G.R. No.

168662 February 19, 2008

SANRIO COMPANY LIMITED, petitioner,

vs.
EDGAR C. LIM, doing business as ORIGNAMURA TRADING, respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the decision of the Court of Appeals (CA) in
CA-G.R. CV No. 746602 and its resolution3 denying reconsideration.

Petitioner Sanrio Company Limited, a Japanese corporation, owns the copyright of various animated
characters such as "Hello Kitty," "Little Twin Stars," "My Melody," "Tuxedo Sam" and "Zashikibuta"
among others.4 While it is not engaged in business in the Philippines, its products are sold locally by
its exclusive distributor, Gift Gate Incorporated (GGI).5

As such exclusive distributor, GGI entered into licensing agreements with JC Lucas Creative
Products, Inc., Paper Line Graphics, Inc. and Melawares Manufacturing Corporation.6 These local
entities were allowed to manufacture certain products (bearing petitioner's copyrighted animated
characters) for the local market.

Sometime in 2001, due to the deluge of counterfeit Sanrio products, GGI asked IP Manila
Associates (IPMA) to conduct a market research. The research's objective was to identify those
factories, department stores and retail outlets manufacturing and/or selling fake Sanrio items.7 After
conducting several test-buys in various commercial areas, IPMA confirmed that respondent's
Orignamura Trading in Tutuban Center, Manila was selling imitations of petitioner's products.8

Consequently, on May 29, 2000, IPMA agents Lea A. Carmona and Arnel P. Dausan executed a
joint affidavit attesting to the aforementioned facts.9 IPMA forwarded the said affidavit to the National
Bureau of Investigation (NBI) which thereafter filed an application for the issuance of a search
warrant in the office of the Executive Judge of the Regional Trial Court of Manila.10

After conducting the requisite searching inquiry, the executive judge issued a search warrant on May
30, 2000.11 On the same day, agents of the NBI searched the premises of Orignamura Trading. As a
result thereof, they were able to seize various Sanrio products.12

On April 4, 2002, petitioner, through its attorney-in-fact Teodoro Y. Kalaw IV of the Quisumbing
Torres law firm, filed a complaint-affidavit13 with the Task-Force on Anti-Intellectual Property Piracy
(TAPP) of the Department of Justice (DOJ) against respondent for violation of Section 217 (in
relation to Sections 17714 and 17815) of the Intellectual Property Code (IPC) which states:

Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a
crime punishable by:

(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand
pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.
 (b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from
One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000)
for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from
Five hundred thousand pesos (P500,000) to One million five hundred thousand pesos
(P1,500,000) for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court
shall consider the value of the infringing materials that the defendant has produced or
manufactured and the damage that the copyright owner has suffered by reason of
infringement.

217.3. Any person who at the time when copyright subsists in a work has in his
possession an article which he knows, or ought to know, to be an infringing
copy of the work for the purpose of:

(a) Selling, letting for hire, or by way of trade offering or exposing for sale, or
hire, the article;

(b) Distributing the article for purpose of trade or any other purpose to an
extent that will prejudice the rights of the copyright of the owner in the work;
or

(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be
liable on conviction to imprisonment and fine as above mentioned. (emphasis
supplied)

Respondent asserted in his counter-affidavit16 that he committed no violation of the provisions of the
IPC because he was only a retailer.17 Respondent neither reproduced nor manufactured any of
petitioner's copyrighted item; thus, he did not transgress the economic rights of
petitioner.18 Moreover, he obtained his merchandise from authorized manufacturers of petitioner's
products.19

On September 25, 2002, the TAPP found that:

