to her; she did not recognize people around her, not even
members of her family.[34] Appellant himself admitted[35] that Flaviana suffered from mental and
physical disorders.
What remains to be proved is whether or not appellant had sexual intercourse with Flaviana
Mendoza. On this point, the prosecution presented the positive testimonies of Daisy and Joel
Mendoza, both children of the victim. They positively identified appellant Ernesto Nicolas, and
they categorically testified under oath in open court that they saw appellant in the act of sexually
abusing their invalid mother on or about 3:00 A.M. of October 21, 1997.
However, appellant denies the charge of rape, stating that he did not have sexual intercourse
with Flaviana Mendoza. He presented his nephew, Herminio Nicolas, who testified that nothing
unusual happened at 3:00 A.M. of October 21, 1997. Appellant then attacked the credibility of
the testimony of eyewitness Daisy Mendoza, saying that it was unusual and contrary to human
experience and deserved scant consideration.
We note that in giving credence to the prosecutions evidence, the trial court stated that the
testimonies of prosecution witnesses, including Daisy Mendoza, were delivered in a candid and
straightforward manner. The court observed them to be pained and under stress while testifying
against a relative.[36] Time and again this Court has accorded great weight to factual findings of
the trial court, particularly as regards credibility of witnesses, for it had the opportunity to
observe first-hand the deportment and demeanor of witnesses.[37]
Moreover, a careful perusal of the records of this case shows that appellants defense of
denial is weak. It was not positively corroborated even by his nephew, who merely testified as to
the occurrences in the area prior to the time of the alleged rape. Denial and alibi unsubstantiated

102
by clear and convincing evidence are negative and self-serving.They cannot be given greater
evidentiary weight over the testimonies of credible witnesses who testified on affirmative
matters.[38]
In assailing the credibility of the prosecution witnesses, appellant averred that it was
unlikely for rape to be perpetrated in a crowded place, such as the house where Flaviana was
staying. In a long line of cases, however, we have held that the presence of other people in the
vicinity does not deter the commission of rape; there is no rule that rape can be committed only
in seclusion.[39] Lust is no respecter of time or place; rape can be committed in small, confined
places like a one-room shack, and in the presence of other family members.[40]
According to appellant, the behavior of prosecution witness Daisy Mendoza, who left to call
her brother when she saw appellant sexually molesting her mother, was unnatural. Appellant
insists that the natural reaction would have been for Daisy to immediately retaliate or wake her
grandparents to ask for help, instead of leaving the house.
But as pointed out by the Office of the Solicitor General in its brief for the appellee, witness
Daisy Mendoza was only 15 years old, and she admitted it was her first time to be confronted
with such a situation.[41] She was in no position to stop a grown 39-year-old man in the heat of
passion. She even considered him as an uncle. It was the most natural thing for her to summon
her older brother, who could better deal with the beastly situation. The fact that her grandparents
were not awakened when she went out is immaterial. Both grandparents were already about 97
years old[42] at that time, and also did not even notice appellant enter their house.[43] Like her,
they would be helpless to deal with the repulsive behavior of appellant.
In sum, we hold that appellants guilt has been established beyond reasonable doubt by the
prosecution. However, in our view, it was error for the trial court to impose the penalty of death
on appellant.
As aforementioned, the trial court convicted appellant based on R.A. 8353, particularly under the provisions of
Article 266-B, No. 10[44] thereof. This is erroneous. R.A. 8353 took effect on October 22, 1997,[45] which was one
day after the commission of the crime on October 21, 1997. The Constitution prohibits ex post facto laws.[46] What
properly applies to the present case are the provisions of R.A. 7659, [47] which was the law in effect on the day when
the rape was committed.
Under Sec. 11 of R.A. 7659, only seven circumstances[48] called for the mandatory imposition of death on the
offender. The qualifying circumstance of when the offender knew of the mental disability, emotional disorder and/or
physical handicap of the offended party at the time of the commission of the crime was only added later, under R.A.
8353. It could not be applied here to qualify appellants offense and justify the death sentence. The proper penalty
imposable in this case is that provided for under R.A. 7659 for simple rape, which is only reclusion perpetua.
Nonetheless, it behooves this Court to state that even under the new rape law, R.A. 8353, the death penalty
would still be improper. As the law now stands in Article 266-B, paragraph 10, of the Revised Penal Code as
amended, knowledge of the offender of the mental disability of the victim at the time of the commission of the crime
of rape qualifies the crime and makes it punishable by death. But such knowledge must be alleged in the information
since a crime can only be qualified by circumstances pleaded in the indictment.[49] To hold otherwise would result in
a denial of the right of the accused to be informed of the charges against him, hence a denial of due process.
A close reading of the amended information filed by the prosecutor shows that the fact of appellants
knowledge of Flavianas condition at the time the rape was committed was not alleged therein. This omission rules
out any finding of qualified rape as defined by statute. Thus, notwithstanding proof of such knowledge, appellant
could only be held liable for the crime of simple rape.
As to appellants civil liability, we find in order the award of P50,000 as indemnity [50] and of another P50,000
as moral damages.[51] However, the award of P50,000 as exemplary damages should be reduced to only P25,000,
pursuant to current jurisprudence.[52]
WHEREFORE, the decision of the Regional Trial Court of Paraaque City, Branch 259, is hereby
MODIFIED. Appellant ERNESTO NICOLAS is found GUILTY beyond reasonable doubt of the crime of Rape. He
is sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay to the concerned heirs of the
victim, Flaviana Mendoza, P50,000 as civil indemnity, P50,000 as moral damages, and P25,000 as exemplary
damages, together with the costs.
SO ORDERED.

103
 [G.R. No. 100455. September 17, 1993.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUISITO EROLES Y

VERANGA alias "Ka Randy", ALEJANDRO ROMERO alias "Ka Noel", FELICIANO
PATRIARCA alias "Ka Darwin", PEDRO EROLES alias "Ka Rommel", Peter Doe and
John Doe, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Public Attorneys Office for Accused-Appellants.

SYLLABUS

1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; DESIGNATION OF CRIME NOT

AFFECTED BY NUMBER OF PERSONS KILLED. It is necessary first to correct the
designation in the information of the offense as "Robbery with Double Homicide." As we have
emphasized in two recent cases: . . . it is the nature of the crime of robbery with homicide that
the homicides, irrespective of their number, committed on the occasion of or by reason of the
robbery, are merged in the composite crime of "robbery with homicide." It is error, therefore, to
treat the death of the victims as "double or multiple homicide," for in this special complex crime,
the number of persons killed is immaterial and does not increase the penalty prescribed in Article
294 of the Revised Penal Code. . . . The designation of the crime as robbery with multiple
homicide is incorrect. Assuming that a complex crime was committed, it should be categorized
as robbery with homicide regardless of the number of persons killed by reason or on occasion of
the robbery.

2. ID.; ID.; HOMICIDE MUST HAVE BEEN COMMITTED ON THE OCCASION OF OR IN

CONNECTION WITH THE ROBBERY. It must also be pointed out that the crime of
robbery with homicide is a crime against property. The principal offense is robbery, not
homicide. Hence, it must be shown that the homicide was committed on the occasion of or in
connection with the robbery as originally planned, and not independently thereof. This cannot be
presumed. Unless the robbery itself is established, the crime committed is simple homicide or
murder as the case may be.

3. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY OF EVIDENCE;

CONTRADICTION OF EYEWITNESSES ON A VITAL QUESTION; LEGAL EFFECT
THEREOF. In finding that Eroles was the killer of Villanueva, the trial court obviously relied
on the testimony of Carreon, who said that when they heard the gunshots coming from the
restaurant, he and Medina immediately proceeded thereto. There they came upon Eroles firing at
Villanueva and thereafter taking the victims rifle before fleeing. The trial court apparently
disregarded the testimony of the other supposed eyewitness, Medina. Medina testified that when
they arrived at the scene of the crime, Villanueva was already lying dead outside the restaurant
and Nieva had also succumbed inside. He said it was at Carreon that Eroles fired two shots. The
appellee dismisses this inconsistency as a minor discrepancy, but the Court does not think so. It
goes to the very issue of who shot and killed Villanueva and must therefore be carefully
considered in assessing the criminal responsibility of the accused. Where two alleged
eyewitnesses contradict themselves on such a vital question, the element of reasonable doubt is
injected and cannot be disregarded. Significantly, both Carreon and Medina were prosecution
witnesses.

DECISION

CRUZ, J.:

104
Two soldiers were killed in the morning of March 23, 1989, at a restaurant in Quezon Province.
1 Their weapons were presumably stolen. That same day, Luisito Eroles was picked up by the
police for questioning. No other suspects were apprehended although the crime was reportedly
committed by several persons.

On July 31, 1989, an information for robbery with double homicide was filed against Eroles and
five other persons. The information read in full as follows:chanrob1es virtual 1aw library

The undersigned accuses Luisito Eroles y Veranga alias "Ka Randy", (prisoner), Alejandro
Romero alias "Ka Noel", (at large), Feliciano Patriarca alias "Ka Darwin" (at large), Pedro Eroles
alias "Ka Rommel", (at large), Peter Doe and John Doe, the last two-mentioned accused being
still at large and whose true names are still unknown, of the crime of robbery with double
homicide, committed as follows:chanrob1es virtual 1aw library

That on or about the 23rd day of March, 1989, at Barangay Lapu-lapu, Poblacion, Municipality
of Unisan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, armed with firearms of undetermined caliber, with intent to gain and
to rob, conspiring and confederating together and mutually helping one another, with force and
violence, did then and there willfully, unlawfully and feloniously take, steal and carry away one
M-14 rifle, valued at P10,000.00; with Serial No. 860752, issued to and in the possession of
CAA Rogelio Nieva, CAFGU, and a property of the Government of the Republic of the
Philippines, to its damage and prejudice in the said amount of P10,000.00; and that on the same
occasion and by reason thereof, the above-named accused, armed with firearms, conspiring and
confederating together and mutually helping one another, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and shoot C2C Fernando Villanueva, PC and
CAA Rogelio Nieva, CAFGU, respectively, which directly caused their death.

Of the six accused, Eroles alone was arraigned because the others remained at large. 2 He
pleaded not guilty. After trial, he was convicted by Judge Ludovico C. Lopez of the Regional
Trial Court of Lucena City in a decision rendered on May 27, 1991. 3 Eroles was sentenced to
suffer the penalty of reclusion perpetua and to pay the heirs of Villanueva civil indemnity in the
amount of P30,000.00.

The trial court found, on the basis principally of the testimonies of Pat. Danilo Medina and C1C
Geronimo Carreon, that the accused, in the company of the other accused, shot and killed C2C
Fernando Villanueva and thereafter took the victims weapon and fled. It discounted his alibi as
an inherently weak defense which, additionally, he had failed to sustain.

In this appeal, Eroles faults his conviction on the grounds that the testimonies of the alleged
eyewitnesses are contradictory and inherently incredible. He claims that the robbery was not
established. Moreover, the prosecution should rely on its own strength and not on the weakness
of the defense.

It is necessary first to correct the designation in the information of the offense as "Robbery with
Double Homicide." As we have emphasized in two recent cases:chanrob1es virtual 1aw library

. . . it is the nature of the crime of robbery with homicide that the homicides, irrespective of their
number, committed on the occasion of or by reason of the robbery, are merged in the composite
crime of "robbery with homicide." It is error, therefore, to treat the death of the victims as
"double or multiple homicide," for in this special complex crime, the number of persons killed is
immaterial and does not increase the penalty prescribed in Article 294 of the Revised Penal
Code. 4

x x x

105
The designation of the crime as robbery with multiple homicide is incorrect. Assuming that a
complex crime was committed, it should be categorized as robbery with homicide regardless of
the number of persons killed by reason or on occasion of the robbery. 5

It must also be pointed out that the crime of robbery with homicide is a crime against property. 6
The principal offense is robbery, not homicide. Hence, it must be shown that the homicide was
committed on the occasion of or in connection with the robbery as originally planned, and not
independently thereof. This cannot be presumed. Unless the robbery itself is established, the
crime committed is simple homicide or murder as the case may be. 7

The fact of the killing of Rogelio Nieva and Fernando Villanueva is not disputed. The autopsy
reports showed that the former died of two gunshot wounds and the latter of four as a result of
the attack against them at the restaurant. 8 What is in issue is the identity of the killer or killers.
More to the point, was it Eroles who killed them?

The decision of the trial court seems to have found Eroles guilty of killing only Villanueva
because it decreed the payment of indemnity only to his heirs. No similar indemnity was ordered
for the heirs of Nieva.

In finding that Eroles was the killer of Villanueva, the trial court obviously relied on the
testimony of Carreon, who said that when they heard the gunshots coming from the restaurant,
he and Medina immediately proceeded thereto. 9 There they came upon Eroles firing at
Villanueva and thereafter taking the victims rifle before fleeing. 10

The trial court apparently disregarded the testimony of the other supposed eyewitness, Medina.
Medina testified that when they arrived at the scene of the crime, Villanueva was already lying
dead outside the restaurant and Nieva had also succumbed inside. 11 He said it was at Carreon
that Eroles fired two shots. 12

The appellee dismisses this inconsistency as a minor discrepancy, but the Court does not think
so. It goes to the very issue of who shot and killed Villanueva and must therefore be carefully
considered in assessing the criminal responsibility of the accused. Where two alleged
eyewitnesses contradict themselves on such a vital question, the element of reasonable doubt is
injected and cannot be disregarded. Significantly, both Carreon and Medina were prosecution
witnesses.

The other crime allegedly committed by Eroles was robbery. The allegation was that the accused
stole and carried away an M-14 rifle "with Serial No. 860752 issued to and in the possession of
CAA Rogelio Nieva" at the time he was killed. This too must be proved with clear and
convincing evidence.

The memorandum receipt signed by Nieva proves only that he had been issued the rifle
described therein. 13 The fact that the soldiers were killed does not raise the presumption that a
robbery was also committed. The circumstance that they were soldiers does not raise the
presumption that they were carrying firearms at the time of the attack. Even if it did and a
robbery could also be presumed, there is no proof that it was Eroles who robbed them of the gun
mentioned in the information.

Carreon testified that he saw Eroles fire at Villanueva and thereafter take his victims gun before
fleeing. Medina said nothing of the sort. His statement was that Villanueva and Nieva were
already dead when they arrived at the restaurant and the supposed assailants were already
fleeing.

The trial court itself seemed confused about the firearm that was taken. The decision said that
Eroles got Villanuevas M-14 rifle and, later in the same paragraph, noted that Nievas M-14 was

106
also missing. It added that the rifle taken by Eroles was covered by a memorandum receipt
signed on March 15, 1989, by Nieva (not Villanueva). So whose rifle was stolen by Eroles? If
anything is clear about these findings, it is that the object of the robbery is uncertain. That
uncertainty casts doubt on the evidence of the prosecution that a robbery was committed with the
killings.

It would have been the better strategy for the prosecution to present the testimony of Celestina
Capuno, the owner of the restaurant who had earlier signed a sworn statement regarding the
incident in question. 14 She was the best eyewitness because she was in the restaurant even
before Carreon and Medina arrived. She could have testified on how Nieva and Villanueva were
killed, and by whom, and whether any robbery occurred at all. For some reason, however, she
did not testify for the prosecution.

The Court agrees that the appellants alibi is not worthy of credence. His testimony that he
traveled through several barangays to be at Barangay Kabulihan, to attend a burial, 15 is not
believable. He never went to an interment although there was indeed one in the said barangay on
March 23, 1989. 16 Moreover, he did not establish that from Barangay Kabulihan he could not
have possibly gone to Barangay Lapulapu and be there at the time the two soldiers were killed.

But despite all these improbabilities, the weakness of Eroless alibi is not enough to overcome
the presumption of innocence in his favor. The evidence of the prosecution is simply too flimsy
to show that it was Eroles who shot Villanueva to death and stole the gun he was carrying. The
two alleged eyewitnesses, both testifying for the prosecution, contradicted themselves on the
actual killing of Villanueva. There is also no convincing proof of the firearm that was stolen or,
indeed, that a firearm had been stolen at all.

The defense is weak, to be sure, but the prosecution is even weaker. It cannot sustain the
appellants conviction against the presumption of his innocence as decreed by no less than the
Constitution itself.

The Court notes the defense suggestion that when the police team organized to pursue the killers
"chanced upon" Eroles, they arrested him because of his supposed NPA connections. He was a
convenient "fall guy" they could easily frame. True or not, these observations jibe with the
significant fact that Eroles had not sought to hide or flee after the commission of the crime. He
alone of the six persons who allegedly attacked the two soldiers did not go into hiding. He alone
did not elude trial and conviction.

The Court is not convinced to the point of moral certainty that Luisito Eroles is the person who
killed Villanueva (and much less Nieva) and that a robbery was committed on the occasion or by
reason of such killing. As there is not enough evidence to support the conclusion that he is guilty
of the crime charged, he is entitled to be exonerated on the ground of reasonable doubt.

WHEREFORE, the decision of the Regional Trial Court of Lucena City in Criminal Case No.
89-600 is REVERSED, and appellant Luisito Eroles is hereby ACQUITTED, with no
pronouncement as to costs. He is ordered released immediately.

SO ORDERED.

107
 [G.R. No. 91513. December 21, 1990.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GERONIMO

GOLES, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Policarpio A. Viola, for Defendant-Appellant.

DECISION

GANCAYCO, J.:

The conviction of the defendant-appellant Geronimo Goles for the rape of a 20-year old mental
retardate is the subject of this appeal.

The facts of this case as found by the trial court are as follows

On October 11, 1987 at about 3 oclock in the afternoon, the victim Jessie Sajol, a 20-year old
mental retardate, while on her way to the house of Ernesto Paragsa, met the appellant along the
road. The appellant took hold of the victim, dragged her away from the road brought her to a
nearby grassy area and forced her to the ground. The appellant managed to pull down the
victims kneepants and underpants after which he took off his pants. The victim tried to run away
while the appellant was removing his pants but he pulled her closer to him and threatened her
with a bolo and said that he would kill her if she would resist. While the victim was lying on the
ground, the appellant opened her legs, boxed her thigh and succeeded in having sexual
intercourse with her. Thereafter, Maria Sajol, the mother of the victim, saw her daughter crying,
along the road, near the scene of the incident. When queried by her mother, the victim declared
she was raped by Geronimo Goles, the appellant. She immediately brought her daughter to the
house of Goles, who, when confronted, denied having raped her. Hence, mother and daughter
reported the matter to the police before whom they executed their respective affidavits. 1

The following day the victim and her mother went to see Dr. Manuel C. Ozaraga who conducted
a physical examination of the victim, with the following results:jgc:chanrobles.com.ph

"MEDICAL CERTIFICATE

"Jessie N. Sajol, 20 yrs. old, single residing at Nazareth, Sta. Juana, Tagbina, Surigao del Sur
examined by the undersigned on Tuesday October 12, 1987 at about 11:45 AM with the
following findings:jgc:chanrobles.com.ph

"The patient is mentally retarded.

White curdish discharges on the left and right labia majora inner portion.

Tenderness when one finger was attempted to be inserted in the vaginal

canal.chanroblesvirtualawlibrary

Bleeding dominant on the porterior vaginal wall.

Discharges mucoid in nature coming from the vaginal canal mixed with blood.

Discharges also noted on the cervical mucosa.

108
Laboratory examination revealed negative finding for sperm.

Impression: compatible with rape.

(Sgd.) MANUEL C. OZARAGA, M.D.

Attending Physician" 2

On October 19, 1987, a criminal complaint signed by Maria N. Sajol and Jessie Sajol with the
conformity of the Station Commander, Conrado A. Oraiz, was filed in the Office of the
Provincial Fiscal of Surigao del Sur. 3

On October 20, 1987, an information was filed in the Regional Trial Court of Bislig, Surigao del
Sur, Br. 29 accusing Geronimo Goles of the crime of rape committed against Jessie Sajol. 4

On October 31, 1987, the appellant was arrested and detained at the provincial jail of Bislig. At
his arraignment on January 22, 1988, he entered a plea of not guilty. Trial ensued.

The court a quo rendered judgment on November 3, 1988 finding the appellant guilty beyond
reasonable doubt of the crime of rape, sentencing him to a penalty of reclusion perpetua and
ordering him to pay the aggrieved party Jessie Sajol the amount of P30,000.00 as moral damages
and P5,000.00 as exemplary damages. 5

In the appeal before Us, the appellant assigns the following errors:chanrob1es virtual 1aw library

1) that the trial court had no jurisdiction to hear the case because the information was not signed
by the complainant, and

2) that the guilt of the appellant was not proved beyond reasonable doubt.

Anent the first assignment of error, the appellant avers that the information accusing him of the
crime of rape was not signed by the complainant or by her parents; hence, the lower court did not
acquire jurisdiction to try and decide the case. In support of this theory, appellant cites Section 5,
Rule 110, 1985 of the Rules on Criminal Procedure, as amended, which provides that "the
offenses of seduction, abduction, rape or acts of lasciviousness shall not be prosecuted except
upon a complaint filed by the offended party or her parents, grandparents, or guardian, . .
."cralaw virtua1aw library

The Court had occasion to reject this argument. The requirement that the offense of rape must be
prosecuted upon complaint filed by the offended party is found in Article 344 of the Revised
Penal Code 6 and the aforestated Section 5 of Rule 110. Expounding on the meaning and
significance of this requirement, this Court held in People v. Hon. Santiago Taada 7

". . . In the 1966 case of Valdepenas v. People this Court through then Associate, later Chief
Justice Roberto Concepcion clarified:chanrob1es virtual 1aw library

. . . It is true that pursuant to the third paragraph of Art. 344 of the Revised Penal Code,

. . . the offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted
except upon a complaint filed by the offended party or her parents . . .

The provision does not determine, however, the jurisdiction of our courts over the offenses
therein enumerated. It could not affect said jurisdiction, because the same is governed by the
Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with the definition
of crimes and the factors pertinent to the punishment of the culprit. The complaint required in
said Article is merely a condition precedent to the exercise by the proper authorities of the power
to prosecute the guilty parties. And such condition has been imposed out of consideration for the

109
offended woman and her family who might prefer to suffer the outrage in silence rather than go
through with the scandal of a public trial.

x x x

This ruling was followed in the subsequent case of People v. Babasa where the Court, citing the
Valdepenas case, ruled that Article 344 was not enacted for the specific purpose of benefiting the
accused. When it is said that the requirement in Article 344 that there should be a complaint of
the offended party or her relatives is jurisdictional, what is meant is that it is the complaint that
starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the Court
to try the case. The courts jurisdiction is vested in it by the Judiciary
Law." chanrobles.com:cralaw:red

In the case at bar, the prosecution for the crime of rape was commenced by the filing of the
criminal complaint which was signed not only by the complainant but also by her mother in
accordance with Rule 115, Section 5 considering that the complainant is mentally incompetent. 8
This criminal complaint was the basis for the preliminary investigation conducted by the fiscal
and the subsequent filing of the information in court. Nowhere in the law is it required that the
complainant likewise sign and verify the information for rape filed by the fiscal. 9 Indeed, the
very information filed by the fiscal reads:jgc:chanrobles.com.ph

"The undersigned, on complaint under oath, hereby accuses GERONIMO GOLES of the crime
of RAPE, committed as follows:chanrob1es virtual 1aw library

That on or about the 11th day of October, 1987, at about 3:00 oclock in the afternoon, more or
less, at Sitio Nazareth, barangay Sta Juana, municipality of Tagbina, province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a bolo, with the use, intimidation and violence, did, then and there, willfully,
unlawfully and feloniously have carnal knowledge with the complainant Jessie Sajol against her
will and consent, to the damage and prejudice in the following amounts to wit:chanrob1es virtual
1aw library

P30,000.00 as moral damages; and

P 5,000.00 as exemplary damages.

CONTRARY TO LAW: (Article 335 of the Revised Penal Code)." 10

The Court takes note of the reference in the first paragraph to the sworn complaint of the
offended party filed with the fiscal by the phrase "on complaint under oath." This goes to show
that said criminal complaint was in effect reproduced as part of the information.

During the trial said complaint of the offended party was presented in evidence marked as
Exhibits B-B. 11 There was thus sufficient compliance with the requirement of the law and the
trial court correctly assumed jurisdiction over the case.

Indeed, in the case of People v. Sunpongco, 12 where the criminal complaint filed by the
offended party for the purpose of preliminary investigation was not presented in evidence during
the trial and where the information was filed by the fiscal, this Court ruled that the trial court can
take judicial notice of the complaint that was forwarded with the records of the preliminary
investigation to the court, without necessity of its formal introduction in evidence.

The appellant, in his second assignment of error, points out that the trial court failed to prove his
guilt beyond reasonable doubt. For his defense, he claims that he and the supposed aggrieved
party are sweethearts and at the time of the alleged commission of the crime, they purposely met
pursuant to an agreement. He further alleged that there was consent to have sexual intercourse

110
but the act was not consummated because of the arrival of the mother of complainant. This was
in fact confirmed by the mother of complainant who testified that he merely used his finger and
by the medical certificate which indicated that no sperm was found. There was also no sign of
injury on the victim negating the theory that there was a struggle by the victim or that force was
employed on her person. There was not even a torn dress presented as evidence. Even the
complainants alleged mental retardedness is contradicted by her membership in different social
and religious organizations in the community.

The arguments raised by appellant are devoid of merit.

The appellant would have the Court believe that he and the victim are sweethearts who mutually
consented to have sexual intercourse, but like in many other rape cases 13 where this same
defense had been raised, the Court is not persuaded. He did not present any proof like a letter or
a ring perhaps, to support his allegation that he and the victim are sweethearts. Despite his claim
that they met for the first two times at the house of his uncle, he did not present said uncle or any
other member of the household to prove his theory. The further fact that the victim is a mental
retardate makes his story incredible. In her defective state of mind, complainant could not have
induced appellant to nurture a desire to have her for a sweet heart. Besides, she could not have
possessed the capacity to understand the meaning of having such a relationship with him. 14

It does not appear that the complainant or her mother has any ill-motive to falsely testify against
the appellant. 15 Indeed if the charge was not true, the victims mother would not have rushed to
appellants house to confront him and, immediately thereafter, reported the matter to the
authorities. As held in one case where the victim was also a mental retardate, it would be
preposterous to assume that the victim, whose intelligence quotient is admittedly low, could have
concocted the grave charge of rape, or that she and her mother would go into the trouble of
having her medically examined, going to court and advertising to the whole world she had been
raped if the charge was merely invented. 16

Moreover, the testimony of the mother corroborates the story of the victim. She saw her daughter
crying along the road who immediately told her mother what transpired. If there was no truth to
the charge, the victim would not have been in such a state and she would not have told her
mother that she was raped ("gilogos" in the Visayan dialect) by the appellant. 17 Mrs. Sajol even
saw for herself the exact spot where the crime happened with the cogon grass still pressed down.
The trial court correctly considered the statements made by the victim to her mother immediately
after the incident as part of the res gestae. 18

As to the appellants argument that the victims mother confirmed his claim that he did not rape
her, the records show that the victims mother testified that "Geronimo Goles told us that, I did
not rape her but I just used my fingers." 19 This is mere hearsay since she only repeated what the
appellant told her when he was confronted and this in no way confirms his allegation that he
merely used his fingers. At most, this is a self-serving statement which cannot prevail over the
categorical statement of the victim that the accused inserted his penis inside her vagina. 20

Relative to the finding that no sperm was found, it has been repeatedly held that the presence of
sperm cells is not indispensable to prove the offense of rape. 21 The examination disclosed that
there was bleeding dominant on the porterior vaginal wall as well as discharges, mucoid in
nature, coming from the vaginal canal mixed with blood and discharges on the cervical mucosa
which would indicate that there was penetration of the victims vagina. In fact, the attending
physician concluded that the condition of the victim is compatible with rape. The victim likewise
testified that she felt pain in her vagina during coitus and that she was bleeding after the incident.
22 Besides, by the time the examination was conducted, the victim had already washed her
private parts and had urinated several times thus washing away the sperms which may have been
present in her vaginal canal. 23

The absence of injury on the person of the victim does not negate rape. 24 It is a doctrine well-
settled that in order to consider the existence of the crime of rape, it is not necessary that the

111
force and/or intimidation employed in accomplishing be it great or of such character as could not
be resisted, it is only necessary that the force and intimidation used by the culprit be sufficient to
consummate the purpose which he had in mind. 25 The victim had initially resisted the advances
of the appellant and she even shouted twice for help; however, the appellant threatened to kill her
if she did not consent and at the time he had in his possession a bolo. The threat to her life was
sufficient to instill in the childlike mind of the victim a fear so great that she had no choice but to
give in to the lustful desires of the appellant. The positive declaration of complainant that the
appellant threatened to kill her should be given more weight than the simple denial of the
accused. 26

The further fact that no torn dress was presented by the prosecution does not negate rape. 27 The
absence of a torn dress or panty is explained by the fact that the victim no longer offered any
resistance by reason of the intimidation employed upon her by the appellant.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph

At any rate, physical intimidation prior to sexual intercourse is not necessary for rape to be
committed considering the mental deficiency of the victim such that she is incapable of giving
consent to the sexual act. 28 It is for this reason that the appellant makes much of the alleged
membership of the victim in different social and religious organizations to counter her supposed
deficient mental state. From the testimony of the victims mother, it can be seen that she is a
member of a church organization and as such member she helps in cleaning and weeding the
church premises, 29 activities which a mental retardate is not incapable of doing. The fact that
the victim is a mental retardate should not stop her or her parents from making her useful to the
community.

Indeed, the trial court found the version of the prosecution to be more credible, which finding is
amply supported by the evidence on record, for which reason the Court upholds the judgment of
the court a quo finding the appellant guilty beyond reasonable doubt of the offense of rape as
charged.

The indemnity awarded should be increased to P40,000.00.

WHEREFORE, with the above modification as to the indemnity, the judgment of conviction is
hereby AFFIRMED in all other respect, with costs against the Appellant.

SO ORDERED.

112
G.R. No. L-27923 November 18, 1991

MARCELA N. GONZALES, petitioner-appellee,

vs.
HON. GUMERSINDO ARCILLA, City Judge of Davao City (Branch III), ALFREDO M.
CELI, First Assistant City Fiscal of Davao City, representing the People of the Philippines,
and FILIPINAS ORDOEZ, respondents-appellants.

Jose M. Ilagan for petitioner-appellee.

Caneta, Tolentino, Arcangel & Guyo for private respondent.

DAVIDE, JR., J.:p

This is an appeal from the Decision dated 7 June 1967 Branch III of the then Court of First
Instance (now Region Trial Court) of Davao in a petition for certiorari and prohibition (Special
Civil Case No. 5270) which granted the petition and enjoined permanently both the City Judge
and City Fiscal from taking further cognizance of a criminal case for slander (Criminal Case No.
2273-B) in the City Court of Davao City because said case was not brought at the instance and
upon complaint of the offended party, respondent City Fiscal had no authority to file the
information, and the City Judge had no jurisdiction over the case. 1

The factual and procedural antecedents are as follows:

On 17 February 1966, an information for slander against accused Marcela N. Gonzales

(hereinafter referred to as the appellee) was filed before the City Court of Davao by Assistant
City Fiscal Alfredo Celi. The information reads:

That on or about December 19, 1965, in the City of Davao, Philippine, and within
the jurisdiction of this Honorable Court, the above-mentioned accused with intent
to cast dishonor, discredit and contempt upon one Filipinas Ordoez, wilfully,
unlawfully and feloniously and in the heat of anger uttered publicly in the
presence and within the hearing of several persons the following defamatory
words, to wit: "MANG-AAGAW NG ASAWA NG MAY ASAWA! TIBIHON!
PUTANG INA MO! WALANG HIYA! PATAY GUTOM", which when
translated to English runs (sic) as follows: "Seducer of wives of other husbands or
adulteress. Consumptive. Your mother is a prostitute. You do not have a sense of
shame. You are a glutton", to the dishonor, discredit and contempt of said
Filipinos Ordoez.

On 5 August 1966, the appellee moved to quash the information asserting that the City Court has
no jurisdiction over the offense charged and that the Officer who filed the information had no
authority to do so. She claims therein that the alleged defamation imputes the crime of adultery
and thus cannot be prosecuted de oficio. The other remarks, however, do not charge a crime, The
complaint must, therefore, be brought at the instance of the offended party, which was not done
in this case. Hence, the fiscal did not have the authority to file the information and the court did
not acquire jurisdiction over the case.

The records do not show that the offended party filed a complaint in the fiscal's office and that
the Information was signed by her.

The motion to quash was denied by respondent Judge, prompting appellee to move for its
reconsideration. This second motion was likewise denied. Thus, appellee filed with the then
Court of First Instance of Davao a petition for certiorari and prohibition which was docketed as
Special Civil Case No. 5270.

113
Appellee reiterated in her petition the grounds in her motion to quash and elaborated on her
arguments in support thereto. On the other hand, respondents maintained that the slanderous
words alleged in the "information contain imputations no only to (sic) one crime but to (sic)
other offenses like vice, defect and condition which are distinct from and independent of each
other; one, admitted to be of adultery and others are public crimes which can be prosecuted de
oficio."

In deciding Civil Case No. 5270 against respondents, then Judge Alfredo I. Gonzales opined that
"the entire context of the Information should be read together as a whole and not to pick up (sic)
particular words and phrases and then detach or isolate them from the rest so as to give them
different meaning (sic) that is desired by the one who may use it for his own convenience" and
that "the entire defamation in question should be given an ordinary and peculiar significance in
order to render it effectual in the sense that is most likely understood by the parties and which is
in keeping with the purpose and intent of the party who uttered them." He then concluded and
ruled that:

The first part of the defamation complained of, quoted: "mang-aagaw ng asawa ng
may asawa" may literally mean: "one who grabs another's husband," thereby
imputing the commission of the crime of adultery wherein the accused maintained
an immoral or illicit relations (sic) with another man who is not her husband.

The prosecuting Fiscal has correctly construed in English the significance of the
first portion of the defamation in question by imputing the commission of the
crime of adultery, in which case, it becomes undisputed that the offended party
has the exclusive right to sign and file the complaint and not the Fiscal.

However, the City Fiscal did not interpret the correct meaning of the succeeding
group of clauses quoted: "Putang ina mo, tibi-hon, walang hiya, patay gutom" for
he just gave them a strict, literal construction which does not portray the real
intent of the accused and does not conform to the sense as it is ordinarily
understood by an average person. Expressions of this kind and tenor are
commonly used by many people according to their custom specially those who
are unschooled and coming from the lower social strata. They are usually uttered
by the slip of the tongue and are intended to describe, intensify, explain or
emphasize the other parts of the utterances which accompany them or to which
they cling or are attached. They may be defamatory or not depending upon the
tenor and import conveyed by the accompanying statements.

In the instant case, the above quoted combined utterances expressed in the native
dialect are mere accompanying and supporting phrases and terms and used to give
more vivid color and importance to the first portion, depicting the temper,
emotion, demeanor and the hatred of the petitioner (accused in the lower Court)
owing perhaps to a fit of jealousy arising from her suspicion that the offended
party is having immoral relations with her husband.

It become (sic) clear and logical then to conclude that the next group of words
mentioned in the preceding paragraph does not impute the commission of any
public offense that may be considered distinct and independent from that
conveyed in the first sentence, but they are simply intended to give more spicy
flavor to the main thought expressed in the whole statements. No other reasonable
and logical conclusion can be drawn from the premises except that the correct
imputation to the crime probably committed in this case is that of adultery or a
similar offense, private in nature and that there is but one, single and indivisible
crime that is described by the whole slanderous statements alleged in the
information.

114
 In view of all the foregoing, the Court is convinced and is of the opinion that only
the crime of adultery or a kindred offense is imputed to the accused (petitioner
herein) for uttering the alleged defamation in question taken as a whole and no
imputation to (sic) any other public offense could be logically inferred from the
tenor and spirit conveyed therein.

Respondents-appellants challenge the above decision in their four (4) assigned errors, to wit:

FIRST The lower court erred in holding that the information alleges only one
defamatory remark imputing a private offense which cannot be prosecuted de
oficio.

SECOND The lower court erred in holding that the other utterances alleged in
the information are not defamatory as to constitute the crime of slander which can
be prosecuted de oficio.

THIRD The lower court erred in holding that the fiscal lacks authority to file
the information and, therefore, the City Court fails (sic) to acquire jurisdiction
over the case.

FOURTH The lower court erred in permanently enjoining the respondents

from taking further cognizance of the information. 2

In support thereof, they contend that:

(a) It is clear that the information alleges "many remarks or utterances which are all defamatory"
and not just one as ruled by the court. Each may constitute a separate offense. However, since
they were made on one occasion, and the product of a single criminal intent, there is only one
offense of slander.

(b) One slanderous remark should not be given more emphasis than the other. Neither should a
single remark be considered to suit the purpose of the accused. Rather, the rule is that all the
slanderous statements should be treated as one and taken as a single offense of slander.

(c) The one remark held by the court to be slanderous as it imputed the crime of adultery
is "mang-aagaw ng asawa ng may asawa." Standing by itself, it does not, contrary to the court's
ruling, impute the crime of adultery. At most, it implies that the one to whom it is addressed is a
flirt, a temptress, or one who indulges in enticing other husbands. It imputes a vice, condition or
act which equally casts dishonor and contempt upon the person alluded to. Flirtation is not
adultery.

(d) All the defamatory statements alleged in the information likewise only impute a vice, defect,
act or condition not constituting a crime. The fiscal, therefore, has the authority to file the
information and the City Court acquired jurisdiction over the case.

(e) Assuming for the sake of argument that the defamatory statements alleged in the information
include one imputing an offense which cannot be prosecuted de oficio, still the case at bar is one
which can be instituted upon the instance of the fiscal on the ground that what then is involved is
a compound or complex crime, one of the components of which is a public crime, in which case
it can be prosecuted de oficio under the theory that public interest is paramount to private
interest. 3

In her Brief, 4 appellee maintains that:

(a) when the slanderous remarks, uttered on one occasion with one criminal intent, also imputes
the commission of adultery, regardless of the other imputations, the charge can only be brought

115
at the instance of and upon complaint subscribed and filed by the offended party. Thus, in People
vs. Padilla, 5 it was held:

... while said Article 364 penalizes any intrigue which has for its purpose to
blemish the honor or reputation of a person, the information avers facts which do
not merely constitute an incriminatory machination or a defamatory intrigue but
go as far as accusing a married woman of having illicit relations with a man not
her husband which in effect constitutes the crime of adultery.

xxx xxx xxx

Considering that under Article 360, paragraph 4, of the Revised Penal Code, no
criminal action for defamation which consists in the imputation of a crime which
cannot be prosecuted de oficio can be brought except upon the complaint filed by
the offended party, and the crime of adultery is one that cannot be prosecuted de
oficio (Article 344, idem.), it is obvious that the information filed in this case is
insufficient to confer jurisdiction upon the court of origin. The trial court was
therefore correct in quashing the information.

(b) People vs. Yu, cited by appellants, is not applicable in this case because it refers to a complex
crime defined under the Revised Penal Code which imposes only one (1) penalty. Appellants
admit that in this case there is only one offense, although it involves many slanderous remarks.

Slander is oral defamation while libel is defamation in writing. 6 In both, there is a public and
malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredict, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead. 7

In determining whether the offense has been committed, the defamatory words are to be
construed in their entirety, and should be taken in their plain, natural and ordinary meaning as
they would naturally be understood by persons reading or hearing them, unless it appears that
they were used and understood in another sense. 8 In short, the language used must be
understood "in its plain and popular sense to read the sentences as would the man on the
street." 9 The intent or purpose then of the speaker or writer is not relevant.

The issues in this case revolve on the correct appreciation of the statements uttered by appellee
and alleged in the information to be slanderous. They read as follows:

Mang-aagaw ng asawa ng may asawa! Tibihon! Putang Ina Mo! Walang Hiya!
Patay Gutom!

The fiscal translated them as follows:

Seducer of wives of other husbands or adulteress. Consumptive. Your mother is a

prostitute. You do not have a sense of shame. You are a glutton.

Judge Gonzales, after postulating the major premises that the entire defamation in question
should be given an ordinary and peculiar significance in order to render it effectual in the sense
most likely understood by the parties and which is in keeping with the purpose and intent of the
party who uttered them, held that the controlling slanderous utterance is the first part which
literally means: "one who grabs another's husband," thereby "imputing the commission of the
crime of adultery," while the rest are mere accompanying and supporting phrases and terms used
to give more vivid color and importance to the first portion.

In the light of the above rule of determining whether the offense of oral defamation or libel has
been committed, it is evident that the last part of Judge Gonzales' major premise focusing on the
purpose and intent of the speaker is erroneous.

116
Equally erroneous is his literal translation of the first portion of the alleged defamatory
utterance. We agree with appellants that "mang-aagaw ng asawa ng may asawa," even if
translated as "one who grabs another's husband," does not necessarily mean an adulteress. At
most, it may imply that the person whom it is addressed is a "flirt, a temptress, or one who is in
enticing other husbands;" hence, it is more of an imputation of a vice, condition or act not
constituting a crime.

If indeed it were the intention of the appellee to impute upon the offended party the crime of
adultery, then in the light of charge that the remarks were made "in the heat of anger" that, as
Judge Gonzales described it, they were uttered in manner "depicting the temper, emotion,
demeanor and hatred of the petitioner (accused in the lower court) owing perhaps to a fit of
jealousy arising from her suspicion that offended party is having immoral relations with her
husband," appellee should have used more dialect, pointed and descriptive terms to convey the
accusation that the offended party is a adulteress. Under such circumstances, she would not have
luxury of time to choose less offensive or even harmless words to camouflage a clear intent to
defame the other and thus avoid criminal or civil liability for the utterance. On its face, her
statement is merely suggestive of a doubt as to the kind relationship the offended party would
have with married men. It is thus an imputation of some kind of moral depravity, immoral
conduct or a vice, but certainly not of a crime.

Neither do We agree with Judge Gonzalez' conclusion the other portions of the alleged
slanderous remarks "are me accompanying and supporting phrases and terms used to give more
vivid color and importance to the first portion." The other remarks are by themselves defamatory
and are not at all related to the first portion. They were uttered to impute a condition, defect,
status or vice intended to cause dishonor, discredit or contempt on the offended party. "Tibihon"
means a suffering from tuberculosis, and not "consumptive" as translated by the fiscal. "Putang
Ina Mo,"although referring to a mother, was meant to suggest that the offended party is not a
legitimate daughter of her mother. "Walang-Hiya," which means "shameless," could relate to the
offended party's being a flirt, seducer, or a daughter of a prostitute. "Patay-Gutom" is derogatory
remark connoting abject poverty entirely unrelated to the first portion. In short, the other
imputations did not give color and importance to the first portion; they were uttered merely to
expose all the possible vices, defects, real or imaginary, status, or condition of the offended
party. None of these, however, imputed any crime.

Accordingly, the last paragraph of Article 360 of the Revised Penal Code which provides that:

No criminal action for defamation which consist in the imputation of a crime

which cannot be prosecuted de oficio shall be brought except at the instance of
and upon complaint expressly filed by offended party.

which has specific reference to the crimes against chastity, 10 and the second paragraph of
Section 5, Rule 110 of the Rules of Court which provides:

The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. ...

are not applicable in this case since, as above discussed, alleged slanderous utterances subject of
the assailed information do not impute any crime which cannot be prosecuted de oficio.

The foregoing considered, neither People vs. Yu, cited by appellant, nor People vs. Padilla, cited
by appellee, is applicable in this case. The first refers to a prosecution "for rape murder"
(included in the generic term homicide) under 335 in relation to Article 48 of the Revised Penal
Code. A single act resulted in two (2) grave felonies. Appellants admit that the instant case, the
remarks were made in one occasion that even granting for the sake of argument that one portion
imputes a crime which cannot be prosecuted de oficio, the rest, however, can be, hence the
applicability of People vs. Yu. The argument is flawed by the wrong assumption that Article 48
the Revised Penal Code applies in this case. Under said Article, there is a complex crime when a

117
single act constitutes two (2) more grave or less grave felonies, or when an offense necessary
means for committing another. Appellants apparently forgot that it is their thesis that the rest of
the utterances did not impute any crime but merely a "vice, defect, act, and condition not
constituting a crime;" otherwise stated, regardless of the number of defamatory utterances, the
appellee can only be prosecuted for a single offense.

Neither is People vs. Padilla applicable. In that case, the special counsel of Pasay City accused
Lydia Padilla of the offense of intriguing against honor 11 in an information which alleges that
"with the principal purpose of blemishing the honor and reputation of one Fausta Bravo, a
married woman, (the accused did) circulate and spread gossips, rumors or stories highly
offensive and defamatory to her honor, virtue and reputation, by then and there telling some
people in the neighborhood that said Fausta Bravo was a paramour of one Sangalang , a
man not her husband." 12 The lower court dismissed the case on the ground that it was not
initiated by a complaint filed by the offended party pursuant to paragraph 4 of Article 360 of the
Revised Penal Code, considering that it involves an imputation of a crime which cannot be
prosecuted de oficio. This Court sustained the dismissal for the reason that the import of the
allegation in the information cannot be mistaken "[I]t charges Fausta Bravo with committing
adultery pure and simple." Contrary then to the pretension of appellee, only one (1) crime was
imputed adultery.

WHEREFORE, the Decision appealed from in SP Civil Case No. 5270 of the court below dated
7 June 1967 is hereby REVERSED. The Order of the City Court of Davao City of 27 July 1966
in Criminal Case No. 2273-B denying the motion to quash is hereby REINSTATED and said
court is directed to proceed with the arraignment, if one has not yet been had, and the trial of the
case on its merits.

Costs against petitioner-appellee.

IT IS SO ORDERED.

118
 [G.R. No. 106560. August 23, 1996]

FLOREZIL AGUJETAS and SALVADOR BIJIS, petitioners, vs. COURT OF APPEALS

and THE PEOPLE OF THE PHILIPPINES, respondents.
TORRES, JR., J.:

Petitioners Florezil Agujetas and Salvador Bijis, former Chairman and Vice-Chairman,
respectively of the Provincial Board of Canvassers for the Province of Davao Oriental assail the
decision of the public respondent Court of Appeals which affirmed the decision of the Regional
Trial Court of Mati, Davao Oriental finding them guilty as charged for failure to proclaim a
winning elected candidate. The dispositive portion of the Court of Appeals decision[1] in CA-
G.R. CR No. 09689 reads:

"WHEREFORE, the decision appealed from is AFFIRMED with a modification in that the
actual damages of P50,000.00 are hereby reduced to P40,000.00 and the moral damages
P100,000.00 awarded to Erlinda Irigo are deleted. Costs de officio.

"SO ORDERED."

The antecedents:
In the fateful evening of January 21, 1988, the Provincial Board of Canvassers for the
Province of Davao Oriental, composed of 1.) the Provincial Election Supervisor Florezil
Agujetas, as Chairman, 2.) Provincial Prosecutor Salvador Bijis, as Vice Chairman, and 3.)
Division Superintendent of Public Schools in said province, Benjamin Miano,[2] as member,
proclaimed the winners for Governor, Vice-Governor, and Provincial Board Members for Davao
Oriental in the January 18, 1988 election. The candidates proclaimed were:

PROCLAIMED CANDIDATES

Name No. of Votes

For Governor:
Leopoldo Lopez 59,309 votes
Francisco Rabat 51,191 votes

For Vice-Governor:
Modesto Avellanosa 46,353 votes
Josefina Sibala 54,083 votes

For Provincial Board Members

1. Cirilo R. Valles 42,394 votes
2. Ma. Elena Palma Gil 41,557 votes
3. Antonio Alcantara 39,104 votes
4. Dr. Capistrano Roflo 37,301 votes
5. Orlando Rodriguez 34,914 votes
6. Alfredo Abayon 34,191 votes
7. Justina Yu 32,360 votes
8. Pedro Pena 30,679 votes

The eighth board member proclaimed, Pedro Pena, garnered 30,679 votes when another
candidate for the Board, Erlinda Irigo, got 31,129 or 450 more votes than Pena.
Before the proclamation was made, when the certificate of canvass and proclamation
statements of winning candidates were finished, a verbal protest was lodged by Mrs. Maribeth

119
Irigo Batitang, daughter of candidate Irigo and her designated representative during the
canvassing proceedings, addressed to the Tabulation Committee.
At 8:00 o'clock in the morning of January 22, 1988, the Board resumed its session and
undertook the following activities:

"1. Opening of Ballot Box No. CA-301596 and sealed by Metal Seal No. 204767 at exactly
10:25 a.m.

"2. Continued preparing all reports called for submissions to COMELEC, Regional Office and
Manila.

"3. Reconciliation of entries in the tally sheets. (Exhs. "E" and "E-1")

Considering, however, that the protest was verbal and not officially brought to the attention
of the Provincial Board of Canvassers during official session, the same was not given appropriate
official recognition. (Exh. "7-B", p. 2, Minutes of Provincial Board of Canvassers, January 21,
1988)
The following day, January 23, 1988, Board Member Candidate Erlinda V. Irigo filed her
written protests[3] with the Board of Canvassers. (Exh. "F")
Meanwhile, Francisco Rabat, a losing gubernatorial candidate in Davao Oriental filed with
the COMELEC a complaint against the three board members for violation of BP 881 (Omnibus
Election Code) and RA 6646 (The Electoral Reform Law of 1987). After a preliminary
investigation was conducted by the COMELEC, criminal charges were filed against the Board
Members. The pertinent portions of the information in Criminal Case No. 1886 for Violation of
2nd Paragraph of Section 231 in Relation to Section 262 of the Omnibus Election Code read:

"That on or about January 21, 1988, in the Municipality of Mati, Province of Davao Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused as
Chairman, Vice-Chairman and Third Member, respectively, of the Provincial Board of
Canvassers of Davao Oriental in the January 18, 1988 elections, conspiring with, confederating
together and mutually helping one another, did, then and there, willfully and unlawfully fail to
proclaim Erlinda Irigo as elected Sangguniang Panlalawigan Member candidate who obtained
31,129 votes, the eighth highest number of votes cast in said province but instead proclaimed
candidate Pedro Pena who obtained only 30,699 votes."

"CONTRARY TO LAW"[4]

After trial on the merits, the trial court rendered a decision, the dispositive portion of which
reads:

"WHEREFORE, in view of all the foregoing considerations, Criminal Cases Nos. 1885 and 1887
are hereby DISMISSED, with costs de oficio, and the accused considered acquitted. Their bail
bonds are ordered canceled and released.

"In Criminal Case No. 1886, the Court finds the accused Florezil Agujetas, Salvador Bijis and
Benjamin Miano GUILTY beyond reasonable doubt as principals for violation of Section 231,
second paragraph, of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus
Election Code of the Philippines", and hereby sentences each of them to ONE (1) YEAR
IMPRISONMENT which shall not be subject to probation. In addition, they are sentenced to
suffer disqualification to hold public office and deprivation of the right of suffrage. Said accused
are ordered to pay, jointly and severally, Erlinda Irigo the amounts of P50,000.00 as actual
damages, P15,000.00 as and for attorney's fees, and P100,000.00 as moral damages, plus the
costs of the proceedings.

120
"Let copies hereof be furnished the Honorable Chairman, Commission on Elections, and the
Honorable Secretaries of Justice and Education, Culture and Sports.

"SO ORDERED." (pp. 43-44, Decision)

The three accused appealed to the Court of Appeals which rendered the decision assailed in
this petition.
Petitioners impute to the respondent court the following errors:
I
The Court of Appeals erred in affirming the decision of conviction because:
a. It is the failure to make a proclamation on the basis of the Certificate of Canvass, and
not mere erroneous proclamations, which is punishable under Sec. 262 in relation to
Sec. 231 (2) of the Omnibus Election Code.
b. A protest made to the verification/tabulation committee does not constitute a protest
to the Board of Canvassers itself.
c. The functus oficio rule is applicable to the present case.
d. Credence should not have been given to hearsay testimony to establish the alleged
protest to the Board of Canvassers.
II
The Court of Appeals erred in awarding damages to a person who is not a party to the case.
We find the petition without merit.
On the first assigned error, the issue hinges on the question of what is being penalized by the
pertinent provision of the Omnibus Election Code. Petitioners argue that they are not liable under
the said law because they complied with all the requirements of Sec. 231 of the Omnibus
Election Code - 1. a certificate of canvass was prepared, 2. the same was duly supported by a
statement of votes of each of the candidates, and 3. it was on the basis of the certificate of
canvass that the winners were proclaimed. Only, the certificate was erroneous.
According to petitioners, the Omnibus Election Code does not punish the preparation of an
incorrect certificate of canvass, nor an erroneous proclamation made by the Board; what it does
punish is that, having thus prepared the corresponding certificate, the board for some reason fails
to make the corresponding proclamation on the basis thereof.
On the other hand, the People's counsel maintains that petitioners' challenges on this
particular issue is a question of semantics, a mere play of words; for while the prosecution
maintains that there was a failure to proclaim the winning candidate, petitioners on the other
hand, counter that there was merely an erroneous proclamation of the losing candidate; that
petitioners forget that in proclaiming an erroneous winner they actually failed to proclaim the
winning candidate, in this case, Erlinda Irigo. Respondents further argue that the situation
presented by petitioners would not exculpate them from criminal responsibility for, whichever
way the matter may be looked into, whether as erroneous proclamation of a losing candidate or
failure to proclaim the winning candidate, the result is the same - the winning candidate was not
proclaimed, and hence, injustice is the end result.
We agree with the respondents.
The second paragraph of Section 231 of the Omnibus Election Code reads:

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of each member, supported by a statement of the
votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the province,

121
city, municipality or barangay. Failure to comply with this requirement shall constitute an
election offense."

To go by the explanation as proposed by the petitioner would be tantamount to tolerating

and licensing boards of canvassers to "make an erroneous proclamation" and still be exculpated
by just putting up the inexcusable defense that the "foul-up resulted from the erroneous
arrangement of the names of candidates"[5] in one municipality or that "the basis of their
proclamation was the erroneous ranking made by the tabulation committee." That would be a
neat apology for allowing the board to be careless in their important task by simply claiming that
they cannot be held liable because they did their "duty" of proclaiming the winning candidates on
the basis of the certificate of canvass - even "erroneous" certificates - which they made.
At this point, it is appropriate to quote certain portions of the Resolution in IPD Case No.
88-100, disposing of the complaint filed with the COMELEC issued by Regional Election
Director Resurreccion Borra of Region XI, in relation to the preliminary investigation conducted
by him on said case. Director Borra testified on this resolution[6] (Exh. Z) under cross-
examination by the prosecution, certain portions of which are material to the case:

"But there is one incontrovertible fact that the respondents miserably failed to dispute. This
undeniable fact is conveniently ignored by Respondents' Memorandum. In the exhibits of the
complainant, the computerized tabulation of votes based from the statements of votes by precinct
in each of the 121 Municipalities of Davao Oriental for all of the 600 precincts and even
admitted by the Respondents that there was no error in the tabulation of votes in CA 26-
A. Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only 30,679 votes or a margin of 450
votes by Irigo over Pena. From the ranking, Irigo would have been ahead of Pena, and she should
have been No. 8 in the winning list of 8 candidates instead of Pena. But in the Certificate of
Canvass of Votes and Proclamation of Winning Candidates for Provincial Offices, Pedro T. Pena
was included as No. 8 in the winning list and proclaimed as No. 8 Member of the Sangguniang
Panlalawigan of Davao Oriental by the Provincial Board of Canvassers.

xxx xxx xxx

"The Complainant, in presenting the computerized summary tabulation of votes for each precinct
per municipality of the Province, admitted that the PBC prepared the statements of votes. x x x
The statements of votes (CE 26-A) should have been the basis for the proclamation of the
winning candidates for Provincial Offices. Complainant's documentary and testimonial
evidences showed that the PBC proclaimed Pedro Pena who was not among those candidates
who obtained the 8 highest number of votes cast in the province per municipality by precinct
which violated the legal requirement of the 2nd paragraph of Section 231 of BP No. 881 as
amended.

"The respondents were not able to explain their failure to comply with the requirement that (sic)
the basis for the proclamation of Pena when he was not among the eight candidates who obtained
the highest number of votes as evidenced by the statements of votes. In fact they admitted that
the basis was not the statement of votes but the erroneous ranking by the Tabulators. x x x"[7]

It appears from the foregoing resolution of Director Borra that it was difficult to make a
mistake in selecting the 8 candidates with the highes votes for purposes of making the certificate
of canvass because there was no error in the tabulation of votes as CE Form No. 26-A (which is
the statement of votes) shows that Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only
30,679 votes. The mistake could only be made through utter carelessness, if not made
deliberately. This situation only illustrates that the questioned provision cannot be construed in
the manner as argued by petitioners for it would defeat the purpose and spirit for which the law
was enacted, i.e., to achieve the holding of free, orderly, honest, peaceful and credible
elections. In Lino Luna vs. Rodriguez,[8] the court observed:

122
"Experience and observations taught legislature and courts that, at the time of a hotly contested
election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the
limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the
purity of the ballot and defeat the will of the people at the polls. Such experience has led the
legislature to adopt very stringent rules for the purpose of protecting the voter in the manner of
preparing and casting his ballot to guard the purity of elections." "The infinite ingenuity of
violent spirit in evading the rules and regulations of elections and the use of bribery, fraud and
intimidation has made necessary the establishment of elaborate and rigid rules for the conduct of
elections. The very elaborateness of these rules has resulted in their frequent violation and the
reports of the courts are replete with cases in which the result of an election has been attacked on
the ground that some provisions of the law have not been complied with. Presumably, all the
provisions of the election laws have a purpose and should be observed.

On the second assigned error, petitioners contend that assuming ex gratia argumenti that the
protest made by candidate Irigo's daughter Maribeth Irigo Batitang was the verbal protest
contemplated under Sec. 245 of the Omnibus Election Code, such fact could not be deemed to be
a protest made to the Board of Canvassers itself; and that the failure of the member of the
verification/tabulation committee concerned to apprise the Board prior to the proclamation
cannot be taken against the members of the Board.
We find the above contentions untenable. As aptly stated by Director Borra in his
aforementioned resolution:

"The timely verbal protest of the daughter-watcher of Mrs. Erlinda Irigo did not trigger on the
part of the PBC (Provincial Board of Canvassers) the responsible action of verifying the basis of
the protest. The 3 Members of the PBC could not attribute to the Committee on Tabulation the
blame for their errors as the PBC members themselves were the ones who certified under oath
the said Certificate of Proclamation and the Tabulation Committee members were totally under
their direct supervision and control."

Petitioners also raised the issue that it was only after the proclamation had been made that
the Board was informed of the fact that an error may have been committed in the tabulation; and
that however, having discharged its function of making the canvass and proclamation of the
winning candidates, the Board of Canvassers became functus oficioand could no longer correct
the erroneous proclamation.
As to this issue, suffice it to state that whether or not "the Board of Canvassers
became functus oficio" after it proclaimed the winning candidates, is beside the point. What
matters is whether or not petitioners committed an election offense. Besides, as stated earlier,
Mrs. Irigo's watcher made a timely verbal protest to the Tabulation Committee.
Petitioners further contend that Maribeth Irigo Batitang, the daughter of candidate Irigo and
her designated representative during the canvassing proceedings, was never presented as a
witness; that Erlinda Irigo, upon whose testimony the trial court relied heavily to establish the
fact of protest, was not present during the canvassing proceedings; that Mrs. Irigo's testimony on
this point is inadmissible as being hearsay and should not have been considered by the trial court;
that no other evidence having been adduced with respect to the protest allegedly made by Irigo's
representative, such fact should be deemed as not having been established; and that there was
thus no basis, therefore, for the respondent Court of Appeals to hold that the Board was deemed
to have been constructively informed of the verbal protest and that the members thereof were
liable for having failed to act on the basis thereof.
We are not persuaded. Even if we tentatively grant that Mrs. Irigo's testimony is hearsay
evidence, there is still ample evidence which proves that the Board was deemed to have been
informed of the verbal protest and that the members thereof were liable for having failed to act
on the basis thereof.
The resolution[9] of Director Borra quoted the questions and answers during the preliminary
investigation. The import of those deliberations show that petitioner Agujetas, as Chairman of

123
the Provincial Board of Canvassers, admitted that the tabulation committee was under the
supervision of the Board.[10] As regards petitioner Bijis, Vice Chairman of the Board, he
admitted that he signed the minutes of the Board to the effect that on January 22, 1988 in the
morning after the proclamation, the Board's business was "reconciliation of entries in the tally
sheet,"[11] thus showing that the proclamation in question had been made even before the votes
were reconciled on the tally sheets. And as to accused Miano, Secretary of the Board, he
admitted having stated in the minutes[12] that an oral complaint was made by Mrs. Batitang,
representative of Erlinda Irigo, but that the complaint was lodged with the tabulation committee
and not with the Board; and that he did not care to examine the partial results for each provincial
candidate, including Erlinda Irigo and Pedro Pena.[13]
An admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof.[14]
On the last error assigned by petitioners, they maintain that the present case was filed by
Francisco Rabat, the losing gubernatorial candidate in the Province of Davao Oriental; that Mrs.
Irigo never joined the Complaint as a party-plaintiff at any stage of the proceedings; that she was
merely presented as a witness; and thus, for the court to have awarded damages to Mrs. Irigo was
a patent error. We find petitioners' allegations untenable. Except where the law specifically
provides the contrary, a complaint that a public crime has been committed may be laid by any
competent person.[15] The Omnibus Election Code does not specifically provide that a particular
person must file the complaint and hence, the complaint filed by Francisco Rabat is valid.
The counsel for the people points out and we agree-

"Even an offended party not mentioned in the Information may claim the civil liability during the
trial if he has not waived it.[16]

"In the case at bar, Erlinda Irigo clearly, was the party offended or the person whose rights were
trampled upon, by the indecent haste with which petitioners proclaimed Teodoro Pena (sic) as
the winner of the 8th seat of the Sangguniang Panlalawigan.

"The persistence of Erlinda Irigo's lawyers to participate, as in fact they participated, in the
proceedings a quo as private prosecutors over the vehement objections of petitioners' counsel
clearly indicates that Erlinda Irigo intended to claim damages from petitioners."[17]

In U.S. v. Heery,[18] this court held that "If the injured party has not expressly waived the
civil liability of the accused nor reserved his right to file a separate civil action, it is error for the
court to refuse a request of the injured party during the course of the criminal prosecution to
submit evidence of his damages. Thus, the arguments of the petitioners notwithstanding,
respondent court did not err in awarding damages to Mrs. Irigo.
After the People's counsel has filed respondents' comment, petitioners filed their Reply
wherein they raised for the first time (not even in their Petition), the issue that the crime under
which petitioners were convicted no longer exists because Republic Act Nos. 6646 (the Electoral
Reforms Law of 1987) and 7166 (Electoral Reforms Law of 1991) were subsequently approved
on January 5, 1988 and November 26, 1991, respectively; that these two laws amended the
Omnibus Election Code by deleting certain provisions thereof or adding new ones; and that
among those amended was Section 231, which was modified by Section 28 of RA No. 7166 by
removing the specific manner by which the proclamation of winning candidates by the Board of
Canvassers should be made and thereby, in effect, repealing the second paragraph of Sec. 231 of
the old Omnibus Election Code under which Petitioners had been convicted.
Points of law, theories, issues and arguments not adequately brought to the attention of the
trial court need not be, and ordinarily will not be considered by a reviewing court as they cannot
be raised for the first time on appeal.[19] However, since RA 7166 was enacted after the trial
court had rendered its decision, and while the case was already pending appeal in the Court of
Appeals, and in order to settle the issue once and for all, this court will make a clear-cut ruling
on the issue.

124
 Sec. 231 of the Omnibus Election Code (Batas Pambansa Blg. 881) was not expressly
repealed by R.A. 7166 because said Sec. 231 is not among the provisions repealed by Sec. 39 of
R.A. 7166 which we quote:

"Sec. 39. Amending and Repealing Clause. - Sections 107, 108 and 245 of the Omnibus Election
Code are hereby repealed. Likewise, the inclusion in Section 262 of the Omnibus Election Code
of the violations of Sections 105, 106, 107, 108, 109, 110, 111 and 112 as among election
offenses is also hereby repealed. This repeal shall have retroactive effect.

"Batas Pambansa Blg. 881, Republic Act No. 6646, Executive Order Nos. 144 and 157 and all
other laws, orders, decrees, rules and regulations or other issuances, or any part thereof,
inconsistent with the provisions of this Act are hereby amended or repealed accordingly."

The statement "All laws or parts thereof which are inconsistent with this Act are hereby
repealed or modified accordingly," certainly is not an express repealing clause because it fails to
identify or designate the act or acts that are intended to be repealed. If repeal of particular or
specific law or laws is intended, the proper step is to so express it.[20]
Neither is there an implied repeal of Sec. 231 by the subsequent enactment of RA 6646 and
RA 7166.
While Sec. 28 of RA 7166, like Sec. 231 of the Omnibus Election Code (BP 881) pertains to
the Canvassing by the Boards of Canvassers, this fact of itself is not sufficient to cause an
implied repeal of the prior act.[21] The provisions of the subject laws are quoted below for
comparison:

"Sec. 231. - Canvass by the board. - The board of canvassers shall meet not later than six o'clock
in the afternoon of election day at the place designated by the Commission to receive the election
returns and to immediately canvass those that may have already been received. It shall meet
continuously from day to day until the canvass is completed, and may adjourn but only for the
purpose of awaiting the other election returns from other polling places within its
jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far
for each candidate for each office, furnishing the Commission in Manila by the fastest means of
communication a certified copy thereof, and making available the data contained therein to the
mass media and other interested parties. As soon as the other election returns are delivered, the
board shall immediately resume canvassing until all the returns have been canvassed.

"The respective board of canvassers shall prepare a certificate of canvass duly signed and
affixed with the imprint of the thumb of the right hand of each member, supported by a statement
of the votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the
province, city municipality or barangay. Failure to comply with this requirement shall constitute
an election offense.

"Subject to reasonable exceptions, the board of canvassers must complete their canvass within
thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces.
Violation hereof shall be an election offense punishable under Section 264 hereof.

"With respect to the election for President and Vice-President, the provincial and city boards of
canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of
votes received by each candidate in each polling place and transmit the first copy thereof to the
Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the
third copy shall be kept by the provincial election supervisor or city election registrar; the fourth
and the fifth copies to each of the two accredited political parties. (Sec. 169, 1978 EC)."[22]

"Sec. 28. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - (a)
The city or municipal board of canvassers shall canvass the election returns for President, Vice-
President, Senators and members of the House of Representatives and/or elective provincial and

125
city or municipal officials. Upon completion of the canvass, it shall prepare the certificate of
canvass for President, Vice-President, Senators and Members of the House of Representatives
and elective provincial officials and thereafter, proclaim the elected city or municipal officials, as
the case may be.

"(b) The city board of canvassers of cities comprising one or more legislative districts shall
canvass the election returns for President, Vice-President, Senators, Members of the House of
Representatives and elective city officials. Upon completion of the canvass, the board shall
prepare the certificate of canvass for President, Vice-President, and Senators and thereafter,
proclaim the elected Members of House of Representatives and city officials.

"(c) (1) In the Metro Manila Area, each municipality comprising a legislative district shall have a
district board of canvassers which shall canvass the election returns for President, Vice-
President, Senators, Members of the House of representatives and elective municipal
officials. Upon completion of the canvass, it shall prepare the certificate of canvass for President,
Vice-President, and Senators and thereafter, proclaim the elected Members of the House of
Representatives and municipal officials.

"(2) Each component municipality in a legislative district in the Metro Manila Area shall have a
municipal hoard of canvassers which shall canvass the election returns for President, Vice-
President, Senators, xxx

"(3) The district board of canvassers of each legislative district comprising two (2) municipalities
in the Metro Manila Area shall canvass the certificates of canvass for President, Vice-President,
xxx

"(d) The provincial board of canvassers shall canvass the certificates of canvass for President,
Vice-President, Senators, Members of the House of Representatives and elective provincial
officials as well as plebiscite results, if any plebiscite is conducted simultaneously with the same
election, as submitted by the board of canvassers of municipalities and component cities. Upon
completion of the canvass, it shall prepare the certificate of canvass for President, Vice-President
and Senators and thereafter, proclaim the elected Members of the House of Representatives and
provincial officials as well as the plebiscite results, if any."[23]

While the two provisions differ in terms, neither is this fact sufficient to create
repugnance. In order to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the inference of implied repeal may be
drawn, for inconsistency is never presumed.[24] "It is necessary, says the court in a case,[25] before
such repeal is deemed to exist that it be shown that the statutes or statutory provisions deal with
the same subject matter and that the latter be inconsistent with the former. There must be a
showing of repugnance clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly enacted. An
inconsistency that falls short of that standard does not suffice."[26] For it is a well-settled rule of
statutory construction that repeals of statutes by implication are not favored.[27] The presumption
is against inconsistency or repugnance and, accordingly, against implied repeal.[28] For the
legislature is presumed to know the existing laws on the subject and not to have enacted
inconsistent or conflicting statutes.[29]
In the case at bar, the needed manifest indication of legislative purpose to repeal is not
present. Neither is there any inconsistency between the two subject provisions. The explanation
of a legal scholar[30] on the subject, particularly on Section 1 of BP 881 is enlightening:

"The Omnibus Election Code of the Philippines is Batas Pambansa Blg. 881, which was enacted
into law on December 3, 1985. It codified all previous election laws. It has undergone some
amendments, basically by the 1987 Constitution, Republic Act No. 6646, otherwise known as

126
"The Electoral Reform Law of 1987," and Republic Act No. 7166, providing for synchronized
national and local elections on May 11, 1992.

"The Omnibus Election Code is the basic law on elections. While legislations have been enacted
every time an election for elective officials is scheduled, the Omnibus Election Code remains the
fundamental law on the subject and such pieces of legislations are designed to improve the law
and to achieve the holding of free, orderly, honest, peaceful and credible elections."

Consistently, while Article 22 of the Revised Penal Code provides that penal laws shall have
retroactive effect insofar as they favor the person guilty of a felony xxx, this provision cannot be
applied to benefit the petitioners because Section 231 of BP 881[31] was not repealed by
subsequent legislations, contrary to petitioners contention that Section 231 was so repealed by
R.A. Nos. 6646 and 7166.
ACCORDINGLY, the petition is DENIED for lack of merit and the assailed decision of the
respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.

127
 [G.R. No. 46370. June 2, 1992.]

ANTONIO AVECILLA, appellant-petitioner, v. PEOPLE OF THE PHILIPPINES and

HON. COURT OF APPEALS, appellees-respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

SUFFICIENCY OF INFORMATION; DESCRIPTION ALLEGED THEREIN CONTROLS
OVER DESIGNATION OF OFFENSE. The averments in the complaint or information
characterize the crime to be prosecuted and determine the court before which the case must be
tried. What controls is not the designation of the offense but the description thereof as alleged in
the information.

2. ID.; ID.; ID.; ID.; MUST CONTAIN ALL THE ELEMENTS OF THE CRIME
COMMITTED; SATISFIED IN CASE AT BAR. A thorough examination of the information
reveals that it contains all the essential elements of the crime of theft, to wit: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence or intimidation against persons or force upon
things. While it is true that petitioner could not have been "bewildered" as to the nature of the
charge against him had the information been more accurately crafted, it nonetheless contains all
the elements of the crime of theft. Thus, it is alleged therein that petitioner, with the aid of and in
conspiracy with an unidentified woman, willfully took away Registered Letter No. 24341
belonging to Lourdes Rodriguez de Lacson to her damage and prejudice. Although intent to gain
is not explicitly alleged in the information, it may be presumed from the allegation that the said
mail matter was unlawfully taken. Since there is no allegation that the taking was accomplished
with violence or intimidation against persons or force upon things, it is apparent that the charge
is for the crime of theft rather than robbery.

3. ID.; ID.; RIGHTS OF THE ACCUSED; RIGHT TO BE INFORMED OF THE NATURE

AND CAUSE OF ACCUSATION AGAINST HIM; WHEN NOT DEEMED VIOLATED.
The petitioner had not been deprived of his constitutional right to be informed of the nature and
cause of the accusation against him. He may be convicted of a crime and sentenced to the
corresponding penalty as long as the facts alleged in the information and proved at the trial
constitute the crime for which he is convicted although different from the crime designated and
charged in the information.

4. ID.; EVIDENCE; QUANTUM OF PROOF REQUIRED IN CRIMINAL CASES; RULE.

The allegations in the complaint against petitioner had been established beyond reasonable doubt
at the trial. In this regard, it should be pointed out that absolute certainty of guilt is not demanded
by the law as basis for conviction of any criminal charge, but moral certainty is required as to
every proposition of proof requisite to constitute the offense. Moral certainty convinces and
satisfies the reason and conscience that a crime has indeed been committed.

5. CRIMINAL LAW; QUALIFIED THEFT; WHERE PROPERTY STOLEN IS MAIL

MATTER; REGISTERED LETTER INCLUDED THEREIN. The allegation that the subject
of the taking is a registered letter categorizes the theft as a qualified rather than a simple one.
This is clear from the provision of Art. 310 of the Revised Penal Code which states that qualified
theft is committed if the property stolen is mail matter. In this regard, petitioners contention that
not all registered letters are mail matter is incorrect. Under Sec. 1945 of the Revised
Administrative Code of 1917, first class mail matter includes letters. For the greater security of
valuable mail matter, Sec. 1962 of the same Code established a registry system "under which the
senders or owners of registered matter may be indemnified for losses thereof in the mails, the
indemnity to be paid out of postal revenues . . . ."cralaw virtua1aw library

128
6. ID.; ID.; COMMISSION THEREOF, NOT NEGATED BY THE FACT THAT ACCUSED
DID NOT BENEFIT FROM THE ARTICLES TAKEN; CASE AT BAR. In his defense,
petitioner relied solely on his own unsupported testimony. His story that after taking delivery of
the registered letter addressed to complainant Mrs. Lacson, he left it on her desk after office
hours when no one else was in the office strains credulity. In his attempt to prove that he did not
benefit from the bank draft of $400.00, he presented Mrs. Lacson herself with a letter from the
cashier of the Guardian State Bank in Milwaukee, Wisconsin to the effect that the bank draft had
not been paid. However, as in the crime of robbery, the fact that the accused did not benefit from
the articles taken does not affect the nature of the crime because from the moment the offender
gained possession of the thing, the unlawful taking is complete.

7. ID.; ID.; INTENT TO GAIN PRESUMED. Although proof as to motive for the crime is
essential when the evidence of the theft is circumstantial, the intent to gain or animus lucrandi is
the usual motive to be presumed from all furtive taking of useful property appertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator. As
earlier noted, the intent to gain may be presumed from the proven unlawful taking.

8. ID.; ID.; PROPER PENALTY THEREOF. The Court of Appeals considered P6,000.00 as
the equivalent of $400.00. Under Art. 309 (2) of the Revised Penal Code, the penalty for theft
involving said amount is prision correccional in its minimum and medium periods, but
considering that qualified theft is punishable by a penalty two degrees higher, petitioner should
be imposed the penalty of prision mayor in its medium and maximum periods. In the absence of
aggravating and mitigating circumstances, the penalty should be the medium period of said
penalty or nine (9) years, four (4) months and one (1) day of prision mayor medium to ten (10)
years, eight (8) months and one (1) day of prision mayor maximum. Hence, the Court of Appeals
correctly applied the Indeterminate Sentence Law and imposed the indeterminate sentence of
four (4) years, two (2) months and one (1) day of prision correccional maximum as minimum
penalty to nine (9) years, four (4) months and one (1) day of prision mayor medium as maximum
penalty.

DECISION

ROMERO, J.:

This is a petition for review on certiorari of the decision dated December 20, 1976 of the Court
of Appeals in CA-G.R. No. 16628-CR entitled "People of the Philippines v. Antonio Avecilla"
modifying the decision of July 16, 1973 of the then Court of First Instance of Rizal, Branch 1 at
Pasig finding the accused-petitioner guilty of simple theft, by convicting the accused-petitioner
instead, of qualified theft and imposing on him accordingly, a higher penalty.

The accused-petitioner, Antonio Avecilla and one Juana Doe were charged before the said lower
court of the crime of theft, allegedly committed as follows:jgc:chanrobles.com.ph

"That on or about the 16th day of November, 1971, in the municipality of Mandaluyong,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and mutually helping and aiding one another, with intent of gain and
without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully
and feloniously take, steal and carry away one Registered Letter number 247341, delivery
number 3752, valued at $500.00 belonging to one Lourdes Rodriguez de Lacson, to the damage
and prejudice of the latter in the aforementioned amount of $500.00, U.S. dollar.

Contrary to law." 1

129
Upon arraignment, Antonio Avecilla entered a plea of not guilty to the crime charged. 2

On the other hand, to prove his guilt, the prosecution presented the following
witnesses:chanrob1es virtual 1aw library

1. Lourdes Rodriguez de Lacson, an employee of Litton Mills, Inc., testified that her sister,
Maria Paz, a resident of Milwaukee, Wisconsin, U.S.A., sent her a registered letter containing a
bank draft worth $400.00 (not $500.00 as alleged in the information). She came to know about
this registered letter through another sister Carmencita Rodriguez, who, on December 17, 1971,
also received another letter from Maria Paz, inquiring whether she (witness) had received
Registered Letter No. 247341, which was addressed to her at Litton Mills, Inc. 3

Since she did not receive the registered letter with the bank draft, Lourdes went to the
Mandaluyong Post Office and inquired about it. She was informed by the Postmaster and the
teller that Registered Letter No. 247341 addressed to her was claimed on November 16, 1971 by
one Antonio Avecilla, whom they knew had been messenger of Litton Mills, Inc. for more than
two years. That Avecilla got the subject letter was shown by the registry notice duly signed by
him. 4

Lourdes further testified that she filed a complaint in their office, as a result of which an
investigation was conducted by the personnel officer of Litton Knitting Mills. Antonio Avecilla
admitted in her presence that he took the said registered letter, but when she demanded its return,
he refused to do so. Hence, she filed a complaint with the police. 5

On cross-examination, Lourdes stated that on December 23, 1971, she made an overseas call to
her sister, Maria Paz, to request her to stop the payment of the bank draft. As a result, she was
informed by Maria Paz through their sister, Carmencita Rodriguez, that a "stop payment" order
had already been made to the drawee bank. 6

2. Rosalinda Cervo, Clerk-in-charge of the registry section of Mandaluyong Post Office,

declared that on November 15, 1971, she received a letter for Mrs. Lourdes Lacson, with a given
address at "Litton Knitting Mills." She then issued the corresponding registry notice to the
addressee which she sent through the letter carrier. The following day, November 16, 1971,
Antonio Avecilla went to the post office to claim the registered letter. He presented the registry
notice addressed to Lourdes Lacson with her signature appearing thereon, signed it in her
presence and introduced to her a woman as Mrs. Lourdes Lacson who signed the control book.

She further testified that inasmuch as Antonio Avecilla had been the authorized messenger of
Litton Knitting Mills since 1969, she entrusted Registered Letter No. 247341 to him. However,
she got to meet the lady who seemed to be the true Mrs. Lacson when the latter went to the post
office to complain about the letter that she (Mrs. Lacson) had not received. When shown the
control book with her alleged signatures, Mrs. Lacson repudiated the same as hers.

Subsequently, when Rosalinda Cervo informed Avecilla about Mrs. Lacsons complaint, he
declared that he had placed the letter on the table of Mrs. Lacson. 7

3. Federico Rivera Sr., Postmaster of Mandaluyong, Rizal, testified that Litton Mills, through
George Litton, Sr., had previously written him a letter, authorizing one Antonio Avecilla to
accept "registered mails, i.e., checks, parcels and letters" for their company and employees. 8 He
recalled that on November 16, 1971, a registered letter addressed to Mrs. Lourdes Lacson c/o
Litton Mills was delivered to Mr. Avecilla. 9

The defense, before presenting the accused to testify in his own behalf, called Mrs. Lourdes R.
Lacson to the witness stand and asked her to produce the letter of the cashier of Guardian State
Bank, Milwaukee, Wisconsin, dated October 27, 1972 addressed to Maria Paz R. Prado, stating
that "Cashiers Check No. 27166, payable to Miss Carmencita S. Rodriguez, has not been paid as
of this date." 10

130
4. Antonio Avecilla declared that as messenger of Litton Mills, it was his duty to get all the
incoming and outgoing mails of both the Pasig and Mandaluyong branches of Litton Mills, Inc.
He knew the complainant, Mrs. Lacson, because the latter was his co-employee at Litton Mills.
He often mailed the letters of Mrs. Lacson for her and would also get her mail from the post
office.

On November 16, 1971, he admitted having gotten from the Mandaluyong Post Office a
registered letter addressed to Mrs. Lacson by signing the name of Mrs. Lacson and his name on
the registry receipt. Once in the office, he left said letter on the table of Mrs. Lacson because at
that time she was already out as it was past 5:00 oclock in the afternoon. He also said that when
he left the letter on the table, nobody was in the office. 11

On July 16, 1973, the trial court 12 rendered its decision finding accused-petitioner guilty
beyond reasonable doubt of simple theft. The dispositive part of the decision
reads:jgc:chanrobles.com.ph

"WHEREFORE, finding the evidence sufficient to prove the guilt of the accused beyond
reasonable doubt of the crime of Theft, pursuant to Article 308 and 309 of the revised Penal
Code, and applying the Indeterminate Sentence Law, he is hereby sentenced to an indeterminate
penalty of SIX (6) MONTHS of arresto mayor as minimum to ONE (1) YEAR, EIGHT (8)
MONTHS, TWENTY-ONE (21) DAYS of prision correccional as maximum.

SO ORDERED." 13

Not satisfied with the decision, petitioner appealed to the Court of Appeals, which, on December
20, 1976, promulgated a decision finding accused-petitioner guilty of qualified theft instead of
simple theft. The dispositive portion of the decision reads:jgc:chanrobles.com.ph

"WHEREFORE, the appealed decision is hereby modified in the sense that the crime committed
is hereby designated as qualified theft; and that the appellant is hereby sentenced to suffer the
indeterminate penalty of from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of
prision correccional, as minimum, to NINE (9) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY of prison mayor, as maximum. In all other respects, the decision is affirmed, with costs
against accused-petitioner.

IT IS SO ORDERED." 14

The motion for reconsideration having been denied, 15 petitioner elevated the case to the
Supreme Court by way of the instant petition for review on certiorari.

Petitioner contends that his constitutional right to due process had been violated both
substantially and procedurally. He was convicted of qualified theft instead of simple theft and
imposed a penalty eight times longer than his original sentence, and his motion for
reconsideration of the appellate courts decision was "denied in one stereo-typed sentenced." 16
He adds that his constitutional right to be informed of the nature and cause of the accusation
against him provided for in Art. IV, Sec. 19 of the 1971 Constitution and reiterated in Rule 115,
Sec. 1, par. (c) of the Rules of Court had also been violated.chanrobles virtual lawlibrary

Petitioner further argues that the Court of Appeals erred in convicting him of qualified theft just
because the information used the term "registered letter" when "not all registered letters is (sic)
mail matter." Because the information alleges that the registered letter belonged to Lourdes
Rodriguez de Lacson and considering Art. 723 of the Civil Code which provides that a letter
becomes the personal property of the addressee after it has been delivered, the crime charged is
only simple theft.

Petitioner bewails the vagueness of the information which resulted in his "bewilderment" as to

131
what precisely he had allegedly stolen for a registered letter per se cannot be worth $500.00. He
notes that the information does not state that the registered letter contained a check. Moreover,
he avers, the essential elements of theft, whether simple or qualified, had not been substantiated
by the facts proven. Thus, petitioner adds, it had not been shown that he knew about the contents
of the letter; there was no unlawful taking because the delivery of the letter was made in the
manner prescribed by postal regulations; the allegedly stolen property had not been produced at
all, and the prosecution relied solely on the "sheer self-serving testimony" of the complaining
witness. 17

Petitioners allegations necessitate a scrutiny of the information imputing to him the commission
of a crime. It need not be overly stressed that the averments in the complaint or information
characterize the crime to be prosecuted and determine the court before which the case must be
tried. 18 What controls is not the designation of the offense but the description thereof as alleged
in the information. 19

A thorough examination of the information reveals that it contains all the essential elements of
the crime of theft, to wit: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without the use of
violence or intimidation against persons or force upon things. 20

While it is true that petitioner could not have been "bewildered" as to the nature of the charge
against him had the information been more accurately crafted, it nonetheless contains all the
elements of the crime of theft. Thus, it is alleged therein that petitioner, with the aid of and in
conspiracy with an unidentified woman, willfully took away Registered Letter No. 24341
belonging to Lourdes Rodriguez de Lacson to her damage and prejudice. Although intent to gain
is not explicitly alleged in the information, it may be presumed from the allegation that the said
mail matter was unlawfully taken. 21 Since there is no allegation that the taking was
accomplished with violence or intimidation against person or force upon things, it is apparent
that the charge is for the crime of theft rather than robbery.

The allegation that the subject of the taking is a registered letter categorizes the theft as a
qualified rather than a simple one. This is clear from the provision of Art. 310 of the Revised
Penal Code which states that qualified theft is committed if the property stolen is mail matter. In
this regard, petitioners contention that not all registered letters are mail matter is incorrect.
Under Sec. 1945 of the Revised Administrative Code of 1917, first class mail matter includes
letters. For the greater security of valuable mail matter, Sec. 1962 of the same Code established a
registry system "under which the senders or owners of registered matter may be indemnified for
losses thereof in the mails, the indemnity to be paid out of postal revenues . . ."cralaw virtua1aw
library

From the foregoing, it is clear that petitioner had not been deprived of his constitutional right to
be informed of the nature and cause of the accusation against him. Moreover, he may be
convicted of a crime and sentenced to the corresponding penalty as long as the facts alleged in
the information and proved at the trial constitute the crime for which he is convicted although
different from the crime designated and charged in the information. 22 The allegations in the
complaint against petitioner had been established beyond reasonable doubt at the trial. In this
regard, it should be pointed out that absolute certainty of guilt is not demanded by the law as
basis for conviction of any criminal charge, but moral certainty is required as to every
proposition of proof requisite to constitute the offense. 23 Moral certainty convinces and satisfies
the reason and conscience that a crime has indeed been committed. 24 This quantum of proof has
been satisfied in this case.chanrobles.com : virtual law library

In his defense, petitioner relied solely on his own unsupported testimony. His story that after
taking delivery of the registered letter addressed to complainant Mrs. Lacson, he left it on her
desk after office hours when no one else was in the office strains credulity. In his attempt to
prove that he did not benefit from the bank draft of $400.00, he presented Mrs. Lacson herself

132
with a letter from the cashier of the Guardian State Bank in Milwaukee, Wisconsin to the effect
that the bank draft had not been paid. However, as in the crime of robbery, the fact that the
accused did not benefit from the articles taken does not affect the nature of the crime because
from the moment the offender gained possession of the thing, the unlawful taking is
complete.25cralaw:red

Petitioners assertion that he took Mrs. Lacsons registered letter by following the postal
regulations and hence, he may not be liable for its "misdelivery," falls flat in the face of the
unrebutted proof that he even used a woman to misrepresent herself as Mrs. Lacson. Although no
one else witnessed the deception, and Rosalinda Cervo could no longer describe the woman, the
undisputed fact remains that someone else other than Mrs. Lacson did sign the control book and
that, thereafter, petitioner took the letter with the bank draft of $400.00 which Mrs. Lacson never
received.

Although proof as to motive for the crime is essential when the evidence of the theft is
circumstantial, 26 the intent to gain or animus lucrandi is the usual motive to be presumed from
all furtive taking of useful property appertaining to another, unless special circumstances reveal a
different intent on the part of the perpetrator. 27 As earlier noted, the intent to gain may be
presumed from the proven unlawful taking.cralawnad

The Court of Appeals considered P6,000.00 as the equivalent of $400.00. Under Art. 309 (2) of
the Revised Penal Code, the penalty for theft involving said amount is prision correccional in its
minimum and medium periods, but considering that qualified theft is punishable by a penalty
two degrees higher, 28 petitioner should be imposed the penalty of prision mayor in its medium
and maximum periods. In the absence of aggravating and mitigating circumstances, the penalty
should be the medium period of said penalty or nine (9) years, four (4) months and one (1) day of
prision mayor medium to ten (10) years, eight (8) months and one (1) day of prision mayor
maximum. Hence, the Court of Appeals correctly applied the Indeterminate Sentence Law and
imposed the indeterminate sentence of four (4) years, two (2) months and one (1) day of prision
correccional maximum as minimum penalty to nine (9) years, four (4) months and one (1) day of
prision mayor medium as maximum penalty.

WHEREFORE, the modification of the decision of the trial court by the Court of Appeals
finding the accused-appellant guilty, not only of simple but qualified theft, being in order, the
above imposition of the penalty prescribed by the Indeterminate Sentence Law is CORRECT.
Costs against the Appellant.

SO ORDERED.

133
 [G.R. No. 121562. July 10, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE QUITLONG y FRIAS,

SALVADOR QUITLONG y FRIAS and EMILIO SENOTO, Jr., y
PASCUA, accused-appellants.

DECISION
VITUG, J.:

The Regional Trial Court of Baguio City, Branch 5,[1] disposed of Criminal Case No. 13336-
R; thus:

WHEREFORE, the Court finds and declares the accused RONNIE QUITLONG Y FRIAS,
SALVADOR QUITLONG Y FRIAS and EMILIO SENOTO, JR. Y PASCUA guilty beyond
reasonable doubt of the crime of murder as charged and hereby sentences EACH of them to
suffer an indeterminate penalty of TWENTY (20) YEARS of reclusion temporal, as minimum,
to FORTY (40) YEARS of reclusion perpetua, as maximum; to indemnify, jointly and severally,
the heirs of the deceased Jonathan Calpito y Castro in the sums of P50,000.00 for the latters
death; P35,700.00 as consequential damages; and P100,000.00 as moral damages, plus their
proportionate shares in the costs.

"In the service of their sentence, the said accused shall be credited with their preventive
imprisonment under the terms and conditions prescribed in Article 29 of the Revised Penal Code,
as amended.

"Conformably with Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as amended,
the corresponding filing fee for the P100,000.00 moral damages herein awarded shall constitute a
first lien on this judgment.

"The evidence knife, Exhibit `B, is hereby declared forfeited in favor of the Government.

"Pursuant to Circular No. 4-92-A of the Court Administrator, the Warden of the City Jail of
Baguio is directed to immediately transfer the same accused to the custody of the Bureau of
Corrections, Muntinlupa, Metro Manila.

"Let a copy of this Decision be furnished the Warden of the City Jail of Baguio for his
information and guidance.

"There being no indication that the remaining accused, Jesus Mendoza, and several John Does
could be arrested/identified and arrested shortly, let the case against them be, as it is hereby,
archived without prejudice to its prosecution upon their apprehension.

"SO ORDERED.[2]

The case was generated by an information for murder filed on 25 October 1994 against
accused-appellants Salvador Quitlong, Ronnie Quitlong, Emilio Senoto, Jr., and several other
unidentified persons following the killing of Jonathan Calpito. Accused-appellants, shortly after
the filing of the information, submitted a motion for reinvestigation alleging that it was a certain
Jesus Mendoza who stabbed the victim after getting irked when the latter urinated near and in
front[3] of his wife. The trial court acted favorably on the motion. On 12 December 1994, the City
Prosecutor filed a motion to admit an amended information on the basis of affidavits[4] executed
by Nonita F. delos Reyes, Nicanor Ellamil, Lydia Q. Cultura, as well as accused-appellants
Salvador and Ronnie Quitlong themselves, to the effect that it was Jesus Mendoza who had been
responsible for the death of the victim. The information, as amended, included Jesus Mendoza
among the named accused.[5] Unlike accused-appellants who were immediately arrested after the
134
commission of the crime, Jesus Mendoza remained at large. At their arraignment, the detained
accused pleaded not guilty to the crime charged.
The evidence of the prosecution has narrated how a simple misunderstanding and relatively
so small a matter could lead to so dastardly and unfortunate an outcome.
At around six oclock in the evening of 20 October 1994, Lito Adjaro, who had just come
from work as a dispatcher of passenger jeepneys plying the Baguio City-Loakan route, repaired
to a nearby game parlor where he saw 19-year-old University of Baguio medical technology
student Jonathan Calpito playing billiards with Jonathan Gosil.Adjaro was Calpitos neighbor
and barkada (gangmate) in Loakan. At past eight oclock, Calpito decided that it was time to go
home. Since at that hour there were no longer passenger jeepneys bound for Loakan, the three
friends decided to walk down to Harrison Road behind the Melvin Jones grandstand to grab a
taxicab. The area was well-lighted. Wanting to partake of some "fishballs," Calpito and Gosil
approached a fishball vendor about three to four meters away. The two returned with three sticks
of fishballs worth fifteen pesos. When Calpito counted the change for his 100-peso bill, he saw
that he had only been handed back thirty five pesos. Confronted by Calpito and Gosil, the
fishball vendor would not admit that he had short-changed Calpito.
Herbert Soriano, a civil engineer driving a passenger-type jeep on his way to Loakan from
the Dominican Hill, was seen passing by. Adjaro, his neighbor, hailed him.Soriano positioned his
jeep around four or five meters from where Gosil and Calpito were still having an argument with
the fishball vendor. Soriano called out to the two to board the jeep but they ignored
him. Moments later, Soriano saw eight men rushing towards Gosil and Calpito from the direction
of the taxicab-stand behind his jeep. Some of the men later backed out but four of them pursued
Calpito who, meanwhile, had started to retreat from the group. The four men, however,
succeeded in cornering Calpito. Soriano saw Calpito fall to the ground and thought that the latter
had just been weakened by the men's punches but, when Calpito was carried on board his jeep,
Soriano realized that Calpito had been stabbed.
Adjaro saw no less than eight men approach and aggressively confront Calpito and
Gosil. Seeing that his friends were outnumbered, Adjaro shouted at Calpito and Gosil to run
posthaste. Adjaro promptly boarded Sorianos jeep. From where he sat, Adjaro could see
appellant Emilio Senoto embracing Calpito from behind and appellants Salvador Quitlong and
Ronnie Quitlong holding Calpitos right hand and left hand, respectively. Calpito struggled
unsuccessfully to free himself. Suddenly, appellant Ronnie Quitlong stabbed Calpito at the left
side of the body just below the nipple. Once the three men had released their hold on Calpito, the
latter fell to the ground. Despite the condition that Calpito was already in, his assailants still went
on hitting him with their feet.
Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on foot patrol that
evening. Attracted by the commotion along Harrison Road, the police officers hurriedly
proceeded to the brightly-lighted place and saw Calpito lying on the ground. Three of the
malefactors started to flee upon seeing the approaching police officers but the rest kept on with
their attack on Calpito. Patacsil drew out his service firearm and told the attackers to
freeze. Seeing that the victim had bloodstains on his left chest, Patacsil advised the victims
companions to rush him to the hospital. Soriano, Gosil and Adjaro took Calpito to the Baguio
General Hospital on board Sorianos jeep.
The police officers brought accused-appellants to the police station. SPO1 Gabriel Isican
prepared the complaint assignment sheet[6] before turning them over to the investigation
division. SPO4 Avelino Tolean, officer-in-charge of the police investigation division on the 4:00
p.m. to 12:00 midnight shift, also received a call from the Baguio General Hospital about the
incident. SPO4 Tolean, along with SPO1 Rafael Ortencio, Jr., and two "Bombo" radio reporters,
went to the hospital where Calpito was by then in the operating room. The police officers
interviewed Adjaro and Gosil at the hospitals emergency room and then repaired to the crime
scene and searched the area. Recovered near the flowering plants beside the electric post was a
stainless knife[7] with bloodstains on its blade. Adjaro recognized the knife to be the one used in
stabbing Calpito. SPO4 Gerardo Tumbaga prepared Form 1 of the National Crime Reporting
System indicating that accused-appellants were arrested and that a certain Mendoza escaped and

135
went into hiding. The report also disclosed that Adjaro and Gosil had a drinking spree with the
victim at the Genesis Folkden before the stabbing incident. SPO4 Tumbaga based his findings on
the documents attached to the records of the case.
That same evening of 20 October 1994, at 8:55, Calpito died at the Baguio General Hospital.
Dr. Kathryna Ayro, the hospitals medico-legal officer, conducted the autopsy on the victim upon
the request of Dr. Samuel Cosme, the attending surgeon, and of First Assistant City Prosecutor
Herminio Carbonell, with the consent of a brother of Calpito.[8] Dr. Ayro found a solitary stab
wound that penetrated Calpitos left thoracic cavity at the level of the 5th intercostal space that
caused a "through and through" laceration of his anterior pericardium and the apex of the left
ventricle of his heart.[9] Dr. Ayro indicated the cause of Calpitos death as being one of
hypovolemic shock secondary to stab wound.[10] She opined that a knife, single or double bladed,
must have been used in inflicting the stab wound. Abrasions were also found on different parts of
Calpitos body.
Precy Calpito, the mother of the victim, testified that the family had spent the amount
of P37,500.00[11] for his wake, burial and 9-day prayers. Her youngest sons death left her losing
hope in life and "feeling very badly."
The defense gave no alibi and admitted the presence of accused-appellants at the vicinity of
the crime scene; however, it interposed denial by appellants of any participation in the
commission of the crime.
Appellant Emilio Senoto, Jr., a taxicab driver, testified that out of curiosity, after parking his
cab to buy some cigarettes and getting attracted by the commotion, went near the scene and saw
the victim lying on the ground beside a cart. He was about to leave the place when several
policemen arrived and arrested him.
Appellant Salvador Quitlong, a food vendor at the Burnham Park and father of five children,
denied having had any participation in the stabbing incident nor having been acquainted with
Jesus Mendoza. He admitted, however, that on the night in question when he was selling
"fishballs" at the park, around eighty meters away from where Mendoza was selling his wares,
the latters daughter, who was a classmate of his own daughter, asked for help yelling that her
father was in trouble. He rushed over to Mendozas place (puesto) but barely in time to witness
the stabbing of Calpito by Mendoza.
Appellant Ronnie Quitlong, Salvador Quitlongs 26-year-old younger brother, was also a
sidewalk vendor at the waiting shed along Harrison Road. He learned of the trouble Mendoza got
himself into when the latter's daughter summoned for help. When he and his brother responded,
Mendoza had by then already stabbed Calpito.
Nonita de los Reyes and Lydia Cultura, both sidewalk vendors, corroborated the story of the
Quitlong brothers. According to Nonita, it was Mendoza who stabbed Calpito. She witnessed the
incident from a distance of ten meters away. Nonita explained that she did not immediately
reveal what she saw to the authorities because of shock. Lydia Cultura, on her part, said that she
saw Jesus Mendoza in the "rumble" with five or six men who had come from the Genesis
Folkden. She saw Mendoza embrace and stab the man in white t-shirt. Nonita and Alma Balubar
followed appellants to the police station but did not tell the police what she knew because she
was busy attending to the crying pregnant wife of appellant Ronnie Quitlong.
On 21 April 1995, the trial court, following his evaluation of the respective submissions of
the prosecution and the defense, including their rebuttal and sur-rebuttal evidence, rendered its
now assailed decision.
In their assignment of errors, the Quitlong brothers would have it -

1. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or
without jurisdiction in finding that conspiracy may readily be inferred inspite of explicit failure
to allege in the information or complaint;

136
"2. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or
without jurisdiction in finding that there was conspiracy between and among the accused-
appellants in the commission of the crime;

"3. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or
without jurisdiction in finding the accused-appellants guilty of the crime of Murder instead of
Homicide.[12]

In his case, appellant Senoto contends that the trial court has erred in finding conspiracy
among the accused and argues that the crime committed is homicide, not murder, given the
circumstances.
On the particular issue of conspiracy, the trial court had this to say:

The question is whether or not the herein three accused participated in, and may be held guilty as
co-principals by reason of conspiracy for, the fatal stabbing of the victim, Calpito, there being no
dispute that the latter died due to the solitary stab inflicted on him.

"But before proceeding any further, the Court takes notice of the lapse committed, perhaps
inadvertently, by the prosecution in drafting the indictment. Both the original and amended
Informations fail to explicitly allege conspiracy. This could have been timely cured if obeisance
had been observed of the admonition, often given, that the prosecution should not take the
arraignment stage for granted but, instead, treat the notice thereof as a reminder to review the
case and determine if the complaint or information is in due form and the allegations therein
contained are sufficient vis--vis the law involved and the evidence on hand. It is fortunate that in
the case at bench conspiracy may readily be inferred from the way the allegation of abuse of
superior strength has been phrased, to wit: `xxx the above-named accused, being then armed
with a knife, with intent to kill xxx and taking advantage of their numerical superiority and
combined strength did then and there willfully, unlawfully and feloniously attack, assault and
stab JONATHAN CALPITO y CASTRO xxx.[13]

Citing Balmadrid vs. Sandiganbayan,[14] the trial court has opined that "conspiracy may be
deemed adequately alleged if the averments in the Information logically convey that several
persons (have been) animated with the single purpose of committing the offense charged and that
they (have) acted in concert in pursuance of that purpose.[15]Holding that no direct proof is
essential and that it suffices that the existence of a common design to commit the offense
charged is shown by the acts of the malefactors and attendant circumstances, the trial court has
concluded:

In the case on hand, it bears repeating that Ronnie Quitlong and Salvador Quitlong were
admittedly responding to Jesus Mendozas call for help through the latters daughter. They must
have, therefore, been disposed, out of empathy with a fellow sidewalk vendor, to lend Mendoza
all the assistance the latter needed under the circumstances. They were joined, according to
prosecution witnesses Lito Adjaro and Herbert Soriano, by no less than six others, including
Emilio Senoto, Jr. They came upon Mendoza engaged in a heated altercation with the victim
Calpito. When they reached Calpito, they pushed him and started beating him up and his
companion Jonathan Gosil. Four to five men manhandled Calpito who kept on retreating and
even went around Sorianos parked jeep until he was cornered. Senoto then held Calpitos body
from behind; Ronnie, his left hand; and Salvador, his right hand, and they mauled him. Calpito
struggled to free himself but that proved futile and, instead, Ronnie stabbed him once. It was
only then that he was released and when he fell down on his back, his attackers still kicked him.
Only the arrival of some policemen made some of the assailants stop and run away. However,
Ronnie, Salvador and Senoto, kept on kicking the victim and they were restrained and arrested.

"Guided by the jurisprudential authorities heretofore cited, it becomes ineluctable for the Court
to conclude that Ronnie, Salvador and Senoto acted in a conspiracy and may thus be held liable
as co-principals for the death of Calpito.[16]

137
 Overwhelming, such as it may have been thought of by the trial court, evidence of
conspiracy is not enough for an accused to bear and to respond to all its grave legal
consequences; it is equally essential that such accused has been apprised when the charge is
made conformably with prevailing substantive and procedural requirements.Article III, Section
14, of the 1987 Constitution, in particular, mandates that no person shall be held answerable for a
criminal offense without due process of law and that in all criminal prosecutions the accused
shall first be informed of the nature and cause of the accusation against him.[17] The right to be
informed of any such indictment is likewise explicit in procedural rules.[18] The practice and
object of informing an accused in writing of the charges against him has been explained as early
as the 1904 decision of the Court in U.S. vs. Karelsen;[19] viz:

First. To furnish the accused with such a description of the charge against him as will enable him
to make his defense; and second, to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause; and third, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to support a conviction, if one
should be had. (United States vs. Cruikshank, 92 U.S., 542). In order that this requirement may
be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts
and intent; these must be set forth in the complaint with reasonable particularity of time, place,
names (plaintiff and defendant), and circumstances. In short, the complaint must contain a
specific allegation of every fact and circumstance necessary to constitute the crime charged.

An information, in order to ensure that the constitutional right of the accused to be informed
of the nature and cause of his accusation is not violated, must state the name of the accused; the
designation given to the offense by the statute; a statement of the acts or omissions so
complained of as constituting the offense; the name of the offended party; the approximate time
and date of the commission of the offense; and the place where the offense has been
committed.[20] In embodying the essential elements of the crime charged, the information must
set forth the facts and circumstances that have a bearing on the culpability and liability of the
accused so that the accused can properly prepare for and undertake his defense. One such fact or
circumstance in a complaint against two or more accused persons is that of conspiracy. Quite
unlike the omission of an ordinary recital of fact which, if not excepted from or objected to
during trial, may be corrected or supplied by competent proof, an allegation, however, of
conspiracy, or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and extent of his
own participation, equally guilty with the other or others in the commission of the crime. Where
conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony
becomes of secondary importance, the act of one being imputable to all the others.[21] Verily, an
accused must know from the information whether he faces a criminal responsibility not only for
his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege
all the details thereof, like the part that each of the parties therein have performed, the evidence
proving the common design or the facts connecting all the accused with one another in the web
of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of
particularity required in describing a substantive offense. It is enough that the indictment
contains a statement of the facts relied upon to be constitutive of the offense in ordinary and
concise language, with as much certainty as the nature of the case will admit, in a manner that
can enable a person of common understanding to know what is intended, and with such precision
that the accused may plead his acquittal or conviction to a subsequent indictment based on the
same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words
of the statute and reasonably informs the accused of the character of the offense he is charged
with conspiring to commit, or, following the language of the statute, contains a sufficient
statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and
the contemplated crime in the language of the respective statutes defining them.[22]
The information charging herein appellants for the death of Jonathan Calpito, as amended,
has but simply stated:

138
That on or about the 20th day of October 1994, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then armed with a knife,
with intent to kill and with treachery and taking advantage of their numerical superiority and
combined strength, did then and there willfully, unlawfully and feloniously attack, assault and
stab JONATHAN CALPITO Y CASTRO suddenly and unexpectedly, without any warning
whatsoever, inflicting upon him a stab wound at the left thorax at the level of the 7th rib, left
medclavicular line, penetrating the pereduum and left ventricle causing left remothones of 700 cc
and hemoperecuduum of 250 cc, which directly caused his death.