Evidence on record would show that respondent bought his merchandise from legitimate
sources, as shown by official receipts issued by JC Lucas Creative Products, Inc., Paper
Line Graphics, Inc. and Melawares Manufacturing Corporation. In fact, in her letter dated
May 23, 2002, Ms. Ma. Angela S. Garcia certified that JC Lucas Creative Products, Inc.,
Paper Line Graphics, Inc. and Melawares Manufacturing Corporation are authorized to
produce certain Sanrio products. While it appears that some of the items seized during
the search are not among those products which [GGI] authorized these
establishments to produce, the fact remains that respondent bought these from the
abovecited legitimate sources. At this juncture, it bears stressing that respondent relied
on the representations of these manufacturers and distributors that the items they
sold were genuine. As such, it is not incumbent upon respondent to verify from these
sources what items [GGI] only authorized them to produce. Thus, as far as respondent is
concerned, the items in his possession are not infringing copies of the
original [petitioner's] products. (emphasis supplied)20
Thus, in a resolution dated September 25, 2002, it dismissed the complaint due to insufficiency of
evidence.21

Petitioner moved for reconsideration but it was denied.22 Hence, it filed a petition for review in the
Office of the Chief State Prosecutor of the DOJ.23 In a resolution dated August 29, 2003,24 the Office
of the Chief State Prosecutor affirmed the TAPP resolution. The petition was dismissed for lack of
reversible error.

Aggrieved, petitioner filed a petition for certiorari in the CA. On May 3, 2005, the appellate court
dismissed the petition on the ground of prescription. It based its action on Act 3326 which states:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules: (a) after a year for offenses punished only
by a fine or by imprisonment for not more than one month, or both; (b) after four years for
those punished by imprisonment for more than one month, but less than two years;
(c) after eight years for those punished by imprisonment for two years or more, but
less than six years; and (d) after twelve years for any other offense punished by
imprisonment for six years or more, except the crime of treason, which shall prescribe after
twenty years; Provided, however, That all offenses against any law or part of law
administered by the Bureau of Internal Revenue shall prescribe after five years. Violations
penalized by municipal ordinances shall prescribe after two months.

Section 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same may not be 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. (emphasis supplied)

According to the CA, because no complaint was filed in court within two years after the commission
of the alleged violation, the offense had already prescribed.25

On the merits of the case, the CA concluded that the DOJ did not commit grave abuse of discretion
in dismissing the petition for review.26 To be criminally liable for violation of Section 217.3 of the IPC,
the following requisites must be present:

1. possession of the infringing copy and

2. knowledge or suspicion that the copy is an infringement of the genuine article.

The CA agreed with the DOJ that petitioner failed to prove that respondent knew that the
merchandise he sold was counterfeit. Respondent, on the other hand, was able to show that he
obtained these goods from legitimate sources.27

Petitioner moved for reconsideration but it was denied. Hence, this petition.

Petitioner now essentially avers that the CA erred in concluding that the alleged violations of the IPC
had prescribed. Recent jurisprudence holds that the pendency of a preliminary investigation
suspends the running of the prescriptive period.28 Moreover, the CA erred in finding that the DOJ did
not commit grave abuse of discretion in dismissing the complaint. Respondent is liable for copyright
infringement (even if he obtained his merchandise from legitimate sources) because he sold
counterfeit goods.29

Although we do not agree wholly with the CA, we deny the petition.

Filing Of The Complaint In the DOJ Tolled The Prescriptive Period

Section 2 of Act 3326 provides that the prescriptive period for violation of special laws starts on the
day such offense was committed and is interrupted by the institution of proceedings against
respondent (i.e., the accused).

Petitioner in this instance filed its complaint-affidavit on April 4, 2002 or one year, ten months and
four days after the NBI searched respondent's premises and seized Sanrio merchandise therefrom.
Although no information was immediately filed in court, respondent's alleged violation had not yet
prescribed.30

In the recent case of Brillantes v. Court of Appeals,31 we affirmed that the filing of the complaint for
purposes of preliminary investigation interrupts the period of prescription of criminal
responsibility.32 Thus, the prescriptive period for the prosecution of the alleged violation of the IPC
was tolled by petitioner's timely filing of the complaint-affidavit before the TAPP.