"CONTRARY TO LAW.[23]

The opinion of the trial court to the effect that conspiracy may be inferred from the
allegation of abuse of superior strength and with the aid of armed men, i.e., that x x x the above-
named accused, being then armed with a knife, with intent to kill xxx and taking advantage of
their numerical superiority and combined strength, did then and there willfully, unlawfully and
feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO x x x [24] is difficult to
accept. Conspiracy arises when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue
it.[25] Verily, the information must state that the accused have confederated to commit the crime
or that there has been a community of design, a unity of purpose or an agreement to commit the
felony among the accused. Such an allegation, in the absence of the usual usage of the words
conspired or confederated or the phrase acting in conspiracy, must aptly appear in the
information in the form of definitive acts constituting conspiracy. In fine, the agreement to
commit the crime, the unity of purpose or the community of design among the accused must be
conveyed such as either by the use of the term conspire or its derivatives and synonyms or by
allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just
inferred, in the information on which basis an accused can aptly enter his plea, a matter that is
not to be confused with or likened to the adequacy of evidence that may be required to prove
it. In establishing conspiracy when properly alleged, the evidence to support it need not
necessarily be shown by direct proof but may be inferred from shown acts and conduct of the
accused.
In the absence of conspiracy, so averred and proved as heretofore explained, an accused can
only be made liable for the acts committed by him alone and this criminal responsibility is
individual and not collective.[26] And so it is that must be so held in this case. The conflicting
claims of the prosecution and the defense on who stabbed the victim is an issue that ultimately
and unavoidably goes into the question of whom to believe among the witnesses. This issue of
credibility requires a determination that is concededly best left to the trial court with its unique
position of having been enabled to observe that elusive and incommunicable evidence of the
deportment of witnesses on the stand.[27]Findings of the trial court, following that assessment,
must be given the highest degree of respect absent compelling reasons to conclude otherwise.[28]
The Court is not, at this time and in this instance, disposed to deviate from the foregoing
rule. In the first place, Lito Adjaro, the eyewitness in the stabbing of Calpito, has steadfastly
stood by, even on rebuttal, to his story on the commission of the crime. A witness who testifies
in a categorical, straightforward and spontaneous manner, as well as remains consistent on cross
and rebuttal examination, is not likely to be an incredible witness.[29] Secondly, the defense has
failed to establish any ill motive on the part of Adjaro that would have prompted him to testify
wrongly against appellants. Where there is no evidence to indicate that the prosecution witness
has been actuated by any improper motive, it would be hard to reject the supposition that a
person will not prevaricate and cause damnation to one who has brought him no
harm.[30] Finally, Herbert Soriano and the police, who have testified seeing the already wounded
Calpito lying on the ground and still being attacked, both corroborate Adjaros positive
identification of appellants as the persons who did maul Calpito.
After positively pointing to appellants in open court to be the persons who ganged up on
Calpito, Adjaro testified on their respective participations in the commission of the crime; thus:

139
 PROSECUTOR:
"Q. Now, you pointed to Emilio Senoto, Jr. as one of the persons who held the deceased
Jonathan Calpito. What part of the body of Jonathan Calpito did he hold?
"A. His body, sir.
"Q. How about Salvador Quitlong whom you also identified in Court. What part of the
body of Jonathan Calpito did he hold?
"A. I saw him hold his hand.
"Q. What hand was held by Salvador Quitlong?
"A. Right hand, sir.
"Q. How about Ronnie Quitlong?
"A. His left hand.
"Q. After Jonathan Calpito was held by these three persons and other, what happened
next?
"A. They mauled (binugbog) Jonathan Calpito.
"Q. Did you notice what part of the body was hit and boxed by these three persons?
"A. His body and his face.
"Q. What did Jonathan Calpito do, if any, when he is being held by these three persons
and others?
"A. He was struggling, sir.
"Q. Was he able to free himself from the helds (sic) of these persons?
"A. No more, sir.
"Q. What do you mean no more?
"A. He was not able to free himself.
"Q. Yes, why was he not able to free himself anymore?
"A. They held him tightly, he could not struggle.
"Q. And what happened next when you said he could no longer struggle?
"A. They boxed him and also stabbed him, sir.
"Q. Did you see the person who stabbed him?
"A. I saw, sir.
"Q. Will you be able to identify him?
"A. Yes, sir.
"Q. I will request you to again look inside the courtroom and point to the person whom
you saw stab Jonathan Calpito?
"WITNESS:
The person wearing white jacket.
"INTERPRETER:
Witness pointing to a gentleman inside the courtroom wearing cream jacket who
gave his name as Ronnie Quitlong.[31]
Appellant Ronnie Quitlong was a principal by his own act of stabbing Calpito that caused
the latter's death.[32] Appellants Salvador Quitlong and Emilio Senoto, Jr., were holding the

140
hands of Calpito at the precise time that Ronnie Quitlong was in the act of executing his criminal
intent. Simultaneity, however, would not itself demonstrate the concurrence of will or the unity
of action and purpose that could be a basis for collective responsibility of two or more
individuals;[33] indeed, from all indications, the incident would appear to have occurred at the
spur of moment. Appellants Salvador Quitlong and Emilio Senoto, Jr., shall therefore be held to
be mere accomplices conformably with Article 18[34] of the Revised Penal Code.
The crime committed was qualified by abuse of superiority.[35] While superiority in number
would not per se mean superiority in strength, enough proof was adduced, however, to show that
the attackers had cooperated in such a way as to secure advantage of their superiority in strength
certainly out of proportion to the means of defense available to the person attacked.[36]
Treachery may not be here considered as a generic aggravating circumstance although it
might have ensured the commission of the crime. In order that treachery may be taken as an
aggravating circumstance, there must be proof that the accused has consciously adopted a mode
of attack to facilitate the perpetration of the killing without risk to himself, i.e., appellant Ronnie
Quitlong in this case.[37] No such proof has been adequately shown.
Under Article 248 of the Revised Penal Code, the crime of murder is punishable
by reclusion temporal maximum to death. There being neither aggravating nor mitigating
circumstances to appropriately appreciate in this case, appellant Ronnie Quitlong, as principal,
shall suffer the penalty of reclusion perpetua. The indeterminate penalty of twenty (20) years
of reclusion temporal, as minimum to forty (40) years of reclusion perpetua, as maximum, has
been imposed by the trial court on the premise that reclusion perpetua is a divisible penalty. In
the Court's Resolution of 09 January 1995, clarifying its decision[38] in People vs. Lucas,[39] the
Court has said that -

x x x although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from
twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter
its original classification as an indivisible penalty. It shall then remain as an indivisible
penalty.[40]

The two accomplices, appellants Salvador Quitlong and Emilio Senoto, Jr., shall be subject to the imposition of
the penalty next lower in degree than reclusion temporal maximum to death or, accordingly, prision mayor in its
maximum period to reclusion temporal in its medium period. Absent any mitigating or aggravating circumstance,
the penalty that may be imposed is reclusion temporal minimum. Applying the Indeterminate Sentence Law to
them, each may be held to suffer the indeterminate sentence of anywhere from prision correccional in its maximum
period to prision mayor in its medium period, as the minimum penalty, to anywhere within the range of reclusion
temporalminimum, as the maximum penalty.
The trial court correctly imposed the payment of a civil indemnity of P50,000.00 in favor of the heirs of the
victim. The consequential (actual) damages in the amount of P35,700.00 not having been substantiated, except for
the amount P12,000.00 paid to the memorial chapel, is disallowed. The award of moral damages recoverable under
Article 2219(1), in relation to Article 2206, of the Civil Code is reduced from P100,000.00 to P20,000.00.
WHEREFORE, appellant Ronnie Quitlong is found guilty of the crime of murder for the killing of Jonathan
Calpito and sentenced to suffer the penalty of reclusion perpetuaand further ordered to indemnify the heirs of the
victim in the amount of P50,000.00, to reimburse them the actual damages of P12,000.00 and to pay moral damages
of P50,000.00. Appellants Salvador Quitlong and Emilio Senoto, Jr., are found guilty as accomplices in the
commission of the crime, and each shall suffer the indeterminate sentence of nine (9) years and four (4) months
of prision mayor minimum period, as minimum penalty, to thirteen (13) years and nine (9) months and ten (10) days
of reclusion temporal minimum period, as maximum penalty. Appellants Salvador Quitlong and Emilio Senoto, Jr.,
are also hereby held solidarily liable with appellant Ronnie Quitlong in the payment of the damages hereinabove
mentioned. Costs against appellants.
Let a copy of this Decision be furnished the Philippine National Police and the Department of Justice in order
that the other participants in the killing of Jonathan Calpito, specifically Jesus Mendoza, be arrested and made to
face the force of the law.
SO ORDERED.

141
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARSENIO ARBIOS,
LEONARDO ROLLO, PEDRO LAUDERES, and BLARITO ARBIOS, defendants, ARSENIO
ARBIOS, defendant-appellant., G.R. No. L-36936, 1985 August 5, En Banc)

DECISION

CONCEPCION, JR., J.:

Arsenio Arbois, Leonardo Rollo, Pedro Lauderes and Blarito Arbois were charged with the
crime of Murder before the Court of First Instance of Samar, committed as follows:

"That on or about the 27th day of February, 1971, at nighttime, in the Municipality of Gandara,
Province of Samar, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and mutually helping one another, with intent
to kill, and with abuse of superior strength, treachery and evident premeditation, did then and
there wilfully, unlawfully and feloniously attack, assault, stab and hack one Castor Borden, with
sharp-pointed instruments, with which the accused had conveniently provided themselves for the
purpose, thereby inflicting several wounds on the different parts of the body of said Castor
Borden, which wounds caused the instantaneous death of said Castor Borden."

After due trial, judgment was rendered as follows:

"WHEREFORE, considering the foregoing facts and circumstances, the Court finds the evidence
of the defense unvailing in the face of the overwhelming proofs sufficiently and convincingly
established by the prosecution. Therefore, the Court finds each of the four accused, namely:
BLARITO ARBOIS, PEDRO LAUDERES, LEONARDO ROLLO and ARSENIO ARBOIS
guilty of the crime of Murder qualified by treachery end attended by two generic aggravating
circumstances, dwelling end band, beyond a reasonable doubt. Consequently, they are hereby
sentenced to each suffer the penalty of reclusion perpetua; to pay the costs of the proceedings
and to indemnify the heirs of the deceased Cestor Borden jointly and severally, the sum of
Twelve Thousand Pesos (P12,000.00) and the additional sum of Ten Thousand Pesos
(P10,000.00) as moral and exemplary damages. Accused Pedro Landeree alleged in his
testimony in Court that he surrendered to the proper authorities here in Calbayog City. That
mitigating circumstance is offset by one aggravating circumstance present in the commission of
the came. There being one remaining aggravating circumstance, the penalty of reclusion perpetua
imposed upon him is proper and legal.

"The accused are entitled to the full benefits of the preventive imprisonment they may have
undergone in connection with this case in accordance with Republic Act No. 6127. The penalty
of reclusion perpetua is computed at thirty (30) years according to Article 27 of the Revised
Penal Code. Article 29 of the same Code as amended by R.A, 6127 makes no distinctions
between temporary and perpetual penalties. In all penalties consisting of deprivation of liberty
the accused is entitled to credit of one-half (1/2) (now full) of the time during which he
underwent preventive imprisonment. Even in the case of reclusion perpetua such credit should be
allowed because it is more favorable to the convict (J.S. v. Ortencio, 38 Phil. 341 People v. Jose
Gabriel, L-13756, October 30,1959)."

142
From this judgment, all four accused appealed. On May 12, 1980, however, Pedro Lauderes and
Blarito Arbois withdrew their appeal;1 and on March 2, 1981, Leonardo Rollo also withdrew his
appeal.2 For consideration is the appeal of Arsenio Arbois.

The record shows that on February 27,1971, Blarito Arbois gave a party in his house at
Sambulawan, La Paz, Gandara, Samar, on the occasion of the first post natal bath of his wife
Imelda. Among those invited was his compadre, Castor Borden who went to the party after
lunch. At about 5:00 o'clock in the afternoon, Rosita Borden went to the house of Blarito Arbois
to fetch her husband, Castor Borden. There, she saw Arsenio Arbois, Pedro Lauderes, Blarito
Arbois and Leonardo Rollo drinking with her husband Castor. She tried to bring her husband
home with her since Castor was already drunk, but Castor was restrained by Blarito and Arsenio
Arbois who promised to take Castor home later. So Rosita went home alone with her infant
child. 3

At about 7:00 o'clock in the evening of the same day, while Rosita was sitting on the stairs of
their house, waiting for her husband, Castor arrived and immediately went to the back of the
house to defecate. A few moments later, Arsenio Arbois, Blarito Arbois, Pedro Lauderes and
Leonardo Rollo arrived. Arsenio Arbois then called Castor to join them in singing. Castor,
however, answered that he was defecating. But after he was through, Castor joined the group.
While they were singing, Pedro Lauderes suddenly extinguished the torch he was holding and
Rosita heard "thudding sounds" as Blarito Arbois hacked her husband at the nape with a bolo,
locally known as itak. Castor ran towards their house but he was chased by Blarito Arbois,
Arsenio Arbois, Pedro Lauderes and Leonardo Rollo and while Castor was climbing the stairs,
Blarito Arbois again hit Castor on the right leg, causing him to fall. Castor crawled under their
house, but the four men followed him and then took turns in stabbing him. Rosita pleaded with
them not to kill Castor, but she was not heeded.

Thereafter, the four men dragged Castor from under the house and brought him to a nearby
stream. Rosita tried to take her husband from them but she was pushed aside. After dumping the
body of Castor in the stream, the four men left. Rosita then went to her husband and found him
submerged in knee-deep water. She returned home and informed her father who pulled Castor's
head from the water. 4

Dr. Victorino Feral, the Rural Health Physician of Gandera, Samar, who performed an autopsy
on the body of Castor Borden found eleven (11) incised wounds and six is stab wounds of
different sizes in various parts of the body, and abrasions on the chest, which may have resulted
when Castor Borden was dragged on the ground. 5

The testimony of Rosita Borden is corroborated by the testimonies of her father, Demetrio
Sanico, with whom they were living at the time; 6 Arsenio Bocabo, a neighbor with whom they
shared a common yard; 7 and Paquito Beduya, a member of the Gandara Police Department,
who investigated the case and found blood stains under the house of Castor Borden and signs
indicating that Castor was dragged to the nearby brook where he found the body of Castor half-
submerged in water. 8

The appellant, Arsenio Arbois, for his part, while admitting that he was present at the party given
by his son, Blarito, on February 27,1971, denied participation in the killing of Castor Borden. He
claimed that he went home at about 3:00 o'clock in the afternoon and was at home until about
7:00 o'clock in the evening when he went to the house of his son, Norberto, upon being informed
that Blarito lay wounded there and was in a critical condition. He fetched Blarito from the house

143
of Norberto and brought him to the Calbayog City Hospital for treatment. He was accompanied
by Pedro Lauderes who told him that he (Pedro Lauderes) had killed Castor Borden. 9

We find, however, that the appellant Arsenio Arbois was an active participant in the killing of
Castor Borden since he was positively and clearly identified by the witnesses for the prosecution
as one of the persons who assaulted Castor Borden. Said the court:

"The alibi of Leonardo Rollo can not prosper as his participation in the commission of the
offense has been duly established. The same is true with Arsenio Arbois. His alibi cannot merit
serious consideration for like Leonardo Rollos's he was an active participant in the inhuman
killing of Castor Borden. Leonardo Rollo and Arsenio Arbois were positively and clearly
identified by the eye witnesses of the prosecution in a manner that leaves no room to doubt there
active participation in the crime at bar. There were lights from the house of Arsenio Bocabo and
their identities could not be mistaken, especially so because Bocabo, Sanico and Rosita Borden
have known them for quite a time. The testimonies left no doubt as to the identities of the killers
of Castor Borden because they were made in a forthright, clear and explicit manner. It must be
remembered that the record of the trial disclose the fact that there were lights from the houses of
Arsenio Bocabo and Castor Borden and these two houses are so close to each other that they
enjoy a common yard. The identities, therefore, of the accused were clear and positive because
the eyewitnesses to the commission of the offense were not only familiar with their faces but
particularly because of the light that emanated from the improved torch in the house of Arsenio
Bocabo and the house of Castor Borden. The Court entertain no doubt and it is satisfied that the
four accused, namely Leonardo Rollo, Blarito Arbois, Pedro Lauderes and Arsenio Arbois were
conclusively and sufficiently identified as the persons who helped and cooperated with each
other in brutally killing a defenseless Castor Borden, by eyewitnesses whose credibility as
observed by the Court cannot be impugned. The Court remembers that Rosita Borden, widow of
the deceased Castor Borden suddenly cried while testifying on the part of the incident at bar
when her late husband was stabbed by the four accused herein. The Court noted that Rosita
Borden was not shedding crocodile tears but was simply moved to tears presumably because of
the recollection as to how her husband was ruthlessly and brutally killed."

Indeed, alibi is unavailing once the accused is positively identified by one without motive to
charge falsely the accused, especially with a grave offense that could bring death by execution to
the culprit. 10 In the instant case, the alibi of the appellant Arsenio Arbois is negated by the
testimonies of Rosita Borden, Arsenio Bocabo and Demetrio Sanico who all categorically
declared that the said appellant had actively participated in the killing of Castor Borden.

The appellant claims, however, that the testimonies of the witnesses for the prosecution are
unworthy of belief in view of certain errors, inconsistencies and improbabilities in their
declarations. But, the discrepancies and inconsistencies pointed out by the appellant in the
testimonies of the witnesses for the prosecution are not of a nature and magnitude that would
impair the credibility of said witnesses. They refer to minor details which are naturally to be
expected from uncoached witnesses.

The appellant also claims that Arsenio Bocabo testified against him because at one time, on
Christmas Day of December, 1970, Bocabo became drunk and disorderly prompting him, as
barrio captain of the locality, to order Bocabo to be tied up and imprisoned at the barrio hall. The
appellant further said that Rosita Borden testified against him in obedience to the wishes of her
brother-in-law, Antonio Borden, who bore him a grudge. 11 However, these are mere
conjectures and are not sufficient to motivate the said witnesses to testify falsely against the
appellant. Besides, Castor Borden was a compadre and close to Blarito Arbois so that his widow,

144
Rosita Borden, would not have testified against Blarito and his companions unless impelled to
tell the truth and see justice done.

Counsel for the appellant contends that the trial court had allowed the introduction of evidence
showing the gory details of the killing which were not alleged in the information. Obviously,
counsel for the appellant is questioning the sufficiency of the information in that the details of
the killing should have been averred in the information. The rule, however, is that matters of
evidence, as distinguished from the facts essential to the description of the offense, need not be
averred. All that is required is that the charge be set forth with particularity as will reasonably
indicate the exact offense which the accused is alleged to have committed and will enable him to
intelligently prepare his defense. 12

Counsel for the appellant also contends that for lack of certification under oath in the information
that a preliminary investigation was conducted, the accused should be acquitted.

Suffice it to state in this connection that the certification by the fiscal that a preliminary
investigation had been conducted in accordance with law is not an essential part of the
information and its absence cannot vitiate it as such. 13 Besides, the failure to make a
preliminary investigation of a criminal charge to which no objection was raised in the court
below, may not be questioned for the first time on appeal. 14 Furthermore, the accused in a
criminal case has a right to waive preliminary investigation and the appellant herein had in fact
waived preliminary investigation. 15

Counsel for the appellant further contends that there was no conspiracy in the killing of Castor
Borden. Counsel argues that if there was a conspiracy or confederation to kill Castor Borden, the
slaying could have been done while they were traversing a dark mountain trail and not in the
house of Castor Borden. But, Castor Borden may not have been killed along the mountain trail
since the accused Blarito Arbois and Pedro Lauderes both declared that Castor Borden ran ahead
of them when they were about 100 meters away from the house of Castor Borden. Castor Borden
must have run so fast that the accused lost the opportunity to kill him along the way. However,
conspiracy could be implied since all the four accused took part in the deed and cooperated with
unity of purpose and criminal intent when they took turns in stabbing the deceased Castor
Borden.
All things considered, We find no tenable reason to justify a reversal of the judgment appealed
from. The positive testimonies of the witnesses for the prosecution deserve more weight than the
bare denial of the appellant.

The crime committed is murder characterized by alevosia as the attack on Castor Borden was
sudden and unexpected and he was totally unprepared to make a defense, attended by the
aggravating circumstances of dwelling and that the crime was committed by a band. The generic
aggravating circumstance that the crime was committed by a band, however, cannot be
appreciated since it is absorbed by treachery. 16 There being one aggravating circumstance
present with no mitigating circumstance to offset it, the penalty to be imposed upon the appellant
should be the maximum thereof, or death. However, for lack of the required number of votes, the
death penalty cannot be imposed upon him.

WHEREFORE, with the modification that the indemnity to be paid to the heirs of the victim
should be increased to P30,000.00, the judgment appealed from should be, as it is hereby,
AFFIRMED. With proportionate costs against the appellant.

145
 [G.R. No. 140772. December 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL PEREZ Y ADORNADO, appellant.

DECISION
CALLEJO, SR., J.:

This is an appeal from the September 27, 1999 Decision[1] of the Regional Trial Court of
Pasig City, Branch 156, in Criminal Case No. 110511-H, finding appellant Joel Perez y
Adornado guilty beyond reasonable doubt of murder for killing Agapito Saballero. The trial
court imposed upon him the penalty of reclusion perpetua and ordered him to pay the heirs of
the said victim the amount of P50,000 as civil indemnity.
The accusatory portion of the Amended Information reads as follows:

On or about April 25, 1996 in Pasig City and within the jurisdiction of this Honorable Court, the
accused, with intent to kill and with treachery, did then and there willfully, unlawfully and
feloniously attack, assault and stab one Agapito Saballero on the chest and abdomen, thereby
inflicting the latter mortal stab wounds which directly caused his death.

Contrary to law.[2]

The Case for the Prosecution

Isidro Donoga eked out a living as a shoemaker and repairer, and resided with his wife, his
daughter and his son-in-law in a rented apartment in No. 112 Adia Compound, Dr. Sixto Antonio
St., Rosario, Pasig City.
On April 25, 1996 at around 8:00 p.m., Isidro was on his way home from Mariwasa when he
passed by a group, including his neighbor Agapito Saballero,[3] Joel Perez and Aurelio Ariete,
having a drinking spree near their rented apartment. Agapito invited Isidro to join the
group. Isidro acceded to the invitation and ended up drinking with the three.[4] By the time they
had consumed about two-and-a-half round bottles of gin, Joel started singing on top of his lungs
the song Si Aida, Si Lorna, o Si Fe. He was immediately cautioned by Agapito to lower his voice
as the singing might disturb the neighborhood. Peeved, Joel confronted Agapito.[5] An altercation
ensued. Joel warned Agapito Babalikan kita. Makita mo, (Ill get back at you. Youll see.)[6] then
left in a huff. The group decided to end their drinking spree.[7] By then, it was past 9:00 p.m.
Isidro advised Agapito to get inside their house. However, Agapito was still upset about his
argument with Joel and lingered outside his house. Meanwhile, Isidro went inside their rented
apartment at the second floor of the house, while his wife prepared his dinner. At around 10:00
p.m. while he was taking his supper, Isidro heard somebody shouting Huwag, Joel! Saklolo, may
tama ako! Isidro then peeped outside and saw Joel pulling out from Agapitos chest a bladed
weapon.[8] Shocked, Isidro and his wife went down to help Agapito. By then, Joel had already
fled from the scene. The couple woke up some of their neighbors to help them carry Agapito and
bring him to the hospital. Some neighbors arrived and brought Agapito to the hospital. On the
way, Agapito expired.[9]
With the consent of John Saballero, the son of Agapito,[10] Dr. Emmanuel Aranas, the
Medico-Legal Officer of the PNP, performed an autopsy on the cadaver of Agapito and
incorporated his findings in his report, thus:

146
FINDINGS:

Fairly nourished, fairly developed male cadaver, in rigor mortis, with postmortem lividity at the
dependent portions of the body. Conjunctiva, lips, and nailbeds are pale.

TRUNK AND UPPER EXTREMITIES:

(1) Multiple abrasions, right deltoid, measuring 2 by 2 cms, 16 cms from the anterior midline.

(2) Stab wound, left mammary region, measuring 2.4 by 0.6 cm, 5 cms from the anterior midline,
12 cms deep, directed posteriorwards, downwards, and to the right, thru the 4th left intercostal
space, piercing the paricardial (sic) sac and right ventricle.

(3) Stab wound, umbilical region, measuring 5 by 1.5 cm, bisected by the anterior midline,
directed posteriorwards, piercing the mesentery and jejunal segment of the small intestines.

(4) Multiple abrasions, left scapular region, measuring 5 by 2 cms, 11 cms from the posterior
midline.

(5) Multiple abrasions, right antecubital region, measuring 6 by 3 cms, 5 cms from its midline.

(6) Abrasion, middle 3rd of the right forearm, measuring 2.5 cms by 0.2 cm, 3 cms lateral to its
anterior midline.

(7) Abrasion, left elbow, measuring 5 by 3 cms, 4 cms lateral to its midline.

About 1000 ml of fluid and clotted blood recovered from the thoracic cavity.

Stomach contains a glassful of partially digested food particles and mixed with bloody fluid.

CONCLUSION:

Cause of death is stab wounds of the chest and abdomen.[11]

Dr. Aranas signed the Certificate of Death of Agapito.[12]

When apprised of the stabbing incident, the police investigators, led by SPO1 Mario B.
Garcia, learned that the victim was Agapito and the suspect was Joel who fled from the scene
after stabbing Agapito three times with an improvised dagger at 10:00 p.m. on April 25,
1996. The police investigation was placed in the police blotter.[13]
Isidro helped out during the burial of Agapito and failed to give his statement to the police
but on May 3, 1996, Isidro gave his sworn statement to SPO1 Mario B. Garcia of the Pasig
Police Station.[14]
Shortly thereafter, an Amended Information[15] was filed on September 15, 1997. The
amendment consisted in the inclusion of the allegation of treachery as a qualifying
circumstance.[16]
Assisted by his counsel during arraignment, Joel entered a plea of not guilty.[17] Trial
thereafter ensued.

The Case for the Accused

Joel put up the defense of denial and alibi. He testified that he was a regular employee of
Hydro Resources Contractor Corporation as a heavy equipment mechanic for four (4) years.[18]

147
 On April 25, 1996 at around 3:00 p.m., his sister, Imelda Perez de Venecia, called him from
work and requested him to travel to Bicol the following day to make a delivery of a package to
which he agreed. The siblings also agreed that Joel will go to her place at No. 749 Old
Balara, Quezon City, after office hours to get the package the following day because of his trip to
Bicol.[19]
From his place of employment, he proceeded to Adia Compound in Rosario, Pasig City,
where he saw the victim Agapito and Aurelio, one of his co-workers at Hydro Resources
Contractor Corporation, drinking gin.[20] He then joined the group and, in the process, inquired
from Aurelio about the status of his application for a job.[21] Thereafter, Isidro arrived and joined
the drinking spree upon the invitation of Agapito. While they were drinking, an argument ensued
between Agapito and Isidro regarding rentals, as the latter was a tenant of Agapitos sister.[22] Joel
tried to pacify the two by singing aloud the song Si Aida, Si Lorna, o Si Fe. Isidro and Agapito
stopped arguing with each other but Agapito told Joel to stop singing. At around 9:00 p.m., Joel
bade the group goodbye and proceeded to his sisters house in Old Balara, Quezon City. He
boarded four jeeps one after the other and one tricycle. It took him an hour before he arrived at
his sisters.
The following day, April 26, 1996, Joel, together with his sister Imelda, went to the
Peafrancia Bus Station, confirmed the ticket bought in advance by Imelda, and changed Imeldas
name to that of his name to enable him to use the ticket.[23] Upon his arrival in Bicol, his wife
gave him a letter from a company he had applied for work earlier in January, asking him to
report for work. Instead of returning to Manila, Joel decided to accept the offer for employment,
and stayed in Bicol. Moreover, he tendered his resignation from his work in Manila by sending a
telegram to his former employer. It was only when he was arrested on June 7, 1997 that Joel
learned about Agapitos demise, and that he was the suspect for his violent death.[24]
Imelda, the sister of Joel, corroborated his alibi that he went to her house on the night of
April 25, 1996 arriving thereat at around 9:30 p.m. to 10:30 p.m.[25] She confirmed that she,
together with her brother, left the house at around 5:00 a.m. of April 26, 1996 and went to the
Peafrancia Bus Station as his brother will travel to Bicol to deliver a package; and that her
brother left for Bicol at around 7:30 a.m.
Joel also presented Aurelio who corroborated his testimony.[26] Aurelio testified that he only
reported for work for a half-day from 8:00 a.m. to 12:00 noon on April 25, 1996.Thereafter,
Aurelio proceeded to Adia Compound located in Rosario, Pasig City, where he met a certain
Roberto Rocabo. Thereafter, they proceeded to the office of one Mr. Dela Cruz located at the
back of Mariwasa and inquired about a machine which they were trying to contract. They stayed
there until 5:30 p.m., after which, Aurelio and Roberto went back at the latters house. Aurelio
hung about infront of Robertos house, and there met Agapito who invited Roberto for a drink
which the latter accepted.[27] They were later joined by Joel and Isidro. At around 9:00 p.m., Joel
bade them goodbye and left the group. Aurelio also left the drinking spree a moment later, and
slept at Robertos house. At around 6:00 a.m. the following day, April 26, 1996, Aurelio was
awakened by a commotion outside, in the street, and when he checked the cause, he saw Agapito
lying on the ground. A policeman arrived at around 7:00 a.m. and investigated the crime
scene.[28]
After trial, the trial court rendered a decision finding Joel guilty beyond reasonable doubt of
murder, and imposed upon him the penalty of reclusion perpetua. The decretal portion of the
decision reads:

Wherefore, the Court finds accused GUILTY beyond reasonable doubt of the crime of murder,
and hereby sentences him to suffer the penalty of reclusion perpetua, to indemnify the heirs of
Agapito Aballero (sic) in the amount of P50,000.00 conformably with existing
jurisprudence. Costs against the accused.

SO ORDERED.[29]

Joel appealed from the decision and alleges that:

148
 B.1. The trial court erred in giving credence to the supposed lone prosecution
eyewitness, Isidro Donoga.

B.2. The trial court erred in not acquitting the accused because his guilt was not proven
beyond reasonable doubt.[30]

Anent the first assigned error, he asserts that the trial court erred in giving weight to the
testimony of Isidro, the prosecutions lone eyewitness, despite the inconsistencies in his statement
to the police investigators[31] and his testimony during trial. First, in his sworn statement, Isidro
declared that the appellant used an itak in stabbing Agapito whereas when he testified before the
court, he declared that the appellant used a kutsilyo. Second, when Isidro was asked during the
trial if he voluntarily gave his sworn statement to the police, he answered in the affirmative; but
during the preliminary investigation of the case, he declared that he gave his sworn statement
regarding the case when the policemen arrived in their place.[32] Third, Isidro declared in his
sworn statement that he saw the appellant stab the victim, but during clarificatory questioning by
the public prosecutor during trial, he declared that he only saw the extraction by the appellant of
the knife from the chest of the victim. Moreover, the appellant avers that there is no allegation in
the Information that the appellant used any bladed weapon to stab the victim. Isidros testimony
that he heard shouts for help from Agapito at around 10:00 p.m. of April 25, 1996 was merely a
fragment of his imagination because the stabbing occurred on April 26, 1996 at around 6:00
a.m. as testified to by Aurelio.
The appeal is without merit.
The inconsistencies catalogued by the appellant referred only to peripheral or minor details
which do not destroy or weaken the credibility of the witness of the prosecution.[33] Such
inconsistencies are even indicia of honest and unrehearsed declarations and responses of
witnesses and thus enhanced their credibility.[34] We note that Isidro sufficiently explained his
use of itak and kutsilyo when he was cross-examined by the appellants counsel:
Q In your statement marked as Exhibit F, I am referring to the statement given to the
police, there is a question and which I quote: Nasabi mo nakita si Joel Perez ang
siyang sumaksak kay Agapito, nakita mo rin ba naman kung anong klaseng patalim
ang ginamit niya? and your answer was: Isa pong matulis na itak po ang
pinangsaksak niya kay Agapito. Do you remember having given this statement?
A Yes, sir.
Q A while ago during the direct examination you were asked what kind of weapon was
used and you said, at first kutsilyo then later on a pointed weapon. Which is which
now?
A Because in our place a knife is called Dipang. The dipang, hindi itak na gaano yon.
Dipang, this is the smallest itak in our place, sir.
Q Did I get it from you that itak and kutsilyo are one and the same in your place?
A Yes, sir. They are one and the same.[35]
Case law has it that an affidavit given to the police investigator at the police station is
generally not prepared by the affiant himself but by another person invariably by the police
investigator who uses his own language. Omissions and misunderstandings by the writer usually
result. And in case of discrepancy between the sworn statement and those made by the affiant on
the witness stand, the latter deserves full faith and credit.[36]
On the apparent inconsistency of Isidros testimony during the preliminary investigation that
his sworn statement to the police investigators on May 3, 1996 was voluntary is not enfeebled by
the fact that it was given eight days after the crime was committed when Isidro arrived at the
police station to give his statement. Isidro testified that he was then busy helping the family in
the burial of the victim.[37] A truth-telling witness is not always expected to give an error-free
testimony, considering the lapse of time and the treachery of human memory. Witnesses are not
expected to remember every single detail of an incident with perfect or total recall.[38]

149
 Isidros testimony that he saw the appellant pull out the bladed weapon from the chest of the
victim is not inconsistent with his sworn statement to the police that it was the appellant who
stabbed the victim. Even if Isidro did not see the appellant stab the victim, there can be no other
conclusion that it was the appellant who stabbed the victim given the fact that it was the
appellant who pulled out the knife from the chest of the victim and fled from the scene
thereafter. Isidro saw no other person at the crime scene. He categorically and positively
identified the appellant as the assailant of Agapito. He had known the appellant for about two
years before the latter stabbed the victim. He often saw the appellant at his place of work where
Isidro made some deliveries of shoes thereat.[39] He and the appellant never had any
misunderstanding, thus no ill motive can be attributed to Isidro for him to testify against the
appellant. This Court has held that absent evidence showing any reason for the prosecution
witness to perjure, the logical conclusion is that no such improper motive exists, and his
testimony is thus worthy of full faith and credit.[40] With the positive and straightforward
identification by Isidro of the appellant as the perpetrator, the latters defense of alibi must fall.[41]
That the Information does not describe the weapon used by the appellant either
an itak or kutsilyo in stabbing the victim is inconsequential. The kind or nature of the weapon
used in the commission of the crime need not be alleged in the complaint or Information. What
must be alleged in the Information or complaint are those enumerated in Section 6, Rule 110 of
the Revised Rules of Criminal Procedure, viz.:

SEC. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it

states the name of the accused; the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of the offended party; the
approximate date of the commission of the offense; and the place where the offense was
committed.

When an offense is committed by more than one person, all of them shall be included in the
complaint or information.

Aurelios testimony that the stabbing occurred on April 26, 1996 at 6:00 a.m. is belied by (a)
the testimony of Isidro; (b) the request for medico-legal examination[42] in which it is stated that
the stabbing incident occurred at around 9:45 p.m. of April 25, 1996 infront of House No. 112-G
Dr. Sixto Antonio, Rosario, Pasig City; (c) the spot investigation report[43] of SPO1 Mario Garcia
that the crime was committed on or about 10:00 p.m. of 25 April 1996. The police investigator
and the chief of police who prepared the request and the spot investigation report, respectively,
are disinterested witnesses. Moreover, the entries therein were made by the police investigator
and the chief of police in their official capacities; thus, such entries have in their favor the
presumption of regularity and are prima facie evidence of the facts therein stated.[44] It bears
stressing that the appellants witness Aurelio was a close friend of his; hence, his testimony must
be considered by the court with extreme caution.
We agree with the appellant that the prosecution failed to prove treachery. It behooved the
prosecution to prove that the appellant deliberately and consciously adopted such means, method
or manner of attack as would deprive the victim of an opportunity for self-defense or
retaliation.[45] In this case, Isidro, the prosecutions lone eyewitness, testified as follows:
Q More or less, what time was that when you had that dinner at that time?
A Passed (sic) 10:00 oclock, sir.
Q What time was that when you took your supper?
A My wife, sir.
Q You mean to tell us that your wife was also with you while you were taking your
supper?
A No, sir. She was just with me in the table.

150
 Q While eating on that said evening of April 25, 1996 which you came around
passed (sic) 10:00 oclock in the evening, do you recall of any unusual incident that
happened in the vicinity of your house?
A Yes, sir.
Q And what was that unusual incident that took place while you were taking your
supper?
A I heard somebody shouted: Huwag, Joel. Saklolo, may tama ako.
Q When you heard this shout of a person, what was your reaction then?
A When I heard that, dumungaw po ako.
Q And what did you find out, if any, after taking that gesture dungaw?
A I saw Joel Perez pulling out from the chest a bladed weapon (isang patalim), sir.
Q And were there other persons aside from Joel Perez there at that time?
A None, sir.
Q You claimed that you actually saw Joel Perez pulling out a knife, as if as you were
claiming that he had just stabbed somebody?
A Upon peeping, I saw Joel Perez still pulling out a knife, a pointed weapon, sir.
Q By claiming you actually observed this particular incident, from where was Joel
Perez pulling out this pointed or bladed weapon?
A From Agapito, sir.[46]
Irrefragably, Isidro failed to see how the attack started. When he looked out through the
window, he saw Joel pulling out his knife from the chest of the victim. Isidro did not see the
initial stage of the stabbing and the particulars of the attack on the victim.[47] Treachery cannot
thus be appreciated.[48]
The mere fact that Agapito was unarmed when he was stabbed is not sufficient to prove
treachery. The settled rule is that treachery cannot be presumed. It must be proved by clear and
convincing evidence, as the crime itself.[49] Hence, the appellant is guilty only of homicide and
not murder.
The penalty for homicide is reclusion temporal which has a range of twelve (12) years and
one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the maximum of the
imposable penalty shall be taken from the medium period of reclusion temporal, the range of
which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four
(4) months, while the minimum of the said penalty shall be taken from the penalty next lower in
degree which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12)
years, in any of its periods. There being no modifying circumstance in the commission of the
crime, the appellant may be sentenced to an indeterminate penalty of from ten (10) years and one
(1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal in its medium period as maximum.
IN LIGHT OF ALL THE FOREGOING, the judgment appealed from is AFFIRMED
WITH MODIFICATION. The appellant Joel Perez y Adornado is found guilty of homicide
under Article 249 of the Revised Penal Code, as amended, and there being no mitigating nor
aggravating circumstance in the commission of the crime, is sentenced to an indeterminate
penalty of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal in its medium period, as maximum, and
to pay the heirs of Agapito Saballero the amount of P50,000 as civil indemnity. Costs de oficio.
SO ORDERED.

151
 [G.R. No. 118971. September 15, 1999]

RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL

TRIAL COURT OF MANILA, BRANCH 40, and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
MENDOZA, J.:

The question for determination in this case is the liability for libel of a citizen who
denounces a barangay official for misconduct in office. The Regional Trial Court of Manila,
Branch 40, found petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to
prove the truth of the charges and that he was motivated by vengeance in uttering the defamatory
statement. On appeal, the Court of Appeals, in a decision[1] dated February 1, 1995,
affirmed. Hence, this petition for review. The decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo
Foreshore Area. Sometime in April 1986, he and some 37 families from the area went to see then
National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint
against their Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other
NHA officials, petitioner and his companions were met and interviewed by newspaper reporters
at the NHA compound concerning their complaint. The next day, April 22, 1986, the following
news article[2] appeared in the newspaper Ang Tinig ng Masa:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo
Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul 1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6,
Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam ang may 14 na lote
ng lupa sa naturang lugar.

Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na umaabot

lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan ng mga barung-
barung ng 38 pamilya.

Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga survey ng NHA
noong nakalipas na taon na may karapatan kami sa mga lupang ito ng pamahalaan, ani Vasquez.

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS
Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya nakalusot ang
mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal
na pasugalan sa naturang lugar at maging sa mga nakawan ng manok.

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang
saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo
sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

Based on the newspaper article, Olmedo filed a complaint for libel against petitioner
alleging that the latters statements cast aspersions on him and damaged his reputation. After

152
conducting preliminary investigation, the city prosecutor filed the following information in the
Regional Trial Court of Manila, Branch 40:

The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as follows:

That on or about April 22, 1986, in the city of Manila, Philippines, the said accused, with
malicious intent of impeaching the reputation and character of one Jaime Olmedo, chairman of
Barangay 66, Zone 6 in Tondo, Manila, and with evident intent of exposing him to public hatred,
contempt, ridicule, did then and there willfully, unlawfully, feloniously and maliciously caused
the publication of an article entitled 38 Pamilya Inagawan ng Lupa in Ang Tinig ng Masa, a daily
newspaper sold to the public and of general circulation in the Philippines in its April 22, 1986
issue, which portion of the said article reads as follows:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo
Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul 1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6,
Tondo Foreshore Area sa mga project manager ng NHA upang makamkam ang may 14 na lote
ng lupa sa naturang lugar.

x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni
Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS
Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya nakalusot ang
mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal
na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x x x

with which statements, the said accused meant and intended to convey, as in fact he did mean
and convey false and malicious imputations that said Jaime Olmedo is engaged in landgrabbing
and involved in illegal gambling and stealing of chickens at the Tondo Foreshore Area, Tondo,
Manila, which statements, as he well knew, were entirely false and malicious, offensive and
derogatory to the good name, character and reputation of said Jaime Olmedo, thereby tending to
impeach, besmirch and destroy the honor, character and reputation of Jaime Olmedo, as in fact,
the latter was exposed to dishonor, discredit, public hatred, contempt and ridicule.

Contrary to law.

Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was
tried. The prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina
Calayag, as witnesses. On the other hand, the defense presented Ciriaco Cabuhat, Nicasio
Agustin, Estrelita Felix, Fernando Rodriguez all residents of the Tondo Foreshore Area and
petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and
sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in
toto. Hence, this petition for review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
TRIAL COURT PINPOINTING PETITIONER AS THE SOURCE OF THE
ALLEGED LIBELOUS ARTICLE.

153
 II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
TRIAL COURT THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO
COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
TRIAL COURT THAT THE ALLEGED IMPUTATIONS WERE MADE
MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
TRIAL COURT WHICH FAILED TO APPRECIATE PETITIONERS DEFENSE
OF TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
TRIAL COURT THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was unfairly singled out as the source of the statements in the
article when any member of the 38 complainant-families could have been the source of the
alleged libelous statements.[3] The reference is to the following portion of the decision of the
Court of Appeals:

. . . In his sworn statement, appellant admitted he was the source of the libelous article (Exh.
B). He affirmed this fact when he testified in open court as follows: That his allegation on the act
of landgrabbing by Olmedo was based on the alleged report and pronouncements of the NHA
representatives (p. 5, tsn, Oct. 18, 1989); that said allegations were made by him before the local
press people in the pursuit of fairness and truthfulness and not in bad faith (pp. 8-9, id.); that the
only inaccurate account in the published article of Ang Tinig ng Masa is the reference to the
487.87 sq.m. lot, on which Olmedos residence now stands, attributed by the reporter as the lot
currently occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-
5, tsn, January 15, 1990); and that after the interview, he never expected that his statement would
be the cause of the much-publicized libelous article (pp. 4-6, tsn, Nov. 15, 1989).[4]

It is true petitioner did not directly admit that he was the source of the statements in the
questioned article. What he said in his sworn statement[5] was that the contents of the article are
true in almost all respects, thus:
9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na ako
at ang mga kasamahang maralitang taga-lungsod ay nakatira sa humigit kumulang
487.87 square meters sapagkat ang nabanggit na 487.87 square meters ay siyang
kinatitirikan ng bahay ni Barangay Chairman Olmedo kung saan nakaloob ang anim
na lote - isang paglabag sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na
maging mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap
sa Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang
maralitang taga-lungsod ay apektado at naaapi.
This was likewise what he stated in his testimony in court both on direct [6] and on cross-
examination.[7] However, by claiming that what he had told the reporter was made by him in the
performance of a civic duty, petitioner in effect admitted authorship of the article and not only of
the statements attributed to him therein, to wit:

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni Vasquez.

....

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang
saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo
sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

154
 Petitioner cannot claim to have been the source of only a few statements in the article in
question and point to the other parties as the source of the rest, when he admits that he was
correctly identified as the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as
published. In fact, the second statement attributed to petitioner was not included in the
information.But, while the general rule is that the information must set out the particular
defamatory words verbatim and as published and that a statement of their substance is
insufficient,[8] United States v. Eguia, 38 Phil. 857 (1918).8 a defect in this regard may be cured
by evidence.[9] In this case, the article was presented in evidence, but petitioner failed to object to
its introduction. Instead, he engaged in the trial of the entire article, not only of the portions
quoted in the information, and sought to prove it to be true. In doing so, he waived objection
based on the defect in the information. Consequently, he cannot raise this issue at this late
stage.[10]
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what
he said was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following
elements must be proved: (a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of
malice.[11]
An allegation is considered defamatory if it ascribes to a person the commission of a crime,
the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.[12]
There is publication if the material is communicated to a third person.[13] It is not required
that the person defamed has read or heard about the libelous remark. What is material is that a
third person has read or heard the libelous statement, for a mans reputation is the estimate in
which others hold him, not the good opinion which he has of himself.[14]
On the other hand, to satisfy the element of identifiability, it must be shown that at least a
third person or a stranger was able to identify him as the object of the defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention

and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or security duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of their functions.
In this case, there is no doubt that the first three elements are present. The statements that
Olmedo, through connivance with NHA officials, was able to obtain title to several lots in the
area and that he was involved in a number of illegal activities (attempted murder, gambling and
theft of fighting cocks) were clearly defamatory. There is no merit in his contention that
landgrabbing, as charged in the information, has a technical meaning in law.[16] Such act is so
alleged and proven in this case in the popular sense in which it is understood by ordinary
people. As held in United States v. Sotto:[17]

. . . [F]or the purpose of determining the meaning of any publication alleged to be libelous that
construction must be adopted which will give to the matter such a meaning as is natural and
obvious in the plain and ordinary sense in which the public would naturally understand what was
uttered. The published matter alleged to be libelous must be construed as a whole. In applying

155
these rules to the language of an alleged libel, the court will disregard any subtle or ingenious
explanation offered by the publisher on being called to account. The whole question being the
effect the publication had upon the minds of the readers, and they not having been assisted by the
offered explanation in reading the article, it comes too late to have the effect of removing the
sting, if any there be, from the words used in the publication.

Nor is there any doubt that the defamatory remarks referred to complainant and were
published. Petitioner caused the publication of the defamatory remarks when he made the
statements to the reporters who interviewed him.[18]
The question is whether from the fact that the statements were defamatory, malice can be
presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art.
361 of the Revised Penal Code, if the defamatory statement is made against a public official with
respect to the discharge of his official duties and functions and the truth of the allegation is
shown, the accused will be entitled to an acquittal even though he does not prove that the
imputation was published with good motives and for justifiable ends.[19]
In this case, contrary to the findings of the trial court, on which the Court of Appeals relied,
petitioner was able to prove the truth of his charges against the barangay official. His allegation
that, through connivance with NHA officials, complainant was able to obtain title to several lots
at the Tondo Foreshore Area was based on the letter[20] of NHA Inspector General Hermogenes
Fernandez to petitioners counsel which reads:

09 August 1983

Atty. Rene V. Sarmiento

Free Legal Assistance Group (FLAG)

55 Third Street

New Manila, Quezon City

Dear Atty. Sarmiento:

In connection with your request that you be furnished with a copy of the results of the
investigation regarding the complaints of some Tondo residents against Chairman Jaime
Olmedo, we are providing you a summary of the findings based on the investigation conducted
by our Office which are as follows:

1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present structure
is constructed on six lots which were awarded before by the defunct Land Tenure Administration
to different persons as follows:

Lot 4 - Juana Buenaventura - 79.76 sq. m.

Lot 6 - Servando Simbulan - 48.50 sq. m.

Lot 7 - Alfredo Vasquez - 78.07 sq. m.

Lot 8 - Martin Gallardo - 78.13 sq. m.

Lot 9 - Daniel Bayan - 70.87 sq. m.

Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)

156
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold the said
lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other remaining lots were
either sold to Mr. Olmedo and/or to his immediate relatives.

Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with an area
of 47.40 sq. m.

The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.

2. Block 261, SB 8, Area III

Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A four-door
apartment owned by Mr. Olmedo is being rented to uncensused residents.

3. Block 262, SB 8, Area III

Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not yet titled.

4. Block 256, SB 5, Area III

Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected on a non-
titled lot. The adjacent lot is titled in the name of Victoria. It was issued OCT No. 10217 with an
area of 202.23 sq. m. Inside this compound is another structure owned and occupied by Amelia
Dofredo, a censused houseowner. The titled lot of Victoria now has an area of 338.20 sq. m.

For your information.

(s/t) HERMOGENES C. FERNANDEZ

Inspector General

Public Assistance & Action Office

In addition, petitioner acted on the basis of two memoranda,[21] both dated November 29, 1983,
of then NHA General Manager Gaudencio Tobias recommending the filing of administrative
charges against the NHA officials responsible for the alleged irregular consolidation of lots [in
Tondo to Jaime and Victoria Olmedo.]
With regard to the other imputations made by petitioner against complainant, it must be
noted that what petitioner stated was that various charges (for attempted murder against
petitioner, gambling, theft of fighting cocks) had been filed by the residents against their
barangay chairman but these had all been dismissed. Petitioner was able to show that Olmedos
involvement in the theft of fighting cocks was the subject of an affidavit-complaint,[22] dated
October 19, 1983, signed by Fernando Rodriguez and Ben Lareza, former barangay tanods of
Barangay 66, Zone 6, Tondo. Likewise, petitioner presented a resolution,[23] dated March 10,
1988, of the Office of the Special Prosecutor in TBP-87-03694, stating that charges of
malversation and corrupt practices had been filed against Olmedo and nine (9) other barangay
officials but the same were dismissed. Indeed, the prosecutions own evidence bears out
petitioners statements. The prosecution presented the resolution[24]in TBP Case No. 84-01854
dismissing the charge of attempted murder filed by petitioner against Jaime Olmedo and his son-
in-law, Jaime Reyes. The allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner only tried to prove that the complainant
[barangay chairman] is guilty of the crimes alluded to; accused, however, has not proven that the
complainant committed the crimes. For that is not what petitioner said as reported in the Ang
Tinig ng Masa. The fact that charges had been filed against the barangay official, not the truth of
such charges, was the issue.

157
 In denouncing the barangay chairman in this case, petitioner and the other residents of the
Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance
of a civic duty to see to it that public duty is discharged faithfully and well by those on whom
such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is
inconsistent with any requirement placing on him the burden of proving that he acted with good
motives and for justifiable ends.
For that matter, even if the defamatory statement is false, no liability can attach if it relates
to official conduct, unless the public official concerned proves that the statement was made with
actual malice that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. This is the gist of the ruling in the landmark case of New York Times v.
Sullivan,[25]which this Court has cited with approval in several of its own decisions.[26] This is the
rule of actual malice. In this case, the prosecution failed to prove not only that the charges made
by petitioner were false but also that petitioner made them with knowledge of their falsity or with
reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations would not only
be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would deter citizens from
performing their duties as members of a self- governing community. Without free speech and
assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, public discussion is a political duty and the greatest menace to freedom is an
inert people.[27]
Complainant contends that petitioner was actuated by vengeful political motive rather than
by his firm conviction that he and his fellow residents had been deprived of a property right
because of acts attributable to their barangay chairman. The Court of Appeals, sustaining
complainants contention, held:

That the said imputations were malicious may be inferred from the facts that appellant and
complainant are enemies, hence, accused was motivated by vengeance in uttering said
defamatory statements and that accused is a leader of Ciriaco Cabuhat who was defeated by
complainant when they ran for the position of barangay captain. . . .[28]

As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes a crime or
concerns the performance of official duties, and the accused proves the truth of his charge, he should be acquitted.[29]
Instead of the claim that petitioner was politically motivated in making the charges against complainant, it
would appear that complainant filed this case to harass petitioner. Art. 360 of the Revised Penal Code provides:

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

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

Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged in court. What
was said in an analogous case[30] may be applied mutatis mutandis to the case at bar:

It is curious that the ones most obviously responsible for the publication of the allegedly offensive news report,
namely, the editorial staff and the periodical itself, were not at all impleaded. The charge was leveled against the
petitioner and, curiouser still, his clients who have nothing to do with the editorial policies of the newspaper. There
is here a manifest effort to persecute and intimidate the petitioner for his temerity in accusing the ASAC agents who
apparently enjoyed special privilegesand perhaps also immunitiesduring those oppressive times. The non-inclusion
of the periodicals was a transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect for
freedom of expression that was in fact one of the most desecrated liberties during the past despotism. [31]

WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is ACQUITTED of the
crime charged.
SO ORDERED.

158
 [G.R. No. 88044. January 23, 1991.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARTIN CAGADAS, JR.,

MACARIO BARBERO, ROMY TULIO, CORITO PIASIDAD, RENE BALONG,
ROBERTO CULTURA and TATOR SALVADOR, Appellants.

The Solicitor General for Plaintiff-Appellee.

DECISION

GRIO-AQUINO, J.:

This case was elevated to this Court on appeal as the penalty of reclusion perpetua was imposed
upon the appellants.

On June 6, 1973, at around 6:30 in the morning, Rex Ballena and his sister, Lucia Ballena-Tabo,
left their residences at Longganapan, San Vicente, Davao, bound for the capital town of Tagum,
to withdraw some money with which to pay their farm laborers. In order to reach their
destination, they had to pass through Sitio Rizal in Binancian, Municipality of Asuncion, Davao,
to take a jeepney ride to Tagum. While waiting inside the jeep at the Sitio Rizal Terminal, some
members of the Integrated Civil Home Defense Force (ICHDF), including the accused,
approached them and asked where they were bound for and why. Rex Ballena naively informed
them that they were on their way to Tagum to withdraw money from the bank with which to pay
his farmhands. When asked if they would be returning to Longganapan that day, Lucia replied
that only her brother, Rex, would do so. One of the ICHDF members who approached them was
identified by Lucia Tabo as Martin Cagadas, Jr.

Rex and Lucia arrived in Tagum at nearly noon. After withdrawing P800 from his Family
Savings Bank Account No. 1517020387, Rex purchased some necessities for his family,
reserving P500 for his workers wages. He returned to Longganapan the following day, leaving
his sister Lucia in Tagum.chanrobles law library : red

Rex was able to pass Sitio Rizal unmolested. In fact, he met Santiago Vercede, his neighbor in
Longganapan, while travelling on Dalisay Road at around 3:30 that afternoon, proceeding toward
Sangab.

The following day, Lucia returned to Longganapan and discovered that her brother never arrived
home and was missing.

On June 9, 1983, at around 8:30 in the morning, Lucia informed their barangay councilman, Jose
Magunot, who was also the deacon of the Iglesia ni Kristo Church, that she was looking for her
brother Rex. Together with other farmers living near the Bontiqui/Lapatigan Creek, they
searched for Rex. On their way to Rizal, they met members of the ICHDF namely, Miguel Daub,
Martin Cagadas, Jr., Macario Barbero, Romy Tulio, Corito Piasidad, Rene Balong, Roberto
Cultura and Tator Salvador, who inquired about their mission and dissuaded them from
continuing their search for Rex. They were advised to report the matter to the barangay officials
in Binansian, Asuncion, which they did. However, no action was taken by the said barangay
officials.

In the evening of June 10, 1983, due to the very strong stench emitting therefrom, the
decomposed body of Rex Ballena was found lying face down in a deep ravine below the mouth
of the Macjum River about one-half kilometer away from the Bontiqui Creek. His body bore
multiple stab wounds in the chest and stomach, with the intestines protruding, his throat slashed,
and head smashed with a hard and heavy object. His mouth was still gagged with a red

159
handkerchief and his hands bound with boracan vines behind his back. His money was gone but
his Savings Account passbook was found beside the decaying corpse. Without waiting for the
Municipal Health Officers post-mortem necropsy examination or the Municipal judges Inquest
Report, his remains were laid to rest the next day.

On November 8, 1984, or more than a year later, an Information for murder was filed against the
armed ICHDF members, namely: Miguel Daub, the ICHDF team leader, Martin Cagadas, Jr.,
Macario Barbero, Romy Tulio, Corito Piasidad, Rene Balong, Jose "Roberto" Cultura and
Saturnino "Tator" Salvador, who had been seen by eyewitnesses leading Rex, with hands hogtied
behind his back and his mouth gagged by a red handkerchief, towards the deep gully where his
decomposing body was found. The ICHDF was a para-military group organized by local units of
the Armed Forces of the Philippines and composed of selected civilians in the locality to assist
the Army in its peace-keeping duties.

The amended information, filed on December 3, 1984, reads:jgc:chanrobles.com.ph

"The undersigned accuses MIGUEL DAUB, MARTIN CAGADAS, JR., MACARIO

BARBERO, ROMY TULIO, CORITO PIASIDAD, RENE BALONG, JOSE CULTURA and
TATOR SALVADOR of the crime of Murder under Article 248 of the Revised Penal Code,
committed as follows:jgc:chanrobles.com.ph

"That on or about June 6, 1983, in the Municipality of San Vicente, Province of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused,
conspiring, confederating and mutually helping one another, with treachery and evident
premeditation, with intent to kill and armed with guns and bladed weapons, did then and there
wilfully, unlawfully and feloniously attack, assault, hack and stab one Rex Ballena, thereby
inflicting upon him wounds which caused his death, and further causing actual, moral and
compensatory damages to the heirs of the victim.

"That in the commission of the foregoing offense all the above-named accused took advantage of
their public position as members of the Integrated Civil Home Defense Force and their superior
strength which circumstances aggravate their crime." (p. 3, Trial Courts decision; p. 24, Rollo.)

The accused were arraigned on December 14, 1984. Each entered a plea of "Not Guilty" to the
charge. At the trial, the prosecution presented five witnesses and the defense, thirteen. Two
prosecution witnesses, Ramos Magunot and Jose Magunot, testified that they saw on June 6,
1983 at around 4 p.m., from their farm huts situated along Bontiqui Creek in Sitio Rizal, Rex
Ballena, hogtied and being led by the accused toward the Macjum River, where his corpse was
later discovered. Leading the way was Martin Cagadas, Jr.; on the left side of Rex was Romy
Tulio who held the vine tied around Rexs hands; on the right was Tator Salvador, and directly
behind was Macario Barbero, who held a gun against the victims back, followed by Corito
Piasidad, Rene Balong, "Jose" Cultura and ICHDF team leader Miguel Daub. Jose Magunot
testified that he was summoned by the ICHDF team the same evening because their leader
(Daub) caught him (Jose) watching when they hogtied Rex. He was warned not to tell on them at
the risk of his own life. There was, however, no eyewitness to the actual killing.

All the accused put up the defense of alibi, claiming that they could not possibly have committed
the heinous crime imputed to them, for they were not in the place pointed to by the prosecution
witnesses, having either worked in another ICHDF detachment center or in some other
place.chanrobles.com : virtual law library

On August 24, 1988, the Regional Trial Court of Tagum, Davao (Branch 1) rendered a decision
finding all of the accused, excluding Miguel Daub (who died during the trial) "guilty beyond
reasonable doubt of the crime of murder as charged, sentencing them to suffer the penalty
of reclusion perpetua with all the accessory penalties provided by law, and to indemnify the
widow, Aquila Ballena, and the heirs of Rex Ballena P12,000 as compensatory damages, plus
Thirty Thousand (P30,000) Pesos, as and in the concept of moral damages, the filing fees thereof

160
to stand as lien to the full and complete execution for the satisfaction of the awards." (p. 50, RTC
decision; p. 137, Rollo.)

The defendants appealed to this Court in view of the penalty imposed on them. They allege that
the lower court erred:chanrob1es virtual 1aw library

1. in convicting them of murder despite the prosecutions failure to prove their guilt beyond
reasonable doubt;

2. in giving credence to the improbable and ill-motivated testimonies of prosecution witnesses

Ramos and Jose Magunot;

3. in convicting the appellants of the crime charged based on purely circumstantial evidence;

4. in disregarding their defense of alibi;

5. in convicting Roberto Cultura even if he was not one of those charged in the information; and

6. in finding that the aggravating circumstances of (a) taking advantage of public position, (b)
superior strength, (c) evident premeditation, and (d) treachery were present in the commission of
the crime.

The appeal has no merit.

While it is true that no eyewitnesses to the actual killing were available or brave enough to come
forward and testify against the. accused, direct evidence is not the only basis upon which their
guilt may be predicated. Their guilt may be, as it was, established through circumstantial
evidence which suffices for conviction if the following requisites are present, namely: (1) there
must be more than one circumstance, (2) the facts from which the inferences are derived are
proven; and (3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt (Sec. 5, Rule 133, Revised Rules of Court; People v. Alcantara, 163
SCRA 783).

The following facts or circumstances were proven:chanrob1es virtual 1aw library

1. that Rex was seen by the prosecution witnesses, Ramos Magunot and Jose Magunot, hogtied
and gagged with a red handkerchief in his mouth;

2. that he was being led on foot toward the Macjum river by the appellants;

3. that his body, bearing stab wounds and other injuries, was found at the Macjum river;

4. that the appellants advised Magunot not to report what he had seen; and

5. that the victim did not have his money on his person when his body was found.

The inferences to be derived from those facts are:chanrob1es virtual 1aw library

(1) that Rex was gagged and hogtied by the appellants;

(2) that he was killed by the appellants, and, (3) that he was robbed by the appellants.chanrobles
lawlibrary : rednad

The web of circumstantial evidence in this case constitutes an unbroken chain leading to a
reasonable conclusion that the appellants detained the victim while he was on his way to Sangab
that fateful afternoon of June 6, 1983. They hogtied and gagged him, led him to the gully, and as
the decomposed corpse later revealed, stabbed him to death with multiple knife thrusts. Their

161
individual participation need not be specified for they were all co-conspirators in the commission
of the crime, hence, the guilt of one or some was the guilt of all. (People v. Maralit, 165 SCRA
427; People v. Newman, 163 SCRA 496; People v. Salvador, 163 SCRA 574.)

The trial court did not err in giving full credit to the testimonies of the prosecution witnesses for
they were disinterested witnesses, not related at all to the victim. Their testimonies were
spontaneous, unrehearsed and unchallenged even during cross-examination. Their initial
reluctance to testify does not affect their credibility (People v. Aliocod, 167 SCRA 665) for the
killers were notorious for their lawlessness and barbarity.

The trial court properly rejected the appellants defense of alibi which is the weakest of all
defenses especially in the absence of proof that it would have been physically impossible for
them to have been at the scene of the crime (People v. Masangkay, 157 SCRA 320). Moreover,
the testimonies of the defense witnesses are not only replete with material inconsistencies but are
also incompatible with one another. The Certification signed by the barangay and purok officials
on September 27, 1984, attesting to the presence of the accused in a detachment center in Davao
is highly unreliable, as it was not based on personal knowledge of the affiants but on
unconfirmed reports or hearsay.

Appellants contention that the trial court erred in convicting Roberto Cultura for he was not one
of those indicted in the information but "Jose" Cultura (his fathers name), has no merit. The
erroneous designation of his name in the information will not vitiate it, as it was clearly proven
that the accused, Roberto Cultura, was part of the group that arrested, hogtied and killed the
victim. Besides, Cultura did not raise this question of his identity during the arraignment. His
acquiescence to be tried under the name "Jose" at that stage of the case is deemed to be a waiver
on his part to raise the question of his identity as one of the accused for the first time on appeal
(People v. Maravilla, 165 SCRA 392; People v. Torres, 165 SCRA 702).

All the appellants are guilty beyond reasonable doubt of the crime of murder qualified by
treachery and aggravated by the circumstance of taking advantage of their public positions.
There was treachery in the commission of the offense for the victim was gagged and his hands
were tied before he was slain, thereby rendering him completely helpless. Furthermore, the
appellants abused their office as Civil Home Defense members, who are supposed to be peace
officers tasked with maintaining law and order and of protecting life and property in their
community. They instead turned out to be murderers and brigands.chanrobles.com:cralaw:red

The penalty of murder under the 1987 Constitution is reclusion temporal in its maximum period
to reclusion perpetua (People v. Alpetche, 168 SCRA 670). Appellants cannot avail of the
Indeterminate Sentence Law, considering the penalty actually imposed.

WHEREFORE, the decision a quo, being in full accord with the evidence and the law, is hereby
affirmed in toto.

SO ORDERED.

162
 [G.R. Nos. 147656-58. May 9, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. BERNABE GUTIERREZ y

GUTIERREZ, appellant.

DECISION
YNARES-SANTIAGO, J.:

Appellant Bernabe Gutierrez y Gutierrez appeals the joint decision[1] dated November 24,
2000 of the Regional Trial Court of Dagupan City, Branch 42, in Criminal Cases Nos. 99-03160-
D, 99-03161-D and 99-03162-D, finding him guilty beyond reasonable doubt of three counts of
rape committed against complainant Gina Alcantara y Velasquez; sentencing him to suffer the
penalty of reclusion perpetua for each count; and ordering him to pay the complainant the
amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as
exemplary damages for each count plus costs.
In three separate Informations, similarly worded except for the dates and times of the
commission of the offense, appellant was charged with rape committed as follows:

That on or about July 24, 1999 at around 3:00 oclock in the afternoon[2] at barangay Salaan,
municipality of Mangaldan, province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, who is the uncle of complainant, armed with a
knife and by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have carnal knowledge of her niece GINA V. ALCANTARA, against her will and
without her consent, to the damage and prejudice of the latter.

CONTRARY to Art. 335 of the Revised Penal Code, as amended by R.A. 7659.[3]

Appellant pleaded not guilty to the crimes charged. The three cases were consolidated and
jointly tried.
Complainant is appellants niece; her grandmother is the sister of appellants mother,
Francisca Gutierrez. Together with her sister, Matet, complainant worked in appellants house in
Barangay Salaan, Mangaldan, Pangasinan, where they took care of appellants bedridden
mother. On July 24, 1999, at 3:00 p.m., appellant sent Matet to buy medicine in Dagupan
City. After Matet left, appellant dragged complainant to his room, where he pointed a knife at
her and ordered her to remove her shorts and panties. She pleaded for him to stop but he ignored
her. He took off his shorts and briefs, made her lie on the bed, lay on top of her and inserted his
penis into her vagina. After performing sexual intercourse with complainant, appellant told her
not to tell anyone what happened, otherwise he will kill her and her family.[4]
On July 30, 1999, at 5:00 p.m., complainant was in the kitchen of appellants house preparing
the meal for his mother. Again, appellant pulled her into his room, pointed a knife at her and
ordered her to undress. Overwhelmed with fear, she acceded to his demands. He then removed
his shorts and briefs and had sexual intercourse with her on the bed. As in the previous incident,
he threatened to kill complainant and her family if she told anyone about the incident.[5]
In the afternoon of August 12, 1999, complainant was in her house in Barangay Salay,
Mangaldan, attending a prayer for the death anniversary of her deceased mother, who died on
August 12, 1985. At 4:30 p.m., Matet, who was in appellants house, sent word to her that
appellant was very angry at her. She arrived at his house at 5:00 p.m. to relieve Matet of her
duties. She found that appellant was indeed very angry at her and asked her why she was late. At
6:00 p.m., after Matet was gone, appellant pulled her inside the room and forced her to take off
her clothes while pointing a knife at her. He pushed her to the bed, lay on top of her and raped
her.[6]

163
 On August 15, 1999, appellant again tried to sexually molest complainant but she was able
to run to the room of his mother before he could draw his knife. That same day, appellants
brother, Boyet, arrived from Hawaii and stayed in his house for four days. Before Boyet left for
Manila on August 19, 1999, complainant mustered the courage to tell him what appellant had
done to her. Boyet decided to take complainant to the house of her sister, Brenda, in Pasay
City. On August 23, 1999, complainant was accompanied by her aunt, Beatriz Saclao, to
Mangaldan, where they filed formal complaints against appellant for rape with the police. Upon
advice of the police, complainant underwent physical examination.[7]
Dr. Revelina A. Millan, Medical Officer III of Region I Medical Center, conducted the
examination on complainant and found the following:

- GO LMP-August 17-21, 1999

- PMP July 13-17, 1999

- Conscious, coherent, not in distress

- Skin, (-) abrasions, (-) hematoma

- Genitalia with hymenal laceration at 3 oclock,

- 5 oclock and 7 oclock position introitus admits

- 2 fingers with ease

- for vaginal smear for presence of spermatozoa

- Results:- Negative for the presence of spermatozoa[8]

Appellant denied the charges of rape and alleged that all his sexual encounters with
complainant were consensual.[9] He presented the testimonies of his two nieces, Irene and Daisy,
both surnamed Gutierrez, to corroborate his claim.
Irene testified that between the months of July and August 1999, she took care of her
grandmother, Francisca Gutierrez, together with her sisters, Marissa and Daisy, and complainant
and Matet, in appellants house. There, she observed that complainant was always happy and
acted sweet towards appellant. Sometime between May and June, when their grandmother was
confined at Nazareth General Hospital in Dagupan City, they stayed in the hospital while
complainant and appellant slept in the house.[10]
Daisy testified that she also took care of her grandmother, Francisca Gutierrez. When the
latter was in the hospital, she sometimes slept in appellants house together with him and
complainant. She noticed that complainant and appellant were very sweet to each other. She even
saw her place her leg on top of appellants legs while they slept.[11]
On November 24, 2000, the trial court rendered judgment, the decretal portion of which
reads:

WHEREFORE, the accused in the above-entitled cases, BERNABE GUTIERREZ, is hereby

found guilty beyond reasonable doubt of three (3) counts of consummated rape as charged in the
above-entitled three (3) cases and as defined by Article 335 of the Revised Penal Code and
penalized by Republic Act 7659, otherwise known as the Heinous Crime Law, and there being
no mitigating or aggravating circumstance to be considered, he is hereby sentenced to suffer
RECLUSION PERPETUA in each of the herein three (3) cases. He is also required to indemnify
Gina Alcantara P50,000.00 and to pay her P50,000.00 as moral damages as well as P25,000.00
as exemplary damages in each case plus costs.

SO ORDERED.[12]

164
 Hence, this appeal based on the following assignment of errors:
I.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ASSUMED

JURISDICTION OVER THE THREE (3) COUNTS OF RAPE CHARGED AGAINST THE
ACCUSED-APPELLANT DESPITE THE PATENT DEFECT IN ALL THE THREE (3)
INFORMATIONS, i.e., SAID INFORMATION DO NOT CHARGE AN OFFENSE AT ALL.

II.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO

MENTION IN ITS JOINT DECISION ANY EXISTING LAW UPON WHICH HIS DECISION
WAS BASED.

III.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONVICTING ACCUSED-

APPELLANT DESPITE THE FACT THAT PRIVATE COMPLAINANT FAILED TO
ESTABLISH THAT DEGREE OF THREAT, FORCE, OR INTIMIDATION SUFFICIENT TO
COMPEL HER TO SUBMIT TO THE ACCUSED-APPELLANT.

IV.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONVICTING ACCUSED-

APPELLANT WITH THREE (3) COUNTS OF RAPE DESPITE THE FACT THAT
PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.

V.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT

CONSIDER THE UNNATURAL AND UNCOMMON BEHAVIOR OF PRIVATE
COMPLAINANT AFTER THE ALLEGED RAPE/S.

VI.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ARRIVING AT AN

ERRONEOUS CONCLUSION THAT THE FACT THE PRIVATE COMPLAINANT HAD
HYMENAL LACERATIONS WAS CONSISTENT AND CONCLUSIVE WITH HER
ALLEGATIONS THAT SHE WAS RAPED.

VII.

THE COUNSEL FOR THE ACCUSED-APPELLANT DID NOT EXERCISE THE

REQUIRED ORDINARY DILIGENCE OR THAT REASONABLE DEGREE OF CARE AND
SKILL EXPECTED FROM HIM RELATIVE TO HIS CLIENTS DEFENSE WHEN HE
OPTED NOT TO PRESENT THE ACCUSED-APPELLANT TO REFUTE THE TESTIMONY
OF THE PRIVATE COMPLAINANT AND TO PRESENT ANY EVIDENCE TO DEFEND
HIS CLIENT.[13]

Prefatorily, appellant contends that the Informations were all invalid for not substantially
conforming to the prescribed form, particularly as to the designation of the offense by the
statute. He argues that the three Informations cited Article 335 of the Revised Penal Code which,
however, had already been repealed at the time of filing of the Informations by Republic Act No.
8353 or The Anti-Rape Law of 1997. Furthermore, he asserts that the decision failed to comply

165
with the constitutional mandate that a judgment of conviction must state clearly and distinctly the
facts and the law on which it is based.
We are not persuaded.
A complaint or information is sufficient if it states (a) the name of the accused; (b) the
designation of the offense given by the statute; (c) the acts or omissions complained of as
constituting the offense; (d) the name of the offended party; (e) the approximate date of the
commission of the offense; and (4) the place where the offense was committed.[14]
With respect to the designation of the offense, Rule 110, Section 8 of the Revised Rules of
Criminal Procedure provides:

Designation of the offense. The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.

A simple reading of the foregoing rules shows that only the designation of the offense given
by the statute is necessary. In the case at bar, the designation of the offense is rape, which is
clearly indicated in the caption as well as in the preamble of each Information. It is only when
there is no specific name given to the offense that reference to the section or subsection of the
statute punishing it may be made. This usually applies to offenses under special laws, in which
case the offense is described as a violation of the statute which defines and penalizes it.
Moreover, the real nature of the criminal charge is determined not from the caption or
preamble of the Information, nor from the specification of the provision of law alleged to have
been violated, as these are mere conclusions of law. Rather, the nature of the accusation is
determined by the actual recital of facts in the complaint or information. [15] It is not even
necessary for the protection of the substantial rights of the accused or the effective preparation of
his defense that the accused be informed of the technical name of the crime of which he stands
charged. He must look to the facts alleged.[16]
We likewise do not agree with appellants assertion that the decision failed to state clearly
and distinctly the facts and the law on which it is based. Contrary to his bare allegation, we find
that the decision sufficiently set forth in detail the facts alleged by both parties and laid down the
applicable law and jurisprudence on which the trial court based its judgment of conviction, as
well as the penalty and civil liability imposed on appellant.
Appellant admits that he had sexual intercourse with complainant on several occasions but
denies that the same was attended by force or intimidation. He points out that complainant
neither resisted nor shouted for help, considering that the room of her grandmother was adjacent
to his room. Further, no physical injuries were found on her body to show force or intimidation.
The contentions are without merit.
The seeming lack of an effective struggle did not mean that appellants sexual advances did
not constitute rape. Physical resistance need not be proved in rape when intimidation is exercised
upon the victim and she submits herself, against her will, to the rapists advances because of fear
for her life and personal safety. It suffices that the intimidation produces fear in the mind of the
victim that if she did not submit to the bestial demands of the accused, something worse would
befall her at the time she was being molested.[17] In the case at bar, appellant pointed a knife at
complainant while raping her. Threatening the victim with bodily injury while holding a knife or
a bolo constitutes intimidation sufficient to bring a woman to submission to the lustful desires of
the molesters.[18] In such a case, the absence of external signs or physical injuries on the victim
does not negate the commission of rape.[19] More importantly, appellant was complainants uncle,
who exercised moral ascendancy over her. It is a settled rule that in rape committed by a close
kin, moral ascendancy takes the place of violence and intimidation.[20]
Complainant remained steadfast in her testimony that appellant raped her on three occasions
despite rigorous cross-examination. She cried during her testimony when she could no longer

166
control the outbursts of her emotion, thereby indicating that she was telling the truth.[21] These
facts cannot simply be overturned by a mere blanket denial and assertion on appellants part that
all their sexual encounters were consensual. Verily, rape is not a simple physical violation. It
debases a womans dignity, leaving a stigma on her honor and scarring her psyche for life. The
fact that it was committed by a relative, whether close or distant, makes it even more
abhorrent. Certainly, no woman in her right mind would fabricate a story of bestiality against her
own relative that could sully her reputation and expose herself, as well as her family, to all sorts
of public aspersions if she were not motivated to seek justice for a wrong committed against
her.[22] Complainants tale of defloration was found by the trial court to be credible, thus, it is
sufficient to warrant a judgment of conviction.[23]
Needless to state, the oft-repeated principle is that the assessment of the credibility of
witnesses and their testimonies is a matter best undertaken by a trial court because of its unique
opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude
under examination. Its findings on such matters are binding and conclusive on appellate courts
unless some facts or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted.[24]
Complainants failure to immediately report the rape does not diminish her credibility. The
silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss
of material time does not prove that her charge is baseless and fabricated.[25] It is not uncommon
for young girls to conceal for some time the assault on their virtues because of the rapists threat
on their lives, more so when the offender is someone whom she knew and who was living with
her.[26] The delay in this case was sufficiently explained and, hence, did not destroy complainants
credibility.
Appellant assails the trial courts finding that the lacerations in complainants hymen were
consistent to her claim that she was raped, saying that there was no testimony given to this effect
by the medico-legal officer. This argument deserves scant consideration. In a prosecution for
rape, the material fact or circumstance to be considered is the occurrence of the rape.[27] The
medical examination of the victim, as well as a medical certificate, is merely corroborative in
character and is not an essential element of rape.[28]
Finally, we are not persuaded by appellants argument that he was deprived of the
opportunity to submit his evidence and to disprove the evidence for the prosecution due to the
inefficiency and negligence of his former counsel, who prematurely terminated his direct
examination after asking him a few irrelevant questions. It is a well-settled rule that the client is
bound by his counsels conduct, negligence, and mistakes in handling the case and the client
cannot be heard to complain that the result might have been different had his lawyer proceeded
differently.[29]
The trial court, thus, correctly found appellant guilty beyond reasonable doubt of three counts of rape. Under
Article 266-B of the Revised Penal Code, where the rape was committed with the use of deadly weapon, the penalty
shall be reclusion perpetua to death. Article 63 of the Revised Penal Code provides that where the penalty
prescribed by law is composed of two indivisible penalties and there are neither mitigating nor aggravating
circumstance in the commission of the crime, the lesser penalty shall be imposed.Hence, the trial court was correct
in sentencing appellant to suffer the penalty of reclusion perpetua for each count of rape.[30]
As to the civil liability, the trial court was also correct in awarding to the complainant the amounts of
P50,000.00 as civil indemnity and P50,000.00 as moral damages for each act of rape. Civil indemnity[31] and moral
damages[32] are automatically granted once the fact of rape had been established. However, the award of exemplary
damages must be deleted. Under Article 2230 of the Civil Code, exemplary damages may be awarded only where an
aggravating circumstance attended the commission of the offense.
WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Dagupan City, Branch
42, in Criminal Case Nos. 99-03160-D, 99-03161-D and 99-03162-D, finding appellant Bernabe Gutierrez y
Gutierrez guilty beyond reasonable doubt of three counts of rape, sentencing him to suffer the penalty of reclusion
perpetua for each count and ordering him to pay complainant Gina Alcantara the amounts of P50,000.00 as civil
indemnity and P50,000.00 as moral damages in each case, is AFFIRMED with the MODIFICATION that the award
of exemplary damages is DELETED for lack of legal basis.
Costs de oficio.
SO ORDERED.

167
 [G.R. No. 147201. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENJAMIN SAYABOC y SEGUBA,

PATRICIO ESCORPISO y VALDEZ, MARLON BUENVIAJE y PINEDA, and
MIGUEL BUENVIAJE y FLORES, appellants.

DECISION
DAVIDE, JR., C.J.:

Before us is the decision of 9 November 2000 of the Regional Trial Court of Bayombong,
Nueva Vizcaya, Branch 27, in Criminal Case No. 2912 finding appellant Benjamin Sayaboc
guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty
of death; and (2) finding appellant Marlon Buenviaje guilty as principal and appellants Miguel
Buenviaje and Patricio Escorpiso guilty as accomplices in the crime of homicide.
On 17 April 1995, an information was filed charging Benjamin Sayaboc, Patricio Escorpiso,
Marlon Buenviaje, and Miguel Buenviaje with murder, the accusatory portion of which reads as
follows:

That on or about December 2, 1994, in the Municipality of Solano, Province of Nueva Vizcaya,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping each other, and who were then armed
with a firearm, did then and there willfully, unlawfully and feloniously with evident
premeditation, by means of treachery and with intent to kill, attack, assault and use personal
violence upon the person of Joseph Galam y Antonio, by then and there suddenly firing at the
said Joseph Galam yAntonio who has not given any provocation, thereby inflicting upon him
mortal wounds which were the direct and immediate cause of his death thereafter, to the damage
and prejudice of his heirs.[1]

At their arraignment, appellants Benjamin Sayaboc, Patricio Escorpiso, and Miguel

Buenviaje pleaded not guilty to the charge of murder. Marlon Buenviaje, who was arrested only
on 10 July 1997, also pleaded not guilty upon his arraignment.
The evidence for the prosecution discloses as follows:
At about 9:00 a.m. of 13 August 1994, while prosecution witness Abel Ramos was at a
vulcanizing shop in Barangay Quezon, Solano, Nueva Vizcaya, he heard one Tessie Pawid
screaming from across the road: Enough, enough, enough! In front of her were Marlon Buenviaje
and Joseph Galam, who were engaged in a fisticuff. By the time Pawid was able to subdue the
two men by standing between them and embracing Galam, Buenviajes face was already bloodied
and Galams shirt collar torn. As Buenviaje was leaving, he turned to face Galam and, with his
right index finger making a slicing motion across his throat, shouted: Putang-ina mo Joseph, may
araw ka rin, papatayin kita.Galam retorted, Gago, traydor, gold digger, halika. Buenviaje did
not respond anymore and left on a tricycle.[2]
More than three months thereafter, or on 2 December 1994, Galam was shot to death at the
Rooftop Disco and Lodging House (Rooftop, for short) owned by him, which was located
at Barangay Quezon, Solano, Nueva Vizcaya.
According to a waitress of the Rooftop Diana Grace Sanchez Jaramillo, earlier or at 3:00
p.m. of that fateful day, a man whom she later identified as Benjamin Sayaboc rang the doorbell
of the Rooftop and asked whether a woman wearing a green t-shirt had checked in. She answered
in the negative. As she was about to leave, Sayaboc asked another question, What time does
your bosing arrive? She replied that she did not know. She then went to the second floor of the
establishment.[3]
Tessie Pilar, the caretaker of the lodging house, narrated that between 5:30 and 5:45 p.m.
Sayaboc, who was still seated in the swing beside the information counter with his hands tucked
168
in the pocket of his jacket, ordered a bottle of beer. She then went up to the kitchen, but was
delayed in delivering the beer because she gave some instructions to the dishwasher. When she
gave the beer to Benjamin, the latter was angry and asked why it took her so long to bring the
beer. Thereafter, she went upstairs and chatted with Jaramillo and some other waitresses. Then
the vehicle of Joseph Galam arrived.[4]
Shortly thereafter, they heard four gunbursts emanating from the ground floor of the
building. When Jaramillo looked down, she saw Sayaboc shooting Galam, causing the latter to
fall to the ground face up, with blood spurting out of his chest. Sayaboc forthwith ran out and
disappeared into the darkness.[5]
Meanwhile, at about 5:30 p.m. of that fateful day, as Joselito Parungao, Chief Barangay
Tanod of Barangay Quezon, Solano, Nueva Vizcaya, was on his way to the Kowloon Restaurant
located along the national road, he saw Marlon Buenviaje with his father Miguel Buenviaje and
Patricio Escorpiso. The three were aboard a tricycle parked in a vacant lot between the Rooftop
and Diego Theater. The younger Buenviaje was on the drivers seat, while the older Buenviaje
and Escorpiso were inside the sidecar.Parungao ordered pancit bihon. While he was waiting
outside of the restaurant, he noticed that the tricycle was still parked in the vacant lot, and the
three occupants thereof were talking with each other. After getting his order and while he was
getting out of the restaurant, Parungao heard four gunshots coming from behind the Rooftop
building. He thereafter saw a person, whom he later came to know as Benjamin Sayaboc,
walking briskly toward the tricycle and then rode behind Marlon Buenviaje. Afterwards, the
tricycle sped off towards the center of the town.[6]
The employees of the Rooftop lost no time in bringing Galam to a hospital, where he was
declared dead on arrival.[7] Dr. Antonio R. Labasan, who conducted an autopsy on his cadaver,
found four gunshot wounds and opined that the first two of which were inflicted from behind and
the last two were frontal.[8]
That evening, SPO4 Roberto Cagungao, Chief Investigator of the Solano Police Station,
assigned some investigators to go to the scene of the crime to gather evidence. At about 10:00 to
11:00 p.m., he and Lt. Alejandro Parungao brought Pilar and Jaramillo to the Philippine National
Police (PNP) Crime Laboratory in Camp Crame, Quezon City. Pilar and Jaramillo were
interviewed by the cartographic artist, who thereafter drew a cartographic sketch showing the
face of the assailant.[9]
On 8 March 1995, Pilar and Jaramillo identified Benjamin Sayaboc at the PNP Provincial
Headquarters in Bayombong as the gunman who shot Joseph Galam to death.[10]
On the afternoon of that day, SPO4 Cagungao was called to the Provincial Command
Headquarters in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc.When he arrived
at the headquarters he saw Sayaboc being interviewed by reporters inside the investigation
room. He then brought Sayaboc to the inner part of the room.Before taking the statement of
Sayaboc, he advised the latter of his constitutional rights. Then Sayaboc told him that he wanted
to have a counsel of his own choice. But since Sayaboc could not name one, Cagungao asked the
police officers to get a lawyer. Half an hour later, the police officers brought Atty. Rodolfo
Cornejo of the PAO, who then conferred with Sayaboc for a while. After Cagungao heard
Sayaboc say, okay, he continued the investigation, during which Atty. Cornejo remained silent
the entire time.However, Cagungao would stop questioning Sayaboc whenever Atty. Cornejo
would leave to go to the comfort room.[11] That night Sayaboc executed an extrajudicial
confession[12] in Ilocano dialect. He therein confessed to killing Joseph Galam at the behest of
Marlon Buenviaje for the sum of P100,000. He likewise implicated Miguel Buenviaje and
Patricio Escorpiso. The confession was also signed by Atty. Cornejo and attested to by one
Fiscal Melvin Tiongson.
At the hearing on 22 June 1999, after the prosecution rested its case, 1counsel for accused
Mike Buenviaje, Marlon Buenviaje and Patricio Escorpiso manifested that he be given fifteen
days to file a motion for leave to admit demurrer to the evidence.[13] The trial court acceded. But
instead of filing such motion first, he filed a Demurrer to Evidence on 12 July 1999. [14] The
motion for leave to file the pleading was filed the next day only.[15]

169
 The trial court denied the demurrer to evidence in an order[16] issued on 16 August
1999. Further, it ruled that because of they did not seek nor were granted express leave of court
prior to their filing of the demurrer to evidence, the Buenviajes and Escorpiso were deemed to
have submitted their case for judgment in accordance with Section 15, Rule 119 of the Rules of
Court. Thus, only Sayaboc was allowed to proceed with the presentation of his defense.
Sayaboc denied having committed the crime and proffered the defense of alibi. He also
flatly denied having met Atty. Cornejo or having been informed of his rights. He testified to
having been beaten by six or seven police officers in the investigating room, who then coerced
him to confess to having killed Galam.[17] Apart from his testimony, he submitted a handwritten
statement dated 20 March 1995[18] and an affidavit dated 10 April 1995[19] to support his claim of
police brutality and retraction of his confession.
In its decision dated 9 November 2000,[20] the trial court found Benjamin Sayaboc guilty of
the crime of murder, with treachery as the qualifying circumstance and craft and price or reward
as aggravating circumstances. It then sentenced him to the maximum penalty of death. As for
Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso, the court held that the treachery
employed by Sayaboc could not be taken against them and, therefore, declared them guilty of the
crime of homicide only, with the first as principal and the two others as accomplices. Each was
sentenced to suffer an indeterminate penalty and to pay solidarily with Sayaboc the amounts
of P115,000 as actual damages; P25,000 as moral damages; and the costs of the suit in favor of
the heirs of Joseph Galam.
From this decision, the appellants raise the following errors:
I

THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT SAYABOC GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND SENTENCING
HIM TO DEATH.

II

ASSUMING ARGUENDO THAT ACCUSED SAYABOC IS GUILTY, HE IS GUILTY

ONLY OF THE CRIME OF HOMICIDE.

III

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL

CONFESSION OF ACCUSED SAYABOC WHEN IT WAS TAKEN WITHOUT THE
ASSISTANCE OF A COMPETENT AND INDEPENDENT COUNSEL NOR BY AN
EFFECTIVE AND VIGILANT COUNSEL.

IV

THE TRIAL COURT ERRED IN FINDING FATHER AND SON BUENVIAJE AND
ACCUSED ESCORPISO LIKEWISE GUILTY WHEN IT DENIED THEM THEIR
CONSTITUTIONAL RIGHT TO BE HEARD BY THEMSELVES AND COUNSEL AFTER
THEY FILED THEIR DEMURRER TO EVIDENCE ALLEGEDLY WITHOUT FIRST
SEEKING EXPRESS LEAVE OF COURT.

In the first and second assigned errors, the appellants contend that the crime committed by
Sayaboc was homicide only, there being no proof of treachery because the two eyewitnesses did
not see the commencement of the shooting. Besides, treachery, as well as evident premeditation,
was not specifically designated as a qualifying circumstance in the information. Neither can the
aggravating circumstances of craft and price or reward be appreciated because they were not
alleged in the information, albeit proved during trial. Sections 8 and 9 of Rule 110 of the 2000
Rules of Criminal Procedure, which require aggravating and qualifying circumstances to be

170
alleged in the information, are beneficial to the accused and should, therefore, be applied
retroactively.
As to the third assigned error, the appellants argue that the extrajudicial confession of
Sayaboc may not be admitted in evidence against him because Atty. Cornejo, the PAO lawyer
who was his counsel during the custodial investigation, was not a competent, independent,
vigilant, and effective counsel. He was ineffective because he remained silent during the entire
proceedings. He was not independent, as he was formerly a judge in the National Police
Commission, which was holding court inside the PNP Command of Bayombong, Nueva
Vizcaya.
Finally, appellants Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso claim that
they were denied due process because they were not able to present evidence in their
defense. They ask this Court to relax the rule of criminal procedure in favor of enforcing their
constitutional right to be heard by themselves and counsel.
On the other hand, the Office of the Solicitor General (OSG) maintains that Sayabocs
extrajudicial confession that he shot the victim in the back is adequate proof of
treachery. Invoking People v. Aquino,[21] the OSG contends that for treachery to be considered as
a qualifying circumstance, it needs only to be specifically alleged in the information and does not
have to be preceded by the words qualifying or qualified by. As to the proven circumstances of
craft and price or reward, the same cannot be appreciated because they were not specifically
alleged in the information, as required by the 2000 Rules of Criminal Procedure, which are
applicable to actions that are pending and undetermined at the time of their passage.
The OSG further asserts that Sayabocs extrajudicial confession is admissible in evidence
against him, since it was made after he was informed of, and accorded, his constitutional rights,
particularly the right to an independent counsel of his own choice. No evidence was adduced
during the trial to substantiate the claim that Atty. Cornejo used to be connected with the
NAPOLCOM. Moreover, this claim was made for the first time in this appeal, and was based
merely on an information furnished by defense counsel Atty. Virgil Castro (now deceased) to
Sayabocs counsel in this appeal, which makes the said information hearsay twice removed.
As to the fourth assigned error, the OSG counters that no exceptional circumstance exists in
this case that may warrant the relaxation of the rule that the denial of a unilateral demurrer to
evidence carries with it a waiver of the accuseds right to present evidence.
Beginning with the admissibility of Sayabocs extrajudicial confession, we hold that such
cannot be used in evidence in this case.
Section 12 of Article III of the 1987 Constitution provides:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.

Jurisprudence provides that extrajudicial confessions are presumed to be voluntary.[22] The

condition for this presumption, however, is that the prosecution is able to show that the
constitutional requirements safeguarding an accuseds rights during custodial investigation have
been strictly complied with, especially when the extrajudicial confession has been
denounced. The rationale for this requirement is to allay any fear that the person being
investigated would succumb to coercion while in the unfamiliar or intimidating environment that
is inherent in custodial investigations. Therefore, even if the confession may appear to have been
given voluntarily since the confessant did not file charges against his alleged intimidators for

171
maltreatment,[23] the failure to properly inform a suspect of his rights during a custodial
investigation renders the confession valueless and inadmissible.[24]
In this case, contrary to SPO4 Cagungaos claim that he conferred with Sayaboc for half an
hour informing him about his constitutional rights, the extrajudicial confessionprovides only the
following:

PRELIMINARY: I would like to inform you Mr. Sayaboc that questions will be asked
to you regarding an incident last December 2, 1994 at the Rooftop,
Brgy. Quezon, Solano, Nueva Vizcaya, in connection with the
shooting of Joseph Galam, owner of the said Disco House as a
result of his death. Before questions will be asked [of] you I would
like to inform you about your ri[g]hts under the new Constitution
of the Philippines, as follows: That you have the right to remain
silent or refuse to answer the questions which you think will
incriminate you; That you have the right to seek the services of a
counsel of your own choice or if not, this office will provide you a
lawyer if you wish.

QUESTIONS: After informing you all your constitutional rights, are you willing to give
your true statement regarding the death of Joseph Galam?

ANSWER: Yes, sir.

QUESTIONS: Do you want to get a lawyer to assist in this investigation?

ANSWER: Yes, sir. I want to seek the assistance of Atty. Rodolfo Cornejo.

QUESTIONS: Atty. Rodolfo Cornejo is here now, do you want him to assist you in this
investigation?

ANSWER: Yes, sir. [25]

Apart from the absence of an express waiver of his rights, the confession contains the
passing of information of the kind held to be in violation of the right to be informed under
Section 12, Article III of the Constitution. In People v. Jara,[26] the Court explained:

The stereotyped advice appearing in practically all extrajudicial confessions which are later
repudiated has assumed the nature of a legal form or model. Police investigators either
automatically type it together with the curt Opo as the answer or ask the accused to sign it or
even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does
not create an impression of voluntariness or even understanding on the part of the accused. The
showing of a spontaneous, free, and unconstrained giving up of a right is missing.

The right to be informed requires the transmission of meaningful information rather than just
the ceremonial and perfunctory recitation of an abstract constitutional principle.[27] It should
allow the suspect to consider the effects and consequences of any waiver he might make of these
rights. More so when the suspect is one like Sayaboc, who has an educational attainment of
Grade IV, was a stranger in Nueva Vizcaya, and had already been under the control of the police
officers for two days previous to the investigation, albeit for another offense.
We likewise rule that Sayaboc was not afforded his constitutional right to a competent
counsel. While we are unable to rule on the unsubstantiated claim that Atty. Cornejo was partial
to the police, still, the facts show through the testimonies of Sayaboc and prosecution witness
SPO4 Cagungao that Atty. Cornejo remained silent throughout the duration of the custodial
investigation. The trial court attributed the silence of Atty. Cornejo to the garrulous nature and
intelligence of Sayaboc, thus:

172
As already stated, Sayaboc was a garrulous man and intelligent. It was in his character for him to
want to be a central figure in a drama, albeit tragic for others. He would do what he wanted to do
regardless of the advice of others. Hence, Atty. Cornejo could only advise him of his
constitutional rights, which was apparently done. The said counsel could not stop him from
making his confession even if he did try.[28]

We find this explanation unacceptable. That Sayaboc was a garrulous man who would do
what he wanted to do regardless of the advice of others is immaterial. The waiver of a right is
within the rights of a suspect. What is lacking is a showing, to the satisfaction of this Court, of a
faithful attempt at each stage of the investigation to make Sayaboc aware of the consequences of
his actions. If anything, it appears that Sayabocs counsel was ineffectual for having been cowed
by his clients enthusiasm to speak, or, worse, was indifferent to it.
The right to a competent and independent counsel means that the counsel should satisfy
himself, during the conduct of the investigation, that the suspect understands the import and
consequences of answering the questions propounded. In People v. Deniega,[29] we said:

The desired role of counsel in the process of custodial investigation is rendered meaningless if
the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of
the person undergoing questioning. If the advice given is so cursory as to be useless,
voluntariness is impaired.

This is not to say that a counsel should try to prevent an accused from making a
confession. Indeed, as an officer of the court, it is an attorneys duty to, first and foremost, seek
the truth. However, counsel should be able, throughout the investigation, to explain the nature of
the questions by conferring with his client and halting the investigation should the need
arise. The duty of a lawyer includes ensuring that the suspect under custodial investigation is
aware that the right of an accused to remain silent may be invoked at any time.
We understand the difficulty and frustration of police investigators in obtaining evidence to
bring criminals to justice. But even the hardest of criminals have rights that cannot be interfered
with. Those tasked with the enforcement of the law and who accuse those who violate it carry the
burden of ensuring that all evidence obtained by them in the course of the performance of their
duties are untainted with constitutional infirmity. The purpose of the stringent requirements of
the law is to protect all persons, especially the innocent and the weak, against possible
indiscriminate use of the powers of the government. Any deviation cannot be tolerated, and any
fruit of such deviation shall be excluded from evidence.
For these reasons, the extrajudicial confession of Sayaboc cannot be used in evidence
against him. We hold, however, that the prosecution has discharged its burden of proving his
guilt for the crime of homicide.
From the records of the case, there can be no doubt that Sayaboc shot and killed Galam in
the early evening of 2 December 1994. He was seen waiting at the Rooftop from 3:00 to 6:00
p.m. of that day, shooting Galam shortly after the latters arrival, and fleeing from the scene of the
crime to a waiting tricycle. Credible witnesses described Sayabocs appearance to the police soon
after the shooting incident and prepared affidavits about the incident. They identified Sayaboc at
the police station while he was in custody, during the preliminary investigation, and, again, in
open court. Such positive identification constitutes more than sufficient direct evidence to uphold
the finding that Sayaboc was Galams killer. It cannot just be rebutted by Sayabocs bare denial
and weak alibi.
Appellants claim that the information against them is insufficient for failure to specifically
state that treachery and evident premeditation were qualifying circumstances holds no
water. In People v. Aquino,[30] we held that even after the recent amendments to the Rules of
Criminal Procedure, qualifying circumstances need not be preceded by descriptive words such
as qualifying or qualified by to properly qualify an offense. Nevertheless, from our review of the
case, we find that neither evident premeditation nor treachery has been sufficiently proved to
qualify the crime to murder.

173
 There is treachery when the offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make. Thus, two conditions must be present: (1) at the time of the attack, the victim was not in a
position to defend himself; and (2) the offender consciously adopted the particular means,
method or form of attack employed by him. For treachery to be appreciated, it must be present
and seen by the witness right at the inception of the attack. Where no particulars are known as to
how the killing began, its perpetration with treachery cannot merely be supposed. [31]
In this case, the trial court concluded that the fact that the witnesses did not hear any shout
or conversation between the assailant and the victim immediately before the attack could only
mean that Sayaboc had approached his victim through stealth.[32] While not improbable, that
conclusion is merely an inference. The fact remains that none of the witnesses testified as to how
the aggression began. The witnesses testified having heard four shots, the last two of which were
seen as having been fired while Sayaboc was facing Galam. The autopsy conducted by Dr.
Labasan reveals two frontal wounds at the thigh and the shoulder, and two wounds on the right
side of Galams back. Although it is plausible that the initial shots were fired from behind, such
inference is insufficient to establish treachery.[33]
Neither can we appreciate evident premeditation as a qualifying circumstance. Evident
premeditation exists when it is shown that the execution of a criminal act is preceded by cool
thought and reflection upon the resolution to carry out the criminal intent. The requisites of
evident premeditation are (1) the time when the accused determined to commit the crime; (2) an
act manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of
time between such determination and execution to allow him to reflect upon the circumstances of
his act.[34]
Without the extrajudicial confession narrating when Sayaboc was hired to kill Galam, the
testimony that the former inquired about the latter while waiting in the Rooftop from 3:00 p.m. to
6:00 p.m. of that fateful day does not prove the time when Sayaboc decided to kill
Galam. Settled is the rule that when it is not shown how and when the plan to kill was hatched or
what time had elapsed before that plan was carried out, evident premeditation cannot be
considered.[35]
The aggravating circumstances of craft and price or reward, even if proved, can neither be
considered because they were not specifically alleged in the information. Section 8, Rule 110 of
the 2000 Revised Rules of Criminal Procedure requires that the information specify the
aggravating circumstances attending the commission of the crime for it to be considered in the
imposition of penalty. This requirement is beneficial to an accused and may, therefore, be given
retroactive effect.[36]
Thus, appellant Benjamin Sayaboc can be found guilty of the crime of homicide only, which
is punishable by reclusion temporal. There being no mitigating or aggravating circumstances
appreciated for or against him, the penalty to be imposed upon him should be in the medium
period. Applying the Indeterminate Sentence Law, he should be meted a penalty whose
minimum is within the range of prision mayor and whose maximum is within the range
of reclusion temporal in its medium period.
We cannot subscribe to the contention of appellants Marlon Buenviaje, Miguel Buenviaje,
and Patricio Escorpiso that the case should be remanded to the trial court because they were
denied the right to be heard by the trial court. It must be remembered that their demurrer to
evidence filed on 12 July 1999 was without prior leave of court.The motion for leave to file the
said pleading was filed only the next day. The filing of the demurrer was clearly without leave of
court. The trial court, therefore, correctly applied the rule on demurrer to evidence found in
Section 15, Rule 119 of the 1985 Rules of Criminal Procedure when it disallowed the
abovementioned appellants to present evidence on their behalf.
The filing of a demurrer to evidence without leave of court is an unqualified waiver of the
right to present evidence for the accused.[37] The rationale for this rule is that when the accused
moves for dismissal on the ground of insufficiency of evidence of the prosecution evidence, he

174
does so in the belief that said evidence is insufficient to convict and, therefore, any need for him
to present any evidence is negated. An accused cannot be allowed to wager on the outcome of
judicial proceedings by espousing inconsistent viewpoints whenever dictated by
convenience. The purpose behind the rule is also to avoid the dilatory practice of filing motions
for dismissal as a demurrer to the evidence and, after denial thereof, the defense would then
claim the right to present its evidence.[38]
The trial court, therefore, correctly applied Section 15, Rule 119 of the 1985 Rules of Criminal Procedure on
demurrer to evidence when it disallowed the abovementioned appellants to present evidence on their behalf. They
cannot now claim that they were denied their right to be heard by themselves and counsel.
On the basis of the evidence for the prosecution, we find the existence of conspiracy between Marlon
Buenviaje and Sayaboc.
It has been held that price or reward is evidence of conspiracy. [39] But the same was not established by
competent proof in this case. The extrajudicial confession[40] and the newspaper reports[41] adduced by the
prosecution, which both contained Sayabocs statement pointing to Marlon Buenviaje as the one who paid
him P100,000 to kill Galam, are inadmissible in evidence. The first, as earlier stated, was executed in violation of
Sayabocs constitutional rights. The second are hearsay, since the authors of such reports were not presented as
witnesses to affirm the veracity thereof.[42]
Conspiracy need not, however, be established by direct proof; it may be shown by circumstantial
evidence.[43] As correctly found by the trial court and concurred with by the OSG, the concatenation of
circumstantial evidence shows that Marlon Buenviaje conspired with Sayaboc, thus:
1. On 13 August 1994, Marlon Buenviaje had a fistfight with Joseph Galam, causing him injuries on his face
and prompting him to make a threat to kill the latter;[44]
2. More than three months later, Galam was killed by Sayaboc, who had no discernible motive to do so; [45]
3. Shortly after shooting Galam, Sayaboc joined Marlon Buenviaje and the other appellants in the tricycle,
which was waiting in a vacant lot near the crime scene;[46]
4. The tricycle driven by Marlon Buenviaje sped away and disappeared; [47]
5. Marlon Buenviaje became a fugitive from justice for a long time, or until 10 July 1997; and
6. During the pendency of the case, the relatives of Marlon Buenviaje offered prosecution eyewitness Diana
Grace Jaramillo a job abroad, allowances, and two motorcycles in consideration of her retraction of her
testimony against Sayaboc.[48]
Circumstantial evidence is sufficient for conviction when (1) there is more than one circumstances established;
(2) the facts from which the inferences are derived have been proved; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. All these requisites are present in the
case at bar. Being a conspirator equally guilty as Sayaboc, Marlon Buenviaje must be meted the same penalty as that
of Sayaboc.
However, as to Miguel Buenviaje and Patricio Escorpiso, there is paucity of evidence linking them to the
killing. They might have been with Marlon Buenviaje in that tricycle, but there is nothing to show that they knew of
the conspiracy to kill Galam. Absent any active participation in furtherance of the common design or purpose to kill
Galam, their mere presence near the crime scene or in the tricycle driven by Marlon Buenviaje does not necessarily
make them conspirators. Even knowledge, acquiescence or approval of the act without the cooperation and the
agreement to cooperate is not enough to establish conspiracy.[49]
Now on the civil liability of Sayaboc and Marlon Buenviaje. The trial courts award of actual damages,
representing the wake and burial expenses, is reduced to P106,436, this being the amount supported by receipts. The
award of moral damages is, however, increased to P50,000 conformably with current jurisprudence. [50] In addition,
the heirs of the victim are entitled to P50,000 as civil indemnity ex delicto.
WHEREFORE, the decision of the Regional Trial Court of Bayombong, Nueva Ecija, Branch 27, in Criminal
Case No. 2912 is MODIFIED. Appellants Benjamin Sayaboc and Marlon Buenviaje are found guilty beyond
reasonable doubt of the crime of homicide and are each sentenced to suffer an indeterminate penalty of ten (10)
years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum
and to pay jointly and severally the heirs of Joseph Galam the amounts of P106,436 as actual damages; P50,000 as
civil indemnity; P50,000 as moral damages; and the cost of the suit. Appellants Miguel Buenviaje and Patricio
Escorpiso are hereby ACQUITTED on the ground of reasonable doubt.
Costs de oficio.
SO ORDERED.

175
 [G.R. No. 149368. April 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO DACILLO alias DODOY

AND JOSELITO PACOT y IBARRA (case provisionally dismissed), accused,
FRANCISCO DACILLO alias DODOY, appellant.

DECISION
CORONA, J.:

Before us on automatic review is the decision[1] of the Regional Trial Court of Davao City,
Branch 31, in Criminal Case No. 45,283-2000 convicting appellant Francisco Dacillo y
Timtim alias Dodoy of the crime of murder and sentencing him to suffer the penalty of death.
Appellant Dacillo together with Joselito Pacot y Ibarra were indicted for murder in an
information that read:

The undersigned accuses the above-named accused of the crime of Murder, under Art. 248 of the
Revised Penal Code, as amended by R.A. 7659, committed as follows:

That on or about February 6, 2000, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-mentioned accused, conspiring, confederating together and
helping one another, with treachery and evident premeditation, and with intent to kill, willfully,
unlawfully and feloniously attacked, assaulted and stabbed one Rosemarie B. Tallada with a
bladed weapon, thereby inflicting upon the latter mortal wounds which caused her death.

That the commission of the foregoing offense was attended by the aggravating circumstance of
abuse of superior strength.

CONTRARY TO LAW.[2]

The case against appellants co-accused, Joselito Pacot, was provisionally dismissed for lack
of sufficient evidence to identify him with certainty.
Appellant was arraigned on February 21, 2001 and, assisted by counsel, pleaded not guilty.
Pre-trial was conducted on March 1, 2001 and trial ensued thereafter.
To establish appellants guilt, the prosecution presented the following witnesses: Charlita
Tallada, the victims mother; Patricia Turlao, the victims aunt; appellant Dacillos neighbors,
Jovelyn Dagmil, Augusto Cesar Arara, Roche Abregon, Resna Abregon, Allan Castanares,
Jupiter Campaner; police officers SPO2 Rodolfo Taburda and SPO1 Avelino Alcobus, and
medico-legal officer Dr. Danilo P. Ledesma.
The facts, as established by the prosecution witnesses collective testimonies, follow.
The victim, seventeen-year-old Rosemarie B. Tallada, was last seen alive at dusk on
February 6, 2000, on the bridge near appellants house at Purok No. 3, New Society Village,
Ilang, Davao City.
Around 7:45 p.m. that evening, witness Jovelyn Dagmil, who was living with her aunt in the
house adjacent to appellants, was looking for her cousin when she saw the victim Rosemarie on
the bridge. Because it was drizzling, she invited Rosemarie inside their house but the latter
declined and told her she was waiting for someone.[3]
After a while, Jovelyn heard a man inside appellants house calling Psst, psst . . . Thinking
the call was meant for her, she turned but instead saw Rosemarie walking towards and entering
appellants house.[4]

176
 Not long after Rosemarie went inside the house, a struggle was heard therein. Witnesses
Roche and Resna Abregon, who were in the adjacent house singing with a karaoke machine,
suddenly felt the floor shaking as if a scuffle was going on at the other side of the wall. The
houses were built on stilts above the seashore, adjoining one another with mere wooden
partitions in between. Roche Abregon peeped through a hole on the wall and saw appellant and
another man grappling with a woman who was gagged with a handkerchief.[5] When Roche saw
appellant choking the woman, she informed her aunt about the commotion in appellants house
but the aunt brushed it aside as a simple family quarrel.[6] For a while they heard the sound of a
woman being beaten up. Then everything became quiet. Later that evening, they saw appellant
leaving his house.[7]
The following day, February 7, 2000, at around 8:00 a.m., appellant was seen entering his
house carrying lumber and screen.[8] He was observed going in and out of his house several
times, each time carefully locking the gate as he left.[9] At around 9:00 a.m., appellant was seen
with ready-mixed cement in a plastic pail and, when asked what he was going to do with the
cement, replied that it was for the sink he was constructing.[10]
Later, appellant entrusted a bag of womans personal belongings to barangay tanod Allan
Castaares and told the latter that it belonged to his woman companion. He allegedly could not
bring it home because his wife might see them.[11]
By February 11, 2000, neighbors started smelling the rotten odor of Rosemaries already
decomposing body.[12]
At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells
under appellants house when they saw droplets of blood and pus dripping from appellants
comfort room. They immediately reported it to their aunt who in turn instructed her husband to
get a stick and poke the sacks covering the comfort room. However, the husband instead climbed
up the house and was greeted by the stink emanating from the corner where he saw a tomb-like
structure. They immediately reported the matter to barangay officials who called the police.[13]
At about 10:00 p.m., policemen arrived at appellants house, accompanied by his wife, and
forcibly opened the lock. They proceeded to where the tomb was located.
When cracked open, the tomb revealed the decomposing body of a woman.[14]
The corpse was brought to the Rivera Funeral Parlor where it was identified by the victims
mother Charlita Tallada and aunt Patricia Turlao as that of Rosemarie, through the keloid scar on
her forearm.
Dr. Danilo Ledesma conducted an autopsy on Rosemaries remains. His necropsy report
revealed that Rosemarie died from a stab wound in the abdomen. The report further disclosed
that she suffered contusions in the anterior chest wall and her right hand; an incised wound on
her left middle finger; a stab wound on the left side of the face and fractures on the 2nd, 3rd, 4th,
5th, 6th and 7th ribs on her side.[15]
Dr. Ledesma testified that the wounds suffered by Rosemarie indicated that she put up a
struggle and the wounds were inflicted before her death.[16]
In his defense, appellant admitted complicity in the crime but minimized his participation.
Appellant alleged that he only held down Rosemaries legs to prevent her from struggling and,
after the latter was killed by another man he identified as Joselito Pacot, he encased the corpse in
cement.
He claimed that Pacot, a co-worker at Davao Union Cement Corporation (DUCC), was
looking for a house where he and his girlfriend Rosemarie could spend the night. He offered his
brothers house which was under his care. In the evening of February 6, 2000, he and Joselito
Pacot brought Rosemarie to the house at Purok No. 3, New Society Village, Ilang, Davao City.
After accompanying the couple there, he went home to take supper. Later that evening, he
returned to the house with the bottle of Sprite Pacot had ordered. When he arrived, Pacot and
Rosemarie were already grappling with each other and Pacot was strangling the girl. He told
Pacot to stop but instead of heeding him, the latter ordered him to close the door. Pacot told

177
appellant that he was going to be implicated just the same so he closed the door as ordered and
helped Pacot (hold) the feet of the woman as her feet kept hitting the walls.[17]
The two men stopped only when Rosemarie was already motionless. Pacot wanted to dump
the body into the sea but appellant told him it was low tide. Appellant then suggested that they
entomb the body in cement for which Pacot gave appellant P500.
Pacot left the house at dawn the following day, February 7, 2000. At past 10:00 a.m.,
appellant brought the concrete mixture and cast the dead body in cement. After finishing the job
in the afternoon of that day, appellant reported for work at DUCC.
When the body was discovered in the evening of February 11, 2000, appellant immediately
left for Cebu City, arriving there the next day, February 12, 2000. He stayed in Cebu City until
his arrest the following year.
On May 31, 2001, the trial court rendered judgment finding appellant guilty of murder and
imposed upon him the supreme penalty of death:

WHEREFORE, this Court finds the accused Francisco Dacillo GUILTY beyond reasonable
doubt of the crime of MURDER for the death of Rosemarie Tallada, as defined and penalized
under Art. 248 of the Revised Penal Code, as amended. Considering the aggravating
circumstance of recidivism with no mitigating circumstance to offset the same, he is hereby
sentenced to the extreme penalty of DEATH,

He is further ordered to indemnify the heirs of the offended party in the amount of P50,000.00,
plus the sum of P50,000.00 as moral damages, and the sum of P50,000.00 as exemplary
damages.

His immediate confinement to the national penitentiary is hereby ordered.

Costs de oficio.

SO ORDERED.[18]

Thus, this automatic review.

In his brief, appellant raises the following errors allegedly committed by the trial court:
I

THE COURT A QUO GRAVELY ERRED IN FINDING THE APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN AWARDING THE HEIRS OF THE

OFFENDED PARTY THE AMOUNT OF PHP50,000.00, WHICH APPEARS AS PAYMENT
FOR ACTUAL DAMAGES.[19]

Appellant admitted that he had a hand in the killing of Rosemarie but attempted to
downgrade his participation in the crime by claiming he only held Rosemaries legs as Pacot was
strangulating her. The rule is that any admission made by a party in the course of the proceedings
in the same case does not require proof to hold him liable therefor. Such admission may be
contradicted only by showing that it was made through palpable mistake or no such admission
was in fact made. There was never any such disclaimer by appellant.
Moreover, despite appellants self-serving, exculpatory statement limiting his involvement in
the crime, all circumstances pointed to his guilt. His declaration faltered in the face of the
testimonies of eyewitnesses positively identifying him as one of the two men who were with
Rosemarie when she was killed. Witness Roche Abregon pointed to appellant as the one who

178
strangled Rosemarie. He was established to be inside the house at the time the witnesses heard a
woman being battered. Thus, assuming for the sake of argument that Pacot was the mastermind,
appellants admission that he participated in its commission by holding Rosemaries legs made
him a principal by direct participation.
Two or more persons taking part in the commission of a crime are considered principals by
direct participation if the following requisites are present:
1. they participated in the criminal resolution and
2. they carried out their plan and personally took part in its execution by acts which directly
tended to the same end.[20]
Both requisites were met in this case. Two or more persons are said to have participated in
the criminal resolution when they were in conspiracy at the time of the commission of the crime.
To establish conspiracy, it is not essential that there be proof of the previous agreement and
decision to commit the crime, it being sufficient that the malefactors acted in concert pursuant to
the same objective.[21]
The prosecution was able to prove appellants participation in the criminal resolve by his
own admission that, right after he was told by Pacot to close the door, he held down Rosemaries
legs. He was pinpointed as the one who throttled the victim. He admitted that they only stopped
when they were sure that Rosemarie was already dead. The two men planned how to dispose of
the victims body; it was in fact appellants idea to pour concrete on the body, prevailing over
Pacots suggestion to just dump the body into the sea. It was appellant himself who encased the
body in cement and made sure that there were no leaks from which foul odor could emanate. He
was a conspirator in the killing and, whether or not he himself did the strangling or the stabbing,
he was also liable for the acts of the other accused.
It is well-settled that a person may be convicted for the criminal act of another where,
between them, there is conspiracy or unity of purpose and intention in the commission of the
crime charged.[22] Conspiracy need not be proved by direct evidence of prior agreement on the
commission of the crime as the same can be inferred from the conduct of the accused before,
during, and after the commission of the crime showing that they acted in unison with each other
pursuant to a common purpose or design.[23]
We are convinced beyond doubt of the joint and concerted effort between appellant and the
man he identified as Pacot in the killing of Rosemarie.
Appellant likewise contends that the trial court erred in ruling that the presence of the
aggravating circumstance of abuse of superior strength qualified the killing to murder. He
contends that the qualifying circumstance of abuse of superior strength was not specifically
alleged in the information. Nothing can be farther from the truth. A cursory reading of the
information reveals that appellant was sufficiently informed of the charges against him,
including the use of superior strength in killing the hapless and defenseless female victim.
The aggravating circumstance of abuse of superior strength necessitates a showing of the
relative disparity in the physical characteristics of the aggressor and the victim such as age,
gender, physical size and strength. We agree with the trial court that the killing of Rosemarie was
committed with abuse of superior strength. As found by the court a quo, two grown-up men
against a young fragile woman whose ability to defend herself had been effectively restrained
revealed a shocking inequality of physical strength. The victim was much weaker in constitution
and could not have possibly defended herself from her stronger assailants.[24] Such disparity was
manifest in the contusions in the chest and hands, wounds on the fingers, a stab wound on the left
side of the face and multiple fractures in the ribs of the victim.[25] The abuse of superior strength
was obvious in the way Rosemarie was mercilessly beaten to a pulp.
The killing of Rosemarie was thus correctly qualified to murder by the abuse of superior
strength, a circumstance specifically pleaded in the information and proved beyond reasonable
doubt.

179
 The Court, however, finds that the trial court erred in imposing the death penalty on the ground that appellant
admitted during re-cross examination that he had a prior conviction for the death of his former live-in partner. The
fact that appellant was a recidivist was appreciated by the trial court as a generic aggravating circumstance which
increased the imposable penalty from reclusion perpetua to death.
In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information
and to attach certified true copies of the sentences previously meted out to the accused.[26] This is in accord with
Rule 110, Section 8 of the Revised Rules of Criminal Procedure which states:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it. (Emphasis supplied)

The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be
appreciated against appellant. Hence the imposable penalty should be reduced to reclusion perpetua.
Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount
was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out by the
Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to compensate for the
death of the victim which prevailing jurisprudence fixes at P50,000.[27] The award of such indemnity requires no
proof other than the death of the victim and the accuseds responsibility therefor. [28]
The award of P50,000 as moral damages is proper, supported as it was by the testimony of Charlita Tallada,
the victims mother, that Rosemaries death caused her immeasurable pain. [29]
In addition, the Court awards P25,000 in temperate damages, said amount being awarded in homicide or
murder cases when no evidence of burial and funeral expenses is presented in the trial court. [30]
With regard to the award of exemplary damages, the Civil Code of the Philippines provides:

ART. 2229. Exemplary or corrective damages are imposed, by way of example of correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime
was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and
shall be paid to the offended party.

In People vs. Catubig,[31] we explained that:

The term aggravating circumstances used by the Civil Code, the law not having specified otherwise, is to be
understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public
as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is
addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional
damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the
offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike
the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily,
intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages
to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is
qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only
be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect
of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an
award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.

Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence
of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also justified
under Art. 2229 of the Civil Code in order to set an example for the public good. [32] For this purpose, we believe that
the amount of P25,000 may be appropriately awarded.
WHEREFORE, the assailed judgment in Criminal Case No. 45,283-2000 of the Regional Trial Court of
Davao City, Branch 31, is hereby AFFIRMED with MODIFICATION. Appellant Francisco Dacillo y
Timtim alias Dodoy is declared guilty beyond reasonable doubt of murder as defined and penalized under Article
248 of the Revised Penal Code. There being neither aggravating nor mitigating circumstances, appellant is hereby
sentenced to reclusion perpetua and is further ordered to indemnify the heirs of Rosemarie Tallada the sum
of P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary
damages.
Costs de oficio.
SO ORDERED.

180
 [G.R. No. 134266. September 15, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELENCIO BALI-

BALITA, accused-appellant.

DECISION
GONZAGA-REYES, J.:

On September 1, 1997, Ella Magdasoc y Carbona, 11 years of age, assisted by her sister,
filed a complaint for rape against Melencio Bali-balita, the common-law husband of her mother,
as follows:

The undersigned accuses MELENCIO BALI-BALITA, common law husband of the

complainants mother, of the crime of Rape, committed as follows:

That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said accused by
means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously
undressing the undersigned, a minor, 11 years of age, and at knife point inserted his fingers at her
private part, and thereafter have carnal knowledge with the undersigned complainant against her
will and without her consent.

CONTRARY LAW.[1]

The accused assisted by counsel de oficio entered a plea of not guilty upon arraignment on
September 22, 1997.
The evidence for the prosecution consists of the testimony of the private complainant Ella,
the medico legal officer, Dr. Ma. Cristina Freyra, and the sister of the complainant, Miriam
Gozun y Carbona.
The trial court summarized the prosecutions evidence as follows:

Ella Magdasoc, the private complainant, was an eleven year old out-of-school youth who resided
at Phase 2, Payatas B, Quezon City at the time of the incident. The accused, Melencio Bali-
Balita, on the other hand, also resided at the same address being the live-in partner of Retilla
Bali-Balita, the private complainants mother.

On August 26, 1997, Ella and her younger siblings were inside their house in Payatas, Quezon
City together with the accused. After eating, they were about to go to sleep when the accused
told Ella to go inside the room of her mother who was not at home at that time. The accused was
already inside the same room when Ella entered. The accused then ordered her to remove her
clothes, a pair of shorts and a blouse, and then to get on the bed. When Ella defied the order of
the accused, the latter removed her shorts and underwear, after which he himself undressed. The
accused told Ella to lie down on the bed and thereafter he went on top of her. Ella then started
crying so the accused told her to get up and poked a knife at her. The accused inserted his finger
into Ellas private organ and after that he inserted his private organ into hers. Ella cried as she felt
pain but the accused told her not to make noise. The accused then ordered her to bend her back
facing him and then placed himself on top of her. Ella told the accused that she had to urinate
and the accused allowed her to do so but ordered her to return afterwards. After urinating, Ella
did not return to her mothers room anymore and instead went to her room to sleep. The accused
called her back but she did not heed his call.

After the incident, Ella went to the house of her sister, Miriam Gozun y Carbona, and told the
latter what happened to her. Together, they reported the matter to their mother, Retila Bali-
Balita, who, however, found Ellas story impossible. As their mother was not interested in
pursuing the case against her live-in partner, Ella and Miriam went to the Police Station where
181
they gave statements to the police (Exhs. D to D-2 and Exhs. F to F-1) pointing to the accused as
the one who abused Ella. The accused was later apprehended by the police and a complaint,
docketed as Criminal Case No. 97-72798 (Exhs. E to E-2), was filed against him.

At the police station, Ella Magdasoc, the private complainant was referred to the PNP Crime
Laboratory Services for laboratory/medico-legal examination. Upon receipt of the request for
medico-legal examination (Exh. A to A-1 and the consent of Ella thereto, Dr. Ma. Cristina
Freyra, medico-legal officer of the PNP Crime Laboratory Services, initially conducted an
interview on the victim (Exh. B). Thereafter, Dr. Freyra conducted a physical/genital
examination on the person of Ella, the findings of which are embodied in Medico-Legal Report
No. M-1237-97 (Exhs. C to C-3). The pertinent findings thereof are quoted as follows:

xxx xxx xxx

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly developed, fairly nourished and coherent female subject. Breasts are
undeveloped. Abdomen is flat and soft.

GENITAL:

There is absence of pubic hair. Labia majora are full, convex and coaptated with congested and
abraded labia minora presenting in between. On separating the same disclosed an abraded
posterior fourchette and an elastic, fleshy type hymen with deep healed lacerations at 3 and 9
oclock position. External vaginal orifice admits the smallest finger of the examiner.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of recent application of any form of trauma at the time of
examination.

REMARKS:

Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.

xxx xxx xxx

Dr. Freyra further testified that in relation to the genital findings upon the person of the private
complainant, the lacerations inflicted on her private parts were healed lacerations, which means
that they were inflicted more than seven days prior to the examination.[2]

Melencio Bali-balita denied the accusation. He testified that:

He knew the private complainant in this case, the latter being the daughter of his live-in partner,
Retilla Bali-Balita. The accused denied the accusation that he raped Ella at around 3 oclock in
the morning on August 26, 1997 as he alleged that he was at Phase I, Payatas V, Upper Payatas,
Quezon City attending the wake of a friend at around 9 oclock in the evening on August 25,
1997 and stayed there together with Retilla Bali-balita until around 5 oclock in the morning on
August 26, 1997. When the accused and Retilla Bali-balita arrived home, Retillas children,
including the private complainant, were still asleep. On this account, Retilla Bali-balita and
Virginia Agatep corroborated the testimony of the accused that he was not at home at the time of
the incident.Further, Retilla Bali-Balita testified that she was not consulted when the case was
filed against the accused and that in fact, she learned of it only at around 9 oclock in the evening

182
of August 26, 1997. She also testified that the accused and her children, including private
complainant, had a fine relationship.[3]

The trial court held that the crime of statutory rape was established, as Ella was below
twelve years of age at the time she was raped. The testimony of the victim that the private organ
of the accused penetrated her private part was corroborated by the findings of the doctor that Ella
was no longer a virgin, and that there was reddening, discoloration, and abrasion on the labia
majora and minora of the private organ of the victim. The court ruled that the defense of denial
and alibi raised by the accused cannot prevail over the positive assertion and identification of the
accused by the victim. Considering that the accused is the common law spouse of the mother of
the victim and that the victim was less than twelve (12) years of age at the time of the incident,
the court imposed the maximum penalty of death:

WHEREFORE, judgment is hereby rendered finding the accused, Melencio Bali-balita,

GUILTY beyond reasonable doubt of the crime of consummated rape defined in and penalized
by Article 335 of the Revised Penal Code, as amended, and is hereby sentenced to suffer the
penalty of DEATH. The accused is ordered to pay the victim Ella Magdasoc, the amount
of P50,000.00 by way of moral damages, and to pay the costs.

IT IS SO ORDERED.[4]

Accused-appellant raises a lone assignment of error in his brief namely:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.[5]

Accused-appellant alleges that the testimony of the medico legal officer repudiates and
contradicts the testimony of private complainant that accused-appellant had sexual congress with
her and that it was so painful that she felt like her private organ was being torn. The medico legal
officer categorically stated that there were no fresh lacerations and that the private part of the
complainant could not accommodate an erect penis, and it is highly improbable that the crime of
rape was committed on August 26, 1997.Moreover, the demeanor of Ella after the alleged
incident, i.e. that she simply excused herself to urinate and thereafter slept, is contrary to human
nature. Lastly, the accused-appellant claims it is perplexing that Ellas own mother testified in his
favor by corroborating his testimony that he was attending the wake of a friend at the time of the
alleged incident.
The Solicitor General pleads that the guilt of the accused has been proved beyond
reasonable doubt and prays for affirmance of the decision with modification of the award of
damages from P50,000.00 to P75,000.00.
The Reply Brief filed by accused-appellant reiterates the same arguments pleaded to seek an
acquittal. It is further contended that even assuming that the guilt of the accused-appellant had
been proven beyond reasonable doubt, the accused-appellant cannot be meted the extreme
penalty of death in view of the fact that the information failed to allege the relationship of the
accused-appellant to the victim as a qualifying circumstance. Thus the accused-appellant was not
properly informed that he is being accused of qualified rape.
We affirm the judgment finding that the guilt of the accused-appellant has been proven
beyond reasonable doubt, but hereby reduce the penalty from death to reclusion perpetua in line
with established precedents.
The testimony of Ella relating the sexual assault was categorical and clear:
PROS (to the witness)
Now Ella, do you recall on August 26, 1997 early morning, where were you at that time?
A: I was in our house, sir.

183
Q: Where is your house located?
A: In Payatas, Quezon City.
Q: Now will you please tell the Court if there was an unusual incident that happened to you
on that day?
A: Yes, sir.
Q: Tell the Court what was that unusual incident?
A: After eating dinner where (sic) about to go to sleep and he told me not to sleep yet, sir.
Q: Now after that Ella, what happened next, if any?
A: He told me to get inside the room of my mother, sir.
Q: By the way Mr. (sic) witness, who were with you inside that house at that time?
A: My younger siblings, sir.
Q: How many siblings do you have?
A: Two (2), sir.
Q: Could you tell us the names of your siblings?
A: I am referring to my brothers Julius and Jordan, sir.
Q: After you were told to go to the room of your mother, where was the accused then?
A: He was also about to get inside the room, sir.
Q: Were you able to enter the room?
A: Yes, sir.
Q: By the way Madam witness, where was your mother then when you were told by the
accused to enter your rooms mother (sic)?
A: She was not at home during that time, sir.
Q: Now, while you were inside the room, can you tell us Madam witness what happened next,
if any?
A: He ordered me to remove my clothes, sir.
Q: Tell us Ella, what were you wearing at that time?
A: I was wearing a short and a blouse, sir.
Q: When you were told by Melencio Bali-Balita to undress, did you heed his order?
A: No, sir.
Q: When you defy (sic) the order of the accused, what happened next if any?
A: He was the one who remove (sic) my short and my panty, sir.
Q: After that Madam witness, what happened if any?
A: He also undress, (sic) sir.
Q: After the accused undress (sic) himself, what happened next, if any?
A: He told me to lie down, sir.
Q: Where?
A: At the bed of my mother, sir.
Q: Were you able to lie down on top of the bed?
A: Yes, sir.

184
Q: Now after that, when you were lying down on top of the bed, what happened next, if any?
A: He went on top of me, sir.
Q: When Melencio Bali-balita the accused went on top of you, what did you do?
A: I cried, sir.
Q: And what was the reaction of the accused when you were crying then?
A: He told me to get up and after that he poke a knife at me.
Q: And then after that Ella, what happened if any?
COURT:
Put on record that the witness is crying.
A: He inserted his private organ.
ATTY. STA. ANA: (to the Court)
Your Honor, we will move to strike out the answer considering that the information says it
was not the private organ it was the finger.
COURT:
Put on record the observation of counsel of the accused.
PROS: (to the Witness)
Now before the accused inserted his private organ, what did the accused do to you, if any?
A: He inserted his finger into my private organ, sir.
Q: And what did you tell Ella at that time when the accused was inserting his finger inside
your private part, if there was any?
A: I felt pain, sir.
Q: Now when Melencio went on top of you and inserted his private part on you claimed, what
did you feel then?
A: It was painful, as if it was being torn.
Q: Now when you were feeling pain, what did you do if any?
A: I was crying because it was really painful, sir.
Q: And how about the accused Melencio Bali-Balita, what was his reaction when you were
crying then?
A: He told me not to make a noise, sir.
Q: Now Ella, after that what happened next if any?
A: He ordered me to bend my back facing him. (pinatuwad niya ako)
Q: After you were told to bend and turn your back in front of him, what did Melencio Bali-
Balita do to you if there was any?
A: He place himself on top of me, sir.
Q: After that Ella, what happened next if any?
A: After that something came out from his private organ something that was sticky.
Q: Now after that Ella, what happened next, if any?
A: I told him that I am going to urinate, sir.
Q: Did Melencio Bali-Balita allow you to urinate?

185
 A: Yes, sir, he even ordered me to immediately come back, sir.
Q: And were you able to urinate?
A: Yes, sir.
Q: Now did you come back to Melencio Bali-Balita after you were told by him to urinate?
A: No, sir, I went back to my room, sir.
Q: And who were there sleeping at that time when you went back to your room?
A: My two (2) brothers , sir.
Q: How about Melencio Bali-Balita, where was he at that time, if you know?
A: He was there inside the room of my mother, sir.
Q: After that Ms. Witness, what happened next, if any?
A: He called me, sir.
Q: And did you heed to the call of Melencio Bali-Balita?
A: No, sir, because I told him that I was going to sleep, sir.
Q: Then after that what happened next if any?
A: He told me to sleep inside the room of my mother and he will transfer me from our room
to my mothers room, sir.
Q: Was Melencio Bali-Balita able to transfer you from your room to your mothers room?
A: No, sir.
Q: Now after that Madam witness, what did you do, if any?
A: I did not return, sir.[6]
We do not find the above testimony as inconsistent with or contradictory to the medico-legal
findings. Dr. Cristina Freyra testified on re-direct examination in reply to the questions
propounded by the court as follows:
COURT:
So, the lacerations that you found could have been inflicted on some other time, date?
A: Yes, your honor.
Q: When you examined the victim, the victim was no longer a virgin as she had lacerations on
the hymen?
A: Yes, your honor.
Q: Was there a sign of reddening or discoloration of the labia minora of the private organ?
A: Labia Minora is congested and so is the fourchette portion.
Q: In laymans language what do you mean?
A: There is reddening of the labia minora and the abrasion which means that the superficial
ephethelial layer of the skin is removed.
Q: There was then discoloration?
A: Yes, your honor.
Q: What might have caused the discoloration or abrasion?
A: The friction brought about by rubbing of a hard blunt object.[7]
Although Dr. Freyra testified that the lacerations found on Ellas private part were healed
lacerations, which means that they were inflicted more than seven days prior to the examination

186
conducted, this finding does not negate the commission of rape on August 26, 1997. As correctly
pointed out by the trial court hymenal lacerations which are usually inflicted when there is
complete penetration are not essential in establishing the crime of rape as it is enough that a
slight penetration or entry of the penis into the lips of the vagina takes place. The conclusion is in
line with jurisprudence to the effect that complete penetration of the penis is not essential to
consummate rape; what is material is that there is the introduction of the male organ into the
labia of the pudendum, no matter how slight.[8]
Thus, in the case of People vs. Campuhan,[9] this Court stated:

We have said often enough that in concluding that carnal knowledge took place, full penetration
of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the
mere touching of the external genitalia by the penis capable of consummating the sexual act is
sufficient to constitute carnal knowledge. But the act of touching should be understood here as
inherently part of the entry of the penis into the labias of the female organ and not mere touching
alone of the mons pubis or the pudendum.

In People vs. Dela Pea we clarified that the decisions finding a case for rape even if the attackers
penis merely touched the external portions of the female genitalia were made in the context of
the presence or existence of an erect penis capable of full penetration. Where the accused failed
to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into
the victims vagina, the Court nonetheless held that rape was consummated on the basis of the
victims testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina
and in all likelihood reached the labia of the pudendum as the victim felt his organ on the lips of
her vulva, or that the penis of the accused touched the middle part of her vagina. Thus, touching
when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the
mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated rape. As the labias, which are required
to be touched by the penis, are by their natural situs or location beneath the mons pubis or the
vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.

The fact that Ella admitted that after she was asked by accused-appellant to return after she
went out to urinate, but she did not, and thereafter went to her room to sleep, does not prove that
nothing happened. Ella was barely at the threshold of puberty when the incident happened and
the accused was the live-in partner of her mother, and therefore exercised some degree of moral
ascendancy over her. There is no typical reaction or norm of behavior that ensue forthwith or
later from victims of rape.[10] It is not proper to judge the actions of children who have undergone
traumatic experience by the norms of behavior expected under the circumstances from mature
persons.[11] The workings of the human mind when placed under emotional stress are
unpredictable and that people react differently.[12]
Time and again, this Court has ruled that it is unlikely for a young girl like the complainant
and her family to impute the crime of rape to their own blood relative and face social humiliation
if not to vindicate the honor of the complainant.[13] In rape cases, when a woman says that she
has been raped, she says in effect all that is necessary to show that rape has been committed, and
if her testimony meets the test of credibility, the accused may be convicted on the basis
thereof. It is rather inconceivable that a daughter should concoct a story that she was repeatedly
raped by her father when family honor is at stake, not to mention that this would mean sending
her father to jail.[14] The testimony of rape victims who are of tender age are credible. The
revelation of an innocent child whose chastity was abused deserves full credit, as the willingness
of the complainant to face police investigation and to undergo the trouble and humiliation of a
public trial is eloquent testimony of the truth of her complaint.[15] The fact that the mother of Ella
did not believe her daughters accusation and instead corroborated the testimony of the accused-
appellant that he attended a wake at the date and time of the incident in question, does not

187
establish that Ella concocted the story about the sexual assault. It is unthinkable that a young girl
like Ella would fabricate a story that would destroy her reputation and her family life and endure
the ordeal of a trial were it not for the purpose of seeking redress. No evidence was presented to
show any motive on the part of Ella to falsely testify against the accused-appellant.
We therefore find no reason to disturb or set aside the trial courts findings supporting the
judgment of conviction. Conclusions as to the credibility of witness, particularly in rape cases,
lie with the sound judgment of the court, and will be respected on appeal, unless there appears in
the record some fact or circumstance which the trial court overlooked or misappreciated and
which if properly considered, would have altered the results of the case.[16]
The penalty imposed however, must be reduced to reclusion perpetua.
Under Article 335 of the Revised Penal Code as amended by Section 11 of R. A. 7659, the
concurrence of the minority of the victim and her relationship to the offender is a special
qualifying circumstance. As such their attendance in the commission of the crime must be
properly pleaded in the information because it changes the nature of the offense and, if proven
beyond reasonable doubt, increases the penalty by one degree.[17]
In the case before us, the victim herself testified that she was born on April 12, 1987 and
that she was raped by the accused on August 26, 1997. [18] She was only ten years and four
months old at the time of the rape. We note that the victim testified in court in December 1997 or
about four months after the rape, and it would not have been difficult for the trial court to take
judicial notice that the victim is under 18 years of age.[19]
We find, however, that the filiation of the appellant to the victim was not properly alleged in
the information. Sections 7and 9 Rule 110 of the Revised Rules on Criminal Procedure states:

Sec. 7 Name of the accused.- A complaint or information must state the name and surname of the
accused or any appellation or nickname by which he has been or is known, or if his name cannot
be discovered he must be described under a fictitious name with a statement that his true name is
unknown.

If in the course of the proceeding the true name of he accused is disclosed b him, or appears in
some other manner to the court, the true name shall be inserted in the complaint or information
and record.

Sec. 9. Cause of accusation.-The acts or omission complained of as constituting the offense must
be stated in ordinary and concise language without repetition, not necessarily in terms of the
statute defining the offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged and enable the court to pronounce
judgment.

The Information upon which the appellant was charged states as follows:

The undersigned accuses MELENCIO BALI-BALITA, common law husband of the

complainants mother, of the crime of Rape, committed as follows:

That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said accused by
means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously
undressing the undersigned, a minor, 11 years of age, and at knife point inserted his fingers at her
private part, and thereafter have carnal knowledge with the undersigned complainant against her
will and without her consent.

CONTRARY LAW.[20]

It appears to us that the relationship of the accused to the victim is stated as a more detailed
description of the identity of the party who committed the crime charged. Such relationship is not
stated in the cause of the accusation or in the narration of the act or omissions constituting the

188
offense. Every element of the offense must be alleged and if the accused is being charged of a
crime in its qualified form the qualifying circumstance must likewise be stated with certainty to
enable a person of common understanding to be apprised of the acts or omissions of which he is
charged, although the legal designation of the crime committed need not be specifically
stated. Due process requires that the accused is duly informed of the nature and the cause of the
accusation against him. Such a requirement is primarily intended to enable the accused to
suitably prepare his defense as he is presumed innocent and of no independent knowledge of the
acts constitutive of the crime charged against him.[21] What is controlling is the description of the
criminal act and not, as in this case, the description of the identity of the accused. It has been
held that the real nature of the criminal charge is determined not from the caption or the
preamble of the information nor from the specification of the provision of law alleged to have
been violated .. But from the actual recital of the facts as alleged in the body of the
information.[22] In this case the information upon which the appellant was arraigned does not
state in the specification of the acts constitutive of the offense that he is charged as the live-in
partner of the mother of the alleged victim. This insufficiency prevents a judgment of conviction
for qualified rape and thus, the death penalty cannot be imposed. The victim being under 12
years old at the time of the commission of the crime, the crime committed is statutory rape and
the proper penalty under Art 335 of the Revised Penal Code, as amended by R. A. 7659,
is reclusion perpetua.[23]
The victim is entitled to indemnity of P50,000.00 in line with prevailing jurisprudence,[24] in
addition to moral damages in the amount of P50,000.00. This is separate and distinct from the
award of moral damages which is automatically granted in rape cases.[25]
WHEREFORE, the decision appealed from is affirmed insofar as it finds the accused-
appellant Melencio Bali-balita guilty of the crime of rape with the modification that the penalty
imposed is reduced to reclusion perpetua, and the accused-appellant is directed to pay the
victim P50,000.00 by way of indemnity, in addition to P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima,
Buena, and De Leon, JJ., concur.
Bellosillo, J., see separate opinion.
Quisumbing, and Pardo, JJ., concurs in the separate opinion of J. Bellosillo.
Ynares-Santiago, J., on leave.

SEPARATE OPINION

BELLOSILLO, J.:

I am extremely elated that a human life is saved in this case, as the supreme penalty of death
is not imposed. Thus, I concur with the majority that the accused must only be sentenced
to reclusion perpetua. While I am convinced that the qualifying circumstances
of minority and filiation are duly alleged in the Information, the death penalty, nonetheless, may
not be imposed in view of the failure of the prosecution to prove the minority of the complaining
witness beyond reasonable doubt.
Apparently, the ponencia relies merely on the testimonies of the complaining witness and
her half-sister in concluding that the age of the victim was proved beyond reasonable
doubt. Corollarily, it ruled that there being no serious doubt as to the age of the victim, the
presentation of the victims birth certificate or other official document to prove her real
age1 becomes unnecessary. For one thing, there being no serious doubt cannot be equated with
nor be a substitute for the requisite proof beyond reasonable doubt.
The Testimonies of the complaining witness and her half-sister were far from being
consistent with each other. The former asserted that she was 11 years old when raped while her

189
half-sister testified that the victim was only 10 years old. In her direct examination victim Ella
Magdasoc testified -
Prosecutor: Now Ella, how old are you?
Ella: Eleven (11) years old, sir.
Q: And do you recall your birthday?
A: I was born on April 12, 1987, sir.2
On cross-examination she stated that-
Atty. Sta. Ana: Now, how old are you on August 26, 1997?
A: 10 years old, sir.3
On the other hand, Miriam C. Gozun, the half-sister of the victim, testified in her direct
examination-
Pros. Catubay: Madam witness, do you know Ella Magdasoc?
A: Yes, sir.
Q: Why do you know her?
A: She is my half-sister.
Q: Do you know how old is Ella Magdasoc on August 26, 1997?
A: 11 years old.4
Granting that there was only a 1-year difference in the supposed age of the victim, this
discrepancy should not be taken lightly because the life of the accused-appellant is at stake. No
single independent proof was presented by the prosecution to establish the fact that the
complaining witness was below 18 years at the time of the incident. Although accused-appellant
did not have any occasion to deny or offer any objection to the age of the victim, this did not
excuse the prosecution from discharging its burden of proving the age of the victim beyond
reasonable doubt.
The minority of the victim, as well as the filiation of the contending parties, when properly
alleged in the Information and proved beyond reasonable doubt during the trial, elevates the
crime of simple rape to qualified rape, which merits the imposition of the penalty of death. As
such, nothing but proof beyond reasonable doubt of every factnecessary to constitute the crime
with which an accused is charged must be alleged in the Information and duly established by the
prosecution in order for the extreme penalty to be upheld. Verily, the minority of the victim must
be proved with equal certainty and clearness as the crime itself; otherwise, as held in People v.
Sandrias5 failure to sufficiently establish the victim's age is fatal and consequently bars
conviction for rape in its qualified form.
In People v. Veloso6 the victim was alleged to have been only 9 years of age at the time she
was raped. Although by appearance the victim may have definitely appeared below 18 years, the
trial court did not take judicial notice of the fact that the victim was of tender age. This Court
affirmed the trial court ruling that minority was not proved beyond reasonable doubt. Thus -

The trial court correctly ruled that the prosecution failed to prove the age of the victim other than
through her testimony and that of her father. Thus, in People v. Vargas (257 SCRA 603, 1996), it
was held that:

In the case at bar, however, no birth or baptismal certificate was presented to prove the age of the
victim. Neither was there a showing that said documents were lost or destroyed to justify their
non-presentation. The trial court should not have relied on the testimony of Cornelia as to her
age nor the testimony of her Aunt Margarita Quilang. Both testimonies are hearsay. Nor was it
correct for the trial court to judge the victim's age by considering her appearance.

190
 The minority of the victim must be established beyond reasonable doubt even if uncontested
by the defense. On this issue, this Court ruled in People v. Cula7 --

In the case at bar, the trial court pursuant to Section 11 of Republic Act 7659, imposed the
penalty of death upon accused-appellant Manuel Cula, taking into account the minority of
Maricel as she is said to have been only 16 years old at the time of the rape incident, as well as
the relationship of father and daughter between them. However, in a similar and recent case
(People v. Javier, G.R. No. 126096, July 26, 1999) this Court pronounced:

However it is significant to note that the prosecution failed to present the birth certificate of the
complainant. Although the victim's age was not contested by the defense, proof of age of the
victim is particularly necessary in this case considering that the victim's age which was then 16
years old is just two years less that the majority age of 18. In this age of modernism, there is
hardly any difference between a 16-year old girl and an 18-year old one insofar as physical
features and attributes are concerned. A physically developed 16-year old lass may be mistaken
for an 18-year old young woman, in the same manner that a frail and young looking 18-year old
lady may pass as a 16-year old minor. Thus, it is in this context that independent proof of the
actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the
victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated
in Republic Act No. 7659.

At all events, it is the burden of the prosecution to prove with certainty the fact that the victim
was below 18 when the rape was committed in order to justify the imposition of the death
penalty.The record of the case is bereft of any independent evidence, such as the victim's duly
certified Certificate of Live Birth, accurately showing private complainant's age. The fact that
accused-appellant Manuel has not denied the allegation in the complaint that Maricel was 16
.years old when the crime was committed cannot make up for the failure of the prosecution to
discharge its burden in this regard. Because of this lapse, as well as the corresponding failure of
the trial court to make a categorical finding as to the minority of the victim, we hold that the
qualifying circumstance of minority under Republic Act No. 7659 cannot be appreciated in this
case, and accordingly the death penalty cannot be imposed.

In the instant case, the prosecution utterly failed to discharge its burden of proving beyond
reasonable doubt the minority of the victim. Also, the trial court did not make any categorical
finding that, indeed, the victim was 11 years old at the time of the rape. It merely relied on the
self-serving testimonies of the complaining witness and her half-sister.
Death is a penalty so extreme that it becomes imperative for this Court to calibrate and
weigh every piece of evidence presented with utmost caution. In cases like this, the Court cannot
presume that the victim is as old as she claims to be. For sure, a person's age can be proved by
other extrinsic evidence such as his birth certificate. If the birth certificate cannot be produced,
the reason for its unavailability should be stated and other piece of evidence ought to be
presented to establish the age of the victim. In the instant case, the prosecution did not even
bother to submit complaining witness' birth certificate; neither did it explain its unavailability
and thereafter submit other proof to establish the victim's age.
In recent death penalty cases, this Court has been cautious with its interpretation of the
attendant qualifying circumstances. Thus, if the offender is not a parent, ascendant, step-parent,
guardian or common-law spouse of the mother of the victim, it would not suffice that it is merely
alleged that the offender is a relation. It must be alleged in the Information that he is a relative by
consanguinity or affinity within the third civil degree.8 In People v. Licanda9 the prosecution
merely alleged that accused-appellant was the "natural father of the victim" but did not present
any evidence to show that the victim was indeed accused-appellant's daughter. The relationship
became more suspect as the victim bore a surname different from that of accused-appellant. In
resolving the issue of filiation, this Court ruled that "the problem could have been easily
remedied by the prosecution by presenting Nelita's birth certificate or any other documentary
evidence which shows the name of Nelita's father. The failure of the prosecution to do so should

191
be taken in favor of accused-appellant considering that it has the burden of proving its allegations
especially in a death penalty case where the life of a human being hangs in the balance." 10
The ponencia also posits that the prosecution failed to plead the concurrence of minority and relationship in the
Information. I disagree. The Complaint11 dated 1 September 1997 filed by the complaining witness, which was
treated as the Information by Asst. City Pros. Rolando G. Mislang, reads -

COMPLAINT

The undersigned accuses MELENCIO BALI-BALITA, common law husband of the complainant's mother of the
crime of Rape committed as follows:

That on or about the 26th day of August, 1997 in Quezon City, Philippines, the said accused by means of force and
intimidation, to wit: by then and there willfully, unlawfully and feloniously undressing the undersigned, a minor, 11
years of age, and at knife point inserted his fingers at her private part, and thereafter have carnal knowledge with the
undersigned complainant against her will and without her consent (underscoring supplied) x x x x

(Sgd.) Ella Magdasoc y Carbona

Clearly, the relationship (common-law husband of complainant's mother) and the age of the victim (minor, 11
years of age) were concurrently pleaded in the Complaint/ Information. The ponencia claims that although Melencio
Bali-Balita was mentioned as the common-law husband of complainant's mother in the opening statement of the
Information, the same merely describes his identity and could not be deemed as an allegation of his relationship with
the complainant as the same was not reiterated in the second paragraph thereof.
The reasoning seems flawed. Basically, it is immaterial whether the phrase common-law husband of
complainant's mother is mentioned in the opening paragraph of the Information or in the second paragraph alleging
the acts constituting the crime charged, as either is an integral part thereof. Plainly, the opening paragraph is an
indispensable part of the Complaint/ Information, which normally states the name of the accused. It is not necessary,
much less mandatory, that the name of the accused or his description be stated specifically in the second paragraph
of the Information. Section 6, Rule 110, of the Rules on Criminal Procedure states -

Sec. 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the
accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense; and the place
wherein the offense was committed.

When the offense is committed by more than one person, all of them shall be included in the complaint or
information.

When the second paragraph hereinquoted requires that [w]hen an offense is committed by more than one
person, all of them shall be included in the complaint or information, all these names, which indeed are essential and
indispensable, are stated only in the opening statement and not in the "accusatory" paragraph of the Information,
which simply means that the "opening statement" is an integral part of the Information and may not be taken for
granted as mere descriptive words or phrases.
The Information in the instant case is complete. The name of accused-appellant is stated, among others, so with
his filiation with the complaining witness. In other words, under the herein-quoted provision, it is not required that
the name of the accused be stated in the opening paragraph or in the accusatory portion of the Information. It is
enough that it is so stated under the heading Information. In fact, when Sec. 6 requires that a Complaint or
Information to be sufficient must state the name of the accused and the designation of the offense by the statute,
among others, such name and designation of the offense are only stated in the opening statement immediately
following the heading Complaint or Information, as quoted and aptly shown in this Separate Opinion. In other
words, the filiation of the victim and the accused in the instant case is sufficiently alleged in the Complaint/
Information.
A word more. The ponencia also ruled that "as correctly pointed out by the trial court, hymenal lacerations
which are usually inflicted when there is complete penetration are not essential in establishing the crime of rape as it
is enough that a slight penetration or entry of the penis into the lips of the vagina takes place. To dispel any possible
misunderstanding or confusion, this statement must be properly viewed in light of People v. Campuhan, G.R. No.
129433, 30 March 2000, where this Court discussed quite extensively and differentiated attempted rape from
consummated rape. Therein, the Court explicitly ruled that for rape to be considered consummated it must be
established that the penis penetrated at the very least the labia of the external genitalia, which is actually beneath
the pudendum, hence, the entry or penetration; otherwise, mere touching of the labia will not suffice to constitute
consummated rape.

192
 [G.R. Nos. 146693-94. July 31, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ROLANDO MENDOZA, JR. y DELA

CRUZ, appellant.

DECISION
CARPIO-MORALES, J.:

For automatic review is the joint decision rendered by Branch 45 of the Regional Trial Court
(RTC) of Bais City finding appellant Rolando Mendoza, Jr. guilty of incestuous rape on two
counts and sentencing him in each to suffer the penalty of death and to pay his daughter-victim,
Monaliza Mendoza,[1] P50,000.00 as moral damages and an unspecified amount as exemplary
damages.
The complaints dated August 9, 1996 against appellant, which were treated as two separate
informations after the conduct of preliminary investigation, read as follows:

Criminal Case No. 96-074-B:

COMPLAINT[2]

The undersigned private complainant, MONALIZA MENDOZA,

Filipino, thirteen (13) years old, single and a resident of Barangay Olympia, Bais City,
Philippines, hereby accuses ROLANDO MENDOZA Y DELA CRUZ of the crime of rape,
committed as follows:

That on or about April 2, 1996 at Bais City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, who is the father of the undersigned, by means of
force or intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant against her will.

x x x (Emphasis supplied)

Criminal Case No. 96-075-B:

COMPLAINT[3]

The undersigned private complainant, MONALIZA MENDOZA,

Filipino, thirteen (13) years old, single and a resident of Barangay Olympia, Bais City,
Philippines, hereby accuses ROLANDO MENDOZA Y DELA CRUZ of the crime of rape,
committed as follows:

That on or about May 16, 1996 at Bais City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, who is the father of the undersigned, by means of
force or intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant against her will.

x x x (Emphasis supplied)

Arraigned on December 11, 1996, appellant pleaded not guilty to both charges [4] trial for
which was joint.
Before the start of the pre-trial, the prosecution amended the informations by adding the
word Jr. after appellants surname Mendoza.[5]
At the pre-trial, appellant admitted that he is the father of Monaliza.[6]

193
 Established from the evidence of the prosecution are the following:
At around noon of April 2, 1996, Monaliza, the youngest of three daughters of appellant and
his wife Elpedia, was left alone with appellant at their house at Olympia, Bais City, Monalizas
elder sister Marigilda having earlier gone out to fetch water from a faucet about 1 kilometers
away from their house, while her mother was in Manila where she was working, as was her sister
Brenda, and her brother Reynaldo was in Iloilo. Appellant held Monaliza by the waist and
sucked her nipples. While she struggled to extricate herself, she failed. He then inserted his
forefinger into her vagina which caused her pain. When she inquired why appellant did that to
her, he replied that he was just caressing.
At about midnight also of April 2, 1996, while Monaliza lay asleep on the floor of their
house between her elder sister Marigilda who was 3 meters away from her and appellant who
was a meter away from her, she woke up and found appellant on top of her and kissing her
face. She struggled hard to free herself, but appellant held her tightly and inserted his sex organ
into her vagina and made a push and pull movement. On account of appellants acts, she was in
pain. He warned her, however, not to tell anyone about the incident, otherwise, he would kill
them. Out of fear, she did not tell Marigilda about the incident.
A month and a half after the April 2, 1996 incident or on May 16, 1996, at noontime,
appellant instructed Marigilda to, and the latter did, gather some firewood, leaving him and just
Monaliza inside their house. Appellant soon approached Monaliza, opened her dress, sucked her
nipples, and inserted his penis into her vagina and made a push and pull movement. As in the
previous incident, she struggled to free herself but failed as he held her tightly. She was likewise
in pain and was once again warned not to reveal the incident to anyone on pain of death.
Appellants threats having overpowered her, Monaliza did not inform her mother about the
incidents even after the latter came home from Manila on June 25, 1996 to attend the annual
barangay fiesta.
As Monaliza later was observed to be always drowsy and weak, and her hips were
expanding while her breasts became pronounced, she was prevailed upon by her mother and her
aunt Jane Ya Gen Patio to submit to a medical examination by Dr. Beverly R. Renacia, Medical
Officer V of the Bais City Health Office. Monaliza ultimately revealed to Dr. Renacia, her
mother and aunt Ya Gen that she had been raped by appellant.
The result of the external examination conducted on Monaliza on July 23, 1996 is reflected
on the medical certificate issued by Dr. Renacia[7] who likewise issued another medical
certificate reflecting the following results of the internal examination conducted on July 25,
1996.[8]

I.E. Findings:

- Scarce pubic hair noted on the upper half of the genitalia

- Hymen with healed laceration at 12:00 o clock and 9 oclock positions

- Vagina admits 2 fingers

- Cervix soft, admits 1 finger

- No discharges noted

Pregnancy test done July 29, 1996 yielded a positive result.

Addendum: No physical injuries like bruises or hematoma were noted. (Emphasis supplied)

After the filing of the complaints-informations on August 9, 1996 or on October 29, 1996,
Monaliza gave birth to a baby girl.[9]

194
 Denying the accusations, appellant, a carpenter and a fisherman, claimed as follows:
Sometime on February or March 1996, he noticed a contusion on the left arm of Monaliza,
drawing him to inquire from her what happened, to which she replied that her brother Reynaldo
hit her. Thus informed, appellant got mad at her for not priorly revealing the incident.
A few days later, thinking that Monaliza had influenza, he brought her to the hospital where
she was examined and was given prescription for medicine.
After the lapse of two months or on May 1996, appellant observed that Monaliza was pale
and vomiting. Suspecting that she was pregnant, he inquired if she was, but she did not
answer. He then threatened her that if she was, he would kill her as her pregnancy would bring
shame to the family. He did not, however, write his wife about his suspicions regarding
Monalizas condition as he knew that she would be coming home for the annual barangay fiesta
of Olympia.
While his wife went home for the barangay fiesta, he failed to inform her of his suspicions
about Monalizas pregnancy as he was occupied with the fiesta. It was his wife, however, who
broached to him her own suspicion that Monaliza was pregnant. And his wife brought Monaliza
to a hilot who opined that she was probably pregnant, hence, the latter was brought to the
hospital for medical examination.
On top of appellants denial, he advanced that he could not have raped Monaliza on April 2,
1996 and May 16, 1996 as he was, on the first date with his brother-in-law, one Danny,
constructing a house,[10] while he was working with a certain Kalaw, Danny, and one Ete on the
latter date.[11]
Finding for the prosecution, the trial court convicted appellant of two counts of qualified
rape and sentenced him to death in both cases in its November 17, 2000 Joint Decision, the
dispositive portion of which reads, quoted verbatim:[12]

WHEREFORE, premises considered, this Court finds accused, ROLANDO MENDOZA (sic)
Y DE LA CRUZ guilty for the qualified crime of rape in two (2) counts under Article 335 of the
Revised Penal Code as amended by Sec. 11 of Republic Act No. 7659, and thereby sentences
him to two (2) extreme and supreme penalties of DEATH, and to pay moral damages of
P50,000.00 and exemplary damages to the victim, Mona Liza Mendoza, and to pay
costs. (Emphasis in the original)

Appellant thus assigns as errors of the trial court the following:[13]

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIMES CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.

THE COURT A QUO GRAVELY ERRED IN IMPOSING UPON THE ACCUSED-

APPELLANT THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF
THE PROSECUTION TO ALLEGE THE MINORITY OF THE PRIVATE
COMPLAINANT IN THE ACCUSATORY PORTION OF THE COMPLAINT.

Maintaining his innocence, appellant attributes ill-motive to Monalizas grandmother[14] who,

by his claim, sometimes got angry at him for going home late, she telling him that there are some
young men or boys who frequented our place.[15]
Appellant attributes ill-motive too to Monaliza arising from his threats to kill her if it turned
out that she was indeed pregnant.[16]
The defense counsel, during the cross examination of Monaliza, attempted to establish that
no rape on April 2, 1996 could have possibly taken place because of Marigildas presence.[17]

195
 Parental punishment, however, does not suffice to prod a daughter, who is of tender age, to
falsely accuse her father of rape. [18] It takes depravity for a young girl to concoct a story of
defloration against her putative father, unless she had really been aggrieved.[19]
And it is hard to believe that a grandmother would expose her granddaughter, a young and
innocent girl, to the humiliation and stigma of a rape trial simply to get back at the accused
unless the rape charges were true.[20]
As for the presence of Marigilda during the April 2, 1996 incident, it is not impossible, nor
incredible, for her to have been in deep slumber while the sexual assault on Monaliza was taking
place.[21] Lust, after all, does not respect either time or place,[22] nor the presence of people
nearby.[23]
As for the defense counsels attempt to establish during the cross-examination of Dr. Renacia
that appellant could not have raped Monaliza on April 2, 1996 and May 16, 1996, given
Monalizas giving birth to a baby girl on October 29, 1996,[24] after the lapse of less than seven
(7) months from the first rape incident,[25] the same fails.
The record does not disclose any claim by Monaliza that it was on account of the rape
subject of the first information that she became pregnant. As Dr. Renacia recalled on direct
examination, Monaliza had revealed to her that she had been sexually abused by her father
several times.
Q Now, when she consulted you on July 23, 1996, will you kindly inform the
Honorable Court what was her principal complaint?
A The patient Monaliza Mendoza came with the chest complaint and abdominal
distinction and amenorrhea or absence of menstruation.
Q So, since this was her principal complaint, will you kindly inform the Honorable
Court what you did to her?
A The most important part of examination of the patient is history. First of all, I asked
for the history as to what happened and the patient revealed to me that she has been
sexually abuses (sic) by his (sic) own father and I noticed that during [t]his history
taking she had difficulty in recalling days, and so it took me more than an hour to
interview the patient just to get the dates which is important in my examination and
estimating the age of the pregnancy.
Q Now, because her principal complaint was she was no longer menstruating, why did
you ask questions on the patient? Did you have any conclusion on the matter
because of this complaint?
A What we usually have in mind on the patient to come in with the complaint of
amenorrhea specially in the reproduction age group, the first consideration is
pregnancy; thats why I have to ask the patient matters or incidents which are related
to pregnancy.
Q Because from the appearance of the patient you observed that she could be pregnant?
A Yes.
Q And after she told you that she was sexually abused by her father several times, did
you bother to ask the dates when she was abused?
A Yes, I did. However, she gave me several dates and I intentionally did not include it
in my medical certificate because I notice that as I said earlier, she has difficulty in
recalling dates and besides, for my medical certificate what is important I believe,
as a physician, is only the date of the last menstrual period which is very
necessary.[26]
And on cross-examination, the doctor maintained that Monaliza had revealed to her that she was
abused by her father several times, the dates of which she (the doctor) could not exactly

196
remember but as far as [she] could recall [Monaliza] gave May 16[,] sometime in April, then
during the KB election.[27]
At all events, that Monaliza may have already been pregnant at the time of the rapes subject
of the informations does not exculpate appellant from the charges therefor, the impregnation of a
woman not being an element of rape.
In People v. Adora, this Court held:[28]

[A]uthorities in forensic medicine agree that the determination of the exact date of fertilization is
problematic. The exact date thereof is unknown; thus, the difficulty in determining the actual
normal duration of pregnancy. A Filipino authority writes:

The average duration of pregnancy is 270 to 280 days from the onset of the last menstruation.
There is however no means of determining it with certainty. Evidence derived from pregnancy
following a single coitus is trustworthy, but inasmuch as some authorities consider more than
two weeks as the life span of the spermatozoa in the vagina canal, it is hard to ascertain the exact
date of fertilization. There is no synchrony between coitus and fertilization.

Computation of the whole period of gestation, thus, becomes a purely academic endeavor. In this
light, while most authorities would agree on an average duration, there are still cases of long and
short gestations.

Thus, the stage of development of the fetus cannot be determined with any exactitude, and an
error of at least two weeks, if not more, should be allowed for. This, together with the recognized
variation in the duration of normal pregnancies, makes it very unsafe to dogmatize in a medico-
legal case xxx.

More importantly, it should be pointed out that these consolidated cases are criminal cases for
rape, not civil actions for paternity or filiation. The identity of the father of the victims child is
a non-issue. Even her pregnancy is beside the point. What matters is the occurrence of the
sexual assault committed by appellant on the person of the victim on four separate
occasions . . . (Citations omitted; emphasis and underscoring supplied)

This ruling on the computation of the whole period of gestation was reiterated in People v.
Bation.[29]
As for the failure of Monaliza to immediately report the incidents, this does not dent her
credibility nor undermine the charges. It bears noting that appellant threatened to kill all of them
if Monaliza reported what had transpired.[30] As is a common occurrence, a young and immature
girl usually conceals for a time the rape committed on her because of the rapists threats on her
life, more so when the offender is living with her. [31]
The gravamen of the offense of rape as defined under Article 335 of the Revised Penal
Code, as amended by Republic Act No. 7659,[32] is sexual intercourse with a woman against her
will or without her consent.[33] Thus, the prosecution must prove that (1) the offender had carnal
knowledge of a woman; and (2) such act was accomplished through the use of force or
intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the
victim is twelve (12) years of age, or is demented.[34]
By the very nature of the crime of rape, conviction or acquittal depends almost entirely on
the credibility of the complainants testimony, given the fact that usually only the participants can
testify as to its occurrence.[35]
The following extract from Monalizas testimony[36] indubitably establishes the presence of
the elements of rape with respect to the April 2, 1996 incident:
Q: About midnight of that same day, April 2, 1996, can you recall where were you?
A: Yes.

197
Q: Where were you?
A: I was in our house.
Q: Who were your companions that evening?
A: My elder sister and my father.
Q: What were you doing at that time?
A: I was sleeping in the middle.
Q: In the middle of whom?
A: I was sleeping in the middle of my father and my sister.
Q: You were sleeping in between your elder sister Marigilda and your father, accused
Rolando Mendoza, Jr.?
A: Yes.
Q: So, you (sic) father was beside you?
A: Yes.
Q: Do you recall any unusual incident that happened on such date and time?
A: Yes.
Q: What was that incident?
A: I woke up because I feel (sic) my father was kissing my face, and when I opened my
eyes, he was on top of me.
Q: What did you do when you woke up and your father [was] kissing you and on
top of you?
A: I tried to free myself from his hold but I was not able to do so because he was
holding me tightly.
Q: After that, what did he do to you if he did anything?
A: He inserted his penis inside my vagina.
Q: Were you wearing panty at that time?
A: Yes.
Q: Before he inserted his sexual organ into your vagina, did he pull out your panty?
A: Yes.
Q: Did his sex organ enter your sex organ?
A: Yes.
Q: What did you feel when the sex organ of your very own father enter your sex organ?
A: I felt pain.
Q: When the sex organ of your father was inside your vagina, did he make a push
and pull movement?
A: Yes.
Q: After that, what did he do?
A: Nothing.
Q: Did he tell you something?
A: Yes.

198
 Q: What did your father tell you?
A: My father told me that if I will tell anyone about it he will kill us. (Emphasis
supplied)
And Monalizas following testimony on cross-examination amplified her claim that she was
raped by appellant on April 2, 1996:[37]
Q: And it was at 12:00 o clock in the evening of that day, April 2, 1996 when you were
awakened and that was the time you saw your father lying on top of you, right?
A: Yes.
Q: And he started to carress you, right?
A: Yes.
Q: Your father did not cover your mouth, right?
A: He covered my mouth.
Q: But you did no struggle?
A: I struggled.
Q: You struggled very hard?
A: Yes.
Q: And inspite of what you did, your sister was not awakened?
A: She was able to move but she was not able to wake up.
Q: You did not shout?
A: I was not able to shout because he covered my mouth.
xxx
Q: What did you do when you said you struggled hard?
A: I struggled but he hugged me tightly.
Q: Can you please state how far was your sister when you said you struggled hard?
A: My sister was lying about that distance (witness pointing to a place inside the
courtroom which is estimated to be about three meters) and my father was beside
me about a meter away.
Q: And this was the bed you said you were sleeping together with your father and sister,
right?
Court: Let us clarify this. This bed where you are sleeping, is it a floor or an elevated
place?
A: We were sleeping on the floor.
Q: And it was then that your father successfully performed the act of sexual
intercourse with you that night?
A: Yes. (Emphasis and underscoring supplied)
As for the May 16, 1996 incident, Monalizas following account on direct
examination[38] establishes too the presence of the elements of rape:
xxx
Q: With that statement, are you telling the court now that you were only raped by your
father once?
A: I was raped twice.

199
 Q: When you said you were raped on April 2, 1996, when was the second rape that was
committed by your father?
A: I was raped on May 16, 1996.
Q: How did your father raped (sic) you on May 16, 1996?
A: He opened my breast (sic) and he sucked my nipples, and he inserted his penis
inside my vagina.
Q: Before he inserted his penis into your vagina, did you struggle hard to free
yourself?
A: Yes.
Q: Were you able to free yourself because you struggled hard?
A: No, I was not able to free myself.
Q: Why?
A: Because he hugged me very tightly.
Q: And you said that on May 16, 1996, your father inserted his sexual organ into
yours. Did his sex organ omdeed (sic) entered into your vagina?
A: Yes, he was able to penetrate me (sic).
Q: Did he make a push and ull (sic) movement?
A: Yes.
Q. After that, what did your father do?
A: He said that do not tell anyone about it because he will kill all of us. (Emphasis
supplied)
That force attended the coitus during the first incident is gathered from appellants covering
of Monalizas mouth, thus effectively silencing her as she struggled to free herself from him. As
in the first incident, appellant during the second incident held Monaliza tightly to prevent her
from setting herself free as she tried to resist appellants acts. And in both incidents, he repeatedly
warned her against confiding to anyone what had transpired.
That Monaliza could not offer a more tenacious resistance could be explained by the fact
that appellant was simply too strong for her. Her resistance, however, clearly negates consent.
Monalizas pointing to appellant as the one who raped her twice undermines his
denial. Denial being intrinsically weak as a defense, it must be supported by strong evidence of
non-culpability to merit credence.[39] This appellant failed to do.
As between the positive and categorical testimony then of Monaliza that she was raped by
appellant and the latters bare denial, the former prevails.[40]
As for appellants alibi, it is weak as it can easily be fabricated.[41] And that explains why, for
it to prosper, two (2) elements must concur: (a) his presence at another place at the time of the
perpetration of the offense must be proven; and (b) the physical impossibility for him to be at the
scene of the crime.[42] Proof of these appellant failed to discharge.
If any nagging doubts about appellants culpability still linger, his leaving for Iloilo, upon
learning of the filing of the present charges in court and the issuance of warrants for his arrest,
thereby frustrating the service thereof and calling for the issuance of alias warrants,[43] should
dissipate them. Appellants explanation that he went to Iloilo to look for his son
Reynaldo[44] leaves this Court unbelieving. For a truly innocent person would normally seize the
first available opportunity to defend himself and assert his innocence.[45]His flight certainly
strongly indicates his guilt.[46]

200
 Appellant argues, at all events, that assuming arguendo that he is guilty, the trial court erred in imposing death
on him since the prosecution failed to allege the minority of Monaliza in the accusatory portion of each of the
complaints. Appellants position in this regard is well-taken.
Monalizas age at the time of the filing of the complaints appears in the caption or preamble thereof as
a description of her as the private complainant.[47] Her age at the time the incidents occurred was, however, not
specified in the accusatory portion of each of the complaints. Such omission is prejudicial to the right of appellant to
be informed of the nature of the accusations against him. [48] Thus, in several cases, this Court held that it is not
sufficient to simply allege the qualifying circumstances in the caption or the preamble but, more importantly, these
must be alleged in the body or the accusatory portion of the information. [49]

It has been held that the real nature of the criminal charge is determined not from the caption or
the preamble of the information nor from the specification of the provision of law alleged to have
been violated . . . but from the actual recital of the facts as alleged in the body of the information. In
this case the information upon which the appellant was arraigned does not state in the specification of the
acts constitutive of the offense that he is charged as the live-in partner of the mother of the alleged
victim. This insufficiency prevents a judgment of conviction for qualified rape and thus, the death penalty
cannot be imposed. (People v. Bali-balita; citation omitted; emphasis and underscoring supplied)[50]

As for the special qualifying circumstance of Monalizas relationship with appellant, the prosecution failed to
prove it beyond reasonable doubt. The complaint alleged that he is the father of Monaliza. Monaliza testified that
appellant is her father.[51] And appellant admitted during the pre-trial[52] and the trial[53] that he is Monalizas
father. The bare testimony of the complainant and the admission of the accused as to their relationship do not
suffice, however, [54] for an accused cannot be condemned to suffer the supreme penalty of death on the basis of
stipulations or his own admissions.[55] This strict rule is warranted by the seriousness of the penalty of death. The
fact that appellant is the father of Monaliza must be sufficiently established by competent and independent
evidence.[56] This the prosecution failed to discharge.
The February 10, 1997 Certification of the Bais City, Negros Oriental Civil Registrar[57] which therein quotes
entries on the facts of birth appear[ing] in our Registry of Births on page 99 of book number 32 shows that Monaliza
was born on October 30, 1982 to Nena Rebuya and Rolando Mendoza. This does not, however, clearly prove with
moral certainty the father-daughter relationship as the name of Monalizas father as indicated in the Certification is
Rolando Mendoza and not Rolando Mendoza, Jr.
The concurrence of the minority of the victim and her relationship to the offender constitutes one special
qualifying circumstance which must be both alleged and proved with certainty, otherwise, the death penalty cannot
be imposed.[58]
Regarding the amount of damages awarded by the trial court, the same calls for modification too.
The trial court failed to award to Monaliza civil indemnity which is automatically imposed upon finding of the
commission of rape.[59] Since the death penalty is not imposed, appellant is liable to pay civil indemnity in the
amount of P50,000.00 for each count.[60]
As for moral damages, also for each count of rape, the amount of P50,000.00 is awarded without need of
proving the basis thereof because it is assumed that the victim suffered moral injuries entitling her to such an
award.[61]
Finally, on the award by the trial court of unspecified amount of exemplary damages: In criminal offenses,
exemplary damages may be imposed when the crime was committed with one or more aggravating
circumstances. [62] As priorly discussed, however, the prosecution failed to establish with moral certainty the
aggravating circumstance of relationship between appellant and Monaliza.
WHEREFORE, the joint decision of Branch 45 of the Regional Trial Court of Bais City in Criminal Cases
Nos. 96-074-B and 96-075-B finding accused-appellant, Rolando Mendoza, Jr. y De la Cruz, [63] guilty of two (2)
counts of qualified rape and sentencing him in each to suffer the penalty of death and to pay the victim moral
damages in the amount of P50,000.00 and an unspecified amount of exemplary damages is hereby MODIFIED
in light of the foregoing discussions.
As modified, appellant is hereby found guilty beyond reasonable doubt of two (2) counts of simple rape and he
is sentenced to suffer in each the penalty of reclusion perpetua. He is also ordered to pay the victim, Monaliza
Mendoza, in each case, the amount of P50,000.00 as civil indemnity, and the amount of P50,000.00 as moral
damages.
Costs against appellant.
SO ORDERED.

201
 [G.R. No. 138364. October 15, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ROGELIO VILLANUEVA, appellant.

DECISION
BELLOSILLO, J.:

On automatic review by law is the Decision of the court a quo in its Crim. Case No. 150
(97) finding appellant ROGELIO VILLANUEVA guilty of raping his fifteen (15)-year old
daughter and accordingly sentencing him to death. [1]
Reseilleta Villanueva is the eldest of the daughters in a brood of nine (9) children. Her
parents, the spouses Rogelio Villanueva, appellant herein, and Estelita Villanueva, could hardly
afford to send their children to school due to extreme poverty. As a fisherman, appellants meager
income was insufficient to even provide for the basic necessities of life. To help support the
family, Estelita left the family home in Talisay, Malusing, Sta. Cruz, Davao del Sur, to work as a
laundrywoman-househelper in Camp Catitipan, DavaoCity.
On 12 December 1996, after taking lunch, appellant Rogelio Villanueva sent his daughters
to do laundry in a nearby water pump. Reseilleta, then fifteen (15) years old, although prepared
to help her younger sisters in their assigned task, was told to stay behind by appellant saying that
her sisters could already take care of themselves.[2]
As soon as her sisters left, Reseilleta was dragged by her father from the kitchen to the
living room. Gripped in fear, she asked him what he was going to do to her. Without answering,
appellant told her simply to remove her panty. When she refused, he poked a knife at her and
forced her to lie down.[3] Reseilleta resisted and tried to free herself from her fathers hold, but he
grabbed an iron bar and struck her at the back twice, then punched her in the abdomen. As a
result of the blows, she fainted.[4]
When Reseilleta regained her consciousness, she felt pains on her bleeding
genitalia.[5] Fearing that it would not be the last of her fathers sexual assault, he having molested
her several times in the past,[6] she fled to her maternal uncles house in Jade Valley,
Buhangin, Davao City.
Meanwhile, appellant vented his satiric desires on another daughter Mary Joy, younger sister
of Reseilleta. After he attempted to sexually abuse her twice,[7] Mary Joy ran away from home
and went to her Aunt Adela Benzillo where she sought refuge. Mary Joy recounted her ordeal to
Aunt Adela who immediately accompanied her to her mother Estelita in Davao City.
Mary Joy narrated to Estelita how appellant almost ravished her. She told her mother about
her fathers remarks that youre not like your sister, if I tell her to bend over she would bend over,
or lie down if I told her to lie down.[8] This made Estelita suspicious that something must have
happened to Reseilleta too. So Estelita lost no time in going to Jade Valley bringing Mary Joy
along with her. Estelitas suspicions were confirmed when Reseilleta told her that her father raped
her.
On 17 February 1997, accompanied by her mother Estelita and sister Mary Joy, Reseilleta
went to the Sta. Cruz Municipal Police Station in Davao del Sur and reported the sexual assault
on her by her father. Reseilleta and Estelita likewise executed sworn statements at the police
station.[9] They then proceeded to the Municipal Trial Court of Sta. Cruz, Davao del Sur, where
Reseilleta formally lodged her complaint for rape against appellant.[10] Complainant was
physically examined on the same day by Dr. Johannelda J. Diaz, Medical Health Officer IV,
Municipal Health Office of Sta. Cruz. Dr. Diazs findings were
Extra-genital injuries present: (+) healed scar, (L) anterior iliac region (+) burn
scar, healed, (R) thigh antero-lateral aspect, upper third
Genital exam: Pubic hair coarse, centrally distributed
Labia majora: coaptated
202
Hymen: thick, with old, healed laceration at 5 & 6 oclock positions.[11]

Appellant denied the accusations against him. He claimed that on the alleged date of the
rape he was in a farm from 6:00 oclock in the morning until sundown and that when he arrived
home his daughters told him that Reseilleta, as usual, went out with her friends. He further
alleged that he could not have raped Reseilleta considering that many children in the
neighborhood used to play in their house. Appellant likewise accused his wife Estelita of
instigating the rape charge to thwart his plan of filing criminal charges of abandonment against
her.
On 12 January 1999 the trial court convicted appellant Rogelio Villanueva of rape qualified
by the minority of the victim and her relationship with appellant as father and daughter, and
sentenced him to death under Sec. 11, RA 7659, amending Art. 335, of The Revised Penal Code.
In this automatic review mandated by law, appellant imputes grave error to the trial court (a)
in finding him guilty beyond reasonable doubt of rape defined and penalized under Art. 335
of The Revised Penal Code, as amended by RA 7659; and, (b) in imposing upon him the extreme
penalty of death.
We affirm the conviction of appellant Rogelio Villanueva of raping his own daughter
Reseilleta Villanueva, a minor of fifteen (15) years when the crime was committed. Well settled
is the rule that assessment of credibility of witnesses is a function that is best discharged by trial
judge whose conclusion thereon are accorded much weight and respect, and will not be disturbed
on appeal unless a material or substantial fact has been overlooked or misappreciated which if
properly taken into account could alter the outcome of the case.[12] We are convinced that the
trial judge prudently fulfilled his obligation as a trier and factual assessor of facts.
Appellant capitalizes much on Reseilletas testimony that she was unconscious during the
rape
Q: And after you were boxed in the abdomen, you felt (sic) unconscious?
A: Yes, then he removed my clothings.
Q: He removed your clothings after you felt (sic) unconscious?
A: Yes, I was already unconscious.
Q: You were already unconscious when you clothings and panty were already taken
off?
A: Yes.
Q: When you regained consciousness, you said, your panty were (sic) bloodied, is that
correct?
A: Yes.
Q: And it was still intact in your private parts, is that correct?
A: (no answer).
Q: It was you who removed your panty?
A: No, sir.
Q: Who removed your panty?
A: My father, sir.
Q: Your father removed it when you were unconscious is that what you mean?
A: Yes, sir.[13]
Appellant contends that if Reseilleta was unconscious she would be incapable of knowing or
remembering what transpired. Hence, her assertion that he removed her clothes and thereafter
had sexual intercourse with her is highly suspect.

203
 We disagree. Primarily, it bears nothing that Reseilleta was only a little over sixteen (16)-
year old barrio lass at the time she testified on 10 September 1997, uneducated and
unaccustomed to court proceedings. As aptly observed by the trial court

In assessing the probative value of the testimonies of the victim Reseilleta and her sister, 10-year
old Mary Joy, we took note of their cultural and educational and social background and
experiences. The two girls come from a family of simple folks in a remote barangay of a remote
municipality. By their testimony and that of their father, the accused, they were not able to go to
school because of adverse situations that beset the family. As a matter of fact, Reseilleta, at 18
years of age, does not even know how to write her name.[14]

Nave and unsophisticated as she was, Reseilleta could not be expected to give flawless
answers to all the questions propounded to her. More importantly, it must be stressed that the
above-quoted testimony must be taken as the logical conclusion of Reseilleta that it was
appellant who removed her clothes. Before she lost consciousness following her fathers brutal
assault on her with an iron bar after she refused to remove her panty, she was still wearing
her clothes and panty and appellant was the only one who was with her at that time.
At any rate, direct evidence of the commission of the crime is not the only matrix by which
courts may draw their conclusions and findings of guilt. Where, as in this case, the victim could
not testify on the actual commission of the rape because she was rendered unconscious at the
time the crime was perpetrated, the court is allowed to rule on the bases of circumstantial
evidence provided that (a) there is more than one (1) circumstance; (b) the facts from which the
inferences are derived are proved; and, (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.[15] The corollary rule is that the totality or the
unbroken chain of the circumstances proved leads to no other logical conclusion than appellants
guilt.[16]
We find that the evidence for the prosecution sufficiently establish the following: first,
appellant and Reseilleta were the only persons in the house at the time of the rape on 12
December 1996; second, he forcibly dragged Reseilleta from the kitchen to the living
room; third, he commanded her to remove her panty although she refused; fourth, he poked a
knife at her and forced her to lie down; fifth, he clubbed Reseilleta with an iron bar when she
resisted and struggled to extricate herself from him; sixth, he punched Reseilleta in the stomach
which rendered her unconscious; seventh, when she regained consciousness, she felt pain in her
vagina which was already bleeding; and eighth, the medical examination conducted on Reseilleta
two (2) months after the incident revealed lacerations in her vagina at 5 and 6 oclock positions.
The combination of these circumstances establishes beyond moral certainty that Reseilleta
was raped while she was in a state of unconsciousness and that appellant was the one responsible
for defiling her. These circumstances constitute an unbroken chain of events which inevitably
points to appellant, to the exclusion of all others, as the guilty person, i.e., they are consistent
with each other, consistent with the hypothesis that appellant is guilty and at the same time
inconsistent with any other hypothesis except that appellant is guilty.[17]
Appellant insists however that he could not have raped Reseilleta because children from
their neighborhood usually converged at their residence to play.
We are not persuaded. It is not at all impossible, nay, not even improbable, that such brutish
act of a depraved man as appellant was actually committed in his residence.Lust, we have
repeatedly noted, has no regard for time nor place. The fact that children gather at appellants
residence to play is no guarantee that rape cannot be perpetrated there. Indeed, there is no law or
rule that rape can be committed only in seclusion. Rapes have been committed in many and
different kinds of places, including those which most people would consider as inappropriate or
as presenting a high risk of discovery.[18]
Appellants suggestion that Reseilleta concocted the rape charge against him upon the
instigation of her mother Estelita deserves scant consideration. No mother would instigate her
daughter to file a complaint for rape out of sheer malice knowing that it would expose her own
daughter to shame, humiliation and stigma concomitant to a rape, and could send the father of

204
her children to the gallows.[19] As we view it, Estelita was simply motivated by a desire to have
the person responsible for the defloration of her daughter apprehended and punished.
In the face of the positive testimony of Reseilleta who had no improper motive to testify
falsely against him, appellants alibi crumbles like a fortress of sand. For the defense of alibi to
prosper, the accused must not only show that he was not present at the locus criminis at the time
of the commission of the crime, but also that it was physically impossible for him to have been
present at the scene of the crime at the time of its commission.[20] Appellant testified that on 12
December 1996 he was working in a farm from six oclock in the morning until sunset. However,
he miserably failed to prove that the nature of his work at the farm, and the distance between the
farm and his house, effectively prevented him from going home at lunch time to feast on his
daughters purity and innocence.
Appellant posits that in the event he is found guilty he should be convicted only of simple
rape, and not qualified rape. He argues that the Information against him failed to allege
the qualifying circumstance of relationship between him and Reseilleta.
We disagree. The qualifying circumstance of relationship of the accused to the victim being
father and daughter is so alleged in the Information. The cases of People v. Bali-
balita[21] and People v. Rodriguez,[22] are no longer controlling. The time has come for us to
revisit and reexamine the wisdom of these rulings lest blind acquiescence, persistent application
and the passage of time may validate what appears to us now as an unsound procedural doctrine
that cannot be justified even under the hallowed ground of stare decisis.
For a better perspective, we reproduce the Information subject of the instant case

The Undersigned Prosecutor, at the instance of the offended party, Reseilleta C. Villanueva,
accuses Rogelio Villanueva, her father, of the crime of Rape under Article 335 of the Revised
Penal Code, in relation to Republic Act No. 7659, committed as follows:

That on or about the 12th day of December 1996 at Sitio Malusing Talisay, Barangay Zone I, Sta.
Cruz, Davao del Sur and within the jurisdiction of this Honorable Court, the above-named
accused with lewd designs armed with an iron bar, struck for several times and boxed Reseilleta
C. Villanueva, hitting her at the back portion of her body and abdomen causing her to lose her
consciousness did then and there willfully, unlawfully and feloniously have carnal knowledge of
the offended party, a minor, against her will, and to her damage and prejudice (underscoring
supplied).

There is no law or rule prescribing a specific location in the Information where the
qualifying circumstances must exclusively be alleged before they could be appreciated against
the accused. Section 6, Rule 110, of the 2000 Revised Rules of Criminal Procedure requires,
without more

Sec. 6. Sufficiency of complaint of information. A complaint or information is sufficient if it states

the name of the accused; the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date
of the commission of the offense; and the place where the offense was committed.

When the offense is committed by more than one person, all of them shall be included in the
complaint or information.

While Sec. 8, Rule 110, of the same Rule states

Sec. 8. Designation of the offense. The complaint or information shall state the designation of the
offense given by the statute, aver the facts of omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it (underscoring supplied).

205
 Nothing in Secs. 6 and 8 of Rule 110 mandates the material allegations should be stated in
the body and not in the preamble or caption of the Information. Instead, both sections state that
as long as the pertinent and significant allegations are enumerated in the Information it would be
deemed sufficient in form and substance. We hold that it is irrelevant and immaterial whether the
qualifying circumstance of relationship is mentioned in the opening paragraph of
the Information or in the second paragraph which alleges the acts constituting the crime charged
since either paragraph is an integral part of the Information.
The preamble or opening paragraph should not be treated as a mere aggroupment of
descriptive words and phrases. It is as much an essential part of the Information as the accusatory
paragraph itself. The preamble in fact complements the accusatory paragraph which draws its
strength from the preamble. It lays down the predicate for the charge in general terms; while the
accusatory portion only provides the necessary details. The preamble and the accusatory
paragraph, together, form a complete whole that gives sense and meaning to the
indictment. Thus, any circumstance stated in the preamble (i.e., minority, relationship) should
also be considered as an allegation of such fact.
Significantly, the name of the accused is set forth, not in the body of the Information, but
only in the opening paragraph. The name of the accused is a fundamental element of
every Information and is crucial to its validity. If the preamble can validly contain such an
essential element as the name of the accused, there appears to be no logical reason why it cannot
likewise contain the equally essential allegations on the qualifying circumstances.
Moreover, the opening paragraph bears the operative word accuses, which sets in motion the
constitutional process of notification, and formally makes the person being charged with the
commission of the offense an accused. Verily, without the opening paragraph, the accusatory
portion would be nothing but a useless and miserably incomplete narration of facts, and the
entire Information would be a functionally sterile charge sheet; thus, making it impossible for the
state to prove its case.
The information sheet must be considered, not by sections or parts, but as one whole
document serving one purpose, i.e., to inform the accused why the full panoply of state authority
is being marshalled against him. Our task is not to determine whether allegations in an
indictment could have been more artfully and exactly written, but solely to ensure that the
constitutional requirement of notice has been fulfilled. Accordingly, the sufficiency of the
allegations of qualifying circumstances therein must be judged objectively, and measured by
practical considerations. Allegations of qualifying circumstances should not be declared
insufficient merely by virtue of a perceived formal defect in their locations, which do not
otherwise prejudice the substantial rights of the accused. As long as they are adequately pleaded
within the four corners of the charge sheet, as in the instant case, they could not be invalidated by
the fact that they are found only in the introductory paragraph.
We fail to see how the relative positioning of the qualifying circumstances in
an Information could possibly transgress the constitutional right of an accused to be informed of
the nature and cause of accusation against him. All that this fundamental right signifies is that the
accused should be given the necessary data as to why he is being prosecuted against. This is to
enable him to intelligently prepare for his defense, and prevent surprises during the trial.
Parenthetically, can it be tenably argued that simply because a qualifying circumstance was
averred in the opening paragraph of the Information, the accused was not informed of this vital
information which could aid him in his defense? Certainly not. It must be emphasized that in a
typical Information, the preamble always precedes the accusatory portion. As such, it would be
incongruous if not absurd to assume that the accused in reading the Information would limit
himself to the accusatory portion and totally disregard the rest of the charge sheet.
A cursory reading of the Information hereto fore recited readily reveals more than
satisfactory compliance with the Rules, specifically Sec. 8, Rule 110, of the 2000 Revised Rules
of Criminal Procedure. Unquestionably, there is concurrence in the allegations
of relationship and minority in the Information. Since the preamble or caption, in the case at bar,
states that Rogelio Villanueva is her father (referring to Reseilleta), then it adequately informed

206
the accused that his daughter was charging him of the acts contained in the succeeding
paragraph. The qualifying circumstance of relationship must accordingly be appreciated against
the appellant herein. No constitutional right of the appellant has been invaded or infringed, for he
was properly apprised of the existence of this circumstance.
Finally, were we to persist in the mistaken belief on the necessity of stating the qualifying
circumstances strictly and exclusively in the accusatory paragraph of an Information, we would
be placing premium on a highly technical and artificial rule of form, and completely sacrificing
the substance, purpose and reason for the indictment. We believe that this requirement is without
any corresponding benefit to the interest of justice. On the contrary, it is only bound to unduly
burden our prosecutorial agencies and, worse, provide criminals with a convenient avenue to
elude the punishment they truly deserve.
In light of the foregoing, our rulings in People v. Bali-balita, People v. Rodriguez and
companion cases, insofar as they are inconsistent with this pronouncement, are modified or
overturned for obvious reasons. At any rate, the crime in the instant case was committed before
the Bali-balita and Rodriguez cases were promulgated.
Under Art. 335 of The Revised Penal Code, as amended by RA 7659, the death penalty is
imposed for the crime of rape if the victim is under eighteen (18) years of age and the offender is
a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common law spouse of the parent of the victim.
Fortunately for appellant, he would be spared this extreme punishment. The minority of the
victim and her relationship to the offender constitute special qualifying circumstances, which
must both be sufficiently alleged and proved. While the relationship between appellant and
Reseilleta was adequately established during the trial by the admission of no less than appellant
himself, the prosecution evidence is quite anemic to prove the minority of the victim.
A careful reading of the records would show a perceivable variance as to age, i.e., whether
the victim was fourteen (14), fifteen (15), sixteen (16) or seventeen (17) years of age at the time
of the commission of the offense. First, the victim testified that she was born on 15 March 1981,
yet at the time she was raped on 12 December 1996 she claimed that she was only fourteen (14)
years old, instead of fifteen (15) years old;[23] second, Estelita Villanueva, mother of the victim,
confirmed on the witness stand that Reseilleta was eighteen (18) years old at the time she
testified on 6 January 1998 or a little over one (1) year after the rape, which means that
Reseilleta was seventeen (17) years old, not fourteen (14), nor fifteen (15), nor sixteen (16) years
of age, at the time of the rape;[24] third, the trial court held that the victim was fourteen (14) years
old at the time of the incident;[25] and fourth, the medical report of Dr. Diaz on Reseilleta
Villanueva, Exh. B, shows an entry that the victim was born on 15 March 1979, which makes her
seventeen (17) years old when she was raped on 12 December 1996.
Verily, we find no independent evidence on record that could accurately show the age of the victim. In the
absence of adequate proof as to her exact age, the Court will consider only the qualifying circumstance
of relationship between appellant and his victim. We have held that the minority of the victim must be proved with
equal certainty and clearness as the crime itself. Failure to sufficiently establish the victims age will bar any finding
of rape in its qualified form. While it may be argued that the victim herein, in any case, was below eighteen (18) of
age, nevertheless we give the benefit of the doubt to the appellant in view of the confusion as to the precise age of
Reseilleta. Accordingly, the Court resolves to impose on appellant the lower penalty of reclusion perpetua.[26]
In accordance with prevailing jurisprudence, the award of P50,000.00 as civil indemnity in favor of the victim
is in order.[27] In addition, the award of P50,000.00 as moral damages is justified, conformably with our
pronouncement in People v. Pagsanhan.[28]
WHEREFORE, the Decision appealed from is AFFIRMED, subject to the MODIFICATION that appellant
ROGELIO VILLANUEVA is found guilty of simple rape and is sentences to reclusion perpetua. He is further
ordered to pay his victim Reseilleta Villanueva the amount of P50,000.00 as civil indemnity, and another
P50,000.00 as moral damages, with costs against appellant.
SO ORDERED.

207
 [G.R. No. 147667. January 21, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. RESTY TIGLE, appellant.

DECISION
CARPIO, J.:

The Case

On automatic review is the Decision[1] dated 17 January 2001 of the Regional Trial Court of
Ozamis City, Branch 15, 10th Judicial Region (trial court) in Criminal Case No. 2193. The trial
court found appellant Resty Tigle (appellant) guilty of murder qualified by treachery and
attended by the aggravating circumstances of evident premeditation, taking advantage of superior
strength, and disregard of the age and sex of the victim. The trial court sentenced appellant to
suffer the death penalty and to pay the heirs of the victim P50,000 as civil indemnity, P30,000 as
moral damages, as well as to pay the costs.

The Charge

The Information charged appellant with the crime of murder as follows:

That on or about the evening of December 17, 1997 in Barangay Capucao C, Ozamiz City,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and
there with malice afterthought [sic], evident premeditation and with deliberate intent to take the
life of Luisa Lapera, willfully, unlawfully, feloniously, suddenly, unexpectedly, and
treacherously attack the latter with a bolo directing blows against the vital parts of the body of
said Luisa Lapera thereby inflicting upon her mortal wounds, which directly caused the death of
said Luisa Lapera.

CONTRARY to Article 248 of the Revised Penal Code.[2]

Appellant was committed to the City Jail of Ozamiz City on 6 January 1998.[3]

Arraignment and Plea

Appellant pleaded not guilty on his arraignment on 26 February 1998. However, during the
pre-trial, appellant manifested that he would like to withdraw his plea of not guilty and replace it
with a plea of guilty to the lesser offense of homicide. The prosecution rejected this
manifestation. Appellant admitted that he killed the victim Luisa Lapera (Luisa) but invoked the
mitigating circumstance of incomplete self-defense. The prosecution also rejected the claim of
incomplete self-defense.

The Trial

The Version of the Prosecution

208
 Thereafter, trial commenced. The prosecution presented three witnesses: (1) appellants
mother-in-law Mrs. Catalina Clarin (Catalina); (2) Dr. Daniel T. Medina; and (3) the victims son
Saturnino Lapera (Saturnino).
Catalina testified that appellant killed Luisa. At about 8:30 oclock in the evening of 17
December 1997, Luisa was caroling with some kids at Catalinas house. After the carolers left,
appellant, his two friends, and two of Catalinas sons drank beer on the porch. At around 10:00
oclock in the evening, Luisa returned to buy cigarettes from Catalina. Luisa came up to the
porch, and Catalina sold her P2 worth of cigarettes. Luisa sat on the bench and tried to start a
conversation with her. Catalina told Luisa that she could not attend to her because she would
pray the rosary. Catalina then went inside the house. While Catalina was praying, she heard the
sound of a falling object outside.Catalina went out and saw appellant holding a bolo. Appellants
face was bloodied. Luisa was lying face down in front of appellant. Catalina asked appellant,
Whats wrong, Resty? Appellant allegedly replied, You are not included, Ma. Just put off the
light. Catalina went back inside[4] and roused her husband. When she looked out again, appellant
and Luisa were no longer on the porch stairs.[5] Appellant later returned to Catalinas house and
slept there.[6]
The barangay captain, together with Civilian Volunteer Officers (CVOs), went to Catalinas
house around midnight. The barangay captain asked what happened, but Catalina was unable to
talk coherently to them. The barangay captain and the CVOs were looking for appellant. They
left after Catalina pointed to where appellant was sleeping. The barangay captain, accompanied
by policemen this time, returned to Catalinas house at 4:00 oclock in the morning. The barangay
captain informed Catalina that appellant killed Luisa. The police took appellant with
them. Catalina declared that the bolo appellant used to stab Luisa belonged to her husband. She
did not know how appellant got it.[7]
Dr. Daniel T. Medina conducted the post-mortem examination on Luisa. He testified that
Luisa suffered six stab wounds caused by a sharp instrument. He testified thus:
Q So in this sketch, how many stab wounds did the victim suffer?
A Six (6) stab wounds.
Q Are they all vital?
A No. Only one (1) I mentioned here the parasternal area penetrating the heart.
xxx
Q Are they all frontal?
A Yes, sir. This stab wound 3.5 cm in front and one (1) at the back or left side of the
back and stab wound at the left thorasic [sic] cavity.
Q Do you mean to say, that the victim was stabbed at the back also?
A Yes, sir. One at the back and one in front and another wound at the head medial area.
Q Showing to us the wounds, what instrument could have caused these wounds?
A Sharp instrument.
Q Like bolo?
A Yes, sir?
Q And what was the caused [sic] of the death of the late Luisa Lapera?
A Hyphovolemic [sic] shock secondary to stab wounds. Meaning, loss of blood. In fact
I stated that in the death certificate.
Q From your record, what wound that caused [sic] the death of the late Luisa Lapera?
A Stab wound in front at the left side parasternal area going to the heart.
Q Was the heart punctured?

209
 A Yes, sir.
Q Do you remember doctor, if you have signed a death certificate?
A Yes, sir.
Q I am showing to you that death certificate, tell the court what relation has that to the
death certificate you issued?
A This is the one, sir. The cause of death [is] cardiac arrest, secondary to hyphobulemic
[sic] shock, secondary to multiple stab wounds in the body.
Q Is that the same certificate of death you issued?
A Yes, sir.[8]
The prosecution offered Saturninos testimony to prove there was evident premeditation in
the killing of Luisa. Saturnino testified that he was hired as an overseer in Blanca Nieve Kellys
plantation. He saw appellant stealing coconuts from this plantation. At around 6:00 oclock in the
evening of 14 May 1994, Saturnino was on his way home from a basketball game when he saw
someone climbing a coconut tree. He did not recognize this person because it was already dark.
Saturnino fetched Barangay Councilor Marcelo Angne and a CVO but all they were able to see
were coconuts arranged in a pile. They guarded the place until 9:00 oclock in the evening.
Saturnino returned at 6:00 oclock in the morning of the next day. He saw appellant getting
coconuts from the pile. On seeing Saturnino, appellant ran and disappeared among the
bushes. Saturnino executed an affidavit on the matter. Appellant later advised Saturnino not to
testify in the case for qualified theft, or else his family would be killed.[9]

The Version of the Defense

The defense also presented three witnesses: (1) appellant Resty Tigle, (2) Wilfredo Flores
(Wilfredo), and (3) Allan Roa (Allan).
Appellant Resty Tigle did not offer an alibi. He maintained that what he did was done in
incomplete self-defense. Appellant confirmed that he was in his parents-in-laws house in the
evening of 17 December 1997. Wilfredo and Allan were drinking beer on the porch. Appellant
came out from the kitchen and was on the mouth of the stairway when Luisa suddenly struck him
on the left eyebrow with an empty beer bottle. She was standing on the second step of the stairs,
directly in front of appellant. There was blood on appellants face. At this point, appellant saw a
bolo under the bench. He took it, and stabbed Luisa. Luisa fell on the stairway. Wilfredo and
Allan fled from the scene. Catalina looked through the window and asked, What is that,
Resty? Appellant supposedly replied in the Visayan dialect, Be not afraid, for you are not
included, Ma. Appellant then carried Luisas body away from his parents-in-laws house.[10] On
redirect examination, appellant showed the scar on his left eyebrow to the court.[11]
Wilfredo testified that before going to the house of his nephew Hilario Calunsag, he dropped
by Catalinas house and bought a bottle of beer. He was drinking beer on the porch with Allan
when Luisa arrived to buy cigarettes. After buying cigarettes from Catalina, Luisa sat on the
bench. Wilfredo and Allan offered Luisa a glass of beer, which she refused. When appellant
came out to the porch from the kitchen, Luisa suddenly struck appellant on the left eyebrow with
an empty bottle of beer. Appellant saw a bolo under the bench and immediately used it to stab
Luisa. Wilfredo saw that appellant stabbed Luisa only once before she fell down the stairs. After
seeing this, Wilfredo and Allan fled to the house of Hilario Calunsag.[12] During cross-
examination, Wilfredo stated that he did not see Catalinas two sons while he was on the porch.[13]
Allan corroborated Wilfredos account of the incident. Wilfredo bought a bottle of beer from
Catalina. They were drinking beer on the porch when Luisa arrived to buy cigarettes. Luisa then
sat on the bench where Wilfredo and Allan were also seated. The two men offered Luisa a glass
of beer, which she refused. When appellant appeared, Luisa hit him on the left eyebrow with an
empty beer bottle. Appellant saw a bolo underneath a bench and stabbed Luisa. Luisa fell down

210
the stairs. Wilfredo and Allan fled to the house of Hilario Calunsag. They were afraid of
appellant, as he looked furious.[14]
Both Wilfredo and Allan did not know of any previous dispute between appellant and
Luisa.[15]

The Trial Courts Ruling

The trial court found appellant guilty of murder. The trial court stated that a spirit of
lawlessness, anger and revenge motivated appellant when he killed Luisa. The trial courts
version of the incident reads:

[U]pon seeing Luisa Lapera buying cigarettes in the porch of Catalina Clarin the accused got the
bolo of his father-in-law and waited down below the stairs for the victim to come down. And
when the victim was coming down the accused met her with a stab directed at the parasternal
area penetrating the heart. The victim fell towards the accused but the latter avoided [her] and the
victim fell to the ground. Then the accused delivered more stabs on the fallen victim and hacked
the medial area of the head. Having accomplished his criminal acts the accused told [his] mother-
in-law to [turn] off the light and to close the door. He carried the lifeless body of the victim to a
distance away from the scene of the crime towards the house of Saturnino Lapera.[16]

The trial court appreciated treachery to qualify the killing to murder. Evident premeditation,
taking advantage of superior strength, disregard of the respect due to the offended party on
account of her age and sex were appreciated as aggravating circumstances. The dispositive
portion of the trial courts decision reads:

WHEREFORE, the Court sentences the accused Resty Tigle to the penalty of Death and to pay
the heirs of the victim the sum of P50,000.00 for her life and P30,000.00 as moral damages; and
to pay the cost.

Immediate commitment of Resty Tigle to the National Bilibid Penitentiary, Muntinlupa City is
hereby ordered.

SO ORDERED.[17]

This case is now before us on automatic appeal, pursuant to Article 47 of the Revised Penal
Code.

The Issues

Appellant raises the following errors:

I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF

MURDER DESPITE THE FACT THAT NO QUALIFYING AND AGGRAVATING
CIRCUMSTANCES HAD BEEN PROVED BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF MURDER.

211
 The Courts Ruling

After weighing the evidence, we find appellant guilty of homicide, not murder.

Specificity of the Qualifying Circumstances

In his reply brief, appellant cited People v. Alba[18] and People v. Manlansing[19] as bases
for the non-imposition of the death penalty. According to appellant, although the Information
alleged treachery and evident premeditation, the Information did not state these circumstances
with specificity as qualifying the crime to murder. Appellant quoted from People v. Alba the
following:

We note however, that treachery, though stated in the information, was not alleged with
specificity as qualifying the killing to murder. Sections 8 and 9 [of Rule 110] of the Revised
Rules of Criminal Procedure which took effect on December 1, 2000, provide:

Sec. 8. Designation of the offense. The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.

Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment.

Pursuant to the aforequoted provisions of the Revised Rules of Criminal Procedure, the
information should state not only the designation of the offense and the acts and omissions
constituting it but shall also specify its qualifying and aggravating circumstances. Guided by the
established rule that when a penal statute, whether substantive or procedural, is favorable to the
accused, the courts shall give it a retroactive application. Thus, we held that since the
information in this case failed to specify treachery as a circumstance qualifying the killing to
murder, under the present Revised Rules of Criminal Procedure, treachery has to be considered a
generic aggravating circumstance only.[20]

Appellant also quoted from People v. Manlansing:

A review of the informations filed against appellants, in relation to prevailing law and
jurisprudence as well as the newly adopted revisions of the Rules of Court favorable to the
accused will show that the crimes of the brothers could not be qualified as murder. Only recently
in People vs. Gario Alba alias Mario Alba, G.R. No. 130523, promulgated January 29, 2002, we
ruled that pursuant to Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure
which took effect on December 1, 2000, the information should state not only the designation of
the offense and the acts and omissions constituting said offense but shall also specify its
qualifying and aggravating circumstances. We noted in Gario Alba, that although the
circumstance of treachery was stated in the information, it was not alleged with specificity
as qualifying the killing to murder. Since the information in Gario Alba, failed to specify
treachery as a circumstance qualifying the killing to murder, treachery was considered only a
generic aggravating circumstance, hence, we said that the crime committed in Gario Alba was
homicide and not murder. (Emphasis supplied)[21]

However, in our En Banc Resolution in People v. Rodelio Aquino y Roda,[22] we held that:

212
[S]ections 8 and 9 of Rule 110 merely require that the Information allege, specify or enumerate
the attendant circumstances mentioned in the law to qualify the offense. These circumstances
need not be preceded by the words aggravating/qualifying, qualifying, or qualified by to be
considered as qualifying circumstances. It is sufficient that these circumstances be specified
in the Information to apprise the accused of the charges against him to enable him to
prepare fully for his defense, thus precluding surprises during the trial. When the
prosecution specifically alleges in the Information the circumstances mentioned in the law as
qualifying the crime, and succeeds in proving them beyond reasonable doubt, the Court is
constrained to impose the higher penalty mandated by law. This includes the death penalty in
proper cases.

xxx

The words aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by

need not be expressly stated as long as the particular attendant circumstances are specified
in the Information. (Emphasis supplied)

The resolution in People v. Aquino obviates the requirement of additional verbiage put
forward in People v. Alba. The manner the Information in the present case stated the
circumstances satisfies the standard set in People v. Aquino. The Information specified the
circumstances allegedly attending the commission of the crime. These circumstances need not be
preceded by the words qualifying or qualified by to be considered as such.

Proof of the
Qualifying and Aggravating Circumstances

Treachery

We have seen that Luisa provoked appellant by striking him with an empty beer bottle on
the head. Prosecution witness Catalina stated that when she looked outside to see what happened,
she saw that appellants face was bloodied.[23] All witnesses for the defense testified that Luisa
struck appellant on the left eyebrow with an empty bottle of beer.[24] And on the spur of the
moment, appellant stabbed Luisa. The prosecution did not present anything to rebut these
assertions. After reading the testimonies of the witnesses for both the prosecution and the
defense, we find that the trial court erred in disregarding the uncontested assertion that Luisa
struck appellants head with an empty bottle of beer. There was no question regarding the
credibility of the witnesses. In fact, the trial court relied heavily on the witnesses testimonies.
We cannot appreciate treachery against appellant. There is no treachery where the sudden
attack was not preconceived and deliberately adopted but was just triggered by the sudden
infuriation on the part of the accused because of the provocative act of the victim. [25] There was
no sufficient evidence that appellant deliberately adopted the means of execution employed by
him. What is apparent is that appellant perpetrated the killing impulsively.[26] For treachery to be
appreciated, it must exist at the inception of the attack, and if absent and the attack continues,
even if present at the subsequent stage, treachery is not a qualifying or generic aggravating
circumstance. The prosecution must adduce conclusive proof as to the manner in which the
altercation started and resulted in the death of the victim. If the prosecution fails to discharge its
burden, the crime committed is homicide and not murder.[27]

Evident premeditation

The prosecution presented Saturnino Laperas testimony to support its theory that appellant
had evil designs on Saturnino and his family as early as 1994. The victim was Saturninos

213
mother. Saturninos affidavit in the qualified theft case against appellant had angered
appellant. The prosecution asserts that the killing of Luisa was evidently premeditated.
Saturninos testimony establishes something that is merely speculative. To be considered an
aggravation of the offense, the circumstance must not merely be premeditation but must be
evident premeditation.[28] To warrant a finding of evident premeditation, the prosecution must
establish the confluence of the following requisites: (a) the time when the offender determined to
commit the crime; (b) an act manifestly indicating that the offender clung to his determination;
and (c) a sufficient interval of time between the determination and the execution of the crime to
allow him to reflect upon the consequences of his act.[29]
Threats to kill do not necessarily prove evident premeditation without a showing that
appellant performed acts indicating that he clung to his determination. Apart from Saturninos
testimony, the records of the case do not show any evidence to prove the aggravating
circumstance of evident premeditation as alleged in the Information. There is no showing when
and how appellant planned and prepared to kill Luisa. Appellants threats, unsupported by
evidence disclosing a criminal state of mind, are merely casual remarks naturally emanating from
a feeling of rancor and not proof of evident premeditation.[30]

Abuse of Superior Strength and Disregard of Age and Sex

The trial court found that the aggravating circumstances of abuse of superior strength and
disregard of age and sex attended the commission of the crime and sentenced appellant
accordingly. In its zeal to convict appellant of the crime of murder, the trial court overlooked that
the Information does not allege these circumstances. Aggravating circumstances, even if proven
during trial, cannot affect appellants liability when the Information fails to allege such
circumstances. This is pursuant not only to Section 9 of Rule 110 of the Revised Rules of
Criminal Procedure, but also more importantly to an accuseds constitutional right to be informed
of the nature and cause of the accusation against him.[31]

Penalty

We find appellant guilty of the consummated crime of homicide defined and punished under
Article 249 of the Revised Penal Code. The prescribed penalty is reclusion temporal, which
ranges from twelve years and one day to twenty years. We do not find any qualifying,
aggravating, or mitigating circumstance. Applying the Indeterminate Sentence Law, appellant
may be sentenced to an indeterminate penalty ranging from eight years and one day of prision
mayor as minimum to fourteen years, eight months and one day of reclusion temporal as
maximum.
In consonance with prevailing jurisprudence,[32] civil indemnity in the amount of P50,000
should be awarded without need of further proof. The award of moral damages should be deleted
because there is no factual basis for the award.[33]
WHEREFORE, the assailed decision of the Regional Trial Court of Ozamis City, Branch
15, 10th Judicial Region in Criminal Case No. 2193, finding appellant Resty Tigle GUILTY
beyond reasonable doubt of the crime of murder, is MODIFIED. Appellant Resty Tigle is
declared guilty of the crime of Homicide defined in Article 249 of the Revised Penal
Code. Appellant is sentenced to suffer an indeterminate penalty ranging from eight years and one
day of prision mayor as minimum, to fourteen years, eight months and one day of reclusion
temporal as maximum.
Appellant is further ordered to pay the heirs of the victim P50,000 as civil indemnity. The
award of P30,000 for moral damages is deleted.
Costs de oficio.

214
 [G.R. No. 138386-87. May 20, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. EUFROCINO[1] AGUDEZ y ASIONG @

OPRING, RONILO AGUDEZ y COCOY @ DANILO, RICARDO AGUDEZ y
COCOY @ OLONG, FERNANDO AGUDEZ y COCOY (at large), PAQUITO
KATIMPO y INGGO @ KITOY (at large), accused.
EUFROCINO AGUDEZ y ASIONG @ OPRING, RONILO AGUDEZ y COCOY @
DANILO, RICARDO AGUDEZ y COCOY @ OLONG, accused-appellants.