In The Absence Of Grave Abuse Of Discretion, The Factual Findings Of The DOJ In
Preliminary Investigations Will Not Be Disturbed

In a preliminary investigation, a public prosecutor determines whether a crime has been committed
and whether there is probable cause that the accused is guilty thereof.33 Probable cause is defined
as such facts and circumstances that will 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.34 Because a
public prosecutor is the one conducting a preliminary investigation, he determines the existence of
probable cause.35 Consequently, the decision to file a criminal information in court or to dismiss a
complaint depends on his sound discretion.36

As a general rule, a public prosecutor is afforded a wide latitude of discretion in the conduct of a
preliminary investigation. For this reason, courts generally do not interfere with the results of such
proceedings. A prosecutor alone determines the sufficiency of evidence that will establish probable
cause justifying the filing of a criminal information against the respondent.37 By way of exception,
however, judicial review is allowed where respondent has clearly established that the prosecutor
committed grave abuse of discretion.38 Otherwise stated, such review is appropriate only when the
prosecutor has exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent and gross enough to amount to an evasion of a
positive duty or virtual refusal to perform a duty enjoined by law.39

The prosecutors in this case consistently found that no probable cause existed against respondent
for violation of the IPC. They were in the best position to determine whether or not there was
probable cause. We find that they arrived at their findings after carefully evaluating the respective
evidence of petitioner and respondent. Their conclusion was not tainted with grave abuse of
discretion.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner

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

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals dated
29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his
subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

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

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

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

Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit.6 Tongson claimed that he
had been unjustly included as party-respondent in the case since petitioner
had lent money to Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was
offered to be an officer of Roma Oil Corporation. He averred that he was not
Cawili's business associate; in fact, he himself had filed several criminal cases
against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued
the bounced checks and pointed out that his signatures on the said checks
had been falsified.

To counter these allegations, petitioner presented several documents showing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The petition is meritorious.

First on the technical issues.

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

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

assurance that matters which are alleged are true and correct–the court may
simply order the correction of unverified pleadings or act on them and waive
strict compliance with the rules in order that the ends of justice may be
served,32 as in the instant case. In the case at bar, we find that by attaching
the pertinent verification to his motion for reconsideration, petitioner
sufficiently complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy or
duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain
reading of the petition before the

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

Now, on the substantive aspects.

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

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

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

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

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

provided in such acts, prescribe in accordance with the following rules:
(a) x x x; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) x x x

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

The prescription shall be interrupted when proceedings are instituted

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

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

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

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

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

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

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

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

prescriptive period is interrupted by the institution of proceedings for

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

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2

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

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

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

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

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

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

No costs.

SO ORDERED.

STATE PROSECUTOR A.M. No. RTJ-05-1944

RINGCAR B. PINOTE, [Formerly OCA I.P.I. No. 05-2189-
Petitioner, RTJ]

Present:

PANGANIBAN, Chairman,
-versus- SANDOVAL- GUTIERREZ,
CORONA,
CARPIO MORALES, and
GARCIA, JJ.
JUDGE ROBERTO L. AYCO,
Respondent.
Promulgated:
 December 13, 2005

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - x

DECISION

CARPIO MORALES, J.:

On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26, Regional Trial
Court (RTC) of South Cotabato allowed the defense in Criminal Case No. 1771
TB, People v. Vice Mayor Salvador Ramos, et al., for violation of Section 3 of
Presidential Decree (P.D.) No. 1866, to present evidence consisting of the
testimony of two witnesses, even in the absence of State Prosecutor Ringcar B.
Pinote who was prosecuting the case.

State Prosecutor Pinote was on August 13 and 20, 2004 undergoing medical
treatment at the Philippine Heart Center in Quezon City, hence, his absence during
the proceedings on the said dates.
On the subsequent scheduled hearings of the criminal case on August 27, October
1, 15 and 29, 2004, State Prosecutor Pinote refused to cross-examine the two
defense witnesses, despite being ordered by Judge Ayco, he maintaining that the
proceedings conducted on August 13 and 20, 2004 in his absence were void.

State Prosecutor Pinote subsequently filed a Manifestation on November 12, 2004

before the trial court, he restating why he was not present on August 13 and 20,
2004, and reiterating his position that Judge Aycos act of allowing the defense to
present evidence in his absence was erroneous and highly irregular. He thus prayed
that he should not be coerced to cross-examine those two defense witnesses and
that their testimonies be stricken off the record.

By Order issued also on November 12, 2004, Judge Ayco, glossing over the
Manifestation, considered the prosecution to have waived its right to cross-
examine the two defense witnesses.

Hence, arose the present administrative complaint lodged by State Prosecutor

Pinote (complainant) against Judge Ayco (respondent), for Gross Ignorance of the
Law, Grave Abuse of Authority and Serious Misconduct.
By Comment dated March 18, 2005, respondent proffers that complainant filed the
complaint to save his face and cover up for his incompetence and lackadaisical
handling of the prosecution of the criminal case as in fact complainant was, on the
request of the Provincial Governor of South Cotabato, relieved as prosecutor in the
case by the Secretary of Justice.
And respondent informs that even after complainant was already relieved as the
prosecutor in the case, he filed a motion for his inhibition without setting it for
hearing.

On the above-said Manifestation filed by complainant before the trial court on

November 12, 2004, respondent brands the same as misleading and highly
questionable, complainants having undergone medical treatment at the Philippine
Heart Center on August 13 and 20, 2004 having been relayed to the trial court only
on said date.

On his Order considering the prosecution to have waived presenting evidence,

respondent justifies the same on complainants failure to formally offer the
evidence for the prosecution despite several extensions of time granted for the
purpose.

Finally, respondent proffers that no substantial prejudice was suffered by the

prosecution for complainant was permitted to cross examine the two defense
witnesses but he refused to do so.

By way of counter-complaint, respondent charges complainant with Contempt of

Court and Grave Misconduct and/or Conduct Unbecoming of a Member of the Bar
and as an Officer of the Court.

On evaluation of the case, the Office of the Court Administrator (OCA), citing
Section 5, Rule 110 of the Revised Rule on Criminal Procedure, finds respondent
to have breached said rule and accordingly recommends that he be reprimanded
therefor, with warning that a repetition of the same or similar act shall be dealt
with more severely.

Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads:

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. In case of heavy work schedule or in the event of lack of public
prosecutors, the private prosecutor may be authorized in writing by the Chief of
 the Prosecution Office or the Regional State Prosecution Office to prosecute the
case subject to the approval of the Court. Once so authorized to prosecute the
criminal action, the private prosecutor shall continue to prosecute the case up to
the end of the trial even in the absence of a public prosecutor, unless the authority
is revoked or otherwise withdrawn.

x x x (Underscoring supplied)

Thus, as a general rule, all criminal actions shall be prosecuted under the control
and direction of the public prosecutor.

If the schedule of the public prosecutor does not permit, however, or in case there
are no public prosecutors, a private prosecutor may be authorized in writing by the
Chief of the Prosecution Office or the Regional State Prosecution Office to
prosecute the case, subject to the approval of the court. Once so authorized, the
private prosecutor shall continue to prosecute the case until the termination of the
trial even in the absence of a public prosecutor, unless the authority is revoked or
otherwise withdrawn.

Violation of criminal laws is an affront to the People of the Philippines as a whole

and not merely to the person directly prejudiced, he being merely the complaining
witness.[1] It is on this account that the presence of a public prosecutor in the trial
of criminal cases is necessary to protect vital state interests, foremost of which is
its interest to vindicate the rule of law, the bedrock of peace of the people.[2]

Respondents act of allowing the presentation of the defense witnesses in the

absence of complainant public prosecutor or a private prosecutor designated for the
purpose is thus a clear transgression of the Rules which could not be rectified by
subsequently giving the prosecution a chance to cross-examine the witnesses.