DECISION
AUSTRIA-MARTINEZ, J.:

Before us for automatic review is the consolidated decision[2] of the Regional Trial Court
(RTC) of Kalibo, Aklan, Branch 2, in Criminal Cases Nos. 5176 and 5177 convicting appellant
Eufrocino Agudez and his two sons, appellants Ronilo Agudez and Ricardo Agudez of two
counts of murder and sentencing each of them to suffer the supreme penalty of death for each
count.
Appellants were apprehended by police authorities on June 27, 1998. They were charged
with murder in two separate Informations both dated June 29, 1998 together with Fernando
Agudez and Paquito Katimpo, son and son-in-law of appellant Eufrocino, respectively.
The accusatory portions of the amended Informations, docketed as Criminal Cases Nos.
5176 and 5177, read as follows:

Criminal Case No. 5176

The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses EUFRICINO
AGUDEZ Y ASIONG alias OPRING, RONILO AGUDEZ Y COCOY alias DANILO,
RICARDO AGUDEZ Y COCOY alias OLONG, all of Sitio Binitinan, Barangay Oquendo,
Balete, Aklan, but presently detained at the Municipal Jail of Balete, Aklan, FERNANDO
AGUDEZ Y COCOY and PAQUITO KATIMPO Y INGGO alias KITOY both of Sitio
Binitinan, Barangay Oquendo, Balete, Aklan and both at large, of the crime of MURDER,
committed as follows:

That on or about the 27th day of June, 1998, in the morning, in Sitio Panukduka, Barangay
Oquendo, Municipality of Balete, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, while armed with long shotguns, with intent to kill, with evident
premeditation, treachery and use of superior strength, did then and there willfully, unlawfully
and feloniously attack, assault and shoot one DOMINADOR CASTRO, thereby inflicting upon
the latter mortal wounds, to wit:

1. GSW 1 cm. in diameter coursing downward and anteriorly at the occipital

region.
2. GSW 1 cm. in diameter at the anterior aspect of the left wrist.
3. GSW 1 cm. in diameter at the left scapular region.
4. GSW 1 cm. in diameter coursing downward and anteriorly at the
interscapular area.
5. GSW 1 cm. in diameter just below the right scapular region.
6. GSW 1 cm. in diameter right lower back.
7. GSW 1 cm. in diameter 2 cm. lateral to injury #6.

215
 8. GSW 1 cm. in diameter coursing downward and anteriorly right buttock.
9. GSW 1 cm. in diameter posterior aspect of the distal 3rd of the right thigh.

as per Post Mortem Examination Report issued by Dr. Alfredo B. Villaruel, Rural Health
Physician, Balete, Aklan, hereto attached and made an integral part of this information, which
wounds directly caused the death of the said DOMINADOR CASTRO.

That as a result of the criminal acts of the accused, the heirs of the deceased suffered actual and
compensatory damages in the amount of P50,000.00.

CONTRARY TO LAW.[3]

Criminal Case No. 5177

The undersigned Third Assistant Provincial Prosecutor of Aklan hereby accuses EUFRICINO
AGUDEZ Y ASIONG alias OPRING, RONILO AGUDEZ Y COCOY alias DANILO,
RICARDO AGUDEZ Y COCOY alias OLONG, all of Sitio Binitinan, Barangay Oquendo,
Balete, Aklan, but presently detained at the Municipal Jail of Balete, Aklan, FERNANDO
AGUDEZ Y COCOY and PAQUITO KATIMPO Y INGGO alias KITOY both of Sitio
Binitinan, Barangay Oquendo, Balete, Aklan and both at large, of the crime of MURDER,
committed as follows:

That on or about the 27th day of June, 1998, in the morning, in Sitio Panukduka, Barangay
Oquendo, Municipality of Balete, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, while armed with long shotguns, with intent to kill, with evident
premeditation, treachery and use of superior strength, did then and there willfully, unlawfully
and feloniously attack, assault and shoot one MAMERTO C. NALANGAN, thereby inflicting
upon the latter mortal wounds, to wit:

1. GSW 1 cm. in diameter just above the right scapular region.

2. GSW 1 cm. in diameter 2 cm lateral to injury #1.
3. GSW 1 cm. in diameter posterior aspect of the proximal 3rd of the right
arm coursing downward and medially.
4. GSW 1 cm. in diameter at the interscapular area.
5. GSW 1 cm. in diameter coursing downward and anteriorly at the
infrascapular area.
6. GSW 1 cm. in diameter at the level of midspinal line and 7th rib.
7. GSW 1 cm. in diameter at the right lower back.
8. GSW 1 cm. in diameter coursing downward and anteriorly at the middle
3rd of left thigh.
9. GSW 1 cm. in diameter at the distal 3rd of left thigh.
10. GSW 1 cm. in diameter at posterior aspect of the proximal 3rd of left leg.

as per Post Mortem Examination Report issued by Dr. Alfredo B. Villaruel, Rural Health
Physician, Balete, Aklan, hereto attached and made an integral part of this information, which
wounds directly caused the death of the said MAMERTO NALANGAN.

That as a result of the criminal acts of the accused, the heirs of the deceased suffered actual and
compensatory damages in the amount of P50,000.00.

CONTRARY TO LAW.[4]
216
 Upon arraignment, appellants Eufrocino, Ronilo and Ricardo pleaded not guilty to the
charges against them. The cases were consolidated and joint trial ensued.
Accused Fernando and Katimpo remain at large.
The prosecution evidence established the following facts:
On the basis of the prosecution evidence, the following transpired on June 27, 1998: About
5:00 in the morning, Adoracion Castro, together with her husband Dominador Castro and their
nephew Mamerto Nalangan, left their house at Barangay Oquendo, Balete, Aklan. Travelling by
foot, they headed for Barangay Ganzon, Jamindan, Capiz to hear mass at
the Seventh Day Adventist Church. Around 6:30, they reached Jal-O river which was located at
Sitio Panukduka, Barangay Oquendo, Balete, Aklan. As they were crossing the river, one after
the other, Adoracion suddenly heard a gunshot. She immediately turned around as she was
walking ahead of Dominador and Mamerto. She then saw Dominador looking at her, biting his
lips. She shouted at Dominador and told him to duck to the ground. Immediately thereafter, she
heard two shots and saw Dominador and Mamerto fall into the water. She went to the aid of
Dominador and held him in her arms. While holding her husband, Adoracion looked up and saw
the five accused with their bodies, from the waist up, protruding from fox holes dug in the
ground. They were about ten armslength away from Adoracion and Dominador and they were all
armed with shotguns locally known as pugakhang. They immediately ran and scampered to
different directions. Adoracion then told Dominador that she would go back home to ask for
help. However, before leaving her husband and nephew Mamerto, she noticed that both of them
were no longer breathing. She immediately informed her sons, Edwin and Efren, of the deaths of
Dominador and Mamerto.[5] At 11:30 in the morning, Efren and a certain Barangay Captain
Dandoy reported the shooting incident to the police authorities in Balete, Aklan. The chief of
police of Balete then formed a team which proceeded to the crime scene and conducted an
investigation.[6] After finishing their investigation, the police authorities retrieved the bodies of
Dominador and Mamerto and brought them to Sitio Gubang, Barangay Guadalupe where the
bodies were examined.[7] It was around 6:00 in the evening that Adoracion again saw the body of
her husband at Sitio Gubang. There she was asked to identify a person who was earlier
apprehended by the police.Adoracion identified appellant Ricardo Agudez as one of the persons
who shot her husband and nephew.[8] Around 7:00, appellants Eufrocino and Ronilo were also
apprehended by police authorities.[9] The following morning, Adoracion identified them as
among those who killed her husband and nephew.[10]
Adoracion further testified that the five accused shot at her husband and nephew because
they were in the belief that it was her son who had earlier killed a son of appellant Eufrocino.[11]
Appellants main defense is alibi. They, together with two other witnesses, Jenie Zaulda and
Nelson Cerezo, took the witness stand to prove their defense. The gist of their testimonies taken
together is as follows:
Around 6:30 in the morning of June 27, 1998, Jenie went to the house of barangay kagawad
Nelson Cerezo located at Barangay Julita, Libacao, Aklan. Upon arriving at Nelsons house, he
saw appellants Eufrocino and Ricardo getting ready for work. Jenie is acquainted with them as
he has seen them stay in the house of Nelson starting in the month of June 1998. Jenie found out
that Nelson was not at home because he is attending the wake of a certain Iluminado
Sagales. Since Jenie wanted to talk to Nelson, he decided to go to the wake. Appellants Ricardo
and Eufrocino went out of the house with him.[12] Jenie proceeded to the wake but Eufrocino and
Ricardo went to Sitio Gaob, Barangay Julita, Libacao, Aklan to construct a pigpen at the house
of a certain Romeo Zamora.[13] Upon arriving at the wake, Jenie saw Nelson and appellant
Ronilo playing tong-its, a card game. After briefly conversing with Nelson, Jenie went
home.[14] On the other hand, appellants Ricardo and Eufrocino arrived at the house
of Zamora at 8:00 of the same morning and worked there until 3:00 in the afternoon of the same
day. After they finished constructing the pigpen, they went home. They arrived at the house of
Nelson at 4:30 of the same afternoon.[15] Meanwhile, Nelson and appellant Ronilo arrived home
earlier at 2:00 in the afternoon, having stayed at the wake since 9:00 in the evening of the
previous day, January 26, 1998.[16] It was in Nelsons house that police authorities apprehended

217
appellant Ricardo in the afternoon of June 27, 1998.[17] Later in the evening of the same day,
appellants Eufrocino and Ronilo were also arrested by policemen at the house of Nelson.[18]
On January 14, 1999, the trial court rendered a decision, the dispositive portion of which
reads:

WHEREFORE, premises considered, this Court finds the accused Eufrocino Agudez y Asiong,
Ronilo Agudez y Cocoy and Ricardo Agudez y Cocoy, GUILTY beyond reasonable doubt of
two (2) counts of MURDER under Article 248 of the Revised Penal Code, as amended by R.A.
7659, and hereby imposes upon each of them the penalty of DEATH for each count, and further
ORDERS them to jointly and severally pay

1) To the legal heirs of the victim Dominador Castro:

a) The amount of P50,000.00 for the victims death; and

b) The amount of P159,960 for the victims loss of earning capacity.

2) To the legal heirs of the victim Mamerto C. Nalangan:

a) The sum of P50,000.00 only for the victims death.

And lastly, for the time being, let these cases before this Court against the accused Fernando C.
Agudez and Paquito I. Katimpo who, as of this moment, are still at large, be sent to the Archives,
to be reopened only upon their apprehension by the authorities.

With costs.

SO ORDERED.[19]

Hence, herein automatic review pursuant to Article 47 of the Revised Penal Code, as
amended.
Appellants raise the following Assignment of Errors:
I

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE TRIAL COURT ERRED IN APPRECIATING TREACHERY AND EVIDENT

PREMEDITATION AGAINST THE ACCUSED

III

THE TRIAL COURT ERRED IN APPRECIATING BAND AND UNINHABITED PLACE

AGAINST THE ACCUSED.[20]

On the Credibility of Prosecution Eye-witness

In their first assigned error, appellants assail the credibility of prosecution witness
Adoracion Castro who is the lone eyewitness to the crime. They claim that Adoracion could not
have clearly seen the perpetrators of the crime because of the presence of foliage around the
holes where the assailants hid. However, SPO2 Jerry Custodio testified that from the vantage
point where the holes were located, the cadavers of the victims could still be seen despite the
presence of plants in the adjoining area.[21] Hence, while it may be true that Adoracion did not
have a clear line of vision because of the foliage surrounding the holes where appellants and their

218
companions hid, it is not improbable for her to have seen and identified appellants as three of the
five assailants of her husband and nephew, when they emerged from the holes and scampered to
different directions.Moreover, Adoracion could have easily identified appellants as she was only
about ten armslength away from the place where she saw them and considering that all five
accused were known to her since January 1998.[22]
Appellants insinuate that Adoracion was ill-motivated in accusing them of killing her
husband and nephew. They claim that Adoracion simply wanted appellants thrown into jail to
avenge the death of her husband. However, we find appellants allegations unsubstantiated. The
fact that Adoracion is related to the victims does not necessarily taint her testimony. Blood
relationship between a witness and the victims does not, by itself, impair the witness
credibility.[23] As the widow and aunt of the victims Dominador and Mamerto, respectively,
Adoracion is the most aggrieved party and her motive of putting the killers behind bars cannot be
considered improper.[24] We have held that it is unnatural for an aggrieved relative who earnestly
seeks justice to falsely accuse someone other than the actual culprit. Moreover, since there is no
competent evidence to prove that improper motive moved Adoracion to testify falsely, the sound
conclusion is that no such motive existed[25] and her testimony is worthy of full faith and
credit.[26]
The truthfulness of Adoracions testimony is also bolstered by the fact that evidence found in
the crime scene, consisting of spent shells of shotguns, the number of wounds sustained by the
victims and the pellet recovered from the left wrist of Dominador Castro during the autopsy[27] is
consistent with her statement as to the kind of weapons used by appellants and their companions.
The trial court lent credence to the testimony of Adoracion. Basic is the rule that this Court
will not interfere with the trial courts assessment of the credibility of witnesses except when
there appears on record some fact or circumstance of weight and influence which the trial court
has overlooked, misapprehended or misinterpreted.[28] The reason for this rule is that the trial
court is in a better position to decide the question, having heard the witnesses themselves and
observed their deportment and manner of testifying during the trial.[29] In People vs.
Magallanes[30], we held that:

The trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a
discovered lie, the tremulous mutter of a reluctant answer, or the forthright tone of a ready reply,
or the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor
or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.

In the present case, we find no compelling reason to depart from the trial courts observation
that Adoracion Castro testified in a straightforward, sincere and natural manner and that her
emotional reactions in particular, were candid and spontaneous revealing inter alia that she was
telling the truth.[31] The testimony of a single witness, if positive and credible, is sufficient to
support a conviction.[32] The trial court did not err in finding appellants guilty of Murder beyond
reasonable doubt.
On Conspiracy
We agree with the trial courts finding of conspiracy. Conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit
it.[33] In People vs. Caballero, we held that:

Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by
proof beyond reasonable doubt. However, direct proof is not required as conspiracy may be
proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the
accused, before, during and after the commission of a felony, all the accused aiming at the same
object, one performing one part and another performing another for the attainment of the same
objective, their acts though apparently independent were in fact concerted and cooperative,
indicating closeness of personal association, concerted action and concurrence of
sentiments. The overt act or acts of the accused may consist of active participation in the actual

219
commission of the crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan. Direct proof of a person in agreement
to commit a crime is not necessary. It is enough that at the time of the commission of a
crime, all the malefactors had the same purpose and were united in their execution. Once
established, all the conspirators are criminally liable as co-principals regardless of the degree of
participation of each of them for in contemplation of the law, the act of one is the act of
all.[34] (Emphasis supplied).

In the present case, the following circumstances prove the existence of conspiracy among
the appellant and the other two accused: (1) the presence of all the accused at the same time in an
isolated area where the killing took place; (2) the existence of five holes from each of which each
of the five accused emerged; (3) all five of the accused were armed with shotguns or pugakhang;
(4) after the victims fell when fired upon by all of them, all the accused simultaneously came out
of hiding and scampered to the thickets. In conspiracy, where conspiracy is directly established,
with proof of the attendant deliberation and selection of the method, time and means of executing
the crime, the existence of evident premeditation can be appreciated.[35]
The second and third assigned errors refer to the appreciation by the trial court of the
aggravating circumstances of treachery, evident premeditation, band and uninhabited place.
On Treachery
There is treachery when the offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make.[36] Hence, for treachery to be appreciated, two conditions must be met, to wit: (1) the
employment of means, methods or manner of execution that would ensure the offenders safety
from any defense or retaliatory act on the part of the offended party; and (2) the offenders
deliberate or conscious choice of the means, method or manner of execution.[37]
Adoracion did not actually see how the shooting started or how the attack was
commenced. However, she testified that she was only about five armslength away from her
husband and nephew when she heard the first gunshot. No amount of warning could have
prepared the victims against the impending danger that befell upon them. The essence of
treachery is that the attack is deliberate and without warning, done in a swift and unexpected
manner of execution, affording the hapless and unsuspecting victim no chance to resist or
escape.[38] When they were assaulted, the victims were peacefully crossing the Jal-O river
without any inkling that they were about to be attacked. Appellants and their companions
purposively established themselves in strategic positions from which vantage point they fired
upon the victims, taking them by surprise. The fact that the victims backs were turned towards
their assailants at the time they were fired upon only proves the treacherousness of the attack.
The victims were not even given the chance to face their attackers as they were felled by
successive bursts of gunshots. Moreover, at the time of the shooting, the victims were then
crossing the river and the water was about thigh deep.[39] This circumstance must have
considerably decreased the victims mobility giving them less opportunity to seek cover and at the
same time ensured the safety of appellants and their cohorts from any retaliatory act that the
victims might have made. Except for their bags and the hoe Dominador was carrying, the victims
were unarmed and had nothing to defend themselves with against the firearms used by their
assailants. Even granting that Dominador and Mamerto saw their attackers immediately before
they were fired upon, such circumstance would not render the attack less treacherous as it was
executed with such swift, vicious and stealthy manner as to render any defense like the use of the
hoe virtually impossible.
Furthermore, the deadly nature of the weapons used and the number and location of the
wounds inflicted upon the victims demonstrate a treacherous, deliberate and determined assault
with intent to kill. As earlier mentioned, Dominador Castro sustained nine wounds.[40] Except for
a single wound on his left wrist, all of his wounds were located at his back.[41] In the same
manner, Mamerto Nalangan sustained ten wounds, all of which were located at his back.[42] The
victims were shot from behind. We have held that treachery exists when a defenseless victim was

220
shot from behind for this shows that the appellant had employed means of attack which offered
no risk to himself from any defensive or retaliatory act which the victim might have taken.[43]
On Evident Premeditation
Evident premeditation requires proof showing: (1) the time when the accused determined to
commit the crime; (2) an act manifestly indicating that the accused has clung to his
determination; and (3) sufficient lapse of time between such determination and execution to
allow him to reflect upon the consequences of his act.[44]
In the present case, we find no clear and positive evidence to prove the first and third
requisites. While there are pieces of evidence on the basis of which it can be inferred that
appellants and their companions made preparations in shooting the victims, no proof was shown
as to how and when the plan to kill was hatched or the time that elapsed before it was carried
out. As we held in People vs. Jarlos,[45] evident premeditation may not be appreciated where
there is no proof as to how and when the plan to kill was hatched or the time that elapsed before
it was carried out.
Since there is no evidence of the time when appellants conceived the plot to kill the victims,
it could not be ascertained whether there is sufficient lapse of time between the determination to
kill and the execution of the crime so as to allow them to reflect upon the consequences of the
concerted act.
On Abuse of Superior Strength
Since treachery attended the killing, abuse of superior strength alleged in the Information is
absorbed by said circumstance.[46]
Although it may be noted that the two Informations charging appellants with separate crimes
of murder failed to specifically allege treachery, evident premeditation and abuse of superior
strength as qualifying circumstances, the established rule is that . . .

[I]t is the specific allegation of the attendant circumstance, and not the use of the
words aggravating or qualifying circumstances, that raises a crime to a higher category. Thus,
the words qualifying, qualified by, aggravating, or aggravated by need not be expressly stated as
long as the particular attendant circumstances are specified in the information. We reiterate our
pronouncements in said case that Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal
Procedure merely require that the information allege, specify, or enumerate the attendant
circumstances mentioned in the law that qualify or aggravate the offense.[47]

Hence, in the present case, while the two Informations charging appellants with separate
crimes of murder did not use the words aggravated by or qualified by, the presence of treachery,
evident premeditation and abuse of superior strength in the killing of Dominador and Mamerto is
alleged therein. Such specification, enumeration or allegation sufficiently satisfies the
requirements of Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, to wit:

Sec. 8. Designation of the offense. The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.

Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment.

The qualifying circumstance of treachery having been alleged and proved by competent
evidence, the trial court correctly found appellants guilty of Murder beyond reasonable doubt.
On Band and Uninhabited Place

221
 We agree with appellants that the aggravating circumstances of band and uninhabited place
although established by the prosecution evidence should not have been appreciated by the trial
court because they were not alleged in the two Informations as required by the aforequoted
Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure. It may be noted that the
crime was committed in 1998, before the effectivity of the said Revised Rules on December 1,
2000. However, the Rules may be applied retroactively because they are more favorable to the
appellants.[48]
Appellants Defense
Appellants defense of alibi cannot prosper. Basic is the rule that the defense of alibi should
be rejected when the identity of the accused has been sufficiently and positively established by
an eyewitness because alibi cannot prevail over positive identification.[49]
Criminal Liability of Appellants
Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion
perpetua to death. Article 63 of the same Code provides that when the law prescribes two
indivisible penalties, the lesser penalty shall be imposed when, in the commission of the deed,
there are neither mitigating nor aggravating circumstances. In the present case, no mitigating
circumstances were proven. Neither did the prosecution allege and prove any aggravating
circumstance. Hence, the penalty of death imposed by the trial court should be reduced
to reclusion perpetua, in each case.
Civil Liability of Appellants
We find no error in the trial courts award of P50,000.00 as civil indemnity to the respective
heirs of Dominador Castro and Mamerto Nalangan, without need of proof other than the fact that
a crime was committed resulting in the deaths of the victims and that the accused are responsible
therefor.[50]
The trial court awarded the heirs of Dominador Castro the amount of P159,960.00 by reason
of the victims loss of earning capacity. The general rule is that documentary evidence should be
presented to substantiate a claim for damages for loss of earning capacity.[51] By way of
exception, damages may be awarded despite the absence of documentary evidence provided that
there is testimony that the victim was either (1) self-employed earning less than the minimum
wage under current labor laws, and judicial notice may be taken of the fact that in the victims
line of work no documentary evidence is available; or (2) employed as a daily wage worker
earning less than the minimum wage under current labor laws.[52] In the present case, no
documentary evidence was presented to prove the claim of Dominadors heirs for damages by
reason of loss of earning capacity. However, Adoracion testified that at the time of his death,
Dominador was 60 years old[53]; his occupation was farming, carpentry and making of banana
fiber; and, he earned not less than P1,000.00 a month.[54] We find Adoracions testimony
sufficient to justify the award of damages for loss of earning capacity.
Although appellants did not assail the amount awarded by the trial court, the same should be
modified in accordance with current jurisprudence. In the case of People vs. Carriaga,[55] we
provided for the formula in determining a persons net earning capacity as follows:
Net Earning Capacity = 2/3 x (80 age of the x (a reasonable
victim at the time portion of the
of his death) annual net
income which
would have
been received
by the heirs
for support)
Absent any proof of living expenses, the net income is deemed to be 50% of the gross
income.[56] Hence, in accordance with the formula outlined above, the heirs of Dominador should
be awarded the amount of P80,000.00, rounded off, for the victims loss of earning capacity,
computed as follows:

222
 Net Earning Capacity = 2/3 x (80-60) x [P12,000.00 - (P12,000.00)]
= 2/3 x (20) x P6,000.00
= 13.33 x P6,000.00
= P79,999.99
The trial court correctly ruled that the heirs of Mamerto Nalangan are not entitled to be
indemnified for loss of earning capacity because no evidence was presented to prove Mamertos
occupation as well as his income.
We likewise find no error in the trial courts ruling that actual or compensatory damages may
not be awarded because the prosecution failed to present competent evidence to support their
claim for actual damages. Instead of official receipts, the prosecution was only able to present a
self-serving list of expenses to prove the actual expenses incurred by the heirs of Dominador and
Mamerto. We have held that a list of expenses cannot replace receipts when the latter should
have been issued as a matter of course in business transactions.[57] Neither can the mere
testimonies of Adoracion Castro and Efren Castro on the amount they spent suffice. It is
necessary for a party seeking an award for actual damages to produce competent proof or the
best evidence obtainable to justify such award.[58]
Nonetheless, in lieu of actual damages, the heirs of Dominador and Mamerto may be
awarded temperate damages in the amount of P25,000.00, in accordance with prevailing
jurisprudence, as it has been shown that the family of the victims incurred burial and funeral
expenses, although the amount thereof cannot be proved with certainty.[59]
The trial court did not award moral damages.
With respect to Dominador, the prosecution presented Adoracion Castro, wife of the
deceased victim who testified as to the pain and the suffering experienced by the heirs.[60] Hence,
the heirs of Dominador Castro are entitled to moral damages in the amount of P50,000.00.
On the other hand, none of the heirs of Mamerto Nalangan was presented to testify on the
emotional anguish they felt by reason of the latters death. Moral damages cannot be awarded if
no evidence, testimonial or otherwise, was presented by the prosecution to support it. [61] Hence,
the heirs of Mamerto are not entitled to moral damages.
The heirs of the victims are entitled to exemplary damages. The presence of the aggravating
circumstances of band and uninhabited place was proven in the present case as earlier
discussed. While these circumstances could not aggravate the crime because they were not
specifically alleged in the Informations in violation of Section 8, Rule 110 of the Revised Rules
of Criminal Procedure, insofar as the civil aspect of the case is concerned, the presence of these
aggravating circumstances entitles the heirs of Dominador and Mamerto to exemplary damages
in the amount of P25,000.00 in accordance with Article 2230 of the Civil Code[62] and with
prevailing jurisprudence.[63]
WHEREFORE, the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 2, is
AFFIRMED with MODIFICATIONS. Appellants Eufrocino Agudez y Asiong, Ronilo Agudez y
Cocoy and Ricardo Agudez y Cocoy are found guilty beyond reasonable doubt of Murder in
Criminal Cases Nos. 5176 and 5177 and are sentenced to suffer the penalty of reclusion
perpetua for each crime. Appellants are directed to pay, jointly and severally, the heirs of
Dominador Castro the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P80,000.00 for loss of earning capacity, P25,000.00 as temperate damages
and P25,000.00 as exemplary damages; and to the heirs of Mamerto Nalangan the amounts
of P50,000.00 as civil indemnity, P25,000.00 as temperate damages and P25,000.00 as
exemplary damages.
Costs de oficio.
SO ORDERED.

223
G.R. Nos. 108172-73 May 25, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CONRADO LUCAS Y BRIONES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

DAVIDE, JR., J.:

In a sworn statement 1 taken on 16 February 1991, Chanda Lucas y Austria, then seventeen years
old, charged her natural father, accused Jose Conrado Lucas, of attempted rape committed
against her on 12 February 1991. She revealed therein that she was first raped by him when she
was only nine years old, or, as disclosed in a handwritten note at the left-hand margin of her
sworn statement, "noong Nov. 26, 1982 . . . at naulit ng maraming beses."

On 19 February 1991, Chanda, assisted by her mother, Ofelia Austria-Lucas, filed two separate
sworn criminal complaints for rape 2 and for attempted rape 3 against her father with the
Regional Trial Court of Quezon City. The complaints, docketed as Criminal Cases Nos. Q-91-
18465 and Q-91-18466, were subsequently assigned to Branch 104 of the said court.

The accusatory portion of the complaint for rape in Criminal Case

No. Q-91-18465 reads:

That on or about the 26th day of November 1982 and sometime thereafter in
Quezon City, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd designs and by means of violence and
intimidation did then and there, wilfully, unlawfully and feloniously have sexual
intercourse with the undersigned CHANDA LUCAS Y AUSTRIA, who was
then nine (9) years old, now 17 yrs. of age, against her will, to her damage and
prejudice in such amount as may be awarded to her under the provisions of the
New Civil Code.

while that for attempted rape in Criminal Case No. Q-91-18466 reads:

That on or about the 12th day of February 1991, in Quezon City, Philippines and
within the jurisdictionof this Honorable Court, the above named accused, did then
and there wilfully, unlawfully and feloniously with lewd design and by means of
force and intimidation, commence the commission of the crime of rape directly by
overt acts by then and there taking advantage of complainant's tender age and
innocence, by then and there putting his hand inside the panty of the undersigned
and mashing her vagina while his other hand was pressing her nipples and at the
same time kissing her on the lips, face and neck, thereafter accused placed himself
on top of her but said accused did not perform all the acts of execution which
should produce the said offense of rape by reason of the fact that the brother and
sister of the undersigned was awakened and shouted upon the accused, a cause
other than thespontaneous desistance of the said accused, that the aforesaid act of
the said accused was done against the will of the undersigned, to her damage and
prejudice in such amount as may be awarded to her under the provisions of the
New Civil Code.

224
The cases were jointly tried after the accused had pleaded not guilty upon his arraignment. 4 The
prosecution presented as witnesses the complainant herself; her sister, Cynthia; and Dr.
Emmanuel Aranas. The defense presented only the accused.

Complainant Chanda Lucas, who was born on 2 June 1973, 5 testified that their0 house at 23-X
Daropa Road, Baesa, Quezon City, has only one bedroom. On 26 November 1983, she was
sleeping in the bedroom with her brother and sisters. Their mother did not sleep in their house at
that time. At about 2:00 to 3:00 a.m., she awoke and realized that her father was removing her
panty and shorts. He cautioned her to keep quiet. Then, her father, who was already naked, went
on top of her and placed his sexual organ inside her vagina. She was hurt but did not resist
because her father threatened to kill her. Only her older sister Cynthia witnessed the incident.
Chanda reported the incident to her mother and her aunt but the former did nothing. When her
aunt said that her father should be jailed, her mother did not agree. 6

The 26 November 1983 incident was only the first of many atrocities. Since then, her father had
been repeatedly molesting her, especially when her mother was not around. The last assault on
her womanhood occurred on 12 February 1991 when she was already seventeen years old.
Before he had sex with her at 3:00 a.m. on 12 February 1991, he first moved her brothers and
sisters, who were sleeping in the same room with her, to another place. She did not resist because
he had a balisong with him and told her that he can take her life anytime. After the sexual
assault, he stood up holding his balisong 7 and again said that she has only one life and that he
can take it anytime.

On the morning of 16 February 1992, in the company of her mother and uncle, she reported the
incident to the police in their area. The police investigator questioned her and her sworn
statement (Exhibit "D") was taken. In the afternoon of that day, she submitted to a medical
examination at Camp Crame and a medical certificate was issued. 8

Cynthia Lucas Viado, the elder sister of Chanda, testified that she witnessed the incident of 26
November 1983. She was then thirteen years old while Chanda was only nine years old. She saw
his father on top of Chanda, then she closed her eyes and covered her face with a blanket. She
reported the incident and the fact that she saw blood on the underwear of Chanda to her aunt
Neneng and her mother; the former was very angry upon learning of the incident but the latter
did not believe her; at that time, her mother loved her father
dearly. 9 On cross- examination, Cynthia declared that her father intended to sexually abuse her
on 26 November 1983 but because she resisted, her father instead raped Chanda. She was not
able to help Chanda because she was afraid of her father. Their brother and another sister were
not aware of the incident and they did not wake them up because they were ashamed of their
neighbors. 10

Dr. Emmanuel Aranas testified that he examined the complainant on 16 February 1991 at the
Crime Laboratory Services at Camp Crame pursuant to a letter-request 11 from Capt. Jaime Q.
Peralta of the Central Police district, Quezon City. His examination of her genitalia disclosed
healed lacerations, but he could not determine when the lacerations were inflicted or sustained.
He concluded that the complainant has had several sexual experiences and was no longer a
virgin. 12 He issued a written report of his findings. 13 On cross-examination, he declared that he
found no sperm on the organ of the complainant and that there were no signs of recent trauma or
physical injuries on her. 14

On the witness stand, the accused testified that he and Chanda's mother, Ofelia Austria, are not
married; however, since 1969, they had been living together as husband and wife until 1972,
when he was detained for alleged gunrunning and when Ofelia and the children moved to
Cotabato. They were reunited in 1977. He denied having raped his second daughter, Chanda, and
alleged that the brothers and sisters of Ofelia, particularly Leonardo Austria, were all angry at
him and instigated the filing of the fabricated charges against him. He further declared that
Ofelia was angry at him because he intervened in guiding the life of Chanda. He could not recall
anymore where he was on 26 November 1983. However, on 12 February 1991, he and Ofelia

225
quarreled about Chanda's frequent late arrivals from school and, because of the quarrel, he
"physically harmed" both of them. 15

On 28 October 1992, the trial court promulgated its decision 16 in the two cases finding the
accused guilty beyond reasonable doubt of two crimes of rape. The dispositive portion of the
decision reads:

WHEREFORE, judgment is rendered as follows:

In Crim. Case No. Q-91-18465, the prosecution was able to establish the guilt of
the accused beyond reasonable doubt of the crime of rape as charged in the
information, he is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA plus all the accessory penalties provided by law.

In Crim. Case No. Q-91-18466, the prosecution was able to establish the guilt of
the accused beyond reasonable doubt of the crime of rape as charged in the
information, he is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA, plus all the accessory penalties provided by law.

Accused is ordered to pay the victim the sum of P30,000.00 as actual and moral
damages without subsidiary imprisonment in case of insolvency. 17

On 4 November 1992, the accused filed a notice of appeal. 18 In his brief submitted to this Court,
he alleges that the trial court erred:

. . . IN GIVING UNMERITED VERACITY TO THE INCREDIBLE,

UNPERSUASIVE AND UNRELIABLE TESTIMONIES OF THE
PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE
ADDUCED BY THE DEFENSE.

II

. . . IN CONVICTING HIM OF THE CRIME OF RAPE IN CRIMINAL CASE

NO. Q-91-18466 INASMUCH AS THE SAME IS MORE SERIOUS THAN
THE OFFENSE CHARGED.

III

. . . IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF RAPE IN

CRIMINAL CASE NO Q-91-18465 DESPITE THE FACT THAT HIS GUILT
WAS NOT PROVED BEYOND REASONABLE DOUBT. 19

As to the first assigned error, the accused asserts that the conduct of his daughters, Chanda and
Cynthia, after the alleged first sexual abuse casts doubt on their credibility. It is hard to believe
that if Chanda were indeed raped by him when she was only nine years old and repeatedly
thereafter, she would report the abuses only when she was seventeen years old. Several remedies
were available to her and she had relatives who could extend their help. 20

He also contends that the testimony of Cynthia is not convincing; it was contrary to human
experience and conduct for her to simply close her eyes and cover her face with a blanket upon
witnessing the rape of her younger sister by their own father instead of helping Chanda. If she
was afraid of her father at that time, she could have convinced Chanda to temporarily leave their
house and seek shelter with her relatives. It was also unnatural for her to abandon Chanda when,
as she claims, she fully knew the bestial tendencies of her father. 21 As to his wife, Ofelia, he
attributes to her an ulterior motive when she consented to the filing of the charges against him.

226
Except for the souring of their relationship which ended in their separation, he finds no possible
explanation why Ofelia believed Chanda's report on the 12 February 1991 incident when she,
Ofelia, refused to heed Chanda and Cynthia's report concerning the 26 November 1983 incident.

Anent the second assigned error, he contends that he could not be validly convicted of rape in
Criminal Case No. Q-91-18466 under a complaint for attempted rape only. He cites the rule that
when the offense proved is more serious than that charged, the accused can only be convicted of
the offense charged.

The appellee, through the Office of the Solicitor General, prays that the judgment of conviction
in Criminal Case No. Q-91-18465 be affirmed in toto. However, it submits that the accused can
be convicted only of attempted rape in Criminal Case No. Q-91-18466. The appellee argues that
the trial court correctly gave credence to the testimony of Chanda as it is "positive,
straightforward and clearly revelatory only of the truth of the facts she experienced, without any
dubious motive shown why she would bear false witness against appellant." 22 The reaction
which the accused expected of Chanda after the first rape and which she did not so manifest does
not necessarily lead to a conclusion that she fabricated her story. As Chanda's father, he
exercised absolute authority and moral influence over her. Moreover, at the tender age of nine,
she was totally helpless and defenseless. And regarding the imputed motive of Chanda's mother,
the same is too trivial to prompt her to falsely charged him with a grave crime.

The first and third assigned errors raise a question of fact which hinges on the credibility of the
prosecution witnesses. The second involves a question of law.

In rape cases, this Court has been guided by three well-entrenched principles: (1) an accusation
for rape can be made with facility; it is difficult to prove but more difficult for the person
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on
its own merits and cannot be allowed to draw strength from the weakness of the evidence for the
defense. 23

Conclusions as to the credibility of witnesses in rape cases lie heavily on the sound judgment of
the trial court. Accordingly, in the appreciation of the evidence, the appellate court accords due
deference to the trial court's views on who should be given credence since the latter is in a better
position to decide the question of the credibility of witnesses, having seen and heard these
witnesses and observed their deportment and manner of testifying during the trial. The trial
court's findings concerning the credibility of witnesses carry great weight and respect and will be
sustained by the appellate court unless the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance which would have affected the result of the
case. 24

After a careful examination of the records and the evidence, we are unable to find any cogent
reason to disturb the finding of the trial court that the accused raped his daughter, Chanda, on 26
November 1983 and 12 February 1991.

As regards the first charge, there is, however, a variance between the evidence presented and the
allegations of the complaint. The complaint in Criminal Case No. Q-91-18465 charges the
accused with the crime of rape committed on 26 November 1982. Both Chanda and Cynthia,
however, testified that the incident took place on 26 November 1983. 25 The accused offered no
objection to such evidence. Consequently, the variance was not fatal to the prosecution.

In United States vs. Arcos, 26 this Court ruled:

Where time or place or any other fact alleged is not an essential

element of the crime charged, conviction may be had on proof of
the commission of the crime, even if it appear that the crime was

227
 not committed at the precise time or placed alleged, or if the proof
fails to sustain the existence of some immaterial fact set out in the
complaint, providing itappears that the specific crime charged was
in fact committed prior to the date of the filing of the complaint or
information within the period of the statute of limitations, and at a
place within the jurisdiction of the court. (U.S. vs. Smith, and
cases cited, 2 Phil. Rep., 20).

The unobjected testimony of another date of the commission of the crime charged in Criminal
Case No. Q-91-18465 could even be the basis for an amendment of the complaint to make it
conform to the evidence. 27

Section 14, Rule 110 of the Rules of Court also provides:

Sec. 14. Amendment. The information or complaint may be amended, in

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

xxx xxx xxx

Chanda was less than twelve years old when she was raped by the accused on 26 November
1983. Since she was born on 2 June 1973, she was then exactly ten years, five months, and
twenty-four days old.

Article 335 of the Revised Penal Code reads:

Art. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve (12) years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.

xxx xxx xxx

The third paragraph is known as statutory rape or the unlawful carnal knowledge of a
woman below 12 years of age. 28 Otherwise stated, carnal knowledge alone is sufficient
for conviction as the presence of any of the circumstances mentioned in paragraphs 1 and
2 of Article 335 is not required. 29

As found by the trial court and fully supported by the evidence, the accused had carnal
knowledge of his daughter Chanda then below twelve years old on 26 November 1983.
We are not persuaded by the arguments of the accused that if indeed she were raped on that date
and several times thereafter, she should not have kept her silence until she was seventeen years
old since she had all the available remedies for redress as well as relatives who could help her.
The equanimity or the wisdom of more mature persons cannot be expected from a young and
immature girl like Chanda. We have said before that the workings of a human mind when placed
under emotional stress are unpredictable and that people react differently to various situations. 30

In addition to her tender age and immaturity, Chanda was, to say the least, a victim of
unfavorable circumstances not of her own making. These prevented her from exposing earlier the
evil deeds of her father. All that she could proudly claim was a beautiful name Chanda. She

228
had no decent home. Her father and her mother were not married and were untrammeled by the
bonds of lawful wedlock. When she was born, her father was under detention for gunrunning and
it was only when she was four years old (1977) when he rejoined his "family." Since then, all the
members of the family slept in one room. Chanda had no choice of another home, for it does not
appear that another was available to the family or that she was prepared to leave it because she
had the means to face life alone or that a kind soul had offered her shelter. She was a victim of
poverty and a virtual captive in the only "home" her natural parents could provide, for she was
entirely dependent upon them.

Verily, she was completely under the moral ascendancy and control of her father and the fear
alone of a harsher life outside such a "home" and of what her father would do if she would
expose his evil deeds, made her suffer in silence for a long time the excruciating pains his
assaults inflicted upon her. Then too, although she told her mother about the abuse committed by
her father on 26 November 1983, 31 her mother only got angry but did not do anything. Chanda
must have felt despair at such indifference.

Her delay in reporting the sexual assaults to the authorities is thus understandable and does not
affect her credibility. We do not believe that she would fabricate a story of defloration against
her own father, make public her painful and humiliating experiences which are better kept in
secret or forgotten, allow her private parts to be examined, and eventually bring to shame her
own family and jeopardize her chances of marriage unless she was not telling the truth and was
motivated by nothing but the desire to obtain justice for the grievous wrongs committed against
her. 32

There was a consummated rape on 12 February 1991. According to Chanda's testimony, at 3:00
a.m. that day, the accused, who had a balisong with him, laid down beside her, threatened her
that she had only one life which he can take away any time; removed her shorts and panty and
then moved on top of her and inserted "his organ to her organ." Thereafter, he stood up holding
his balisong and reiterated his earlier threat. 33

Considering, however, that the complaint for this incident subject of Criminal Case No. Q-91-
18466 charges the accused with the crime of attempted rape, then, as correctly pointed out by the
accused in his second assigned error and concurred in by the Office of the Solicitor General, he
cannot be convicted of consummated rape.

Section 4, Rule 120 of the Rules of Court provides that "[w]hen 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." The offense charged in Criminal Case
No. Q-91-18466 (attempted rape) is necessarily included in the offense that was proved
(consummated rape). Accordingly, the accused should be convicted of attempted rape only. The
penalty for attempted rape is prision mayor, which is two degrees lower than that provided by
law for rape. 34 The accused is entitled to the benefits of the Indeterminate Sentence Law, and for
attempted rape he may be sentenced to a penalty whose minimum should be within the range
of prision correccional and whose maximum should be within the range range of prision mayor,
taking into account the modifying circumstances. The alternative circumstance of relationship
provided for in Article 15 of the Revised Penal Code should be appreciated against the accused
considering that the offended party, Chanda, is his descendant. In crimes against chastity, such as
rape, relationship is aggravating. 35

Prior to R.A. No. 7659, 36 the presence of modifying circumstances would not affect the penalty
of reclusion perpetuaprescribed for the crime of rape because such a penalty was then indivisible
and under Article 63 of the Revised Penal Code, when the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed. However, pursuant to Section

229
21 of R.A. No. 7659, which amended Article 27 of the Revised Penal Code, reclusion
perpetua has now a defined duration, i.e., from twenty (20) years and one (1) day to forty (40)
years. There is, however, no corresponding amendment to Article 76 of the same Code for the
purpose of converting reclusion perpetua into a divisible penalty with three specific
period minimum, medium, and maximum and including it in the table provided therein
showing the duration and the time included in each of the periods.

It may thus be said that although the law has now fixed the duration of reclusion perpetua, it did
not make explicit its intention to convert it into a divisible penalty. In any event, Article 65 of the
Code which provides:

Art. 65. Rules in cases in which the penalty is not composed of three periods.
In cases in which the penalty prescribed by law is not composed of three periods,
the courts shall apply the rules contained in the foregoing articles, dividing
into three equal portions of time included in the penalty prescribed, and forming
one period of each of the three portions.

may be applied. Accordingly, the time included in the penalty of reclusion

perpetua (twenty [20] years and one [1] days to forty [40] years) can be divided into three
equal portions, with each composing a period. The periods of reclusion perpetua would
then be as follows:

minimum 20 years and 1 day to

26 years and 8 months

medium 26 years,
8 months and 1 day to
33 years and 4 months

maximum 34 years, 4 months and

1 day to 40 years

[G.R. No. 143468-71. January 24, 2003]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE LIZADA @

FREDIE LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision[1] of the Regional Trial Court of Manila, Branch
54, finding accused-appellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts
of qualified rape and meting on him the death penalty for each count.

I. The Charges

Accused-appellant[2] was charged with four (4) counts of qualified rape under four separate
Informations. The accusatory portion of each of the four Informations reads:

That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully and feloniously, by means of force, violence and

230
intimidation upon the person of one ANALIA ORILLOSA y AGOO, by then and there
embracing her, kissing and touching her private parts, thereafter removing her skirt and panty,
placing himself on top of her and trying to insert his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA ORILLOSA y AGOO, against her will and
consent.

Contrary to law.

XXX

That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and
there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law.

XXX

That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and
there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law.

XXX

That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with
lewd designs, did then and there willfully, unlawfully and feloniously, by means of force,
violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and
there embracing her, kissing and touching her private parts, thereafter removing her skirt and
panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law.[3]

The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-
171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and
entered a plea of not guilty to each of the charges.[4] A joint trial then ensued.

II. Evidence of the Prosecution[5]

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3)
children, namely: Analia, who was born on December 18, 1985;[6] Jepsy, who was 11 years old,
and Rossel, who was nine years old. However, the couple decided to part ways and live

231
separately. Rose left Bohol and settled in Manila with her young children. She worked as a
waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at
No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her
job as a waitress. She secured a loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video
shop in her house. She sold Avon products from house to house to augment her
income. Whenever she was out of their house, Rossel and Analia took turns in tending the video
shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top
of her, removed her T-shirt and underwear. He then inserted his finger in her vagina. He
removed his finger and inserted his penis in her vagina. Momentarily, she felt a sticky substance
coming out from his penis. She also felt pain in her sex organ.Satiated, accused-appellant
dismounted but threatened to kill her if she divulged to anyone what he did to her. Accused-
appellant then returned to his room. The incident lasted less than one hour. Petrified by the
threats on her life, Analia kept to herself what happened to her.[7]
Sometime in August 1997, accused-appellant entered again the room of Analia, placed
himself on top of her and held her legs and arms. He then inserted his finger into her sex organ
(fininger niya ako). Satiated, accused-appellant left the room. During the period from 1996 to
1998, accused-appellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her
assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his
mother was away. Analia went into her room and lay down in bed. She did not lock the door of
the room because her brother might enter any time. She wanted to sleep but found it difficult to
do so. Accused-appellant went to his room next to the room of Analia. He, however, entered the
room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did
not mind accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on top of her, held
her hands and legs and fondled her breasts. She struggled to extricate herself. Accused-appellant
removed her panty and touched her sex organ. Accused-appellant inserted his finger into her
vagina, extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia
after drinking water from the refrigerator, and peeped through the door. He saw accused-
appellant on top of Analia. Accused-appellant saw Rossel and dismounted. Accused-appellant
berated Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant then
left the room. Analia likewise left the room, went out of the house and stayed outside for one
hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the
sala of the house watching television. Analia tended the video shop. However, accused-appellant
told Analia to go to the sala. She refused, as nobody would tend the video shop. This infuriated
accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop.
When Rose returned, a heated argument ensued between accused-appellant and Analia. Rose
sided with her paramour and hit Analia. This prompted Analia to shout. Ayoko na, ayoko
na. Shortly thereafter, Rose and Analia left the house on board the motorcycle driven by her
mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which
had not yet been returned. When Rose inquired from her daughter what she meant by her
statement, ayoko na, ayoko na, she told her mother that accused-appellant had been touching the
sensitive parts of her body and that he had been on top of her. Rose was shocked and
incensed. The two proceeded to Kagawad Danilo Santos to have accused-appellant placed under
arrest. On November 10, 1998, the two proceeded to the Western Police District where Analia
gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H.

232
Avindante. She related to the police investigator that accused-appellant had touched her breasts
and arms in August, 1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at
3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil, a medico-
legal officer of the NBI. The medico-legal officer interviewed Analia, told him that she was
raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained
her findings during her examination on Analia, thus:

xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed,

hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in
diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense.
Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in
diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1). No evident sign of extragenital physical injuries noted on the body of the subject at the time
of examination.

2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration
by an average-sized adult Filipino male organ in full erection without producing any genital
injury.[9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi
ko. When Rose inquired from her daughter what she meant by her statement, Analia revealed to
her mother that accused-appellant had sexually abused her. On December 15, 1998, Analia
executed a Dagdag na Salaysay ng Paghahabla and charged accused-appellant with rape.[10]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of courtship, he

and Rose agreed in 1994 to live together as husband and wife. He was then a utility worker with
the Navotas Branch of the Philippine Banking Corporation. Rose, on the other hand, was a
waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of
Rose as if they were his own children. He took care of them, as in fact he cooked and prepared
their food before they arrived home from school. At times, he ironed their school uniforms and
bathed them, except Analia who was already big. Analia was hard-headed because she disobeyed
him whenever he ordered her to do some errands. Because of Analias misbehavior, accused-
appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their
house. Another irritant in his and Roses lives were the frequent visits of the relatives of her
husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a
separation pay of P9,000.00 which he used to put up the VHS Rental and Karaoke from which he
earned a monthly income of P25,000.00. While living together, accused-appellant and Rose
acquired two colored television sets, two VHS Hi-fi recorders, one VHS player, one washing
233
machine, one scooter motor, two VHS rewinders, one sala set, one compact disc player and
many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify
against him and used them to fabricate charges against him because Rose wanted to manage their
business and take control of all the properties they acquired during their coverture. Also, Rose
was so exasperated because he had no job.

IV. The Verdict

On May 29, 2000, the trial court rendered judgment against accused-appellant finding him
guilty beyond reasonable doubt of four (4) counts of rape, defined and penalized in the seventh
paragraph, no. 1, Art. 335 of the Revised Penal Code, and meted on him the death penalty for
each count. The dispositive portion of the decision reads:

From all the evidence submitted by the prosecution, the Court concludes that the accused is
guilty beyond reasonable doubt of the crime charged against him in these four (4) cases, convicts
him thereof, and sentences him to DEATH PENALTY in each and every case as provided for in
the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.

SO ORDERED.[11]

V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in his brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT
IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the decision of the trial
court is null and void as it failed to comply with the requirements of Section 14, Article VIII of
the 1987 Constitution and Section 1, Rule 36 of the 1997 Rules of Civil Procedure, as
amended. He avers that the court a quo made no findings of facts in its decision. The trial court
merely summarized the testimonies of the witnesses of the prosecution and those of accused-
appellant and his witnesses, and forthwith set forth the decretal portion of said decision. The trial
court even failed to state in said decision the factual and legal basis for the imposition of the
supreme penalty of death on him. The Solicitor General, on the other hand, argues that there
should be no mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by crowded dockets
and time constraints. Even if the trial court did not elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is valid. In any event, the Solicitor General contends
that despite the infirmity of the decision, there is no need to remand the case to the trial court for
compliance with the constitutional requirement as the Court may resolve the case on its merits to
avoid delay in the final disposition of the case and afford accused-appellant his right to a speedy
trial.

234
 The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987
Constitution provides that no decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based. This requirement is reiterated
and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure, as amended,
which reads:

SEC. 2. Form and contents of judgment.The judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain clearly and
distinctly a statement of the facts proved or admitted by the accused and the law upon which the
judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted
by the acts committed by the accused, and the aggravating or mitigating circumstances attending
the commission thereof, if there are any; (b) the participation of the accused in the commission
of the offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty
imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there is any, unless the enforcement of the
civil liability by a separate action has been reserved or waived.[14]

The purpose of the provision is to inform the parties and the person reading the decision on
how it was reached by the court after consideration of the evidence of the parties and the relevant
facts, of the opinion it has formed on the issues, and of the applicable laws. The parties must be
assured from a reading of the decision of the trial court that they were accorded their rights to be
heard by an impartial and responsible judge.[15] More substantial reasons for the requirement are:

For one thing, the losing party must be given an opportunity to analyze the decision so that, if
permitted, he may elevate what he may consider its errors for review by a higher tribunal. For
another, the decision if well-presented and reasoned, may convince the losing party of its merits
and persuade it to accept the verdict in good grace instead of prolonging the litigation with a
useless appeal. A third reason is that decisions with a full exposition of the facts and the law on
which they are based, especially those coming from the Supreme Court, will constitute a
valuable body of case law that can serve as useful references and even as precedents in the
resolution of future controversies.[16]

The trial court is mandated to set out in its decision the facts which had been proved and its
conclusions culled therefrom, as well as its resolution on the issues and the factual and legal
basis for its resolution.[17] Trial courts should not merely reproduce the respective testimonies of
witnesses of both parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and
the Rules on Criminal Procedure. It merely summarized the testimonies of the witnesses of the
prosecution and of accused-appellant on direct and cross examinations and merely made referral
to the documentary evidence of the parties then concluded that, on the basis of the evidence of
the prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced him to
death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on
their evidence, the issues raised by the parties and its resolution of the factual and legal issues, as
well as the legal and factual bases for convicting accused-appellant of each of the crimes
charged. The trial court rendered judgment against accused-appellant with the curt declaration in
the decretal portion of its decision that it did so based on the evidence of the prosecution. The
trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in
its decision why it believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that the trial court
ignored the evidence of accused-appellant. The trial court did not even bother specifying the
factual and legal bases for its imposition of the supreme penalty of death on accused-appellant
for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the

235
Revised Penal Code. The decision of the trial court is a good example of what a decision,
envisaged in the Constitution and the Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the
decision of the trial court, for compliance with the constitutional provision.However, to avert
further delay in the disposition of the cases, the Court decided to resolve the cases on their merits
considering that all the records as well as the evidence adduced during the trial had been elevated
to the Court.[18] The parties filed their respective briefs articulating their respective stances on the
factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man
of rape is easy but to disprove it is difficult though the accused may be innocent; (2) considering
the nature of things, and only two persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized with great caution; (3) the evidence for the
prosecution must stand or fall on its own merits and not be allowed to draw strength from the
weakness of the evidence of the defense.[19] By the very nature of the crime of rape, conviction
or acquittal depends almost entirely on the credibility of the complainants testimony because of
the fact that usually only the participants can testify as to its occurrence. However, if the accused
raises a sufficient doubt as to any material element of the crime, and the prosecution is unable to
overcome it with its evidence, the prosecution has failed to discharge its burden of proving the
guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:

Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed
on or about October 22, 1998 and on or about September 15, 1998)

Accused-appellant avers that the prosecution failed to adduce the requisite quantum of
evidence that he raped the private complainant precisely on September 15, 1998 and October 22,
1998. Moreover, the medical findings of Dr. Armie Umil show that the hymen of the private
complainant was intact and its orifice so small as to preclude complete penetration by an average
size adult Filipino male organ in full erection without producing any genital injury. The physical
evidence belies private complainants claim of having been deflowered by accused-appellant on
four different occasions. The Office of the Solicitor General, for its part, contends that the
prosecution through the private complainant proved the guilt of accused-appellant for the crime
charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant
testified that since 1996, when she was only eleven years old, until 1998, for two times a week,
accused-appellant used to place himself on top of her and despite her tenacious resistance,
touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the
process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he
did to her.[20] Although private complainant did not testify that she was raped on September 15,
1998 and October 22, 1998, nevertheless accused-appellant may be convicted for two counts of
rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been
committed on or about September 15, 1998 and on or about October 22, 1998. The words on or
about envisage a period, months or even two or four years before September 15, 1998 or October
22, 1998. The prosecution may prove that the crime charged was committed on or about
September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of five (5)
counts of rape, four of which were committed in December 1992 (two counts) and one each in
March and April, 1993 and in November, 1995 and one count of acts of lasciviousness
committed in December 1992, on a criminal complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the
Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs, taking advantage of his superior strength

236
over the person of his own twelve (12) year old daughter, and by means of force, violence and
intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal
knowledge of Myra M. Gianan, against her will and consent, to her damage and prejudice.[22]

On the contention of accused-appellant in said case that his conviction for rape in December
1992 was so remote from the date (November 1995) alleged in the Information, so that the latter
could no longer be considered as being as near to the actual date at which the offense was
committed as provided under Section 11, Rule 110 of the Rules on Criminal Procedure, as
amended, this Court held:

Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so
remote from the date (November 1995) alleged in the information, so that the latter could no
longer be considered as being as near to the actual date at which the offense was committed as
provided under Rule 110, 11.

This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten
counts of rape based on an information which alleged that the accused committed multiple rape
from November 1990 up to July 21, 1994, a time difference of almost four years which is longer
than that involved in the case at bar. In any case, as earlier stated, accused-appellants failure to
raise a timely objection based on this ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how accused-appellant defiled her two
times a week from 1996 until 1998, accused-appellant raised nary a whimper of
protest. Accused-appellant even rigorously cross-examined the private complainant on her
testimony on direct examination. The presentation by the prosecution, without objection on the
part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998
(which includes September 15, 1998 and October 22, 1998) to prove the charges lodged against
him constituted a waiver by accused-appellant of his right to object to any perceived infirmity in,
and in the amendment of, the aforesaid Informations to conform to the evidence adduced by the
prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude
her having been repeatedly sexually abused by accused-appellant. The private complainant being
of tender age, it is possible that the penetration of the male organ went only as deep as
her labia. Whether or not the hymen of private complainant was still intact has no substantial
bearing on accused-appellants commission of the crime.[24] Even the slightest penetration of
the labia by the male organ or the mere entry of the penis into the aperture constitutes
consummated rape. It is sufficient that there be entrance of the male organ within the labia of
the pudendum.[25] In People vs. Baculi, cited in People vs. Gabayron,[26] we held that there could
be a finding of rape even if despite repeated intercourse over a period of four years, the
complainant still retained an intact hymen without injury. In these cases, the private complainant
testified that the penis of accused-appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya yong
ano nya and where did he place it?
A His organ, sir.

237
 Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead
of qualified rape. The evidence on record shows that accused-appellant is the common-law
husband of Rose, the mother of private complainant. The private complainant, as of October
1998, was still 13 years old, and under Article 335 as amended by Republic Act 7659, the
minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victims mother, is a special qualifying circumstance warranting the
imposition of the death penalty.[28] However, said circumstance was not alleged in the
Informations as required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure
which was given retroactive effect by this Court because it is favorable to the accused. [29] Hence,
even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her
mother, accused-appellant is guilty only of simple rape. Under the given law, the penalty for
simple rape is reclusion perpetua. Conformably with current jurisprudence, accused-appellant is
liable to private complainant for civil indemnity in the amount of P50,000.00 and moral damages
in the amount of P50,000.00 for each count of rape, or a total of P200,000.00.

Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about
August 1998 and November 5, 1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is
defective because the date of the offense on or about August 1998 alleged therein is too
indefinite, in violation of Rule 110, Section 11 of the Revised Rules on Criminal Procedure
which reads:

Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint or
information the precise date the offense was committed except when it is a material ingredient of
the offense. The offense may be alleged to have been committed on a date as near as possible to
the actual date of its commission. (11a)[30]

Accused-appellant further asserts that the prosecution failed to prove that he raped private
complainant in August 1998. Hence, he argues, he should be acquitted of said charge. The Office
of the Solicitor General, for its part, argued that the date on or about August 1998 is sufficiently
definite. After all, the date of the commission of the crime of rape is not an essential element of
the crime. The prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the trial.

The Court does not agree with accused-appellant. It bears stressing that the precise date of the
commission of the crime of rape is not an essential element of the crime. Failure to specify the
exact date when the rape was committed does not render the Information defective. The reason
for this is that the gravamen of the crime of rape is carnal knowledge of the private complainant
under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for a bill of
particulars under Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned under the Information and entered a
plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had rested its
case. It was only on appeal to this Court that accused-appellant questioned for the first time the
sufficiency of the Information filed against him. It is now too late in the day for him to do
so. Moreover, in People vs. Salalima,[31] this Court held that:

238
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the
information defective on its face. The reason is obvious. The precise date or time when the
victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal
knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal
Code.As long as it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we ruled that
allegations that rapes were committed before and until October 15, 1994, sometime in the year
1991 and the days thereafter, sometime in November 1995 and some occasions prior and/or
subsequent thereto and on or about and sometime in the year 1988 constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.

In this case, although the indictments did not state with particularity the dates when the sexual
assaults took place, we believe that the allegations therein that the acts were committed sometime
during the month of March 1996 or thereabout, sometime during the month of April 1996 or
thereabout, sometime during the month of May 1996 or thereabout substantially apprised
appellant of the crimes he was charged with since all the elements of rape were stated in the
informations. As such, appellant cannot complain that he was deprived of the right to be
informed of the nature of the cases filed against him. Accordingly, appellants assertion that he
was deprived of the opportunity to prepare for his defense has no leg to stand on.

The prosecution proved through the testimony of private complainant that accused-appellant
raped her two times a week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393,
accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers
that he is not criminally liable of rape. We agree with accused-appellant. The collective
testimony of private complainant and her younger brother Rossel was that on November 5, 1998,
accused-appellant who was wearing a pair of short pants but naked from waist up, entered the
bedroom of private complainant, went on top of her, held her hands, removed her panty, mashed
her breasts and touched her sex organ. However, accused-appellant saw Rossel peeping through
the door and dismounted. He berated Rossel for peeping and ordered him to go back to his room
and to sleep. Accused-appellant then left the room of the private complainant. The testimony of
private complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you
again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while
he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
239
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his
body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing that
you experienced from the hands of the accused was this that last time, the one you
narrated in November 1998?
A Yes, sir.[32]
On cross-examination, the private complainant testified, thus:
Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who
entered was your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but
suddenly I felt that somebody was holding me.

240
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your
legs, is that what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:

241
 Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I
was struggling to free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand
was holding your leg, is that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to
extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in part his sisters
testimony. He testified on direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that
date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.

242
Q Now, on that date, time and place you said you were outside your house, did you stay
the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he
laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie
Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you
see this before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder
sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the
other room and slept, sir.[34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.

243
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister
when you said the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you
were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you
are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty of
your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So---you said the accused was touching your sister. What part of her body was
touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand?
Your sisters body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.

244
 Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that
what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not
correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
In light of the evidence of the prosecution, there was no introduction of the penis of accused-
appellant into the aperture or within the pudendum of the vagina of private complainant. Hence,
accused-appellant is not criminally liable for consummated rape.[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of
consummated acts of lasciviousness defined in Article 336 of the Revised Penal Code or
attempted rape under Article 335 of the said Code, as amended in relation to the last paragraph of
Article 6 of the Revised Penal Code. In light of the evidence on record, we believe that accused-
appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:

Art. 336. Acts of Lasciviousness.Any person who shall commit any act of lasciviousness upon
other persons of either sex, under any of the circumstances mentioned in the preceding article,
shall be punished by prision correccional.[37]

For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to

prove the confluence of the following essential elements:

245
 1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age.[38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality
which has relation to moral impurity; or that which is carried on a wanton manner.[39]
The last paragraph of Article 6 of the Revised Penal Code reads:

There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.[40]

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.[41]

An overt or external act is defined as some physical activity or deed, indicating the intention
to commit a particular crime, more than a mere planning or preparation, which if carried out to
its complete termination following its natural course, without being frustrated by external
obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense.[42] The raison detre for the law requiring a direct overt act is that,
in a majority of cases, the conduct of the accused consisting merely of acts of preparation has
never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is
that quality of being equivocal that must be lacking before the act becomes one which may be
said to be a commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the accused is. [43] It is
necessary that the overt act should have been the ultimate step towards the consummation of the
design. It is sufficient if it was the first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are made.[44] The act done need not
constitute the last proximate one for completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime.[45] In the words of Viada, the overt acts must have
an immediate and necessary relation to the offense.[46]
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory
acts which consist of devising means or measures necessary for accomplishment of a desired
object or end.[47] One perpetrating preparatory acts is not guilty of an attempt to commit a
felony. However, if the preparatory acts constitute a consummated felony under the law, the

246
malefactor is guilty of such consummated offense.[48] The Supreme Court of Spain, in its
decision of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is
necessary that their objective be known and established or such that acts be of such nature that
they themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for designation of the offense.[49]
There is persuasive authority that in offenses not consummated as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained but the same
must be inferred from the nature of the acts executed (accion medio).[50] Hence, it is necessary
that the acts of the accused must be such that, by their nature, by the facts to which they are
related, by circumstances of the persons performing the same, and by the things connected
therewith, that they are aimed at the consummation of the offense. This Court emphasized
in People vs. Lamahang[51] that:

The relation existing between the facts submitted for appreciation and the offense which said
facts are supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able
to cause a particular injury.[52]

If the malefactor does not perform all the acts of execution by reason of his spontaneous
desistance, he is not guilty of an attempted felony.[53] The law does not punish him for his
attempt to commit a felony.[54] The rationale of the law, as explained by Viada:

La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el
autor de la tentativa, despues de haber comenzado a ejecutar el delito por actos exteriores, se
detiene, por un sentimiento libre y espontaneo, en el borde del abismo, salvo esta. Es un
llamamiento al remordimiento, a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario.[55]

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no
conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of
the law requires that the offender, so long as he is capable of arresting an evil plan, should be
encouraged to do so, by saving him harmless in case of such retreat before it is possible for any
evil consequences to ensue. Neither society, nor any private person, has been injured by his
act. There is no damage, therefore, to redress. To punish him after retreat and abandonment
would be to destroy the motive for retreat and abandonment.[56]

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts
him from criminal liability for the intended crime but it does not exempt him from the crime
committed by him before his desistance.[57]
In light of the facts established by the prosecution, we believe that accused-appellant
intended to have carnal knowledge of private complainant. The overt acts of accused-appellant
proven by the prosecution were not mere preparatory acts. By the series of his overt acts,
accused-appellant had commenced the execution of rape which, if not for his spontaneous
desistance, will ripen into the crime of rape. Although accused-appellant desisted from
performing all the acts of execution however his desistance was not spontaneous as he was
impelled to do so only because of the sudden and unexpected arrival of Rossel. Hence, accused-
appellant is guilty only of attempted rape.[58] In a case of similar factual backdrop as this case,
we held:

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal
Code, the appellant can only be convicted of attempted rape. He commenced the commission of
rape by removing his clothes, undressing and kissing his victim and lying on top of
her. However, he failed to perform all the acts of execution which should produce the crime of
rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of

247
the victims brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the
crime committed by the appellant is attempted rape, the penalty to be imposed on him should be
an indeterminate prison term of six (6) years of prision correccional as minimum to twelve (12)
years of prision mayor as maximum.

The penalty for attempted rape is prision mayor which is two degrees lower than reclusion
perpetua.[59] Accused-appellant should be meted an indeterminate penalty the minimum of which
should be taken from prision correccional which has a range of from six months and one day to
six years and the maximum of which shall be taken from the medium period of prision
mayor which has a range of from eight years and one day to ten years, without any modifying
circumstance. Accused-appellant is also liable to private complainant for moral damages in the
amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond
reasonable doubt of simple rape under Article 335 of the Revised Penal Code as amended and is
hereby meted the penalty of reclusion perpetua. Accused-appellant is also hereby ordered to pay
private complainant Analia Orillosa the amounts ofP50,000.00 by way of civil indemnity
and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted
rape under Article 335 of the Revised Penal Code as amended in relation to Article 6 of the said
Code and is hereby meted an indeterminate penalty of from six years of prision correccional in
its maximum period, as minimum to ten years of prision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the
amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found
guilty beyond reasonable doubt of two counts of simple rape, defined in Article 335 of the
Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua for each
count. Accused-appellant is hereby ordered to pay to private complainant Analia Orillosa the
amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.
SO ORDERED.

248
G.R. No. 138742 June 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CHARLIE ESPINOSA, appellant

DECISION

CALLEJO, SR., J.:

This is an automatic review of the Decision1 of the Regional Trial Court of Malolos, Bulacan,
Branch 78, in Criminal Case No. 183-M-98 convicting the appellant Charlie Espinosa of rape,
sentencing him to suffer the penalty of death, and ordering him to pay P50,000.00 as damages.

On February 6, 1998, a Criminal Complaint was filed, with the Regional Trial Court of Malolos,
Bulacan, charging the appellant with aggravated rape, the accusatory portion of which is worded
as follows:

The undersigned complainant, Marilou Arcangel, assisted by her mother, Amelita

Arcangel, underoath (sic) accuses Charlie Espinosa of the crime of rape, penalized under
the provisions of Article 335 of the Revised Penal Code, as amended, committed as
follows:

That in (sic) or about the month of August 1996, in the municipality of Baliuag, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, armed with a fan knife and with the use of force, violence and intimidation, did
then and there wilfully, unlawfully and feloniously have carnal knowledge of the said
Marilou Arcangel, 14 years of age, against her will.

Contrary to law.2

During arraignment, the appellant entered a plea of not guilty. Trial of the case ensued.

The Case for the Prosecution3

One evening in August 1996, Marilou Arcangel, then 14 years of age, together with her five (5)
siblings, were sleeping on the floor in their house in Sta. Barbara, Baliuag, Bulacan. Their
mother, Amelita Arcangel, was at work wrapping bread at a bakery, while their father, Rafael
Arcangel, had gone also to fetch their mother in the tricycle he drove. Marilous uncle, the
appellant, was temporarily vacationing at their house at the time.

At around midnight, Marilou was awakened when she heard a window open. She then felt that
somebody was on top of her, and was nonplussed when, as she opened her eyes, saw the
appellant looming above her. The appellant was armed with a fan knife and held Marilou by her
wrists. She tried to resist, but the appellant told her he would kill her if she did so. He warned
Marilou that if she told anyone of the incident, he would kill her and her family.

The appellant then removed Marilous shorts, underwear and upper garment. He also removed
his clothing. He inserted his penis into Marilous vagina and made push-and-pull movements
(nag-u-unday). After satiating his sexual desire, he threatened Marilou anew not to report to
anyone what he had just done to her, otherwise, he would kill all of them. The appellant then left.
Marilou cried profusely, traumatized by the incident.

Marilou did not report the incident to her mother because she was afraid that the appellant might
make good on his threat to kill her and her family. She did not tell her father of the incident, as
he was, likewise, doing "things" to her that she could not bear. On several occasions, she caught

249
her father and another uncle peeping while she was taking a bath; on several other occasions, her
father touched the sensitive parts of her body.

Marilou left their house and went to stay with one of her classmates. When her classmates
mother asked why she left their house, Marilou finally narrated her harrowing experience. Thus,
Amelita, Marilous mother, found out about the incident through the mother of her daughters
classmate.

Amelita then went to the barangay authorities and reported the incident. In the meantime,
Marilou went to Pulo, San Rafael, Bulacan, to stay with her relatives there.

On February 11, 1997, Marilou went to the police station in Baliuag, Bulacan and reported that
she was raped by the appellant and narrated the incidents relative thereto. P/Insp Edilberto L.
Velasquez, Jr., the Deputy Chief of Police of the Baliuag PNP, prepared a request from the
Director of the PNP Crime Laboratory RECOM 3, that a medico-legal examination be conducted
on Marilou to determine the extent of the sexual abuse committed against her.4 Dr. Eduardo O.
Gueco, Chief Medico-Legal Officer of the PNP Crime Laboratory, Region III, conducted an
examination on Marilou. He also prepared a Medico-Legal Report, which contained the
following findings:

GENITAL:

PUBIC HAIR: Absence of pubic hair

LABIA MAJORA: Full, convex and coaptated

LABIA MINORA: Light brown and slightly hypertrophied

HYMEN: Presence of deep healed lacerations at 6 and 11 oclock and shallow, healed
laceration at 1 oclock position.

EXTERNAL VAGINAL ORIFICE: Offers strong resistance to the introduction of the

examining index finger.

VAGINAL CANAL: Narrow with prominent vaginal folds.

CERVIX: Normal in size and consistency with menstrual blood oozing from its os.

PERI-URETHRAL AND VAGINAL SMEARS: Negative for the presence of

spematozoa.

REMARKS: Subject is in non-virgin state physically.5

The Case For The Appellant

The appellant testified that he was a resident of Salinas, Cavite. Sometime in 1996, he and his
wife went to the house of Rafael Arcangel in Sta. Barbara, Baliuag, Bulacan, to visit his mother-
in-law.

The second time the appellant went to Sta. Barbara, Baliuag, Bulacan was on February 28, 1997,
this time to fetch his mother-in-law so that someone would take care of his child in Cavite.
During the said visit, he and his brothers, Rafael and Gorgonio, had a drinking session. They got
drunk and slept outside the house. The three of them were arrested at around 8 a.m. of the next
day on Marilous complaint of rape. According to the appellant, the charge of rape against him
was just a ploy of Marilous mother, Amelita, to force him not to talk about her affair with Julio,
another of the appellants brothers. He learned of this motive of Amelitas from Julio, after the
latter had gotten so drunk during their drinking session with Rafael and Gorgonio.

250
After trial, the court rendered a decision convicting the appellant, the dispositive portion of
which reads as follows:

WHEREFORE, the foregoing considered, this Court hereby finds accused CHARLIE
ESPINOSA GUILTYbeyond reasonable doubt of the crime of Rape, and sentences him
to suffer the penalty of DEATH and to pay the amount of P50,000.00 to private
complainant Marilou Arcangel and the costs of the suit.

SO ORDERED.6

Hence this automatic review.

The appellant raises the following as assignment of errors:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF

THE CRIME OF RAPE DESPITE THE FACT THAT THE CRIMINAL
INFORMATION FAILED TO STATE WITH PARTICULARITY THE TIME OF THE
COMMISSION OF THE ALLEGED DEED.

II

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE PENALTY OF DEATH

ON THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE CRIMINAL
INFORMATION FAILED TO ALLEGE THE RELATIONSHIP BETWEEN THE
VICTIM AND THE ACCUSED-APPELLANT.

III

THE COURT GRAVELY ERRED IN NOT FINDING THAT THE TIMID AND
PASSIVE CONDUCT AND ACTUATION OF THE PRIVATE COMPLAINANT
DURING AND IMMEDIATELY AFTER THE SUPPOSED SEXUAL ASSAULT
CAST SERIOUS DOUBT ON HER CREDIBILITY.7

The Ruling of the Court

Anent the first assigned error, the appellant posits that the criminal complaint filed against him in
this case is defective. The complaint did not state with particularity the date the offense was
committed, and instead, it was stated therein that the offense was committed "on or about the
month of August 1996." According to the appellant, this is in violation of Section 11 of Rule 110
of the Revised Rules of Criminal Procedure.

The appellants pose is bereft of merit.

In People v. Lizada,8 this Court declared:

The Court does not agree with the accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the crime.
Failure to specify the exact date when the rape was committed does not render the
Information defective. The reason for this is that the gravamen of the crime of rape is
carnal knowledge of the private complainant under any of the circumstances enumerated
under Article 335 of the Revised Penal Code, as amended. Significantly, accused-
appellant did not even bother to file a motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules of Criminal Procedure before he was arraigned. Indeed,
accused-appellant was duly arraigned under the Information and entered a plea of not
guilty to the charge without any plaint on the sufficiency of the Information. Accused-

251
 appellant even adduced his evidence after the prosecution had rested its case. It was only
on appeal to this Court that accused-appellant questioned for the first time the sufficiency
of the Information filed against him. It is now too late in the day for him to do so.
Moreover, in People v. Salalima, this Court held that:

"Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The
precise date or time when the victim was raped is not an element of the offense.
The gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long
as it is alleged that the offense was committed at any time as near to the actual
date when the offense was committed an information is sufficient. In previous
cases, we ruled that allegations that rapes were committed before and until
October 15, 1994, sometime in the year 1991 and the days thereafter,
sometime in November 1995 and some occasions prior and/or subsequent
thereto and on or about and sometime in the year 1988 constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules of Criminal
Procedure. "9

Indeed, in the case at bar, the criminal complaint states that the rape was committed "on or about
the month of August 1996." Such an allegation in the criminal complaint as to the time the
offense was committed is sufficient compliance with the provisions of Section 11, Rule 110 of
the Revised Rules of Criminal Procedure. Besides, if the appellant was of the belief that the
criminal complaint was defective, he should have filed a motion for a bill of particulars with the
trial court before his arraignment.10 The appellant failed to do so. It was only when the case was
brought to this Court on automatic review that he raised the question of the supposed
insufficiency of the criminal complaint, which is now too late by any reckoning.

The appellant points out that based on the complainants testimony, she did not shout when she
saw the appellant. She did not wake up her siblings, who were sleeping very near her, nor did she
show any signs of resistance, and instead remained passive. Neither was it shown that the
complainant showed signs of resistance when the alleged rape took place. As such, the
complainant did not show the kind of resistance expected of a woman defending her honor and
virtue.

We do not agree. As we had the occasion to state in People v. Umayam:11

Appellant then harps on the lack of any overt form of resistance to the sexual assault on
the part of the victim. He argues that she should have at least touched or reached for her
mother to awaken the latter. In fact, the girl did not even bother to shout despite the fact
that her mouth was left uncovered.

We do not subscribe to appellants suppositions. Never has this Court prescribed a

uniform manner of behavior during or after a rape incident. We have been categorical in
declaring that "[t]he workings of a human mind placed under emotional stress are
unpredictable and people react differentlysome may shout, some may faint, and some
may be shocked into sensibility while others may openly welcome the intrusion." Yet, it
can never be argued that the ones who apparently welcome it are sexual victims any less
than the others.12

The appellant, likewise, points out that it took several months before the complainant filed the
case of rape against him. The rape took place sometime in August 1996, while the victim
reported the same only on February 11, 1997, or about five (5) months after the incident.
According to the appellant, such delay in the filing of the case tainted the victims credibility.

252
The appellants contention is bereft of merit. In People v. Geromo,13 this Court ruled that a seven
(7) month delay in reporting the rape does not impair the credibility of the complainant. In the
said case, it was elucidated, thus:

Delay in revealing the commission of rape is not an indication of a fabricated charge.

Many victims of rape never complain or file criminal charges against the rapist, for they
prefer to silently bear the ignominy and pain, rather than reveal their shame to the world
or risk the offenders making good on his threats. This is understandable, considering the
inbred modesty of Filipinas and their aversion to the public disclosure of matters
affecting their honor. It is inconceivable that MARLYN would admit and make public the
ignominy she had undergone if it were not true. Then, too, it should not be forgotten that
MARLYN was threatened by APOLINARIO. The threat on the life of a 13-year-old girl
cannot be easily ignored. In People v. Matrimonio, we held that intimidation must be
viewed in light of the victims perception and judgment at the time of the commission of
the crime and not by any hard and fast rule. It is enough that the intimidation produces a
fear that if the victim does not yield to the bestial demands of the accused, something
would happen to her at the moment, or even thereafter, as when she is threatened with
death if she should report the incident. MARLYN, the young lass that she was, actually
believed that APOLINARIO would kill her even if he was not around, considering his
moral ascendancy over her and the fear that he had successfully implanted in her
pubescent mind at the time he ravished her.14

In the case at bar, the complainant was only 14 years old when the rape took place. At her age, it
could easily be conceived that she feared the appellant and believed his threats, that he would kill
her and her family if she reported the incident to anyone. The appellants threats were so
engrained in her mind that she did not tell anyone of the incident, although the appellant was no
longer around and had gone back to his residence in Salinas, Cavite. This Court is mindful that
intimidation must be viewed in light of the victims perception and judgment at the time of rape,
and not by any hard and fast rule. It is enough that it produces fear fear that if the victim does
not yield to the bestial demands of the accused, something would happen to her at the moment or
thereafter, as when she is threatened with death if she reports the incident.15 The test is whether
the threat or intimidation produces a reasonable fear in the mind of the victim that if she resists
or does not yield to the desires of the accused, the threat would be carried out. Where resistance
would be futile, offering none at all does not amount to consent to the sexual assault. It is not
necessary that the victim should have resisted unto death or sustained physical injuries in the
hands of the rapist. It is enough if the intercourse takes place against her will or if she yields
because of genuine apprehension of harm to her if she did not do so. Indeed, the law does not
impose upon a rape victim the burden of proving resistance.16

It was even shown that the complainant in this case never said anything to her own father as the
latter, on several occasions, had also made sexual advances on her by touching her private parts,
or would peep while she was taking a bath. All of these conjunctives served to prevent the
complainant from reporting with haste the rape that happened to her.

The Court emphasizes that in reviewing rape cases, the Court is guided by three principles: (1)
an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime
where only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and, (3) the evidence for the prosecution must stand or fall on
its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the
defense.17

The Court adheres to the rule that by the very nature of the crime of rape, the lone testimony of
the complainant is enough to sustain conviction, provided that such testimony meets the test of
credibility and should not only come from the mouth of a credible witness; it should, likewise, be
credible and reasonable in itself, candid, straightforward, and in accord with human experience.18

253
In the case at bar, the complainant narrated in open court the harrowing experience she
encountered that fateful night, in this language:

Q How did Charlie Espinosa raped (sic) you, Madam Witness?

A He entered into (sic) the window, Sir.

Q By the way, is this Charlie Espinosa a resident of your house?

A Yes, Sir, he was taking temporary vacation.

Q And according to you, he used the window to enter the house?

A Yes, Sir.

Q And after that, what did he do?

A I was awakened that he was already lying on top of me, Sir.

Q How did you come to know that he used the window in entering your house when,
according to you, were sleeping at that time?

A Because I heard the window opened (sic).

Q In other words, when you heard something, you were already awakened (sic) at that
time?

A Yes, Sir.

Q What happened next?

A He raped me, Sir.

Q How did he rape you?

A He hold (sic) my two hands, then he lied (sic) on top of me.

Q By the way, where were you sleeping at that time?

A At (sic) the floor, Sir.

Q Inside the room or at the sala?

A At the sala, Sir.

Q What about your other brothers and sisters, where were they sleeping at that time?

A In the sala, Sir.

Q How far were you away from them?

A "Kaunti lamang po ang pagitan namin."

Q Were you using mosquito net at the time?

A Yes, Sir.

254
Q When for the first time did you notice or see Charlie Espinosa?

A When he was lying on top of me, Sir.

Q And what was he doing when he lied (sic) on top of you?

A He undressed me, Sir.

Q What did he remove from you?

A My dress and shorts, Sir.

May we make of record that the witness started from (sic) crying as the question was
propounded to her.

COURT:

Make it of record.

Q Did you try to resist or struggle while Charlie Espinosa was removing your dress?

A I resisted but I was not able to do anything because he is (sic) strong.

Q What was being uttered by Charlie Espinosa while he was removing your dress, if any?

A Not to report, Sir.

Q Aside from that, what else did he utter?

A That once I report the incident, he will kill all of us.

Q While Charlie Espinosa was on top of you, how did he hold you?

A He was holding my two wrists, Sir.

Q Was he able to remove your clothing, your shortpant (sic) and panty?

A Yes, Sir.

Q And after removing your shortpant (sic) and panty, what else did he do?

A He lied (sic) on top of me, Sir.

Q And what did he do?

A He removed his clothing, Sir.

Q What did he remove?

A His shorts, Sir.

Q What else?

A And his brief, Sir.

Q What about his upper apparel?

255
A He also removed it, Sir.

Q After removing his clothing, what did he do?

A He forcibly inserted his penis to my vagina.

Q How do you know, Madam Witness?

A I was lying with my thighs apart and he inserted his penis into my vagina.

Q You said that Charlie Espinosa inserted his penis to your private part, what did you
feel?

A "Nasaktan po ako."

Q For how long did he insert his penis to your private part?

A For a long time, Sir. "Medyo matagal din po."

Q How would you describe the movement of the body of Charlie Espinosa while he was
lying on top of you?

A He was lying on top of me while holding my two wrists.

Q What is the body movement?

A When he inserted his penis to my vagina, his body is as if he is "nag-u-unday."

Q How would you demonstrate that "nag-u-unday"?

A (Witness demonstrating a push and pull movement).

Q At that time when Charlie Espinosa was inserting his penis with (sic) your private part,
did you not try to resist or struggle?

A I tried to but I was not able to do anything.

Q Why were you not able to do anything despite of your struggle?

A Because he was strong.

Q For how long did he rape you?

A For a long time, Sir.

Q For 5 minutes?

A I do not know, Sir, but he raped me.

Q After he was through raping you, what else did he do?

A He told me not to report the incident to anyone.

Q What else?

A That once I report the incident, he will kill all of us.

256
 Q What did he do after he threatened you?

A He left, Sir.

Q What about you, what did you do?

A None, Sir, I just cried.19

A young girls revelation that she had been raped, coupled with her voluntary submission to
medical examination and her willingness to undergo public trial where she could be compelled to
give out details of an assault on her dignity, cannot easily be dismissed as mere concoction.
Youth and immaturity are generally badges of truth.20 When the complainant wept as she
narrated what transpired before and during the time she was raped, it served to further bolster her
credibility. The crying of the victim during her testimony is added hallmark of the credibility of
the rape charge.21

Countering the charge of rape, the appellant merely put up the defense of denial and alibi.
Interestingly, the appellant, when placed on the witness stand, did not even dwell much on his
defense of denial and alibi, and instead focused on the time he was arrested. All in all, what he
testified with respect to his defense was as follows:

Q A while ago, you stated you are a resident of Cavite?

A Yes, Sir.

Q How many years had (sic) you stayed in Cavite?

A Up to the time I became a bachelor.

Q Do you know the place Sta. Barbara, Baliuag, Bulacan?

A My wife is from there.

Q Had (sic) you been there?

A Only once.

Q Can you tell us when was that time when you visited Sta. Barbara?

A In 1996, together with my wife.

Q Can you tell what particular month of the year 1996?

A I can no longer remember.

Q Who were with you then?

A My wife.

Q Do you remember the time that you arrived in the place?

A 7:00 oclock.

Q Did you stay in that place the whole evening?

A No, we immediately went home.

257
 Q What time was that when you went home?

A 11:00 P.M.

Q What was your purpose in going to Sta. Barbara, Baliuag at that time?

A We visited my mother-in-law.22

The appellant said nothing more about his first visit to Sta. Barbara, Baliuag, Bulacan. As
always, the Court has uniformly held that denial and alibi are among the weakest, if not the
weakest, defenses in criminal prosecution.23 It is well-settled that denial, if unsubstantiated by
clear and convincing evidence, is a self-serving assertion that deserves no weight in law.24 Denial
cannot prevail over the positive, candid and categorical testimony of the complainant, and as
between the positive declaration of the complainant and the negative statement of the appellant,
the former deserves more credence.25

The appellants defense of alibi must also fail. For the defense of alibi to prosper, the accused
must establish with clear and convincing evidence not only that he was somewhere else when the
crime was committed but also that it was physically impossible for him to have been at the scene
of the crime at the time it was committed.26 Aside from his testimony, the appellant never
presented any other evidence to prove that he was not at the scene of the crime at the time the
rape took place. He did not present any other witness, let alone his wife, whom he claimed was
with him when they went back to Cavite, to bolster his stance that he went home that same night
sometime in August 1996. Weak as it is, alibi becomes all the more ineffectual when the accused
fails to demonstrate that it was physically impossible for him to be at the crime scene at the time
it was committed.27

Finally, the Court cannot over-emphasize the oft-quoted doctrine that positive identification
prevails over denial and alibi.28

The appellant points out that the court a quo erred when it sentenced him to suffer the death
penalty, predicated on the failure of the criminal complaint to allege the qualifying circumstance
of relationship of the appellant and the victim. He alleges that the offense charged under the said
criminal complaint is merely simple rape, the imposable penalty for which is reclusion perpetua.

We have ruled that for one to be convicted of qualified rape, the information, or in this case the
criminal complaint, must allege the victims minority, and the relationship of the victim and the
appellant; absent such allegation, the appellant cannot be convicted of qualified rape, but only of
simple rape.29 In the case at bar, the criminal complaint alleges that the complainant was 14 years
old when the incident occurred, but nothing was offered in evidence to prove the age of the
victim. In People v. Umayam,30 this Court declared:

Proof of age is critical, considering the private complainant was alleged to have been
only three (3) years less than eighteen (18) at the time of the rape. When the alleged age
of the victim at the time of the sexual assault is between 13 and 18 years, neither her bare
testimony nor that of her mother would suffice to prove her age and consequently qualify
the crime to justify the imposition of the death penalty.

In this era of modernism and rapid growth, the victims mere physical appearance is not
enough to gauge her exact age. For the extreme penalty of death to be upheld, nothing but
proof beyond reasonable doubt of every fact necessary to constitute the crime must be
substantiated. The minority of the victim should not be only alleged but, likewise, proved
with equal certainty and clearness as the crime itself. Be it remembered that proof of the
age of private complainant in the present case spells the difference between life and
death.

258
 It is, therefore, evident that the prosecution did not discharge the burden of proving with
certainty the fact that she was under 18 years of age when the rape was committed. Since
there is no acceptable proof as to her exact age, the penalty of death cannot be meted out
on appellant. He must be held guilty only of simple, not qualified, rape.31

While the complainants age may have been admitted by the appellant, the same is not sufficient
to warrant the imposition of the supreme penalty of death. There is, likewise, nary any evidence
to show that the appellant is the complainants uncle. Even such an admission of the appellant
would not be sufficient to warrant the imposition of the death penalty. Even if the complainants
minority and filiation to the appellant were never refuted nor contested by the defense, proof
thereof is critical, considering the penalty of death imposed for qualified rape. Hence, the
prosecutions failure to sufficiently establish the complainants minority and her relationship
with the appellant bars the imposition of the supreme penalty of death.32

While the criminal complaint alleges that the appellant was armed with a fan knife when the rape
was committed, this was, however, not sufficiently established by the prosecution. A qualifying
circumstance, as distinguished from a generic aggravating circumstance which affects only the
period of penalty, increases the penalty and must not only be alleged in the information but must
also be proved with certainty as the crime itself, otherwise, the death penalty cannot be
imposed.33

The Appellants Civil Liability

The trial court awarded the amount of P50,000 to the victim as damages. We find this proper,
based on prevailing jurisprudence on civil indemnity for simple rape.34 Apart from the civil
indemnity, there is also a need to award moral damages to the victim. It must be stressed that
moral damages are awarded in rape cases without need of proof other than the fact of the rape
itself because it is assumed that the victim has suffered moral injuries entitling her to such an
award.35

The Court finds it proper to modify the penalty of death the trial court imposed upon the
appellant. As heretofore discussed, considering that the criminal complaint failed to allege the
qualifying circumstance of relationship between the appellant and the complaint, and the
prosecutions failure to prove the age of the complainant and her relationship with the appellant,
the latter can only be convicted of simple rape, which is penalized by reclusion perpetua.36

Pursuant to prevailing jurisprudence, the amount of P50,000.00 as moral damages is

proper.37 Attendant to the crime is the aggravating circumstance of dwelling, the rape having
been committed in the victims house. However, the said aggravating circumstance was not
alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules of Criminal
Procedure and, as such, should not be appreciated against the appellant. Although the crime was
committed before the effectivity of the Rule, the same should be applied retroactively, it being
favorable to the appellant. The appellant is, however, liable to pay exemplary damages to the
victim.

IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Malolos, Bulacan, Branch 78 in Criminal Case No. 183-M-98
is AFFIRMED with MODIFICATIONS. The appellant is found GUILTY of simple rape and
is sentenced to suffer the penalty of reclusion perpetua. The appellant is ORDERED to pay the
victim, Marilou Arcangel, Fifty Thousand Pesos (P50,000.00) as civil indemnity; Fifty Thousand
Pesos (P50,000.00) as moral damages; and Twenty-Five Thousand Pesos (P25,000.00) as
exemplary damages.

SO ORDERED.

259
G.R. No. 72994 January 23, 1991

FELICISIMO ROCABERTE, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC,
Tagbilaran, Bohol, respondents.

Lilio L. Amora for petitioner.

NARVASA, J.:

The case at bar treats of the sufficiency of the averment in the information of the time of the commission
of the felony of theft ascribed to petitioner Felicisimo Rocaberte and two (2) others. The information,
filed in the Regional Trial Court of Bohol, City of Tagbilaran,1 Judge Andres S. Santos, presiding, reads
as follows: 2

The undersigned Assistant Provincial Fiscal hereby accused Felicisimo Rocaberte, Florencio
Ranario and Flaviana Ranario of the crime of Theft, committed as follows:

That on or about the Period from 1977 to December 28, 1983 at the off offshore of West
Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines . . ., the above-named
accused, conspiring, confederating and helping each other, with intent to gain and without the
consent of the owner, did then and there, willfully, unlawfully and feloniously take, steal and
carry away the following properties, to wit:

One (1) pc. sledge hammer, valued at P136.00

One (1) pc. H beam, valued at 400.00
Two (2) cut abrasive steel plates for cargo
berth cover protector 158.00
Ninety-nine (99) blocks of aluminum, alloy
anodes at P3,750.00 each block P371,250.00
TOTAL P371,944.00

in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED

FORTY-FOUR PESOS (P371,944.00), Philippine Currency, belonging to and owned by the
Philippine Sinter Corporation, to the damage and prejudice of the latter in the aforestated amount.

Acts committed contrary to the provisions of Articles 308, 309 of the Revised Penal Code.

The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the information, 3 alleging
that the statement of the time of commission of the felony charged, "from 1977 to December 1983, . . . a
period of seven years," or "about 2,551 days," was fatally defective: there was "so great a gap as to defy
approximation in the commission of one and the same offense" (citing Peo. v. Reyes, 108 SCRA 203);
"the variance is certainly unfair to the accused for it violates their constitutional right to be informed
before the trial of the specific charge against them and deprives them of the opportunity to defend
themselves . . ." (invoking Peo. v. Openia, 98 Phil. 698).

The motion was denied4 as was, too, the defendants' motion for reconsideration. 5 In the motion for reconsideration,
the accused drew attention to Section 4, Rule 117 "of the 1985 Rules on Criminal Procedure," as a remedy that
could be alternatively granted, viz.:

Sec. 4. Amendment of complaint or information. If the motion to quash is based on an alleged defect in
the complaint or information which can be cured by amendment, the court shall order the amendment to be
made. (2a)

260
Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the special civil action
of certiorari at bar, impugning the denial by respondent Judge Santos of his motion to quash, or his refusal, at the
very least, to direct the amendment of the information pursuant to Section 4, Rule 117 of the 1985 Rules of
Court, supra. He is correct, and will be granted appropriate relief.

The rules of criminal procedure declare 6 that

. . . A complaint or information is sufficient if it states the name of the defendant; the designation of the
offense by the statute; the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate time of the commission of the offense, and the place wherein the offense
was committed.

and as regards the time of the commission of the offense, particularly that:7

. . . It is not necessary to state in the complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which the offense was committed as the information or
complaint will permit.

In line with this last mentioned rule, a variance of a few months between the time set out in the indictment and that
established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal
of a conviction solely on that score. Hence, where the information sets the date of commission of a robbery at March
25, 1900, evidence was allowed to show that the offense was actually perpetrated on the 5th or 6th of March; and an
amendment of an information so as to change the year therein stated to that following it, was allowed it appearing
that the alteration impaired none of the defendant's rights. 8

Where, however, there was a variance of several years between the time stated in the information, 1947, and the
proof of its actual commission adduced at the trial, 1952, the dismissal of the case by the Trial Court was sustained
by this Court, since to allow amendment of the indictment to conform to the evidence would be violative of
defendant's constitutional right to be informed of the nature and cause of the accusation against him. 9

Again, the statement of the time of the commission of the offense which is so general as to span a number of
years, i.e., "between October, 1910 to August, 1912," has been held to be fatally defective because it deprives the
accused an opportunity to prepare his defense. 10

A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a
motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be
denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be
made by stating the time with particularity. 11

The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient
12
definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964.

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.

From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed
seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their
activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor
must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and
his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.

WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED, ANNULLING AND
SETTING ASIDE the challenged Orders of respondent Judge dated August 12, 1985 and September 10, 1985 in
Criminal Case No. 3851, and DIRECTING the amendment of the information in said case by the prosecution within
such time as the respondent Judge may deem proper, failing which the criminal prosecution against the petitioner
and his co-defendants shall be dismissed.

SO ORDERED.

261
 [G.R. No. 140406. April 17, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO

DESUYO alias "TONY," accused-appellant.

DECISION
BELLOSILLO, J.:

MARICEL PERU DESUYO was sleeping beside her younger sister Aisalyn one late night
in September 1996 when she was awakened by someone caressing her breasts. She opened her
eyes and saw her father, accused Antonio Desuyo, crouching before her. He was naked except
for his underpants to cover his private parts. Instinctively, she begged her father not to touch her,
reminding him that she was his daughter. But he paid no heed; instead, he removed her
underwear while threatening to kill her should she make any noise. He mounted her, forced his
penis into her vagina and gyrated his hips against hers. She wept as she continued to beg him to
desist from his fiendish assault on her virtue. Meanwhile, Maricel did not tell her mother about
the incident; instead, she kept the ignominy and pain to herself.
Maricel's mother worked as a housekeeper in a faraway town and she did not want to give
her any trouble. Neither did she inform her relatives who lived nearby. She feared for her life as
her father had threatened to kill her should she speak to anyone about what he had done to her.
The accused would repeat his sexual molestation of Maricel almost everyday from
September 1996 to August 1997. His assaults on her virtue were always followed by threats on
her that she would be killed should she report these to her mother. The sexual abuses of her
father were so often that Maricel lost count.
On 14 August 1997, early dawn, as Maricel had been already accustomed to, she would be
roused from her sleep by her father fondling her private parts. Again, he undressed her and
unleashed his lechery on her. It was meant to be the last. In her young and impressionable mind,
Maricel vowed that it would not happen to her again.
On 18 August 1997 Maricel summoned enough courage to relate her ordeal to a police
officer who lived nearby. She bravely narrated to Police Officer Tito Ganggalang and his wife
Riza her sordid tale which was actually a confirmation of what was already circulating around
their neighborhood. She admitted that her father had been sexually abusing her for close to a year
already.Emboldened by the encouragement she received from sympathetic neighbors, she next
confided to Luisa Galit, Maricels maternal aunt, who could only commiserate with her.
Forthwith, Luisa Galit accompanied Maricel to a doctor who upon examination found
Maricel to have several old hymenal lacerations in her vaginal area. Thereafter, they repaired to
the municipal hall where Maricel instituted a complaint against her father, accused Antonio
Desuyo, for having repeatedly raped her.
In the course of the preliminary examination conducted by the municipal trial court judge,
accused Antonio Desuyo asked forgiveness from his daughter and promised to leave her alone
should she withdraw the charge she filed against him. Maricel vehemently refused as her father
grovelled for forgiveness.[1] As a consequence, an Information was filed against the accused
Antonio Desuyo alias "Tony" for raping his fifteen (15)-year old daughter Maricel.
Maricel attested in court to the truth of her accusations. According to her, ever since her
mother worked in a faraway town, her father was dauntless and unrelenting in sexually abusing
her night after night within the confines of their home. She felt pain and cried everytime her
father would forcibly insert his penis into her vagina; however she kept her ordeal to herself as
she was afraid of him.
After having her first menstruation she became apprehensive that she might get
pregnant. Her father however was unperturbed and simply dismissed her fears by telling her not
to worry. A year after the first forced coition, Maricel decided to end her tribulation by
262
unburdening her grief to neighbors who readily sympathized with her. She felt relieved after
seeing her father locked up behind bars.[2]
The accused denied having raped Maricel. He affirmed however that he raised
singlehandedly his two (2) daughters Maricel and Aisalyn as his wife was serving another
household in a distant town. According to him, despite his guidance, Maricel turned out to be a
wayward daughter who entertained suitors at an early age. Once, his daughter Aisalyn confided
to him that Maricel was corresponding with a boy from another barrio. He immediately searched
through her bag and found a letter intended for a certain Jerry. Incensed by his daughter's
behavior he mauled her expecting that she would atone for her mistakes. However, instead of
mending her ways, Maricel ran away from home and instituted this unfounded charge for rape
against him. He presented in evidence Maricel's supposed letter to Jerry as well as a letter from
his wife pledging her love and support. He averred that Maricel was being inveigled by his
sister-in-law Luisa and the latter's boyfriend Boy into tormenting him for reasons which he could
not fathom.[3]
The trial court did not give credence to the bare denials of the accused. Solely on account of
Maricel's testimony, the court a quo found the accused guilty beyond reasonable doubt of the
crime of "multiple incestuous rape" and sentenced him to suffer the supreme penalty of death,
and to indemnify the offended party P75,000.00 as civil indemnity.[4]
Accused Antonio Desuyo assails in his brief his conviction for "multiple rape" essentially on
two (2) grounds, namely, that the Information is defective and that the court a quo erred in
imposing upon him the penalty of death despite the failure of the prosecution to establish the age
of Maricel with certainty.[5]
Accused avers that the Information for "multiple rape" filed against him is deficient since by
merely stating that the sexual assaults were repeated "within the month of September 1996 up to
August 18, 1997,"[6] it failed to state the exact dates when the alleged rapes were
committed. Quoting heavily from the early case of US v. Diacho,[7] accused asserts that unless he
is informed of the precise "day, or about the day, he may be, to an extent deprived of the
opportunity to defend himself."[8]
At the outset, it must be emphasized that the remedy against an indictment that fails to allege
the time of commission of the offense with sufficient definiteness is a motion for bill of
particulars. The records show that the accused never asked for a bill of particulars in accordance
with the Revised Rules of Criminal Procedure.[9]
The failure of the accused to move for the specification of the date when the alleged crime
was committed or for the quashal of the Information on the ground that it does not conform
substantially to the prescribed form[10] deprives him of the right to object to evidence which
could lawfully be introduced and admitted under an information of more or less general terms
but which sufficiently charges the accused with a definite crime.[11] It is indeed too late in the day
for the accused to raise this issue because objections to matters of form or substance in the
information cannot be made for the first time on appeal. At any rate, it is settled that the exact
date of the commission of rape is not an essential element thereof and need not be stated in the
information.[12] The Court has sustained the following dates alleged in an information for rape as
sufficient for purposes of complying with the provisions of the Rules of Court, to wit: "from
November 1990 up to July 21, 1994,"[13] "sometime in November 1995, and some occasions
prior and/or subsequent thereto,"[14] "on or about and sometime in the year 1988,"[15] "sometime
in the year 1987"[16] and "before and until October 15, 1994."[17] In any event, a review of the
evidence presented by the prosecution more than establishes the guilt of the accused for the rape
of his daughter.
For one, it is highly inconceivable, if not completely preposterous, that Maricel, a
guileless barrio lass, would concoct a story of rape against her very own father, taking into mind
the societal humiliation and personal devastation which such a charge entails. More so, no
serious motive, apart from the beatings which she supposedly suffered in the hands of the
accused, was offered to satisfactorily explain why Maricel would come out and undergo legal
scrutiny of the unfortunate encounters with her father. Thus, if her testimony meets the test of credibility, the
accused may be convicted on the basis thereof.

263
 An analysis of the records reveals that Maricel testified in a straightforward, spontaneous and consistent
manner. Although Maricel expounded only on the first and last instances of rape, failing thus to give an accurate
account of the other sexual violations, her testimony in its entirety was forthright, clear and free from any
contradictions.
Maricel's failure to immediately inform her mother as well as her relatives about her ordeal is consistent with
reason. It must be remembered that Maricel depended on the accused for existence and protection as her mother
lived far. As to her total obedience to her father and the stoic silence she kept about her sufferings, these were all
brought about by her genuine fear of a man who on account of his moral ascendancy needed no weapon to instill
such terror in her.[18] Maricel was convinced of a potential yet real danger posed by a beast masquerading as the
family's paladin.
Finally, we take into consideration Antonio's admission before the trial court that he wrote his parents-in-law
sometime in March 1998 to ask for their forgiveness. Antonio likewise acknowledged when cross-examined that he
begged for Maricel's mercy before the municipal trial judge in the course of the preliminary examination. No
compelling reason was offered by the defense to explain Antonio's incriminating declarations. Verily, these are
judicial admissions which no man in his right mind would make unless they were true.
The court a quo convicted the accused of "multiple rape" without stating the counts of rape involved. The
records however show that the prosecution established beyond doubt that accused was guilty of two (2) counts of
rape. Although Maricel insists that she had been raped almost everyday from September 1996 to August 1997 she
was only able to relate with clarity two (2) of the rapes, the first forced coition sometime in September 1996, and the
last on 14 August 1997. She positively narrated in detail the surrounding circumstances of the sexual assaults
committed against her on those two (2) occasions. Indeed, her recollection of these two (2) rapes was very vivid,
leaving no doubt about its credibility and truthfulness.
Prescinding from the foregoing, the guilt of the accused for two (2) counts of rape has been conclusively
established; however, the death penalty was erroneously imposed. Under Sec. 11 of RA 7659, death shall be
imposed if "the victim is under eighteen (18) years of age and the offender is a parent x x x of the victim."
In the instant case, the Information charging the accused with rape alleges that Maricel is the fourteen (14)-
year old daughter of the accused. However, it is significant to note that other than the testimony of Maricel, no
independent proof was presented to show that she was a minor and that she was the daughter of the
accused. Although Maricel's relationship with the accused was not contested, nor her age refuted, proof of age and
relationship is critical considering the gravity of the penalty to be imposed upon the accused. [19]
It bears emphasis that the minority of the victim and her filiation to the accused when properly alleged in the
information and proved beyond reasonable doubt during trial elevate the crime of simple rape to qualified rape and
warrant the imposition of the extreme penalty of death. As such, nothing but proof beyond reasonable doubt of every
fact necessary to constitute the crime with which the accused is charged must be established by the prosecution in
order for the penalty of death to be upheld. In fine, the minority of the victim as well as her relationship with the
accused must be proved with equal certainty and clarity as the crime itself; contrarily, the failure of the prosecution
to sufficiently establish the victim's age and relationship with the accused is fatal and consequently bars conviction
for qualified rape.[20]
Perforce, in the present case, the death penalty imposed by the trial court should be reduced to reclusion
perpetua. Likewise, the award of P75,000.00 as civil indemnity should be modified and adjusted to P50,000.00
since the penalty is likewise lowered to reclusion perpetua. Consistent with prevailing jurisprudence, accused
Antonio Desuyo should also be ordered to pay Maricel Desuyo P50,000.00 as moral damages even if there was no
proof presented as basis therefor since the anguish and pain that complaining witness endured are plainly evident.[21]
WHEREFORE, the Decision of the Regional Trial Court, Br. 26, San Jose, Southern Leyte, finding accused
Antonio Desuyo alias "Tony" guilty of "multiple rape" in its qualified form and ordering him to pay complaining
witness Maricel Peru Desuyo P75,000.00 as civil indemnity, is MODIFIED. The accused is instead found guilty of
two (2) counts of simple rape and, accordingly, sentences him to reclusion perpetua for each count. In addition to
paying Maricel Peru Desuyo civil indemnity in the amount of P50,000.00, instead of P75,000.00, for each count of
rape, accused is further ordered to pay moral damages in the amount of P50,000.00 also for each count. Costs de
oficio.
SO ORDERED.

264
 [G.R. No. 41903. June 10, 1992.]

THE PEOPLE OF THE PHILIPPINES, Petitioner, v. COURT OF FIRST INSTANCE OF

QUEZON, Br. V, Mauban, Quezon; RAMON S. REYES alias "CAPING", GUILLERMO
UNTALAN, NATALIO ALVAREZ and WILFREDO SALIENDRA, Respondents.

The Solicitor General for Petitioner.

Roman R. Mendioro and Norma Chionglo-Sia for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

COMMENCEMENT OF CRIMINAL ACTION; RULE. As early as 1916, this Court in the
case of U.S. v. Pablo, (35 Phil. 94 at 100) said: "The right of prosecution and punishment for a
crime is one of the attributes that by a natural law belongs to the sovereign power instinctively
charged by the common will of the members of society to look after, guard and defend the
interests of the community, the individual and social rights and the liberties of every citizen and
the guaranty of the exercise of his rights." From this decision, we deduce that all criminal actions
must be commenced either by a "complaint or information in the name of the People of the
Philippines against all persons who appear to be responsible for the offense involved." Thus,
while the offended party is authorized to initiate proceedings, the prosecution is required to be in
the name of the People of the Philippines whose peace, in legal theory, has been breached.

2. ID.; ID.; ID.; ID.; ID.; DOES NOT REQUIRE THAT THE STATE BE SPECIFICALLY
MENTIONED IN THE BODY OF THE INFORMATION AS AN OFFENDED PARTY;
REASON THEREFOR. In the present case, (Sec. 2, Rule 110, 1985 Rules on Criminal
Procedure) complied with when the criminal action for qualified theft under Presidential Decree
No. 330 was instituted by the provincial fiscal in the name of the People of the Philippines.
Despite such compliance with the rules, the lower court found the information to be defective in
form and substance because "nowhere in the information is cited any damage or prejudice caused
to the State." The lower court reasoned out that since the fiscal admitted that it is the State which
is the actual offended party and not Aluk Logging Corporation (or Operation) as alleged in the
information, the evidence of the prosecution would be at variance with the allegations in the
information. This reasoning cannot be sustained. Again what is important, as required by the
Rules, is that "in criminal action the complaint or information shall be in writing in the name of
the People of the Philippines . . . . The rules do not require that the State be specifically
mentioned in the body of the information as an offended party. It is sufficient that the People of
the Philippines appear in the caption of the information to emphasize that penal laws of the State
have been violated. For indeed, a crime is an offense against the State.

3. ID.; ID.; ID.; NAME OF THE OFFENDED PARTY; DESIGNATION THEREOF, NOT
ABSOLUTELY INDISPENSABLE AS LONG AS THE CRIMINAL ACT CHARGED CAN
BE PROPERLY IDENTIFIED; CASE AT BAR. We rule that it was error for the lower court
to dismiss the information. The information was already sufficient in form and substance. The
argument that it was fatal for the prosecution not to have alleged the State as the offended party
is without merit for in the case of Sayson v. People, (G.R. No. 51745, October 28, 1988, 166
SCRA 680) in construing Sec. 11 of Rule 110 (now Sec. 12, Rules of Court of the 1985 Rules on
Criminal Procedure), we have clearly held that in offenses against property, the designation of
the name of the offended party is not absolutely indispensable as long as the criminal act charged
in the complaint or information can be properly identified.

DECISION

265
 ROMERO, J.:

This is a petition for review on certiorari which seeks to set aside the order of the respondent
court dated October 24, 1975 dismissing the information for qualified theft against the private
respondents in Criminal Case No. 380 of the Court of First Instance of Quezon, Branch V, 1 on
the ground that it does not charge an offense for failure to allege the proper offended party
therein.

The undisputed facts of the case are as follows:chanrob1es virtual 1aw library

Private respondents Ramon Reyes alias "Caping," Guillermo Untalan, Natalio Alvarez and
Wilfredo Saliendra were charged in Criminal Case No. 380 at the Court of First Instance of
Quezon, Branch V, with qualified theft, as defined and punished under Section 1, Presidential
Decree No. 330 2 in an information filed by Special Counsel Hjalmar Quintana of the Office of
the Provincial Fiscal of Quezon, on August 5, 1975, in the following manner:chanrob1es virtual
1aw library

x x x

"That on or about the 16th day of April 1974, at Barrio San Jose, in the Municipality of Mauban,
Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, Ramon Reyes alias "Caping", Guillermo Untalan, Natalio Alvarez and Wilfredo
Saliendra, with intent to gain, conspiring and confederating together and mutually helping one
another, did then and there willfully, unlawfully and feloniously enter a public forest zone under
lease to the ALUK LOGGING CORPORATION and once inside, illegally cut, take, steal and
carry away two (2) Lauan trees consisting of 1,200 board feet, without the consent of the latter,
valued at ONE THOUSAND NINE HUNDRED TWENTY (P1,920.00) PESOS, Philippine
currency, to the damage and prejudice of said Aluk Logging Corporation in the aforesaid sum.

CONTRARY TO LAW." 3

On September 17, 1975, the private respondents were arraigned and pleaded not guilty to the
charge. 4 After the arraignment, the private respondents moved to quash the aforesaid
information based on the following grounds:chanrob1es virtual 1aw library

1. That the facts charged do not constitute the crime of qualified theft, there being no offended
party, Aluk Logging Corporation being neither a timber lessee or licensee;

2. That the pretended owner, Arsenio Lukang, has no timber license to operate in Mauban,
Quezon;

3. That the information is defective as it does not describe the "situs" of the offense with
particularity, defendant Ramon S. Reyes being a timber licensee in Mauban, Quezon." 5

On September 29, 1975, the Provincial Fiscal of Quezon filed an opposition to private
respondents quashal arguing that:chanrob1es virtual 1aw library

1) the information is sufficient in form and substance and that there is a specific offended party;

2) the place of the commission of the offense is sufficiently described;

3) the allegation that Ramon S. Reyes is a timber licensee over the forest zone in question is a
matter of defense and evidentiary in nature that should be proven during the trial;

266
4) the motion to quash was filed after the arraignment of the accused and, therefore, said accused
should be considered as having waived all objections which are grounds for a motion to quash. 6

The provincial fiscal of Quezon prayed that the prosecution be allowed to amend the information
by replacing the word "Corporation" with the word "Operation," being a typographical error
committed by oversight. 7

On October 9, 1975, the private respondents filed their reply reiterating the grounds stated in
their motion to quash. 8

The respondent court, in its assailed order dated October 24, 1975, quashed the information for
failure to conform substantially to the prescribed form 9 under Sec. 3(d) Rule 117, specifically
the failure to state the name of the offended party as embodied in Sec. 11, Rule 110 of the Old
Rules of Criminal Procedure.

In quashing the information, respondent judge reasoned that the prosecuting fiscals categorical
admission that the State and not Aluk Logging Corp. was the offended party was fatal to the
information. Such admission by the fiscal deviated from the allegations of the information which
affected not only its form but also its substance. The court held that such a defect in the
designation of the name of the offended party could not be cured by mere amendment in view of
another claim by one of the accused, Ramon S. Reyes, as the duly registered timber licensee. 10

As an additional reason for the quashal, the trial court also observed that Aluk Logging Corp.
was not a duly registered partnership or corporation and proceeded to conclude that, necessarily,
it had no capacity to become a lessee nor be a registered holder of any timber license. 11

Hence, the petition.

Before us, petitioner assigns the following errors, to wit:chanrob1es virtual 1aw library

The respondent court erred in ruling that the information filed against the private respondents in
Criminal Case No. 380 of the Court of First Instance of Quezon, Branch V, does not charge an
offense for failure to cite the State as offended party and complainant.

II

The respondent Court erred in quashing the information on the basis of the said alleged
defect.chanrobles virtual lawlibrary

The resolution of this case hinges on the determination of whether or not the information for
qualified theft properly charges an offense due to its failure to allege the proper offended party
therein.

As early as 1916, this Court in the case of U.S. v. Pablo, 12 said:jgc:chanrobles.com.ph

"The right of prosecution and punishment for a crime is one of the attributes that by a natural law
belongs to the sovereign power instinctively charged by the common will of the members of
society to look after, guard and defend the interests of the community, the individual and social
rights and the liberties of every citizen and the guaranty of the exercise of his rights."cralaw
virtua1aw library

From the decision, we deduce that all criminal actions must be commenced either by a

267
"complaint or information in the name of the People of the Philippines against all persons who
appear to be responsible for the offense involved." 13 Thus, while the offended party is
authorized to initiate proceedings, the prosecution is required to be in the name of the People of
the Philippines whose peace, in legal theory, has been breached.

In the present case, the above rule was complied with when the criminal action for qualified theft
under Presidential Decree No. 330 was instituted by the provincial fiscal in the name of the
People of the Philippines. 14

Despite such compliance with the rules, the lower court found the information to be defective in
form and substance because "nowhere in the information is cited any damage or prejudice caused
to the State." The lower court reasoned out that since the fiscal admitted that it is the State which
is the actual offended party and not Aluk Logging Corporation (or Operation) as alleged in the
information, the evidence of the prosecution would be at variance with the allegations in the
information. 15

This reasoning cannot be sustained.

Again what is important, as required by the Rules, is that "in criminal action the complaint or
information shall be in writing in the name of the People of the Philippines . . . . 16 The rules do
not require that the State be specifically mentioned in the body of the information as an offended
party. It is sufficient that the People of the Philippines appear in the caption of the information to
emphasize the penal laws of the State have been violated. For indeed, a crime is an offense
against the State.chanrobles lawlibrary : rednad

Proceeding now to the main issue, we rule that it was error for the lower court to dismiss the
information. The information was already sufficient in form and substance. The argument that it
was fatal for the prosecution not to have alleged the State as the offended party is without merit
for in the case of Sayson v. People, 17 in construing Sec. 11 of Rule 110 (now Sec. 12, Rules of
Court of the 1985 Rules on Criminal Procedure), we have clearly held that in offenses against
property, the designation of the name of the offended party is not absolutely indispensable as
long as the criminal act charged in the complaint or information can be properly identified. 18

Indeed, the crime of qualified theft under Presidential Decree No. 330 was described with
particularity in the information as to properly identify the offense charged. Hence, the erroneous
allegation as to the person injured is deemed immaterial as the same is a mere formal defect
which does not tend to prejudice any substantial right of the defendant. 19

On the other hand, the amendment sought by herein petitioner changing the word "Corporation"
to "Operation" such that "Aluk Logging Corporation" would read "Aluk Logging Operation" is
merely formal. Even private respondents alternately used the words "corporation" and
"operation" in their pleadings. 20 Thus, it was not surprising that this formal defect was glossed
over by the lower court.

WHEREFORE, the Order dated October 24, 1975 is hereby REVERSED and SET ASIDE and
the case is REMANDED to the lower court for immediate disposition on the merits.

SO ORDERED.

268
 [G.R. No. 119063. January 27, 1997]

JOSE G. GARCIA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE

PHILIPPINES and ADELA TEODORA P. SANTOS, respondents.

DECISION
DAVIDE, JR., J.:

The issue here is whether the Court of Appeals committed reversible error in affirming the
trial court's order granting the motion to quash the information for bigamy based on prescription.
On 28 August 1991, petitioner Jose G. Garcia filed with the Quezon City Prosecutor's Office
an "Affidavit of Complaint" [1] charging his wife, private respondent Adela Teodora P. Santos
alias "Delia Santos," with Bigamy, Violation of C.A. No. 142, as amended by R.A. No. 6085,
and Falsification of Public Documents. However, in his letter of 10 October 1991 to Assistant
City Prosecutor George F. Cabanilla, the petitioner informed the latter that he would limit his
action to bigamy. [2]
After appropriate proceedings, Assistant Prosecutor Cabanilla filed on 8 January 1992 with
the Regional Trial Court (RTC) of Quezon City an information, [3] dated 15 November 1991,
charging the private respondent with Bigamy allegedly committed as follows:

That on or before the 2nd day of February, 1957, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being previously united in lawful
marriage with REYNALDO QUIROCA, and without the said marriage having been dissolved,
(or before the absent spouse has been declared presumptively dead by a judgment rendered in the
proper proceedings), did then and there wilfully, unlawfully and feloniously contract a second
marriage with JOSE G. GARCIA, which marriage has [sic] discovered in 1989, to the damage
and prejudice of the said offended party in such amount as may be awarded under the provisions
of the Civil Code.

CONTRARY TO LAW.

The information was docketed as Criminal Case No. Q-92-27272 and assigned to Branch 83
of the said court. On 2 March 1992, the private respondent filed a Motion to Quash alleging
prescription of the offense as ground therefor. She contended that by the petitioner's admissions
in his testimony given-on 23 January 1991 in Civil Case No. 90-52730, entitled "Jose G.
Garcia v. Delia S. Garcia," and in his complaint filed with the Civil Service Commission (CSC)
on 16 October 1991, the petitioner discovered the commission of the offense as early as 1974.
Pursuant then to Article 91 of the Revised Penal Code (RPC), [4] the period of prescription of the
offense started to run therefrom.Thus, since bigamy was punishable by prision mayor, [5] an
afflictive penalty [6] which prescribed in fifteen years pursuant to Article 92 of the RPC, then the
offense charged prescribed in 1989, or fifteen years after its discovery by the petitioner.
The private respondent quoted [7] the petitioner's testimony in Civil Case No.90-52730 as
follows:
Q No, no, just answer. What did you learn from her (Eugenia) about the private
respondent?
A That she has been married previously in case I don't know it. But she said she has
been previously married, in fact I saw her husband - Rey, a few days ago and they
said, "Baka magkasama pa silang muli:"
xxx
ATTY. EVANGELISTA:

269
 Q When did Eugenia R. Balingit told [sic] that private respondent was already married
to another man?
A That was when I told her that we are separating now. I told her in tagalog, "na
maghihiwalay na kami ni Delia ngayon." "Ang unang tanong niya sa akin, 'si Rey
ba ang dahilan,' ang alam ko po, Rey ang dating boyfriend niya, kaya ang sabi ko,
'hindi po, Mario ang pangalan, ' napabagsak po siya sa upuan, sabi niya, 'hindi na
nagbago."'
Q When was that when you came to know from Eugenia Balingit, the judicial guardian,
that private respondent was already married to another man when she married you?
A That was when the affair was happening and I found out.
Q What year?
A 1974. [8]
The portion of the complaint filed on 16 October 1991 before the CSC which the private
respondent alluded to, reads as follows:

5. At the time the respondent married the herein complainant she never informed him that
she was previously married to a certain "REYNALDO QUIROCA" on December 1, 1951
wherein she used the name of "ADELA SANTOS" which was part of her true name
"ADELA TEODORA P. SANTOS" as per her genuine Baptismal Certificate issued by
the Parish of San Guillermo, Bacolor, Pampanga, a copy of the said Baptismal Certificate
is hereto attached as ANNEX "D";

6. x x x

7. These facts were discovered only by the herein complainant in the year 1974 where they
separated from each other because of her illicit relations with several men continued use
of her alias name "DELIA", without proper authority from the Courts; and committing a
series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is
evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of
which is hereto attached as ANNEX "F"; [9]

In its 29 June 1992 order, [10] the trial court granted the motion to quash and dismissed the
criminal case, ruling in this wise:

This court believes that since the penalty prescribed under Article 349 of the Revised Penal Code
for the offense of bigamy is prision mayor, which is classified as an afflictive penalty under
Article 25 of the same Code, then said offense should prescribe in fifteen (15) years as provided
in Article 92 of the Code. The complainant having discovered the first marriage of the accused to
one Reynaldo Quiroca in 1974 when he was informed of it by one Eugenia Balingit, the offense
charged has already prescribed when the information was filed in this case on November 15,
1991. The argument presented by the prosecution that it was difficult for the complainant to
obtain evidence of the alleged first marriage, hence, the prescriptive period should be counted
from the time the evidence was secured will not hold water. Article 91 of the Revised Penal
Code specifically provides, thus:

"The period of prescription shall commence to run from the day on which the crime is
discovered x x x"

it did not state "on the day sufficient evidence was gathered," thus this Court cannot change the
requirements of the law.

The petitioner moved for reconsideration of the above order on 26 August 1992, [11] to
which he filed "numerous" supplements thereto, focusing on the private respondent's many trips
abroad which the petitioner claimed suspended the running of the prescriptive period. These trips

270
were enumerated in the certification [12] issued by Associate Commissioner Ramon M. Morales
of the Bureau of Immigration (BID), which reads as follows:

This is to certify that the name GARCIA/DELIA/S. appears in the Bureau's files of Arrivals and
Departures as having the following travel records:

Departed for HKG on 06/03/77 aboard PR

Arrived from HKG on 07/02/77 aboard PA
Arrived from SYD on 07/09/77 aboard BR
Arrived from GUM on 06/14/80 aboard PA
Arrived from MEL on 07/17/81 aboard PR
Arrived from TYO on 05/20/83 aboard BA
Departed for HKG on 09/22/83 aboard PR
Arrived from SIN on 09/28/83 aboard PR
Departed for TYO on 04/30/84 aboard PA
Arrived from SFO on 07/03/84 aboard PA
Departed for TYO on 11/19/84 aboard PA
Departed for TYO on 08/05/85 aboard PA
Departed for TYO on 11/17/86 aboard UA
Arrived from LAX on 12/12/87 aboard UA
Departed for LAX on 11/30/87 aboard UA
Departed for CHI on 11/14/88 aboard UA

The trial court disallowed reconsideration of its 29 June 1992 order, finding "no urgent or
justifiable reason to disturb or set [it] aside." As to the sojourns abroad of the private respondent
as shown in the certification, the trial court held that the same "is not that kind of absence from
the Philippines which will interrupt the period of prescription of the offense charged . . . " [13]
The petitioner then appealed to the Court of Appeals which docketed the appeal as CA-G.R.
CR No. 14324. He contended therein that: (a) the trial court erred in quashing the information on
the ground of prescription; and (b) the counsel for the accused was barred from filing the motion
to quash the information against the accused. [14] As to the first, the petitioner argued that bigamy
was a public offense, hence "the offended party is not the first or second (innocent) spouse but
the State whose law/policy was transgressed." He tried to distinguish bigamy from private
offenses such as adultery or concubinage "where the private complainant is necessarily the
offended party," thus, the prescriptive period for the former should commence from the day the
State, being the offended party, discovered the offense, which in this case was on 28 August
1991 when the petitioner filed his complaint before the Prosecutor's Office. The petitioner added
that the "interchanging use" In Article 91 of the RPC of the terms "offended party," "authorities,"
and "their agents" supports his view that the State is the offended party in public offenses.
Additionally, the petitioner referred to the general rule stated in People v. Alagao [15] "that in
resolving the motion to quash a criminal complaint or information[,] the facts alleged in the
complaint or information should be taken as they are." The information in this case mentioned
that the bigamy was discovered in 1989. He admitted, however, that this rule admits of
exceptions, such as when the ground for the motion to quash is prescription of the offense, as
provided in Section 4 of the old Rule 117 of the Rules of Criminal Procedure. Nonetheless, he
advanced the view that this exception is no longer available because of the implied repeal of
Section 4, as the amended Rule 117 no longer contains a similar provision under the rule on
motions to quash; and that granting there was no repeal, the private respondent failed to
introduce evidence to "support her factual averment in her motion to quash," which is required
by Rule 117. He further asserted that the factual bases of the motion to quash, viz., the
petitioner's testimony in Civil Case No. 90-52730 and his complaint filed with the CSC are not
conclusive because the testimony is hearsay evidence, hence inadmissible, while the complaint is
vague, particularly the following portion quoted by the private respondent:

7. These facts where discovered only by the herein complainant in the year 1974 when they
separated from each other because of her illicit relations with several men continued use

271
 of her alias name "DELIA", without proper authority from the Courts; and committing a
series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is
evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of
which is hereto attached a ANNEX "F";

The petitioner alleged that the phrase "These facts" in said paragraph 7 does not clearly refer to
his discovery of the private respondent's first marriage. Moreover, he doubted whether the term
"discovered" in the said paragraph was used in the sense contemplated by law. At best, the
petitioner theorized, the discovery only referred to the "initial, unconfirmed and uninvestigated
raw, hearsay information" which he received from Balingit.
Finally, the petitioner reiterated that the prescriptive period was interrupted several times by
the private respondent's numerous trips abroad.
As regards his second contention, the petitioner argued that the counsel for the private
respondent had already stated that he represented only Delia S. Garcia and not Adela Teodora P.
Santos. Consequently, the private respondent's counsel could not ask for the quash of the
information in favor of Adela Teodora P. Santos alias Delia Santos.The petitioner opined that the
counsel for the private respondent should have sought a dismissal of the case in favor of Delia
Garcia alone.
The Court of Appeals gave credence to the private respondent's evidence and concluded that
the petitioner discovered the private respondent's first marriage in 1974.Since the information in
this case was filed in court only on 8 January 1992, or eighteen years after the discovery of the
offense, then the 15-year prescriptive period had certainly lapsed. [16] It further held that the
quash of an information based on prescription of the offense could be invoked before or after
arraignment and even on appeal, [17] for under Article 89(5) of the RPC, the criminal liability of a
person is "'totally extinguish[ed]' by the prescription of the crime, which is a mode of
extinguishing criminal liability."Thus, prescription is not deemed waived even if not pleaded as a
defense. [18]
Undaunted, the petitioner is now before us on a petition for review on certiorari to annul
and set aside the decision of the Court of Appeals and to compel the respondent court to remand
the case to the trial court for further proceedings. He submits the following assignment of errors:
I

BIGAMY IS A PUBLIC OFFENSE, CONSEQUENTLY, PRESCRIPTION SHOULD HAVE

BEEN COUNTED FROM THE TIME THE STATE DISCOVERED ITS COMMISSION;

II

A MOTION TO QUASH CANNOT ALSO GO BEYOND WHAT IS STATED IN THE

INFORMATION;

III

BY THEMSELVES, THE FACTUAL BASES OF THE MOTION TO QUASH ARE NOT

ALSO CONCLUSIVE;

IV

ASSUMING THE PRESCRIPTIVE PERIOD STARTED IN 1974, SAID PERIOD HOWEVER

WAS INTERRUPTED SEVERAL TIMES.

We notice that except for the first two pages of the petition, the deletion of a few paragraphs,
the substitution of the term "petitioner" for "appellant," and the deletion of the contention on the
counsel for the private respondent being barred from filing a motion to quash, the herein petition
is a reproduction of the Appellant's Brief filed by the petitioner with the Court of Appeals. Verily

272
then, the instant petition is a rehash of an old tale. However, the Court of Appeals failed to-
sufficiently address several issues raised by the petitioner, most probably prompting him to seek
redress from this Court.
We resolved to give due course to the petition and required the parties to submit their
respective memoranda. The Office of the Solicitor General was the last to submit a
Memorandum for the public respondent. Both the private and public respondents ask for the
dismissal of this petition and the affirmance of the challenged decision.
Petitioner's position is untenable. Denial then of this petition is all it merits.
We shall take up the assigned errors in seriatim.
I
It is true that bigamy is a public offense. But, it is entirely incorrect to state, as the petitioner
does, that only the State is the offended party in such case, as well as in other public offenses,
and, therefore, only the State's discovery of the crime could effectively commence the running of
the period of prescription therefor. Article 91 of the RPC provides that "[t]he period of
prescription shall commence to run from the day on which the crime is discovered by the
offended party, the authorities, or their agents . . . ." This rule makes no distinction between a
public crime and a private crime. In both cases then, the discovery may be by the "offended
party, the authorities, or their agents."
Article 91 does not define the term "offended party." We find its definition in Section 12,
Rule 110 of the Rules of Court as "the person against whom or against whose property, the
offense was committed." [19] The said Section reads as follows:

SEC. 12. Name of the offended party. -- A complaint or information must state the name and
surname of the person against whom or against whose property the offense was committed, or
any appellation or nickname by which such person has been or is known, and if there is no better
way of identifying him, he must be described under a fictitious name.

More specifically, it is reasonable to assume that the offended party in the commission of a
crime, public or private, is the party to whom the offender is civilly liable, in light of Article 100
of the RPC, which expressly provides that "[e]very person criminally liable for a felony is also
civilly liable." [20] Invariably then, the private individual to whom the offender is civilly liable is
the offended party.
This conclusion is strengthened by Section 1, Rule 111 of the Rules of Court which reads:

SEC. 1. Institution of criminal and civil actions. -- When a criminal action is instituted, the civil
action for the recovery of civil liability is impliedly instituted with a criminal action, unless the
offended party waives the civil action, reserves his right to institute it separately, or institutes the
civil action prior to the criminal action

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages
under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act
or omission of the accused. x x x

It is settled that in bigamy, both the first and the second spouses may be the offended parties
depending on the circumstances. [21]
The petitioner even admits that he is the offended party in Criminal Case No. Q-92-
27272. The information therein, [22] which he copied in full in the petition in this case, describes
him as the "offended party" who suffered "damage and prejudice . . . in such amount as may be
awarded under the provisions of the Civil Code." [23]
The distinction he made between public crimes and private crimes relates not to the
discovery of the crimes, but to their prosecution. Articles 344 and 360 of the RPC, in relation to
Section 5, Rule 110 of the Rules of Court, are clear on this matter.

273
 II
The petitioner's contention that a motion to quash cannot go beyond the information in
Criminal Case No. Q-92-27272 which states that the crime was discovered in 1989, is palpably
unmeritorious. Even People v. Alagao, [24] which he cites, mentions the exceptions to the rule as
provided in paragraphs (f) and (h) of Section 2, and Sections 4 and 5 of the old Rule 117 viz., (a)
extinction of criminal liability, and (b) double jeopardy. His additional claim that the exception
of extinction can no longer be raised due to the implied repeal of the former Section 4, [25] Rule
117 of the Rules of Court occasioned by its non-reproduction after its revision, is equally without
merit. No repeal, express or implied, of the said Section 4 ever took place. While there is no
provision in the new Rule 117 that prescribes the contents of a motion to quash based on
extinction of criminal liability, Section 2 thereof encapsulizes the former Sections 3,4, and 5 of
the old Rule 117. The said Section 2 reads as follows:

SEC. 2. Form and contents. - The motion to quash shall be in writing signed by the accused or
his counsel. It shall specify distinctly the factual and legal grounds therefor and the court shall
consider no grounds other than those stated therein, except lack of jurisdiction over the offense
charged. (3a, 4a, 5a). (underscoring supplied for emphasis)

It is clear from this Section that a motion to quash may be based on factual and legal
grounds, and since extinction of criminal liability and double jeopardy are retained as among
the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that
facts outside the information itself may be introduced to prove such grounds. As a matter of fact,
inquiry into such facts may be allowed where the ground invoked is that the allegations in the
information do not constitute the offense charged. Thus, in People v. De la Rosa, [26] this Court
stated:

As a general proposition, a motion to quash on the ground that the allegations of the information
do not constitute the offense charged, or any offense for that matter, should be resolved on the
basis alone of said allegations whose truth and veracity are hypothetically admitted. However, as
held in the case of People vs. Navarro, 75 Phil. 516, additional facts not alleged in the
information, but admitted or not denied by the prosecution may be invoked in support of the
motion to quash. Former Chief justice Moran supports this theory. [27]

In Criminal Case No. 92-27272, the trial court, without objection on the part of the
prosecution, allowed the private respondent to offer evidence in support of her claim that the
crime had prescribed. Consequently, the trial court, upon indubitable proof of prescription,
correctly granted the motion to quash. It would have been, to quote De la Rosa, "pure
technicality for the court to close its eyes to [the fact of prescription] and still give due course to
the prosecution of the case" - a technicality which would have meant loss of valuable time of the
court and the parties.
As noted by Dr. Fortunato Gupit, Jr., consultant of the Rules of Court Revision Committee,
the aforequoted Section 2 of the new Rule 117 on "factual and legal grounds" of a motion to
quash is based on the De la Rosa case. [28]
III
The petitioner likewise claims that the factual bases of the private respondent's motion to
quash are inconclusive. The petitioner cannot be allowed to disown statements he made under
oath and in open court when it serves his purpose. This is a contemptible practice which can only
mislead the courts and thereby contribute to injustice. Besides, he never denied having given the
pertinent testimony. He did, however, term it vague in that it was not clear whether the prior
marriage which Eugenia Balingit disclosed to him was that entered into by the private respondent
with Reynaldo Quiroca. It is immaterial to whom the private respondent was first married; what
is relevant in this case is that the petitioner was informed of a prior marriage contracted by the
private respondent.

274
 Neither may the petitioner be heard to cast doubt on the meaning of his statements in his
sworn complaint filed before the CSC. We find no hint of vagueness in them. In any event, he
has not denied that he in fact discovered in 1974 that the private respondent had been previously
married.
Finally, the petitioner draws our attention to the private respondent's several trips abroad as
enumerated in the certification of the Bureau of Immigration, and cites the second paragraph of
Article 91 of the RPC, viz.: "[t]he term of prescription shall not run when the offender is absent
from the Philippine Archipelago." We agree with the Court of Appeals that these trips abroad did
not constitute the "absence" contemplated in Article 91. These trips were brief, and in every case
the private respondent returned to the Philippines. Besides, these were made long after the
petitioner discovered the offense and even if the aggregate number of days of these trips are
considered, still the information was filed well beyond the prescriptive period.
WHEREFORE, the instant petition is DENIED for lack of merit and the challenged
decision of 13 February 1995 of the Court of Appeals in CA-G.R. CR No.14324 is AFFIRMED.
Costs against the petitioner.
SO ORDERED.

275
G.R. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, petitioner,

vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of
Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in
his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB,
CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and
RODRIGO P. LORENZO, the last six respondents in their official capacities as members
of the State Prosecutor's Office), respondents.

Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.

The Solicitor General for respondents.

CRUZ, J.:

There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez
of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has
already been rendered by many outraged persons who would immediately impose on him an
angry sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed
innocent as long as the contrary has not been proved. Like any other person accused of an
offense, he is entitled to the full and vigilant protection of the Bill of Rights.

Sanchez has brought this petition to challenge the order of the respondent judge denying his
motion to quash the informations for rape with homicide filed against him and six other persons.
We shall treat it as we would any other suit filed by any litigant hoping to obtain a just and
impartial judgment from this Court.

The pertinent facts are as follows:

On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate
charges against several persons, including the petitioner, in connection with the rape-slay of
Mary Eileen Sarmenta and the killing of Allan Gomez.

Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a
preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was
represented by his counsel, Atty. Marciano Brion, Jr.

On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner
requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was
served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said
camp.

At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and
SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in
the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest
status" and taken to the Department of Justice in Manila.

The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty.
Salvador Panelo as his counsel.

After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August
13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in
connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in

276
relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention
Center, Camp Crame, where he remains confined.

On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba,
Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon,
Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of
Mary Eileen Sarmenta.

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the
arrest of all the accused, including the petitioner, in connection with the said crime.

The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the
said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in
Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one
of the accused. This Court thereupon ordered the transfer of the venue of the seven cases to
Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou.

On September 10, 1993, the seven informations were amended to include the killing of Allan
Gomez as an aggravating circumstance.

On that same date, the petitioner filed a motion to quash the informations substantially on the
grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent
judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.

The petitioner argues that the seven informations filed against him should be quashed because: 1)
he was denied the right to present evidence at the preliminary investigation; 2) only the
Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal
and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven
homicides arising from the death of only two persons; 5) the informations are discriminatory
because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he
can be tried for the offense only by the Sandiganbayan.

The respondents submitted a Comment on the petition, to which we required a Reply from the
petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The
Court may consider his non-compliance an implied admission of the respondents' arguments or a
loss of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we
shall disregard this procedural lapse and proceed to discuss his petition on the basis of the
arguments before us.

The Preliminary Investigation.

The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that
he was not accorded the right to present counter-affidavits.

During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano
Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus:

Atty. Brion, Jr.:

[W]e manifest that after reviewing them there is nothing to rebut or countermand
all these statements as far as Mayor Sanchez is concerned, We are not going to
submit any counter-affidavit.

ACSP Zuo to Atty. Brion:

xxx xxx xxx

277
 Q. So far, there are no other statements.

A. If there is none then, we will not submit any counter-affidavit

because we believe there is nothing to rebut or countermand with
all these statements.

Q. So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come
up soon. 3

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion
that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was
filed.

During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this
time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and
told him he could submit counter-affidavits on or before August 27, 1993. The following
exchange ensued:

ACSP Zuo:

For the record, we are furnishing to you the sworn statement of

witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles.

Do I understand from you that you are again waiving the

submission of counter-affidavit?

Atty. Panelo:

Yes.

ACSP Zuo:

So, insofar as the respondent, Mayor Antonio Sanchez is

concerned, this case is submitted for resolution. 4

On the other hand, there is no support for the petitioner's subsequent manifestation that his
counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was
not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio
Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the above-
quoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was
not Atty. Brion but Atty. Panelo.

The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel.
During the entire proceedings, he remained quiet and let this counsel speak and argue on his
behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now
question his representation by this lawyer as unauthorized and inofficious.

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot
be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer
shall base his resolution on the evidence presented by the complainant.

Just as the accused may renounce the right to be present at the preliminary investigation 5, so
may he waive the right to present counter-affidavits or any other evidence in his defense.

278
At any rate, it is settled that the absence of a preliminary investigation does not impair the
validity of the information or otherwise render the same defective and neither does it affect the
jurisdiction of the court over the case or constitute a ground for quashing the information. 6

If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of
the accused, order an investigation or reinvestigation and hold the proceedings in the criminal
case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for
such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted
by the Department of Justice are null and void because it had no jurisdiction over the case. His
claim is that it is the Office of the Ombudsman that is vested with the power to conduct the
investigation of all cases involving public officers like him, as the municipal mayor of Calauan,
Laguna.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to
investigate and prosecute, any illegal act or omission of any public official. However, as we held
only two years ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive
authority but rather a shared or concurrent authority in. respect of the offense charged."

Petitioners finally assert that the information and amended information filed in
this case needed the approval of the Ombudsman. It is not disputed that the
information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary at all.
In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the
Ombudsman has authority to investigate charges of illegal or omissions on the
part of any public official, i.e., any crime imputed to a public official. It must,
however, be pointed out that the authority of the Ombudsman to investigate "any
[illegal] act or omission of any public official" (191 SCRA at 550)
is not an exclusiveauthority but rather a shared or concurrent authority in respect
of the offense here charged, i.e., the crime of sedition. Thus, the non-involvement
of the office of the Ombudsman in the present case does not have any adverse
legal consequence upon the authority the panel of prosecutors to file and
prosecute the information or amended information.

In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition, 10 and the Presidential Commission on Good
Government, in ill-gotten wealth cases, 11 may conduct the investigation,

The Arrest

Was petitioner Sanchez arrested on August 13, 1993?

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into
custody in order that he may be bound to answer for the commission of an offense. Under
Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested
or by his voluntary submission to the custody of the person making the arrest.

Application of actual force, manual touching of the body, physical restraint or a formal
declaration of arrest is not, required. It is enough that there be an intent on the part of one of the
parties to arrest the other and an intent onthe part of the other to submit, under the belief and
impression that submission is necessary. 12

279
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-
invitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for
investigation.

In Babst v. National Intelligence Board 13 this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a

hearing and answer some questions, which the person invited may heed or refuse
at his pleasure, is not illegal or constitutionally objectionable. Under certain
circumstances, however, such an invitation can easily assume a different
appearance. Thus, where the invitation comes from a powerful group composed
predominantly of ranking military officers issued at a time when the country has
just emerged from martial rule and when the suspension of the privilege of the
writ of habeas corpus has not entirely been lifted, and the designated
interrogation site is a military camp, the same can be easily taken, not as a
strictly voluntary invitation which it purports to be, but as an authoritative
command which one can only defy at his peril. . . . (Emphasis supplied)

In the case at bar, the invitation came from a high-ranking military official and the investigation
of Sanchez was to be made at a military camp. Although in the guise of a request, it was
obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In
fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and
slippers only) with the officers who had come to fetch him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial
investigation" are applicable even to a person not formally arrested but merely "invited" for
questioning.

It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status"
after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen
Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on
the basis of the sworn statements of the two state witnesses, petitioner had been "arrested."

We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules
of Court, providing as follows:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escapes from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

It is not denied that the arresting officers were not present when the petitioner allegedly
participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither
did they have any personal knowledge that the petitioner was responsible therefor because the
basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape
and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before
the date of the arrest, it cannot be said that the offense had "in fact just been committed" when
the petitioner was arrested.

280
The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional
Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the
warrant of arrest it issued on August 26, 1993 against him and the other accused in connection
with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully
acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to
the jurisdiction of the court over his person, he may move to quash the information, but only on
that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is
deemed to have waived that objection and to have submitted his person to the jurisdiction of that
court. 14

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal
Cases Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of
the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for
his detention.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect. * Applicable by
analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec, 4. When writ is not allowed or discharge authorized. If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall, anything in
this rule be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering imprisonment under
lawful judgment.

In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by
virtue of a John Doe warrant. In their return, the respondents declared that a new warrant
specifically naming her had been issued, thus validating her detention. While frowning at the
tactics of the respondents, the Court said:

The, case has, indeed, become moot and academic inasmuch as the new warrant
of arrest complies with the requirements of the Constitution and the Rules of
Court regarding the particular description of the person to be arrested. While the
first warrant was unquestionably void, being a general warrant, release of the
petitioner for that reason will be a futile act as it will be followed by her
immediate re-arrest pursuant to the new and valid warrant, returning her to the
same prison she will just have left. This Court will not participate in such a
meaningless charade.

The same doctrine has been consistently followed by the Court, 17 more recently in
the Umil case. 18

The Informations

The petitioner submits that the seven informations charging seven separate homicides are absurd
because the two victims in these cases could not have died seven times.

This argument was correctly refuted by the Solicitor General in this wise:

281
 Thus, where there are two or more offenders who commit rape, the homicide
committed on the occasion or by reason of each rape, must be deemed as a
constituent of the special complex crime of rape with homicide. Therefore, there
will be as many crimes of rape with homicide as there are rapes committed.

In effect, the presence of homicide qualifies the crime of rape, thereby raising its
penalty to the highest degree. Thus, homicide committed on the occasion or by
reason of rape, loses its character as an independent offense, but assumes a new
character, and functions like a qualifying circumstance. However,by fiction of
law, it merged with rape to constitute an constituent element of a special complex
crime of rape with homicide with a specific penalty which is in the highest
degree, i.e. death (reduced to reclusion perpetua with the suspension of the
application of the death penalty by the Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribe a simple
punishment for various offenses.

Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the
Revised Penal Code.

The petitioner and his six co-accused are not charged with only one rape committed by him in
conspiracy with the other six. Each one of the seven accused is charged with having himself
raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other words,
the allegation of the prosecution is that the girl was raped seven times, with each of the seven
accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust
satisfied, all seven of them decided to kill and thus silence Sarmenta.

Every one of the seven accused is being charged separately for actually raping Sarmenta and
later killing her instead of merely assisting the petitioner in raping and then slaying her. The
separate informations filed against each of them allege that each of the seven successive rapes is
complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez
by her seven attackers. The separate rapes were committed in succession by the seven accused,
culminating in the slaying of Sarmenta.

It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven
times, but the informations do not make such a suggestion. It is the petitioner who does so and is
thus hoist by his own petard.

The Alleged Discrimination

The charge of discrimination against the petitioner because of the non-inclusion of Teofilo
Alqueza and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear to
be guilty, he nevertheless cannot be compelled to include in the information a person against
whom he believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence
involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a
clear showing by the petitioner of a grave abuse of such discretion. 20

The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in
special cases by the President of the Philippines. 21 But even this Court cannot order the
prosecution of a person against whom the prosecutor does not find sufficient evidence to support
at least a prima facie case. The courts try and absolve or convict the accused but as a rule have
no part in the initial decision to prosecute him.

282
The possible exception is where there is an unmistakable showing of a grave abuse of discretion
that will justify judicial intrusion into the precincts of the executive. But in such a case the proper
remedy to call for such exception is a petition for mandamus, not certiorari or
prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another
person as a co-accused in the same case must first avail itself of other adequate remedies such as
the filing of a motion for such inclusion. 23

At any rate, it is a preposterous contention that because no charges have been filed against
Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be
dropped.

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were incumbent public officials or
employees at the time of the alleged commission of the crimes, the cases against them should
come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention
was withdrawn in his Reply but we shall discuss it just the same for the guidance of all those
concerned.

Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act, Republic Act
No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal
Code:

(2) Other offenses or felonies committed by public officers and

employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law
is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00. . . . (Emphasis supplied)

The crime of rape with homicide with which the petitioner stands charged obviously does not fall
under paragraph (1), which deals with graft and corruption cases. Neither is it covered by
paragraph (2) because it is not an offense committed in relation to the office of the petitioner.

In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as
follows:

[T]he relation between the crime and the office contemplated by the Constitution
is, in our opinion, direct and not accidental. To fall into the intent of the
Constitution, the relation has to be such that, in the legal sense, the offense cannot
exist without the office. In other words, the office must be a constituent element
of the crime as defined in the statute, such as, for instance, the crimes defined and
punished in Chapter Two to Six, Title Seven, of the Revised Penal Code.

Public office is not of the essence of murder. The taking of human life is either
murder or homicide whether done by a private citizen or public servant, and the
penalty is the same except when the perpetrator. being a public functionary took
advantage of his office, as alleged in this case, in which event the penalty is
increased.

283
 But the use or abuse of office does not adhere to the crime as an element; and
even as an aggravating circumstance, its materiality arises not from the allegations
but on the proof, not from the fact that the criminals are public officials but from
the manner of the commission of the crime

There is no direct relation between the commission of the crime of rape with homicide and the
petitioner's office as municipal mayor because public office is not an essential element of the
crime charged. The offense can stand independently of the office. Moreover, it is not even
alleged in the information that the commission of the crime charged was intimately connected
with the performance of the petitioner's official functions to make it fall under the exception laid
down in People v. Montejo. 25

In that case, a city mayor and several detectives were charged with murder for the death of a
suspect as a result of a "third degree" investigation held at a police substation. The appearance of
a senator as their counsel was questioned by the prosecution on the ground that he was inhibited
by the Constitution from representing them because they were accused of an offense committed
in relation to their office. The Court agreed. It held that even if their position was not an essential
ingredient of the offense, there was nevertheless an intimate connection between the office and
the offense, as alleged in the information, that brought it within the definition of an offense
"committed in relation to the public office."

As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is not an element
of the crime of murder in abstract, as committed by the main respondents herein,
according to the amended information, the offense therein charged is intimately
connected with their respective offices and was perpetrated while they were in the
performance, though improper or irregular, of their official functions. Indeed they
had no personal motive to commit the crime and they would not have committed
it had they not held their aforesaid offices. The co-defendants of respondent Leroy
S. Brown, obeyed his instructions because he was their superior officer, as Mayor
of Basilan City. (Emphasis supplied).

We have read the informations in the case at bar and find no allegation therein that the crime of
rape with homicide imputed to the petitioner was connected with the discharge of his functions
as municipal mayor or that there is an "intimate connection" between the offense and his office.
It follows that the said crime, being an ordinary offense, is triable by the regular courts and not
the Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner are not supported by the
facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In
consequence, the respondent judge, who has started the trial of the criminal cases against the
petitioner and his co-accused, may proceed therewith without further hindrance.

It remains to stress that the decision we make today is not a decision on the merits of the criminal
cases being tried below. These will have to be decided by the respondent judge in accordance
with the evidence that is still being received. At this time, there is yet no basis for judgment, only
uninformed conjecture. The Court will caution against such irrelevant public speculations as they
can be based only on imperfect knowledge if not officious ignorance.

WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue

with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and
101147 and to decide them with deliberate dispatch.

SO ORDERED.

284
 [G.R. No. 100197. April 4, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN NARDO and WILLY

YLARDE, accused-appellants.

DECISION
PANGANIBAN, J.:

In pleading for acquittal, appellants attack the sufficiency of the evidence of the prosecution
and the credibility of its witnesses, and offer the defense of alibi and denial. The Court rejects
these contentions and applies the familiar rule according great respect to findings of fact by the
trial court. However, it finds the accused guilty of four separate crimes of murder and two
attempted murders, instead of the complex crime of murder with double frustrated murder.
Accused-appellants Edwin Nardo and Willy Ylarde appeal their conviction[1] by the
Regional Trial Court of Tayug, Pangasinan, Branch 51,[2] in a Decision[3] promulgated on May 8,
1991.
Since Ylarde was still at large, only Accused Nardo was initially charged in an
Information[4] dated November 9, 1987, filed by Assistant Provincial Fiscal Isidro C. Sta.
Maria. Nardo pleaded not guilty thereto during his arraignment on June 7, 1988. Accused Ylarde
was later charged with the same crime by way of an Amended Information,[5]filed by the same
prosecutor, which reads as follows:

The undersigned hereby accuses EDWIN NARDO and WILLY YLARDE of the crime of
MULTIPLE MURDER WITH DOUBLE FRUSTRATED MURDER, committed as follows:

That on or about the 21st day of July, 1985, in the evening, at Barangay Poblacion East,
municipality of Umingan, province of Pangasinan, New Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with
the qualifying circumstance of treachery armed with M16 Armalite Rifles, conspiring,
confederating and helping one another, did then and there wilfully, unlawfully and feloniously
shoot and fire at in a sudden and unexpected manner, CLARO SUITOS, MICAELA SUITOS,
CLARENCE SUITOS, ANICIA SALES, MACARIO DELA PEA and LUZVIMINDA PUDOL,
causing the death of CLARENCE SUITOS, ANICIA SALES, MACARIO DELA PEA and
LUZVIMINDA PUDOL and wounding CLARO SUITOS on the left shoulder and MICAELA
SUITOS on the left hip, to the damage and prejudice of the heirs of CLARENCE SUITOS,
ANICIA SALES, MACARIO DELA PEA, LUZVIMINDA PUDOL, CLARO SUITOS and
MICAELA SUITOS.

CONTRARY to Article 248 of the Revised Penal Code.

To said charge, Accused Ylarde pleaded not guilty on April 18, 1990. After due trial, the
court a quo rendered its Decision convicting both accused as charged. The following is the
decretal portion of said Decision:

WHEREFORE, premises considered, the Court finds the accused Edwin Nardo and Willy Ylarde
GUILTY beyond reasonable doubt of the crime of Multiple Murder with Double Frustrated
Murder, defined and penalized under Article 248 in relation to Article 48 of the Revised Penal
Code and there being no aggravating nor mitigating circumstance to off-set each other, hereby
sentences both accused to suffer the penalty of RECLUSION PERPETUA and to pay jointly and
severally the following:

1. Heirs of Clarence Suitos, P50,000.00 as indemnity plus P3,500.00 for the coffin
and P10,000.00 for the expenses incurred during the wake;

285
 2. Heirs of Macario dela Pea, P50,000.00 as indemnity and P20,000.00 for the funeral
expenses and the wake;
3. Heirs of Anicia Sales, P50,000.00 as indemnity plus P20,000.00 for the funeral
expenses and the wake;
4. Heirs of Luzviminda Pudol, P50,000.00 as indemnity and P15,000.00 for the
funeral expenses and the wake;
5. Micaela Suitos, P21,000.00 for the medical expenses incurred for her treatment and
her husbands (Claro) injuries at the Sacred Heart Hospital in Urdaneta, Pangasinan,
plus P10,000.00 as moral damages; and
6. Costs of this suit.[6]
Thus, this appeal.

The Facts

The antecedents of the case, as related by the trial court and adopted by the Solicitor General
in his Brief,[7] are as follows:

EVIDENCE OF THE STATE:

From the collective testimonies of Dra. Thelma Busto, MHO of Umingan, Pangasinan, Micaela
Suitos, wife of Claro (Vic) Suitos one of the injured parties and Rogelio Fernandez, the incident
happened as follows:

In the morning of July 21, 1985, the accused Edwin Nardo and Willy Ylarde went to the eatery
of spouses Claro (Vic) and Micaela Suitos located at the public market of Umingan,
Pangasinan.They brought with them a buri bag which turned out to contain marijuana
leaves. They were offering to sell the same to Claro Suitos who told them that it is prohibited, so
they left.

At around 6:30 in the evening of the same day, Edwin Nardo and Willy Ylarde went back to the
eatery of the spouses and then and there fired indiscriminately at the place with a baby armalite
used by Edwin Nardo and a short firearm used by Willy Ylarde. The firing resulted to (sic) the
death of Clarence Suitos, Anicia Sales, Macario dela Pea and Luzviminda Pudol and in the
wounding of Claro (Vic) Suitos, Micaela Suitos and the slightly (sic) wounding of Marivic
Suitos.

The spouses Claro and Micaela Suitos were brought to the Sacred Heart Hospital in Urdaneta,
Pangasinan where they were treated spending P15,000.00 leaving a balance of P6,000.00
unpaid.Their wounded daughter Marivic was merely extended first aid because her injury was
merely slight (daplis). Their other daughter Clarence who died in the incident caused them to
spend P3,500.00 for her coffin and P10,000.00 for the nine-day wake.

Upon the agreement of the prosecutor and the defense counsel, the expenses for the funeral and
wake of the deceased Macario dela Pea and Anicia Sales were pegged at P20,000.00 each while
for the deceased Luzviminda Pudol, it was pegged at P15,000.00.

The dead namely, Luzviminda Pudol, Macario dela Pea, Clarence Suitos and Anicia Sales were
autopsied by Dra. Thelma Busto (Exhs. A to D).

Pending trial, Claro (Vic) Suitos died in an ambush on October 23, 1989.

EVIDENCE OF THE DEFENSE:

286
The accused put up the defense of alibi.

They claim that in the morning of July 21, 1985, they went to the eatery of the spouses Claro and
Micaela Suitos to sell ten (10) cartoons (sic) of blue seal Marlboro cigarettes and five (5)
packages of matches contained in a bag owned by Boy Lopez. Failing to sell the items, as
instructed of them by the owner Boy Lopez, they proceeded to Quezon City at around 11:00 a.m.
to return the said items to Boy Lopez at 89 West Point St., Cubao, Quezon City. They arrived at
4:00 p.m.. They slept at said place with the caretaker Juan Andres, Jr. and the maid of Boy Lopez
named Rosie Espiritu. They left for Umingan, Pangasinan the following day, July 22, 1985.

Their stay at Quezon City was corroborated by witness Juan Andres, Jr., the caretaker of Boy
Lopez.

Witness for the defense Nicanor Aquinde, a police investigator of the PC/INP of Umingan,
Pangasinan testified that immediately after the incident, he investigated the spouses Claro and
Micaela Suitos at the Sacred Heart Hospital in Urdaneta, Pangasinan. In that investigation, both
mentioned names other than the herein accused as suspects. Said investigation however which
was reduced to writing was unfinished and unsigned because the spouses requested him that they
will better give their statements as soon as they get fully well as they are still in a state of
shock. And upon their request which said investigator granted, the unfinished and unsigned
statements were burned by him.

Reynaldo Andres, on the other hand, testified as follows:

On the day of the incident, he was a tricycle driver then residing at Brgy. Sinabaan, Umingan,
Pangasinan. At around 8:00 p.m. on July 21, 1985, he parked his tricycle in the western gate of
the compound of public market of Umingan, Pangasinan while waiting for passengers. While
thereat, he heard gunshots so he took cover. After the firing, four (4) men approached him and
told him to carry them somewhere near the boundary of Umingan and Lupao. Because he was
threatened with a long firearm, he ferried them to the destination he was told which was near the
boundary of Lupao and Umingan where there were no houses. He did not recognize any of them
because it was night-time.[8]

Disposing of the accuseds defense of alibi, the trial court gave credence to the categorical
and positive testimony given by Eyewitnesses Micaela Suitos and Rogelio Fernandez identifying
the accused as the perpetrators of the mass murder. Said eyewitnesses were without motive or ill
will to perjure their testimonies and to implicate appellants in the crime. Although Micaela
Suitos failed to name the accused during the police investigation conducted immediately after the
incident, the trial judge attributed this failure to the tension of the moment, shock, excitement
and haste, which fact was sustained by (Pat. Nicanor) Aquinde when he agreed to the burning of
the alleged unfinished and unsigned statements of Claro and Micaela Suitos.
In addition, the court a quo noted two other factors negating the accuseds claim of
innocence: one, the flight of both accused from where the incident happened, which was also
their hometown (Umingan, Pangasinan), to elude arrest[9]; and two, the relationship of the
defense witnesses, Brothers Reynaldo and Juan Andres Jr., to Accused Willy Ylarde.[10]
Finally, the lower court found both accused to have conspired in the murder of the victims,
as proven by the simultaneous discharge of their firearms.

Issue

In their appeal, accused-appellants assign this single error to the trial courts Decision:

The trial court erred in not acquitting the two herein accused upon the ground that although their
defense, in the nature of alibi, is inherently a weak defense, it should be considered sufficient as

287
in this case, to tilt the scale of justice in favor of the accused because the evidence of the
prosecution is itself weak and unconvincing and therefore, by and large, insufficient to prove the
guilt of the accused beyond reasonable doubt.[11]

Restated in clearer and more concise form, the issue centers on the credibility of witnesses
and sufficiency of prosecution evidence to prove the guilt of the accused beyond reasonable
doubt.
Accused-appellants assail the testimony of Witness Micaela Suitos pinpointing them as the
perpetrators of the carnage in spite of the fact that she had earlier named other persons as the
assailants. According to appellants, what lends more doubt to her charge is the fact that she
claimed to have known both accused prior to the incident and also to have seen them in the
morning of that ill-fated day, yet failed to mention their names to the police investigator. If
indeed they were the culprits, she could not have forgotten to name them during the investigation
conducted immediately after the incident. Appellants likewise cast doubt upon the testimony of
Rogelio Fernandez, citing his failure to give a statement to the authorities prior to his testimony
in court more than five years later. They stressed that one of the fatalities was one of his
landlords.
The Solicitor General sustains the findings of the trial judge who concluded that, after
observing the demeanor of the witnesses, the evidence for the prosecution was sufficient to prove
that the accused were guilty beyond reasonable doubt of the crime charged. He prays for the
affirmation in toto of the appealed Decision.

The Courts Ruling

We affirm the findings of the trial court as regards the guilt of the appellants. However, the
crime committed was not multiple murder with double frustrated murder, but four (4) separate
crimes of murder committed against each of the four victims -- Clarence Suitos, Macario dela
Pea, Anicia Sales and Luzviminda Pudol -- and two (2) separate crimes of attempted (instead of
frustrated) murder committed against Spouses Claro and Micaela Suitos.
The Court reiterates the oft-stated general rule in assessing the credibility of witnesses and
their testimonies that:

x x x when the question is raised as to whether to believe the version of the prosecution or that of
the defense, the trial courts choice is generally viewed as correct and entitled to the highest
respect because it is more competent to conclude so, having had the opportunity to observe the
witnesses demeanor and deportment on the witness stand, and the manner in which they gave
their testimonies, and therefore could better discern if such witnesses were telling the truth; the
trial court is thus in the better position to weigh conflicting testimonies. Therefore, unless the
trial judge plainly overlooked certain facts of substance and value which, if considered, might
affect the result of the case, his assessment on credibility must be respected.[12]

After a scrupulous review of the records of the case, we find that the court a quo did not
overlook any fact of substance and value which would alter the conviction of the appellants. No
palpable error was committed by the said trial court in assessing the credibility of both
prosecution and defense witnesses, and in weighing the value of their testimonies. It correctly
concluded that the defense of alibi is unavailing because the accused were positively identified
by witnesses without motive to charge falsely the accused especially with a grave offense that
could bring death by execution on the culprit(s).[13] Besides, Micaela Suitos was a victim herself
and a close relative of other victims, whose testimony should normally be accepted since such
witness usually strive(s) to remember the face(s) of the assailant(s).[14] Furthermore, relationship
with a victim would deter a witness from indiscriminately implicating anybody to the crime. His
natural and usual interest would be to identify the malefactor and secure his conviction to obtain
true justice for the death of a relative. This is (e)specially so when the witnesses were present at

288
the scene of the crime.[15] In this case, Micaela Suitos witnessed the event. She unwaveringly and
steadfastly testified as follows:
Q On July 21, 1985, on or about 6:30 oclock in the evening, do you recall where you
were?
A I was inside our eatery inside the market.
Q Were you alone?
A We were then six.
Q Who were your companions?
A My husband, Vic Suitos, Clarance[16] Suitos, Minda Pudol, Alicia[17]Sales and
Macario dela Pea.
Q What is the name of your husband?
A Claro Suitos.
COURT:
Q Where is that eatery located?
A Inside the market of Umingan, Pangasinan.
PROS. PEREGRINO:
Q Do you have any relationship with Vic Suitos?
A My husband.
Q Do we get it from you that the nickname of Vic is Claro?
A Yes, sir.
Q How are you related to Clarence Suitos?
A She is my daughter.
xxxxxxxxx
Q While you and your companions whose names you just mentioned in the Honorable
Court are with you in your carenderia on that date and time, do you recall of any
unusual incident that happened?
A I saw the shooting and their death.
Q Who did the shooting?
A Edwin Nardo and Ylarde.
Q Do you know the person by the name of Willy Ylarde?
A He used to be my customer.
Q Yes, but you mentioned previously a certain person who did the shooting as Ylarde, I
am asking you if you know one by the name of Willy Ylarde?
A I know him, sir. He is there. Witness pointing to the accused Willy Ylarde.
Q Will you also point to the person of Edwin Nardo?
A Witness pointing to the person of Edwin Nardo.
Q Who were those shot by the shooting made by the two accused?
A Clarence Suitos, Minda Pudol, Macario dela Pea, Vic Suitos and I. Anicia Sales
including my daughter were also wounded in their arm.
Q What is the name of your daughter?

289
A Marivic Suitos.
Q Where were Edwin Nardo and Willy Ylarde at the time when they made the shooting
of those persons mentioned including yourself?
A They were fronting my restaurant. I thought they are going to eat but its (sic) not.
Q What happened with Clarence Suitos?
A She died.
Q How about Alicia Sales?
A She also died.
Q How about Macario dela Pea?
A He also died.
Q Minda Pudol?
A She also died.
Q How about your husband Vic Suitos?
A We brought him with (sic) the police car to the nearest hospital.
Q How about you?
A I was also brought to the Doctors Hospital.
Q Where?
A Urdaneta, Pangasinan.
Q Do we get it from you that both you and your husband went to the hospital?
A Yes, sir.
Q By the way can you tell the Honorable Court what kind of gun was used by Edwin
Nardo and Willy Ylarde in shooting you and your companions inside your
carenderia on July 21, 1985?
A What I know its a baby armalite because its inside the jacket.[18]
The above account of Micaela Suitos was corroborated in substance by the other
eyewitness, Rogelio Fernandez. He also positively identified both accused as the
gunwielders who had indiscriminately fired at the Suitos canteen. The relevant
portions of his testimony are as follows:
Q On July 21, 1985 at around 6:00 oclock in the afternoon or in the evening, where
were you?
A We were in town.
Q You said we who was your companion at that time?
A Dela Pea.
Q What particular place in the Poblacion were you at around 6:00 P.M. on July 21,
1985?
A We were at the side of the market.
xxxxxxxxx
Q When you reached the market place what did you do?
A We parked our motorcycle.
Q Where did you park the motorcycle?

290
 A South of the market.
Q And after parking the motorcycle where did you go with dela Pea?
A Dela Pea went to take coffee.
Q While dela Pea was taking coffee what were you doing?
A I was tying the items we have bought.
Q While tying the items that you bought (or) that you purchased(,) what things have you
observed, if any?
A I have seen two men approaching.
Q You said two men were approaching(,) from what place have they come from?
A They came from the western gate of the market.
Q What else did you observe after seeing these two persons in the western gate of the
market?
A When I saw these two persons(,) I notice that one of them is wearing a long sleeves
jacket as they enter the western gate.
Q Where did they proceed after the two persons enter the western gate?
A They went infront of the canteen.
Q While they were infront of the canteen(,) what were the things that you observed?
A They brought out their guns.
xxxxxxxxx
Q You said that they brought out their firearms(,) what firearms did you see?
A One long firearm and one short.
Q After they brought out their respective firearms(,) what happened next?
A When they brought out their firearms(,) they fired.
Q To whom did they fire?
A In the canteen.
Q After they fired at the carinderia(,) what did you observe?
A I saw Macario dela Pea fell (sic) down.
Q Is this Macario dela Pea the victim in this case?
A Yes, sir.
xxxxxxxxx
COURT:
Q Who was the person who was holding a long firearm, will you go down and identify
him?
A Witness tapped the shoulder of the person who identify (sic) himself as Edwin Nardo.
FISCAL CORPUZ:
Q As to the person who was holding a short firearm(,) will you tap the shoulder?
A Witness tapped the shoulder of the person who identified himself to be
Willie[19] Ylarde.[20]
The fact that Rogelio Fernandez did not give any statement to the police right after the
incident does not cast veritable doubt on his credibility as averred by accused-appellants. We

291
have held that the lapse of a considerable length of time before a witness comes forward to
reveal the identities of the assailants does not taint the credibility of the witness and his
testimony.[21] The initial reluctance of witnesses to volunteer information about a criminal case
and their unwillingness to be involved in criminal investigations due to fear of reprisal are
common occurrences and have been judicially declared to have no significant effect on their
credibility. There is no law which requires that the testimony of a prospective witness should be
reduced into writing in order that his declaration in court at a later date may be believed.[22]
The defense was utterly unable to weaken the reliability of the prosecution witnesses
testimonies. Appellants capitalize on the supposed discrepancy between Micaelas statement
allegedly given to Patrolman Aquinde and her verbal testimony in court, and allege that persons
other than the accused executed the assault. In view of her unwavering testimony in open court,
despite the grilling cross- examination by the defense, and the failure of the defense to establish
any proof that she was motivated by ill will or any other dubious reason, we sustain the
discretion of the trial court to give her testimony full faith and credit. We have previously stated
that (s)worn statements taken ex-parte are generally considered to be inferior to testimony given
in open court.[23]
Indeed, Micaela Suitos must have been in a state of shock at the time of the
investigation. One of her daughters was killed in the carnage, another was wounded, while she
and her husband were seriously injured necessitating their confinement in a hospital. Such
condition of Micaela was confirmed by Defense Witness Aquinde himself:
Q Where did you conduct the first investigation of Claro Suitos and Micaela Suitos?
A At the Sacred Heart Hospital, Urdaneta, Pangasinan.
Q How did you find their conditions(?) (W)ere they coherent in answering the
questions?
A I think they were still under shock during that time.
Q Did they understand your questions when you profounded (sic) to them?
A I do not know if they understand fully.[24]
Furthermore, Aquinde even agreed to burn the alleged unfinished and unsigned statements of the Suitos
spouses. This all the more confirms the fact that the spouses might not have been in their complete senses when
investigated by Aquinde. Human memory may be temporarily paralyzed by an appalling tragedy, especially if it
involves the witness family. Eventually, however, as the witness recovers from the trauma, memory regains its
clarity.[25] This explains the experience of Micaela Suitos.
Having cast away any doubt on the credibility of the prosecution witnesses, we further sustain the trial courts
finding that there was conspiracy between the appellants in the perpetration of their evil acts. Well-entrenched is the
rule that conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime as the
same can be inferred from the conduct of the accused before, during and after the commission of the crime, showing
that they acted in unison with each other, evincing a common purpose or design.[26] In the case at bench, as
emphatically attested to by Witness Rogelio Fernandez, both accused arrived together at the Umingan market
through its western gate and proceeded to the front of the Suitos canteen. Then both drew out their respective
firearms and simultaneously fired indiscriminately at the people in the canteen, killing four persons and wounding
two others. These concerted acts of appellants reveal a consciously adopted plan and clearly demonstrate their joint
design to exterminate.Conspiracy having been established, the act of one is the act of all. [27]
The sudden and unexpected attack upon the victims, without any provocation on their part, qualifies the crime
with treachery.[28] Having been totally unaware of the impending aggression, there was absolutely no opportunity for
the victims to seek cover,[29] resist[30] or retaliate.[31]
However, no proof was adduced as regards the extent and gravity of the injuries sustained by Spouses Micaela
and Claro (Vic) Suitos. It was not proven that they would have died from their injuries had medical attention not
been given shortly after the shooting. Hence, with respect to them, appellants may be held liable only for attempted
murder.[32]

Crimes Committed Not Complex

292
 The trial court ruled that the crime committed was the complex crime of multiple murder with double
frustrated murder, defined and penalized under Article 248 in relation to Article 48 of the Revised Penal
Code.[33] Under Article 48, a complex crime exists when a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other. We have held that where the killing was
not shown to have been committed by a single discharge of firearms, the crime cannot be complex. [34]
In the autopsy reports of Dr. Thelma Busto, which were admitted in court by the defense counsel, [35] it appears
that each of the fatalities sustained a gunshot wound. In the case of Luzviminda Pudol, she sustained a fatal
(g)unshot wound (on the) left side of the face causing deformity of oral cavity; [36] as for Macario dela Pea, also a
fatal gunshot wound on the abdomen, mid area (epigastric region), 2 inches (in) length as the point of exit & pt. of
entrance at left lateral side of lumbar region[37] for Clarence Suitos, likewise a fatal (g)unshot wound on the oral
cavity as pt. of entrance & pt. of exit at nape of neck;[38] while for Anicia Sales, also a fatal (g)unshot wound on the
rt. lateral side, auxiliary region.[39] In addition, Witness Micaela Suitos further attested that she and her husband
Claro (Vic) were also injured by the shooting[40] for which they were brought to a hospital in Urdaneta for treatment.
From the foregoing evidence, it is quite improbable that only a single act produced four fatalities and two
injured persons, which would justify the single conviction meted out by the trial court to each accused.
Moreover, Witness Rogelio Fernandez categorically stated that both accused fired their respective firearms. He
testified thus:
Q While they were infront of the canteen(,) what were the things that you observed?
A They brought out their guns.
xxxxxxxxx
Q You said that they brought out their firearms(,) what firearms did you see?
A One long firearm and one short.
Q After they brought out their respective firearms(,) what happened next?
A When they brought out their firearms(,) they fired.
Q To whom did they fire?
A In the canteen.
His testimony was not rebutted by the defense. The ineludible conclusion is that the killing of the four victims
and wounding of two others resulted from several discharges of firearms. When various victims expire from separate
shots, such acts constitute separate and distinct crimes.[41] Thus, appellants should be held liable for the separate
crimes of four murders and two attempted murders.
We are cognizant of the rule that an accused, as established by evidence, may be convicted only of the crime
charged in the information, which in this case was for a single crime of multiple murder with double frustrated
murder, or of an offense which necessarily includes that which was charged or included therein.[42] We note,
however, that the information charging the appellants further states that the accused, with intent to kill and with the
qualifying circumstance of treachery armed with M16 Armalite Rifles, x x x (did) shoot and fire at in a sudden and
unexpected manner, Claro Suitos, Micaela Suitos, Clarence Suitos, Anicia Sales, Macario Dela Pea and Luzviminda
Pudol x x x. In effect, it imputed to the accused the commission of several felonies. Yet, appellants did not move to
quash the information on the ground of multiplicity of charges. Neither did they object thereto at any other
time. Consequently, such defect is deemed waived, and the Court may validly render judgment against them for as
many crimes as were alleged and proven.[43]

Proper Penalties Imposable

With the absence of any generic aggravating or mitigating circumstances, the penalty imposable for
consummated murder is reclusion perpetua and, for attempted murder, prision mayor in its minimum period. Since
four separate crimes of murder were committed, appellants are hereby sentenced to suffer four terms of reclusion
perpetua. In addition, they shall suffer two indeterminate penalties of six months and one day of prision
correccional minimum to eight (8) years of prision mayor minimum for the two attempted murders.
WHEREFORE, premises considered, the appeal is hereby DENIED. The challenged Decision
is MODIFIED as follows: accused-appellants are hereby found GUILTYbeyond reasonable doubt of the separate
crimes of four (4) murders and two (2) attempted murders, and accordingly, upon each of them are imposed the
following penalties:(a) four penalties of reclusion perpetua for the four murders, and (b) two indeterminate
sentences of six months and one day of prision correccional minimum to eight (8) years of prision mayor minimum
for the two attempted murders, which shall be served successively and in accordance with law. The assailed
Decision, insofar as it orders the accused to indemnify jointly and severally the heirs of the deceased victims and
Micaela Suitos in amounts therein stated, is hereby AFFIRMED.

293
G.R. No. 114046 October 24, 1994

HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,

vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M.
VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR.
SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP Custodial
Group, Camp Crame, Cubao, Quezon City, respondents.

Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.:

Submitted for resolution in the present special civil action are: (1) the basic petition
for certiorari and mandamus with a petition for habeas corpus, to review the resolution issued
by respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and Supplemental
Urgent Motion 3 for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition
to Declare Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-
Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and
Desist Order). 4

On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso,
Bulacan, and one Godofredo Diego were charged in three separate informations with homicide
and two counts of frustrated homicide fot has been the rule that under the first paragraph of
Section 14, Rule 110, the amendment of the information may also be made even if it may result
in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan,
Branch 14, and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93. 5 Both accused
posted their respective cash bail bonds and were subsequently released from detention.

On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to
Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record
and determine once more the proper crimes chargeable against the accused," 6 which was granted
by Judge Villajuan in an order dated November 16, 1993. 7Thereafter, pursuant to Department
Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was
designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-
investigation of the aforesaid criminal cases filed against herein petitioners. 8

By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 9 filed by
respondent prosecutor, the proceedings were again ordered suspended by Judge Villajuan until
after the prosecution's request for change of venue shall have been resolved by the Supreme
Court, and the preliminary investigation being conducted by the former shall have been
terminated. 10 It appears that on December 2, 1993, private complainants, through their counsel,
Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of
Criminal Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims
and their witnesses, and to prevent a miscarriage of justice. 11

On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93
to 3644-M-93, respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases. 12 This motion was granted by Judge
Villajuan also on December 15, 1993 and the cases were considered withdrawn from the docket
of the court. 13 On the same day, Prosecutor Villa-Ignacio filed four new informations against
herein petitioners for murder, two counts of frustrated murder, and violation of Presidential
Decree No. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala
of Judge Victoria Pornillos of Branch 10, Regional

294
Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93
to 4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos
ordered the arrest of herein petitioners. 15 On December 23, 1993, said presiding judge issued an
order setting the arraignment of the accused for December 27, 1993. 16

On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the
absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a
Motion for Reconsideration of his order of December 15, 1993 which granted the motion to
withdraw the original informations. 17

Thereafter, a Motion to Quash the new informations for lack

of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At the court
session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an
order denying the motion to quash and, at the same time, directed that a plea of not guilty be
entered for petitioners when the latter refused to enter their plea. 19

In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an
order was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration
filed by petitioners, ordering the reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-
93, and setting the arraignment of the accused therein for February 8, 1994. 20 On said date,
however, the arraignment was suspended and, in the meanwhile, petitioners filed a petition
for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order
dated January 24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed
in Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed
the petition in its questioned resolution of February 18, 1994, hence this petition.

I. On the Main Petition

The main issue in this case involves a determination of the set

of informations under which herein petitioners should be tried, that is, (a) the first set of
informations for homicide and frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated
murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93.
Several corollary but equally important issues have likewise been addressed to us for resolution,
to wit:

1. Whether the ex parte motion to withdraw the original informations is null and
void on the ground that (a) there was no notice and hearing as required by
Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the appropriate remedy
which should have been adopted by the prosecution was to amend the
informations by charging the proper offenses pursuant to Section 14 of Rule 110;

2. Whether the order granting the withdrawal of the original informations was
immediately final and executory;

3. Whether Judge Pornillos was correct in denying the motion to quash and
thereby acquired jurisdiction over the new informations considering that (a) the
designated public prosecutor allegedly had no authority to file the second set of
informations; and (b) the filing thereof constituted forum shopping; and

4. Whether the arraignment proceeding held on January 24, 1994 in Criminal

Cases Nos. 4004-M-93 to 4007-M-93 was valid.

We shall discuss these issues seriatim.

1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to
withdraw the original informations and to set said motion for hearing constitutes a violation of

295
their right to be informed of the proceedings against them, as well as a violation of Sections 4, 5
and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be
considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo,
the order granting the same is null and void.

Petitioners advance the theory that respondent prosecutor should have amended the original
informations instead of withdrawing the same and filing new ones. They postulate that the
principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an
information is addressed solely to the sound and judicious discretion of the court which has the
option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further
stressed that in case there is a need to change the nature of the offense charged, that is, from
homicide to murder, by adding the qualifying circumstance of treachery, the only legal and
proper remedy is through the filing of the corresponding amended information; and that the
withdrawal of an information is allowed only where the new information involves a different
offense which does not include or is not included in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it
is to his best interest not to oppose the same. Contrarily, if the accused should deem such
conditional or provisional dismissal to be unjust and prejudicial to him, he could object to such
dismissal and insist that the case be heard and decided on the merits. 21 However, considering
that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in
jeopardy, and the ex parte motion to withdraw was filed and granted before they could be
arraigned, there would be no imperative need for notice and hearing thereof. In actuality, the real
grievance of herein accused is not the dismissal of the original three informations but the filing
of four new informations, three of which charge graver offenses and the fourth, an additional
offense. Had these new informations not been filed, there would obviously have been no cause
for the instant petition. Accordingly, their complaint about the supposed procedural lapses
involved in the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-
M-93 does not impress us as a candid presentation of their real position.

Petitioners' contention that the dismissal of the original informations and the consequent filing of
the new ones substantially affected their right to bail is too strained and tenuous an argument.
They would want to ignore the fact that had the original informations been amended so as to
charge the capital offense of murder, they still stood to likewise be deprived of their right to bail
once it was shown that the evidence of guilt is strong. Petitioners could not be better off with
amended informations than with the subsequent ones. It really made no difference considering
that where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter
of discretion under either an amended or a new information.

Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court
of authority to pass on the merits of the motion. It has been held that

The order of the court granting the motion to dismiss despite absence of a notice
of hearing, or proof of service thereof, is merely an irregularity in the
proceedings. It cannot deprive a competent court of jurisdiction over the case. The
court still retains its authority to pass on the merits of the motion. The remedy of
the aggrieved party in such cases is either to have the order set aside or the
irregularity otherwise cured by the court which dismissed the complaint, or to
appeal from the dismissal and not certiorari. 22

Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for
reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of
dismissal, the same was thereby deemed cured. This is especially so in this case since, on his
order, the original informations were reinstated in Branch 14 of the trial court.

The rule is now well settled that once a complaint or information is filed in court any disposition
of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in

296
the sound discretion of the court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial
discretion to determine whether or not a criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor may deem proper thereafter should
be addressed to the court for its consideration and approval. 23 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.

We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et
al.: 24

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.

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 to 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 such an instance, before a re-investigation of the case may be conducted by the public
prosecutor, the permission or consent of the court must be secured. And, if after such re-
investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause
the dismissal of the case, such proposed course of action may be taken but shall likewise be
addressed to the sound discretion of the court. 25

It is not denied that in the present case, the court granted the motion of respondent prosecutor for
the suspension of the proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a
finding that petitioners should have been charged with murder, frustrated murder, and illegal
possession of firearms. This prompted him to file an ex parte motion to withdraw the original
informations for homicide and frustrated homicide. Although the motion did not state the reasons
for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion
granted the same, as a consequence of which a new set of informations was thereafter filed and
raffled to another branch of the court. Petitioners now question the propriety of the procedure
adopted by the prosecution, insisting that an amendment, not a new information, was required
under the circumstances.

It must here be emphasized that respondent prosecutor sought, and was subsequently granted,
permission by the court to dismiss the original informations. It cannot therefore be validly
claimed that the prosecutor exceeded his authority in withdrawing those informations because
the same bore the imprimatur of the court. The issue is thus focused on whether or not under the
given situation the court acted correctly in dismissing the original informations rather than
ordering the amendment thereof.

297
It has been observed that while the Rules of Court gives the accused the right to move for the
quashal of the information, it is silent with respect to the right of the prosecutor to ask for a
dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules on Criminal Procedure will show
that there are only two provisions concerning the dismissal of an information other than on
motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it
may be contended that these rules speak of a dismissal by the court when there is a mistake in
charging the proper offense, but make no mention of a dismissal made upon application of the
prosecution. That is not necessarily so.

It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing
as it does that:

Sec. 11. When mistake has been made in charging the proper offense. When it
becomes manifest at any time before judgment, that a mistake has been made in
charging the proper offense, and the accused cannot be convicted of the offense
charged, or of any other offense necessarily included therein, the accused shall
not be discharged, if there appears to be good cause to detain him. In such case,
the court shall commit the accused to answer for the proper offense and dismiss
the original case upon the filing of the proper information. (Emphasis supplied.)

Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being
presented, hence the trial court is now in a better position to conclude that manifestly the accused
cannot be convicted of the offense charged or of one that it necessarily includes. It would
primarily be the function of the court to motu proprio order the dismissal of the case and direct
the filing of the appropriate information. We do not discount the possibility of either the
prosecution or the defense initiating such dismissal and substitution at that stage, although, from
a realistic point of view, that would be a rare situation. This provision, therefore, is more directly
and principally directed to the trial court to invest it with the requisite authority to direct by itself
the dismissal and refiling of the informations therein contemplated.

Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses.
Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites
for the substitution of a defective information by the correct one. Although, just like Section 11
of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment,"
unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in
charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer
time span, inclusive of the period from the filing of the information up to and before trial. Since
no evidence has been presented at that stage, the error would appear or be discoverable from a
review of the records of the preliminary investigation. Of course, that fact may be perceived by
the trial judge himself but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or evident, nor is it required that
such nuances as offenses includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute remedial measures for the
dismissal of the original information and the refiling of the correct one, otherwise he would be
recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically recognized
under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of
a nolle prosequi by the Government is a permissible right, although requiring in all cases the
approval of the court in the exercise of its judicial discretion. 27As a matter of fact, the
prosecuting attorney is given the broad power, sole authority and discretion to enter a nolle
prosequiprovided he does not act arbitrarily 28 and subject to the discretion of the court.

In several cases, we have also impliedly recognized the propriety of such a procedure
particularly in those instances where the prosecution is allowed to dismiss or withdraw an
information on the ground of insufficiency of evidence. We have even gone further by imposing
upon the fiscal, as he was then called, the duty to move for the dismissal of the information if he

298
is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the
accused. 29

In this case now before us, what is involved is a dismissal effected at the instance of the
prosecutor by reason of a mistake in charging the proper offense, in order that new informations
can be filed. The problem that may be posited, and should now be resolved, is when the fiscal
may be allowed to move to dismiss an information and when he should merely move to amend it.

Section 14 of Rule 110, which is invoked by petitioners, reads as follows:

Sec. 14. Amendment. The information or complaint may be amended, in

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

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be placed
thereby in double jeopardy, and may also require the witnesses to give bail for
their appearance at the trial.

The first paragraph provides the rule for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint. Under the second
paragraph, the court can order the filing of another information to charge the proper offense,
provided the accused would not be placed thereby in double jeopardy and that could only be true
if the offense proved does not necessarily include or is not necessarily included in the offense
charged in the original information.

It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the
information may also be made even if it may result in altering the nature of the charge so long as
it can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs.
Salcedo, 30 the accused therein were originally charged with homicide and were released on bail.
However, the then provincial fiscal, after a review of the affidavits of the witnesses for the
prosecution, discovered that the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage of superior strength, and employing means to
weaken the defense of the victim. Consequently, an amended information for murder was filed
against the accused who were ordered re-arrested without the amount of bail being fixed, the new
charge being a capital offense.

The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the
1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus:

Here these rules properly apply, since it is undisputed that the herein accused
were not yet arraigned before the competent court when the complaint for
homicide was amended so as to charge the crime of murder. Upon the authority of
said rules, the amendment could therefore be made even as to substance in order
that the proper charge may be made. The claim that such amendment can only
refer to matters of specification affecting the elements constituting the crime is
not correct, for there is nothing in the rule to show that the nature of the
amendment should only be limited to matters of specification. The change may
also be made even if it may result in altering the nature of the charge so long as it
can be done without prejudice to the rights of the defendant.

Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an
amendment, an information for homicide may also be dismissed before the accused pleads, to

299
give way to the filing of a new information for murder. This may be deduced from the
pronouncement of the Court in the aforecited case of Dimalibot, to wit:

This clearly appears from the second part of Section 13 of Rule 106 which says
that, if it appears before judgment that a mistake has been made in charging the
proper offense, the court may dismiss the original information and order the filing
of a new one provided the defendant may not be placed in double jeopardy. If a
new information may be ordered at any time before judgment no reason is seen
why the court may not order the amendment of the information if its purpose is to
make it conformable to the true nature of the crime committed. . . .

In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 31 however, Section 14 of Rule 110
was clarified to mean as follows:

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

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

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

substitution necessarily involves a substantial change from the original charge;

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

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

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

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

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

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

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

In any event, we are inclined to uphold the propriety of the withdrawal of the original
informations, there having been no grave abuse of discretion on the part of the court in granting
the motion and, more importantly, in consideration of the fact that the motion to withdraw was
filed and granted before herein petitioners were arraigned, hence before they were placed in
jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim
double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution,
for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that
although the offenses charged under the three new informations necessarily include those
charged under the original informations, the substitution of informations was not a fatal error. A

300
contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial
justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right
to speedy trial was never violated since the new informations were filed immediately after the
motion to withdraw the original informations was granted.

2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new
informations for murder, frustrated murder and illegal possession of firearms, is grounded on
three points of disagreement.

Firstly, it is argued that the new informations were prematurely filed considering that the order
granting the withdrawal of the original informations had not yet become final and executory and
that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge
Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over
the same offense involving the same incident and the same accused.

Secondly, petitioners contend that the dismissal of the original informations and the filing of new
ones which were raffled to another branch of the court constituted forum shopping, and was
tainted with malice considering the indecent haste with which the motion to withdraw the
informations was filed, the order granting the same was issued, and the new informations were
filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first
acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case
taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover.

Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First
Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was
arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue,
that in the absence of such authority, the informations should be considered null and void by
reason of which Judge Pornillos did not acquire jurisdiction over the same.

On the other hand, respondents question the propriety of petitioners' filing of a petition
for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower
court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to
trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the
motion to quash.

It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial
and before he is called on to plead is not equivalent
to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a
final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in
a civil suit and leaves the matter in the same condition in which it was before the commencement
of the prosecution. 35

A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is

immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is always based on the
merits, that is, the defendant is acquitted because the evidence does not show that defendant's
guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that
the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a
court of competent jurisdiction, or the evidence does not show that the offense was committed
within the territorial jurisdiction of the court, or the complaint or information is not valid or
sufficient in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have
the effect of acquittal.

All these go to show, therefore, that the dismissal of Criminal Cases

Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners.
Consequently, the same did not immediately become final, hence petitioners could still file a
motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper
basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein petitioners

301
were not prejudiced by the filing of the new informations even though the order of dismissal in
the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the
subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only
power to deny the motion would be based on failure of the district attorney to judiciously
exercise his discretion. 39 In most cases, the motion will be readily granted and should not be
refused unless the court has some knowledge that it is based on an improper reason or a corrupt
motive. But such a motion to dismiss will not also be approved unless the court is satisfied that
the administration of justice requires that the prosecution be ended, or if there appears to be a
clear violation of the law. 40 Whatever may be the reason therefor, a denial of the motion to
withdraw should not be construed as a denigration of the authority of the special prosecutor to
control and direct the prosecution of the case, 41 since the disposition of the case already rests in
the sound discretion of the court.

This brings us to the question as to whether or not an order of dismissal may be subsequently set
aside and the information reinstated. Again, in American jurisprudence, the authorities differ
somewhat as to whether a nolle prosequi may be set aside and the cause reinstated. 42 Some cases
hold that the nolle prosequi may be recalled and that the accused may be tried on the same
information, 43 but before it can be retraced, set aside, cancelled, or struck off, the permission or
assent of the court must be had and obtained, and such cancellation or retraction must be duly
entered. According to other authorities, however, the entry of an unconditional nolle prosequi,
not on the ground that the information is insufficient on its face, is an end to the prosecution of
that information, and such nolle prosequi cannot afterward be vacated and further proceedings
had in that case. 44

Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as
to reinstate proceedings on the information, or unless it was entered by mistake. 45 In our
jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of
court. In one case, it was held that in the absence of any statutory provision to the contrary, the
court may, in the interest of justice, dismiss a criminal case provisionally, that is, without
prejudice to reinstating it before the order becomes final or to the subsequent filing of a new
information for the offense. 46

The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it
to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and
it does not apply where the jurisdiction of the first court has come to an end in any legal way,
such as by nolle prosequi. 47 The rule on exclusions is intended to prevent confusion and
conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but
no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and
when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or
dismissal of the case, there can be no legal or logical reason for preventing the other court from
proceeding. 48 With much more reason will this rule apply where only branches of the same
court, and not different courts, are involved in the jurisdictional conflict.

There was no forum shopping in the lower court with respect to the case involved. While the
procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and,
accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners
failed to prove otherwise, that the assignment by raffle of the new informations to another branch
of the same court was intended to prejudice herein petitioners, or to place them under less
favorable circumstances, or to find a court which would act favorably on the prosecution's case.

The authority of the special prosecutor appointed by the Secretary of Justice to sign and file
informations has long been recognized in this jurisdiction and it has been held that such
information cannot be quashed on that account. There is nothing so sacrosanct in the signing of
complaints, holding of investigations, and conducting prosecutions that only an officer appointed
by the President or one expressly empowered by law be permitted to assume these

302
functions. 49 And any irregularity in the appointment does not necessarily invalidate the same if
he may be considered a de facto officer. 50

Of course, where the person who signed the information was disqualified from appointment to
such position, the information is invalid and the court does not acquire jurisdiction to try the
accused thereon. 51 Such is not, however, the situation obtaining in the case at bar. It will be
noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-
investigation
and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners
failed to show any irregularity in the issuance of said directive.

At any rate, the power of supervision and control vested in the Secretary of Justice under
Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is,
Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then
limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et al., 52 we said:

The Court notes, however; that Department of Justice Order No. 85 was issued
pursuant to, among others, P.D. No. 1275 issued on 11 April 1978 which
provides:

Sec. 1. Creation of the National Prosecution Service; Supervision

and Control of the Secretary of Justice. There is hereby created
and established a National Prosecution Service under the
supervision and control of the Secretary of Justice, to be composed
of the Prosecution Staff in the Office of the Secretary of Justice
and such number of Regional State Prosecution Offices, and
Provincial and City Fiscal's Offices as are hereinafter provided,
which shall be primarily responsible for the investigation and
prosecution of all cases involving violations of penal laws.

The power of supervision and control vested in the Secretary of

Justice includes the authority to act directly on any matter within
the jurisdiction of the Prosecution Staff, the Regional State
Prosecution Office or the Office of the Provincial or City Fiscal
and to review, modify or revoke any decision or action of the Chief
of said staff or office.

The power of supervision and control vested in the Secretary of Justice under P.D.
No. 1275 had thus been broadened beyond the confines of the old law, i.e.,
Section 1679 of the Revised Administrative Code of 1917, where the power of the
Secretary of Justice to designate acting fiscals or prosecutors to handle a
particular case was limited to instances "when a provincial fiscal shall be
disqualified by personal interest to act in a particular case or when for any reason
he shall be unable, or shall fail to discharge any of the duties of his position."
Indeed, the limitation upon which petitioners rely no longer subsisted under P.D.
No. 1275.

Having been duly designated in accordance with law, the panel of prosecutors had
complete control of the investigation and prosecution of the case. . . .

3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge
Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing
them copies of the information with the list of witnesses, after merely reading the informations
against them and asking whether they understood the same, which were allegedly in palpable
violation of Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of
the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was

303
merely read in open court, and to take the necessary steps to question the same by way of a motion for
reconsideration or an appeal.

In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he
is guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial
shall proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not
guilty shall be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court
must enter a plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually
calls for a literal application thereof. Any explanation or defense which petitioners would want to invoke can be
properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their
arraignment on January 24, 1994 is deemed to have been cured when they were again arraigned on February 18,
1994 with the assistance of counsel de oficio, and the information was read to them in the vernacular.

In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-
M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners
may be prosecuted thereunder.

II. On the Petition for Habeas corpus

This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest
had no jurisdiction over the case, hence their detention should be deemed illegal.

We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations.
Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent
detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of
whether the petition for habeas corpus was properly filed together with their present petition
for certiorari and mandamus.

The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the
supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but
not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of review. 54 However, habeas corpus does not lie where the petitioner has
the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or
appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction
over the person and the subject matter. 55

Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the
functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued
and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in
advance of trial to determine jurisdictional questions that may arise. 56 It has to be an exceptional case for the writ
of habeas corpus to be available to an accused before trial. 57 In the absence of special circumstances requiring
immediate action, a court will not grant the writ and discharge the prisoner in advance of a determination of his case
in court. 58 In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional
circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied.

In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its
denial. In the case of Enrile vs. Salazar, etc., et al., 59 we held that:

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's
right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or
deny bail rested with said respondent. The correct course was for petitioner to invoke that
jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of
the weakness of the evidence against him. Only after that remedy was denied by the trial court
should the review jurisdiction of this Court have been invoked, and even then, not without first
applying to the Court of Appeals if appropriate relief was also available there.

III. On the Motion to Cite for Contempt

The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its
resolution in Administrative Matter No. 94-1-13-RTC which is a petition for change of venue filed by the
Vinculados, requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing
the criminal cases involving herein petitioners which were pending before them. 60

Subsequently, another resolution was issued in said cases, dated

March 1, 1994, with the following directive:

304
 ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of
information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos,
Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor
Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive
Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches
and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues
raised in CA-G.R. SP No. 33261 have been resolved with finality. 61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487
were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon
City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-
Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find
no merit in the motion to cite them for contempt.

The records reveal that there was a manifestation dated May 31, 1994 62 filed by the Solicitor General wherein the
latter manifested his conformity to the agreement made between the prosecution and the defense before Judge
Salazar, the pertinent part of which agreement is as follows:

1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis
Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that
the trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have
waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b)
that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court
may render in the case before it.

Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the
same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the
resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are
clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the
imagination can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City.

For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the
proceedings before the present trial court considering that the main petition hinges only on a determination of which
set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial.
Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same
and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings
before the court below.

As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them
to subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural
technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated
murder and illegal possession of firearms as having amended and superseded the original three informations for
homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected
thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn
from the Quezon City trial court's docket.

WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with
the petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for
contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for
homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of
Quezon City.

SO ORDERED.

305
 [G.R. No. 150610. March 25, 2004]

FEDERICO A. POBLETE, BIENVENIDO C. POBRE, JUANITO GALANG, RICARDO

FLORES, SALVADOR OLAES, LEO V. PADILLA AND PEDRO
PATERNO, petitioner, vs. HONORABLE JUSTICES EDILBERTO G.
SANDOVAL, GODOFREDO L. LEGASPI and RAOUL V. VICTORINO, in their
capacity as Associate Justices of the Sandiganbayan, Second Division, HEDLIZA C.
ANTHONY, ROSALINDA M. ESPIRITU, ANDREA D. VIASON, JOSEPHINE N.
RANCE, and MARITES C. MIRAFLOR, respondents.

DECISION
CARPIO MORALES, J.:

Assailed via petition for certiorari are the Sandiganbayan October 10, 2001
Resolution[1] denying petitioners Motion to Quash the first amended information filed against
them, and November 8, 2001 Resolution[2] granting the prosecutions Motion to Admit the second
amended information.
The antecedents of the case are as follows:
On September 27, 1999, the officers of Samahan ng Lahing Mandaragat ng Pulborista, Inc.,
a non-stock, non-profit, non-government organization based in Barangay Pulborista, Binakayan,
Kawit, Cavite, filed a complaint[3] before the Office of the Ombudsman against the following
municipal officials of Kawit for 1995 to 2001: Mayor Federico Poblete, Vice-Mayor Rodrigo
Caimol, and Sanggunuang Bayan (SB) Members Bienvenido C. Pobre, Juanito Galang, Ricardo
Flores, Pedro Paterno, Salvador Olaes, Cherry Rosario Nolasco, Doe Padilla (who was later
identified as Leo Padilla), and Peter Doe (who was later identified as Hernan Jamir).
The complaint alleged that the officials caused the registration of foreshore land located in
Barangay Binakayan, Kawit in the name of the Municipality of Kawit and subsequently sold the
same to a corporation, FJI Property Developers, Inc., notwithstanding that under Commonwealth
Act No. 141, specifically, Title III, Chapter [8], Section 59[4] in relation to Section 61,[5] the land
is inalienable and cannot be disposed by any mode or transfer, except by lease.
The complaint further averred that the sale of the land caused undue prejudice and injury to
poor people, especially the indigent families who claimed it as communal fishing grounds since
time immemorial, and gave private parties unwarranted benefits, the contract or transaction being
manifestly and grossly disadvantageous to the government and the public.
The respondents to the complaint jointly filed a Counter-affidavit[6] and a
Memorandum[7] contending that the land was legally and validly reclaimed; that the certificate of
title was obtained in accordance with existing laws and regulations; that the sale and transfer
were approved by the Commission on Audit; that there is no communal fishing ground in Kawit;
and that Commonwealth Act No 141 is inapplicable to the case.
In a related move, the Senate Committees on Accountability of Public Officers and
Investigations and on Environment and Natural Resources conducted on February 7 and 14, 2000
an inquiry in aid of legislation following a September 27, 1999 privilege speech of Senator
Ramon B. Revilla entitled Cavite Land Scam bearing on the questioned sale of the land. [8]
The Senate subsequently approved the above-said Committees Report No. 227[9] disclosing
that the questioned lot is foreshore, and that bad faith attended its registration and titling with the
use of falsified documents, and thus recommending the prosecution of the municipal officials.
By Order[10] of March 30, 2000, the Ombudsman directed the filing of an information
against the mayor and members of the Sangguniang Bayan of Kawit for violation of Section 3(e)
of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act).

306
 The necessary information[11] was thus filed against said officials including herein
petitioners, which was raffled to herein public respondent, 2nd Division, Sandiganbayan.
All the accused filed a Motion for Reinvestigation[12] which the Sandiganbayan denied by
Order[13] of April 28, 2000 on the ground that it had not yet acquired jurisdiction over their
persons as they had not yet posted bonds nor surrendered.
Except for Hernan Jamir, the rest of the accused filed anew a Motion for
Reinvestigation,[14] averring that they voluntarily surrendered on May 2, 2000 before the
Regional Trial Court of Imus, Cavite and posted cash bonds of twenty thousand each[15].
The Ombudsman Prosecutor, by Comment/Opposition[16] to the Motion for Reinvestigation,
contended that the motion was filed out of time and the grounds relied thereon are evidentiary in
nature which could be resolved during trial. To this Comment, the accused filed their Reply.[17]
In an Ex-parte Motion to Admit Amended Information[18] to which the accused filed their
Comment[19], the Ombudsman Prosecutor sought to amend the information by inserting the
number of the lot under controversy, Lot 4431, and the amount of P123,123,123.00 representing
the price paid by FJI Property Developers Inc. for it.
By Resolution[20] of October 17, 2000, the Sandiganbayan admitted the Amended
Information on the ground that the Motion to Admit it was presented before arraignment and the
amendments were mere matters of form. In the same resolution, the Sandiganbayan denied the
Motion for Reinvestigation on the ground that it was filed out of time, and the matters raised
therein could hardly be considered as newly discovered evidence and would be better ventilated
during the trial of the case as defense evidence.
All the accused, except Hernan Jamir and Rosario Cherry Nolasco, filed an Omnibus
Motion[21] (for reconsideration of the Resolution dated October 17, 2000 and/or to Quash the
Amended Information), to which the prosecution filed its Comment and
Opposition.[22] Thereafter, the accused filed their Reply[23] to the Prosecutions Comment and
Opposition.
By Resolution of July 6, 2001, the Sandiganbayan denied the accuseds Omnibus Motion.[24]
In the meantime or on July 12, 2001, the accused-herein petitioner Bienvenido C. Pobre was
arraigned and pleaded not guilty.[25]
On July 23, 2001, the accused filed a Motion to Quash[26] the Amended Information on the
grounds that the facts charged do not constitute an offense, and the information contained
averments which, if true, would constitute a legal excuse or justification.
As the Ombudsman approved on August 31, 2001 a Memorandum[27] recommending further
amendments to the information, the prosecution filed on September 14, 2001 a Motion to Admit
Amended Information[28] (second Amended Information).
For lack of merit, the Sandiganbayan, by Resolution[29] of October 10, 2001, denied the
Motion to Quash the first amended information.
By a subsequent Resolution[30] issued on November 8, 2001, the Sandiganbayan granted the
Motion to Admit the second Amended Information.
Hence, the present petition for certiorari.
In determining whether the Sandiganbayan committed grave abuse of discretion in issuing
the Resolution of October 10, 2001, it is necessary to re-examine the grounds invoked by
petitioners in their Motion to Quash the first Amended Information.
Petitioners Motion to Quash is anchored on Sections 3(a) and 3(h) of Rule 117 of the Rules
of Court which provides:

Rule 117, Section 3. Grounds. - The accused may move to quash the complaint or information
on any of the following grounds:

307
 (a) That the facts charged do not constitute an offense;

xxx

(h) That it contains averments which, if true, would constitute a legal excuse or
justification;

The test for the correctness of the ground under Section 3(a) of Rule 117 is the sufficiency
of the averments in the information, that is, whether the facts alleged, if hypothetically admitted,
would establish the essential elements of the offense as defined by law[31] without considering
matters aliunde.
The information sought to be quashed is hereinbelow quoted verbatim:

The undersigned Ombudsman Prosector, Office of the Special Prosecutor, hereby accuses
Federico Poblete, Rodrigo Caimol, Bienvenido Pobre, Juanito Galang, Ricardo Flores, Pedro
Paterno, Salvador Olaes, Rosario Nolasco, Leo Padilla and Hernan Jamir, of Violation of Sec. 3
(e) of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as
follows:

That on or about 28 January 1995 to 28 November 1997 or prior or subsequent thereto, in the
Municipality of Kawit, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, FEDERICO POBLETE, then Municipal Mayor, in
conspiracy with then Vice Mayor, RODRIGO CAIMOL and SB Members BIENVENIDO
POBRE, JUANITO GALANG, RICARDO FLORES, PEDRO PATERNO, SALVADOR
OLAES, ROSARIO CHERRY NOLASCO, LEO PADILLA and HERNAN JAMIR, taking
advantage of their official positions, with evident bad faith, and manifest partiality to FJI
Property Developers, Inc., did then and there willfully, unlawfully and criminally give
unwarranted benefits to FJI Property Developers, Inc. and cause undue injury to the local
fishermen and the government sold a foreshore land, Lot 4431 through the passage of SB
Resolution No. 3-97, Series of 1997 authorizing the sale of the land situated in Binakayan,
Kawit, Cavite in favor of FJI Property Developers, Inc. in the amount of ONE HUNDRED
TWENTY THREE MILLION ONE HUNDRED TWENTY THREE THOUSAND ONE
HUNDRED TWENTY THREE PESOS (P123,123,123.00) with the Municipality of Kawit,
Cavite, represented by then mayor FEDERICO POBLETE as vendor, despite full knowledge,
and in complete disregard, of the legal prohibition under Sections 159 and 61, Commonwealth
Act No. 141, against the disposition through sale of foreshore, and notwithstanding the warning
of the Department of Environment and Natural Resources (DENR) on the prohibition against the
lease of foreshore lands along Manila Bay towards Cavite and Bataan.[32] (Underscoring
supplied).

The information thus charges petitioners with violation of Section 3 (e) of R.A. 3019, to wit:

Sec. 3. Corrupt practices by public officers. In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practice of any public
officer and are hereby declared to be unlawful:

xxx

(e) causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices of government
corporations charged with the grant of licenses or permits or other concessions.

Under settled jurisprudence, the following elements need to be proven in order to constitute
a violation of Section 3(e) of Republic Act 3019, viz:

308
 1. The accused is a public officer discharging administrative or official functions or
private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official
duty in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross
inexcusable negligence; and
4. His action caused undue injury to the government or any private party, or gave any
party unwarranted benefit, advantage or reference to such parties.[33]
Contrary to petitioners position, the information need not state the manner by which the
injury to the local fisherfolk or the government came about or the extent by which they exhibited
partiality, bad faith or negligence in the enactment of SB Resolution 3-97[34] authorizing the sale
of foreshore land, it being sufficient that the information alleges that petitioners acted with
manifest partiality, evident bad faith, and took advantage of their public positions by passing SB
Resolution No. 3-97 despite the legal prohibition provided under the law, thereby causing undue
injury to the local fishermen and the government.
Anent the second ground of the Motion to Quash, it is erroneous for petitioners to argue that
the payment of the amount of P123,123,123.00 by FJI Property Developers, Inc. for the lot in
question, which enriched the coffers of the government,[35] was a legal excuse and justification to
free them from criminal liability. For if the elements of the offense violation of Section 3(e) of
Republic Act 3019 are proven, the proffered excuse is immaterial.
The grounds bases of petitioners in the Motion to Quash the first Amended Information
being unwarranted, the Sandiganbayan did not commit grave abuse of discretion in issuing the
Resolution of October 10, 2001 denying the same.
Contending that the Sandiganbayan also committed grave abuse of discretion in issuing its
Resolution of November 8, 2001, petitioners argue that it failed to consider Section 14, Rule 110
of the Rules of Court which provides:

Sec. 14. Amendment or substitution. A complaint or information may be amended, in form or in

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

their co-accused co-petitioner Bienvenido C. Pobre having already been arraigned[36] under the
first Amended Information and cannot thus be made to re-plead to the second Amended
Information without his constitutional right to double jeopardy being violated. Petitioners
moreover argue that they and their co-accused having been charged of acting in concert, they
cannot be convicted on the basis of different informations.
The crux of the issue therefore hinges on whether the amendments in the second Amended
Information are mere matters of form which do not prejudice the rights of the accused.
The second Amended Information is hereinbelow quoted verbatim:

That on or about 28 January 1995 to 28 November 1997 or sometime prior or subsequent thereto,
in the Municipality of Kawit, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused public officials, Federico Poblete, then Municipal
Mayor, Rodrigo Caimol, then Vice Mayor and Bienvenido Pobre, Juanito Galang, Ricardo
Flores, Pedro Paterno, Salvador Olaes, Rosario Cherry Nolasco, Leo Padilla and Hernan Jamir,
then Sangguniang Bayan Members, all of the Municipality of Kawit, Cavite, while in the
performance of their official functions, committing the offense in relation to their office,
conspiring and confederating with each other, did then and there willfully, unlawfully and
criminally, with evident bad faith and manifest partiality, cause undue injury to the Government
and local fishermen of the Municipality of Kawit, Cavite in the following manner: the said
accused public officials maliciously sold a foreshore land described as Lot 4431 through the

309
passage of Sangguniang Bayan Resolution No. 3-97, Series of 1997 authorizing the sale said
land situated in Binakayan, Kawit, Cavite in favor of FJI Property Developers, Inc. in the amount
of ONE HUNDRED TWENTY THREE MILLION ONE HUNDRED TWENTY THREE
THOUSAND ONE HUNDRED TWENTY THREE PESOS (P123,123,123.00) Philippine
Currency, despite their full knowledge, and in complete disregard, of the legal prohibition under
Sections 159 in relation to Section 61, Commonwealth Act No. 141, prohibiting the disposition
through sale of foreshore land thereby giving unwarranted benefits to FJI Property Developers,
Inc. to the damage and injury to the Government in the aforementioned amount. (Underscoring
in the original)

While petitioners cite People v. Casey[37] which laid down the test in determining whether an
amendment is a matter of form or substance, to wit:

The test as to whether a defendant is prejudiced by an amendment has been said to be whether a
defense under the information as it originally stood would be available after the amendment is
made, and whether any evidence defendant might have would be equally applicable to the
information in the new form as in the other. A look into Our jurisprudence on the matter shows
that an amendment to an information introduced after the accused has pleaded not guilty thereto,
which does not change the nature of the crime alleged therein, does not expose the accused to a
charge which could call for a higher penalty, does not affect the essence of the offense or cause
surprise or deprive the accused of an opportunity to meet the new averment had each been held
to be one of form and not of substance not prejudicial to the accused and, therefore, not
prohibited by Section 13, Rule 110 (now Section 14) of the Revised Rules of Court,

they fail to show how or why the amendments may be considered as matters of substance which
will prejudice their rights as accused.
An objective appraisal, however, of the second Amended Information shows that the
amendments are merely formal for they do not touch upon the recital of facts constituting the
offense charged nor on the determination of the jurisdiction of the court. Instead, the
amendments merely involve deletions, transpositions and re-phrasings, thereby raising the same
issue and the same operative facts already found in the first Amended Information.
As laid down by this Court, an amendment is only in form when it merely adds
specifications to eliminate vagueness in the information and not to introduce new and material
facts[38], and merely states with additional precision something which is already contained in the
original information and which, therefore, adds nothing essential for conviction for the crime
charged.[39]
The second Amended Information, while adding the word public officers, does not introduce
a new and material fact as the accused in the first Amended Information were referred to as
either the Mayor, Vice-Mayor or Members of the Sangguniang Bayan.
Likewise, in the second Amended Information, the phrase while in the performance of their
official functions, committing the offense in relation to their office, conspiring and confederating
with each other is but a clearer restatement of the phrase in conspiracy and taking advantage of
their official positions found in the first Amended Information.
Section 14, Rule 110 moreover provides that in allowing formal amendments in cases where
the accused have already pleaded, it is necessary that the amendments do not prejudice the rights
of the accused.
The test on whether the rights of an accused are prejudiced by the amendment of a
compliant or information is whether a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made, and when any
evidence the accused might have would be inapplicable to the complaint or information.[40]
The mere re-arrangement of the words and phrases in the second Amended Information
which are also alleged in the first Amended Information does not change the basic theory of the
prosecution, thus creating no material change or modification in the defenses of the accused.

310
 Contrary to petitioners position, it having been established that the questioned amendments
are merely formal, there is no longer any need for accused Bienvenido Pobre to be re-arraigned
on the second Amended Information.[41]
Petitioners additionally argue that the Sandiganbayan failed to consider the irregularity in
the preliminary investigation which they have been harping upon, the particulars of which were
stated in their Motion for Reinvestigation that Lot No, 4431 covered by Original Certificate of
Title No. 0-3115 was no longer foreshore as it had already evolved into a landmass and was ripe
for titling, and that a portion of OCT No. 0-3115 was alienated in accordance with law.
Clearly, petitioners allegations are factual and evidentiary in nature which may best be
considered as matters of defense to be ventilated in a full-blown trial. Lack of probable cause
during the preliminary investigation is not one of the grounds for a motion to quash. A motion to
quash should be based on a defect in the information, which is evident on its face. The guilt or
innocence of the accused, and their degree of participation, which should be appreciated, are
properly the subject of trial on the merits rather than on a motion to quash.[42]
As for the propriety or impropriety of the filing of the information by the Ombudsman, this
Court may not pass. Neither may it independently make a factual finding of whether there was
indeed irregularity in the conduct of the preliminary investigation. For petitioners are not, in the
present petition, assailing the denial by the Sandiganbayan of their Motion for Reinvestigation.
Petitioners having failed to substantiate the grounds they invoked in their Motion to Quash
the first Amended Information, and it having been established that the amendments introduced in
the second Amended Information are mere matters of form, the Sandiganbayan did not commit
grave abuse of discretion in issuing its Resolutions of October 10, 2001 and November 8, 2001.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.

311
 [G.R. No. 121211. April 30, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. RONETO DEGAMO alias Roy, appellant.