Respondents intention to uphold the right of the accused to a speedy disposition of

the case, no matter how noble it may be, cannot justify a breach of the Rules. If the
accused is entitled to due process, so is the State.

Respondents lament about complainants failure to inform the court of his inability
to attend the August 13 and 20, 2004 hearings or to file a motion for postponement
thereof or to subsequently file a motion for reconsideration of his Orders allowing
the defense to present its two witnesses on said dates may be mitigating. It does not
absolve respondent of his utter disregard of the Rules.
 WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to pay a
fine FIVE THOUSAND PESOS (P5,000.00) with warning that a repetition of the
same or similar acts in the future shall be dealt with more severely.
Respecting the counter-complaint against complainant State Prosecutor Ringcar B.
Pinote, respondent is advised that the same should be lodged before the Secretary
of Justice.

SO ORDERED.

SECOND DIVISION

SHEALA P. MATRIDO, G.R. No. 179061

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
CHICO-NAZARIO,*
LEONARDO-DE CASTRO,** and
PEOPLE OF THE PHILIPPINES, BRION, JJ.
Respondent. Promulgated:
July 13, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Sheala Matrido (petitioner) assails the May 31, 2007 Decision and August 1, 2007
Resolution of the Court of Appeals,[1] which affirmed the trial courts Decision of
December 13, 2004 convicting her of qualified theft.

As a credit and collection assistant of private complainant Empire East Land

Holdings, Inc., petitioner was tasked to collect payments from buyers of real estate
properties such as Laguna Bel-Air developed by private complainant, issue receipts
therefor, and remit the payments to private complainant in Makati City.
On June 10, 1999, petitioner received amortization payment from one Amante dela
Torre in the amount of P22,470.66 as evidenced by the owners copy[2] of Official
Receipt No. 36547, but petitioner remitted only P4,470.66 to private complainant
as reflected in the treasury departments copy[3] of Official Receipt No. 36547
submitted to private complainant, both copies of which bear the signature of
petitioner and reflect a difference of P18,000.

On private complainants investigation, petitioner was found to have failed to

remit payments received from its clients, prompting it to file various complaints,
one of which is a Complaint-Affidavit of September 21, 2000[4] for estafa,
docketed as I.S. No. 2000-I-32381 in the Makati Prosecutors Office.

In the meantime or in October 2000, petitioner paid private complainant the total
amount of P162,000,[5] drawing private complainant to desist from pursuing some
related complaints. A few other cases including I.S. No. 2000-I-32381 pushed
through, however, since the amount did not sufficiently cover petitioners admitted
liability of P400,000.[6]

By Resolution of November 15, 2000,[7] the City Prosecution Office of Makati

dismissed the Complaint for estafa for insufficiency of evidence but found
probable cause to indict petitioner for qualified theft under an Information which
reads:

That on or about the 10th day of June 1999, in the City of Makati,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then a Credit and Collection Assistant
employed by complainant, EMPIRE EAST LAND HOLDINGS, INC.,
herein represented by Leilani N. Cabuloy, and as such had access to the
payments made by complainants clients, with grave abuse of confidence,
intent of gain and without the knowledge and consent of the said
complainant company, did then and there willfully, unlawfully and
feloniously take, steal and carry away the amount of P18,000.00
received from Amante Dela Torre, a buyer of a house and lot being
marketed by complainant company, to the damage and prejudice of the
said complainant in the aforementioned amount of P18,000.00.
 CONTRARY TO LAW.[8]

On arraignment, petitioner entered a plea of not guilty.[9] After trial, Branch 56 of

the Regional Trial Court (RTC) of Makati, by Decision of December 13,
2004 which was promulgated on April 28, 2005, convicted petitioner of qualified
theft, disposing as follows:

WHEREFORE, accused SHEALA P. MATRIDO is hereby sentenced to

suffer the indeterminate penalty of ten (10) years and one (1) day to
twelve (12) years[,] five (5) months and ten (10) days.