DECISION
PER CURIAM:

Before us for automatic review is a decision rendered by the Regional Trial Court (Branch
12) of Ormoc City imposing the supreme penalty of death on appellant Roneto Degamo alias
Roy for the crime of rape with the use of a deadly weapon and the aggravating circumstances of
dwelling and nighttime.
On October 4, 1994, a complaint was filed before the trial court charging appellant with the
crime of rape to which, upon arraignment, pleaded not guilty.
On January 17, 1995, before the start of the trial proper, the court a quo allowed the
complaint to be amended to include the allegation that by reason of the incident of rape, the
victim has become insane[1], to wit:
The undersigned Prosecutor accuses RONETO DEGAMO alias Roy of the crime of
RAPE committed as follows:

That on or about the 1st day of October 1994 at around 1:00 oclock in the early morning, in
Brgy. Punta, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named
accused RONETO DEGAMO alias Roy, being then armed with a bladed weapon, by means of
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the complainant herein ELLEN VERTUDAZO, against her will and in her own
house.

All contrary to law and with the aggravating circumstances that the said offense was committed
in the dwelling of the offended party, the latter not having given provocation for the offense; and
that by reason of the incident of rape, the victim become insane.

In violation of Article 335, Revised Penal Code.

Upon re-arraignment, appellant pleaded not guilty to the charge.[2]

Trial ensued.
As borne out by its evidence, the following is the version of the prosecution:
Complainant Ellen Vertudazo and her children were living in a rented apartment at
Barangay Punta, Ormoc City. She and her family just moved into the neighborhood on July 15,
1994.[3] She was not personally acquainted with appellant although she knew him to be one of
their neighbors. On August 2, 1994, her brother-in-law, Venancio, came from the province for a
visit and stayed in her house. It was during this time that appellant became acquainted with
Venancio. On September 30, 1994, appellant invited Venancio for a night out. Venancio left
complainants house immediately after supper, telling her that he would return to the house. Later
that night, or on October 1, 1994, at around 1:00 in the morning, complainant heard someone
calling her name. She unwittingly opened the door thinking that Venancio had
returned.[4] Thereupon, appellant forced his way inside the house and poked a knife at
complainants neck. She tried to move away from appellant but he grabbed her and told her that
he would kill her if she will not accede to his demands. Appellant then told her to put off the
light, strip off her clothes and not make any noise. Overwhelmed with fear, complainant meekly
followed the orders of appellant who proceeded to kiss her lips, breasts and all parts of her body.
He laid her on the concrete floor and succeeded in having carnal knowledge of her. Appellant
was holding the knife while having sexual intercourse with complainant. He warned her not to

312
tell anyone about the incident, then he left. Complainant went upstairs and just cried. In the
morning of the same day, complainant reported the incident to the Barangay Captain and to the
police. She submitted herself for medical examination at the health. center on October 3, 1994.
Upon learning of the incident, her husband, who was working in Saudi Arabia, immediately
came home.[5]
Due to her traumatic experience at the hands of appellant, complainant underwent
psychiatric treatment in Tacloban City.[6] She was first brought to Dr. Gemelina Cerro-Go[7] for
treatment on November 8, 1994. Dr. Go found her case of psychosis already acute and chronic.
Complainant was talking to herself and each time Dr. Go would ask her a question, she
repeatedly said, Gi padlock ang akong hunahuna. Dr. Go also observed that complainant talked
irrelevantly, had lost association and had severe destructive inclinations. She did not listen to
anybody and just kept staring outside the window. Dr. Go concluded that complainant was
suffering from psychosis, a form of mental disorder, induced by an overwhelming trauma
secondary to rape. Complainant visited Dr. Go again on December 15, 1994 and on January 3,
1995. Dr. Go prescribed anti-psychotic drugs to complainant who, after three weeks of treatment,
showed signs of improvement. Complainant could already sleep although she has not yet
regained her normal or regular sleeping pattern. Her delusions and hallucinations were not as
serious anymore, but she was still out of contact. She could not function normally as a wife and
as a mother. Since complainant still suffered from psychosis, Dr. Go administered to her a dose
of low acting tranquilizer injections, anti-depressants and short acting oral tablets.[8]
Dr. Go clarified that psychosis is usually the technical term for insanity.[9] She declared that
complainant has not fully recovered from psychosis and that without continuous treatment,
complainant would regress and she would completely lose all aspects of functioning.[10]
Appellants version is based on his lone testimony. He admits that he and complainant were
neighbors but claims that they were lovers. He further testified that he met complainant for the
first time during the last week of August 1994 at a neighborhood store. Complainant readily
agreed when he asked her if it would be possible for them to get to know each other better. Later,
at around 8:00 oclock in the evening, he and complainant had a conversation in front of the gate
of her apartment. He learned from her that her husband was working abroad. When he told the
complainant that he wanted to court her, complainant said, Its up to you. Encouraged by
complainants reply, he returned at midnight and knocked at the gate of her apartment.
Complainant peeped through the jalousies and went down to the first floor. She opened the gate
and let him in. Upon having entered the house, he sat at the sofa, placed his hands on the
shoulder of complainant, who by then had already sat beside him, and touched her ears. She did
nothing to repel appellants advances but just looked up. When asked to remove her shirt,
complainant willingly obliged. He proceeded to kiss complainant all over. She removed her short
pants when appellant asked her to do so. He then removed his shirt and continued to kiss
complainants breasts, chest and thighs. He wanted that they move upstairs but she demurred
saying that her children were upstairs. Complainant instead suggested that they move to the
cement floor since the sofa was noisy. He got aroused after transferring to the floor, so he
removed his short pants and briefs. Complainant likewise removed her underwear. They had
sexual intercourse without him having to use force on complainant. Thereafter, they dressed up.
He left the place at 1:00 in the morning. They repeated the same act on four more occasions
usually at 12:00 midnight. He did not have to use force, much less threaten complainant with a
knife when they had sexual intercourse on October 1, 1994.[11]
On May 22, 1995, the trial court rendered a decision, the dispositive portion of which reads
as follows:

WHEREFORE, decision is hereby rendered finding the accused RONETO DEGAMO, a. k. a.

Roy, guilty beyond reasonable doubt of rape defined and penalized under paragraphs 2 and 3 of
Article 335 of the Revised Penal Code, as amended by Republic Act 7659. Appreciating the
aggravating circumstances of dwelling and nighttime with no mitigating circumstance to offset
any of the two and pursuant to Article 63 of the Revised Penal Code, this court imposes upon the
same Roneto Degamo, a.k.a. Roy, the extreme penalty of DEATH. Further, the same Roneto

313
Degamo, a. k. a. Roy, is directed to indemnify Ellen Vertudazo the sum of THIRTY THOUSAND
PESOS (P30,000.00) and to pay the costs.

As the sentence imposed is death, the jail warden of Ormoc City is directed to immediately
commit the person of Roneto Degamo, a. k. a. Roy, to the National Bilibid Prisons at
Muntinlupa, Metro Manila while awaiting the review of this decision by the Supreme Court.

SO ORDERED.[12]

Hence, this automatic review.

A discussion of certain procedural rules is in order before going into the merits of the case.
It has not escaped our notice that the complaint for rape with use of a deadly weapon was
amended after arraignment of appellant to include the allegation that the victim has become
insane by reason or on the occasion of the rape. Although the penalty for rape with the use of a
deadly weapon under the original Information is reclusion perpetua to death, the mandatory
penalty of death is imposed where the victim has become insane by reason or on the occasion of
rape as alleged in the Amended Information.
Under Section 14, Rule 110 of the Rules of Court, an amendment after the plea of the
accused is permitted only as to matters of form, provided: (i) leave of court is obtained; and (ii)
such amendment is not prejudicial to the rights of the accused. A substantial amendment is not
permitted after the accused had already been arraigned.
In Teehankee, Jr. vs. Madayag,[13] we had occasion to state that a substantial amendment
consists of recital of facts constituting the offense charged and determinative of the jurisdiction
of the court. All other matters are merely of form. The following were held to be merely formal
amendments: (1) new allegations which relate only to the range of the penalty that the court
might impose in the event of conviction; (2) an amendment which does not charge another
offense different or distinct from that charged in the original one; (3) additional allegations
which do not alter the prosecutions theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; and (4) amendment, which does not adversely
affect any substantial right of the accused, such as his right to invoke prescription.
We further elucidated in the Teehankee case that the test as to whether an amendment is
only of form and an accused is not prejudiced by such amendment is whether or not a defense
under the information as it originally stood would be equally available after the amendment is
made, and whether or not any evidence which the accused might have would be equally
applicable to the information in one form as in the other; if the answer is in the affirmative, the
amendment is one of form and not of substance.[14]
Tested against the foregoing guidelines, the subject amendment is clearly not one of
substance as it falls under all of the formal amendments enumerated in the Teehankee case. The
insertion of the phrase that the victim has become insane by reason or on occasion of the rape in
the Information merely raised the penalty that may be imposed in case of conviction and does not
charge another offense different from that charged in the original Information. Whatever defense
appellant may have raised under the original information for rape committed with a deadly
weapon equally applies to rape committed with a deadly weapon where the victim has become
insane by reason or on occasion of the rape. The amendment did not adversely affect any
substantial right of appellant. Therefore, the trial court correctly allowed the amendment.
Furthermore, it is also settled that amendment of an information to charge a more serious
offense is permissible and does not constitute double jeopardy even where the accused was
already arraigned and pleaded not guilty to the charge, where the basis of the more serious
charge did not exist, but comes as a subsequent event.[15] In this case the basis for the amendment
was the psychosis of complainant which was determined after the filing of the information.
Unlike other qualifying circumstances, insanity of the victim by reason or on occasion of the
rape may not be readily discerned right after the commission of the crime. The resultant insanity
of the victim could be easily mistaken as a mere initial reaction, such as shock, to the incident. In

314
other cases, it may take some weeks or even months for the insanity of the victim to manifest.
Consequently, a psychiatrist would need some time with the victim before concluding that she is
indeed suffering from insanity as a result of rape. Under these circumstances, the subsequent
diagnosis of insanity by reason or on occasion of the rape is akin to a supervening event; in
which case, the corresponding amendment of the information may be allowed, as correctly done
by the trial court.
Besides, the trial proper started only after appellant had been re-arraigned and appellant
never objected to the amendment at any stage of the proceedings. It is basic that objection to the
amendment of an information or complaint must be raised at the time the amendment is made,
otherwise, silence would be deemed a consent to said amendment. It is a time-honored doctrine
that objection to the amendment must be seasonably made, for when the trial was had upon an
information substituted for the complaint or information without any objection by the defense,
the defect is deemed waived. It cannot be raised for the first time on appeal.[16]
We shall now proceed to the merits of the case.
The trial court gave credence to the testimony of victim Ellen Vertudazo that appellant raped
her with the use of a deadly weapon. It held that she would not have agreed to endure the
indignities of physical examination of her private parts and the embarrassment of a public trial
were it not for a desire to seek justice for herself. Moreover, the trial court found that other than
the self-serving testimony of appellant, no evidence was introduced to support his claim that he
and complainant were having an illicit love affair; and that there was no ill motive on the part of
complainant for imputing the serious charge of rape against appellant.
In his Appellants Brief, appellant raises a single assignment of error, to wit: The trial court
erred in finding the accused guilty beyond reasonable doubt of the crime of rape, in support of
which, he argues:
1. The fact that at first complainant said she opened the door for the accused and later
denied this, is not an inconsequential contradiction.
2. Complainant had not become insane by reason of the rape because she gave
intelligent answers on the witness stand.
We find the appeal without merit.
It is doctrinal that the evaluation of testimonial evidence by trial courts is accorded great
respect precisely because of its chance to observe first-hand the demeanor of the witnesses, a
matter which is important in determining whether what has been testified to may be taken to be
the truth or falsehood.[17] Appellant failed to show any cogent reason for us to disturb the
findings of the trial court.
Complainant and her family had just moved in the neighborhood a little more than two
months before she was raped. Prior to the incident of rape, she only knew appellant as one of her
neighbors but did not personally know him.[18] Appellant would have us to believe that hours
after a chance meeting at a nearby sari-sari store, complainant, a married woman with children,
was so morally debased as to readily accede to his sexual advances at her own apartment while
her children were asleep. Like the trial court, we find it unlikely for a married woman with
children who had just moved into the neighborhood to place herself on public trial for rape where
she would be subjected to suspicion, morbid curiosity, malicious imputations and close scrutiny
of her personal life and character, not to speak of the humiliation and scandal she and her family
would suffer, if she were merely concocting her charge against appellant and would not be able
to prove it in court.
Appellant insists that the complaint was prompted by complainants fear that her husbands
relatives might discover her infidelity. We are not convinced. Aside from the bare assertion of
appellant that he and complainant were having an affair, he failed to present corroborative
evidence of any kind such as love notes, mementos or pictures[19] or the testimonies of neighbors,
relatives or friends. There is no showing that the relatives of complainants husband even
suspected that she was having an illicit affair. Further, complainant not only filed the charges of
rape immediately after the incident, she also submitted herself for medical examination and

315
sought psychiatric treatment due to the trauma caused by her ordeal. If she and appellant were
indeed lovers, there would have been no reason for her to be so traumatized by their sexual
liaisons and undergo psychiatric treatment.
Worth noting too is the fact that there is no evidence nor even an indication that complainant
was impelled by an improper motive in making the accusation against appellant. The absence of
any improper motive of complainant to impute such a serious offense against appellant persuades
us that complainant filed the rape charge against appellant for no other reason than to seek justice
for the bestial deed committed against her. Settled is the doctrine that when there is no evidence
to show any dubious reason or improper motive why a prosecution witness should testify falsely
against the accused or implicate him in a serious offense, the testimony deserves full faith and
credit.[20]
Appellant presses that the trial court should have taken note that complainant gave
contradicting testimonies as she had earlier testified that she opened the door to appellant but
later denied this on cross examination; and that complainant must have perceived the serious
implications of her earlier testimony so she deliberately changed her testimony.
After a review of the testimony of complainant, we find no such contradictions.
Complainant clearly testified that she opened the door when she heard someone calling her name
to open it because she thought that her brother-in-law, Venancio, who left the house earlier at the
invitation of appellant, had already come home for the night. It was too late when she realized
that it was appellant alone who had called on her to open the door.[21]
Appellant further argues that the qualifying circumstance of the use of a deadly weapon in
the commission of the crime should not be considered since the weapon was never presented as
evidence in court. We are not persuaded.
It is settled that the non-presentation of the weapon used in the commission of rape is not
essential to the conviction of the accused.[22] The testimony of the rape victim that appellant was
armed with a deadly weapon when he committed the crime is sufficient to establish that fact for
so long as the victim is credible.[23] It must be stressed that in rape, it is usually only the victim
who can attest to its occurrence and that is why courts subject the testimony of the alleged
victims to strict scrutiny before relying on it for the conviction of the accused.[24] In the present
case, complainant positively described how appellant, armed with a knife, threatened and raped
her. Appellant failed to show any compelling reason for us to brush aside the probative weight
given by the trial court to the testimony of herein complainant. Absent any showing that certain
facts of substance and significance have been plainly overlooked or that the trial courts findings
are clearly arbitrary, the conclusions reached by the trial court must be respected and the
judgment rendered should be affirmed.[25]
We take note that Dr. Ernesto Calipayan conducted a physical examination of the victim on
October 3, 1994, and he issued a Medical Certificate wherein it is stated that the entire vulva and
vestibule are normally looking and showed no signs of traumatic injury and that a microscopic
examination of the cervical and vaginal smear showed that it is negative for sperm cells.[26] Said
findings however, do not demolish the positive testimony of the victim that she had been raped
by appellant. The absence of traumatic injury on her vulva and vestibule is not a strong proof that
appellant did not use force on the victim who submitted to the dastardly act of appellant because
of the knife wielded by him. It is within the realm of logic, reason and human experience that the
victim, who had given birth to two children, because of the fear for her life, may not have
exerted that degree of resistance that would have been needed to produce traumatic injury on her
private parts.
Moreover, the fact that no sperm was found in the cervical and vaginal smear is
satisfactorily explained by Dr. Calipayan that human spermatozoa will not survive between
forty-eight to seventy-two hours.[27] In complainants case, she was examined on October 3, 1994,
or more than forty-eight hours after she was raped on October 1, 1994 between 12:00 midnight
and 1:00 in the morning.
It is a settled rule that proof beyond reasonable doubt does not connote absolute certainty, it
means that degree of proof which, after an investigation of the whole record, produces moral

316
certainty in an unprejudiced mind of the accuseds culpability.[28] It signifies such proof that
convinces and satisfies the reason and conscience of those who are to act upon it that appellant is
guilty of the crime charged.[29]
In the case at bar, there is no doubt that appellant had committed the crime of rape.
Appellant failed to show that the trial court committed any reversible error in finding him guilty
beyond reasonable doubt of raping complainant with the use of a deadly weapon.
Under Article 335 of the Revised Penal Code, as amended, whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death.
In meting out the penalty of death, the trial court considered dwelling and nighttime as
aggravating circumstances in the commission of the crime of rape committed with a deadly
weapon.
The trial court should not have considered the aggravating circumstance of nighttime against
appellant. Not only was it not alleged as an aggravating circumstance in the Information, but
also, there is no clear proof that appellant deliberately took advantage of the cover of darkness to
facilitate the commission of the crime. Complainant herself even testified that the flourescent
light at the ground floor of the house was not switched off until after appellant had already
entered the house and told her to turn it off.[30]
However, the trial court did not err in imposing the penalty of death on appellant. It is
established by the prosecution that the crime of rape with the use of a deadly weapon was
committed in the dwelling of complainant. Dwelling is alleged in the Information and was
unrefuted by appellant. Under Article 63 of the Revised Penal Code, in cases where the law
provides a penalty composed of two indivisible penalties, the presence of an aggravating
circumstance warrants the imposition of the greater penalty which is death.
We now turn to the issue as to whether or not the qualifying circumstance of insanity of the
victim by reason or on occasion of the rape committed against complainant should likewise be
considered in the imposition of the proper penalty.
Republic Act No. 7659[31] expressly provides that when by reason or on the occasion of the
rape, the victim has become insane, the penalty shall be death.
The trial court observes:

There is no jurisprudence yet, however, which construed the provision has become insane.
Though there is no doubt that the death penalty shall be imposed if the victim becomes
permanently insane, there is no ruling yet whether temporary insanity by reason of rape (when
the victim responded to psychiatric treatment as in the present case) still falls within the purview
of the same provision.[32]

For the guidance of the Bench and the Bar, we deem it proper to resolve what should be the
correct construction of the provision has become insane by reason or on occasion of the rape
committed.
It is a hornbook doctrine in statutory construction that it is the duty of the court in construing
a law to determine legislative intention from its language.[33] The history of events that transpired
during the process of enacting a law, from its introduction in the legislature to its final validation
has generally been the first extrinsic aid to which courts turn to construe an ambiguous act.[34]
Republic Act No. 2632[35] is the first law that introduced the qualifying circumstance of
insanity by reason or on occasion of rape, amending Article 335 of the Revised Penal Code. An
examination of the deliberation of the lawmakers in enacting R.A. No. 2632, convinces us that
the degree of insanity, whether permanent or temporary, is not relevant in considering the same
as a qualifying circumstance for as long as the victim has become insane by reason or on
occasion of the rape.
Congressional records[36] disclose that when Senator Pedro Sabido first broached the
possibility of regarding insanity as a qualifying circumstance in rape, he described it as perpetual

317
incapacity or insanity. The interpellations on Senate Bill No. 21 which later evolved into R.A.
No. 2632 did not include the rationale for the inclusion of the victims insanity by reason or
occasion of rape as a qualifying circumstance. Neither did the legislators discuss the degree of
insanity of the victim by reason or on occasion of rape for it to be considered as a qualifying
circumstance. After the interpellations on the other proposed amendments to Senate Bill No. 21,
the Senate session was suspended. Upon resumption of the session, the legislators agreed, among
other matters, that the provision, when by reason or on occasion of rape, the victim has become
insane, the penalty of reclusion perpetua shall be likewise reclusion perpetua, be incorporated
in the law.[37] Thus, Article 335, as amended by R.A. No. 2632, read as follows:
Art. 335. When and how rape is committed. Penalties - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.

The crime of rape shall be punished by reclusion temporal.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be imposed in its maximum period.

When by reason or on the occasion of rape, a homicide is committed the penalty shall
be reclusion perpetua to death.

When the rape is frustrated or attempted and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua.

When by reason or on the occasion of the rape the victim has become insane, the penalty
shall be likewise reclusion perpetua. [Emphasis supplied]

Significantly, the words perpetual and incapacity were not retained by the legislators. They
merely used the word insanity. It is well-established in legal hermeneutics that in interpreting a
statute, care should be taken that every part or word thereof be given effect since the lawmaking
body is presumed to know the meaning of the words employed in the statute and to have used
them advisedly.[38] Applied inversely, the courts should not interject a condition, make a
distinction, or impose any limitation where the legislators did not opt to do so.
Thus, it is without any doubt that when the legislators included the victims resultant insanity
as a qualifying circumstance in rape cases, it did not intend or impose as a condition that the
insanity must be of permanent nature, or that it should have been manifested by the victim before
the filing of the complaint of information, before, during or after trial. Otherwise, it would have
been so expressly stated, especially so, that Senator Sabido had initially
suggested perpetual incapacity or insanity, As the Congressional records reveal, the legislators
chose not to include the word perpetual in the bill enacted into law.
Article 335 of the Revised Penal Code, as amended by R.A. No. 2632, was further amended
by Republic Act No. 4111 whereby the penalty is increased to death when by reason or on the
occasion of rape, the victim has become insane.
R.A. No. 7659 which took effect on December 31, 1993, merely reiterated the imposition of
death penalty when by reason or on the occasion of the rape, the victim has become insane.
In the enactment of both R.A. Nos. 4111 and 7659, the legislators merely reiterated or
reproduced the provision on insanity under R.A. No. 2632 except as to the imposable penalty,
without making any distinction as to the degree of insanity that may or may not be considered as
a qualifying circumstance.

318
 Consequently, the fact that the victim during trial or while the case is pending, has returned
to normal behavior after undergoing treatment, does not exculpate the appellant from the penalty
of death.
It is inherently difficult for us to set the parameters or fix a hard and fast rule as to when
insanity may be considered a qualifying circumstance. Whether the rape resulted in the insanity
of the victim shall have to be resolved by the courts on a case to case basis. Suffice it to be stated
that the resultant insanity of the victim in rape cases must at least be manifest at the time of filing
the complaint or information or at any time thereafter before judgment is rendered, in which
case, the information may accordingly be amended.[39] The reason for this is simple. Rape is
always a traumatic experience for the victim who necessarily suffers untold psychological and
emotional damage. Like victims of other crimes, rape victims have different ways of coping with
the trauma brought about by the crime. While one may exhibit shock or depression immediately
after the crime and recover thereafter, another might require a longer period to exhibit these same
symptoms and not return to normalcy. Certainly, one can never calculate or measure the depths
of the psychological and emotional damage that rape inflicts on the victim.
In the case at bar, Dr. Go had competently and convincingly testified that victim Ellen
Vertudazo suffered psychosis or insanity from which she seems to have improved due to her
treatment which treatment should be continuous and may last from six months to five years so
that the victim may not suffer from regression; and that as of February 16, 1995, the date Dr. Go
testified, complainant has not fully recovered from her psychosis.[40] The qualifying
circumstance of insanity had already attached notwithstanding the recovery of the victim from
her illness. The penalty of death is imposable.
As to the damages awarded, the trial court erred in awarding the mere sum of P30,000.00 to
complainant as civil indemnity. Complainant is entitled to P75,000.00 as civil indemnity in
accordance with our established rulings in cases where the crime of rape is committed, qualified
by any of the circumstances under which the death penalty is authorized by law.[41] In the present
case, the victim became insane by reason of the rape committed against her; and in the
commission of rape with the use of a deadly weapon, the aggravating circumstance of dwelling is
present. Actually, the trial court had two grounds for the imposition of death penalty.
Complainant is likewise entitled to moral damages without need of further proof in the sum
of P50,000.00.[42] The fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the basis for moral damages is too obvious to still
require the recital thereof at the trial by the victim since the court itself even assumes and
acknowledges such agony on her part as a gauge of her credibility.[43]
In addition, complainant is entitled to the amount of P25,000.00 as and for exemplary
damages[44] considering the aggravating circumstance of dwelling; and to the amount of
P25,000.00 by way of temperate damages45 in lieu of actual damages, considering that
complainant had to undergo psychiatric treatment but was not able to present proof of the
expenses she incurred in her treatment.
Three members of the Court maintain their position that R.A. No. 7659, insofar as it
prescribes the death penalty, is unconstitutional; however, they submit to the ruling of the Court,
by majority vote, that the law is constitutional and that the death penalty should be imposed
accordingly.
WHEREFORE, the judgment of the lower court convicting appellant Roneto Degamo alias
Roy of qualified rape and sentencing him to suffer the penalty of DEATH is AFFIRMED with
the MODIFICATION that appellant is ordered to pay complainant Ellen Vertudazo the amounts
of Seventy-Five Thousand Pesos (P75,000.00), as civil indemnity; Fifty Thousand Pesos
(P50,000.00), as moral damages; Twenty-Five Thousand Pesos (P25,000.00) as exemplary
damages; and Twenty-Five Thousand Pesos (P25,000.00) as temperate damages. Costs against
appellant.
Upon the finality of this decision and pursuant to Section 25 of R.A. No. 7659, amending
Article 83 of the Revised Penal Code, let the records of this case be forthwith forwarded to the
Office of the President of the Philippines for possible exercise of the pardoning power.

319
G.R. No. 96766 September 20, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO JARALBA and JALANDONI CORREGIDOR, accused-appellants.

The Solicitor General for plaintiff-appellee.

Ildefonso G. Mantilla for accused-appellant Antonio Jaralba.

Deodiro Ravelo for accused-appellant Jalandoni Corregidor.

BIDIN, J.:

This is an appeal from the decision of the Regional Trial Court of Surigao City, Branch 30,
finding herein appellants Antonio Jarabla and Jalandoni Corregidor guilty of the crime of
Murder, alleged to have been committed in the amended information as follows:

That on or about the 30th day of October, 1986, in the City of Surigao,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused conspiring and confederating together and mutually helping one another,
armed with deadly weapons, that is, sharp-pointed instruments, without any
justifiable cause and with intent to kill Joselito Baltar and with treachery and
cruelty did then and there wilfully, unlawfully and feloniously assault, attack and
stab the said Joselito Z. Baltar several times, thereby inflicting upon the latter
twenty-three (23) wounds in the different parts of his body as indicated in the post
mortem findings hereto attached, causing the instantaneous death of said Joselito
Z. Baltar, to the damage and prejudice and his heirs in such sum as may be
allowed under the Civil Code of the Philippines.

Contrary to Article 248 of the Revised Penal Code, with the qualifying
circumstance of treachery and cruelty. (Rollo, p. 7)

Upon arraignment, appellants Jalandoni Corregidor and Antonio Jaralba entered a plea of not
guilty. Thereafter, trial ensued. On November 24, 1989, the trial court rendered its decision, the
dispositive portion of which reads:

Wherefore, from all the foregoing, the Court finds the accused, ANTONIO
JARALBA and JALANDONI CORREGIDOR, both guilty beyond reasonable
doubt of the crime charged, defined and penalized under Article 248 of the
Revised Penal Code, lacking in aggravating nor mitigating circumstance, imposes
the medium penalty of RECLUSION PERPETUA (People v. Jutie, Jr., G. R.
72975, 31 March 1989, First Division, Medialdea).

To indemnify the heirs of Joselito Baltar, jointly and severally, the amount of
P30,000.00; moral damages of P10,000.00; funeral expenses of P5,000.00 without
any subsidiary imprisonment in case of insolvency; to suffer the accessory
penalties provided for by law and to pay the costs.

In view of the foregoing findings of guilt, the bonds filed is (sic) ordered
CANCELLED, and accused to be (sic) confined at the Provincial Jail.

The case with respect to John Doe is placed in ARCHIVE until such time that the
police authorities shall be able to identify and apprehend said person.

320
 SO ORDERED. (Rollo, p. 73)

As summarized by the Solicitor General, the facts of the case are as follows:

On October 30, 1986, at around 7:00 o' clock in the evening, witness Diomedes
Guibao, then seventeen (17) years old, was inside the campus of the Surigao del
Norte National High School waiting for his friend Fernando Digol (TSN, July 7,
1988, pp. 2-3). He decided to go to the toilet (Id.). On his way to the toilet, he
saw, ahead of him, his classmate Joselito Baltar followed by appellants Antonio
Jaralba and Jalandoni Corregidor and another person whom he did not recognize
also on their way to the toilet (TSN, July 7, 1988, pp. 3, 13). Diomedes Guibao
had already known appellants for about a year having seen them hang around the
school's premises (TSN, July 7, 1988, pp. 4, 12).

As Diomedes was about to enter the toilet, he saw appellants and the unidentified
companion inside the toilet taking turns stabbing Joselito Baltar with a
"sundangay" (small bolo) while holding the victim's arms (TSN, July 7, 1988, pp.
3, 8-10).

The toilet was located at the first floor of a two-storey building. Although the
light inside the toilet itself was not working, the twenty (20) watt fluorescent light
hanging on the ceiling outside illuminated the toilet through the iron grills (TSN,
July 25, 1988, pp. 35-38; TSN, July 7, 1988, pp. 4, 11).

At around 10:30 in the evening, Romeo Bulabog, security guard on duty at the
Surigao National High School, was making his rounds, checking the premises
using his flashlight and closing doors, when he noticed drops of blood on the
cement floor which he traced back to the school toilet and found inside the toilet
the dead body of Joselito Baltar (TSN, July 25, 1988, pp. 31-32). Romeo reported
the matter to the police (Id.).

Responding to Romeo Bulabog's report, police investigator Cpl. Cipriano Iligan,

together with Pat. Jamil, Cpl. Gonzaga, Cpl. Lisondra and commercial
photographer Roger Martinez, proceeded to the scene of the crime (TSN, June 1,
1988, pp. 3-6). At the Surigao del Norte National High School campus, Cpl.
Iligan and his men followed the trail of blood from the school toilet and found
that it led to appellant Jaralba's store which was right beside the latter's residence
along the national highway (TSN, June 1, 1988, pp. 5-9). Drops of blood and
other bloodstains were found on the cemented steps leading to the national road
and on the door of appellant Jaralba's store (TSN, June 1, 1988, pp. 8-12).
Commercial photographer Roger Martinez took pictures of the toilet, the trail of
blood and of the bloodstains on the door of appellant Jaralba's store (TSN, June 1,
1988,
p. 8; TSN, August 17, 1988, pp. 44-47).

The policemen woke up appellant Jaralba's father, Jorge Jaralba, and asked the
latter about the bloodstains and appellant's whereabouts (TSN, January 24, 1989,
pp. 81-85). But Jorge Jaralba did not know where his son was but asked the
policemen to wait while he looked for him (TSN, January 24, 1989, pp. 85-86).
When he returned, Jorge Jaralba told the policemen that he could not locate
appellant Antonio Jaralba (Id., p. 85).

The following day, an autopsy performed by Dr. Alice Ensomo-Gonzaga at the

Saviour Funeral Parlor where Joselito Z. Baltar's body was taken (TSN, July 26,
1988, p. 17). She found that Joselito sustained no less than twenty three (23)
wounds: seven (7) in the anterior or front part of the body (above the left
eyebrow, on the mandible, on the neck and on the chest) and fourteen (14) on the

321
 posterior side or the back (TSN, July 26, 1988, pp. 17-25; Exhibit "G"). She
determined the cause of death to be shock and internal hemorrhage due to
multiple stab wounds (TSN, July 26, 1988, p. 22).

On November 3, 1986, appellant Antonio Jaralba, accompanied by his father,

Jorge Jaralba, went to the police station and was investigated (TSN, February 13,
1989, pp. 99-100).

On March 6, 1987 or four (4) months and six (6) days after the incident,
Diomedes Guibao decided to tell his teacher Mrs. Beltran that he witnessed the
killing of Joselito Beltran (sic) (TSN, July 7, 1988, p. 6).

Accused Antonio Jaralba denies having conspired with Jalandoni Corregidor and the unidentified
person in the murder of Joselito Baltar. He testified that on October 30, 1986, he went to the
comfort room of the Surigao del Norte High School. While there, he heard moanings coming
from the adjoining cubicle. Curious, he took a closer look and saw a person slumped on the side
thereof. Before he could clearly see the victim, a man rushed out of the cubicle and stabbed him
twice. Jaralba claims that he was hit in the palm of his right hand, below the little finger.
Thereafter, he ran home and attended to his wound. Later, he went to the store of Paramede
where he met his friends, namely, Virgel Tomate, Jalandoni Corregidor, Lolong Abadilla and
Titing Castillo. They were drinking liquor. The store-owner, Policeman Paramede, asked him
about his wound to which he replied that he was stabbed in school. On November 3, 1986,
Jaralba also told his father that he was stabbed in school. His father brought him to the police
station where he was investigated. He identified a written statement as the one prepared by the
police investigator and signed by him (Exhibit 2, pp. 485-487).

Accused Jalandoni Corregidor likewise denies the charge against him. He claims that he was in
Placer Cemetery the whole day of October 30, 1986, working on the mausoleum of former
Mayor Canda, together with Dionisio and Lolong Abadilla. He testified that he left for Placer in
the morning and returned to Surigao City at 7:30 in the evening. He took supper in the house of
Dionisio Abadilla and went home at around 8:00 in the evening. Thereafter, he went with
Andrew Abadilla to the Surigao del Norte High School at around 8:40 in the evening to attend
classes. On the way home, Corregidor and Abadilla stopped and joined Antonio Jaralba and
Tomate in their drinking session at the Paramede store at the capitol road, from 9:00 to 9:30 in
the evening. The following day, October 31, 1986, he was picked up by the police for
investigation.

As aforesaid, both the accused were convicted of the crime charged. They now assign the
following as errors:

1 The trial court erred in ordering orally the amendment of the information after
arraignment;

2 The trial court erred in proceeding with the trial without the accused being re-
arraigned in (sic) the amended information;

3 The trial court erred in giving weight and credence without the testimony of
Diomedes Guibao, the truth that his behavior after the alleged incident is
indicative of guilt;

4 The trial court erred in not acquitting the accused on reasonable doubt;

5 The trial court erred in not giving weight and credence to the testimonies of the
accused and its witness. (Rollo, p. 42)

Appellants seek to capitalize on the supposed grave error committed by the court a quo in orally
amending the description of the victim's wounds from "lacerated" to "stab" in the autopsy report

322
attached to the information to conform with the testimony of the examining physician.
Accordingly, appellants contend that they were placed in double jeopardy for not having been re-
arraigned.

It is elementary that for double jeopardy to attach, an accused must, among others, first be
acquitted or convicted and is being charged anew for the very same offense for which he was
previously prosecuted (Rule 117, Section 7, 1985 Rules on Criminal Procedure). Here, appellants
were yet to be convicted or acquitted of the crime charged. Hence, no double jeopardy has
attached. Besides no information was filed.

What is clear on the record is that the trial court merely ordered a change in the description of
some of the victim's wounds from "lacerated" to "stab" in the information in order to conform
with the description of the victim's wounds in the autopsy report. Furthermore, a re-arraignment
is necessary only where the change or amendment of the information involves a mistake in the
charging of the proper offense (Rule 110, Section 14, par. [2], 1985 Rules on Criminal
Procedure). In the case at bar, the change in the information, i. e., the change in the description of
some of the victim's wounds from "lacerated" to "stab" was not effected to correct a mistake in
charging the proper offense. It did not have the effect of changing the offense charged in the
information, which was, and correctly remained as, murder.

In their third assignment of error, appellants argue that the trial court should not have given
credence to the testimony of eyewitness Diomedes Guibao because he allegedly harbored a
grudge against appellant Corregidor. In addition, Guibao failed to reveal his knowledge of the
incident until after the lapse of a considerable period of time.

Insofar as credibility is concerned, it is well settled that the findings of the trial court on
credibility of witness merit the highest degree of respect. The trial court is the best judge of
whether or not a witness is credible. Its findings on the credibility of a witness are entitled to
great weight and respect and will not be disturbed on appeal unless some facts or circumstances
were overlooked that will effect the outcome of the case, none of which obtain in the incident
under view (People vs. Moreno, Jr., 208 SCRA 87 [1992]; People vs. Villanueva, 211 SCRA 602
[1992]; People v. Uy, 206 SCRA 270 [1992]).

Still, the alleged ill-motive of Guibao against appellant Corregidor cannot be sanctioned
considering that this could not logically explain why Guibao would likewise implicate appellant
Antonio Jaralba and the other unidentified person. No reason has been imputed as to why said
witness would implicate other persons against whom he had no grudges. In any event, the delay
on the part of Diomedes Guibao in divulging the names of perpetrators of the crime neither
impairs his credibility nor his testimony. The initial reluctance of Diomedes Guibao to volunteer
information on a crime he witnessed and his unwillingness to be involved in criminal
investigation for fear of reprisal is common and has been judicially declared not to affect the
credibility of a witness (People vs. Pascua, 206 SCRA 629 [1992]).

As this Court emphasized in People v. Mandapat (196 SCRA 157 [1991]):

As a general rule, the failure of a witness to report at once to the police authorities
the crime he had witnessed cannot be taken against him (People v. Demate, 113
SCRA 353 [1982]) for "it is not uncommon for a witness to a crime to show some
reluctance about getting involved in a criminal case. The natural reticence of most
people to get involved in a criminal case is of judicial notice" (People v. Pacabes,
137 SCRA 158 [1985]; People v. Coronado, 145 SCRA 250 [1986]) and the fear
of eyewitnesses when townmates are involved in the commission of the crime is
understandable for they may provide reprisals from the accused (People v.
Rosario, 134 SCRA 496 [1985]). The delay, when adequately explained, does not
impair the credibility of the witness, as in the case at bar (People v. Cabinit, 139
SCRA 94 [1985]; People v. Millora, 119 SCRA 417 [1984]); neither will it render

323
 his testimony biased (People v. Itura, 129 SCRA 127 [1984]; nor will it destroy its
probative value (People v. Millora, supra); . . .

Neither can we lend credence to the claims of appellants that Diomedes Guibao was the real
killer and that the police investigators merely framed them up. In the first place, there was not a
scintilla of evidence to support the same. Allegations sans proof deserve no merit. Appellants
never specified what the police investigators did or had against them. Secondly, the police
officers are presumed to have regularly performed their duties in the absence of evidence to the
contrary (Rule 131, Section 3 [m], Rules of Court). From the attendant circumstances, the Court
sees no reason why the police officers would falsely concoct a serious charge against accused
herein if they really did not commit the offense charged. Absent a showing that the police
officers were actuated by improper motive, their testimonies are entitled to full faith and credit
(People vs. Fernandez, 209 SCRA 1 [1992]).

With regard to the unsubstantiated claim of appellant Corregidor that he could not have
participated in the stabbing of Joselito Baltar since he was in Placer working on the mausoleum
of the Canda family, We find the same to be untenable.

In People v. Arbolante (203 SCRA 85 [1991]), We held that "denial, like alibi, is inherently a
weak defense and can easily be defeated by the affirmative and credible testimonies of
prosecution witnesses pointing to the accused as the perpetrators of the crime for which they are
charged." Denial of guilt, uncorroborated by any reliable evidence, cannot overthrow the clear
and convincing testimonies of prosecution witnesses as to the culpability of the accused (People
vs. Arceo, 202 SCRA 170 [1991]).

Furthermore, it is firmly entrenched in our jurisprudence that the defense of alibi cannot prevail
over the positive testimonies of prosecution witnesses and their clear identification of the
accused as the perpetrator of the crime. This is so because, as we have invariably but patiently
reiterated, alibi is a defense that is inherently weak since it can easily be fabricated or contrived
(People vs. Pascua, 206 SCRA 628 [1992]). As against the positive and clear identification by
eyewitness Diomedes Guibao, appellants' defense of alibi cannot stand. It has been ruled time
and against that for the defense of alibi to proper, it must be established by clear evidence that
not only must the accused be somewhere other than the place of the commission of the crime but
that it was also physically impossible for him to be at the situs of the crime at the time of its
commission (People vs. Magallanes, G.R. No. 89036, Jan. 29, 1993, citing People vs. Urquia, Jr.,
203 SCRA 735 [1991]).

WHEREFORE, the appealed judgment is hereby AFFIRMED, with the modification as to the
indemnity which is hereby increased from P30,000.00 to P50,000.00. Costs against appellants.

SO ORDERED.

324
G.R. No. 129319 January 30, 2002

DONATO PANGILINAN, petitioner,

vs.
THE COURT OF APPEALS, JUDGE MAURICIO M. RIVERA, Presiding Judge of RTC
Branch 73, Antipolo, Rizal, and PEOPLE OF THE PHILIPPINES, respondents.

SANDOVAL-GUTIERREZ, J.:

On September 23, 1993, twelve (12) Informations for violations of Section 9,1 in relation to
Section 39,2 of Presidential Decree No. 9573 were filed against Donato Pangilinan, now
petitioner, before the Regional Trial Court (Branch 73), Antipolo, Rizal, presided by Judge
Mauricio M. Rivera, respondent herein. The 12 Informations,4docketed as Criminal Cases Nos.
93-10039 to 93-10050, contain similar averments except for the names of private complainants,
to wit:

"That on or about the 15th day of August 1993, in the Municipality of Antipolo, Province
of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused constructed forty-six (46) dwelling units in Barangay Mayamot, Antipolo,
Rizal of which (names of complainants omitted) acquired and occupied one (1) unit with
the assurance and guarantee of said accused that said unit was built in accordance with
Pag-ibig Standards for building works but once said complainant moved in and occupied
his unit, it turned out that this unit is obviously defective and that despite the ruling
rendered by the Housing and Land Use Regulatory Board in HLRB Case No. REM-
082283-1687 to cause necessary repairs therein, said corporation, thru its President,
willfully, unlawfully and feloniously did not comply with said ruling to the damage and
prejudice of the herein complainant.

Contrary to law."

Upon arraignment, petitioner pleaded "not guilty" to the charges. During the first scheduled
hearing, or on January 4, 1994, the private prosecutor asked for postponement on the ground that
he was awaiting the filing of seven (7) additional Informations against petitioner. This motion
was granted.5

On March 14, 1994, the 7 additional Informations6 were filed, docketed as Criminal Cases Nos.
94-10919 to 94-10925. These have similar allegations as those of the first 12 Informations except
as to the names of the complainants and as to the docket number of HLRB Case which is "REM-
082282-1687."

Subsequently, on March 25, 1994, the private prosecutor filed an Ex-Parte Omnibus
Motion,7 praying inter alia that: (a) the 7 new Informations be consolidated with the first 12
Informations, and (b) all these 19 Informations be amended to reflect the correct time frame
within which the offenses charged were committed, which is 1981 (instead of "on or about the
15th day of August 1993"), the actual date the housing units were constructed.

Contending that the proposed amendment changing the date of the commission of the offenses is
substantial in nature, petitioner opposed8 the motion insofar as the first 12 Informations are
concerned as he has already entered his plea, hence not allowed under Section 14, Rule 110 of
the Revised Rules on Criminal Procedure.

Finding the amendment to be merely formal, the trial court, in an Order dated September 9,
1994, granted the omnibus motion. However, the lower court inadvertently committed a mistake
by ordering the insertion in the Informations of the phrase "on or about the 15th day of August,
1993" in place of "in the vicinity of the year 1981". This error, however, was rectified in the
Order dated November 9, 1994.9

325
Aggrieved, petitioner filed a motion for reconsideration of the Orders dated September 9, 1994
and November 9, 1994 but was denied in the Order dated December 5, 1994.10

During the scheduled arraignment pertaining to the new 7 Informations on December 8, 1994,
petitioner asked for deferment and manifested his intention of filing a petition for certiorari to
assail the Orders of September 9, 1994, November 9, 1994 and December 5, 1994.

True enough, on December 19, 1994, petitioner filed with the Court of Appeals a petition11 for
certiorari and prohibition with application for a temporary restraining order and a writ of
preliminary injunction against Judge Mauricio M. Rivera and the People of the Philippines.
Petitioner reiterated that insofar as the first 12 Informations are concerned, the trial court could
not anymore, after his plea, order the change of the alleged dates of the commission of the
offenses charged, this being a substantial amendment. Petitioner further asserted that the phrase
"in the vicinity of 1981" is insufficient and defective allegation since he would not know the
nature and cause of the accusations and would thereby unduly expose him to surprises during
trial. This petition, however, was dismissed by the Court of Appeals "for failure of the petitioner
to attach certified true copies of the assailed orders."12 Petitioners motion for reconsideration
was also denied by the Court of Appeals.

Eventually petitioner filed the instant petition with this Court, assailing the dismissal of his suit
by the Court of Appeals. This Court, in a Resolution dated March 27, 1996, granted the said
petition and ordered the Appellate Court to resolve his petition for certiorari and prohibition on
the merits.

In its Decision of October 21, 1996, the Court of Appeals, dismissed the petition, holding that the
lower court did not gravely abuse its discretion when it allowed the amendment of the 19
Informations. It affirmed the trial courts ruling that the amendment sought by the prosecution
does not involve a matter of substance but merely of form.

Upon denial of his motion for reconsideration in a Resolution dated May 13, 1997, petitioner
now comes to this Court via the special civil action for certiorari and prohibition,13 alleging
grave abuse of discretion on the part of the respondent Court of Appeals and respondent Judge
Mauricio M. Rivera.

The petition is devoid of merit.

Prefatorily, we note the procedural error committed by petitioner in filing the instant petition
under Rule 65 of the 1997 Rules of Civil Procedure, as amended. This is the same remedy he
resorted to before the Court of Appeals. It must be noted that in this Courts Resolution dated
March 27, 1996, we directed the Court of Appeals to resolve on the merits the said special civil
action as it was dismissed on technical grounds. Verily, the now assailed Decision dated October
21, 1996 of the Court of Appeals is a final disposition on the merits. Hence, the proper remedy
available to petitioner is a petition for review under Rule 45, not a special civil action under Rule
65.14

Nonetheless, inasmuch as public respondents did not question the propriety of the instant
petition, and considering further that this involves criminal cases, this Court has treated this
action as one for review under Rule 45 in order to accord substantial justice to all parties
concerned.

In the main, petitioner maintains that the questioned amendment to the 19 Informations is
substantial, not merely formal. The amended phrase "in the vicinity of 1981" is vague for being
indefinite. This would prejudice his rights since "he would not know the nature and cause of the
accusations against him and would thereby be unduly exposed to surprises during the
trial."15 Thus, insofar as the 12 Informations are concerned, the trial court, after his plea, could
no longer order their amendments by changing the dates of the commissions of the offenses.

326
We are not persuaded.

The deleted phrase "on or about August 15, 1993" in all the 19 original Informations clearly
refers to the date of the "construct(ion) of forty-six (46) dwelling units" which were later found
to be defective, thereby causing "damage and prejudice" to the complainants. Consequently,
petitioner, who constructed the units, was charged for violating Section 9, in relation to Section
39, of P.D. 957. Obviously, it is impossible to finish the construction of all the 46 units in one (1)
day, or "on or about August 15, 1993". It was but proper to amend the date in the original
Informations to "in the vicinity of 1981," considering that the housing units were completed in
1981 as shown in the documentary proofs of completion presented by the prosecution in its
motion for the amendment of the 19 Informations.16 This fact, was never disputed by petitioner
as noted by both the trial court and the Court of Appeals.17

Verily, the amended date in the 19 Informations is not at all material to the offenses charged
because the basis thereof is not the date of the construction but the defective construction of the
46 dwelling units. We could not conceive how such innocuous amendment may prejudice the
rights of petitioner since it would not alter the nature of the offense charged. In fact, the subject
amendment is permissible under Section 14, Rule 110 of the Revised Rules of Criminal
Procedure, which provides:

"SEC. 14. Amendment or substitution. A complaint or information may be amended, in

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

" x x x." (Emphasis ours)

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.
Costs against petitioner.

SO ORDERED.

327
CONRADO BANAL III, G.R. No. 167474

VS.

HON. DELIA H. PANGANIBAN,

in her capacity as Presiding Judge
of RTC-MAKATI, BRANCH 64,
MA. TERESA G. WINTERNITZ,
CRISTINA G. FEIBEL, RAQUEL Promulgated:
L. GONZALEZ and PEOPLE OF
THE PHILIPPINES,
Respondents. November 15, 2005

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari[1] under Rule 45 of the Rules of Court assails the October
15, 2004 Decision[2] and the March 17, 2005 Resolution[3] of the Court of Appeals in CA-G.R.
SP No. 73017, finding no grave of abuse of discretion attended the June 14, 2002 Order issued
by Judge Delia H. Panganiban of the Regional Trial Court (RTC) of Makati City, Branch 64,
recalling her Order dated April 9, 2002.

The antecedent facts show that a complaint was filed by respondents, Ma. Teresa G.
Winternitz,[4] Cristina G. Feibel, and Raquel L. Gonzalez as officers of Welbilt Construction
Corporation and Wack Wack Condominium Corporation, against petitioner Conrado R. Banal III
for his articles entitled House of the Rising Sun and Heist Cold Beer!, which appeared in
petitioners Breaktime column in the August 1, 2000 and August 12, 2000 issues of the Philippine
Daily Inquirer, respectively.

Thereafter, six informations for libel were filed in the RTC of Makati City, Branch 64
docketed as Criminal Cases Nos. 01-693 01-698, entitled People of the Philippines v. Conrado
R. Banal III, et al.[5] Except for the name of the parties and the article written, the six
informations are similarly worded, to wit:

The undersigned Prosecutor accuses CONRADO R. BANAL III and

SYLVIA G. CANCIO of the crime of Libel, committed as follows:

That on or about the 1st day of August 2000 in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually

328
 helping one another, with accused CONRADO R. BANAL III acting in his
capacity as being then the columnist and writer in the newspaper column
Breaktime of the Philippine Daily Inquirer, which is published in English in the
City of Makati, Metro Manila, Philippines and of general circulation in the
Philippines and abroad, and with accused SYLVIA G. CANCIO acting as the
source of the defamatory information, with the intention of attacking the honesty,
virtue and reputation of MARIA TERESA G. WINTERNITZ and for the purpose
of exposing her to public hatred, contempt and ridicule, then and there willfully,
unlawfully and feloniously wrote, composed and published and permitted and
caused to be written, composed and published in the August 01, 2000 issue of the
said newspaper an injurious and defamatory article relative to and concerning the
person of said MARIA TERESA G. WINTERNITZ, which article is in words as
follows:

....

That the article aforequoted had for its object to insinuate and made it
understood, as was in effect understood and interpreted by the public who read it,
that the MARIA TERESA who is one of the three Gonzalez daughters can be no
other than the said MARIA G. WINTERNITZ, in this manner transmitting
maliciously and intentionally to the public the impression that the said MARIA G.
WINTERNITZ, as a nominal stockholder, member of the Board of Directors and
officer of the Welbilt Construction Corporation and Wack Wack Condominium
Corporation, developer and owner respectively of the Wack Wack Apartments,
was engaged, together with her two sisters and parents, in anomalous, unlawful
and illegal transactions and other wrongdoings involving the sale and resale,
occupancy, possession and ownership by unit buyers....[6]

Upon arraignment, petitioner entered a plea of not guilty. On February 11, 2002, he filed
a Motion to Quash the six informations on the ground that the trial court lacked jurisdiction over
the offense charged.[7] He argued that the informations failed to allege the actual residence of the
complainant at the time of the commission of the offense or the place where the allegedly
libelous article was printed and first published.
In an Order dated April 9, 2002,[8] the trial court granted the motion to quash and dismissed the
cases for lack of jurisdiction. It held that the six informations which uniformly alleged that the
article is published in English in the City of Makati, Metro Manila, Philippines and of general
circulation in the Philippines and abroad, do not meet the requirement that the information must
allege that the libelous article is printed and first published in Makati City or that the offended
party is a resident of Makati City.

On May 1, 2002, respondents filed an Omnibus Motion for Reconsideration of the dismissal of
the informations and moved that an amendment of the informations be allowed.[9] Respondents
averred that the failure to specifically allege that the libelous articles were printed and first
published in Makati was merely a formal defect and can be cured by amendment.

The trial court held that the amendment in the information is formal because it will not prevent
the accused from questioning the jurisdiction of the court to try the case, nor will it affect his
defense. Petitioner can always challenge the jurisdiction by proving the negative of the
allegations in the information, such that the libelous articles were not printed and first published
in Makati City.[10]

329
Petitioner thus filed a petition for certiorari and prohibition under Rule 65 of the Rules of Court
before the Court of Appeals alleging that the June 14, 2002 Order recalling the April 9, 2002
Order was issued with grave abuse of discretion. The Court of Appeals dismissed the petition.

The Court of Appeals found that the trial court did not gravely abuse its discretion as the
questioned order merely sought to correct the earlier order allowing the dismissal of the six
informations, in accord with law and prevailing jurisprudence. The amendment sought is one of
form which is allowable even after arraignment of the accused. The additional statement merely
clarified, in the terms more acceptable to petitioner that the libelous article was printed and first
published in Makati City and to further bolster that, indeed, the crime charged was committed
within respondent courts jurisdiction.[11]

Petitioners motion for reconsideration was denied, hence, this petition on the following grounds:

(A) WHETHER OR NOT THE FAILURE OF CRIMINAL INFORMATIONS

FOR LIBEL TO ALLEGE THE PLACE WHERE THE OFFENDED
PARTIES ACTUALLY RESIDE AT THE TIME OF THE
COMMISSION OF THE OFFENSES OR THE PLACE WHERE THE
ALLEGEDLY LIBELOUS PUBLICATIONS WERE PRINTED AND
FIRST PUBLISHED, EITHER OF WHICH ALLEGATION IS
REQUIRED UNDER ART. 360 OF THE REVISED PENAL CODE TO
CONFER JURISDICTION UPON THE COURT, IS A SUFFICIENT
GROUND FOR THE QUASHAL OF THE CRIMINAL
INFORMATIONS.

(B) WHETHER OR NOT AN AMENDMENT TO THE CRIMINAL

INFORMATIONS THAT WILL CONFER JURISDICTION UPON THE
TRIAL COURT (THAT EARLIER RULED THAT IT HAS NO
JURISDICTION OVER THE OFFENSES CHARGED) IS A
SUBSTANTIAL AMENDMENT THAT IS NOT ALLOWED AFTER
THE ACCUSED HAD BEEN ARRAIGNED.

(C) WHETHER OR NOT THE RESPONDENT TRIAL COURT THAT HAS

EARLIER RULED THAT IT HAS NO JURISDICTION OVER THE
OFFENSES CHARGED HAS AUTHORITY TO GRANT LEAVE TO
AMEND THE CRIMINAL INFORMATIONS, WHICH
AMENDMENTS SEEK TO CONFER UPON THE RESPONDENT
TRIAL COURT JURISDICTION OVER THE OFFENSES
CHARGED.[12]

The issues for resolution are as follows: (1) whether the RTC of Makati City has jurisdiction
over the offense; (2) whether the amendment was formal or substantial; (3) whether the trial
court committed grave abuse of discretion in recalling the earlier order granting the quashal of
the informations and allowing the informations to be amended.

Petitioner avers that the allegations in the informations are insufficient to confer
jurisdiction on the RTC of Makati City over the crime of libel charged in the informations. He
claims that the Court of Appeals mistakenly relied on Section 6, Rule 110 of the Rules of Court

330
because said provision is a statement of a general rule, which is not applicable in libel cases. He insists that the
applicable rule on venue and jurisdiction in libel cases is Article 360 of the Revised Penal Code.

Moreover, petitioner claims that the amendment made by the prosecution seeks to rectify a fatal omission
in the original informations by alleging facts which establish the propriety of the venue of the action. He submits
that an omitted or defective allegation as to venue is a matter of substance which cannot be corrected by amendment.
These substantial amendments are not allowed after the accused has been arraigned. Thus, the amendment allowed
by the trial court was grossly improper and was beyond its authority or jurisdiction.

Respondents on the other hand assert that petitioners argument that Section 6, Rule 110 of the Rules of
Court is inapplicable because the law on libel specifically requires a certain formula (i.e., printed and first
published), is devoid of merit. They claim that what matters is the substance of the allegations in the complaint. It is
not required that the information allege verbatim the elements of the felony, to wit, that the libelous publications
were printed and first published in Makati City, before jurisdiction is vested in the trial court.

Furthermore, respondents argue that the amendments made were one of form. The original informations
already provided the necessary allegations to vest jurisdiction with the trial court. The amendment sought will not
alter the defense of the accused nor will it prevent him from questioning the jurisdiction of the trial court to try the
case. The amendments merely clarified and emphasized the jurisdiction already acquired by the trial court.

The petition lacks merit.

Paragraph 3, Article 360 of the Revised Penal Code states:

The criminal and civil action for damages in cases of written defamations as provided for in this
chapter, shall be filed simultaneously or separately with the Court of First Instance of the
province or city where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the offense: Provided,
however, That where one of the offended parties is a public officer whose office is in the City of
Manila at the time of the commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province where the libelous article is printed and
first published, and in case such public officer does not hold office in the City of Manila, the
action shall be filed in the Court of First Instance of the province or city where he held office at
the time of the commission of the offense or where the libelous article is printed and first
published and in case one of the offended parties is a private individual, the action shall be filed in
the Court of First Instance of the province or city where he actually resides at the time of the
commission of the offense or where the libelous matter is printed and first published

The portion of the original information reads:

That on or about the 1st day of August 2000 in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, with accused
CONRADO R. BANAL III acting in his capacity as being then the columnist and writer in the
newspaper column Breaktime of the Philippine Daily Inquirer, which is published in English in
the City of Makati, Metro Manila, Philippines and of general circulation in the Philippines
and abroad,.[13]

Thus, it was clearly stated in the information that the newspaper is published in Makati City but circulated
throughout the country, which allegation accordingly vests jurisdiction over the offense charged in the RTC of
Makati City.

331
 Moreover, the amendment in the informations was one of form. Section 14, Rule 110 of the Rules of Court
provides that a complaint or information may be amended, in form or in substance, without leave of court, at any
time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused. In the instant
case, the amendment was done after petitioners arraignment and with prior leave of court. The amendment which
states, That the libelous article above-quoted was printed and first published in the City of Makati, more
particularly at 3817 Mascardo street, Makati City and/or at 1098 Chino Roces Avenue (formerly Pasong Tamo)
corner Yague and Mascardo Streets, Makati City,[14] is merely formal.

As laid down by this Court, an amendment is only in form when it merely adds specifications to eliminate vagueness
in the information and not to introduce new and material facts, and merely states with additional precision
something which is already contained in the original information and which, therefore, adds nothing essential for
conviction for the crime charged.[15] In the case of People v. Casey,[16] we laid down the test in determining whether
an amendment is a matter of form or substance, thus:

The test as to whether a defendant is prejudiced by the amendment of an information has

been said to be whether a defense under the information as it originally stood would be available
after the amendment is made, and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. A look into Our jurisprudence on
the matter shows that an amendment to an information introduced after the accused has
pleaded not guilty thereto, which does not change the nature of the crime alleged therein,
does not expose the accused to a charge which could call for a higher penalty, does not affect
the essence of the offense or cause surprise or deprive the accused of an opportunity to meet
the new averment had each been held to be one of form and not of substance not prejudicial
to the accused, and therefore, not prohibited by Section 13, Rule 110 (now Section 14) of the
Revised Rules of Court.[17]

We find that the original information is sufficient in form. Allowing the amendment does not alter the defense of the
accused. Indeed, it only states with precision that which is already contained in the original information.

Having ruled that the RTC of Makati City has jurisdiction, we find that no grave abuse of discretion can be
imputed against respondent Judge Panganiban for allowing the formal amendment of the informations. We have
previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the
Constitution, the law or existing jurisprudence.[18] By grave abuse of discretion is meant, such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as
where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must
be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined
by or to act at all in contemplation of law.[19]

WHEREFORE, the petition is DENIED. The October 15, 2004 Decision of the Court of Appeals in CA-G.R. SP
No. 73017 and its March 17, 2005 Resolution, are AFFIRMED.

SO ORDERED.

332
 [G.R. No. 119601. December 17, 1996]

DANILO BUHAT, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
HERMOSISIMA, JR., J.:

Delicate and sensitive is the issue in this case, which is, whether or not the upgrading of the
crime charged from homicide to the more serious offense of murder is such a substantial
amendment that it is proscribed if made after the accused had pleaded not guilty to the crime of
homicide, displaying as alleged by the defense, inordinate prejudice to the rights of the
defendant.
On March 25, 1993, an information for HOMICIDE[1] was filed in the Regional Trial Court
(RTC)[2] against petitioner Danny Buhat, John Doe and Richard Doe. The information alleged
that on October 16, 1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked and
killed one Ramon George Yu while the said two unknown assailants held his arms, using
superior strength, inflicting x x x mortal wounds which were x x x the direct x x x cause of his
death[3].
Even before petitioner could be arraigned, the prosecution moved for the deferment of the
arraignment on the ground that the private complainant in the case, one Betty Yu, moved for the
reconsideration of the resolution of the City Prosecutor which ordered the filing of the
aforementioned information for homicide. Petitioner however, invoking his right to a speedy
trial, opposed the motion. Thus, petitioner was arraigned on June 9, 1993 and, since petitioner
pleaded not guilty, trial ensued.
On February 3, 1994, then Secretary of Justice Franklin M. Drilon, finding Betty Yus appeal
meritorious, ordered the City Prosecutor of Roxas City to amend the information by upgrading
the offense charged to MURDER and implead therein additional accused Herminia Altavas,
Osmea Altavas and Renato Buhat[4]
On March 10, 1994, the Assistant City Prosecutor filed a motion for leave to amend
information. The amendment as proposed was opposed by the petitioner.
The amended information read:
The undersigned assistant City Prosecutor accuses DANNY BUHAT, of Capricho II,
Barangay V, Roxas City, Philippines, HERMINIA ALTAVAS AND OSMEA
ALTAVAS both resident of Punta Tabuc, Roxas City, Philippines, of the crime of
Murder, committed as follows:

That on or about the 16th day of October, 1992, in the City of Roxas, Philippines, the above-
named accused, Danny Buhat armed with a knife, conspiring, confederating and helping one
another, did and then and there wilfully, unlawfully and feloniously [sic] without justifiable
motive and with intent to kill, attack, stab and injure one RAMON GEORGE YU, while the two
other accused held the arms of the latter, thus using superior strength, inflicting upon him serious
and mortal wounds which were the direct and immediate cause of his death, to the damage and
prejudice of the heirs of said Ramon George Yu in such amount as maybe [sic] awarded to them
by the court under the provisions of the Civil Code of the Philippines.

CONTRARY TO LAW.[5]

The prosecution had by then already presented at least two witnesses.

In an order,[6] dated June 2, 1994, the RTC denied the motion for leave to amend
information. The denial was premised on (1) an invocation of the trial courts discretion in

333
disregarding the opinion of the Secretary of Justice as allegedly held in Crespo vs. Mogul[7] and
(2) a conclusion reached by the trial court that the resolution of the inquest prosecutor is more
persuasive than that of the Secretary of Justice, the former having actually conducted the
preliminary investigation where he was able to observe the demeanor of those he investigated[8]
The Solicitor General promptly elevated the matter to the Court of Appeals. He filed a
petition for certiorari[9] assailing the aforecited order denying the motion for leave to amend
information. Finding the proposed amendment as non-prejudicial to petitioners rights, respondent
court granted the petition for certiorari in a decision, dated March 28, 1995, the decretal portion
of which reads:
THE FOREGOING CONSIDERED, herein petition is hereby granted: the Order dated
June 2, 1994 is set aside and annulled; amendment of the information from homicide to
murder, and including as additional accused Herminia Altavas and Osmea Altavas is
allowed; and finally, the writ of preliminary injunction we issued on January 30, 1995 is
made permanent by prohibiting the public respondent from hearing aforementioned
criminal case under the original information.[10]
Hence this petition raising the sole issue of whether or not the questioned amendment to the
information is procedurally infirm.
The petition lacks merit.
The additional allegation of
conspiracy is only a formal
amendment, petitioners
participation as principal not
having been affected by such
amendment
-------------------------------------
------------
Petitioner asseverates that the inclusion of additional defendants in the information on the
ground of conspiracy is a substantial amendment which is prohibited by Sec. 14, Rule 110 of the
1985 Rules on Criminal Procedure, because the allegation of conspiracy x x x is a substantial
amendment saddling the [p]etitioner with the need of a new defense in order to met [sic] a
different situation at the trial [c]ourt[11]
Petitioner cites the case of People v. Montenegro[12] as jurisprudential support. Indeed, we
stated in the Montenegro case that the allegation of conspiracy among all the private
respondents-accused, which was not previously included in the original information, is x x x a
substantial amendment saddling the respondents with the need of a new defense in order to meet
a different situation in the trial court[13]. And to explain the new defense theory as a bar to
substantial amendment after plea, we cited the case of People v. Zulueta[14] where we elucidated,
thus:
Surely the preparations made by herein accused to face the original charges will have to
be radically modified to meet the new situation. For undoubtedly the allegation of
conspiracy enables the prosecution to attribute and ascribe to the accused Zulueta all the
acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in
furtherance of the conspiracy. The amendment thereby widens the battlefront to allow
the use by the prosecution of newly discovered weapons, to the evident discomfiture of
the opposite camp. Thus it would seem inequitable to sanction the tactical movement at
this stage of the controversy, bearing in mind that the accused is only guaranteed two-
days preparation for trial. Needless to emphasize, as in criminal cases the liberty, even
the life, of the accused is at stake, it is always wise and proper that he be fully apprised
of the charges, to avoid any possible surprise that may lead to injustice. The prosecution
has too many facilities to covet the added advantage of meeting unprepared adversaries.
This jurisprudential rule, however, is not without an exception. And it is in the same case
of Zulueta that we highlighted the case of Regala v. Court of first Instance of Bataan[15] as

334
proffering a situation where an amendment after plea resulting in the inclusion of an allegation of
conspiracy and in the indictment of some other persons in addition to the original accused,
constitutes a mere formal amendment permissible even after arraignment. In Zulueta, we
distinguished the Regala case in this wise:
Some passages from Regala contra El Juez del Juzgado de Primera Instancia de Bataan
are quoted by petitioners. Therein the accused pleaded not guilty to an information for
murder, and later the fiscal amended the indictment by including two other persons
charged with the same offense and alleging conspiracy between the three. Five justices
held that the amendment was not substantial. But that situation differs from the one at
bar. The amendment there did not modify theory of the prosecution that the accused
had killed the deceased by a voluntary act and deed. Here there is an innovation, or the
introduction of another alternative imputation, which, to make matters worse, is
inconsistent with the original allegations.[16]
Applying our aforegoing disquisition in the 1946 case of Regala, we likewise ruled in the
1983 case of People v. Court of Appeals[17] that a post-arraignment amendment to further allege
conspiracy, is only a formal amendment not prejudicial to the rights of the accused and proper
even after the accused has pleaded not guilty to the charge under the original information. We
held in said case of People v. Court of Appeals:
x x x The trial Judge should have allowed the amendment x x x considering that the
amendments sought were only formal. As aptly stated by the Solicitor General in his
memorandum, there was no change in the prosecutions theory that respondent Ruiz
willfully, unlawfully and feloniously attacked, assaulted and shot with a gun Ernesto
and Rogelio Bello x x x. The amendments would not have been prejudicial to him
because his participation as principal in the crime charged with respondent Ruiz in the
original informations, could not be prejudiced by the proposed amendments.
In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After
plea, the fiscal presented an amended information wherein two other persons were
included as co-accused. There was further allegation that the accused and his co-
defendants had conspired and confederated together and mutually aided one another to
commit the offense charged.The amended information was admitted x x x
xxx xxx xxx
Otherwise stated, the amendments x x x would not have prejudiced Ruiz whose
participation as principal in the crimes charged did not change. When the incident was
investigated by the fiscals office, the respondents were Ruiz, Padilla and
Ongchenco. The fiscal did not include Padilla and Ongchenco in the two informations
because of insufficiency of evidence. It was only later when Francisco Pagcalinawan
testified at the reinvestigation that the participation of Padilla and Ongchenco surfaced
and, as a consequence, there was the need for the information of the informations x x x.
The aforegoing principle, by way of exception to the general rule, also appositely applies in
the present controversy.
Petitioner undoubtedly is charged as a principal in the killing of Ramon George Yu whom
petitioner is alleged to have stabbed while two unknown persons held the victim's arms. The
addition of the phrase, "conspiring, confederating and helping one another" does not change the
nature of petitioner's participation as principal in the killing.
Whether under the original or the amended information, petitioner would have to defend
himself as the People makes a case against him and secures for public protection the punishment
of petitioner for stabbing to death, using superior strength, a fellow citizen in whose help and
safety society as a whole is interested. Petitioner, thus, has no tenable basis to decry the
amendment in question.
Furthermore, neither may the amendment in question be struck down on the ground that
Herminia Altavas, Osmea Altavas and Renato Buhat would be placed in double jeopardy by
virtue of said amendment. In the first place, no first jeopardy can be spoken of insofar as the

335
Altavases are concerned since the first information did not precisely include them as accused
therein. In the second place, the amendment to replace the name, "John Doe" with the name of
Renato Buhat who was found by the Secretary of Justice to be one of the two persons who held
the arms of the victim while petitioner was stabbing him,[18] is only a formal amendment and one
that does not prejudice any of the accused's rights. Such amendment to insert in the information
real name of the accused involves merely a matter of form as it does not, in any way, deprive any
of the accused of a fair opportunity to present a defense; neither is the nature of the offense
charged affected or altered since the revelation of accused's real name does not change the theory
of the prosecution nor does it introduce any new and material fact.[19] In fact, it is to be expected
that the information has to be amended as the unknown participants in the crime became known
to the public prosecutor.[20]
Abuse of superior strength having
already been alleged in the
original information charging
homicide, the amendment of the
name of the crime to murder,
constitutes a mere formal
amendment permissible even
after arraignment
-----------------------------------------
--
In the case of Dimalibot v. Salcedo,[21] we ruled that the amendment of the information so as
to change the crime charged from homicide to murder, may be made even if it may result in
altering the nature of the charge so long as it can be done without prejudice to the rights of the
accused. In that case, several accused were originally charged with homicide, but before they
were arraigned, an amended information for murder was filed. Understandably raised before us
was the issue of the propriety and legality of the afore-described amendment, and we ruled, thus:
x x x it is undisputed that the herein accused were not yet arraigned before the
competent court when the complaint for homicide was amended so as to charge the
crime of murder. x x x the amendment could therefore be made even as to substance in
order that the proper charge may be made. x x x The change may also be made even if
it may result in altering the nature of the charge so long as it can be done without
prejudice to the rights of the defendant.[22]
Thus, at the outset, the main consideration should be whether or not the accused had already
made his plea under the original information, for this is the index of prejudice to, and the
violation of, the rights of the accused. The question as to whether the changing of the crime
charged from homicide to the more serious offense of murder is a substantial amendment
proscribed after the accused had pleaded not guilty to the crime of homicide was, it should be
noted, categorically answered in the affirmative by us in the case of Dionaldo v.
Dacuycuy,[23] for then we ruled:
x x x the provision which is relevant to the problem is Rule 110, Sec. 13 [now Sec. 14
under the 1985 Rules on Criminal Procedure] of the Rules of Court which stipulates:
x x x The information or complaint may be amended, in substance or form, without
leave of court, at any time before the defendants pleads; and thereafter and during the
trial as to all matters of form, by leave and at the discretion of the court, when the same
can be done without prejudice to the rights of the defendant.
xxx xxx xxx
xxx xxx xxx
To amend the information so as to change the crime charged for homicide to the more
serious offense of murder after the petitioner had pleaded not guilty to the former is
indubitably proscribed by the first paragraph of the above-quoted provision. For

336
 certainly a change from homicide to murder is not a matter of form; it is one of
substance with very serious consequences.[24]
Indeed, petitioner forcefully and strongly submits that, in the light of this ruling, we are
allegedly obliged to grant his prayer for the reversal of the assailed decision of respondent Court
of Appeals and the affirmance of the trial courts ruling that the post-arraignment amendment
sought by the People is prohibited under Section 14, Rule 110, of the 1985 Rules on Criminal
Procedure, the same being a substantial amendment prejudicial to the rights of the accused.
The cited ruling, however, differs from the case at bench because the facts herein sustain a
contrary holding. As pointed out by the Court of Appeals:

x x x the original Information, while only mentioning homicide, alleged:

Danny Buhat, John Doe and Richard Doe as the accused; [sic] of Danny Buhat stabbing the
deceased Ramon while his two other companions were holding the arms of Ramon, thus, the
information already alleged superior strength; and inflicting mortal wounds which led to the
death of Ramon.

Superior strength qualifies the offense to murder (Article 248).

xxx xxx xxx

Before us, the Information already alleged superior strength, and the additional
allegation that the deceased was stabbed by Buhat while the arms of the former
were being held by the two other accused, referring to John Doe and Richard
Doe. x x x
xxx xxx xxx
If the killing is characterized as having been committed by superior strength,
then to repeat, there is murder x x x
Also the case of Dacuycuy was mentioned, as a justification for not allowing
change of designation from homicide to murder, but then the body of the
Information in the Dacuycuy ruling did not allege averments which qualifies
[sic] the offense of murder. The case before us instead is different in that the
Information already alleges that Buhat attacked the deceased while his two other
companions held him by the arms, using superior strength. x x x We would even
express the possibility that if supported by evidence, Buhat and the Altavases
could still be penalized for murder even without changing the designation from
homicide to murder, precisely because of aforementioned allegations.The
proposed change of the word form homicide to murder, to us, is not a
substantial change that should be prohibited.[25]
In the matter of amending a criminal information, what is primarily guarded against is the
impairment of the accuseds right to intelligently know the nature of the charge against him. This
right has been guaranteed the accused under all Philippine Constitutions[26] and incorporated in
Section 1 (b), Rule 115, of the 1985 Rules on Criminal Procedure[27]
In a criminal case, due process requires that, among others, the accusation be in due form,
and that notice thereof and an opportunity to answer the charged be given the accused; [28] hence,
the constitutional and reglementary guarantees as to accuseds right to be informed of the nature
and cause of the accusation against him. An accused should be given the necessary data as to
why he is being proceeded against and not be left in the unenviable state of speculating why he is
made the object of a prosecution,[29]it being the fact that, in criminal cases, the liberty, even the
life, of the accused is at stake. It is always wise and proper that the accused be fully apprised of
the charged against him in order to avoid any possible surprise that may lead to injustice.[30]
In order to sufficiently inform the accused of the charged against him, a written accusation,
in the form of a criminal information indicting the accused and subscribed by the fiscal, must

337
first be filed in court.[31] Such information must state, among others, the name of the accused, the
designation of the offense by the statute, and the acts or omissions complained of as constituting
the offense.[32] Evidently, the important end to be accomplished is to describe the act with
sufficient certainty in order that the accused may be apprised of the nature of the charged against
him.[33] In the event, however, that the appellation of the crime charged as determined by the
public prosecutor, does not exactly correspond to the actual crime constituted by the criminal
acts described in the information to have been committed by the accused, what controls is the
description of the said criminal acts and not the technical name of the crime supplied by the
public prosecutor. As this court, through Justice Morelands authoritative disquisition, has held:
x x x Notwithstanding apparent contradiction between caption and body, x x x the
characterization of the crime by the fiscal in the caption of the information is
immaterial and purposeless x x x the facts stated in the body of the pleading must
determine the crime of which the defendant stands charged and for which he must be
tried. The establishment of this doctrine x x x is thoroughly in accord with common
sense and with the requirements of plain justice. x x x Procedure in criminal actions
should always be so framed as to insure to each criminal that retributive punishment
which ought swiftly and surely to visit him who willfully and maliciously violates the
penal laws of society. We believe that a doctrine which does not produce such a result
is illogical and unsound and works irreparable injury to the community in which it
prevails.
From a legal point of view, and in a very real sense, it is of no concern to the accused
what is the technical name of the crime of which he stands charged. It in no way aids
him in a defense on the merits. x x x That to which his attention should be directed, and
in which he, above all things else, should be most interested, are the facts alleged. The
real question is not did he commit a crime given in the law some technical and specific
name, but did he perform the acts alleged in the body of the information in the matter
therein set forth. If he did, it is of no consequence to him, either as a matter of
procedure or of substantive right, how the law denominates the crime which those acts
constitute. The designation of the crime by name in the caption of the information from
the facts alleged in the body of that pleading is a conclusion of law made by the
fiscal. x x x For his full and complete defense he need not know the name of the crime
at all. It is of no consequence whatever for the protection of his substantial rights. The
real and important question to him is, Did you perform the acts alleged in the manner
alleged? not, Did you commit a crime named murder? If he performed the acts alleged,
in the manner stated, the law determines what the name of the crime is and fixes the
penalty
therefore. It is the province of the court alone to say what the crime is or what it is nam
ed. If the accused performed the acts alleged in the manner alleged, then he ought to be
punished and punished adequately, whatever may be the name of the crime which those
acts constitute.
The plea of not guilty ought always to raise a question of fact and not of
law. The characterization of the crime is a conclusion of law on the part of the fiscal. T
he denial by the accused that he committed that specific crime so characterized raises
no real question. No issue can be raised by the assertion of a conclusion of law by one
party and a denial of such conclusion by the other. The issues raised by the pleadings in
criminal actions x x x are primarily and really issues of fact and not of law. x x x
x x x Issues are not made by asserting and denying names. They are framed by the
allegation and denial of facts. x x x To quibble about names is to lose sight of
realities. To permit an accused to stand by and watch the fiscal while he guesses as to
the name which ought to be applied to the crime of which he charges the accused, and
then take advantage [sic] of the guess if it happens to be wrong, while the acts or
omissions upon which that guess was made and which are the real and only foundation
of the charge against him are clearly and fully stated in the information, is to change the
battle ground in criminal cases from issues to guesses and from fact to fancy. It changes

338
 lawyers into dialecticians and law into metaphysics -- that fertile field of delusion
propagated by language.[34] [Underscoring ours]
In other words, the real nature of the criminal charge is determined not from the caption or
preamble of the information nor from the specification of the provision of the law alleged to have
been violated, they being conclusions of law which in no way affect the legal aspects of the
information, but from the actual recital of facts as alleged in the body of the information.[35]
Petitioner in the case at bench maintains that, having already pleaded not guilty to the crime
of homicide, the amendment of the crime charged in the information from homicide to murder is
a substantial amendment prejudicial to his right to be informed of the nature of the accusation
against him. He utterly fails to dispute, however, that the original information did allege that
petitioner stabbed his victim using superior strength. And this particular allegation qualifies a
killing to murder, regardless of how such a killing is technically designated in the information
filed by the public prosecutor.
Our ruling in the case of People v. Resayaga[36] is clearly apropos:
The appellant maintains that the information filed in this case is only for Homicide. x x
x
The contention is without merit. Reliance is placed mainly upon the designation of the
offense given to it by the fiscal. x x x In the instant case, the information specifically
alleges that the said accused conspiring, confederating together and mutually helping
one another, with intent to kill and taking advantage of superior strength, did then and
there willfully, unlawfully and feloniously attack, assault and stab with ice picks one
Paulo Balane x x x Since the killing is characterized as having been committed by
taking advantage of superior strength, a circumstance which qualifies a killing to
murder, the information sufficiently charged the commission of murder.[37]
On another aspect, we find merit in the manifestation of the Solicitor General to the effect
that the respondent Court of Appeals erroneously supposed that petitioner and Renato Buhat are
one and the same person, hence the non-inclusion of Renato Buhat as additional accused in its
order allowing the amendment of the information.[38] We also agree with the observation of the
Solicitor General that the amended information filed in this case still fails to embody the correct
identity of all of the persons found to be indictable in the Resolution of the Secretary of
Justice. Explained the Solicitor General:
In its Decision under review, the Court of Appeals erroneously supposed that Danny
Buhat and Renato Buhat are one and the same person (CA Decision, 1st par.). This,
however, is not correct because Danny Buhat and Renato Buhat are, in fact,
brothers. Moreover, it was not Osmea Altavas and his wife Herminia Altavas who held
the arms of the victim while Danny Buhat stabbed him. According to the Resolution of
the Secretary of Justice, which is requoted hereunder:
The evidence on hand clearly shows that while Osmea Altavas was
continuously hitting Ramon Yu with his fists, his wife Herminia aided him by
hitting the victim with a chair.It was also during this time that Danny Buhat and
two (2) unidentified persons appeared and joined spouses Osmea and
Herminia. One of the unidentified persons was later identified as Renato
Buhat. Renato Buhat and the other unidentified held the arms of Ramon Yu
while Danny Buhat stabbed Ramon Yu twice on the chest which resulted in his
death. The restraint on the person of Ramon Yu before he was stabbed was
described by eyewitness Susan Labrador during the continuation of the
preliminary investigation of the instant case on December 2, 1992.
The Amendment Information to be filed in this case must, therefore, reflect the above
facts set forth in the aforesaid Resolution of the Secretary of Justice - which was
the result of thepreliminary investigation (as reviewed by the Secretary of Justice)
conducted in this case. Strangely enough, however, the Amended Information (Annex
C) that was subsequently filed before the Roxas City RTC in this case by Assistant City

339
 Prosecutor Alvin D. Calvez of Roxas City does not reflect the above facts set forth in
the aforesaid Resolution of the Secretary of Justice. Said Amended Information in
effect alleges that Osmea and Herminia Altavas were the ones who held the arms of the
victim while Danny Buhat stabbed him, whereas, according to the Resolution of the
Secretary of Justice
abovecited, it was Renato Buhat and another unidentified person who held the arms of t
he victim while Danny Buhat stabbed him.According to the said Resolution of the
Secretary of Justice, the participation of Osmea Altavas in the crime was that of hitting
the victim with his fists, while x x x the participation of Herminia Altavas in the crime
was that of hitting the victim with a chair.
Verily, the statement of facts in the Information or Amended Information must conform
with the findings of fact in the preliminary investigation (in this case, as reviewed by
the Secretary of Justice) so as to make it jibe with the evidence x x x to be presented at
the trial. x x x
The decision of the Court of Appeals in this case (which merely resolved affirmatively
the legal issues of whether or not the offense charged in the Information could be
upgraded to Murder and additional accused could be included in said Information)
should not be made the basis of the Amended Information herein as the said Decision
does not constitute the preliminary investigation conducted in this case. Such Amended
Information should be based
on the findings of fact set forth in the Resolution of the Secretary of Justice, as above
quoted and requoted.[39] [Underscoring theirs]
The Solicitor General prays for at least the remanding of this case to respondent Court of
appeals for the correction of the error abovecited and for the ordering of the filing of the correct
Amended Information by the City Prosecutor of Roxas City. Considering, however, that further
delay of the trial of this case is repugnant to our inveterate desire for speedy justice and that the
full and complete disposition of this case virtually serves this end, we see it to be within our
jurisdiction and authority to order the correct amended information to be filed in this case
without the need to remand the same to respondent appellate court.
WHEREFORE, the petition is DISMISSED for lack of merit. The City Prosecutor of
Roxas City is HEREBY ORDERED to file the correct Amended Information fully in accordance
with the findings of fact set forth in the Resolution of the Secretary of Justice, dated February 3,
1994, and in disregard of the finding of the Court of Appeals in its Decision, dated March 28,
1995, in CA-G.R. SP No. 35554 to the effect that Danny Buhat and Renato Buhat are one and
the same person.
SO ORDERED.

340
 [G.R. No. 165751. April 12, 2005]

DATU GUIMID P. MATALAM, petitioner, vs. THE SECOND DIVISION OF THE

SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

RESOLUTION
CHICO-NAZARIO, J.:

Before Us is a Petition for Certiorari under Rule 65 of the 1997 Rules on Civil Procedure
assailing the resolutions[1] of the Sandiganbayan in Criminal Case No. 26381, admitting the
Amended Information[2] and denying petitioners Motion for Reconsideration,[3] dated 12 January
2004 and 03 November 2004, respectively.
An information dated 15 November 2004 was filed before the Sandiganbayan charging
petitioner Datu Guimid Matalam, Habib A. Bajunaid, Ansari M. Lawi, Muslimin Unga and
Naimah Unte with violation of Section 3(e) of Republic Act No. 3019, as amended, for their
alleged illegal and unjustifiable refusal to pay the monetary claims of Kasan I. Ayunan, Abdul E.
Zailon, Esmael A. Ebrahim, Annabelle Zailon, Pendatun Mambatawan, Hyria Mastura and
Faizal I. Hadil. The accusatory portion of the information reads:

That from the period January 1998 to June 1999, in Cotabato City, and within the jurisdiction of
this Honorable Court, the accused ARMM Vice-Governor and Regional Secretary, DAR, DATU
GUIMID MATALAM, a high ranking public official, HABIB A. BAJUNAID, ANSARI M.
LAWI, MUSLIMIN UNGA and NAIMAH UNTE, all low-ranking public officials, committing
the offense while in the performance of their official duties and taking advantage of their public
position, conspiring, confederating and mutually aiding one another, did there and then,
willfully, unlawfully and criminally, cause undue injury to several employees of the Department
of Agrarian Reform, cotabato City, thru evident bad faith in the performance of their official
duties to wit: by illegally and unjustifiably refusing to pay the monetary claims of the
complaining DAR employees namely: KASAN I. AYUNAN, ABDUL E. ZAILON, ESMAEL
A. EBRAHIM, ANNABELLE ZAILON, PENDATUN MAMBATAWAN, HYRIA MASTURA
and FAIZAL I. HADIL, for the period of January 1998 to June 1999 amounting to
P1,606,788.50 as contained in Civil Service Resolutions Nos. 982027 and 990415 in the nature
of unpaid salaries during the period when they have been illegally terminated, including salary
differentials and other benefits.[4]

On 14 August 2002, petitioner filed a Motion for Reinvestigation.

Per order of the court, a reinvestigation of the case was conducted where petitioner filed his
Counter-Affidavit.[5]
After the reinvestigation, the public prosecutor filed a Manifestation and Motion to Admit
Amended Information Deleting the Names of Other Accused Except Datu Guimid Matalam[6] to
which petitioner filed a Motion to Dismiss and Opposition to the Motion to Admit the Alleged
Amended Information Against the Accused Guimid P. Matalam.[7]Thereafter, the public
prosecutor filed his Reply[8] to which petitioner filed a Rejoinder.
The Amended Information reads:

That on December 16, 1997 and for sometime prior or subsequent thereto, in cotabato City, and
within the jurisdiction of this Honorable Court, the above named accused a public officer being
then the ARMM Vice-Governor and Regional Secretary DAR, committing the offense while in
the performance of his official duties and thru evident bad faith and manifest partiality did there
and then, willfully, unlawfully and criminally, cause undue injury by illegally dismissing from
the service complaining DAR-Maguindanao employees, cotabato City, namely: Kasan I.
Ayunan, Abdul E. Zailon, Annabelle Zailon, Pendatum Mambatawan, Hyria Mastura and Faizal
I. Hadil, to their damage and prejudice amounting to P1,606,788.50 by way of unpaid salaries
341
during the period when they have been illegally terminated including salary differentials and
other benefits.[9]

In his Motion to Dismiss, petitioner alleged that the amended information charges an
entirely new cause of action. The corpus delicti of the amended information is no longer his
alleged refusal to pay the backwages ordered by the Civil Service Commission, but the alleged
willful, unlawful and illegal dismissal from the service of the complaining witnesses. He insists
that the amended information charging a separate and entirely different offense cannot be
admitted because there would be a serious violation of due process of law. He claims he is
entitled to a preliminary investigation since he was not informed that he is being charged for the
alleged dismissal of the complaining witnesses and that he was not given the opportunity to
explain.
On 12 January 2004, the Sandiganbayan granted the Manifestation and Motion to Admit
Amended Information Deleting the Names of Other Accused Except Datu Guimid P. Matalam. It
admitted the Amended Information charging solely petitioner for Violation of Section 3(e) of
Rep. Act No. 3019. The court a quo ruled:

What seems to be more crucial here is, whether the amendments made are not prejudicial to the
rights of the accused and are considered as a matter of form only, so that, if the Amended
Information is admitted, there would be no need to require the Public Prosecutor to conduct
another preliminary investigation in the observance of the rights of the accused to due process.
On the other hand, if the amendment would be substantial, necessarily, another preliminary
investigation should be accorded to the accused. Distinction of the two is thus imperative.

...

The Amended Information charges essentially the same offense as that charged in the original
Information which is a Violation of Sec. 3(e) of R.A. 3019. Theoretically, therefore, the
amendment is a matter of form only.

Interestingly, however, the change in the recital of cause of action in the Amended Information is
very much noticeable. As correctly pointed out by accused Matalam, the corpus delicti in the
original Information was the alleged willful and confederated refusal of the accused to pay the
backwages of the complaining witnesses. The corpus delicti in the Amended Information is now
altered into the alleged illegal dismissal of the complainants from their service by accused
Matalam. Certainly, the two causes of action differ differently from each other.

Following the aforementioned principles laid down by the Supreme Court, the amendments seem
to be substantial considering that the main defense of all the accused in the original information
the lack of a corresponding appropriation for the payment of the monetary claims of the
complaining witnesses would not, in itself alone, stands [sic] as a defense for accused Matalam
in the Amended Information anymore. In the same manner, the evidence that accused Matalam
would have to present in the original Information, had it not been found to be without prima facie
evidence, will not be equally available to bail him out in the Amended Information anymore.
And further, although the nature of the offense charged has not changed, the theory of the case as
against accused Matalam is now deemed to have been changed because the cause of action now
varies and therefore, he would have to formulate another defense again.

However, after making a meticulous and independent assessment on the evidence obtaining on
record, this Court agrees with the findings and recommendation of the Public Prosecutor that the
real and exact issue in this case is actually the alleged illegal dismissal of the complaining
witnesses. The issue of non-payment of their backwages is merely incidental because had it not
been for the alleged illegal dismissal, their demand for monetary claims should have not arisen.
Put in another perspective, the surrounding circumstances that brought about the issue of the
alleged illegal dismissal were actually the ones that spewed the issue of unpaid backwages.

342
Furthermore, as correctly observed by the Public Prosecutor, the change in the recital of the
cause of action does not conceivably come as a surprise to the accused. In fact, in his counter-
affidavit submitted before the Public Prosecutor, accused Matalam already took the occasion to
elaborate his version on the surrounding circumstances that brought about the alleged illegal
dismissal of the complaining witnesses. And these chain of circumstances, actually, were the
very preceding circumstances as to why the complaining witnesses had suffered their alleged
injury. The need for another preliminary investigation is therefore not necessary.

Given the foregoing factual milieu, the rights of accused Matalam are not, after all, in any way
prejudiced because an inquiry to the allegations in the original cause of action would certainly
and necessarily elicit substantially the same facts to the inquiry of the allegations in the new
cause of action contained in the Amended Information.

To remand this case again to the Public Prosecutor would certainly be a waste of time
considering that accused, in his counter-affidavit, had already explained extensively his defense
on the new allegations contained in the Amended Information sought to be admitted. And
definitely, his projected defense would be the same assuming that another preliminary
investigation be conducted and that he would be required to submit another counter-affidavit
again.[10]

On 11 February 2004, petitioner filed a Motion for Reconsideration[11] which the

prosecution opposed.[12] On 03 November 2004, the Sandiganbayan denied the Motion.[13] It
explained:

While it is true that accused-movants defense in the original information could not by itself stand
alone as his defense to the amended one, however, the same would still be available for the latter
because although the two questioned causes of action literally varied, they are nonetheless
interrelated with each other. The essential ingredients of the amended information are actually
identical with those constituting the original, such that, the inquiry into one would elicit
substantially the same facts that an inquiry into the other would reveal. And since these two
causes of action had emanated from the same set of factual settings, the evidence that accused-
movant might have under the original information would still be available and applicable to the
amended one.

Be it noted that the private complainants lodged their complaint due to the alleged injury they
suffered as a consequence of the alleged refusal of the accused-movant to pay them of their
backwages. And notably, based on the affidavit that the accused-movant had submitted, his
defense to this was due to the lack of funds appropriated for the said purpose. But why was there
no appropriation? Because, allegedly, the private complainants were illegally dismissed from
their service and as a result thereof, their names were subsequently stricken off from the roster of
employees in the government agency where they were connected.

Culled from these factual settings, the root cause of the alleged injury suffered by the private
complainants would therefore be their alleged illegal dismissal from the service. Otherwise, their
names would not have been stricken off from the roster of employees in the agency which they
were connected with and the appropriation for the payment of their salaries would have been
continuously made.

Thus, from the foregoing, although there was a change in the recital of the cause of action (from
non-payment of backwages into illegal dismissal), the amendment of the information did not
however affect or alter the nature of the offense that was originally charged. Neither did it
change the basic theory of the prosecution since this remained to be a violation of Sec. 3(e) of
R.A. 3019 on account of the alleged injury caused to the private complainants. And even if the
prosecutions theory would now be premised on the new cause of action (illegal dismissal), this
would not however cause surprise to the accused-movant nor would require him to undergo a
material change or modification in his defense because in presenting his defense, he still has to
commence from the very same set of factual settings that preceded the original cause of action.

343
And evidently, this is the reason why in the affidavit he submitted during the reinvestigation, his
discussions therein consisted not only of his defense to the original information but also included
an extensive discussion regarding his defense to the amended one.

This being so, the outright admission of the amended information even without affording the
accused-movant a new preliminary investigation did not amount to a violation of his rights. To
afford him another process of preliminary investigation would no longer serve him and this court
any better considering that he had already explained in the said affidavit his defense to the
amended information. Otherwise, if he is allowed to submit another one, he is likely to elaborate
again the very same arguments that he had already invoked in his previous affidavit.

Hence, this petition.

Petitioner argues that the resolutions of the Sandiganbayan dated 12 January 2004 and 03
November 2004 admitting the Amended Information charging a new offense without conducting
a preliminary investigation were issued without jurisdiction and/or with grave abuse of
jurisdiction amounting to lack of jurisdiction.
From the arguments raised by petitioner, the issue boils down to whether or not petitioner
was deprived of due process of law when the Sandiganbayan admitted the Amended Information
without conducting another or new preliminary investigation. Firstly, petitioner maintains that a
new preliminary investigation should have been ordered because the corpus delicti in the
Amended Information is the termination of services of the complaining witnesses, while
the corpus delicti in the Original Information is the alleged refusal to pay the backwages of the
complaining witnesses. In other words, there being a new and distinct offense, he should be
entitled to a new preliminary investigation. Secondly, he contends he was denied due process
when the Sandiganbayan ruled that if he were allowed to submit another counter-affidavit, he is
likely to elaborate again the very same argument that he had invoked in his previous affidavit
considering that he would have pointed out certain facts not contained in his counter-affidavit.
He added that despite the finding of the Sandiganbayan that the theory of the case against him
changed because the cause of action varies, and that he would have to formulate another defense,
the Sandiganbayan did not remand the case to the public prosecutor for preliminary investigation
because it was a waste of time since he had already explained extensively in his counter-affidavit
his defense on the new allegations contained in the Amended Information. Thirdly, he asserts he
was not given the opportunity to show that he did not act with manifest partiality and evident bad
faith in the dismissal of the seven employees inasmuch as there are other factors and
circumstances that would support his posture.
In its Comment, respondent People of the Philippines, thru the Office of the Special
Prosecutor, stated that the admission of the Amended Information without another preliminary
investigation would not violate petitioners right to due process on the ground that the amendment
is merely formal, and to require another preliminary investigation would not be in obedience to,
but in disregard of, the prime purpose for which a preliminary investigation is ordained by law
and jurisprudence. It maintains that petitioner acted with evident bad faith and manifest partiality
in illegally terminating the complainants from service.
On 10 March 2005, petitioner filed his Reply.[14]
The initial question to be resolved is what kind of amendment was made in the Information?
Section 14 of Rule 110 of the Revised Rules on Criminal Procedure provides:

SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in

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

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

344
reasons in resolving the motion and copies of its order shall be furnished all parties, especially
the offended party.

Before the accused enters his plea, a formal or substantial amendment of the complaint or
information may be made without leave of court. After the entry of a plea, only a formal
amendment may be made but with leave of court and if it does not prejudice the rights of the
accused. After arraignment, a substantial amendment is proscribed except if the same is
beneficial to the accused.[15]
A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form.[16]
The following have been held to be merely formal amendments: (1) new allegations which
relate only to the range of the penalty that the court might impose in the event of conviction; (2)
an amendment which does not charge another offense different or distinct from that charged in
the original one; (3) additional allegations which do not alter the prosecutions theory of the case
so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an
amendment which does not adversely affect any substantial right of the accused;[17] (5) an
amendment that merely adds specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional precision something which is
already contained in the original information and which adds nothing essential for conviction for
the crime charged.[18]
The test as to whether a defendant is prejudiced by the amendment has been said to be
whether a defense under the information as it originally stood would be available after the
amendment is made, and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. An amendment to an information
which does not change the nature of the crime alleged therein does not affect the essence of the
offense or cause surprise or deprive the accused of an opportunity to meet the new averment had
each been held to be one of form and not of substance.[19]
In the case at bar, the amendment was indeed substantial. The recital of facts constituting the
offense charged was definitely altered. In the original information, the prohibited act allegedly
committed by petitioner was the illegal and unjustifiable refusal to pay the monetary claims of
the private complainants, while in the amended information, it is the illegal dismissal from the
service of the private complainants. However, it cannot be denied that the alleged illegal and
unjustifiable refusal to pay monetary claims is related to, and arose from, the alleged illegal
dismissal from the service of the private complainants.
According to Retired Senior Associate Justice Florenz D. Regalado, before the plea is taken,
the information may be amended in substance and/or form, without leave of court; but if
amended in substance, the accused is entitled to another preliminary investigation, unless the
amended charge is related to or is included in the original charge.[20]
Thus, the rule is: Before or after a plea, a substantial amendment in an information entitles
an accused to another preliminary investigation. However, if the amended information contains a
charge related to or is included in the original information, a new preliminary investigation is not
required.
The Sandiganbayan and the public prosecutor maintain that petitioner is not entitled to a
new preliminary investigation because the charges in the original information and amended
information are related and the latter has already presented his defense on the amended charge.
Further, remanding the case to the Public Prosecutor for another preliminary investigation would
be a waste of time considering that petitioner had already explained extensively his defense on
the new allegations contained in the Amended Information, that is, the accused already
elaborated his version on the surrounding circumstances that brought about the alleged dismissal
of the complaining witnesses. It added that the change in the recital of the cause of action will
not come as a surprise to the accused because the causes of action, though different, are
nonetheless interrelated, and that the rights of the accused will not be prejudiced since the

345
inquiry to the allegations in the original information will certainly and necessarily elicit
substantially the same facts to the inquiry of the allegations in the Amended Information.
On the other hand, petitioner insists he should be given a new preliminary investigation
because he was not, among other things, given the opportunity to show that he did not act with
manifest partiality and evident bad faith in the dismissal of the private complainants.
While it is true that the charges in the original and amended informations are related, i.e., 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,[21] this fact should not necessarily deprive an
accused to his right to a new preliminary investigation. As above-stated, the rule is that a new
preliminary investigation is needed if there is a substantial amendment. The exception, i.e.,
charge is related or included in the original information, should not be applied automatically. The
circumstances in every case must be taken into consideration before the accused is deprived of
another preliminary investigation.
The following indispensable elements must be established to constitute a violation of
Section 3(e) of Rep. Act No. 3019, as amended:
1. The accused is a public officer discharging administrative or official functions or private
persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official
duty in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and
4. His action caused undue injury to the government or any private party, or gave any party
any unwarranted benefit, advantage or preference to such parties.[22]
The third element of the offense states that the public officer acted with manifest partiality,
evident bad faith or gross inexcusable negligence in committing the prohibited act. Admittedly,
the alleged illegal dismissal contained in the amended charge gave rise to the original charge of
failure to pay the monetary claims of private complainants. It cannot be disputed that petitioner
already discussed circumstances surrounding the termination of services of the private
complainants in his counter-affidavit. However, we find nothing therein that would show that he
had already touched the issue of evident bad faith or manifest partiality. As can be gathered from
the counter-affidavit, there were arguments tending to counter the presence of evident bad faith,
manifest partiality or gross inexcusable negligence, but the same refer to the allegation of failure
to pay the monetary claims and not to the alleged illegal dismissal. Although one allegation
stemmed from the other, the court a quo and the public prosecutor cannot say the element of
evident bad faith, manifest partiality or gross inexcusable negligence is the same in both. This
being an element of the offense charged, petitioner should be given the opportunity to thoroughly
adduce evidence on the matter.
If petitioner is not to be given a new preliminary investigation for the amended charge, his
right will definitely be prejudiced because he will be denied his right to present evidence to show
or rebut evidence regarding the element of evident bad faith and manifest partiality on the
alleged dismissal. He will be denied due process.
A component part of due process in criminal justice, preliminary investigation is a statutory
and substantive right accorded to the accused before trial. To deny their claim to a preliminary
investigation would be to deprive them of the full measure of their right to due process.[23]
Our rulings in the cases of People v. Magpale[24] and Lava v. Gonzales[25] where no new
preliminary investigation was given because the charges in the amended informations were
related to, or included in, the original charges cannot apply in the case at bar. The factual milieu
in those cases is different from the case before us.
In Magpale, the accused was charged with violation of Article 176 of the Revised Penal
Code for illegal possession of iron brand, and making or ordering the making thereof. In the
notices sent to the accused in connection with the preliminary investigation of the complaint, the

346
accused was informed not of one but of both. He was given the chance, and was placed on guard,
to defend himself for both charges. Moreover, the right of the accused to have another
preliminary investigation was waived when he went forward with the trial.
In Lava, the accused was charged with Complex Rebellion but the charge was later amended
to Simple Rebellion. This court held that a new preliminary investigation was not necessary there
being no change in the nature of the crime charged, and that accused failed to ask for a
reinvestigation upon learning of the amended information.
In the case of petitioner herein, although the charge remained the same (Violation of Section
3(e), Rep. Act No. 3019, as amended), the prohibited act allegedly committed changed, that is,
failure to pay monetary claims to illegal dismissal, and he was not given the opportunity to
submit his evidence on the absence or presence of evident bad faith and manifest partiality as to
the illegal dismissal. Petitioner has not waived his right to a new preliminary investigation and,
instead, is asking for one.
It is settled that the preliminary investigation proper, i.e., the determination of whether there
is reasonable ground to believe that the accused is guilty of the offense charged and should be
subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution.[26]
Our ruling in this case does not in any way divest the public prosecutor of its duty under the
Rules. This Court is not determining if petitioner should or should not be brought to trial. What
we are looking into is whether or not petitioner was given all the opportunity to present
countervailing evidence on the amended charge. Accordingly, finding that petitioner was not
given the chance to fully present his evidence on the amended information which contained a
substantial amendment, a new preliminary investigation is in order.
As to statement of the court a quo that the conduct of another preliminary investigation
would be merely a waste of time, it must be emphasized that though the conduct thereof will
hold back the progress of the case, the same is necessary in order that the accused may be
afforded his right to a preliminary investigation. The right of the accused to a preliminary
investigation should never be compromised or sacrificed at the altar of expediency.
Finally, as to petitioners prayer that the Amended Information be quashed and dismissed, the
same cannot be ordered. The absence[27] or incompleteness[28] of a preliminary investigation does
not warrant the quashal or dismissal of the information. Neither does it affect the courts
jurisdiction over the case or impair the validity of the information or otherwise render it
defective. The court shall hold in abeyance the proceedings on such information and order the
remand of the case for preliminary investigation or completion thereof.
WHEREFORE, the petition for certiorari is hereby GRANTED. Respondent courts
resolutions dated 12 January 2004 and 03 November 2004 in Criminal Case No. 26381 are
REVERSED AND SET ASIDE. Respondent court is directed to order the Office of the
Ombudsman to forthwith conduct a preliminary investigation of the charge embodied in the
Amended Information filed against petitioner. It is further directed to suspend the proceedings in
the said case pending termination of the preliminary investigation, and thereafter to take such
action on petitioners case as may be warranted by the results of said preliminary investigation.
SO ORDERED.

347
G.R. No. L-45772 March 25, 1988

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
Hon. EDUARDO MONTENEGRO, Presiding Judge, Branch IV-B, CFI Rizal, Quezon
City; ANTONIO CIMARRA, ULPIANO VILLAR, BAYANI CATINDIG, and AVELINO
DE LEON, respondents.

PADILLA, J.:

This is a petition for certiorari with preliminary injunction and/or restraining order, to set aside
the order of the respondent court, dated 10 February 1977, denying petitioner's Motion to Admit
Amended Information and the order, dated 22 February 1977, of the same court, denying the
Motion for Reconsideration of said earlier order.

On 21 March 1977, the court issued a temporary restraining order enjoining respondent court
from proceeding to hear and decide the case until further orders from the Court.

The facts of the case are as follows:

On 20 September 1976, the City Fiscal of Quezon City, thru Assistant Fiscal Virginia G, Valdez,
filed an Information for "Roberry" before the Court of First Instance of Rizal, Branch IV-B,
Quezon City, docketed as Criminal Case No. Q-6821, against Antonio Cimarra, Ulpiano Villar,
Bayani Catindig and Avelino de Leon. Said accused (now private respondents) were all members
of the police force of Quezon City and were charged as accessories-after-the-fact in the robbery
committed by the minor Ricardo Cabaloza, who had already pleaded guilty and had been
convicted in Criminal Case No. QF-76-051 before the Juvenile and Domestic Relations Court of
Quezon City. Ricardo Cabaloza was convicted for the robbery of the same items, articles and
jewelries belonging to Ding Velayo, Inc. valued at P 75,591.40 and enumerated in the original
information 1 against herein private respondents as:

One (1) Arminius revolver, cal. 22 with six ammo SN-165928

One (1) gold men's ring 'signet'

Five (5) ID plates yellow gold

Four (4) ID plates yellow gold

Six (6) bracelets lock yellow gold

One (1) anniversary pendant yellow gold

Three (3) heart shape with assorted birthstones

One (1) lady's (ring) white gold setting

One (1) white gold ring mounting 18 karats

One (1) white gold ring mounting 18 karats

One (1) yellow gold stud

One (1) lady's white gold ring setting

348
 One (1) white gold ring mounting

One (1) pc. white gold earring mounting

Twelve (12) pcs. of semi-precious stone bands with one broken

Two (2) Ivory bracelets

One (1) Silver bracelets

One (1) yellow ring gold with blue stone

Two (2) wedding gold rings yellow

One (1) Minolta pocket size camera

One (1) pink handbag

One (1) bunch keys

Upon arraignment on 25 October 1976, all of the accused (now private respondents) entered a
plea of "not guilty" to the charge filed against them. Accordingly, trial on the merits was
scheduled by the respondent court. However, before the trial could proceed, the prosecuting
fiscal filed a Motion to Admit Amended Information, dated 28 December 1976, seeking to
amend the original information by: (1) changing the offense charged from "Robbery" to
"Robbery in an Uninhabited Place," (2) alleging conspiracy among all the accused, and (3)
deleting all items, articles and jewelries alleged to have been stolen in the original Information
and substituting them with a different set of items valued at P71,336.80 2 to wit:

Four (4) pcs. of

I.D. Plates

14 Karat P 24.00
yellow gold each

Thirteen (13)
pcs. of I.D.

Plates KYG P 26.40

each

Five (5) pcs. of

anniversary

Pendant 14 P 17.00
KYG each

Three (3) pcs.

of pendant w/

birthstones P 16.00
14 KYG each

Two (2) pcs. of

Signet plain

14 Karat P 204.00
yello gold each

349
 rings

Four (4) pcs. of

lady's bracelet,

14 KYG P 30.00
oval shape each

Four (4) pcs. of P 140.00

necklace 14 each
KYG

One (1) set of

ring & earrings

mounting w/
23 brills 14
KYG

Two (2) pcs. of

ladies I.D.

bracelet 14 P 120.00
KYG each

Nine (9) pcs. of

diamond design

earrings 14 P 32.00
KYG each

Five (5) pcs. of

Sput-nik cross

4 KYG P 99.00
each

One (1) pc. of

ladies ring

mounting 14 P 290.00
KYG

One (1) pc. of

lady's sole
diamond ring,

about .40ct
w/ yellow
gold

ring
mounting,
and one pair

of earrings
white gold
solo

diamond

350
 about .25ct
w/ black

onyx P
2,000.00

One (1) pc. P 1,500.00

lady's bracelet
14 KYG

One (1) pc.

chain 24KYG
necklace

w/ small P
diamond 1,500.00

One (1) pc. P 1,000.00

Lapiz Lazuli
ring 14 KYG

One (1) pc. P 1,000.00

Lapiz Lazuli 18
KYG

One (1) pc.

Lady's ring w/ 2
Jade stone,

white gold
w/ small

diamonds
and one pc.

lady's ring
white gold,

14 K w/ 2
small
diamonds

w/ one Jade P
2,000.00

Six (6) pcs. of P 40.00

fancy chains each
and bracelets

One (1) pair of

yellow gold
earrings w/

pearl for P 70.00

children

One (1) pc.

yellow gold ring
w/ blue

351
 sapphire for P 150.00
children

One (1) brown

envelope,
containing 2

pairs of 1/g
loop
earrings,

14 karat P 780.00

Cash money P 555.00

(inside the said
envelope)

One (1) pc. P 50.00

silver bracelet

One (1) pc. P 30.00

bronze bracelet

One (1) pc. ring P 250.00

blue stone YG

One (1) pc. P 100.00

Lapiz Lazuli
band

One (1) pc. P 30.00

Coral band

One (1) pc. ring

w/ diamond
stone,

14 KWG P 250.00
mounting

Two (2) pcs. of P 200.00

14 YG part
bracelet

Three (3) pcs. P

of men's ring 14 1,500.00
KYG

One (1) pc. P

pendant 14 2,000.00
KYG

One (1) pc.

loose diamond
about

4.50 karats P
antigo 27,000.00

One (1) pc.

352
 loose diamond
about

2.05 carats P
each antigo 20,000.00
cut

One (1) pc.

Cannon camera
w/

black case P
1,200.00

One (1) pc.

Yashika camera
w/

lens cover P
1,300.00

One (1) pc.

Cannon camera
w/

black case P
1,100.00

Private respondents opposed the admission of the Amended Information. The respondent court
resolved to deny the proposed amendments contained in the Amended Information in the
previously referred to order dated 10 February 1977. Petitioner moved for reconsideration of the
aforesaid order but the respondent court, on 22 February 1977, denied said motion; hence, this
petition.

Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure
(formerly, Section 13, Rule 110 of the old Rules on Criminal Procedure) may be made at any
time before the accused enters a plea to the charge. Thereafter and during the trial, amendments
to the information may also be allowed, as to matters of form, provided that no prejudice is
caused to the rights of the accused. The test as to when the rights of an accused are prejudiced by
the amendment of a complaint or information is when a defense under the complaint or
information, as it originally stood, would no longer be available after the amendment is made,
and when any evidence the accused might have, would be inapplicable to the complaint or
information as amended. 3

On the other hand, an amendment which merely states with additional precision something
which is already contained in the original information, and which, therefore, adds nothing
essential for conviction for the crime charged is an amendment to form that can be made at
anytime. 4

The proposed amendments in the amended information, in the instant case, are clearly substantial
and have the effect of changing the crime charged from "Robbery" punishable under Article 209
to "Robbery in an Uninhabited Place" punishable under Art. 302 of the Revised Penal Code,
thereby exposing the private respondents-accused to a higher penalty as compared to the penalty
imposable for the offense charged in the original information to which the accused had already
entered a plea of "not guilty" during their arraignment.

Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different
articles from those originally complained of, affects the essense of the imputed crime, and would

353
deprive the accused of the opportunity to meet all the allegations in the amended information, in
the preparation of their defenses to the charge filed against them. It will be observed that private
respondents were accused as accessories-after-the-fact of the minor Ricardo Cabaloza who had
already been convicted of robbery of the items listed in the original information. To charge them
now as accessories-after-the-fact for a crime different from that committed by the principal,
would be manifestly incongruous as to be allowed by the Court.

The allegation of conspiracy among all the private respondents-accused, which was not
previously included in the original information, is likewise a substantial amendment saddling the
respondents with the need of a new defense in order to meet a different situation in the trial
court. In People v. Zulueta, 5 it was held that:

Surely the preparations made by herein accused to face the original charges will
have to be radically modified to meet the new situation. For undoubtedly the
allegation of conspiracy enables the prosecution to attribute and ascribe to the
accused Zulueta all the acts, knowledge, admissions and even omissions of his co-
conspirator Angel Llanes in furtherance of the conspiracy. The amendment
thereby widens the battlefront to allow the use by the prosecution of newly
discovered weapons, to the evident discomfiture of the opposite camp. Thus it
would seem inequitable to sanction the tactical movement at this stage of the
controversy, bearing in mind that the accused is only guaranteed two-days'
preparation for trial. Needless to emphasize, as in criminal cases, the liberty, even
the life, of the accused is at stake, it is always wise and proper that he be fully
apprised of the charges, to avoid any possible surprise that may lead to injustice.
The prosecution has too many facilities to covet the added advantage of meeting
unprepared adversaries.

To allow at this stage the proposed amendment alleging conspiracy among all the accused, will
make all of the latter liable not only for their own individual transgressions or acts but also for
the acts of their co-conspirators.

WHEREFORE, the petition is DISMISSED. The orders of the respondent court, dated 10
February 1977 and 22 February 1977 are AFFIRMED. The temporary restraining order issued on
21 March 1977 is LIFTED.

This decision is immediately executory.

SO ORDERED.

354
 [G.R. Nos. 132625-31. December 18, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL SANDOVAL, accused-

appellant.

DECISION
YNARES-SANTIAGO, J.:

For ravishing his two (2) minor step-daughters, Noel Sandoval was charged in seven (7)
separate Informations with seven (7) counts of Rape, five of which were committed against
Teresa Micu, then thirteen (13) years old, and two counts of statutory rape committed against
Victoria Rhea Micu, then only eleven (11) years old as evidenced by her Birth Certificate.[1] The
Informations were filed before the Regional Trial Court of Dagupan, Pangasinan, Branch 42, and
allege as follows:

In Criminal Case No. 97-01815-D

That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant TERESA MICU y
FERNANDEZ, against her will and consent, to the damage and prejudice of the latter.

CONTRARY TO LAW.

In Criminal Case No. 97-01816-D

That on or about May 9, 1995 at barangay Casibong, municipality of San Jacinto, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant TERESA MICU y
FERNANDEZ, against her will and consent to the damage and prejudice of the latter.

CONTRARY TO LAW.

In Criminal Case No. 97-01817-D

That on or about April 24, 1995 at barangay Casibong, municipality of San Jacinto, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant TERESA MICU y
FERNANDEZ, against her will and consent, to the damage and prejudice of the latter.

CONTRARY TO LAW.

In Criminal Case No. 97-01818-D

That on or about April 18, 1995 at barangay Casibong, municipality of San Jacinto, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant TERESA MICU y
FERNANDEZ, against her will and consent to the damage and prejudice of the latter.

CONTRARY TO LAW.

355
In Criminal Case No. 97-01819-D

That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant TERESA MICU y
FERNANDEZ, against her will and consent to the damage and prejudice of the latter.

CONTRARY TO LAW.

In Criminal Case No. 97-01820-D

That sometime in April 2, 1997 in the evening thereof, at barangay Casibong, municipality of
San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being then the stepfather, by means of force, threat and
intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in
their conjugal house with VICTORIA RHEA F. MICU, who is under twelve (12) years old,
against her will and consent, to her damage and prejudice.

CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659.

In Criminal Case No. 97-01821-D

That sometime in April 5, 1997 in the evening thereof, at barangay Casibong, municipality of
San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being then the stepfather, by means of force, threat and
intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in
their conjugal house with VICTORIA RHEA F. MICU, who is under twelve (12) years old,
against her will and consent, to her damage and prejudice.

CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659.

Accused-appellant was arraigned on July 23, 1997 for the first five (5) counts of rape, wherein he
pleaded NOT GUILTY. The following day, the Public Prosecutor filed a Motion for Leave to
Amend the five (5) criminal complaints to allege the relationship of the victim and the
accused. On July 31, 1997, accused-appellant was scheduled to be arraigned for the other two (2)
counts of rape but he failed to appear because of lack of notice on the Provincial Warden. At this
point, the Public Prosecutor called the attention of the Court to the Amended Informations he
filed in the first five (5) cases, to which accused-appellant has already been arraigned and has
pleaded not guilty on July 23, 1997.Counsel for the defense objected on the ground that the
amendment would prejudice the right of accused-appellant.

The court a quo ruled that since there was no evidence yet presented, the matter of amendment
should be brought at the proper time after the prosecution has presented its evidence. Thus, the
resolution of the Motion to Amend Information in Criminal Cases Nos. 97-01815-D, 97-01816-
D, 97-01817-D, 97-01818-D and 97-01819-D was held in abeyance. Meanwhile, on August 7,
1997, accused-appellant was arraigned and pleaded NOT GUILTY to the two (2) counts of
statutory rape in Criminal Cases Nos. 97-01820-D and 97-01821-D. Thereafter, a joint trial of all
the seven (7) cases was conducted. The prosecution presented five (5) witnesses, including the
two (2) complainants while on the other hand, the defense presented three (3) witnesses
including the accused-appellant.

On January 9, 1998, the court a quo rendered its decision,[2] the dispositive portion of which
reads:

WHEREFORE, premises considered, the accused NOEL SANDOVAL is found guilty beyond
reasonable doubt of six (6) counts of the crime of rape in Criminal Cases Nos. 97-01815-D, 97-

356
01816-D, 97-01817-D, 97-01819-D, 97-01820-D and 97-01821-D and is hereby sentenced to
suffer the mandatory penalty of DEATH for each act of rape. In addition, he is ordered to pay
P50,000.00 as moral damages for each case or a total of P300,000.00. Also for each count of
rape, he is further ordered to pay P5,000.00 as exemplary damages as example for the public
good or a total of P30,000.00. He is however acquitted in Criminal Case No. 97-01818-D for
insufficiency of evidence.

SO ORDERED.

In view of the penalty imposed, the records were elevated to this Court for automatic review
pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the Rules of Court.
Accused-appellant seeks the reversal of his conviction on the following grounds:
I

The court a quo erred in convicting the accused-appellant of the crime of Rape on the person of
Teresa Micu and imposing the death penalty upon him notwithstanding the fact that, at the time
of the alleged commission, he was not yet married to the victims mother.

II

The court a quo erred in convicting the accused-appellant of the crime of Rape over Rhea Micu,
considering her lack of credibility which finds support in the medical findings of the physician
who examined her.

III

The court a quo erred in awarding damages to the complainants notwithstanding that the latter
never testified to establish the same and the only basis of such on record is the testimony of their
aunt, Perlita Fernandez, who is not their legal guardian.

After a thorough scrutiny of the records of the case at bar, this Court finds that the trial court
did not err in convicting accused-appellant of the crime of rape on the person of Teresa
Micu. During her testimony, she clearly and convincingly established before the court a quo the
facts and circumstances that transpired during the several occasions when accused-appellant
raped her.[3]
The rule has always been that in the matter of credibility of witnesses, factual findings of the
trial court should be highly respected. The trial judge is in a better position to pass judgment on
the credibility of witnesses, having had the opportunity to personally hear them, observe their
deportment and manner of testifying and detect if they were telling the truth. [4] We find no
reason to depart from this rule in this particular case. It should be remembered also that courts
usually give credence to the testimony of a girl who is a victim of sexual assault because,
ordinarily, no person would be willing to undergo the humiliation of a public trial and to testify
on the details of her ordeal were it not to condemn an injustice.[5]
However, we cannot agree with the trial courts imposition of the death penalty on accused-
appellant for the rape of Teresa Micu. The pertinent law in effect at the time of commission of
the crimes in this case, Article 335 of the Revised Penal Code, as amended by Section 11 of R.A.
7659, provides:

ART. 335. When and how rape is committed. --- Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

1. By using force or intimidation;

xxxxxxxxx

357
The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, guardian,
relative by consanguinity or affinity within the third civil degree, or the common law spouse of
the parent of the victim. x x x. (Underscoring ours)

The above-quoted provision states, inter alia, that where the victim of the crime of rape is
under eighteen (18) years of age and the offender is a common-law spouse of the parent of the
victim, the death penalty shall be imposed. This is one of the seven (7) modes enumerated in
Section 11 of R.A. No. 7659 which are considered special circumstances specifically applicable
to the crime of rape. In the subsequent cases of People v. Ilao[6] and People v. Medina,[7] it was
ruled that the seven new attendant circumstances in Section 11 of R.A. No. 7659 partake of the
nature of qualifying circumstances and not merely aggravating circumstances, since said
qualifying circumstances are punishable by the single indivisible penalty of death and not
by reclusion perpetua to death. A qualifying circumstance increases it to a higher penalty while
an aggravating circumstance affects only the period of the penalty but does not increase it to a
higher degree. Unlike a generic aggravating circumstance which may be proved even if not
alleged, a qualifying aggravating circumstance cannot be proved as such unless alleged in the
information.
A reading of the Information for the rape of Teresa Micu filed against accused-appellant
reveals that he was merely charged with the crime of simple rape. The fact that accused-appellant
is the common-law spouse of the victims parent is not alleged in the Information. What was
stated therein was only the minority of the victim. As we have emphasized, the elements of
minority of the victim and her relationship to the offender must be both alleged.[8] As such, the
special qualifying circumstance stated in Section 11 of RA 7659 was not properly pleaded in the
Information. Thus, the penalty of death prescribed in RA 7659 can not be imposed on accused-
appellant. Indeed, it would be a denial of the right of the accused to be informed of the charges
against him and, consequently, a denial of due process if he is charged with simple rape and be
convicted of its qualified form punishable with death although the attendant circumstances
qualifying the offense and resulting in the capital punishment was not alleged in the indictment
on which he was arraigned.[9]
The amendment sought by the prosecution of the five informations, in order to allege the
relationship of accused-appellant to the victim, were clearly substantial in character as they had
the effect of changing the crime charged, thereby exposing accused-appellant to a higher
penalty. Such amendment can no longer be done after accused-appellant has pleaded to the
Information for simple rape on July 23, 1997,[10] without violating his constitutional rights. Rule
110, Section 14 of the Rules of Court, provides:

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

In sum, the failure of the prosecution to allege the relationship of the accused to the victim
has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659, which
prescribes the death penalty when the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree or the common-law spouse of the parent of the victim.[11] In the recent cases
of People v. Calayca,[12] People v. Tabion[13] and People v. Acala,[14] where the prosecution
failed to allege the fact of minority of the victim in the Informations, we reduced the penalty
imposed from death to reclusion perpetua.
Anent the second assigned error, accused-appellant attempts to discredit Rhea Micu, the
second victim, by invoking the findings of the examining physician, Dr. Luisa Cayabyab, to the
effect that she could not tell whether force attended the laceration of Rheas organ and that even

358
the tip of her finger could not reach the said complainants cervix when she attempted to check
the same.[15] According to accused-appellant, this shows that the victim had never experienced
sexual intercourse.
Appellants claim is without merit.
A circumspect scrutiny of Dr. Cayabyabs testimonial declarations discloses that they were
not conclusive. As a matter of fact, the medical examination, standing alone, is not sufficient to
prove nor disprove the fact of rape. On the contrary, her testimony even tended to clarify the
apparent conflict pointed out by accused-appellant, viz:
Q Likewise one of your findings is that her vagina admits one finger, in this finding of yours,
it does not show any force or can be interpreted that there was no force of inserting
something on the vagina of the patient, is that right?
A I cannot say directly that there was no force because the vagina is so elastic like a rubber,
sir.
Q And so you can conclude that there was really no force?
A I cannot say that there was no force because as I have said the vaginal canal is so elastic,
sir.
COURT
Q There may be force or no force?
A Yes, Your Honor.
Proceed,
ATTY. TAMINAYA
Q When you stated in your findings, admits one finger, could you tell this Court that there
was no penis yet or any object that was inserted?
A As I have said, the vaginal canal is so elastic so I cannot say if there was or there was no
object that was inserted, sir.
COURT
Q Was there something introduced into the vagina or inserted inside?
A Maybe yes, maybe no, sir.
Q I think that the hymen can tell you that something was inserted into the vagina because of
the laceration?
A It is possible, sir.
Proceed.
ATTY. TAMINAYA
Q In this case, there was no showing that the hymen was lacerated?
A There was healed laceration, sir.
COURT
Q But whether or not the laceration was caused by force or no force, you could not tell?
A Yes, Your Honor.[16]
In the crime of rape, complete or full penetration of the complainants private part is not
necessary. Neither is the rupture of the hymen essential. What is fundamental is that the entrance
or at least the introduction of the male organ into the labia of the pudendum is proved. The mere
introduction of the male organ into the labia majora of the victims genitalia and not the full
penetration of the complainants private part consummates the crime.[17] More importantly, it has

359
been ruled in People v. San Juan[18] that in crimes against chastity, the medical examination of
the victim is not an indispensable element for the successful prosecution of the crime, as her
testimony alone, if credible, is sufficient to convict the accused thereof.
As found by the court a quo, Rheas testimonies were overwhelmingly straightforward,
logical and convincing as to be worthy of belief and impervious to a mere denial by accused-
appellant Noel Sandoval, to wit:
Q Sometime in the evening of April 2, 1997, do you remember where you were?
A Yes, sir.
Q Where were you?
A I was in Brgy. Casibong, San Jacinto, Pangasinan, sir.
Q Where in Brgy. Casibong were you staying?
A In the house of my step-father, sir.
Q Your step-father, you are referring to the accused in this case?
A Yes, sir.
Q While you were in the house of your step-father in the evening of April 2, 1997, where
were you in relation to that house?
A I was inside the house, sir.
Q What were you doing at that precise time?
A I was tending the small child to sleep, sir.
Q What is the name of that small child?
A John, sir.
Q While you were tending the small child by the name of John, what happened next after
that?
A While tending, I was able to sleep, sir.
Q Were you awakened?
A Yes, sir.
Q Why were you awakened, could you explain to the Honorable Court?
A I was awaken because somebody went on top of me, sir.
Q When somebody went on top of you, who was that person?
A Noel Sandoval, sir.
Q When Noel Sandoval went on top of you, what happened next after that?
A He removed my shortpant and my pantie, sir.
Q After Noel Salvador removed your shortpant and pantie, what did Noel Sandoval do, if he
did anything?
A After he removed my shortpant and my pantie, Noel Sandoval also removed his pants and
brief and thereafter, he inserted his penis into my vagina, sir.
Q After Noel Sandoval inserted his penis to your vagina, what did Noel Sandoval do, if he did
anything?
A He kissed me, sir.
Q What part of your body did Noel Sandoval kiss you?
A My neck, sir.

360
 Q What else?
A Only my neck, sir.
Q On April 5, 1997, do you remember where you were?
A I was also in the house of my step-father, sir.
Q What were you doing in that precise time of the day?
A I was already asleep then, sir.
Q Were you awakened?
A Yes, sir.
Q Why? Could you explain before the Honorable Court why you were awakened on the
evening of April 5, 1997?
A I was awakened because I felt pain, sir.
Q Why did you feel pain.
A I felt pain inside my vagina, sir.
Q Why? Can you explain before the Honorable Court why you felt pain in your vagina?
A Because my step-father inserted his penis inside my vagina, sir.
Q What part of the house of your step-father did he insert his penis?
A Inside the house, sir.[19]
It is a well-settled rule that an affirmative testimony is far stronger than a negative
testimony, especially so when it comes from the mouth of a credible witness.[20]
We agree with the trial court that the evidence for the prosecution has proved beyond
reasonable doubt that Noel Sandoval is guilty of the rape of Rhea Micu. However, as in the other
four cases, the death penalty can not be imposed on him. The prosecution failed to prove that
accused-appellant was legally married to the victims mother, in order to substantiate the
allegation in the Amended Informations in Criminal Cases Nos. 01820-D and 01821-D that the
accused-appellant is the stepfather of the victim. In People v. Brigildo,[21] a stepdaughter was
defined as the daughter of ones spouse by a previous marriage or the daughter of one of the
spouses by a previous marriage. It is the burden of the prosecution to prove with certainty the
fact that the victim was the stepdaughter of the accused-appellant to justify the imposition of the
death penalty. Corollarily, the prosecution must establish that accused-appellant is legally
married to the victims mother. In order that the qualifying circumstances under Section 11 of
R.A. 7659, which raises the penalty of rape to death, can be appreciated, the circumstances must
be both alleged and proved. Accordingly, the proper penalty for the two counts of rape against
Rhea Micu is reclusion perpetua.
Finally, we affirm the trial courts award of moral and exemplary damages to the
complainants notwithstanding that the latter never testified to establish the same.
The award of moral damages for rape is proper as it is provided in Article 2219 (3) of the
Civil Code. In accordance with prevailing jurisprudence, accused-appellant should be made to
pay P50,000.00, especially considering that the offended parties were of tender age at the time of
the crime.[22] In People v. Prades,[23] it was ruled that the award of moral damages to the victim
is proper even if there was no proof presented during the trial as basis therefor. The fact that the
complainant suffered the trauma of mental, physical and psychological sufferings which
constitute the bases for moral damages are too obvious to still require the recital thereof at the
trial by the victim, since the Court itself even assumes and acknowledges such agony on her part
as a gauge of her credibility.[24]
On the other hand, exemplary damages may also be awarded in criminal cases as part of the
civil liability if the crime was committed with one or more aggravating

361
circumstances.[25] Accused-appellant being the stepfather of the victims, relationship should be
appreciated as an aggravating circumstance under Article 15 of the Revised Penal Code.
In addition to moral and exemplary damages, civil indemnity must also be awarded to the
victims since it is mandatory upon the finding of the fact of rape.[26] The recent judicial
prescription is that the indemnification for the victim shall be in the amount of P50,000.00 for
each count of rape if the death penalty is not imposed.[27]
WHEREFORE, the decision of the Regional Trial Court of Dagupan, Pangasinan, Branch
42, is AFFIRMED with the MODIFICATION that accused-appellant Noel Sandoval is found
guilty of four (4) counts of simple rape committed against Teresa Micu and two (2) counts of
simple rape committed against Victoria Rhea Micu, and is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA for each of the six (6) counts.
Further, accused-appellant is ordered to pay P50,000.00 for each of the six (6) counts of
rape, or a total of P300,000.00, as moral damages; P10,000.00 for each of the six (6) counts of
rape, or a total of P60,000.00, as exemplary damages; and P50,000.00 for each of the six (6)
counts of rape, or a total of P300,000.00, as civil indemnity.
SO ORDERED.

362
 [G. R. No. 156747. February 23, 2005]

ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., and ALFIE

LORENZO, petitioners, vs. THE PEOPLE OF THE PHILIPPINES and JOSELITO
TRINIDAD, respondents.

DECISION
CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court of the Decision[1] dated 22 March 2002 and Resolution dated 6 January 2003 of the Court
of Appeals in CA-G.R. CR No. 22067 entitled, People of the Philippines v. Alfie Lorenzo, et al.
The factual antecedents are as follows:
In an Information dated 10 July 1997, Alfie Lorenzo, Allen Macasaet, Nicolas Quijano, Jr.,
and Roger Parajes, columnist, publisher, managing editor, and editor, respectively of the
newspaper Abante were charged before the Regional Trial Court (RTC) of Quezon City, with the
crime of libel. The information, which was raffled off to Branch 93 of said court, reads:

The undersigned accuses ALFIE LORENZO, ALLEN MACASAET, NICOLAS QUIJANO JR.,
ROGER B. PARAJES and JORDAN CASTILLO, of the crime of LIBEL, committed as follows:

That on or about the 13th day of July, 1996 in Quezon City, Philippines, the said accused ALFIE
LORENZO, columnist, ALLEN MACASAET, publisher, NICOLAS QUIJANO JR., managing
editor, ROGER B. PARAJES, editor, respectively of Abante a newspaper of general circulation
in the Philippines, and JORDAN CASTILLO, conspiring, confederating together and mutually
helping one another, with evident intent of exposing JOSELITO MAGALLANES TRINIDAD,
a.k.a. JOEY TRINIDAD a.k.a. TOTO TRINIDAD to public hatred, dishonor, discredit and
contempt and ridicule, did, then and there willfully, unlawfully and feloniously and maliciously
write, publish, exhibit and circulate and/or cause to be written, published, exhibited and
circulated in the aforesaid newspaper, in its issue of July 13, 1996 an article which reads as
follows:

Humarap sa ilang reporters si Jordan Castillo hindi para magkaroon ng writeups kundi para
ituwid lang ang ilang bagay na baluktot at binaluktot pang lalo ng isang Toto Trinidad.

Hindi namin naging barkada si Joey Trinidad. Bah, Toto na pala siya ngayon. Anong palagay
niya sa sarili niya, si Direk Toto Natividad siya? Nakikibuhat lang talaga yang taong yan sa amin
sa Liberty Ave. noon. Ni hindi nga pinapansin ni Tito Alfie yan dahil nga sa amoy-pawis siya
pagkatapos mag-barbell. Kami naka-shower na, si Joey punas lang nang punas sa katawan niya
ng T-shirt niyang siya ring isusuot niya pagkatapos na gawing pamunas!

Madalas ngang makikain sa amin yan noon. Galit na galit nga ang mayordoma naming si
Manang Hilda noon dahil nagkukulang ang rasyon namin dahil dagdag pakainin nga yang si
Joey. Tamang-tama nga lang sa amin ang kanin at ulam, pero sinusugod pa niya ang kaldero para
magkayod ng natitirang tutong sa kaldero. Naaawa nga ako madalas diyan kaya sineshare ko na
lang ang pagkain ko sa kanya.

Ewan ko kung anong naisipan ng taong yan at pagsasalitaan pa niya ng masama si Tito Alfie.
Hindi man lang siya tumanaw ng utang na loob na kahit konti at kahit na sandali ay naitawid ng
gutom niya. Hindi ko alam kung may kunsenya pa ang gangyang klaseng tao, pero sana naman
ay makunsensya ka, Pare!

Madalas nga itinatago ka na nga namin ni Tito Alfie para hindi mahighblood sa iyo, ganyan pa
ang gagawin mo. Napupuyat nga si Manang Hilda sa pagbabantay sa iyo at hindi makatulog ang
363
matanda hanggat hindi ka pa umuuwi, magsasalita ka pa ng mga inimbento mo. Pati nga si Eruel
ay madalas mabanas sa iyo, natatandaan mo pa ba, dahil sa kakulitan mo! Pilit mo kaming
binubuyo na sabihin kay Tito Alfie na tulungan ka rin tulad ng tulong na ibinibigay ni Tito Alfie
na pag-aalaga sa amin. Pero hate na hate ka nga ni Tito Alfie dahil sa masamang ugali,
natatandaan mo pa ba yun? Kaya tiyak ko na imbento mo lang ang lahat ng pinagsasabi mo para
makaganti ka kay Tito Alfie, ani Jordan sa mga nag-interbyu sa kanyang legitimate writers.

Hindi na siguro namin kailangan pang dagdagan ang mga sinabi ng sinasabi ni Toto Trinidad na
mga barkada niya at kapwa niya kuno Liberty Boys!

thereby publicly imputing a crime, vice or defect, real or imaginary or an act, omission,
condition, status or circumstance and causing in view of their publication, discredit and contempt
upon the person of said JOSELITO MAGALLANES TRINIDAD a.k.a. JOEY TRINIDAD a.k.a.
TOTO TRINIDAD, to his damage and prejudice.[2]

In an Order dated 16 July 1997, Judge Apolinario D. Bruselas, Jr., presiding judge of RTC,
Branch 93, Quezon City, set the arraignment of the petitioners on 27 August 1997.[3]
On 22 August 1997, petitioners filed before the court a quo an Urgent Motion to Suspend
Arraignment and/or Defer Proceedings dated 21 August 1997 claiming that they intended to
elevate the adverse Resolution of the Office of the City Prosecutor of Quezon City to the
Department of Justice (DOJ) for review. Despite this motion, the scheduled arraignment of
petitioners pushed through on 27 August 1997. During said proceeding, petitioners Lorenzo and
Quijano, Jr., together with their co-accused Parajes and Castillo, refused to enter any plea and so
the trial court ordered that a plea of not guilty be entered into the records on their behalf.[4] As for
petitioner Macasaet, his arraignment was rescheduled to 20 October 1997 due to his failure to
attend the previously calendared arraignment.
On 12 September 1997, petitioners filed a Motion to Dismiss the libel case on the ground
that the trial court did not have jurisdiction over the offense charged. According to petitioners, as
the information discloses that the residence of private respondent was in Marikina, the RTC of
Quezon City did not have jurisdiction over the case pursuant to Article 360 of the Revised Penal
Code, to wit:

The criminal and civil action for damages in cases of written defamations as provided for in this
chapter, shall be filed simultaneously or separately with the Court of First Instance of the
province or city where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the offense[5] (Emphasis
supplied.)

Subsequently, on 23 September 1997, the trial court received by way of registered mail,
petitioners Motion for Reconsideration and to Withdraw Plea dated 3 September
1997.[6] Petitioners argued therein that the trial court committed grave error when it denied the
petitioners Urgent Motion to Suspend Arraignment and/or Defer Proceedings and continued with
the scheduled arraignment on 27 August 1997. According to petitioners and their co-accused, by
the trial judges denial of their Urgent Motion to Defer Arraignment and/or Defer Proceedings, he
had effectively denied them their right to obtain relief from the Department of Justice. Moreover,
banking on the case of Roberts, et al. v. Court of Appeals,[7] the petitioners and their fellow
accused contended that since they had already manifested their intention to file a petition for
review of the Resolution of the city prosecutor of Quezon City before the DOJ, it was premature
for the trial court to deny their urgent motion of 21 August 1997. Finally, petitioners and their
co-accused claimed that regardless of the outcome of their petition for review before the DOJ,
the withdrawal of their not guilty pleas is in order as they planned to move for the quashal of the
information against them.
In an Order dated 26 September 1997,[8] Judge Bruselas, Jr., ruled that with the filing of the
Motion to Dismiss, the court considers the accused to have abandoned their Motion for
Reconsideration and to Withdraw Plea and sees no further need to act on the same.

364
 In his Opposition to the Motion to Dismiss dated 23 September 1997,[9] the public
prosecutor argued that the RTC, Quezon City, had jurisdiction over the case. He maintained that
during the time material to this case, private respondent (private complainant below) was a
resident of both 28-D Matino St. corner Malumanay St., Sikatuna Village, Quezon City and
Karen St., Paliparan, Sto. Nio, Marikina, Metro Manila, as shown in his Reply-Affidavit of 11
October 1996 filed during the preliminary investigation of the case.
For their part, the petitioners and their co-accused countered that it was incorrect for the
public prosecutor to refer to the affidavit purportedly executed by private respondent as it is
axiomatic that the resolution of a motion to quash is limited to a consideration of the information
as filed with the court, and no other. Further, as both the complaint-affidavit executed by private
respondent and the information filed before the court state that private respondents residence is
in Marikina City, the dismissal of the case is warranted for the rule is that jurisdiction is
determined solely by the allegations contained in the complaint or information.[10]
On 16 October 1997, petitioners and their fellow accused filed a Supplemental
Reply[11] attaching thereto certifications issued by Jimmy Ong and Pablito C.
Antonio, barangay captains of Barangay Malaya, Quezon City and Barangay Sto. Nio, Marikina
City, respectively. The pertinent portion of the barangay certification[12] issued by Barangay
Captain Ong states:

This is to certify that this office has no record on file nor with the list of registered voters of this
barangay regarding a certain person by the name of one MR. JOSELITO TRINIDAD.

This further certifies that our BSDOs (have) been looking for said person seeking information
regarding his whereabouts but to no avail.

On the other hand, the certification[13] issued by Barangay Captain Antonio, reads in part:

This is to certify that JOSELITO TRINIDAD of legal age,

single/married/separate/widow/widower, a resident of Karen Street, Sto. Nio, Marikina City is a
bonafide member of this barangay.

...

This is being issued upon request of the above-named person for IDENTIFICATION.

During the hearing on 20 October 1997, the trial court received and marked in evidence the
two barangay certifications. Also marked for evidence were page 4 of the information stating the
address of private respondent to be in Marikina City and the editorial box appearing in page 18
of Abante indicating that the tabloid maintains its editorial and business offices at Rm. 301/305,
3/F BF Condominium Bldg., Solana cor. A. Soriano Sts., Intramuros, Manila. The prosecution
was then given five (5) days within which to submit its comment to the evidence submitted by
the petitioners and their fellow accused.
In his Rejoinder to Supplemental Reply,[14] private respondent contended that the
certification issued by the barangay captain of Barangay Malaya was issued after he had already
moved out of the apartment unit he was renting in Sikatuna Village, Quezon City; that owners of
residential houses do not usually declare they rent out rooms to boarders in order to avoid
payment of local taxes; and that there is no showing that a census was conducted among the
residents of Barangay Malaya during the time he resided therein.
As regards the certification issued by the barangay chairman of Sto. Nio, Marikina City,
private respondent argued that it is of judicial notice that barangay and city records are not
regularly updated to reflect the transfer of residence of their constituents and that a perusal of
said certification reveals that the barangay captain did not personally know him (private
respondent). Finally, private respondent claimed that his receipt of the copy of petitioners Appeal
to the DOJ, which was sent to his alleged address in Sikatuna Village, Quezon City, proved that
he did, in fact, reside at said place.

365
 On 24 November 1997, the trial court rendered an Order dismissing the case due to lack of
jurisdiction.[15] The court a quo noted that although the information alleged the venue of this case
falls within the jurisdiction of Quezon City, the evidence submitted for its consideration
indicated otherwise. First, the editorial box of Abante clearly indicated that the purported
libelous article was printed and first published in the City of Manila. In addition, the trial court
relied on the following matters to support its conclusion that, indeed, jurisdiction was improperly
laid in this case: a) on page 4 of the information, the address of private respondent appeared to be
the one in Marikina City although right below it was a handwritten notation stating 131 Sct.
Lozano St., Barangay Sacred Heart, QC; b) the two barangay certifications submitted by the
petitioners; and c) the Memorandum for Preliminary Investigation and Affidavit-Complaint
attached to the information wherein the given address of private respondent was Marikina City.
On 03 December 1997, private respondent filed a motion for reconsideration[16] insisting that
at the time the alleged libelous article was published, he was actually residing in Quezon City.
According to him, he mistakenly stated that he was a resident of Marikina City at the time of
publication of the claimed defamatory article because he understood the term address to mean
the place where he originally came from. Nevertheless, the error was rectified by his
supplemental affidavit which indicated Quezon City as his actual residence at the time of
publication of the 13 July 1996 issue of Abante.
On 22 January 1998, private respondent filed a supplemental motion for reconsideration to
which he attached an affidavit executed by a certain Cristina B. Del Rosario, allegedly the owner
of the house and lot in Sikatuna Village, Quezon City, where private respondent supposedly
lived from July 1996 until May 1997. She also stated in her affidavit that she was not aware of
any inquiry conducted by the barangay officials of Barangay Malaya regarding the residency of
private respondent in their locality.
Through an Order dated 12 February 1998, the trial court denied private respondents motion
for reconsideration, ruling thus:

[Del Rosarios] affidavit appears to have been executed only on 19 January 1998 to which fact the
court can only chuckle and observe that evidently said affidavit is in the nature of a curative
evidence, the weight and sufficiency of which is highly suspect.[17]

Undaunted, the public and the private prosecutors filed a notice of appeal before the court a
quo.[18] In the Decision now assailed before us, the Court of Appeals reversed and set aside the
trial courts conclusion and ordered the remand of the case to the court a quo for further
proceedings. The dispositive portion of the appellate courts decision reads:

WHEREFORE, in view of the foregoing, the Order dated November 24, 1997 of the Regional
Trial Court, Branch 93, Quezon City, in Criminal Case No. Q-97-71903, dismissing the case
filed against herein accused-appellees on the ground of lack of jurisdiction, is
hereby REVERSED and SET ASIDE, and a new one entered remanding the case to the court a
quo for further proceedings.[19]

The Court of Appeals held that jurisprudentially, it is settled that the residence of a person
must be his personal, actual or physical habitation or his actual residence or abode and for the
purpose of determining venue, actual residence is a persons place of abode and not necessarily
his legal residence or domicile.[20] In this case, the defect appearing on the original complaint
wherein the residence of private respondent was indicated to be Marikina City was subsequently
cured by his supplemental-affidavit submitted during the preliminary investigation of the case.
Moreover, as the amendment was made during the preliminary investigation phase of this case,
the same could be done as a matter of right pursuant to the Revised Rules of Court.[21]
As for the barangay certifications issued by the barangay chairmen of Barangay Malaya
and Barangay Sto. Nio, the Court of Appeals ruled that they had no probative value ratiocinating
in the following manner:

366
. . . With respect to the requirement of residence in the place where one is to vote, residence can
mean either domicile or temporary residence (Bernas, The 1987 Constitution A Primer, 3rd Ed.,
p. 209). Therefore, one who is a resident of Quezon City can be a voter of Marikina if the latter
is his domicile. Conversely, a person domiciled in Marikina can vote in Quezon City if he resides
in the latter. It is just a matter of choice on the part of the voter. Thus, logic does not support the
supposition that one who is not a registered voter of a place is also not a resident theref.
Furthermore, the right to vote has the corollary right of not exercising it. Therefore, one need not
even be a registered voter at all. The same principle applies to the certification issued by the
barangay in Marikina.[22]

The appellate court likewise gave weight to the affidavit executed by Del Rosario and
observed that petitioners failed to controvert the same.
The petitioners thereafter filed a motion for reconsideration which was denied by the Court
of Appeals in a Resolution promulgated on 6 January 2003.[23]
Hence, this petition raising the following issues:
I

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT

THE REGIONAL TRIAL COURT OF QUEZON CITY HAS TERRITORIAL JURISDICTION
OVER THE CRIME CHARGED.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ADMITTING THE

AFFIDAVIT OF CRISTINA B. DEL ROSARIO.

III

THE COURT OF APPEALS ERRED IN SUSTAINING RESPONDENT TRINIDADS

PERSONALITY TO APPEAL A CRIMINAL CASE.[24]

Petitioners insist that the evidence presented before the trial court irrefutably established the
fact that private respondent was not a resident of Quezon City at the time the alleged libelous
publication saw print. According to them, the information dated 10 July 1997 filed before the
RTC of Quezon City indicated private respondents address to be in Karen St., Paliparan, Sto.
Nio, Marikina City. Further supporting this claim were the affidavit-complaint[25] and the
memorandum for preliminary investigation[26] where references were explicitly made to said
address. Thus, petitioners are of the view that the Court of Appeals erred in relying on the
supplemental affidavit executed by private respondent claiming that its execution amounted to
nothing more than a mere afterthought.
In addition, petitioners argue that the appellate court erred when it took into account the
affidavit executed by Del Rosario. They insist that its belated submission before the trial court
and the prosecutions failure to present the affiant to testify as regards the veracity of her
statements undermined the evidentiary value of her affidavit. More, as the affidavit was not
formally offered as evidence, it was only proper that the trial court disregarded the same in
dismissing the case.
Finally, petitioners contend that private respondent did not have the requisite personality to
appeal from the decision of the trial court as it is only the Office of the Solicitor General (OSG)
which is authorized by law to institute appeal of criminal cases. Thus, the Court of Appeals made
a mistake in holding that -

While it is true that only the OSG can file an appeal representing the government in a criminal
proceeding, the private complainant nevertheless may appeal the civil aspect of the criminal
case. The case at bar was dismissed due to the alleged improper laying of venue resulting in the

367
alleged lack of jurisdiction of the trial court and not based on the merits of the case. It cannot
therefore be argued that private complainants appeal pertains to the merits of the criminal case as
what happened in accused-appellees cited case in the motion to strike, VicentePalu-ay vs. Court
of Appeals (GR No. 112995, July 30, 1998). Needless to say, the private complainant has an
interest in the civil aspect of the dismissed criminal case which he had the right to protect. In the
interest of justice and fair play, therefore, the Brief filed by private complainant in the present
case should be treated as pertaining only to the civil aspect of the case.[27]

In his Comment/Opposition dated 25 April 2003,[28] private respondent reiterated his

position that the RTC of Quezon City had jurisdiction over this libel case. According to him, the
affidavit executed by Del Rosario, the alleged owner of the house he leased in Sikatuna Village,
Quezon City, established, beyond doubt, that he resided in said place during the time the claimed
defamatory article appeared on the pages of Abante. In addition, he draws attention to the fact
that petitioners and their co-accused furnished him a copy of the petition for review, filed before
the DOJ, at the aforementioned address in Quezon City.
Anent the affidavit of Del Rosario, private respondent maintains that the prosecution exerted
efforts to present the affiant before the trial court. Unfortunately, Del Rosario was out of town
when she was supposed to be presented and so the public and the private prosecutors decided to
submit for resolution their motion for reconsideration sans the affiants testimony. Citing the case
of Joseph Helmuth, Jr. v. People of the Philippines, et al.,[29] private respondent avers that this
Court had previously admitted the affidavits of witnesses who were not presented during the trial
phase of a case.
As regards the petitioners contention that he (private respondent) did not have the
personality to bring this case to the appellate level, private respondent contends that the proper
party to file the Notice of Appeal before the trial court is the public prosecutor as what happened
in this case.
On its part, the OSG filed its Comment dated 07 July 2003[30] wherein it prayed for the
dismissal of this petition based on the following: First, as the petition is concerned with the
determination of the residence of private respondent at the time of the publication of the alleged
libelous article, Rule 45 should be unavailing to the petitioners because this remedy only deals
with questions of law.
Second, venue was properly laid in this case as private respondents residency in Quezon
City during the time material to this case was sufficiently established. The OSG claims that the
errors appearing in the memorandum for preliminary investigation and in the affidavit complaint
with regard to private respondents residence were corrected through the supplemental affidavit
private respondent executed during the preliminary investigation before the Quezon City
prosecutors office.
Third, the OSG takes the view that the public prosecutor was the proper party to file the
notice of appeal before the trial court since its (OSGs) office is only authorized to bring or
defend actions on appeal on behalf of the People or the Republic of the Philippines once the case
is brought before this Honorable Court of the Court of Appeals.
We find merit in the petition and therefore grant the same.
Jurisdiction has been defined as the power conferred by law upon a judge or court to try a
case the cognizance of which belongs to them exclusively[31] and it constitutes the basic
foundation of judicial proceedings.[32] The term derives its origin from two Latin
words jus meaning law and the other, dicere meaning to declare.[33] The term has also been
variably explained to be the power of a court to hear and determine a cause of action presented to
it, the power of a court to adjudicate the kind of case before it, the power of a court to adjudicate
a case when the proper parties are before it, and the power of a court to make the particular
decision it is asked to render.[34]
In criminal actions, it is a fundamental rule that venue is jurisdictional. Thus, the place
where the crime was committed determines not only the venue of the action but is an essential

368
element of jurisdiction.[35] In the case of Uy v. Court of Appeals and People of the
Philippines,[36] this Court had the occasion to expound on this principle, thus:

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense
should have been committed or any one of its essential ingredients took place within the
territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where
the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by
the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly
committed outside of that limited territory. Furthermore, the jurisdiction of a court over the
criminal case is determined by the allegations in the complaint or information. And once it is so
shown, the court may validly take cognizance of the case. However, if the evidence adduced
during the trial show that the offense was committed somewhere else, the court should dismiss
the action for want of jurisdiction.[37]

The law, however, is more particular in libel cases. The possible venues for the institution of
the criminal and the civil aspects of said case are concisely outlined in Article 360 of the Revised
Penal Code, as amended by Republic Act No. 4363. It provides:

Art. 360. Persons responsible. - . . .

The criminal action and civil action for damages in cases of written defamations as provided for
in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the
province or city where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the offense: Provided,
however, That where one of the offended parties is a public officer whose office is in the City of
Manila at the time of the commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province where the libelous article is printed and
first published, and in case such public officer does not hold office in the City of Manila, the
action shall be filed in the Court of First Instance of the province or city where he held office at
the time of the commission of the offense or where the libelous article is printed and first
published and in case one of the offended parties is a private individual, the action shall be filed
in the Court of First Instance of the province or city where he actually resides at the time of the
commission of the offense or where the libelous matter is printed and first published.

In Agbayani v. Sayo,[38] we summarized the foregoing rule in the following manner:

1. Whether the offended party is a public official or a private person, the criminal action may be
filed in the Court of First Instance of the province or city where the libelous article is printed and
first published.

2. If the offended party is a private individual, the criminal action may also be filed in the Court
of First Instance of the province where he actually resided at the time of the commission of the
offense.

3. If the offended party is a public officer whose office is in Manila at the time of the
commission of the offense, the action may be filed in the Court of First Instance of Manila.

4. If the offended party is a public officer holding office outside of Manila, the action may be
filed in the Court of First Instance of the province or city where he held office at the time of the
commission of the offense.[39]

In the case at bar, private respondent was a private citizen at the time of the publication of
the alleged libelous article, hence, he could only file his libel suit in the City of Manila
where Abante was first published or in the province or city where he actually resided at the time
the purported libelous article was printed.

369
 A perusal, however, of the information involved in this case easily reveals that the
allegations contained therein are utterly insufficient to vest jurisdiction on the RTC of Quezon
City. Other than perfunctorily stating Quezon City at the beginning of the information, the
assistant city prosecutor who prepared the information did not bother to indicate whether the
jurisdiction of RTC Quezon City was invoked either because Abante was printed in that place or
private respondent was a resident of said city at the time the claimed libelous article came out.
As these matters deal with the fundamental issue of the courts jurisdiction, Article 360 of the
Revised Penal Code, as amended, mandates that either one of these statements must be alleged in
the information itself and the absence of both from the very face of the information renders the
latter fatally defective. Sadly for private respondent, the information filed before the trial court
falls way short of this requirement. The assistant city prosecutors failure to properly lay the basis
for invoking the jurisdiction of the RTC, Quezon City, effectively denied said court of the power
to take cognizance of this case.
For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to
reiterate our earlier pronouncement in the case of Agbayani, to wit:

In order to obviate controversies as to the venue of the criminal action for written defamation,
the complaint or information should contain allegations as to whether, at the time the offense was
committed, the offended party was a public officer or a private individual and where he was
actually residing at that time. Whenever possible, the place where the written defamation was
printed and first published should likewise be alleged. That allegation would be a sine qua non if
the circumstance as to where the libel was printed and first published is used as the basis of the
venue of the action.[40]

Anent private respondent and OSGs contention that the supplemental affidavit submitted
during the preliminary investigation of this libel suit cured the defect of the information, we find
the same to be without merit. It is jurisprudentially settled that jurisdiction of a court over a
criminal case is determined by the allegations of the complaint or information.[41] In resolving a
motion to dismiss based on lack of jurisdiction, the general rule is that the facts contained in the
complaint or information should be taken as they are.[42] The exception to this rule is where the
Rules of Court allow the investigation of facts alleged in a motion to quash[43] such as when the
ground invoked is the extinction of criminal liability, prescriptions, double jeopardy, or insanity
of the accused.[44] In these instances, it is incumbent upon the trial court to conduct a preliminary
trial to determine the merit of the motion to dismiss. As the present case obviously does not fall
within any of the recognized exceptions, the trial court correctly dismissed this action.
In the assailed decision, the Court of Appeals likewise put premium on the affidavit
executed by Del Rosario which was attached to private respondents supplemental motion for
reconsideration. According to the appellate court, said document supports private (respondents)
claim that indeed, he was a resident of Quezon City at the time the alleged libelous article was
published.[45] The pertinent provision of the Rules of Court, under Rule 10, Section 6 thereof,
states:

Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the date of the pleading sought to
be supplemented. The adverse party may plead thereto within ten (10) days from notice of the
order admitting the supplemental pleading.

By the very nature of a supplemental pleading, it only seeks to reinforce and augment the
allegations contained in the principal pleading. It does not serve to supplant that which it merely
supplements; rather, it ought to co-exist with the latter. Further, the admission of a supplemental
pleading is not something that parties may impose upon the court for we have consistently held
that its admittance is something which is addressed to the discretion of the court.[46]
Explicit in the aforequoted provision of the Rules of Court is the requirement that the
contents of a supplemental pleading should deal with transactions, occurrences or events which

370
took place after the date of the pleading it seeks to supplement. A reading of the supplemental
motion for reconsideration filed by private respondent discloses no additional or new matters
which transpired after he filed his original motion for reconsideration. The fact that he attached
thereto the affidavit of his alleged lessor fails to persuade us into giving to said supplemental
motion the same evidentiary value as did the Court of Appeals. For one, private respondent did
not even bother to explain the reason behind the belated submission of Del Rosarios affidavit nor
did he claim that he exerted earnest efforts to file it much earlier in the proceedings. He must,
therefore, bear the consequences of his own lethargy.
Finally, we come to the issue of whether the private prosecutor and the public prosecutor
had the personality to file the notice of appeal before the trial court. Petitioners insist that the
OSG should have been the one to file said notice in its capacity as the sole representative of the
[g]overnment in the Court of Appeals in criminal cases.[47]
Under Presidential Decree No. 478, among the specific powers and functions of the OSG
was to represent the government in the Supreme Court and the Court of Appeals in all criminal
proceedings. This provision has been carried over to the Revised Administrative Code
particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate
counsel of the People of the Philippines in all criminal cases. In such capacity, it only takes over
a criminal case after the same has reached the appellate courts.[48]
The next question should then be: when does the jurisdiction of the trial court end and that
of the Court of Appeals commence? Happily, the Revised Rules of Court is clear on this point.
Rule 41, Section 9 of the Rules states that (i)n appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration
of the time to appeal of the other parties.[49] When a party files a notice of appeal, the trial courts
jurisdiction over the case does not cease as a matter of course; its only effect is that the appeal is
deemed perfected as to him.[50] As explained by our former colleague, Justice Florenz Regalado

. . . [I]n the meantime, the trial court still retains jurisdiction over the case. However, where all
the parties have either thus perfected their appeals, by filing their notices of appeal in due time
and the period to file such notice of appeal has lapsed for those who did not do so, then the trial
court loses jurisdiction over the case as of the filing of the last notice of appeal or the expiration
of the period to do so for all the parties.[51]

Applied to the case at bar, we deem it proper that the notice of appeal was filed by the
private and the public prosecutors before the trial court. The Rules cannot be any clearer: until
the filing of the last notice of appeal and the expiration of the period to perfect an appeal by all
the parties, the lower court still has jurisdiction over the case. It is only after the occurrence of
these two incidents when the jurisdiction of the Court of Appeals begins and at which time the
OSG is supposed to take charge of the case on behalf of the government.
WHEREFORE, the petition is GRANTED. The Decision dated 22 March 2002 and
Resolution dated 6 January 2003 of the Court of Appeals are hereby REVERSED and SET
ASIDE and the 24 November 1997 Decision of the Regional Trial Court, Branch 93, Quezon
City, dismissing Criminal Case No. Q-97-71903 is hereby REINSTATED. No costs.
SO ORDERED.

371
G.R. Nos. L-74053-54 January 20, 1988

PEOPLE OF THE PHILIPPINES and SAN MIGUEL CORPORATION, petitioners,

vs.
NATHANIEL M. GROSPE, Presiding Judge, Branch 44, Regional Trial Court of
Pampanga and MANUEL PARULAN, respondents.

MELENCIO-HERRERA, J.:

A special civil action for certiorari seeking to set aside the Decision of respondent Presiding
Judge of Branch 44, Regional Trial Court of Pampanga, dismissing Criminal Case No. 2800 for
Violation of B.P. Blg. 22, and Criminal Case No. 2813 for Estafa, for being "bereft of
jurisdiction to pass judgment on the accused on the basis of the merits of these cases."

Respondent-accused, Manuel Parulan, is an authorized wholesale dealer of petitioner San Miguel

Corporation (SMC, for short) in Bulacan.

In Criminal Case No. 2800 of the Regional Trial Court of Pampanga, he was charged with
Violation of the Bouncing Checks Law (B.P. Blg. 22 for having issued a check on 13 June 1983
for P86,071.20) in favor of SMC but which was dishonored for having been drawn against
'insufficient funds and, in spite of repeated demands, for having failed and refused to make good
said check to the damage and prejudice of SMC.

In Criminal Case No. 2813 of the same Court, Respondent-accused was charged with Estafa
under Article 315, paragraph 2(d) of the Revised Penal Code for having made out a check on 18
June 1983 in the sum of P11,918.80 in favor of SMC in payment of beer he had purchased, but
which check was refused payment for "insufficient funds" and, in spite of repeated demands, for
having failed and refused to redeem said check to the damage and prejudice of SMC.

The two cases were tried jointly, the witnesses for both prosecution and defense being the same
for the two suits.

Based on the facts and the evidence, Respondent Judge arrived at the following "Findings and
Resolution:"

From the welter of evidence adduced in these two , this Court is convinced that
the two checks involved herein were issued and signed by the accused in
connection with the beer purchases made by him on various occasions at the
Guiguinto, sales office of SMC at Guiguinto, Bulacan and which checks he
handed and delivered to the sales Supervisor of SMC, Mr. Ruben Cornelio, who
holds office in that municipality. The Court finds it rather difficult to believe the
claim and testimony of the accused that these checks which he admittedly signed
and which he delivered to Mr. Cornelio in blank were filled up without his
knowledge particularly the amounts appearing therein which in the case of the
check involved in Criminal Case No. 2800 amounted to P86,071.20, and, in the
case of the check involved in Criminal Case No. 2813, amounted to Pl1,918.80.
The accused had been engaged in business for some time involving amounts that
are quite considerable, and it is hard to believe that he will agree to this kind of
arrangement which placed or exposed him to too much risks and uncertainties.

But even as this Court is convinced that the accused had issued these checks to
the representative of SMC on the occasions testified to in these cases by the
witnesses for the prosecution which two checks were subsequently dishonored
due to lack of funds resulting in damage to SMC, the offended party herein, this
Court, after considering the totality of the evidence and the circumstances that

372
 attended the issuance of these two checks until they were both dishonored by the
drawee bank, the Planters Development Bank, at Santa Maria, Bulacan, has come
to the conclusion that it is bereft of jurisdiction to pass judgment on the accused
on the basis of the merits of these cases.

which he reasoned out, thus:

Deceit and damage are the two essential elements that make up the offenses
involving dishonored checks. And in order that this Court may have jurisdiction
to try these cases, it must be established that both or any one of these elements
composing the offenses charged must occur or take place within the area over
which this Court has territorial jurisdiction. Here, however, it is clear that none of
these elements took place or occurred within the jurisdictional area of this Court.

As gleaned from the evidence, the two checks involved herein were issued by the
accused at Guiguinto, Bulacan. They were delivered and handed to Supervisor
Ruben Cornelio of San Miguel Corporation in his capacity as the representative of
the company holding office in that municipality where the transactions of the
accused with SMC took place. It was before Supervisor Cornelio at Guiguinto,
Bulacan that false assurances were made by the accused that the checks issued by
him were good and backed by sufficient funds in his bank, the Planters
Development Bank, at Santa Maria, Bulacan, only to turn out later on that this
was not so.

The other element of damage pertaining to the offenses charged in these cases
was inflicted on the offended party, the SMC, right at the moment the checks
issued by the accused were dishonored by the Planters Development Bank, the
drawee bank, at Santa Maria, Bulacan which received them from the BPI, San
Fernando, Pampanga branch for clearing purposes. The argument advanced by the
prosecution in its memorandum filed herein that the two checks were deposited by
SMC at the BPI, San Fernando, Branch, San Fernando, Pampanga, where it
maintained its accounts after receiving these checks from its Guiguinto Sales
Office which bank later on made the corresponding deductions from the account
of SMC in the amounts covered by the dishonored checks upon receiving
information that the checks so issued by the accused had been dishonored by the
drawee bank at Santa Maria, Bulacan, is inconsequential. As earlier stated, the
element of damage was inflicted on the offended party herein right at the moment
and at the place where the checks issued in its favor were dishonored which is in
Santa Maria, Bulacan.

Respondent Judge then decreed:

WHEREFORE, and in view of all the foregoing, judgment is hereby rendered

dismissing these cases for lack of jurisdiction.

The bail bond posted by the accused in these cases are ordered cancelled.

This Petition for certiorari challenges the dismissal of the two criminal cases on the ground that
they were issued with grave abuse of discretion amounting to lack of jurisdiction.

Respondent-accused adopts the contrary proposition and argues that the order of dismissal was,
in effect, an acquittal not reviewable by certiorari, and that to set the order aside after plea and
trial on the merits, would subject Respondent-accused to double jeopardy.

Upon the attendant facts and circumstances we uphold the Petition.

373
The principal ground relied upon by Respondent Judge in dismissing the criminal cases is that
deceit and damage, the two essential elements that make up the offenses involving dishonored
checks, did not occur within the territorial jurisdiction of his Court in Pampanga, but rather in
Bulacan where false assurances were given by Respondent-accused and where the checks he had
issued were dishonored. The People maintain, on the other hand, that jurisdiction is properly
vested in the Regional Trial Court of Pampanga.

At the outset, it should be pointed out, as the Solicitor General has aptly called attention to, that
there are two dishonored checks involved, each the subject of different penal laws and with
different basic elements: (1) On June 13, 1983, Respondent-accused issued Planters
Development Bank (Santa Maria, Bulacan Branch) [PDB] Check No. 19040865 in the sum of
P86,071.20 in favor of SMC, which was received by the SMC Supervisor at Guiguinto, Bulacan.
The check was forwarded to the SMC Regional Office at San Fernando, Pampanga, where it was
delivered to and received by the SMC Finance Officer, who then deposited the check with the
Bank of the Philippine Islands (BPI), San Fernando Branch, which is the SMC depository bank.
On July 8,1983, the SMC depository bank received a notice of dishonor of the said check for
"insufficiency of funds" from the PDB, the drawee bank in Santa Maria, Bulacan. This
dishonored check is the subject of the charge of Violation of the Bouncing Checks Law (BP Blg.
22) in Criminal Case No. 2800 of the lower Court (hereafter, the Bouncing Checks Case).

(2) On June 18, 1983, Respondent-accused likewise issued PDB Check No. 19040872 in the
amount of P11,918.80 in favor of SMC, which was received also by the SMC Supervisor at
Guiguinto, Bulacan, as direct payment for the spot sale of beer. That check was similarly
forwarded by the SMC Supervisor to the SMC Regional Office in San Fernando, Pampanga,
where it was delivered to the Finance Officer thereat and who, in turn deposited the check with
the SMC depository bank in San Fernando, Pampanga. On July 8,1983, the SMC depository
bank received a notice of dishonor for "insufficiency of funds" from the drawee bank, the PDB,
in Santa Maria, Bulacan. This dishonored check is the subject of the prosecution for Estafa by
postdating or issuing a bad check under Article 315, paragraph 2(d) of the Revised Penal Code in
Criminal Case No, 2813 of the lower Court (briefly, the Estafa Case).

In the crime of Estafa by postdating or issuing a bad check, deceit and damage are essential
elements of the offense (U.S. vs. Rivera, 23 Phil. 383-390) and have to be established with
satisfactory proof to warrant conviction.

For Violation of the Bouncing Checks Law, on the other hand, the elements of deceit and
damage are not essential nor required. An essential element of that offense is knowledge on the
part of the maker or drawer of the check of the insufficiency of his funds (Lozano vs. Hon.
Martinez, Nos. L-63419, etc., December 18, 1986; 146 SCRA 323; Dingle vs. IAC, G.R. No.
75243, March 16, 1987,148 SCRA 595). The Anti-Bouncing Checks Law makes the mere act of
issuing a worthless check a special offense punishable thereunder (Cruz vs. IAC, No. I,66327,
May 28,1984,129 SCRA 490. Malice and intent in issuing the worthless check are immaterial,
the offense being malum prohibitum (Que vs. People of the Philippines, et. al., G.R. Nos. 75217-
18, September 21, 1987). The gravamen of the offense is the issuance of a check, not the non-
payment of an obligation (Lozano vs. Hon. Martinez, supra).

A. With the distinction clarified, the threshold question is whether or not venue was sufficiently
conferred in the Regional Trial Court of Pampanga in the two cases.

Section 14(a) of Rule 110 of the Revised Rules of Court, which has been carried over in Section
15(a) of Rule 110 of the 1985 Rules of Criminal Procedure, specifically provides:

SEC. 14. Place where action is to be instituted

(a) In all criminal prosecutions the action shall be instituted and tried in the court
of the municipality or province wherein the offense was committed or any one of
the essential ingredients thereof took place.

374
In other words, a person charged with a transitory crime may be validly tried in any municipality
or province where the offense was in part committed. In transitory or continuing offenses in
which some acts material and essential to the crime and requisite to its consummation occur in
one province and some in another, the Court of either province has jurisdiction to try the case, it
being understood that the first Court taking cognizance of the Case will exclude the others
(Tuzon vs. Cruz. No. L-27410, August 28, 1975, 66 SCRA 235). However, if an the acts material
and essential to the crime and requisite of its consummation occurred in one municipality or
territory, the Court of that municipality or territory has the sole jurisdiction to try the case
(People vs. Yabut, L-42902, April 29, 1977, 76 SCRA 624).

Estafa by postdating or issuing a bad check, may be a transitory or continuing offense. Its basic
elements of deceit and damage may arise independently in separate places (People vs.
Yabut, supra). In this case, deceit took place in San Fernando, Pampanga, while the damage was
inflicted in Bulacan where the cheek was dishonored by the drawee bank in that place (See
People vs. Yabut, supra). Jurisdiction may, therefore, be entertained by either the Bulacan Court
or the Pampanga Court.

For while the subject check was issued in Guiguinto, Bulacan, it was not completely drawn
thereat, but in San Fernando, Pampanga, where it was uttered and delivered. "What is of decisive
importance is the delivery thereat The delivery of the instrument is the final act essential to its
consummation as an obligation" (People vs. Larue, 83 P. 2d 725, cited in People vs.
Yabut, supra). For although the check was received by the SMC Sales Supervisor at Guiguinto,
Bulacan, that was not the delivery in contemplation of law to the payee, SMC. Said supervisor
was not the person who could take the check as a holder, that is, as a payee or indorsee thereof,
with the intent to transfer title thereto. The rule is that the issuance as well as the delivery of the
check must be to a person who takes it as a holder, which means "the payee or indorsee of a bill
or note, who is in possession of it, or the bearer, thereof" (Sec. 190, Negotiable Instruments Law,
cited in People vs. Yabut, supra.) Thus, said representative had to forward the check to the SMC
Regional Office in San Fernando, Pampanga, which was delivered to the Finance Officer thereat
who, in turn, deposited it at the SMC depository bank in San Fernando, Pampanga. The element
of deceit, therefore, took place in San Fernando, Pampanga, where the rubber check was legally
issued and delivered so that jurisdiction could properly be laid upon the Court in that locality.

The estafa charged in the two informations involved in the case before Us appears
to be transitory or continuing in nature. Deceit has taken place in Malolos,
Bulacan, while the damage in Caloocan City, where the checks were dishonored
by the drawee banks there. Jurisdiction can, therefore, be entertained by either the
Malolos court or the Caloocan court. While the subject checks were written,
signed, or dated in Caloocan City, they were not completely made or drawn there,
but in Malolos, Bulacan, where they were uttered and delivered. That is the place
of business and residence of the payee. The place where the bills were written,
signed or dated does not necessarily fix or determine the place where they were
executed. What is of decisive importance is the delivery thereof. The delivery of
the instrument is the final act essential to its consummation as an obligation
(People vs. Larue, 83 P. 2d 725). An undelivered bill or note is inoperative. Until
delivery, the contract is revocable (Ogden, Negotiable Instruments, 5th ed., at
107). And the issuance as well as the delivery of the check must be to a person
who takes it as a holder, which means "(t)he payee or indorsee of a bill or note,
who is in possession of it, or the bearer thereof" (Sec. 190, Negotiable
Instruments Law). Delivery of the check signifies transfer of possession, whether
actual or constructive, from one person to another with intent to transfer title
thereto (Bailey, Brady on Bank Checks, 3rd ed. at 57-59; Sec. 190, Negotiable
Instruments Law). Thus, the penalizing clause of the provision of Art. 315, par.
2(d) states: "By postdating a check, or issuing a check in payment of an obligation
when the offender had no funds in the bank, or his funds deposited therein were
not sufficient to cover the amount of the check," Clearly, therefore, the element of
deceit thru the issuance and delivery of the worthless checks to the complainant

375
 took place in Malolos, Bulacan, conferring upon a court in that locality
jurisdiction to try the case.

In respect of the Bouncing Checks Case, the offense also appears to be continuing in nature. It is
true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No.
L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only
the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing
check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could
have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-
18, September 11, 1987 "the determinative factor (in determining venue) is the place of the
issuance of the check". However, it is likewise true that knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds, which is an essential ingredient of the
offense is by itself a continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga.

And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegations
in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, 193, cited in Tuzon
vs. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein
specifically alleges that the crime was committed in San Fernando, Pampanga, and, therefore,
within the jurisdiction of the Court below.

B. The dismissal of the subject criminal cases by Respondent Judge, predicated on his lack of
jurisdiction, is correctable by Certiorari. The error committed is one of jurisdiction and not an
error of judgment on the merits. Well-settled is the rule that questions covering jurisdictional
matters may be averred in a petition for certiorari, inclusive of matters of grave abuse of
discretion, which are equivalent to lack of jurisdiction (City of Davao vs. Dept. of Labor, No. L-
19488, January 30, 1965, 13 SCRA 111, 115). An error of jurisdiction renders whatever order of
the Trial Court nun and void.

C. The present petition for certiorari seeking to set aside the void Decision of Respondent Judge
does not place Respondent-accused in double jeopardy for the same offense. It will be recalled
that the questioned judgment was not an adjudication on the merits. It was a dismissal upon
Respondent Judge's erroneous conclusion that his Court had no "territorial jurisdiction" over the
cases. Where an order dismissing a criminal case is not a decision on the merits, it cannot bar
as res judicata a subsequent case based on the same offense (People vs. Bellosillo, No. L-18512,
December 27, 1963, 9 SCRA 835, 837).

The dismissal being null and void the proceedings before the Trial Court may not be said to have
been lawfully terminated. There is therefore, no second proceeding which would subject the
accused to double jeopardy.

Since the order of dismissal was without authority and, therefore, null and void,
the proceedings before the Municipal Court have not been lawfully terminated.
Accordingly, there is no second proceeding to speak of and no double jeopardy. A
continuation of the proceedings against the accused for serious physical injuries is
in order. (People vs. Mogol, 131 SCRA 306, 308).

In sum, Respondent Judge had jurisdiction to try and decide the subject criminal case, venue
having been properly laid.

WHEREFORE, the Decision of Respondent Judge of February 17, 1986 is hereby set aside and
he is hereby ordered to reassume jurisdiction over Criminal Cases Nos. 2800 and 2813 of his
Court and to render judgment of either conviction or acquittal in accordance with the evidence
already adduced during the joint trial of said two cases.

SO ORDERED.

376
 [G.R. No. 77368. October 5, 1993.]

THE PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. JOSE C. DE GUZMAN,

PRESIDING JUDGE OF REGIONAL TRIAL COURT OF REGIONAL TRIAL COURT
OF QUEZON CITY, BRANCH 93, AND SPOUSES DANILO A. ALCANTARA AND
ISABELITA ESGUERRA-ALCANTARA, Respondents.

The Solicitor General for Petitioner.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF ACTION; RULE IN

CASE OF VIOLATION OF ANTI-FENCING LAW (P.D. 1612). The Solicitor General
argues that since an essential element of the crime of fencing is the commission of robbery, in
this case committed in Quezon City, the information therefor filed in said City accords with the
provisions of Rule 110 of the 1985 Rules on Criminal Procedure, and the refusal of the Court a
quo to assume and exercise jurisdiction thereover constitutes a serious error of law and a grave
abuse of discretion. He theorizes that fencing is a "continuing offense." He explains that the
Anti-Fencing Law has been enacted for the purpose of imposing a heavier penalty on persons
who profit from the effects of the crime of robbery or theft, no longer merely as accessories
under Article 19, paragraph 1, of the Revised Penal Code, but as equally guilty with the
perpetrators of the robbery or theft itself. In People v. Ledesma, we said: ". . . a continuous
crime is a single crime consisting of a series of acts arising from a single criminal resolution or
intent not susceptible of division. According to Cuello Calon, when the actor, there being unity
of purpose and of right violated, commits diverse acts each of which, although of a delictual
character merely constitutes a partial execution of a single particular delict, such concurrence of
delictual acts is called a delito continuado. For it to exist there should be plurality of acts
performed separately during a period of time; unity of penal provision infringed upon or
violated; unity of criminal intent or purpose, which means that two or more violations of the
same penal provision are united in one and the same intent leading to the perpetration of the
same criminal purpose or aim.

2. ID.; VENUE; CHANGE THEREOF, WHEN AVAILABLE. We are not unaware of a

number of instances when the Court would allow a change of venue in criminal cases "whenever
the interest of justice and truth so demand, and there are serious and weighty reasons to believe
that a trial by the court that originally had jurisdiction over the case would not result in a fair and
impartial trial and lead to a miscarriage of justice." Here, however, we do not see the attendance
of such compelling circumstances, nor are we prepared to state that the lower court gravely
abused its discretion in its questioned orders.

3. CRIMINAL LAW; ROBBERY; DISTINGUISHED FROM FENCING. Robbery is the

taking of personal property belonging to another, with intent to gain, by means of violence
against or intimidation of any person, or using force upon anything. "Fencing," upon the other
hand, is the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or shall be known
to him, to have been derived from the proceeds of the crime of robbery or theft. The crimes of
robbery and fencing are clearly then two distinct offenses. The law on fencing does not require
the accused to have participated in the criminal design to commit, or to have been in any wise
involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or
theft made to depend on an act of fencing in order that it can be consummated. True, the object
property in fencing must have been previously taken by means of either robbery of theft but the
place where the robbery or theft occurs is inconsequential. It may not be suggested, for instance,
that, in the crime of bigamy which presupposes a prior subsisting marriage of an accused, the
case should thereby be triable likewise at the place where the prior marriage has been contracted.

377
 DECISION

VITUG, J.:

Is the crime of "fencing" a continuing offense that could allow the filing of an information
therefor in the place where the robbery or theft is committed and not necessarily where the
property unlawfully taken is found to have later been acquired?chanrobles.com:cralaw:red

The above query is the sole issue in this petition for certiorari and mandamus filed by the People
of the Philippines, praying for the reversal, annulment and setting aside of the Order of 28
February 1986 1 of the respondent Judge, who has ruled in the negative, as well as his Order,
dated 21 March 1986, 2 denying the motion for reconsideration. The petitioner prays that the
respondent Judge be directed to assume jurisdiction over, and to proceed with the trial of, the
criminal case.

On 09 September 1985, robbery was committed in Quezon City in the house of Jose L. Obillos,
Sr., where various pieces of precious jewelry alleged to be worth millions of pesos were taken.
An information, dated 30 September 1985, was instituted against the perpetrators in the Regional
Trial Court of Quezon City, Branch 101, docketed thereat as Criminal Case No. G.R. No. 42078.
3

Subsequently, an information, dated 22 October 1985, for violation of Presidential Decree No.
1612, otherwise known as the "Anti-Fencing Law," was also filed with the Regional Trial Court
of Quezon City, Branch 93, docketed as Criminal Case No. 42433, against herein respondent
spouses Danilo A. Alcantara and Isabelita Esguerra-Alcantara, from whose possession the
jewelries stolen where recovered in Antipolo, Rizal. 4

The trial court, acting on the motion to quash filed by the accused [now private respondents],
issued the now questioned order of 28 February 1986, viz:jgc:chanrobles.com.ph

"Before the Court is a Motion to Quash, filed by the accused thru counsel, praying that the
information filed against both accused be quashed, on the ground that the Court has no
jurisdiction to try the offense charged. Among others, the motion alleges, that as per police
investigation, the crime took place in Antipolo, Rizal. For this reason, Violation of Presidential
Decree No. 1612 is an independent crime, separate and distinct from that of Robbery. The
accused claims, likewise, that jurisdiction to try the same is with the Court within which
territorial jurisdiction, the alleged fencing took place.

The Prosecution filed an Opposition thereto, alleging among others, that there is nothing in the
law which prohibits the filing of a case of fencing in the court under whose jurisdiction the
principal offense of robbery was committed. The prosecution claims further, that the
consideration in the enactment of PD 1612 was to impose a heavier penalty on persons who
profit by the effects of the crimes of robbery or theft.

On this point, we should not lose sight of the fact, that in all criminal prosecutions, the action
shall be instituted and tried in the court of the Municipality or Province wherein the offense was
committed, or anyone of the essential ingredients thereof took place. 5

Since the alleged act of fencing took place in Antipolo, Rizal, outside the territorial jurisdiction
of this Court, and considering that all criminal prosecutions must be instituted and tried in the
Municipality or Province where the offense took place, this Court, necessarily, does not have
jurisdiction over the instant case.

378
Wherefore, the above-entitled case is hereby QUASHED, without prejudice to the filing of the
corresponding action against the accused in the Court having proper jurisdiction."cralaw
virtua1aw library

The private prosecutors motion for reconsideration was denied in the courts order of 21 March
1986.

Hence, the instant petition.

The Solicitor General argues that since an essential element of the crime of fencing is the
commission of robbery, in this case committed in Quezon City, the information therefor filed in
said City accords with the provisions of Rule 110 of the 1985 Rules on Criminal Procedure, and
the refusal of the Court a quo to assume and exercise jurisdiction thereover constitutes a serious
error of law and a grave abuse of discretion. He theorizes that fencing is a "continuing offense."
He explains that the Anti-Fencing Law has been enacted for the purpose of imposing a heavier
penalty on persons who profit from the effects of the crime of robbery or theft, no longer merely
as accessories under Article 19, paragraph 1, of the Revised Penal code, but as equally guilty
with the perpetrators of the robbery or theft itself.

In People v. Ledesma, 6 we said:jgc:chanrobles.com.ph

". . . A continuous crime is a single crime consisting of a series of acts arising from a single
criminal resolution or intent not susceptible of division. According to Cuello Calon, when the
actor, there being unity of purpose and of right violated, commits diverse acts each of which,
although of a delictual character merely constitutes a partial execution of a single particular
delict, such concurrence of delictual acts is called a delito continuado. For it to exist there
should be plurality of acts performed separately during a period of time; unity of penal provision
infringed upon or violated; unity of criminal intent or purpose, which means that two or more
violations of the same penal provision are united in one and the same intent leading to the
perpetration of the same criminal purpose or aim.cralawnad

Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything. 7 "Fencing", upon
the other hand, is the act of any person who, with intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any
other manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft. 8

The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing
does not require the accused to have participated in the criminal design to commit, or to have
been in any wise involved in the commission of, the crime of robbery or theft. Neither is the
crime of robbery or theft made to depend on an act of fencing in order that it can be
consummated. True, the object property in fencing must have been previously taken by means of
either robbery or theft but the place where the robbery or theft occurs is inconsequential. It may
not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting
marriage of an accused, the case should thereby be triable likewise at the place where the prior
marriage has been contracted. 9

We are not unaware of a number of instances 10 when the Court would allow a change of venue
in criminal cases "whenever the interest of justice and truth so demand, and there are serious and
weighty reasons to believe that a trial by the court that originally had jurisdiction over the case
would not result in a fair and impartial trial and lead to a miscarriage of justice." 11 Here,
however, we do not see the attendance of such compelling circumstances, nor are we prepared to
state that the lower court gravely abused its discretion in its questioned orders.cralawnad

WHEREFORE, the instant petition for certiorari and mandamus is DISMISSED, and the orders
appealed from are hereby AFFIRMED.

379
[G.R. No. 96428. September 2, 1999]
WILMA T. BARRAMEDA, petitioner, vs. THE COURT OF APPEALS and LOLITA
WATANABE, respondents.

DECISION
GONZAGA-REYES, J.:

This is a petition for review on certiorari of the decision rendered by the Court of
Appeals[1] in CA-G.R. No. 07512 affirming the decision of Branch 111of the Regional Trial
Court[2] of Pasay City in Criminal Case No. 85-8694-P convicting Wilma Barrameda of the
crime of estafa under article 315, par. 1(B) of the Revised Penal Code.
The information[3], filed on September 5, 1985, reads as follows:

That on or about the 27th day of November 1984 in Pasay City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused Wilma Barrameda,
having received in trust from Lolita Paguinto Watanabe the amount of US$1,400.00 and
400,000.00 yen, equivalent to P50,000.00 Philippine currency, more or less, with the express
obligation on her part to deliver the same to Papiniana Paguinto at the Manila International
Airport, did then and there willfully, unlawfully and feloniously with abuse of confidence
reposed upon her, fail to deliver the money to Papiniana Paguinto and when demands were made
upon her to account for the amount, said accused deny (sic) ever having received the same, to the
damage and prejudice of Lolita Paguinto in the amount of P50,000.00 more or less.

Accused-appellant, duly assisted by counsel, pleaded not guilty to the charge on April 21,
1986[4] and thereafter trial on the merits ensued.
The facts of the case as set out in the Peoples Brief and quoted in toto by the Court of
appeals are as follows:

Lolita Watanabe first set foot in Japan as a cultural dancer, but landed later as a caretaker of a
Japanese company (TSN, September 8, 1986, p. 35). At around 6:00 p.m. of November 26, 1984,
she, together with her brother and some Japanese friends, visited her aunt (being the wife of her
mothers brother), appellant herein, at the residence of Mr. And Mrs. Edmund Guiking at Atsuigi
Base. As appellant was leaving for the Philippines the following day, Lolita Watanabe decided to
send money to her mother in the Philippines through appellant, consisting of $1,400.00 and
400,000.00 yen which, if converted to Philippine money would amount to more or less
P50,000.00. Watanabe counted the money in appellants presence, placed it inside an envelope
and handed it to appellant. The latter likewise counted the money before putting it inside her bag
(TSN, ibid, pp. 21-22). Watanabe then bid appellant goodbye and wished her a happy trip.

When she received a long distance call that day (November 26) from her mother, Lolita
Watanabe informed the latter that she was sending money through appellant (TSN, ibid, p.
48). The call is evidenced by a receipt dated November 26, 1984 (Exhibit B-1).

On November 27, 1984, Lolita Watanabes mother, Papiniana Barrameda Paguinto, went to the
Manila International Airport to fetch appellant (her sister-in-law). They embraced upon seeing
each other. Then appellant said Ate, it is unfortunate. There is money sent to you by your
daughter from Japan but unfortunately I misplaced it. It could have been in the baggages (TSN,
June 25, 1986, p. 9). Appellant was trembling and feeling cold when she told her sister-in-law
(Papiniana Paguinto) Ate, let us look for it in the baggage (TSN, ibid, p. 10). Per appellants
suggestion, they proceeded to the house of Papiniana Paguintos brother at Cabrera, Pasay City
(ibid, p. 10) where they would open the baggage and look for the money. But since there were
many people there, it being a beer-house, appellant suggested that her baggage be opened at her
own home in Pacita Complex, San Pedro, Laguna. Papiniana Paguinto placed a long distance call
to Japan to inform her daughter that she had not yet received the money from appellant because

380
the same cannot be found. Lolita Watanabe also talked with appellant and she was informed by
the latter that she (appellant) was still looking for the money among her baggage (TSN,
September 8, 1986, pp. 32-24).

Appellant proceeded to her house at Pacita Complex, San Pedro, Laguna. But Papiniana
Paguinto did not go anymore with appellant since the latter assured her that she would deliver the
money the following morning (Ibid, p. 13). Besides, San Pedro is quite far and she was afraid
that on her way home, something might happen, considering that she would then be carrying a
substantial sum of money.

When appellant failed to deliver the money the following day, Papiniana Paguinto, together with
her husband, went to appellants home at Pacita Complex. There she was informed by appellant
that the money has not yet been found. Appellant assured Paguinto that she would continue
looking for it. However, despite repeated demands, appellant never gave the money to Papiniana
Paguinto (Ibid, p. 15).

For her part, accused-petitioner denied ever having received the amount of US$1,400.00 and
400,000.00 yen from private complainant Lolita Watanabe intended for her mother. Instead, she
alleged in substance that before she left for Japan for the Philippines on November 27, 1984,
private complainant visited her and requested her to bring two boxes of assorted goods for her
parents. Accused-petitioner brought the two boxes to the airport but she was not able to bring
them to the Philippines as these were excess baggage and private complainant did not give her
money for their freight charges. Instead, she called the Guiking couple, where private
complainant was staying, and requested them to inform the latter that the two boxes were left at
the airport.As to the motive behind the filing of the case against her, accused-petitioner opined
that her husband, from whom she has separated, must have connived with his sister Papiniana
Paguinto and Lolita Watanabe in filing the case against her to prevent her from leaving the
Philippines for Japan.
On 25 May 1989, the trial court rendered the questioned decision, the dispositive portion of
which states as follows:

WHEREFORE, the court finds the accused WILMA BARRAMEDA, guilty beyond reasonable
doubt, as principal, of the crime of estafa as charged in the information. Extending in her favor
the benefits of the Indeterminate Sentence Law, the court hereby sentences the accused to
imprisonment for an indeterminate period ranging from TWO (2) YEARS, FOUR (4) MONTHS
and ONE (1) DAY of prision correccional, as minimum, to TEN (10) YEARS of prision mayor,
as maximum, to indemnify the offended party LOLITA PAGUINTO WATANABE, in the sum
of P50,000.00 representing the amount embezzled, and to pay the costs.

SO ORDERED.

This decision was appealed to the Court of Appeals on July 13, 1989 wherein accused-
appellant raised the following assignment of errors:
I.

THE LOWER COURT ERRED IN TAKING COGNIZANCE OF THE CASE FOR LACK OF
JURISDICTION.

II.

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE UNCORROBORATED

TESTIMONY OF PRIVATE COMPLAINAT-LOLITA PAGUINTO WATANABE
REGARDING THE ALLEGED ACTUAL TURN-OVER OF FOURTEEN (14) PIECES OF
ONE HUNDRED US DOLLARS (US$ 1,400.00) AND FORTY (40) PIECES OF JAPANESE
YEN AT TEN THOUSAND DENOMINATION EACH FOR A TOTAL OF FIFTY

381
THOUSAND PESOS (P50,000.00) PHILIPPINE CURRENCY BY THE FORMER TO THE
ACCUSED-APPELLANT TO BE GIVEN TO PAPINIANA PAGUINTO.

III.

THE LOWER COURT ERRED IN APPRECIATING THE CONTENTS AND VERACITY OF

THE LETTER DATED NOVEMBER 15, 1984 ALLEGEDLY SENT BY PRIVATE
COMPLAINANT LOLITA PAGUINTO WATANABE (EXH. A) BASED ON THE BIASED
TESTIMONIES OF: (1) COMPLAINANT LOLITA PAGUINTO WATANABE; AND (2) HER
MOTHER PAPINIANA PAGUINTO.

IV.

THE LOWER COURT GRAVELY ABUSED ITS DISCRETION IN ADMITTING THE

TELEPHONE RECEIPTS (EXHS. B, B-1, B-2); AND FURTHER ABUSED ITS
DISCRETION IN GIVING WEIGHT TO THE SAID EXHIBITS.

V.

THE LOWER COURT ERRED IN GIVING CREDENCE TO THE BIASED AND

UNCORROBORATED TESTIMONIES OF THE FOLLOWING PROSECTION WITNESSES,
NAMELY:

(1) PAPINIANA PAGUINTO, THE MOTHER OF COMPLAINANT LOLITA

PAGUINTO WATANABE; and
(2) RUBEN BARRAMEDA, THE UNCLE OF PRIVATE COMPLAINANT LOLITA
PAGUINTO WATANABE.
VI.

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT ON THE

GROUND THAT THE PROSECUTION HAS NOT PROVED HER GUILT BEYOND
REASONABLE DOUBT.

On 15 August 1990, the Court of Appeals promulgated its decision affirming in toto the
decision rendered by the Regional Trial Court.[5] On 6 September 1990, accused-appellant,
through counsel, filed a Motion for Reconsideration of the Court of Appeals decision which was
however denied in a Resolution dated November 28, 1990.[6]
Hence, the present petition for review on certiorari wherein accused-appellant claims that
the Court of Appeals gravely abused its discretion when it affirmed in toto the decision of the
regional trial court knowing fully well that the said decision is contrary to law and
jurisprudence[7]. In support, accused-petitioner reiterates the assignment of errors she raised
during the proceedings in the appellate court.
We find for the respondents.
In her petition, accused-petitioner first questions the jurisdiction of the Regional Trial Court
of Pasay City in taking cognizance of the case. Accused-petitioner alleges that not a single
element of the crime occurred within the territorial jurisdiction of the Regional Trial Court of
Pasay City. As such, the complaint should have been filed in Japan, where the money was
allegedly turned-over to accused-petitioner, or in San Pedro, Laguna, where Papiniana Paguinto
allegedly demanded the delivery of the money. Accused-appellant argues further that the crime
of estafa did not even reach its incipient stage because no demand was ever made by the
offended party.
The contentions of accused-petitioner are misplaced.

382
 Accused-petitioner was charged with the crime of estafa through misappropriation or
conversion as defined in and penalized under paragraph 1(b) of the Revised Penal Code [8]. The
elements of the said crime are: (1) that money, goods or other personal property is received by
the offender in trust, or on commission of for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2) that there be misappropriation
or conversion of such money or property by the offender or denial on his part of such receipt; (3)
that such misappropriation or conversion or denial is to the prejudice of another; and (4) that
there is a demand made by the offended party on the offender[9]
In all criminal prosecutions, the action shall be instituted and tried in the court of the
municipality or territory wherein the offense was committed or where any one of the essential
ingredients thereof took place[10]. In the case at bench, if one of these elements is proven to have
occurred within the territorial jurisdiction of the Regional Trial Court of Pasay, then the said
court made a valid exercise of its jurisdiction.
On this point, respondent Court of Appeals correctly ruled that a demand was made by the
mother of the private complainant at the Ninoy Aquino International Airport (NAIA), which is
within the territorial jurisdiction of the Regional Trial Court of Pasay City. Thus:

the records show that Papiniana Paguinto was at the Manila International Airport at the date and
time when appellant arrived from Japan upon being informed by the arrival of the latter by Mrs.
Watanabe by overseas call with the purpose of collecting from the appellant the money sent by
Mrs. Watanabe, her daughter. The appellant, however, immediately informed Mrs. Paguinto that
the money was allegedly misplaced and that she will look for it among her baggage at Cabrera,
Pasay City.

We believe that the presence of Mrs. Paguinto at the airport was for no other purpose but to
demand the money which was entrusted to her by Mrs. Watanabe. Logically, it follows that since
the international airport is within the territorial jurisdiction of the trial court, then jurisdiction
over the case vests in the trial court.[11]

It must be noted that the specific word demand need not be used to show that demand had
indeed been made upon the person charged of the offense. A query as to the whereabouts of the
money, such as the one proven in the case at bench, is tantamount to a demand[12]
Thus, the trial court validly exercised its jurisdiction over the crime charged against
accused-petitioner inasmuch as one of the elements of estafa, that of demand, occurred within its
territorial jurisdiction.
Accused-petitioner next alleges that the Court of Appeals and the trial court erred in
convicting accused-appellant on the ground that the prosecution was not able to prove her guilt
beyond reasonable doubt[13]. In support, accused-petitioner faults the trial court in appreciating
and giving credence to the evidence, both oral and documentary, presented by the prosecution.
On the issue of credibility of witnesses, it is axiomatic that appellate courts will usually not
disturb the findings of the trial court, the latter being in a better position to decide the question,
having heard the witnesses and observed their deportment and manner of testifying during the
trial, unless certain facts of substance and value had been overlooked which, if considered, might
affect the result of the case[14]
On this point, we find no error in the conclusion of the trial court that accused-petitioner
indeed received the amount of US$1,400.00 and 400,000 yen from the private complainant for
delivery to the latters mother, Papiniana Paguinto. In arriving at this conclusion, the trial court
took into account the testimony of private complainant herself who positively declared that the
amount was actually given to and received by accused-petitioner. Thus:
Q: And were you able to send money thru Wilma Barrameda, Madam Witness?
A: Yes, sir.

383
 Q: And to whom were you sending this money when you sent some money thru Wilma
Barrameda?
A: To my mother, sir.
Q: Would you kindly tell the Honorable Court how much money did you give to Wilma
Barrameda to be given to your mother in the Philippines, Madam Witness?
A: One thousand four hundred U.S. dollars ($1,400) four hundred thousand (400,000) yen, sir.
XXX
Q: And were you able to give this amount to the accused Wilma Barrameda?
A: Yes, sir.
Q: Will you kindly tell the Honorable Court in what manner did you give this money to the
accused Wilma Barrameda?
A: I first counted the money and then I inserted in an envelope with a letter inside the
envelope, sir.
Q: Now, after having counted the money and after having inserted a letter in the envelope
together with the money, what happened, if any?
A: She again counted the money and she put it inside her bag, sir.[15]
This claim of private complainant was strongly corroborated by the testimonies of Papiniana
Paguinto, the mother of private complainant, who testified that she met accused-petitioner at the
Manila International Airport on November 27, 1984 in order to get the money sent by her
daughter. When the witness got to the airport, accused-petitioner embraced her and told her that
private complainant sent her some money but that she had misplaced it[16] Accused-appellant
then told her that the money might be in her baggage and so they proceeded to the house of
Ruben Barrameda, private complainants uncle, to search for the money. They were able to go to
the house of Ruben Barrameda but they decided against opening the luggage as a lot of people
were present, the place being a beerhouse[17]. From the residence of Ruben Cabrera, accused-
petitioner proceeded to her house in San Pedro Laguna. The witness did not anymore go with her
as it was getting late. Nevertheless, accused-petitioner promised her that she would bring the
money the following day. When accused-petitioner failed to bring the money, the witness and
her husband proceeded to accused-petitioners residence to demand for the money. However, they
were informed by accused-petitioner that she still had not found the money entrusted to her[18]
Ruben Barrameda, likewise testified and he corroborated the version of the events of the
prosecution. He testified that on November 26, 1984, her niece, the private complainant, called
him up from Japan and requested that he fetch her mother, witness Papiniana Paguinto [19]. Upon
fetching Paguinto from her house, they immediately called up private complainant in Japan. He
was beside Paguinto during the whole telephone conversation and he overheard that private
complainant was sending money to Paguinto[20] After the phone conversation, Papiniana
Paguinto also told him that the money would be sent through accused-appellant Wilma
Barrameda who would be arriving the following day[21] The following day, on November 27,
1984, accused-appellant and Papiniana Paguinto went to his house in order to call private
complainant. Paguinto was able to talk with private complainant who told her that she wanted to
speak with accused-appellant[22] He then overheard accused-appellant tell private complainant
not to worry as the money might have been misplaced in her luggage[23]
The receipt of the misappropriated amount was further evidenced by a letter dated
November 15, 1984[24] sent by private complainant to her mother through a certain Nancy. In this
letter, private complainant enclosed US$400.00 and informed her mother that she will be sending
the equivalent of P50,000.00 through accused-petitioner. Likewise, the telephone calls made at
Ruben Barramedas house regarding the receipt of the misappropriated amounts were supported
by telephone bill receipts[25]
In contrast, the trial court noted that the version of the defense as to what transpired, as
shown in the testimony of accused-appellant, smacks of inconsistencies which render the

384
uncorroborated testimony of the accused unworthy of belief.[26] As previously stated, the findings
of the trial court regarding the issue of the credibility of witnesses and their testimonies,
particularly when affirmed by the Court of Appeals, are entitled to great respect and are accorded
the highest consideration by the Supreme Court[27]. Furthermore, accused-petitioners defense is a
mere denial which is a feeble defense which cannot stand against the positive testimony of
eyewitnesses and by the evidence on record.[28]
Accused-petitioner likewise takes exception to the admission by the trial court of the
November 15, 1984 letter and the telephone bill receipts. In objecting to the admissibility of the
November 15, 1984 letter, accused-petitioner argues that the letter was not properly identified by
the person (Nancy) thru whom the letter was sent[29]. On the other hand, the telephone bill
receipts were objected to for being written in a foreign language (Japanese) with no
accompanying translation.
Again, accused-petitioners arguments are not convincing.
A perusal of the records show that the November 15, 1984 letter was properly identified by
private complainant, Lolita Watanabe, who wrote the letter[30] and by Papiniana Paguinto, who
received the same[31] The testimony of Nancy, through whom the letter was allegedly sent, was
not necessary for its proper identification as her testimony would be merely corroborative.
As for the telephone bill receipts, a perusal of the aforementioned documents clearly shows
that the Japanese entries appearing therein have English or numerical entries which show the
date, type, destination/origin, etc. From these receipts, it is evident that calls were made on
November 26 and 27 to the Philippines and the party called was a certain Paguinto,[32] as stated
by Ruben Barrameda in his testimony.
It must be noted, however, that these receipts were merely presented in connection with the
telephone conversations between private complainant in Japan and her mother in the Philippines
wherein the fact that money was sent thru accused-appellant was shown. As such, these receipts
were simply supporting evidence which show that these telephone conversations were
made.Hence, even if they were excluded, the fact that accused-petitioner failed to deliver the
amount in her custody to Papiniana Paguinto is amply supported by other evidence on record.
In sum, the prosecution has conclusively shown that accused-petitioner received money
equivalent to P50,000.00 from private complainant Lolita Paguinto Watanabe, in trust and under
the obligation to deliver the same to her mother, Papiniana Paguinto. The accused denied having
received the said amount, which denial has been proven to be false. The denial made by accused-
petitioner was to the prejudice of the private-complainant and her mother. Finally, demand was
made for the return of the money from accused-petitioner which she failed to do.
Under these circumstances, accused-petitioner is clearly guilty of the crime of estafa through
misappropriation or conversion as penalized under Article 315, paragraph 1(B) of the Revised
Penal Code which states as follows:

Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

XXX
1. With unfaithfulness or abuse of confidence, namely:
XXX

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property;

XXX

385
 The Court notes, however, that the penalty imposed by the trial court is
erroneous. Considering that the total amount of the fraud committed is P50,000.00, the
applicable penalty is that provided in the 1st paragraph of Article 315 which states as follows:

1ST. The penalty of prision correcional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if
such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be;

Under the Indeterminate Sentence Law[33], if the offense is punished by the Revised Penal
Code, such as estafa, the court shall sentence the accused to an indeterminate penalty, the
maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the Revised Penal Code, and the minimum term of which
shall be within the range of the penalty next lower to that prescribed by the Code for the
offense.[34]
Applying the foregoing rules, the trial court correctly imposed ten (10) years of prision
mayor as the maximum of the indeterminate sentence. However, the minimum of the
indeterminate sentence should be within the range of the penalty one degree lower than that
prescribed by the Revised Penal Code which is prision correccional minimum. Considering that
there are no aggravating circumstances, the minimum of accused-petitioners indeterminate
sentence should properly be two (2) years and four (4) months of prision correccional.
WHEREFORE, premises considered, the petition is DENIED and the decisions of the trial
court and Court of Appeals are hereby AFFIRMED with the modification that the petitioner is
sentenced to an indeterminate penalty of two (2) years and four (4) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum. Accused-petitioner
is likewise ordered to indemnify the offended party in the sum of P50,000.00 representing the
amount embezzled, and to pay the costs.
SO ORDERED.

386
 [G.R. No. 116688. August 30, 1996]

WENEFREDO CALME, petitioner, vs. COURT OF APPEALS, former 10th Division with
HON. ANTONIO M. MARTINEZ as Chairman and HON. CANCIO C. GARCIA
and HON. RAMON MABUTAS, as members, respondents.

DECISION
KAPUNAN, J.:

Petitioner Wenefredo Calme appeals from the decision of the Court of Appeals in CA-G.R.
SP No. 28883 dated 10 December 1993 and its resolution dated 14 July 1994 upholding the
jurisdiction of the Regional Trial Court, Branch 12, Oroquieta City over the information for
murder filed against him (Calme).
Petitioner and four other persons were accused of killing Edgardo Bernal by allegedly
throwing him overboard the M/V Cebu City, an interisland passenger ship owned and operated
by William Lines, Inc., while the vessel was sailing from Ozamis City to Cebu City on the night
of 12 May 1991. Petitioner impugned the Oroquieta RTCs jurisdiction over the offense charged
through a motion to quash which, however, was denied by Judge Celso Conol of RTC, Branch
12, Oroquieta City. Petitioner Calmes petition for certiorari and prohibition was denied due
course and dismissed by the Court of Appeals in its decision dated 10 December
1993. Petitioners motion for reconsideration of said decision was denied in the Court of Appealss
resolution of 14 July 1994. Hence, the present appeal wherein the only issue for resolution is
whether or not the Oroquieta court has jurisdiction over the offense charged against petitioner.
Petitioner asserts that, although the alleged crime took place while the vessel was in transit,
the general rule laid down in par. (a) of Sec. 15 (now Section 14), Rule 110 of the Revised Rules
of Court is the applicable provision in determining the proper venue and jurisdiction and not Sec.
15(c) (now Section 14) thereof since the exact location where the alleged crime occured was
known.[1]
Petitioner thus claims that the proper venue is Siquijor because, according to the Marine
Protest filed by the vessels captain, Elmer Magallanes, the ship was 8.0 miles off Minalonan
Point, Siquijor Island, when he (Capt. Magallanes) received the report that a passenger jumped
overboard.[2]
Petitioners contention is unmeritorious. The exact location where the alleged offense was
committed was not duly established. The Marine protest simply adverted that the vessel was
within the waters of Siquijor Island when the captain was informed[3] of the incident, which does
not necessarily prove that the alleged murder took place in the same area. In any case, where the
crime was actually committed is immaterial since it is undisputed that it occurred while the
vessel was in transit. In transit simply means on the way or passage; while passing from one
person or place to another. In the course of transportation.[4] Hence, undoubtedly, the applicable
provision is par. (c) of Sec. 15 (now Section 14), Rule 110 which provides that (w)here an
offense is committed on board a vessel in the course of its voyage, the criminal action may be
instituted and tried in the proper court of the first port of entry or of any municipality or territory
through which the vessel passed during such voyage subject to the generally accepted principles
of international law.
Petitioner further contends that even if Sec. 15(c), Rule 110 governs, Oroquieta City would
still be excluded as a proper venue because the reckoning point for determining the venue under
the aforementioned paragraph is the first port of entry or the municipalities/territories through
which the ship passed after the discovery of the crime, relying on Act No. 400.[5]
We disagree. Obviously, Act No. 400 was amended by Sec. 15(c), Rule 110 of the Revised
Rules of Court in that under the former law, jurisdiction was conferred to the CFI of any
province into which the ship or water craft upon which the crime or offense was committed shall
come after the commission thereof, while the present rule provides that jurisdiction is vested in
387
the proper court of the first port of entry or of any municipality or territory through which the
vessel passed during such voyage x x x. This is the applicable provision and since it does not
contain any qualification, we do not qualify the same. We fully concur with the findings of the
Court of Appeals, thus:

To support his arguments, petitioner relies on Act 400, which according to him is the spirit
behind the present Sec. 15(c), Rule 110. The said Act specifically provides, among other things,
that for crimes committed within the navigable waters of the Philippine Archipelago, on board a
ship or water craft of Philippine registry, jurisdiction may be exercised by the Court of First
Instance in any province in which the vessel shall come after the commission of the crime.

Petitioners reliance on Act 400 is erroneous. The provision of said Act vesting jurisdiction in the
province where the vessel shall come after the commission of the crime is not carried in the
present Rule.

xxx xxx xxx

It is a basic rule in statutory construction that where the provisions of the law or rule is clear and
unequivocal, its meaning must be determined from the language employed. It must be given its
literal meaning and applied without attempted interpretation (Globe Mackay Cable and Radio
Corp. vs. NLRC, 206 SCRA [7]01; Pascual vs. Pascual-Bautista, 207 SCRA 561).

The words of Sec. 15(c) being clear, there is no reason to rely on Act 400 in determining its
true meaning, regardless of whether said Act was indeed the moving spirit behind it. In fact, it
does not seem that the provision of Act 400 was carried into the present rule, as it is now
worded.[6]
IN VIEW OF THE FOREGOING, the petition for review is hereby DENIED.
SO ORDERED.

388
 [G.R. No. 164938. August 22, 2005]

VICTOR C. AGUSTIN, petitioner, vs. HON. FERNANDO VIL PAMINTUAN, in his

capacity as Presiding Judge of the Regional Trial Court of Baguio City, Branch 3;
ANTHONY DE LEON and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Court of Appeals (CA)
Decision[1] in CA-G.R. SP No. 70629 dismissing the petition for certiorari and prohibition filed
by petitioner Victor C. Agustin which, in turn, assailed the Order of the Regional Trial Court
(RTC) of Baguio City, Branch 3, denying the motion to quash the Informations in Criminal Case
Nos. 17892-R to 17895-R, for libel.
On June 13, 2000, the Office of the City Prosecutor of Baguio City, filed four separate
Informations[2] charging the petitioner, a Philippine Daily Inquirer columnist, with libel. The
inculpatory portion of that in Criminal Case No. 17892-R is quoted infra, as follows:

That on or about the 17th day of March 2000, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent and malicious intent
and evil motive of attacking, injuring and impeaching the character, honesty, integrity, virtue and
reputation of one Anthony De Leon the acting general manager of the Baguio Country Club, and
as a private citizen of good standing and reputation in the community and with malicious intent
of exposing the (sic) Anthony De Leon to public hatred, contempt, ridicule, discredit and
dishonor, without any justifiable motive, did then and there willfully, maliciously and criminally
prepare or cause to prepare, write in his column Cocktails and publish in the Philippine Daily
Inquirer, a newspaper of general circulation in the City of Baguio and in the entire Philippines,
wherein in said column the said accused did then and there defame the complainant Anthony De
Leon by branding and imputing upon him the following defamatory and libelous statements, to
wit:

The trysting place between the President Marcos and Hollywood actress Dovie Beams is not the
subject of a high level tax evasion investigation ordered by no less than the new BIR
Commissioner, Dakila Fonacier.

That bungalow on Northwestern Street had hastily changed hands in the last two years, and had
supposedly been sold to, first Anthony De Leon, the acting general manager of the exclusive
Baguio Country Club, who in turn disposed of it to an unwitting Chinoy couple.

According to preliminary BIR findings, the transfer to Mr. De Leon is already spurious since the
cook De Leon had been missing and had gone TNT in New York more than eight years ago. The
spurious sale to the male De Leon who is not related to the cook, was necessary to make it
appear that it had been an intra-family transfer.

Second, the Baguio Country Club manager made it appear that he and his family had been using
the house himself, but the BIR had now gotten a certification from the Greenhills homeowners
association that the said bungalow has all these years been rented to third parties, the last of
which was an ADB executive.

The most damaging of the findings was the supposed transfer price of the bungalow between the
De Leons and how much the bungalow was later palmed off to the Chinese-Filipino couple.

We will leave those details for the BIR Commissioner to announce himself, that, if he could
overcome the tremendous and well-oiled lobbying efforts by De Leons principals.

389
Tip: One of the principals is a lawyer and self-proclaimed best friend of Lenny Dragon Lady de
Jesus.

which aforesaid defamatory, malicious and libelous words and statements have been read by the
personnel of the Baguio Country Club, by the residents of the City of Baguio, and by the public
in the other parts of the country, and that those libelous and defamatory words and statements
aforementioned are untrue, false and malicious tending to impeach the character, integrity, virtue
and reputation of the said Anthony De Leon as Acting General Manager of the Baguio Country
Club, thus, placing and causing said Anthony De Leon to public hatred, contempt, dishonor,
discredit and ridicule which acts are serious and insulting in nature, to the damage and prejudice
of the said Anthony De Leon.[3]

Except for the alleged libelous articles, as well as the dates of the commission of the crimes
charged therein, the three other Informations are similarly worded.
Agustin was arraigned on September 10, 2001, and pleaded not guilty to all the charges.[4]
Agustin then filed a Motion to Quash the Informations, on the sole ground that the court had
no jurisdiction over the offenses charged. He pointed out that the said Informations did not
contain any allegation that the offended party, Anthony de Leon, was actually residing in Baguio
City, or that the alleged libelous articles were printed and first published in a newspaper of
general circulation in Baguio City.
Private complainant De Leon, through counsel, opposed the motion, alleging that he was
a bona fide resident of the Baguio Country Club located at the Country Club Road, Baguio City;
he was also the acting general manager of the club at the time the alleged libelous article was
published. He emphasized that the Informations alleged that he was of good standing and
reputation in the community, and that the word community meant Baguio City, where he was
residing. Moreover, Agustin was estopped from assailing the courts lack of jurisdiction since he
was arraigned before he filed his motion to quash the Information. Even if it may be assumed
that there was some ambiguity in the Informations as to whether he was an actual resident of
Baguio City, amending them would suffice; based on the entirety of the context and applying the
doctrine of necessary implication, there can be no other conclusion than that he was a resident of
Baguio City.
By way of Reply, Agustin averred that the allegations in the Informations (that the private
complainant was the acting general manager of the Baguio Country Club and was a private
citizen of good standing and reputation in the community) do not constitute an allegation that the
private complainant was an actual resident of Baguio City. He insisted that to construe the word
community in the Informations to mean the community in Baguio City would be to unduly strain
the limits of a fair interpretation; there must be clear and positive allegations in the Informations
that the private complainant actually resided in Baguio City. He argued that he was not estopped
from assailing the courts jurisdiction over the crimes charged even after his arraignment because
lack of jurisdiction is a matter which can be dealt with at any time.
On January 16, 2002, the trial court issued an Order[5] denying the motion to quash, holding
that in the light of the petitioners admission that the private complainant was the General
Manager of the Baguio Country Club, it was reasonable to infer therefrom that the private
complainant was actually a resident of Baguio City at the time the alleged libelous articles were
published.
Agustin filed a motion for reconsideration of the Order, insisting that the mere fact that the
private complainant was the General Manager of the Baguio Country Club did not necessarily
mean that the latter was actually residing in Baguio City, as it was also possible that he was
actually residing in a place nearby. The trial court, however, denied the motion on April 1, 2002.
Agustin forthwith filed a Petition for Certiorari and Prohibition with a plea for an injunctive
relief before the Court of Appeals (CA), claiming that the trial court committed a grave abuse of
discretion amounting to lack or excess of jurisdiction in denying his Motion to Quash.