Accused is further ordered to pay complainant EMPIRE EAST LAND

HOLDINGS, INC., the amount of P18,000.00.

SO ORDERED.[10]

By the challenged Decision of May 31, 2007,[11] the Court of Appeals affirmed the
trial courts decision, hence, the present petition which raises the sole issue of
whether the appellate court gravely erred in affirming the decision of the trial
[court] convicting the petitioner of the crime of qualified theft despite the fact that
the prosecution tried to prove during the trial the crime of estafa thus denying the
petitioner the right to be informed of the nature and cause of accusation against
her[12]

Petitioner posits that despite her indictment for qualified theft, the prosecution was
trying to prove estafa during trial, thus violating her right to be informed of the
nature and cause of the accusation against her.

The petition fails.

In Andaya v. People,[13] the Court expounded on the constitutional right to be

informed of the nature and cause of the accusation against the accused.

x x x As early as the 1904 case of U.S. v. Karelsen, the rationale of this

fundamental right of the accused was already explained in this wise:
 The object of this written accusation was 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. 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
circumstances necessary to constitute the crime charged.

It is fundamental that every element constituting the offense must be

alleged in the information. The main purpose of requiring the various
elements of a crime to be set out in the information is to enable the
accused to suitably prepare his defense because he is presumed to have
no independent knowledge of the facts that constitute the offense. The
allegations of facts constituting the offense charged are substantial
matters and an accuseds right to question his conviction based on facts
not alleged in the information cannot be waived. No matter how
conclusive and convincing the evidence of guilt may be, an accused
cannot be convicted of any offense unless it is charged in the
information on which he is tried or is necessarily included therein. To
convict him of a ground not alleged while he is concentrating his
defense against the ground alleged would plainly be unfair and
underhanded. The rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal to the criminal
case if it is material and prejudicial to the accused so much so that it
affects his substantial rights.[14] (Citations omitted; underscoring
supplied)

It is settled that it is the allegations in the Information that determine the nature of
the offense, not the technical name given by the public prosecutor in the preamble
of the Information. 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. 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 manner therein set forth.[15]

Gauging such standard against the wording of the Information in this case, the
Court finds no violation of petitioners rights. The recital of facts and circumstances
in the Information sufficiently constitutes the crime of qualified theft.

As alleged in the Information, petitioner took, intending to gain therefrom and

without the use of force upon things or violence against or intimidation of persons,
a personal property consisting of money in the amount P18,000 belonging to
private complainant, without its knowledge and consent, thereby gravely abusing
the confidence reposed on her as credit and collection assistant who had access to
payments from private complainants clients, specifically from one Amante Dela
Torre.

As defined, theft is committed by any person who, with intent to gain, but without
violence against, or intimidation of persons nor force upon things, shall take the
personal property of another without the latters consent.[16] If committed with grave
abuse of confidence, the crime of theft becomes qualified.[17]

In prcis, the elements of qualified theft punishable under Article 310 in relation to
Articles 308 and 309 of the Revised Penal Code (RPC) are as follows:

1. There was a taking of personal property.

2. The said property belongs to another.
3. The taking was done without the consent of the owner.
4. The taking was done with intent to gain.
5. The taking was accomplished without violence or intimidation against
person, or force upon things.
6. The taking was done under any of the circumstances enumerated in
Article 310 of the RPC, i.e., with grave abuse of confidence.[18]
In the present case, both the trial court and the appellate court noted petitioners
testimonial admission of unlawfully taking the fund belonging to private
complainant and of paying a certain sum to exculpate herself from liability. That
the money, taken by petitioner without authority and consent, belongs to private
complainant, and that the taking was accomplished without the use of violence or
intimidation against persons, nor force upon things, there is no issue.