390
 On February 24, 2004, the CA rendered a decision dismissing the petition. It disagreed with
Agustin, and held that the trial court did not commit a grave abuse of discretion amounting to
excess or lack of jurisdiction in so ruling. According to the CA, while the Informations filed by
the prosecution did not contain allegations that the complainant was actually a resident of Baguio
City at the time the alleged libelous articles were printed and first published, and that the alleged
libelous articles were printed and first published in Baguio City, such defects were merely of
form and not of substance. Thus, there is no need to quash the Informations, as they may merely
be amended pursuant to Section 14, Rule 110 of the Revised Rules of Criminal Procedure, which
provides that an amendment, either of form or substance, may be made at any time before the
accused enters a plea to the charge, and thereafter, as to all matters of form with leave of
court.[6] The CA further ruled that any amendment that would be made to conform to the private
complainants residency requirements would not place the accused at a disadvantage.
Agustin filed a motion for reconsideration of the decision, which the appellate court denied
for lack of merit.[7]
Agustin, now the petitioner, insists that the CA erred in dismissing his petition
for certiorari and prohibition, it appearing that the trial court committed a grave abuse of its
discretion in denying his Motion to Quash the Informations, as well as his motion for
reconsideration of the trial courts order denying the same.
The petitioner maintains that in the absence of any allegations in the Informations that the
private respondent was actually residing in Baguio City, or that the alleged libelous articles were
printed and first published in Baguio City as mandated by Article 360 of the Revised Penal
Code, the trial court had no jurisdiction over the offenses charged. He asserts that the
amendments of the Informations would likewise be improper, considering that the defects of the
Informations were not merely of form but of substance. The petitioner posits that venue in
criminal cases is jurisdictional and mandatory; hence, conformably with the decisions of the
Court in Lopez v. City Judge,[8] and Agbayani v. Sayo,[9] the Informations must be quashed.
In its Comment on the petition, the Office of the Solicitor General (OSG) maintains that the
failure of the Informations to allege that the private respondent is a resident of Baguio City
(where the Informations were filed) is not a jurisdictional defect. It asserts that the averment in
the Informations that the crimes charged were committed within the jurisdiction of the trial court
in Baguio City, taken in conjunction with the other allegations therein, are sufficient to vest
jurisdiction over the subject cases in the RTC of Baguio City.
For his part, the private complainant reiterated his arguments in the RTC and in the CA in
his Comment on the Petition.
The threshold issues in the present petition are (1) whether or not the RTC of Baguio City
has jurisdiction over the offenses charged in the four Informations on the premise that the
Informations are defective; and (2) whether the Informations may be amended to cure the said
defects.
The petition is meritorious.
Venue in criminal cases is an essential element of jurisdiction.[10] The jurisdiction of a court
over the criminal case is determined by the allegations in the complaint or Information, and the
offense must have been committed or any one of its essential ingredients took place within the
territorial jurisdiction of the court.[11]
Article 360 of the Revised Penal Code provides

ART. 360. Persons responsible. Any person who shall publish, exhibit, or cause the publication
or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

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

391
The criminal and civil action for damages in cases of written defamations as provided for in this
chapter, shall be filed simultaneously or separately with the Court of First Instance of the
province or city where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the offense; Provided,
however, That where one of the offended parties is a public officer whose office is in the City of
Manila at the time of the commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila or of the city or province where the libelous article is printed and
first published, and in case such public officer does not hold office in the City of Manila, the
action shall be filed in the Court of First Instance or the province or city where he held office at
the time of the commission of the offense or where the libelous article is printed and first
published and in case one of the offended parties is a private individual, the action shall be filed
in the Court of First Instance of the province or city where he actually resides at the time of the
commission of the offense or where the libelous matter is printed and first published: Provided,
further, That the civil action shall be filed in the same court where the criminal action is filed and
vice versa: Provided, furthermore, That the court where the criminal action or civil action for
damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And provided,
finally, That this amendment shall not apply to cases of written defamations, the civil and/or
criminal actions to which have been filed in court at the time of the effectivity of this law.

Preliminary investigation of criminal actions for written defamations as provided for in the
chapter shall be conducted by the provincial or city fiscal of the province or city, or by the
municipal court of the city or capital of the province where such actions may be instituted in
accordance with the provisions of this article.

No criminal action for defamation which consists in the imputation of a crime which cannot be
prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed
by the offended party.

Thus, the rules on venue in Article 360 of the Revised Penal Code are as follows:

1. Whether the offended party is a public official or a private person, the criminal action may be
filed in the Court of First Instance of the province or city where the libelous article is printed and
first published.

2. If the offended party is a private individual, the criminal action may also be filed in the Court
of First Instance of the province where he actually resided at the time of the commission of the
offense.

3. If the offended party is a public officer whose office is in Manila at the time of the
commission of the offense, the action may be filed in the Court of First Instance of Manila.

4. If the offended party is a public officer holding office outside of Manila, the action may be
filed in the Court of First Instance of the province or city where he held office at the time of the
commission of the offense.[12]

Experience has shown that under the old rule, the offended party could harass the accused in
a libel case by laying the venue of the criminal action in a remote or distant places. [13] To obviate
controversies as to the venue of the criminal action from written defamation, the complaint or
Information should contain allegations as to whether the offended party was a public officer or a
private individual at the time the offense was committed, and where he was actually residing at
that time; whenever possible, the place where the written defamation was printed and first
published should likewise be alleged.[14]
In this case, the Informations did not allege that the offended party was actually residing in
Baguio City at the time of the commission of the offenses, or that the alleged libelous articles
were printed and first published in Baguio City. It cannot even be inferred from the allegation the
offended party was the Acting General Manager of the Baguio Country Club and of good

392
standing and reputation in the community that the private respondent (complainant) was actually
residing in Baguio City.
The residence of a person is his personal, actual or physical habitation or his actual
residence or place of abode provided he resides therein with continuity and consistency; no
particular length of time of residence is required. However, the residence must be more than
temporary.[15] The term residence involves the idea of something beyond a transient stay in the
place; and to be a resident, one must abide in a place where he had a house therein.[16] To create a
residence in a particular place, two fundamental elements are essential: The actual bodily
presence in the place, combined with a freely exercised intention of remaining there permanently
or for an indefinite time.[17] While it is possible that as the Acting General Manager of the
Baguio Country Club, the petitioner may have been actually residing in Baguio City, the
Informations did not state that he was actually residing therein when the alleged crimes were
committed. It is entirely possible that the private complainant may have been actually residing in
another place. One who transacts business in a place and spends considerable time thereat does
not render such person a resident therein.[18] Where one may have or own a business does not of
itself constitute residence within the meaning of the statute. Pursuit of business in a place is not
conclusive of residence there for purposes of venue.[19]
We do not agree with the ruling of the CA that the defects in the Informations are merely
formal. Indeed, the absence of any allegations in the Informations that the offended party was
actually residing in Baguio City, where the crimes charged were allegedly committed, is a
substantial defect. Indeed, the amendments of the Informations to vest jurisdiction upon the court
cannot be allowed.[20]
IN LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Decision of
the Court of Appeals in CA-G.R. SP No. 70629 are SET ASIDE. The Regional Trial Court of
Baguio City, Branch 3, is hereby DIRECTED TO QUASH the Informations and DISMISS the
cases against petitioner Victor C. Agustin in Criminal Case Nos. 17892-R to 17895-R.
SO ORDERED.
238 Phil. 366

PER CURIAM:
Municipal Trial Court Judge Renato S. Mercado of Cabarroguis, Quirino Province, later
Municipal Circuit Trial Court Judge of Aglipay-Sagaday, Quirino Province, is administratively
charged with abuse of judicial power and discretion and gross ignorance of the law.
The records show that, on 3 May 1985, former Mambabatas Pambansa (MP) Orlando
C. Dulay of Quirino Province filed a complaint for libel with the Municipal Trial Court
of Cabarroguis, Quirino Province, presided over by respondent judge, against herein complainant
Benjamin C. Uy, Apolonio Batalla and Ulpiano Quizon, based on a publication in
the Tempo newspaper, dated 28 April 1985, implicating said former MP Orlando C. Dulay,
along with several others, who were charged before the Provincial Fiscal of Cavite with the
crime of robbery in band.
The records further show that respondent judge conducted the preliminary investigation on
former MP Orlando C. Dulay, as complainant, on 3 May 1985, and issued the warrant for the
arrest of the accused in the libel case on the same day, without any evidence or proof that there
was immediate necessity of placing the accused under custody of the court and without proof or
evidence to warrant a conclusion that the accused may frustrate the ends of justice by their non-
appearance in the trial, as mandated by Rule 112, Section 6(b) of the 1985 Rules on Criminal
Procedure. As a result, complainant Benjamin C. Uy, on 14 May 1985, while in the vicinity of
the City Hall in QuezonCity, was arrested and ordered detained
in Cabarroguis, Quirino Province. The issuance of said warrant of arrest caused incalculable
damage and suffering to complainant and his family, particularly because of the unusual arrest
effected by the military elements under the control and supervision of then MP Orlando
C. Dulay.
393
Complainant alleges that respondent judge gave due course to the complaint of libel despite the
fact that, under Rep. Act No. 1289, as amended by Rep. Act No. 4363, the proper jurisdiction
and venue of the case is Quezon City, where former MP Orlando C. Dulay held office or in
Manila where the allegedly libelous article was printed and first published.
Respondent judge, in his Comment, admits having conducted the preliminary investigation in the
libel case. He claims, however, that from the preliminary examination made, along with what he
gleaned from the news item, there was reason to believe that there was probable cause for
issuance of the warrant of arrest and the court, over which he presided, was of the belief that the
three accused were probably guilty of said libel. Citing the cases of US vs. Ocampo, 18 Phil. 1,
and Amarga vs. Abbas, 98 Phil. 739, respondent judge claims that the judicial determination of
probable cause is final and conclusive and that whether probable cause exists or not is
discretionary for the court. He asks for the dismissal of the administrative complaint.
Under Sec. 37 of Batas Pambansa No. 129, judges of Metropolitan Trial Courts, except those in
the National Capital Region, Municipal Trial Courts and Municipal Circuit Trial Courts have
authority to conduct preliminary investigation of crimes alleged to have been committed within
their respective territorial jurisdictions and cognizable by the Regional Trial Courts. And, Art.
360 of the Revised Penal Code on libel, as amended by Rep. Act No. 1289 and further amended
by Rep. Act No. 4363, provides that, where one of the offended parties is a public officer, the
action shall be filed in the Court of First Instance (now Regional Trial Court) of the province or
city where he holds office at the time of the commission of the offense or of the province or city
where the libelous article was printed and first published. It is also provided that preliminary
investigation of criminal actions for written defamations shall be conducted by the provincial or
city fiscal of the province or city, or by the municipal court of the city or capital of the province
where such actions may be instituted in accordance with the provisions of the above article. The
limitation of choice of venue is clearly intended to minimize or limit the filing of out-of town
libel suits to protect the alleged offender from hardship, inconvenience, and harassment and to
protect the interest of the public service where one of the offended parties is a public
officer[1]. Hence, the proper court to hear the libel case, in this instance, was either the court
in Quezon City where former MP Orlando C. Dulay held office, or the court in Manila where the
allegedly libelous matter was printed and first published, but not the court in Quirino Province.
When respondent judge, in the libel case filed by MP Dulay, conducted the preliminary
investigation on Dulay, he issued the warrant of arrest against the accused on the same
day. While it is mandated by law that preliminary investigations should be simple, speedy and
should not drag on for weeks and months, to protect the substantial rights of the accused, and
that the investigating judge acts only upon probable cause and reasonable belief in issuing a
warrant of arrest, it is equally mandated that preliminary investigations should secure the
innocent against hasty, malicious and oppressive prosecution to protect him from public
accusation of crime, from the trouble, expense and anxiety of public trial and to protect the State
from useless and expensive prosecutions[2].
Considering that libel suits are often intended to harass an alleged offender, respondent judge
should have satisfied himself not only that probable cause exists, but likewise made certain that
venue is properly laid and jurisdiction legally acquired before taking cognizance of the case and
issuing the warrant of arrest. This, he did not do. Reference may be made, at this point, to cases
where despite the existence of probable cause, the investigating judge does not issue a warrant of
arrest when there appears to be no necessity therefor.[3]
It should be noted that the accused in the libel case filed a motion to dismiss, raising the issue of
venue and jurisdiction, thus affording respondent Judge an opportunity to rectify his previous
stand, but respondent failed and refused to dismiss the libel suit[4], even as it was clear that the
court, over which he presided, really had no jurisdiction over the case. With this unjustified
action, respondent judge placed his integrity under a heavy cloud, leading the Court to believe
that he went "out of his way" to accommodate and favor the then influential and powerful former
Governor and later Mambabatas Pambansa of Quirino Province, Orlando C. Dulay. As held by
this Court in Montemayorvs. Judge Collado.[5]

394
x x x The conduct and behavior of everyone connected with an office charged with the
disposition of justice, like the courts below, from the presiding judge to the lowest clerk, should
be circumscribed with the heavy burden of responsibility. His conduct, at all times, must not
only be characterized with propriety and above all must be above suspicion. Although every
office in the government service is a public trust, no position exacts a greater demand on moral
righteousness and uprightness of an individual than a seat in the judiciary. x x x"
It appearing that the records of the case sufficiently provide a clear basis for the determination of
respondent judge's administrative liability, there is no need to conduct a formal investigation of
the charges[6]. The unjustified and irregular acts of respondent judge in the premises constitute
serious misconduct or, at least, gross ignorance of the law. Ordinarily, the misconduct of the
respondent would have warranted his dismissal from the service in view of its gravity. However,
this penalty may no longer be imposed because of his automatic separation from the service upon
his filing of a certificate of candidacy for the position of Congressman for the province
of Quirino in the elections of 11 May 1987. But, his actions cannot be allowed to go
unpunished.
WHEREFORE, the Court orders the forfeiture of respondent's accrued retirement benefits as
well as leave and other privileges, if any, with prejudice to re-employment in any branch or
agency of the government, including government-owned or controlled corporations. Respondent
is further required to show cause, within ten (10) days from notice hereof, why he should not be
disbarred for the misconduct referred to in this resolution.
SO ORDERED.

395
 [A.M. No. MTJ-00-1274. June 8, 2000]

JEPSON DICHAVES, complainant, vs. JUDGE BILLY M. APALIT, respondent.

DECISION
MENDOZA, J.:

This is a complaint filed by Jepson Dichaves against Judge Billy M. Apalit of Branch 43,
Metropolitan Trial Court, Quezon City for partiality and gross ignorance of the law in connection
with the latter's handling of Criminal Case Nos. 27874-78, entitled People v. Navarro, for
violation of Batas Pambansa Blg. 22.
The facts are as follows:
On July 29, 1994, complainant caused the filing of the five (5) criminal cases against Ramon
Navarro for violation of B.P. Blg. 22 on the ground that five checks in the total amount of P
6,180,000.00, issued by Navarro against the United Coconut Planters Bank, had all been
dishonored for insufficiency of funds.
It appears that, on August 11, 1994, Ramon Navarro filed with the Regional Trial Court in
Quezon City a complaint, docketed as Civil Case No. Q-94-21343, for recovery of a sum of
money against Ernesto Uyboco and Gaikoku Construction and Development Corporation
(GCDC). In his complaint, Navarro alleged that, upon his intercession, Uyboco and GCDC were
able to obtain loans from complainant, to guarantee which he (Navarro) issued the checks which
became the subject of the criminal cases filed against him. In return, Uyboco and GCDC
allegedly issued postdated checks to Navarro in the total amount of P 8,140,000.00.
Based on the filing of this case, Navarro moved, on September 9, 1994, for the suspension
of the proceedings in the criminal cases, alleging that the issue in the civil case was a prejudicial
question, the resolution of which would determine the result of the criminal cases. In his order,
dated October 5, 1994, respondent granted Navarro's motion.
Complainant moved for a reconsideration of the order. Pending resolution of the motion,
Navarro amended his complaint in Civil Case No. Q-94-21343 by impleading complainant as a
defendant or an unwilling co-plaintiff. Navarro contended Uyboco and GCDC - not he - were
liable to complainant for the amount of the checks.
On June 19, 1995, respondent denied complainants motion, prompting complainant to bring
an action for certiorari in the Court of Appeals. Complainant was upheld and the appellate court
set aside respondents order. It held that the issue in Civil Case No. Q-94-21343 did not constitute
a prejudicial question.
Upon resumption of the trial of the criminal cases, Navarro next sought the disqualification
of Dichaves counsel as private prosecutor on the ground that complainant had no right to
intervene in the criminal cases. Respondent again granted the motion, holding that the civil
action arising from crime was being tried in Civil Case No. Q-94-21343.Complainant moved for
reconsideration, arguing that he is merely an unwilling co-plaintiff in Civil Case No. Q-94-21343
and that the obligation owed him by Uyboco to Navarro was different from that owed by the
latter to complainant. Complainant pointed out that Uyboco's letters to him never mentioned
anything about a guarantee agreement to which Navarro was a party and that the amount of
Navarro's checks (P6,180,000.00) was in fact different from the amount owed by Uyboco to
Navarro (P8,140,000.00).
On October 28, 1997, respondent rendered a decision in the criminal cases acquitting
Navarro of violations of B.P. Blg. 22 on the ground that the checks had been issued by Navarro
merely to guarantee Uyboco's obligation to complainant.
Complainant points out the following instances as showing respondent's gross ignorance of
the law and manifest partiality: (1) the suspension of the hearing in the criminal cases; (2) the

396
disqualification of complainant's counsel on the ground that the civil aspect of the cases was
already being litigated in Civil Case No.Q-94-21343; and (3) the acquittal of accused Navarro on
the ground that the checks he issued had been issued merely to guarantee the obligation of other
parties. The Office of the Court Administrator, to which this case was referred, found the
complaint meritorious and recommended that Judge Apalit be held administratively liable.
After due consideration of this case, we find the recommendation well taken.
First. Judge Apalit justifies his suspension of the hearing in the criminal cases on the ground
that the issues in that case and those in Civil Case No. Q-94-21343 are intertwined.
The contention has no merit. A prejudicial question is a question which arises in a case the
resolution of which is a logical antecedent of the issue involved in said case and the cognizance
of which pertains to another tribunal.[1] As provided in Rule 111, 5, a civil case constitutes a
prejudicial question only if: (a) the civil action involves an issue similar or intimately related to
the issue raised in the criminal action; and (b) the resolution of such issue is determinative of
whether or not the criminal action may proceed.
In the case at bar, even if Navarro prevailed in the civil case filed by him against Uyboco
and GCDC, this result would not be determinative of his guilt in the criminal prosecution for
violation of B.P. Blg. 22 for it is now settled that the mere issuance of worthless checks is
punishable under B.P. Blg. 22, and it is immaterial whether the checks have been issued merely
to guarantee another person's obligation.[2]
Indeed, at the time respondent ordered the suspension of the proceeding in the criminal case,
complainant was not a party to the civil case. It is difficult to imagine how such case could affect
Navarro's criminal liability for issuing to complainant the checks which had been dishonored.
Respondent ordered the suspension of proceedings in the criminal cases without even explaining
how the resolution of the issues in the Civil Case No. Q-94-21343 would determine the issues in
the criminal cases. Respondent's order suspending the proceedings in the criminal cases simply
stated:

ORDER

A "Motion to Suspend Proceedings was filed by the Accused, thru counsel, praying that the
proceedings of the case be temporarily suspended pending the resolution of Civil Case No. Q-94-
21343 entitled Ramon Navarro vs. Ernesto Uyboco and Gaikoku Construction and Development
Corp., pending before the Regional Trial Court, Branch 215, Quezon City which is a prejudicial
question to the case at bar. Copy of the aforesaid motion was furnished the Public Prosecutor,
however, up to this date, no comment and/or opposition has been filed.

Finding the aforesaid motion to be well-taken, the case is granted.

There was simply no basis for considering the issues in the civil action as determinative of
the issues in the criminal cases so as to warrant the suspension of proceedings in the latter cases.
Second. Judge Apalit contends there was no longer any justification for the participation of
complainant's counsel in the criminal cases because the civil aspect of those cases was already
being litigated in Civil Case No. Q-94-21343.
This stance is based on a wrong assumption. Rule 111 of the Rules of Criminal Procedure
provides:

SECTION-1. Institution of criminal and civil actions. When a criminal action is instituted, the
civil action for the recovery of civil liability is impliedly instituted with the criminal action,
unless the offended party waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.

There are thus three instances when the offended party in a criminal case cannot take part in
the criminal prosecution, to wit: (1) if the civil action has been waived; (2) if the right to institute

397
a separate civil action has been reserved; and (3) if the civil action was filed prior to the criminal
action.
None of these actions was done by complainant so as to bar him or his counsel from taking
part in the criminal prosecution. Complainant did not bring Civil Case No. Q-94-21343. It was
Navarro who did, and he simply dragged complainant into the case by impleading him as a
defendant or an unwilling co-plaintiff. What is more, Civil Case No. Q-94-21343 was not the
civil action arising from the crime, the subject of Criminal Case Nos. 27874-78.
As in his order suspending the trial of the criminal cases on the ground of prejudicial
question, respondent's order barring complainant and the latter's counsel from participating in the
criminal prosecution was laconic and did not state the basis, if any, thereof:

ORDER

Acting on the "Motion to Disqualify Private Prosecutor" filed by the accused, thru counsel, and
the "Opposition" thereto, the Court after a careful evaluation of the same, finds the former
impressed with merit, hence, is hereby GRANTED.

Third. Respondent acquitted the accused in the criminal cases on the ground that the checks
were not issued "on account or for value," because the checks had been issued merely to
guarantee the loan of another party. Respondent reasoned out that his court was "not only a court
of justice but also of equity and fairness, and that to apply the full harshness of the special law
using the mala prohibita doctrine would be tantamount to punishing the accused for the
aforementioned checks when it was not issued on account or for value as the consideration of the
loan was on account of Ernesto Uybuco.
This ruling goes against a long line of cases in which this Court held that what B.P. Blg. 22
punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the
terms and conditions relating to its issuance. As already stated, the mere act of issuing a
worthless check is malum prohibitum.[3] We have repeatedly held that B.P. Blg. 22 applies even
in cases where dishonored checks are issued merely in the form of a guarantee.[4] Respondent
disregarded not only complainant's citation of these cases but also the decision of the Court of
Appeals which, in reversing respondents prior order suspending the trial of the criminal cases,
stated:

The civil case filed by private respondent is for collection of sum of money with damages and
involves an issue different from the issue involved in the criminal cases filed by the petitioner
against private respondent. The issue involved in the civil case is whether or not the defendants
Uybuco and GCDC can be held liable to therein plaintiff-herein private respondent for the
amounts stated in the checks they issued in his favor; whereas the issue involved in all the
criminal cases is whether or not private respondent could be found guilty under B.P. Blg. 22 for
the dishonor of the checks he issued in favor of petitioner.

As correctly pointed out by petitioner and the Solicitor General, the resolution of the issue raised
in the civil action would not in any way determine the guilt or innocence of private respondent in
the criminal cases. For even granting that the civil case is resolved in favor of private respondent
resulting in the satisfaction of the amounts covered by the dishonored checks subject of that case,
it would not as a matter of consequence dissolve or obliterate private respondent's culpability
under B.P. Blg. 22.

Private respondent's assertion that he issued the checks subject of the criminal cases to petitioner
merely to serve as guarantee to Uyboco and GCDC's loan, even if true, would not be material
and determinative of his innocence in light of the well settled rule that what B.P. Blg. 22
punishes is the issuance itself of a bouncing check and not the purpose for which it was issued
nor the terms and conditions relating to its issuance (People v. Nitafan, 215 SCRA 79, 84
[1992]). For to require that the agreement surrounding the issuance of checks be first locked into
and thereafter exempt such issuance from the punitive provisions of B.P. Blg. 22 on the basis of

398
such agreement or understanding would frustrate the very purpose for which the law was enacted
--- to curb the proliferation of unfunded checks (People v. Nitafan, supra; Lazaro v. Court of
Appeals, 227 SCRA 723, 726-727 [1993]).

An isolated error of judgment would normally not make a judge susceptible to

administrative liability. But, here, respondent's partiality for a party to a case before him is
evident in his several orders favoring the accused in the criminal case before him, even going to
the extent of disregarding settled rulings. Respondent cannot be acquitted of the charge that he
acted from improper motives which must be repressed.
WHEREFORE, as recommended by the Office of the Court Administrator, Judge Billy M.
Apalit, Presiding Judge of Branch 43, Metropolitan Trial Court, Quezon City, is declared
GUILTY of partiality and grave abuse of discretion and is hereby SUSPENDED for a period of
SIX (6) MONTHS without pay, with a WARNING that commission of a similar offense will be
dealt with more severely.
SO ORDERED.

399
 [G.R. Nos. 140576-99. December 13, 2004]

JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE SANDIGANBAYAN (Fourth

Division), ALBANO & ASSOCIATES and the ASSOCIATION OF GENERALS &
FLAG OFFICERS, INC., respondents.

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, of
the Resolution of the Sandiganbayan, dated June 9, 1999 in Criminal Cases Nos. 25122 to
25145, and its Resolution dated October 22, 1999, denying the motion for reconsideration
thereof.

The Antecedents

The Armed Forces of the Philippines Retirement and Separation Benefits System (AFP-
RSBS) was established in December 1973 and started its actual operations in 1976. Created
under Presidential Decree (P.D.) No. 361, as amended, the AFP-RSBS was designed to establish
a separate fund to guarantee continuous financial support to the AFP military retirement system
as provided for in Republic Act No. 340.[1] Under the decree, the AFP-RSBS was to be funded
from three principal sources: (a) congressional appropriations and compulsory contributions
from members of the AFP; (2) donations, gifts, legacies, bequests and others to the system; and
(3) all earnings of the system which shall not be subject to any tax whatsoever.[2] AFP-RSBS is a
government-owned or controlled corporation (GOCC) under Rep. Act No. 9182, otherwise
known as The Special Purpose Vehicle Act of 2002. It is administered by the Chief of Staff of
the AFP through a Board of Trustees and Management Group.[3] Its funds are in the nature of
public funds.[4]
On December 18, 1997, Luwalhati R. Antonino, then a member of the House of
Representatives representing the First District of the Province of South Cotabato, filed a
Complaint-Affidavit[5] with the Office of the Ombudsman for Mindanao. She alleged that
anomalous real estate transactions involving the Magsaysay Park at General Santos City and
questionable payments of transfer taxes prejudicial to the government had been entertained into
between certain parties. She then requested the Ombudsman to investigate the petitioner, Retired
Brig. Gen. Jose S. Ramiscal, Jr., then President of the AFP-RSBS,[6] together with twenty-seven
(27) other persons[7] for conspiracy in misappropriating AFP-RSBS funds and in defrauding the
government millions of pesos in capital gains and documentary stamp taxes.[8]
On January 28, 1999, after the requisite preliminary investigation, Special Prosecutor Joy C.
Rubillar-Arao filed twenty-four (24) separate Informations with the Sandiganbayan against the
petitioner and several other accused. The filing of the Informations was duly approved by then
Ombudsman Aniano A. Desierto. The first twelve (12) Informations were for violation of
Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
docketed as Criminal Cases Nos. 25122 to 25133.[9] All were similarly worded, except for the
names of the other accused, the dates of the commission of the offense, and the property
involved. Representative of the said Informations is that filed in Criminal Case No. 25122, the
inculpatory portion of which reads:

That sometime on September 24, 1997, and prior, or subsequent thereto, in General Santos City,
Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR.,
a high ranking public official being then the President, and WILFREDO PABALAN, a low
ranking public officer being the Project Director, both of the AFP-RSBS, while in the
performance of their official duties, taking advantage of their official positions and committing

400
the offense in relation to their offices, conspiring together and confederating with NILO
FLAVIANO and ALEX GUAYBAR, both private individuals, did, there and then, willfully,
unlawfully and criminally execute and/or cause the execution of a falsified Deed of Sale
covering Lot-X-4, a real property located at General Santos City, by making it appear therein
that the purchase price of the said lot is only TWO MILLION NINE HUNDRED NINETY-
SEVEN THOUSAND (P2,997,000.00) PESOS at P3,000.00 per square meter, when in truth and
in fact, as all the accused very well knew and, in fact, agreed, that the same was sold
for P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-
NINE THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, and use the said falsified Deed
of Sale as basis for payment of capital gains and documentary stamp taxes relative to the sale of
the subject lot in the amount of only P299,700.00 and P89,910.00, respectively, when the capital
gains, and documentary stamp and other taxes should have been P524,475.00 and P157,342.50,
respectively, thereby short-changing and causing undue injury to the government through evident
bad faith and manifest partiality in the total amount of TWO HUNDRED NINETY-TWO
THOUSAND TWO HUNDRED SEVEN and 50/100 PESOS (P292,207.50), more or less.

CONTRARY TO LAW.[10]

On the other hand, twelve (12) other separate Informations indicted the accused for
Falsification of Public Documents, defined and penalized under paragraph 4, Article 171 of the
Revised Penal Code, docketed therein as Criminal Cases Nos. 25134 to 25145.[11] Save with
respect to the names of the other accused, the dates of the commission of the felonies, and the
property involved in each case, the Informations were, likewise, similarly worded, representative
of which is that in Criminal Case No. 25134. The accusatory portion reads:

That on or about September 24, 1997, and sometime prior, or subsequent thereto, in General
Santos City, Philippines, and within the jurisdiction of this Honorable Court, accused JOSE
RAMISCAL, JR., a high-ranking public official being then the President, and WILFREDO
PABALAN, a low-ranking public officer being the Project Director, both of the AFP-RSBS,
while in the performance of their duties, taking advantage of their official positions and
committing the offense in relation to their offices, conspiring and confederating with each other
and with accused NILO FLAVIANO and JACK GUIWAN, both private individuals, acting with
unfaithfulness and with malicious intent, did, there and then, willfully, unlawfully and criminally
falsify a public document by executing and/or causing to be executed a Deed of Sale for a 999-
sq. m. property particularly identified as Lot-X-5 located at General Santos City and stating
therein a purchase price of only P3,000.00 per square meter or a total of TWO MILLION NINE
HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS when in truth and in fact,
as all the accused very well knew and, in fact, agreed, the purchase price of said lot
is P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE
THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, thereby perverting the truth.

CONTRARY TO LAW.[12]

On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss the Informations and
to Defer the Issuance of Warrant of Arrest, alleging want of jurisdiction.[13] He, likewise, filed an
Urgent Manifestation and Motion to Suspend Proceedings[14] on February 16, 1999, because of
the pendency of his motion for reinvestigation with the Office of the Ombudsman. The Office of
the Special Prosecutor opposed the said motions.[15]
Meanwhile, pending resolution of the aforementioned motions, the law firm of Albano &
Associates filed a Notice of Appearance[16] as private prosecutors in all the aforementioned cases
for the Association of Generals and Flag Officers, Inc. (AGFOI)[17] on March 9, 1999. The notice
of appearance was apparently made conformably to the letter-request of Retired Commodore
Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members thereof.
In a Resolution[18] dated April 5, 1999, the Sandiganbayan denied the earlier motions filed
by the petitioner for lack of merit. Consequently, a warrant of arrest against him was
issued.[19] He posted a cash bail bond for his provisional liberty.[20]

401
 On April 6, 1999, the petitioner opposed the appearance of the law firm of Albano &
Associates as private prosecutors, contending that the charges brought against him were purely
public crimes which did not involve damage or injury to any private party; thus, no civil liability
had arisen.[21] He argued that under Section 16 of the Rules of Criminal Procedure, an offended
party may be allowed to intervene through a special prosecutor only in those cases where there is
civil liability arising from the criminal offense charged.[22] He maintained that if the prosecution
were to be allowed to prove damages, the prosecution would thereby be proving another crime,
in violation of his constitutional right to be informed of the nature of the charge against him.
In its comment, the law firm contended that its clients, Commodore Aparri and Brig. Gen.
Navarro, were members of the AGFOI and contributors of AFP-RSBS. It alleged that as such
members-contributors, they have been disadvantaged or deprived of their lawful investments and
residual interest at the AFP-RSBS through the criminal acts of the petitioner and his cohorts. It
posited that its clients, not having waived the civil aspect of the cases involved, have all the right
to intervene pursuant to Section 16, Rule 110 of the Rules of Court. Moreover, the law firm
averred that its appearance was in collaboration with the Office of the Ombudsman, and that
their intervention in any event, was subject to the direction and control of the Office of the
Special Prosecutor.[23]
Replying to the comment, the petitioner refuted the allegation of AGFOI that he had civil
interest in the criminal cases involved. He posited that AGFOI was neither a member nor a
beneficiary of the AFP-RSBS. Moreover, considering that it was funded partly by the national
government and individual soldiers by way of salary deductions, the AGFOI never contributed a
single centavo to the funds of the AFP-RSBS. He further averred that AGFOI, as an
organization, has a distinct personality of its own, apart from the individual members who
compose it.[24] Hence, it is of no moment if some members of AGFOI are or have been members
and beneficiaries of the AFP-RSBS.
Meanwhile, on June 6, 1999, the petitioner filed a Motion for Reinvestigation[25] with the
Sandiganbayan, mentioning therein his unresolved motion for reconsideration with the Office of
the Ombudsman. He prayed that the proceeding be suspended and his arraignment deferred
pending the resolution of the reinvestigation.
The Sandiganbayan granted the motion in its Order dated June 11, 1999. The fallo of the
said resolution reads:

WHEREFORE, the prosecution is given 60 days from today within which to elevate its evidence
and to do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999
and supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal, Jr. and to
inform this Court within the said period as to its findings and recommendations together with the
action thereon of the Ombudsman.

As prayed for in open court by Pros. Monteroso, this authority from the Court for the prosecution
to evaluate its evidence and take such appropriate action as regards accused Ramiscals subject
motion shall also include the case regarding all the accused.

SO ORDERED.[26]

In the meantime, in a Resolution[27] dated June 9, 1999, the Sandiganbayan made short shrift
of the petitioners opposition and denied his plea for the denial of the appearance of the law
firm.[28] In justifying its resolution, the Sandiganbayan declared as follows:

Considering that the offended parties are members of the AFP-RSBS, as represented by the two
(2) flag officers, and their right may be affected by the action of the Court resolving the criminal
and civil aspects of the cases, there appears a strong legal presumption that their appearance
should not be disturbed. After all, their appearance is subject to the direct supervision and control
of the public prosecutor.[29]

402
 The petitioner moved for a reconsideration[30] of the Sandiganbayans Resolution of June 9,
1999, which was opposed[31] by the prosecution. The Sandiganbayan issued a
Resolution[32] denying the same on October 22, 1999.
The petitioner filed the instant petition under Rule 45 of the Rules of Civil Procedure, for the
nullification of the June 9, 1999 and October 22, 1999 Resolutions of the graft court, and raised
the following issues:
I

WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS FOR

VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND ARTICLE 172, IN
RELATION TO ARTICLE 171, OF THE REVISED PENAL CODE GIVE RISE TO CIVIL
LIABILITY IN FAVOR OF ANY PRIVATE PARTY.

II

WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES ARE

PRIVATE INJURED PARTIES ENTITLED TO INTERVENE AS THE PRIVATE
PROSECUTOR IN THE SUBJECT CASES.[33]

In support of his petition, the petitioner reiterated the same arguments he put forth before the
Sandiganbayan.
The Special Prosecutor, for his part, avers that the remedy resorted to by the petitioner under
Rule 45 of the Rules of Civil Procedure was improper since the assailed Resolutions of the
Sandiganbayan are interlocutory in nature and not final; hence, the remedy of the petitioner was
to file a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He also
argues that the petition is premature because the reinvestigation of the cases had not yet been
completed. On the merits of the petition, he posits that the AGFOI is a member of the AFP-
RSBS, and that its rights may be affected by the outcome of the cases. He further alleged that the
appearance of the private prosecutor was subject to the direct supervision and control of the
public prosecutor.
The petitioner, however, asserts, by way of reply, that the assailed orders of the
Sandiganbayan are final orders; hence, his recourse under Rule 45 of the Rules of Civil
Procedure was proper.

The Ruling of the Court

The Assailed Resolutions

of the Sandiganbayan are
Interlocutory in Nature
The word interlocutory refers to something intervening between the commencement and the
end of a suit which decides some point or matter but is not a final decision of the whole
controversy. The Court distinguished a final order or resolution from an interlocutory one
in Investments, Inc. v. Court of Appeals[34] as follows:

A final judgment or order is one that finally disposes of a case, leaving nothing more to be done
by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the
evidence presented at the trial, declares categorically what the rights and obligations of the
parties are and which party is in the right; or a judgment or order that dismisses an action on the
ground, for instance, of res adjudicata or prescription. Once rendered, the task of the Court is
ended, as far as deciding the controversy or determining the rights and liabilities of the litigants
is concerned. Nothing more remains to be done by the Court except to await the parties next
move (which, among others, may consist of the filing of a motion for new trial or
reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of
403
the judgment once it becomes final or, to use the established and more distinctive term, final and
executory.[35]

Conversely, an order that does not finally disposes of the case, and does not end the Courts task
of adjudicating the parties contentions and determining their rights and liabilities as regards each
other, but obviously indicates that other things remain to be done by the Court, is interlocutory,
e.g., an order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for
extension of time to file a pleading, or authorizing amendment thereof, or granting or denying
applications for postponement, or production or inspection of documents or things, etc. Unlike a
final judgment or order, which is appealable, as above pointed out, an interlocutory order may
not be questioned on appeal except only as part of an appeal that may eventually be taken from
the final judgment rendered in this case.[36]

The rule is founded on considerations of orderly procedure, to forestall useless appeals and
avoid undue inconvenience to the appealing party by having to assail orders as they are
promulgated by the court, when all such orders may be contested in a single appeal.[37]
Under Section 1, Rule 45 of the Rules of Court, only final judgments, orders or resolutions
of the Court of Appeals or Sandiganbayan may be assailed therein. The remedy is a mode of
appeal on questions of law only.[38]
In the present case, the Sandiganbayan merely resolved to allow the appearance of the law
firm of Albano & Associates as private prosecutors, on its finding that the AGFOI, represented
by Commodore Aparri and Brig. Gen. Navarro who were, likewise, investors/members of the
AFP-RSBS, is the offended party whose rights may be affected by the prosecution of the
criminal and civil aspects of the cases and the outcome thereof. Furthermore, the private
prosecutor is subject to the direct supervision and control of the public prosecutor. The
Sandiganbayan did not dispose of the cases on their merits, more specifically, the guilt or
innocence of the petitioner or the civil liabilities attendant to the commission of the crimes
charged. Assuming that the Ombudsman would maintain the finding of probable cause against
the petitioner after the reinvestigation of the cases, and, thereafter, the Sandiganbayan would
sustain the finding of probable cause against the petitioner and issue warrants for his arrest, the
graft court would then have to proceed to trial, receive the evidence of the parties and render
judgment on the basis thereof. The petitioner would then have the following options: (a) to
proceed to trial, and, if convicted, file a petition for review under Rule 45 of the Rules of Court
to this Court; or (b) to file a petition for certiorari, under Rule 65 of the Rules of Court, to nullify
the resolutions of the Sandiganbayan on the ground of grave abuse of discretion amounting to
excess or lack of jurisdiction in issuing the said resolutions and decision.
Nevertheless, in the interest of substantial justice, we shall treat the petition as one filed
under Rule 65 of the Rules of Court. Dismissal of appeal purely on technical grounds is frowned
upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules
of procedure ought not to be applied in a very rigid technical sense, as they are used only to help
secure, not override substantial justice. If a technical and rigid enforcement of the rules is made,
their aim would be defeated. Consequently, in the interest of justice, the instant petition for
review may be treated as a special civil action on certiorari.[39] As we held in Salinas v.
NLRC,[40] a petition which should have been brought under Rule 65 and not under Rule 45 of the
Rules of Court, is not an inflexible rule. The strict application of procedural technicalities should
not hinder the speedy disposition of the case on the merits.[41]
Although there is no allegation in the petition at bar that the Sandiganbayan committed
grave abuse of its discretion amounting to excess or lack of jurisdiction, nonetheless, the
petitioner made the following averments: that the graft court arbitrarily declared the AGFOI to
be the offended party despite the plain language of the Informations and the nature of the crimes
charged; and that the graft court blatantly violated basic procedural rules, thereby eschewing the
speedy and orderly trial in the above cases. He, likewise, averred that the Sandiganbayan had no
authority to allow the entry of a party, through a private prosecutor, which has no right to the
civil liabilities of the accused arising from the crimes charged, or where the accused has no civil
liabilities at all based on the nature of said crimes. The petitioner also faulted the Sandiganbayan

404
for rejecting his opposition thereto, in gross violation of the Revised Rules of Criminal
Procedure and the Revised Penal Code. Indeed, such allegations are sufficient to qualify the
petition as one under Rule 65 of the Rules of Court. As we held in People v. Court of Appeals:[42]

The public respondent acts without jurisdiction if it does not have the legal power to determine
the case; there is excess of jurisdiction where the respondent, being clothed with the power to
determine the case, oversteps its authority as determined by law. There is grave abuse of
discretion where the public respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment as to be said to be equivalent to lack of jurisdiction.[43]

Besides, unless we resolve the present petition on its merits, other parties, like the private
respondents herein, may, likewise, enter their appearance as offended parties and participate in
criminal proceedings before the Sandiganbayan.
The Appearance of
the Law Firm Albano
& Associates
The respondent law firm entered its appearance as private prosecutor for AGFOI,
purportedly upon the request of Commodore Aparri and Brig. Gen. Navarro, quoted infra:

Atty. Antonio Albano

Practicing Lawyer
Albano-Irao Law Offices

Dear Atty. Albano:

We represent a number of Retired Generals and other Star Rank Officers who rightfully claim to
have been disadvantaged or deprived of our lawful investments and residual interest at the
Retirement Separation Benefit System, AFP because of alleged plunder of the Systems Funds,
Large Scale Estafa and Falsification of Public Documents.

We are requesting that you appear in our behalf as private prosecutor of our case.

Thank you very much.

(Sgd.) COMMO. ISMAEL D. APARRI (RET)

(Sgd.) BGEN. PEDRO I. NAVARRO (RET)[44]

As gleaned from the letter-request, the legal services of the respondent law firm were not
engaged by the AGFOI itself; it was Commodore Aparri and Brig. Gen. Navarro who did so, for
and in behalf of the other retired generals and star rank officers claiming to have residual
interests in or to be investors of the AFP-RSBS, the vendee of the lots subject of the
Informations against the petitioner. Moreover, there is no showing in the records that the Board
of Directors of the AGFOI, authorized them to engage the services of the respondent law firm to
represent it as private prosecutor in the above cases. Neither is there any resolution on record
issued by the Board of Directors of the AGFOI authorizing Commodore Aparri and Brig. Gen.
Navarro to secure the services of the respondent law firm to represent it as the private prosecutor
in said cases. If at all, the respondent law firm is the counsel of Aparri and Navarro only.
The AGFOI and/or Commodore
Aparri and/or Brig. Gen.
Navarro Are Not the Offended
Parties in the Informations filed
Before the Sandiganbayan
The petitioner avers that the crimes charged are public offenses and, by their very nature, do
not give rise to criminal liabilities in favor of any private party. He asserts that, as gleaned from
the Informations in Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of Rep. Act

405
No. 3019, the offended party is the government because based on the deeds of sale executed in
favor of the AFP-RSBS, as vendee, it was deprived of capital gains and the documentary stamp
taxes. He contends that the Informations in Criminal Cases Nos. 25134 to 25145, for falsification
of public document under paragraph 4, Article 171 of the Revised Penal Code, do not contain
any allegation that the AGFOI or any private party sustained any damage caused by the said
falsifications. The petitioner further argues that absent any civil liability arising from the crimes
charged in favor of AGFOI, the latter cannot be considered the offended party entitled to
participate in the proceedings before the Sandiganbayan. According to the petitioner, this view
conforms to Section 16, Rule 110 of the Revised Rules of Criminal Procedure, which reads:

SEC. 16. Intervention of the offended party in criminal action. Where the civil action for
recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended
party may intervene by counsel in the prosecution of the offense.

The petitioner posits that the AGFOI is not a member, beneficiary or contributor of the AFP-
RSBS, and that even if it were so, it would not sustain a direct and material damage by an
adverse outcome of the cases. Allowing the AGFOI to intervene would open the floodgates to
any person similarly situated to intervene in the proceedings and, thus, frustrate the speedy,
efficient and inexpensive disposition of the cases.
In his Comment, the Special Prosecutor avers that the AGFOI is entitled to intervene in the
proceedings in the Sandiganbayan because it is a member of the AFP-RSBS, whose rights may
be affected by the outcome of the cases.
The AGFOI and the respondent law firm contend that the latter has a right to intervene,
considering that such intervention would enable the members of AGFOI to assert their rights to
information and access to the official records, documents, and papers, a right granted by no less
than paragraph 7, Article IV of the 1987 Constitution. Furthermore, the funds of the AFP-RSBS
are impressed with public character because the government provided for its initial funds,
augmented from time to time by the salary contributions of the incumbent AFP soldiers and
officers.
We agree with the contention of the petitioner that the AGFOI, and even Commodore Aparri
and Brig. Gen. Navarro, are not the offended parties envisaged in Section 16, Rule 110, in
relation to Section 1, Rule 111 of the Revised Rules of Criminal Procedure.
Under Section 5, Rule 110[45] of the Rules, all criminal actions covered by a complaint or
information shall be prosecuted under the direct supervision and control of the public prosecutor.
Thus, even if the felonies or delictual acts of the accused result in damage or injury to another,
the civil action for the recovery of civil liability based on the said criminal acts is impliedly
instituted[46] and the offended party has not waived the civil action, reserved the right to institute
it separately or instituted the civil action prior to the criminal action, the prosecution of the action
inclusive of the civil action remains under the control and supervision of the public
prosecutor.[47] The prosecution of offenses is a public function.[48] Under Section 16, Rule 110 of
the Rules of Criminal Procedure, the offended party may intervene in the criminal action
personally or by counsel, who will act as private prosecutor for the protection of his interests and
in the interest of the speedy and inexpensive administration of justice. A separate action for the
purpose would only prove to be costly, burdensome and time-consuming for both parties and
further delay the final disposition of the case. The multiplicity of suits must be avoided. [49] With
the implied institution of the civil action in the criminal action, the two actions are merged into
one composite proceeding, with the criminal action predominating the civil. The prime purpose
of the criminal action is to punish the offender in order to deter him and others from committing
the same or similar offense, to isolate him from society, reform and rehabilitate him or, in
general, to maintain social order.
On the other hand, the sole purpose of the civil action is for the resolution, reparation or
indemnification of the private offended party for the damage or injury he sustained by reason of
the delictual or felonious act of the accused.[50] Under Article 104 of the Revised Penal Code, the
following are the civil liabilities of the accused:

406
ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101,
102 and 103 of this Code includes:

1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Thus, when the offended party, through counsel, has asserted his right to intervene in the
proceedings, it is error to consider his appearance merely as a matter of tolerance.[51]
The offended party may be the State or any of its instrumentalities, including local
governments or government-owned or controlled corporations, such as the AFP-RSBS, which,
under substantive laws, are entitled to restitution of their properties or funds, reparation, or
indemnification. For instance, in malversation of public funds or property under Article 217[52] of
the Revised Penal Code, frauds under Article 213[53] of the Revised Penal Code, and violations
of the Forestry Code of the Philippines, P.D. No. 705, as amended, to mention a few, the
government is the offended party entitled to the civil liabilities of the accused. For violations of
Section 3(e) of Rep. Act No. 3019,[54] any party, including the government, may be the offended
party if such party sustains undue injury caused by the delictual acts of the accused. In such
cases, the government is to be represented by the public prosecutor for the recovery of the civil
liability of the accused.
Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party
may also be a private individual whose person, right, house, liberty or property
was actually or directly injured by the same punishable act or omission of the accused,[55] or that
corporate entity which is damaged or injured by the delictual acts complained of. Such party
must be one who has a legal right; a substantial interest in the subject matter of the action as will
entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that
he has the legal right to the demand and the accused will be protected by the satisfaction of his
civil liabilities. Such interest must not be a mere expectancy, subordinate or inconsequential. The
interest of the party must be personal; and not one based on a desire to vindicate the
constitutional right of some third and unrelated party.[56]
Hence, even if the members of AGFOI may also be members or beneficiaries of the AFP-
RSBS, the respondent AGFOI does not have a legal right to intervene in the criminal cases
merely and solely to enforce and/or protect the constitutional right of such members to have
access to the records of AFP-RSBS. Neither are such members entitled to intervene therein
simply because the funds of the AFP-RSBS are public or government funds. It must be stressed
that any interest of the members of the AFP-RSBS over its funds or property is merely inchoate
and incidental. Such funds belong to the AFP-RSBS which has a juridical personality separate
and independent of its members/beneficiaries.
As gleaned from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of
Section 3(e) of Rep. Act No. 3019, the offended party is the government, which was allegedly
deprived by the petitioner and the other accused of the capital gains and documentary stamp
taxes, based on the actual and correct purchase price of the property stated therein in favor of the
AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes charged;
neither was it prejudiced by the said transactions, nor is it entitled to the civil liability of the
petitioner for said cases. Thus, it is not the offended party in the said cases.
We agree with the petitioner that the AGFOI is not even the offended party in Criminal
Cases Nos. 25134 to 25145 for falsification of public documents under paragraph 4, Sec. 1,
Article 171, of the Revised Penal Code. It bears stressing that in the felony of falsification of
public document, the existence of any prejudice caused to third person or the intent to cause
damage, at the very least, becomes immaterial. The controlling consideration is the public
character of a document and the violation of the public faith and the destruction of truth therein
solemnly proclaimed. The offender does not, in any way, have civil liability to a third person.[57]
However, if, in a deed of sale, the real property covered thereby is underpriced by a public
officer and his co-conspirators to conceal the correct amount of capital gains and documentary

407
stamp taxes due on the sale causing undue injury to the government, the offenders thereby
commit two crimes (a) falsification of public document defined in paragraph 4, Article 171 of the
Revised Penal Code; and (b) violation of Section 3(e) of Rep. Act No. 3019, a special penal law.
The offender incurs civil liability to the government as the offended party for violation of
Section 3(e) of Rep. Act No. 3019, but not for falsification of public document under paragraph
4, Article 171 of the Revised Penal Code.
On the other hand, if, under the deed of sale, the AFP-RSBS was made liable for the
payment of the capital gains and documentary stamp taxes and, thereafter, gave the correct
amount thereof to the petitioner to be paid to the government, and the petitioner and his co-
accused pocketed the difference between the correct amount of taxes and the amount entrusted
for payment, then the AFP-RSBS may be considered the offended party entitled to intervene in
the above criminal cases, through the Government Corporate Counsel.[58]
In fine, the AGFOI is not the offended party entitled to intervene in said cases.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Resolutions of the Sandiganbayan are REVERSED and SET ASIDE. No costs.
SO ORDERED.

408
 [G.R. No. 106560. August 23, 1996]

FLOREZIL AGUJETAS and SALVADOR BIJIS, petitioners, vs. COURT OF APPEALS

and THE PEOPLE OF THE PHILIPPINES, respondents.
TORRES, JR., J.:

Petitioners Florezil Agujetas and Salvador Bijis, former Chairman and Vice-Chairman,
respectively of the Provincial Board of Canvassers for the Province of Davao Oriental assail the
decision of the public respondent Court of Appeals which affirmed the decision of the Regional
Trial Court of Mati, Davao Oriental finding them guilty as charged for failure to proclaim a
winning elected candidate. The dispositive portion of the Court of Appeals decision[1] in CA-
G.R. CR No. 09689 reads:

"WHEREFORE, the decision appealed from is AFFIRMED with a modification in that the
actual damages of P50,000.00 are hereby reduced to P40,000.00 and the moral damages
P100,000.00 awarded to Erlinda Irigo are deleted. Costs de officio.

"SO ORDERED."

The antecedents:
In the fateful evening of January 21, 1988, the Provincial Board of Canvassers for the
Province of Davao Oriental, composed of 1.) the Provincial Election Supervisor Florezil
Agujetas, as Chairman, 2.) Provincial Prosecutor Salvador Bijis, as Vice Chairman, and 3.)
Division Superintendent of Public Schools in said province, Benjamin Miano,[2] as member,
proclaimed the winners for Governor, Vice-Governor, and Provincial Board Members for Davao
Oriental in the January 18, 1988 election. The candidates proclaimed were:

PROCLAIMED CANDIDATES

Name No. of Votes

For Governor:
Leopoldo Lopez 59,309 votes
Francisco Rabat 51,191 votes

For Vice-Governor:
Modesto Avellanosa 46,353 votes
Josefina Sibala 54,083 votes

For Provincial Board Members

1. Cirilo R. Valles 42,394 votes
2. Ma. Elena Palma Gil 41,557 votes
3. Antonio Alcantara 39,104 votes
4. Dr. Capistrano Roflo 37,301 votes
5. Orlando Rodriguez 34,914 votes
6. Alfredo Abayon 34,191 votes
7. Justina Yu 32,360 votes
8. Pedro Pena 30,679 votes

The eighth board member proclaimed, Pedro Pena, garnered 30,679 votes when another
candidate for the Board, Erlinda Irigo, got 31,129 or 450 more votes than Pena.
Before the proclamation was made, when the certificate of canvass and proclamation
statements of winning candidates were finished, a verbal protest was lodged by Mrs. Maribeth

409
Irigo Batitang, daughter of candidate Irigo and her designated representative during the
canvassing proceedings, addressed to the Tabulation Committee.
At 8:00 o'clock in the morning of January 22, 1988, the Board resumed its session and
undertook the following activities:

"1. Opening of Ballot Box No. CA-301596 and sealed by Metal Seal No. 204767 at exactly
10:25 a.m.

"2. Continued preparing all reports called for submissions to COMELEC, Regional Office and
Manila.

"3. Reconciliation of entries in the tally sheets. (Exhs. "E" and "E-1")

Considering, however, that the protest was verbal and not officially brought to the attention
of the Provincial Board of Canvassers during official session, the same was not given appropriate
official recognition. (Exh. "7-B", p. 2, Minutes of Provincial Board of Canvassers, January 21,
1988)
The following day, January 23, 1988, Board Member Candidate Erlinda V. Irigo filed her
written protests[3] with the Board of Canvassers. (Exh. "F")
Meanwhile, Francisco Rabat, a losing gubernatorial candidate in Davao Oriental filed with
the COMELEC a complaint against the three board members for violation of BP 881 (Omnibus
Election Code) and RA 6646 (The Electoral Reform Law of 1987). After a preliminary
investigation was conducted by the COMELEC, criminal charges were filed against the Board
Members. The pertinent portions of the information in Criminal Case No. 1886 for Violation of
2nd Paragraph of Section 231 in Relation to Section 262 of the Omnibus Election Code read:

"That on or about January 21, 1988, in the Municipality of Mati, Province of Davao Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused as
Chairman, Vice-Chairman and Third Member, respectively, of the Provincial Board of
Canvassers of Davao Oriental in the January 18, 1988 elections, conspiring with, confederating
together and mutually helping one another, did, then and there, willfully and unlawfully fail to
proclaim Erlinda Irigo as elected Sangguniang Panlalawigan Member candidate who obtained
31,129 votes, the eighth highest number of votes cast in said province but instead proclaimed
candidate Pedro Pena who obtained only 30,699 votes."

"CONTRARY TO LAW"[4]

After trial on the merits, the trial court rendered a decision, the dispositive portion of which
reads:

"WHEREFORE, in view of all the foregoing considerations, Criminal Cases Nos. 1885 and 1887
are hereby DISMISSED, with costs de oficio, and the accused considered acquitted. Their bail
bonds are ordered canceled and released.

"In Criminal Case No. 1886, the Court finds the accused Florezil Agujetas, Salvador Bijis and
Benjamin Miano GUILTY beyond reasonable doubt as principals for violation of Section 231,
second paragraph, of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus
Election Code of the Philippines", and hereby sentences each of them to ONE (1) YEAR
IMPRISONMENT which shall not be subject to probation. In addition, they are sentenced to
suffer disqualification to hold public office and deprivation of the right of suffrage. Said accused
are ordered to pay, jointly and severally, Erlinda Irigo the amounts of P50,000.00 as actual
damages, P15,000.00 as and for attorney's fees, and P100,000.00 as moral damages, plus the
costs of the proceedings.

410
"Let copies hereof be furnished the Honorable Chairman, Commission on Elections, and the
Honorable Secretaries of Justice and Education, Culture and Sports.

"SO ORDERED." (pp. 43-44, Decision)

The three accused appealed to the Court of Appeals which rendered the decision assailed in
this petition.
Petitioners impute to the respondent court the following errors:
I
The Court of Appeals erred in affirming the decision of conviction because:
a. It is the failure to make a proclamation on the basis of the Certificate of Canvass, and
not mere erroneous proclamations, which is punishable under Sec. 262 in relation to
Sec. 231 (2) of the Omnibus Election Code.
b. A protest made to the verification/tabulation committee does not constitute a protest
to the Board of Canvassers itself.
c. The functus oficio rule is applicable to the present case.
d. Credence should not have been given to hearsay testimony to establish the alleged
protest to the Board of Canvassers.
II
The Court of Appeals erred in awarding damages to a person who is not a party to the case.
We find the petition without merit.
On the first assigned error, the issue hinges on the question of what is being penalized by the
pertinent provision of the Omnibus Election Code. Petitioners argue that they are not liable under
the said law because they complied with all the requirements of Sec. 231 of the Omnibus
Election Code - 1. a certificate of canvass was prepared, 2. the same was duly supported by a
statement of votes of each of the candidates, and 3. it was on the basis of the certificate of
canvass that the winners were proclaimed. Only, the certificate was erroneous.
According to petitioners, the Omnibus Election Code does not punish the preparation of an
incorrect certificate of canvass, nor an erroneous proclamation made by the Board; what it does
punish is that, having thus prepared the corresponding certificate, the board for some reason fails
to make the corresponding proclamation on the basis thereof.
On the other hand, the People's counsel maintains that petitioners' challenges on this
particular issue is a question of semantics, a mere play of words; for while the prosecution
maintains that there was a failure to proclaim the winning candidate, petitioners on the other
hand, counter that there was merely an erroneous proclamation of the losing candidate; that
petitioners forget that in proclaiming an erroneous winner they actually failed to proclaim the
winning candidate, in this case, Erlinda Irigo. Respondents further argue that the situation
presented by petitioners would not exculpate them from criminal responsibility for, whichever
way the matter may be looked into, whether as erroneous proclamation of a losing candidate or
failure to proclaim the winning candidate, the result is the same - the winning candidate was not
proclaimed, and hence, injustice is the end result.
We agree with the respondents.
The second paragraph of Section 231 of the Omnibus Election Code reads:

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of each member, supported by a statement of the
votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the province,

411
city, municipality or barangay. Failure to comply with this requirement shall constitute an
election offense."

To go by the explanation as proposed by the petitioner would be tantamount to tolerating

and licensing boards of canvassers to "make an erroneous proclamation" and still be exculpated
by just putting up the inexcusable defense that the "foul-up resulted from the erroneous
arrangement of the names of candidates"[5] in one municipality or that "the basis of their
proclamation was the erroneous ranking made by the tabulation committee." That would be a
neat apology for allowing the board to be careless in their important task by simply claiming that
they cannot be held liable because they did their "duty" of proclaiming the winning candidates on
the basis of the certificate of canvass - even "erroneous" certificates - which they made.
At this point, it is appropriate to quote certain portions of the Resolution in IPD Case No.
88-100, disposing of the complaint filed with the COMELEC issued by Regional Election
Director Resurreccion Borra of Region XI, in relation to the preliminary investigation conducted
by him on said case. Director Borra testified on this resolution[6] (Exh. Z) under cross-
examination by the prosecution, certain portions of which are material to the case:

"But there is one incontrovertible fact that the respondents miserably failed to dispute. This
undeniable fact is conveniently ignored by Respondents' Memorandum. In the exhibits of the
complainant, the computerized tabulation of votes based from the statements of votes by precinct
in each of the 121 Municipalities of Davao Oriental for all of the 600 precincts and even
admitted by the Respondents that there was no error in the tabulation of votes in CA 26-
A. Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only 30,679 votes or a margin of 450
votes by Irigo over Pena. From the ranking, Irigo would have been ahead of Pena, and she should
have been No. 8 in the winning list of 8 candidates instead of Pena. But in the Certificate of
Canvass of Votes and Proclamation of Winning Candidates for Provincial Offices, Pedro T. Pena
was included as No. 8 in the winning list and proclaimed as No. 8 Member of the Sangguniang
Panlalawigan of Davao Oriental by the Provincial Board of Canvassers.

xxx xxx xxx

"The Complainant, in presenting the computerized summary tabulation of votes for each precinct
per municipality of the Province, admitted that the PBC prepared the statements of votes. x x x
The statements of votes (CE 26-A) should have been the basis for the proclamation of the
winning candidates for Provincial Offices. Complainant's documentary and testimonial
evidences showed that the PBC proclaimed Pedro Pena who was not among those candidates
who obtained the 8 highest number of votes cast in the province per municipality by precinct
which violated the legal requirement of the 2nd paragraph of Section 231 of BP No. 881 as
amended.

"The respondents were not able to explain their failure to comply with the requirement that (sic)
the basis for the proclamation of Pena when he was not among the eight candidates who obtained
the highest number of votes as evidenced by the statements of votes. In fact they admitted that
the basis was not the statement of votes but the erroneous ranking by the Tabulators. x x x"[7]

It appears from the foregoing resolution of Director Borra that it was difficult to make a
mistake in selecting the 8 candidates with the highes votes for purposes of making the certificate
of canvass because there was no error in the tabulation of votes as CE Form No. 26-A (which is
the statement of votes) shows that Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only
30,679 votes. The mistake could only be made through utter carelessness, if not made
deliberately. This situation only illustrates that the questioned provision cannot be construed in
the manner as argued by petitioners for it would defeat the purpose and spirit for which the law
was enacted, i.e., to achieve the holding of free, orderly, honest, peaceful and credible
elections. In Lino Luna vs. Rodriguez,[8] the court observed:

412
"Experience and observations taught legislature and courts that, at the time of a hotly contested
election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the
limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the
purity of the ballot and defeat the will of the people at the polls. Such experience has led the
legislature to adopt very stringent rules for the purpose of protecting the voter in the manner of
preparing and casting his ballot to guard the purity of elections." "The infinite ingenuity of
violent spirit in evading the rules and regulations of elections and the use of bribery, fraud and
intimidation has made necessary the establishment of elaborate and rigid rules for the conduct of
elections. The very elaborateness of these rules has resulted in their frequent violation and the
reports of the courts are replete with cases in which the result of an election has been attacked on
the ground that some provisions of the law have not been complied with. Presumably, all the
provisions of the election laws have a purpose and should be observed.

On the second assigned error, petitioners contend that assuming ex gratia argumenti that the
protest made by candidate Irigo's daughter Maribeth Irigo Batitang was the verbal protest
contemplated under Sec. 245 of the Omnibus Election Code, such fact could not be deemed to be
a protest made to the Board of Canvassers itself; and that the failure of the member of the
verification/tabulation committee concerned to apprise the Board prior to the proclamation
cannot be taken against the members of the Board.
We find the above contentions untenable. As aptly stated by Director Borra in his
aforementioned resolution:

"The timely verbal protest of the daughter-watcher of Mrs. Erlinda Irigo did not trigger on the
part of the PBC (Provincial Board of Canvassers) the responsible action of verifying the basis of
the protest. The 3 Members of the PBC could not attribute to the Committee on Tabulation the
blame for their errors as the PBC members themselves were the ones who certified under oath
the said Certificate of Proclamation and the Tabulation Committee members were totally under
their direct supervision and control."

Petitioners also raised the issue that it was only after the proclamation had been made that
the Board was informed of the fact that an error may have been committed in the tabulation; and
that however, having discharged its function of making the canvass and proclamation of the
winning candidates, the Board of Canvassers became functus oficioand could no longer correct
the erroneous proclamation.
As to this issue, suffice it to state that whether or not "the Board of Canvassers
became functus oficio" after it proclaimed the winning candidates, is beside the point. What
matters is whether or not petitioners committed an election offense. Besides, as stated earlier,
Mrs. Irigo's watcher made a timely verbal protest to the Tabulation Committee.
Petitioners further contend that Maribeth Irigo Batitang, the daughter of candidate Irigo and
her designated representative during the canvassing proceedings, was never presented as a
witness; that Erlinda Irigo, upon whose testimony the trial court relied heavily to establish the
fact of protest, was not present during the canvassing proceedings; that Mrs. Irigo's testimony on
this point is inadmissible as being hearsay and should not have been considered by the trial court;
that no other evidence having been adduced with respect to the protest allegedly made by Irigo's
representative, such fact should be deemed as not having been established; and that there was
thus no basis, therefore, for the respondent Court of Appeals to hold that the Board was deemed
to have been constructively informed of the verbal protest and that the members thereof were
liable for having failed to act on the basis thereof.
We are not persuaded. Even if we tentatively grant that Mrs. Irigo's testimony is hearsay
evidence, there is still ample evidence which proves that the Board was deemed to have been
informed of the verbal protest and that the members thereof were liable for having failed to act
on the basis thereof.
The resolution[9] of Director Borra quoted the questions and answers during the preliminary
investigation. The import of those deliberations show that petitioner Agujetas, as Chairman of

413
the Provincial Board of Canvassers, admitted that the tabulation committee was under the
supervision of the Board.[10] As regards petitioner Bijis, Vice Chairman of the Board, he
admitted that he signed the minutes of the Board to the effect that on January 22, 1988 in the
morning after the proclamation, the Board's business was "reconciliation of entries in the tally
sheet,"[11] thus showing that the proclamation in question had been made even before the votes
were reconciled on the tally sheets. And as to accused Miano, Secretary of the Board, he
admitted having stated in the minutes[12] that an oral complaint was made by Mrs. Batitang,
representative of Erlinda Irigo, but that the complaint was lodged with the tabulation committee
and not with the Board; and that he did not care to examine the partial results for each provincial
candidate, including Erlinda Irigo and Pedro Pena.[13]
An admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof.[14]
On the last error assigned by petitioners, they maintain that the present case was filed by
Francisco Rabat, the losing gubernatorial candidate in the Province of Davao Oriental; that Mrs.
Irigo never joined the Complaint as a party-plaintiff at any stage of the proceedings; that she was
merely presented as a witness; and thus, for the court to have awarded damages to Mrs. Irigo was
a patent error. We find petitioners' allegations untenable. Except where the law specifically
provides the contrary, a complaint that a public crime has been committed may be laid by any
competent person.[15] The Omnibus Election Code does not specifically provide that a particular
person must file the complaint and hence, the complaint filed by Francisco Rabat is valid.
The counsel for the people points out and we agree-

"Even an offended party not mentioned in the Information may claim the civil liability during the
trial if he has not waived it.[16]

"In the case at bar, Erlinda Irigo clearly, was the party offended or the person whose rights were
trampled upon, by the indecent haste with which petitioners proclaimed Teodoro Pena (sic) as
the winner of the 8th seat of the Sangguniang Panlalawigan.

"The persistence of Erlinda Irigo's lawyers to participate, as in fact they participated, in the
proceedings a quo as private prosecutors over the vehement objections of petitioners' counsel
clearly indicates that Erlinda Irigo intended to claim damages from petitioners."[17]

In U.S. v. Heery,[18] this court held that "If the injured party has not expressly waived the
civil liability of the accused nor reserved his right to file a separate civil action, it is error for the
court to refuse a request of the injured party during the course of the criminal prosecution to
submit evidence of his damages. Thus, the arguments of the petitioners notwithstanding,
respondent court did not err in awarding damages to Mrs. Irigo.
After the People's counsel has filed respondents' comment, petitioners filed their Reply
wherein they raised for the first time (not even in their Petition), the issue that the crime under
which petitioners were convicted no longer exists because Republic Act Nos. 6646 (the Electoral
Reforms Law of 1987) and 7166 (Electoral Reforms Law of 1991) were subsequently approved
on January 5, 1988 and November 26, 1991, respectively; that these two laws amended the
Omnibus Election Code by deleting certain provisions thereof or adding new ones; and that
among those amended was Section 231, which was modified by Section 28 of RA No. 7166 by
removing the specific manner by which the proclamation of winning candidates by the Board of
Canvassers should be made and thereby, in effect, repealing the second paragraph of Sec. 231 of
the old Omnibus Election Code under which Petitioners had been convicted.
Points of law, theories, issues and arguments not adequately brought to the attention of the
trial court need not be, and ordinarily will not be considered by a reviewing court as they cannot
be raised for the first time on appeal.[19] However, since RA 7166 was enacted after the trial
court had rendered its decision, and while the case was already pending appeal in the Court of
Appeals, and in order to settle the issue once and for all, this court will make a clear-cut ruling
on the issue.

414
 Sec. 231 of the Omnibus Election Code (Batas Pambansa Blg. 881) was not expressly
repealed by R.A. 7166 because said Sec. 231 is not among the provisions repealed by Sec. 39 of
R.A. 7166 which we quote:

"Sec. 39. Amending and Repealing Clause. - Sections 107, 108 and 245 of the Omnibus Election
Code are hereby repealed. Likewise, the inclusion in Section 262 of the Omnibus Election Code
of the violations of Sections 105, 106, 107, 108, 109, 110, 111 and 112 as among election
offenses is also hereby repealed. This repeal shall have retroactive effect.

"Batas Pambansa Blg. 881, Republic Act No. 6646, Executive Order Nos. 144 and 157 and all
other laws, orders, decrees, rules and regulations or other issuances, or any part thereof,
inconsistent with the provisions of this Act are hereby amended or repealed accordingly."

The statement "All laws or parts thereof which are inconsistent with this Act are hereby
repealed or modified accordingly," certainly is not an express repealing clause because it fails to
identify or designate the act or acts that are intended to be repealed. If repeal of particular or
specific law or laws is intended, the proper step is to so express it.[20]
Neither is there an implied repeal of Sec. 231 by the subsequent enactment of RA 6646 and
RA 7166.
While Sec. 28 of RA 7166, like Sec. 231 of the Omnibus Election Code (BP 881) pertains to
the Canvassing by the Boards of Canvassers, this fact of itself is not sufficient to cause an
implied repeal of the prior act.[21] The provisions of the subject laws are quoted below for
comparison:

"Sec. 231. - Canvass by the board. - The board of canvassers shall meet not later than six o'clock
in the afternoon of election day at the place designated by the Commission to receive the election
returns and to immediately canvass those that may have already been received. It shall meet
continuously from day to day until the canvass is completed, and may adjourn but only for the
purpose of awaiting the other election returns from other polling places within its
jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far
for each candidate for each office, furnishing the Commission in Manila by the fastest means of
communication a certified copy thereof, and making available the data contained therein to the
mass media and other interested parties. As soon as the other election returns are delivered, the
board shall immediately resume canvassing until all the returns have been canvassed.

"The respective board of canvassers shall prepare a certificate of canvass duly signed and
affixed with the imprint of the thumb of the right hand of each member, supported by a statement
of the votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the
province, city municipality or barangay. Failure to comply with this requirement shall constitute
an election offense.

"Subject to reasonable exceptions, the board of canvassers must complete their canvass within
thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces.
Violation hereof shall be an election offense punishable under Section 264 hereof.

"With respect to the election for President and Vice-President, the provincial and city boards of
canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of
votes received by each candidate in each polling place and transmit the first copy thereof to the
Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the
third copy shall be kept by the provincial election supervisor or city election registrar; the fourth
and the fifth copies to each of the two accredited political parties. (Sec. 169, 1978 EC)."[22]

"Sec. 28. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - (a)
The city or municipal board of canvassers shall canvass the election returns for President, Vice-
President, Senators and members of the House of Representatives and/or elective provincial and

415
city or municipal officials. Upon completion of the canvass, it shall prepare the certificate of
canvass for President, Vice-President, Senators and Members of the House of Representatives
and elective provincial officials and thereafter, proclaim the elected city or municipal officials, as
the case may be.

"(b) The city board of canvassers of cities comprising one or more legislative districts shall
canvass the election returns for President, Vice-President, Senators, Members of the House of
Representatives and elective city officials. Upon completion of the canvass, the board shall
prepare the certificate of canvass for President, Vice-President, and Senators and thereafter,
proclaim the elected Members of House of Representatives and city officials.

"(c) (1) In the Metro Manila Area, each municipality comprising a legislative district shall have a
district board of canvassers which shall canvass the election returns for President, Vice-
President, Senators, Members of the House of representatives and elective municipal
officials. Upon completion of the canvass, it shall prepare the certificate of canvass for President,
Vice-President, and Senators and thereafter, proclaim the elected Members of the House of
Representatives and municipal officials.

"(2) Each component municipality in a legislative district in the Metro Manila Area shall have a
municipal hoard of canvassers which shall canvass the election returns for President, Vice-
President, Senators, xxx

"(3) The district board of canvassers of each legislative district comprising two (2) municipalities
in the Metro Manila Area shall canvass the certificates of canvass for President, Vice-President,
xxx

"(d) The provincial board of canvassers shall canvass the certificates of canvass for President,
Vice-President, Senators, Members of the House of Representatives and elective provincial
officials as well as plebiscite results, if any plebiscite is conducted simultaneously with the same
election, as submitted by the board of canvassers of municipalities and component cities. Upon
completion of the canvass, it shall prepare the certificate of canvass for President, Vice-President
and Senators and thereafter, proclaim the elected Members of the House of Representatives and
provincial officials as well as the plebiscite results, if any."[23]

While the two provisions differ in terms, neither is this fact sufficient to create
repugnance. In order to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the inference of implied repeal may be
drawn, for inconsistency is never presumed.[24] "It is necessary, says the court in a case,[25] before
such repeal is deemed to exist that it be shown that the statutes or statutory provisions deal with
the same subject matter and that the latter be inconsistent with the former. There must be a
showing of repugnance clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly enacted. An
inconsistency that falls short of that standard does not suffice."[26] For it is a well-settled rule of
statutory construction that repeals of statutes by implication are not favored.[27] The presumption
is against inconsistency or repugnance and, accordingly, against implied repeal.[28] For the
legislature is presumed to know the existing laws on the subject and not to have enacted
inconsistent or conflicting statutes.[29]
In the case at bar, the needed manifest indication of legislative purpose to repeal is not
present. Neither is there any inconsistency between the two subject provisions. The explanation
of a legal scholar[30] on the subject, particularly on Section 1 of BP 881 is enlightening:

"The Omnibus Election Code of the Philippines is Batas Pambansa Blg. 881, which was enacted
into law on December 3, 1985. It codified all previous election laws. It has undergone some
amendments, basically by the 1987 Constitution, Republic Act No. 6646, otherwise known as

416
"The Electoral Reform Law of 1987," and Republic Act No. 7166, providing for synchronized
national and local elections on May 11, 1992.

"The Omnibus Election Code is the basic law on elections. While legislations have been enacted
every time an election for elective officials is scheduled, the Omnibus Election Code remains the
fundamental law on the subject and such pieces of legislations are designed to improve the law
and to achieve the holding of free, orderly, honest, peaceful and credible elections."

Consistently, while Article 22 of the Revised Penal Code provides that penal laws shall have
retroactive effect insofar as they favor the person guilty of a felony xxx, this provision cannot be
applied to benefit the petitioners because Section 231 of BP 881[31] was not repealed by
subsequent legislations, contrary to petitioners contention that Section 231 was so repealed by
R.A. Nos. 6646 and 7166.
ACCORDINGLY, the petition is DENIED for lack of merit and the assailed decision of the
respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.

417
 [G.R. No. 110129. August 12, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDELCIANO AMACA @ EDDIE

and JOHN DOE @ OGANG, accused, EDELCIANO AMACA @ EDDIE, accused-
appellant.

DECISION
PANGANIBAN, J.:

The ante mortem statement of the victim is sufficient to identify the assailant in the case at
hand. However, the accused cannot be convicted of murder attended by treachery, because the
Information charged him with murder qualified only by evident premeditation. This legal lapse
of the prosecution -- for that matter, any prosecution lapse -- should benefit the appellant,
because in a criminal case, the accused may be held accountable only for the crime charged (or
for the crime necessarily included therein), and every doubt must be resolved in his favor. Thus,
we hold him guilty only of homicide. Furthermore, since the heirs of the victim waived their
claim through an affidavit of desistance, no award for civil indemnity should be included in this
Decision finding the accused guilty of the homicide.

Statement of the Case

These postulates are explained in the Courts adjudication of this appeal from the
Decision[1] dated November 19, 1992 of the Regional Trial Court of Bais City, Branch 45,[2]in
Criminal Case No. 550-C convicting Accused Edelciano Amaca of murder and sentencing him
to reclusion perpetua.
On December 17, 1990, an Information[3] was filed by Bais City Prosecutor Epifanio E.
Liberal, Jr. against Appellant Amaca and one known only by his alias Ogang, charging them as
follows:

That on October 1, 1990 at around 7:00 oclock in the evening, more or less, in Purok Liberty
Hills, Barangay Mabigo, Canlaon City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused mutually helping one another and with evident premeditation
and at nighttime did then and there wilfully, unlawfully and feloniously attack, assault and shot
with the use of a firearm one Wilson Vergara who, as a result thereof, suffered fatal gunshot
wound as reflected in the medical certificate issued on October 2, 1990 by the Guihulngan
District Hospital which was the immediate cause of his immediate death.

Contrary to Art. 248 of the Revised Penal Code.

A warrant for the arrest of accused-appellant was issued on January 16, 1991.[4] However,
this was returned unserved on two different occasions for the reason that the subject had already
changed address and his whereabouts [were] unknown.[5] A motion for reinvestigation filed by
appellants Counsel de Oficio Marcelo Ondoy was denied in an Order dated April 15, 1991 on the
ground that the trial court had not yet acquired jurisdiction over the accused who was then still at
large.[6] Jurisdiction over the person of appellant was acquired by the said court only on July 1,
1991 when he was arrested by police authorities.[7] Thereafter, reinvestigation was conducted but
the prosecutor, reiterating his prima facie findings, resolved to continue the prosecution of the
accused.
Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy, pleaded
not guilty to the charge.[8] Trial ensued in due course. Thereafter, the trial court rendered its
Decision, the decretal portion of which reads:

418
WHEREFORE, premises considered, this Court finds accused EDELCIANO AMACA alias
EDDIE guilty beyond reasonable doubt of the crime of murder as penalized under Article 248 of
the Revised Penal Code, and hereby sentences the said accused to a penalty of RECLUSION
PERPETUA, without pronouncement as to civil liability, and damages, and to pay costs.

SO ORDERED.[9]

The Facts

The trial court synthesized the facts, based on the testimonies of witnesses for the
prosecution and the defense, as follows:

To prove the injuries sustained by the victim, Wilson Vergara, and his cause of death, the
prosecution presented Dr. Edgar P. Pialago, a resident physician of the Guihulngan District
Hospital, Guihulngan, Negros Oriental, who testified that on October 2, 1990, he was on duty at
the aforesaid hospital, and was able to attend to victim Wilson Vergara who had just undergone a
surgical operation conducted by another doctor, Dr. Gonzaga. The major organs of the victim,
namely, the heart, lungs and kidney, were no longer functioning normally, and thus, he was
suffering from multiple organ system failure. Furthermore, there was injury in the pancreas,
causing a leak of the pancreatic juice. Victim suffered two gunshot wounds at the back, and x-ray
revealed two (2) bullets inside the body, and there was no exit wound. The patient was admitted
at 10:45 in the evening of October 1, 1990, and died at 7:00 in the evening of the following
day. He identified the death certificate (Exh. A), and the data sheet of the victim and the final
diagnosis. (Exh. B) Even with immediate medical attention, the victim could not have survived
with the wounds he sustained.

Bernardo Mangubat, member of the Philippine National Police of Canlaon City, testified that as
a police investigator one of his companions in the force fetched him from his residence at about
7:00 in the evening of October 1, 1990, and informed him of a shooting incident, where the
victim was at the clinic of Dr. Cardenas, which was near his residence. Upon reaching the clinic
of Dr. Cardenas, he saw the victim already on board a Ford Fiera pick up ready for transport to
the hospital. He inquired from the victim about the incident, and the former answered he was
shot by CVO Amaca and Ogang. Upon query why he was shot, the victim said he did not know
the reason why he was shot. Upon being asked as to his condition, the victim said that he was
about to die.(TSN, p. 22, March 4, 1992) Upon being asked, the victim identified himself as
Nelson (sic) Vergara. He was able to reduce into writing the declaration of victim Vergara, and
have the latter affixed (sic) his thumbmark with the use of his own blood in the presence of
Wagner Cardenas, the brother of the City Mayor. (Exh. C)

Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely, Felix
Ponting, and Alfredo Gabucero, portrayed the following scenario: Felix Ponting and Alfredo
Gabucero were members of the CAFGU (Civilian Armed Forces Geographical Unit) and
accused as member of the Civilian Volunteer Organization (CVO) with station at Barangay
Lumapao, Canlaon City. On October 1, 1990, the accused together with his companion Felix
Ponting were on duty at the said station from 6:00 oclock in the evening to 8:00 oclock that same
evening. After their duty at 8:00 oclock, they went to sleep at the detachment, and were relieved
by Alfredo Gabutero, whose duty covered from 8:00 to 9:00 that same evening.[10]

Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law Jose
Lapera both desisted from further prosecution of the case; the former because of the financial
help extended by the accused to her family, and the latter because Segundina had already
consented to the amicable settlement of the case. This notwithstanding, the Department of Justice
found the existence of a prima facie case based on the victims ante mortem statement.[11]

419
 The Trial Courts Ruling

The trial court deemed the victims statement to Police Officer Mangubat, positively
identifying Appellant Amaca, a dying declaration sufficient to overcome the latters defense of
alibi. However, due to the voluntary desistance of the victims mother from further prosecuting
the case, the court a quo declined to make a finding on the civil liability of the appellant.

The Issue

In his brief, the appellant filed a lone assignment of error, to wit:

The trial court erred in finding accused Edelciano Amaca guilty beyond reasonable doubt of the
crime of murder on the sole basis of the alleged dying declaration of the victim to Police Officer
Bernardo Mangubat.[12]

The Courts Ruling

The appeal is partially granted. The appellant is guilty only of homicide, not murder, and
civil indemnity shall not be awarded to the heirs of the deceased.

Dying Declaration Sufficient to Identify Assailant

A dying declaration is worthy of belief because it is highly unthinkable for one who is aware
of his impending death to accuse falsely or even carelessly anyone of being responsible for his
foreseeable demise. Indeed, when a person is at the point of death, every motive for falsehood is
silenced and the mind is induced by the most powerful consideration to speak the truth.[13] This is
the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of
Court. The elements of such exception are: (1) the deceased made the declaration conscious of
his impending death; (2) the declarant would have been a competent witness had he survived; (3)
the declaration concerns the cause and surrounding circumstances of the declarants death; (4) the
declaration is offered in a criminal case where the declarants death is the subject of inquiry; and
(5) the declaration is complete in itself.[14] All these concur in the present case.

Declarant a Competent Witness

The appellant contends that had he survived, the declarant would not have been a competent
witness to identify his assailant. He emphasizes that the victim was shot twice at the back at
nighttime and that x x x the witness/victim based on the foregoing circumstance was not able to
see the alleged assailants x x x.[15] We are not persuaded. True, the victim, Wilson Vergara, was
hit at the back by two bullets. But as the prosecution clearly showed by other evidence, Wilson
did not lose consciousness upon being shot. In fact, his ante mortem statement clearly indicates
that he was able to see and recognize who shot him. In this light, appellant is assailing the
credibility, not the competency, of the victim. Competency of a witness to testify requires a
minimum ability to observe, record, recollect and recount as well as an understanding of the duty
to tell the truth.[16]Appellant does not dispute that the victim was capable of observing and
recounting the occurrences around him; appellant merely questions whether the victim, under the
circumstances of this case, could have seen his assailant. In effect, appellant challenges merely
the credibility of the victims ante mortem statement. We hold that the serious nature of the
victims injuries did not affect his credibility as a witness since said injuries, as previously

420
mentioned, did not cause the immediate loss of his ability to perceive and to identify his
shooter. The Court had occasion in the past to rule on a similar issue as follows:

x x x() The question as to whether a certain act could have been done after receiving a given
wound,() according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), is always
one that must be decided upon the merits of a particular case. They cited a case from Viberts
Precis de Med. Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his
adversary. The lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of
water from the courtyard. When the fire was extinguished, the man lay down in bed and
died.Vibert performed the autopsy, and found that the left ventricle of the heart had been
perforated by the revolvers bullet. It is evident from the foregoing that Dr. Acostas assertion that
the victim of a gunshot wound would immediately lose consciousness, after infliction of the
wound, may not be true in all cases. x x x[17]

Appellant also argues that the declarant could not have seen who shot him because the actual
shooting occurred at 7:00 oclock in the evening.[18] This statement is bereft of factual basis. The
record shows that Police Officer Mangubat was fetched from his house at 7:00 p.m. to
investigate the shooting. He was informed that the victim had already been brought to the clinic
of Dr. Cardenas.[19] It may thus be inferred that the shooting occurred sometime before the victim
was found, brought to the clinic, and before Mangubat was fetched from his house. Thus, a
considerable period of time must have elapsed from the time of the actual shooting until the
policeman was fetched from his house around 7:00 p.m. That he was shot way before 7:00 p.m.
does not lead to the inference that it was pitch black at the time of the shooting. Indeed, from the
foregoing, it is reasonable to assume that the crime was committed before nightfall and that there
was sufficient daylight to enable the victim to identify his assailant. At any rate, there are no
indicia in the record that lighting conditions made it impossible for declarant to identify his
assailant. Ineluctably, the positive assertion of the declarant that he did recognize his shooter has
greater persuasive value than the baseless negative speculation of the defense that he did not.

Genuineness of the Dying Declaration

The defense attempts to cast doubt on the genuineness of the dying declaration by
suggesting that since the relationship between CAFGU and the PNP is marred by jealousy,
suspicion and general dislike for one another,[20] Police Officer Mangubat had enough motive to
falsely implicate appellant who was a CAFGU member. The defense also asks: Why was the
alleged dying declaration of the victim merely thumbmark (sic) when in fact he was still
coherent, conscious and very capable of writing his name at that time?[21] Additionally, the
defense questions why Wagner Cardenas who signed the ante mortem statement as witness was
not presented as such by the prosecution.[22]
The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not
destroy the genuineness of the ante mortem statement. Police Officer Mangubat is presumed
under the law to have regularly performed his duty. There is nothing in the circumstances
surrounding his investigation of the crime which shows any semblance of irregularity or bias,
much less an attempt to frame Appellant Amaca. As aptly noted by the trial court, even appellant
testified that he had no previous misunderstanding with Police Officer Mangubat and knew no
reason why the latter would falsely testify against him.[23] This dismal failure of the defense to
show any ill motive on the part of said police officer adds credence to Mangubats testimony.[24]
Moreover, that the declarant attested to his ante mortem statement through his thumbmark in
his own blood is sufficient to sustain the genuineness and veracity thereof.This manner of
authentication is understandable in view of the necessity and urgency required by the attendant
extreme circumstances. It cannot be indicative of any ulterior motive on the part of Police
Officer Mangubat. We have clearly ruled that an ante mortem statement may be authenticated
through the declarants thumbmark imprinted with his own blood, and serve as evidence in the

421
form of a dying declaration in a criminal case involving his death.[25] Verily, such declaration
need not even be in writing and may be proven by testimony of witnesses who heard it.
Finally, the non-presentation of Wagner Cardenas as witness during the trial is not fatal, as
his testimony would have been merely corroborative of Mangubats. In addition, the presumption
that evidence omitted by a party would be adverse if presented does not obtain in this case, since
Wagner Cardenas is also available and could have been called to the witness stand by accused-
appellant. Besides, it is the prosecutors prerogative to choose his own witnesses to prove the
Peoples cause.[26]

Ante Mortem Statement as Res Gestae

The ante mortem statement may also be admitted in evidence when considered as part of
the res gestae, another recognized exception to the hearsay rule provided specifically under Rule
130, Section 36 of the Rules of Court. The requisites for the admissibility of statements as part of
the res gestae are: (a) the statement is spontaneous; (b) it is made immediately before, during or
after a startling occurrence; and (c) it relates to the circumstances of such occurrence. [27] These
requirements are obviously fulfilled in the present case where the statement, subject of this
discussion, was made immediately after the shooting incident and, more important, the victim
had no time to fabricate.
An ante mortem statement may be admitted in evidence as a dying declaration and as part of
the res gestae. This dual admissibility is not redundant and has the advantage of ensuring the
statements appreciation by courts, particularly where the absence of one or more elements in one
of the said exceptions may be raised in issue. In this manner, the identification of the culprit is
assured.[28]

Alibi Debunked

The defense also contests the trial courts finding that the alibi interposed by the accused
miserably fall short of exculpation. (Decision, p. 7)[29] Appellant insists that, since the dying
declaration was unreliable and since there was no positive identification aside from this
declaration, the defense of alibi gained strength.[30] There is no basis for this contention for, as
previously discussed, the ante mortem statement met all requirements for its admissibility either
as a dying declaration or as part of the res gestae or both.[31]It must be remembered that alibi is
inherently weak and the facts in the case at hand show that it was not at all impossible,
considering the circumstances of time and place, for the accused-appellant to have been present
at the crime scene at the time of its commission.[32] The military detachment at Barangay
Lumapao, where appellant allegedly slept, is a mere seven kilometers away from Barangay
Mabigo, Purok Liberty Hills where the crime was committed. In other words, the able-bodied
appellant was only an hours walk and a short fifteen-minute tricycle ride from the locus
criminis.[33] As correctly argued by the trial court, (i)t would not have been impossible for the
accused to be at Purok Liberty Hills, and shoot the victim, and come back to his detachment in a
matter of thirty (30) minutes, the time testified by the defense witness Gabutero as to going to
and coming back from these two places. (TSN, p. 17, July 15, 1992)[34] The alibi of appellant
cannot overcome, therefore, the very persuasive declaration of the victim.[35]
Based on the foregoing discussion, the Courts conscience rests easy with the moral certainty
that indeed accused-appellant committed the crime charged. His pretense at innocence is futile in
view of the overwhelming evidence presented against him. Even his flight -- eluding the police
for almost six months after the issue of the warrant for his arrest -- clearly bespeaks his guilt.[36]

Murder or Homicide?

422
 Finally, the defense posits that the appellant may be held liable only for homicide since
treachery was not alleged in the Information, while evident premeditation and nighttime,
although duly alleged, were not satisfactorily proven.[37] We agree. The Information readily
reveals that the killing was qualified only by evident premeditation. The trial court however
found that the killing was qualified by treachery. Even assuming that this conclusion is supported
by the evidence on record, we cannot appreciate treachery to qualify the crime to murder for the
simple reason that this was not alleged in the Information. Treachery is an element of the
crime. The Constitution requires that the accused must be informed of the nature and cause of the
accusation against him.[38] Obviously, this failure to allege treachery in the Information is a
major lapse of the prosecution. Since every doubt must be resolved in favor of the accused, we
cannot convict him of murder through treachery under an Information that charged him with
murder qualified by evident premeditation.
Moreover, in this case, treachery and nighttime may not be considered even as generic
aggravating circumstances, because there is nothing in the testimony of the prosecution
witnesses to convincingly show that the accused-appellant consciously and purposely adopted
(1) such means of attack to render the victim defenseless and (2) the darkness of night to
facilitate the commission of the crime, to prevent its discovery or even evade capture. This
conclusion is further bolstered by the simple fact that not one of the prosecution witnesses saw
the commencement of the assault or even the actual assault itself. Hence, they are not competent
to testify on whether the aggravating circumstances of treachery and nighttime attended the
commission thereof. These circumstances cannot be appreciated on the basis of mere
presumptions or suppositions; they must be proven as clearly as the crime itself.[39]
Appellant may therefore be held liable only for the crime of homicide defined under Article
249 of the Revised Penal Code. Since there are no mitigating or aggravating circumstances, the
penalty of reclusion temporal provided under said article shall be imposed in its medium
period. Applying the Indeterminate Sentence Law, appellant should suffer imprisonment
of prision mayor in its medium period to reclusion temporal, also in its medium period.

Non-Award of Indemnity

The trial court did not make a finding on the civil liability of accused-appellant, reasoning
that it was prevented from doing so by the unwillingness of the victims mother, Segundina
Vergara, to further prosecute the case against the accused.[40] The trial court cited the resolution
of the Department of Justice (DOJ) denying the motion for reinvestigation. The DOJ held that
the ante mortem statement of the victim testified to by Pfc. Mangubat accorded prima
facie validity to the case against the accused, but it noted and confirmed the desistance of the
victims mother and her son-in-law from further prosecuting the case. The salient portions of
Segundina Vergaras affidavit of desistance quoted in said resolution reads:

That I am the complainant in a case which I filed in the Office of the City Prosecutor, Canlaon
City and docketed as Criminal Case No. 550-C of Regional Trial Court, Bais City for Murder
against Eddie Amaca as the alleged accused;

That in the evaluation of our case against him, I have found out that the death of my son Wilson
Vergara was purely accidental that could be attributed to his fault;

That due to my compassion to the poor accused who is a family man, I have decided to drop the
case against Eddie Amaca for the reason that his family financially help (sic) us in our family
problems due to the death of my late son;

That with our desire to have a mutual understanding and goodwill among ourselves, since we are
neighbors and our respective families are good friends, I have decided to drop the case against
Eddie Amaca;

423
That when the said case was scheduled for hearing, I will not testify anymore as the complaining
witness;[41]

The Solicitor General finds nothing wrong with the trial courts reasoning and recommends
that its decision be affirmed.[42] We agree. The facts of this case show that the victims mother
desisted from prosecuting the case in consideration of the financial help extended to her family
by the accused-appellant. Such financial help when viewed as an offer of compromise may also
be deemed as additional proof to demonstrate appellants criminal liability.[43] Parenthetically, her
claim that the cause of her sons death was an accident attributable to the latter, has no basis. It is
inconceivable that the victims two gunshot wounds at the back were self-inflicted. Well-settled it
is that the desistance of the victims complaining mother does not bar the People from
prosecuting the criminal action, but it does operate as a waiver of the right to pursue civil
indemnity. Hence, in effectively waiving her right to institute an action to enforce the civil
liability of accused-appellant, she also waived her right to be awarded any civil indemnity arising
from the criminal prosecution.[44] This waiver is bolstered by the fact that neither she nor any
private prosecutor in her behalf appealed the trial courts refusal to include a finding of civil
liability.[45]
The records, however, do not show whether the deceased had other compulsory heirs. Such
heirs, if there are any, may file an independent civil action to recover damages for the death of
Wilson Vergara.
WHEREFORE, premises considered, the questioned Decision is
hereby MODIFIED. Accused-appellant Edelciano Amaca is found GUILTY of
homicide and SENTENCED to an indeterminate penalty of ten years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. No
civil indemnity is awarded. No costs.
SO ORDERED

424
G.R. Nos. 113519-20 March 29, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO PANLILIO y FRANCISCO, defendant-appellant.

BELLOSILLO, J.:p

Danilo Panlilio y Francisco was charged before the Regional Trial Court of Valenzuela, Metro
Manila, with kidnapping under Art. 267 of the Revised Penal Code (Crim. Case No. 2351-V-93)
and violation of P.D. 532 known as the "Anti-Piracy and Anti-Highway Robbery Law of 1974"
(Crim. Case No. 2352-V-93). In the first, case, the Information alleged that on or about 17 March
1993 in Valenzuela, Metro Manila, the accused kidnapped Leah Marie Jordan y Villato and
detained her for more than an hour. In the second case, the Information alleged that on the same
occasion, with intent to gain and by means of force and intimidation, the accused took a pair of
gold earrings worth P700.00 from the same complaining witness while they were walking along
St. Jude St., Malinta, Valenzuela, a public highway.

Ranged against the denial and alibi of the accused, the trial court found the testimony of Leah
Marie positive and convincing hence its joint decision of 15 June 1993 convicting the accused in
both cases as charged. In the kidnapping case the accused was sentenced to reclusion
perpetua and to pay the costs, while in the highway robbery he was sentenced to an
indeterminate prison term from ten (10) years and one (1) day of prision mayor as minimum to
thirteen (13) years and two (2) months of reclusion temporal as maximum, with the accessory
penalties prescribed by law, to pay complainant the value of the pair of earrings and to pay the
costs. 1

The evidence shows that at about eleven-forty in the morning of 17 March 1993 Leah Marie
Jordan y Villato, a 10-year old student, was waiting for her younger sister outside the premises of
St. Jude School in Malinta, Valenzuela. There she was approached by Danilo Panlilio who
inquired if she knew a certain "Aling Rosa." After she replied that she did not know her and that
she was only there to fetch her younger sister, Danilo suddenly poked a knife, which was
concealed inside a hat, at the right side of her neck, handed her an empty cigarette pack with a
note and ordered her to give it to "Aling Ester." When she told him that she did not know where
to find "Aling Ester," he said that he would lead her to the place where "Aling Ester" could be
found.

While Danilo and Leah Marie were walking side by side the former continued to poke his knife
at the latter's neck. He told her to be quiet otherwise he would kill her. Then they both boarded a
passenger jeepney with the knife still effectively serving as a contrivance to keep her mute.
Aside from the driver they were the only passengers on board the jeepney. While in the jeepney
Danilo forcibly took Leah Marie's pair of earrings.

Upon reaching Navotas Danilo and Leah Marie alighted from the jeepney. He dragged her
towards a vacant lot where, according to him, every girl he brought there was made to choose
between rape and death. Upon hearing this, she struggled hard to free herself from his hold.
Luckily, at this juncture, she saw policemen coming towards their direction so she shouted for
help. One of the policemen fired a warning shot which prompted Danilo to run away. The
policemen pursued him until they caught up with him and brought him together with Leah Marie
to the Navotas Police Station for investigation.

Meanwhile, policemen from Valenzuela went to the house of Leah and informed her parents that
their daughter was in the Navotas Police Station. The couple then rushed to the Station where
they saw Leah and brought her to the Valenzuela Police Station to file a complaint against

425
Panlilio. The mother of Leah noticed that the earrings of Leah were missing. When asked about
her earrings Leah told her mother that Panlilio forcibly took them from her.

The version of the appellant is that on the day of the incident he left his residence at Barrio
Magdaragat, Tondo, Manila, at past ten o'clock in the morning to go to Waywan Missionary at
San Rafael Village, Tondo, Manila. However he defecated first on a vacant lot in Navotas before
proceeding. Then he saw a young girl in the area and warned her not to pass through the garbage
because she might sink. It was at this point when policemen arrived and readily accused him of
being the rapist in the area.

The accused contends in this appeal that the trial court erred (1) in not dismissing the case for
highway robbery on the ground of lack of jurisdiction; and, (2) in finding that for the crimes
charged his guilt has been proved beyond reasonable doubt.

Appellant argues that the robbery, according to the complaining witness herself, was perpetrated
in Navotas 2 so that the Regional Trial Court of Valenzuela has no jurisdiction over the case. He
also claims that the prosecution failed to present evidence that she indeed owned any pair of
earrings. It is his thesis that it is simply incredible that a knife was continually poked at her neck
all the way from St. Jude School in Malinta to Navotas for an hour or so without anyone
noticing, otherwise, she could have shouted and asked for help; but she did not. Furthermore, he
claims that Leah Marie could have only been coached into testifying that she was alone outside
the school premises in a feeble attempt to explain the puzzling situation that nobody came to her
rescue when he allegedly abducted her at knifepoint in broad daylight during school dismissal
time when parents, guardians and others usually converge to fetch their children or wards. Under
the circumstances, we are urged to consider as more credible the version of the defense.

Section 2, par. (e), of P.D. 532 defines the crime of highway robbery/brigandage as the "seizure
of any person for ransom, extortion or other unlawful purposes, or the taking away of the
property of another by means of violence against or intimidation of person force upon things or
other unlawful means, committed by any person on any Philippine Highway," and under Sec. 2,
par. (c), of the same decree, "Philippine Highway" is "any road, street, passage, highway and
bridge or other parts thereof or railway or railroad within the Philippines used by persons, or
vehicles, or locomotives or trains for the movement or circulation of persons or transportation of
goods, articles, or property or both." We correlate these provisions with Sec. 15, par. (b), of Rule
110 of the Rules of Court which provides that "[w]here an offense is committed on a railroad
train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the
criminal action may be instituted and tried in the court of any municipality or territory where
such train, aircraft or other vehicle passed during such trip, including the place of departure and
arrival (emphasis supplied). With the foregoing as guideposts we are now asked: Did the
Regional Trial Court of Valenzuela have jurisdiction over the highway robbery?

In her direct examination the complaining witness testified that when she and the accused
alighted from the jeepney in Navotas he forcibly took her pair of earrings. 3 However, during the
cross-examination she changed her testimony thus

Q So you want to impress to the Court that even in front of St. Jude
he already asked you to remove your earrings?

A Not yet. When we were already aboard the jeep, that was the
time when he told me to remove my earrings 4 (emphasis
supplied).

But thereafter she clung to the same statement for the entire course of her cross-
examination which appears to be her correct narration of events

Q And it was there that while you were already in the vacant lot
that the accused told you to remove your earrings, is that it?

426
 A We were not yet there.

Q Where were you?

A when we boarded the jeep, he instructed me to remove my

earrings 5 (Emphasis supplied).

xxx xxx xxx

Q And it was there in the Navotas area when he told you to remove
your earrings?

A I do not know, sir.

Q Where?

A From the time we boarded the jeep.

Q That was the time when you removed your earrings and gave it
to him?

A Yes, sir 6 (Emphasis supplied).

The most candid witnesses oftentimes make mistakes and fall into confused and inconsistent
statements, but such honest lapses do not necessarily affect their credibility. 7 More importantly,
ample margin of error and understanding should be accorded to young witnesses who much more
than adults would be gripped with tension due to the novelty of testifying before a court. 8

But the testimony of complainant that upon boarding the jeepney the accused ordered her to
remove her earrings and give them to him is material in determining whether the Regional Trial
Court of Valenzuela had jurisdiction over the highway robbery. Was Valenzuela their place of
departure or the municipality where their jeepney passed during the trip? Here lies the problem.
The complainant was uncertain of their place of departure

Q If you will be requested to point to the place where you boarded,

you could point the place where you bearded the jeepney?

A No, sir, I cannot. I do not know that place because I was (just)
instructed to board. 9

xxx xxx xxx

Q You want to impress the Court that you boarded a passenger

jeepney and you do not know the place where you boarded the
jeep?

A No, sir. 10

xxx xxx xxx

Q When you were already traveling from the place, is (sic) that in
Valenzuela where you boarded the jeep?

A I do not know, sir. 11

427
Neither did Leah Marie mention the place or places where their vehicle passed. We could have
relied on the evidence that St. Jude School is in Malinta, Valenzuela, in order to establish the fact
that they also boarded the jeepney in Valenzuela. Yet, her other testimony is damaging

Q So you want to impress that from St. Jude you were led by the
accused to a place where there was a passenger jeepney?

A Yes, sir.

Q You walked or you took a tricycle because that is the means of

transportation available in the place?

A We did not board a tricycle. We just walked.

xxx xxx xxx

Q And from St. Jude, how long did it take you to walk or negotiate
the distance?

A A long time because, as a matter of fact, I got tired. 12

From the foregoing, it would seem that the prosecution failed to establish the precise
place where the highway robbery was supposedly committed other than Navotas. Hence,
we agree with the defense that the Regional Trial Court of Valenzuela had no jurisdiction
over the Offense of highway robbery, although based on a different ground.

As regards the charge of kidnapping, Art. 267 of the Revised Penal Code provides

Art. 267. Kidnapping and serious illegal detention. Any private individual who
shall kidnap or detain another, or in any other manner deprive him of his liberty,
shall suffer the penalty of reclusion perpetuato death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for
the purpose of extorting ransom from the victim or any other person, even if none
of the circumstances abovementioned were present in the commission of the
offense.

The poking by appellant of a knife at the complainant could have indeed passed unnoticed
because, as mentioned distinctly in her testimony, the knife was concealed in a hat, 13 and that
she did not shout for help because all along he was poking his knife at her 14 and telling her not
to resist or shout otherwise she would be killed. 15

The testimony of Leah Marie that she was alone in the vicinity of St. Jude School waiting for her
sister is not hard to believe. It is highly probable that she arrived there too early or way beyond
dismissal time. Anyway, it is clear that the arguments raised by accused-appellant pertain to the
credibility of the complainant, and the appraisal by the trial court of her credibility is entitled to
great respect from the appellate courts which do not deal with live witnesses but only with the
cold pages of a written record. 16 Hence the appellant's denial and alibi were properly rejected by

428
the court a quo. They were inherently weak and could not prevail over the positive testimony of
complainant that the accused detained her and took her earrings against her will. 17

WHEREFORE, the decision finding the accused-appellant Danilo Panlilio y Francisco guilty of
kidnapping in Crim. Case No. 2351-V-93 and imposing upon him a prison term of reclusion
perpetua, and to pay the costs, is AFFIRMED.

As regards Crim. Case No. 2352-V-93 for highway robbery, the case is DISMISSED on the
ground of lack of jurisdiction of the Regional Trial Court of Valenzuela, without prejudice to its
refiling with the court of proper jurisdiction.

SO ORDERED.

429