Intent to gain or animus lucrandi is an internal act that is presumed from the
unlawful taking by the offender of the thing subject of asportation. Actual gain is
irrelevant as the important consideration is the intent to gain.[19]

The taking was also clearly done with grave abuse of confidence. As a credit and
collection assistant of private complainant, petitioner made use of her position to
obtain the amount due to private complainant. As gathered from the nature of her
functions, her position entailed a high degree of confidence reposed by private
complainant as she had been granted access to funds collectible from clients. Such
relation of trust and confidence was amply established to have been gravely abused
when she failed to remit the entrusted amount of collection to private complainant.

The Court finds no rhyme or reason in petitioners contention that what the
prosecution tried to prove during trial was estafa through misappropriation under
Article 315(1)(b) of the RPC.

x x x The principal distinction between the two crimes is that in theft the
thing is taken while in estafa the accused receives the property and
converts it to his own use or benefit. However, there may be theft even
if the accused has possession of the property. If he was entrusted only
with the material or physical (natural) or de facto possession of the
thing, his misappropriation of the same constitutes theft, but if he has
the juridical possession of the thing, his conversion of the same
constitutes embezzlement or estafa.[20] (Underscoring supplied)

The appellate court correctly explained that conversion of personal property in the
case of an employee having material possession of the said property constitutes
theft, whereas in the case of an agent to whom both material and juridical
possession have been transferred, misappropriation of the same property
constitutes estafa.[21] Notably, petitioners belated argument that she was not an
employee but an agent of private complainant [22] grants her no respite in view of
her stipulation[23] during pre-trial and her admission[24]at the witness stand of the
fact of employment. Petitioners reliance on estafa cases involving factual
antecedents of agency transactions is thus misplaced.

That petitioner did not have juridical possession over the amount or, in other
words, she did not have a right over the thing which she may set up even against
private complainant is clear.[25] In fact, petitioner never asserted any such right,
hence, juridical possession was lodged with private complainant and, therefore,
estafa was not committed.

Petitioners view that there could be no element of taking since private complainant
had no actual possession of the money fails. The argument proceeds from the
flawed premise that there could be no theft if the accused has possession of the
property. The taking away of the thing physically from the offended party is not
elemental,[26] as qualified theft may be committed when the personal property is in
the lawful possession of the accused prior to the commission of the alleged
felony.[27]

A sum of money received by an employee in behalf of an employer is considered

to be only in the material possession of the employee. [28] The material possession
of an employee is adjunct, by reason of his employment, to a recognition of the
juridical possession of the employer. So long as the juridical possession of the
thing appropriated did not pass to the employee-perpetrator, the offense committed
remains to be theft, qualified or otherwise.[29]

x x x When the money, goods, or any other personal property is

received by the offender from the offended party (1) in trust or (2) on
commission or (3) for administration, the offender acquires both
material or physical possession and juridical possession of the thing
received. Juridical possession means a possession which gives the
transferee a right over the thing which the transferee may set up even
against the owner. In this case, petitioner was a cash custodian who was
primarily responsible for the cash-in-vault. Her possession of the cash
belonging to the bank is akin to that of a bank teller, both being mere
 bank employees.[30] (Italics in the original omitted; underscoring and
emphasis supplied)

That the transaction occurred outside the company premises of private complainant
is of no moment, given that not all business deals are transacted by employees
within the confines of an office, and that field operations do not define an
agency. What is of consequence is the nature of possession by petitioner over the
property subject of the unlawful taking.

On the penalty imposed by the trial court, which was affirmed by the appellate
court ─ indeterminate penalty of 10 years and 1 day to 12 years, 5 months and 10
days:

The penalty for qualified theft is two degrees higher than the applicable
penalty for simple theft. The amount stolen in this case was P18,000.00. In cases of
theft, if the value of the personal property stolen is more than P12,000.00 but does
not exceed P22,000.00, the penalty shall be prision mayor in its minimum and
medium periods. Two degrees higher than this penalty is reclusion temporal in its
medium and maximum periods or 14 years, 8 months and 1 day to 20 years.

Applying the Indeterminate Sentence Law, the minimum shall be prision

mayor in its maximum period to reclusion temporal in its minimum period or
within the range of 10 years and 1 day to 14 years and 8 months.[31] The mitigating
circumstance of voluntary surrender being present, the maximum penalty shall be
the minimum period of reclusion temporal in its medium and maximum periods or
within the range of 14 years, 8 months and 1 day to 16 years, 5 months and 20
days.

The Court thus affirms the minimum penalty, but modifies the maximum
penalty imposed.
WHEREFORE, the Decision of May 31, 2007 and Resolution of August 1, 2007
of the Court of Appeals in CA-G.R. CR No. 29593 is AFFIRMED with
MODIFICATION as to the imposed penalty, such that petitioner, Sheala P.
Matrido, is sentenced to suffer the indeterminate penalty of 10 years and 1 day
of prision mayor, as minimum, to 14 years, 8 months and 1 day of reclusion
temporal, as maximum.

SO ORDERED.

FIRST DIVISION

MICHAEL JOHN Z. MALTO, G.R. No. 164733

Petitioner,
Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:
September 21, 2007

x---------------------------------------------------x

DECISION
CORONA, J.:
 Whereas, mankind owes to the child the best it
has to give. (Final preambular clause of the
Declaration of the Rights of the Child)

This is a petition for review[1] of the decision[2] dated July 30, 2004 of the
Court of Appeals (CA) in CA-G.R. CR No. 25925 affirming with modification the
decision[3]of Branch 109 of the Regional Trial Court of Pasay City in Criminal
Case No. 00-0691 which found petitioner Michael John Z. Malto guilty for
violation of paragraph 3, Section 5(a), Article III of RA 7610,[4] as amended.
Petitioner was originally charged in an information which read:
The undersigned Assistant City Prosecutor accuses MICHAEL
JOHN Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III,
REPUBLIC ACT 7610, AS AMENDED, committed as follows:

That on or about and sometime during the month of November

1997 up to 1998, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
Michael John. Z. Malto, a professor, did then and there willfully,
unlawfully and feloniously induce and/or seduce his student at
Assumption College, complainant, AAA, a minor of 17 years old, to
indulge in sexual intercourse for several times with him as in fact said
accused had carnal knowledge.

Contrary to law.[5]

This was subsequently amended as follows:

The undersigned Assistant City Prosecutor accuses MICHAEL

JOHN Z. MALTO of VIOLATION OF SECTION 5(a), ARTICLE III,
REPUBLIC ACT 7610, AS AMENDED, committed as follows:

That on or about and sometime during the month of November

1997 up to 1998, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
Michael John. Z. Malto, a professor, did then and there willfully,
 unlawfully and feloniously take advantage and exert influence,
relationship and moral ascendancy and induce and/or seduce his student
at Assumption College, complainant, AAA, a minor of 17 years old, to
indulge in sexual intercourse and lascivious conduct for several times
with him as in fact said accused has carnal knowledge.

Contrary to law.[6]
Petitioner did not make a plea when arraigned; hence, the trial court entered
for him a plea of not guilty. After the mandatory pre-trial, trial on the merits
proceeded.
The prosecution established the following:

At the time of the incident, private complainant AAA was 17 years

old.[7] She was a college student at the Assumption College in San Lorenzo
Village, Makati City. Petitioner, then 28, was her professor in her Philosophy II
class in the first semester of the school year 1997 to 1998.
On July 18, 1997, AAA was having lunch with her friends when petitioner
joined their group. He told them to address him simply as Mike. He handed them
his organizer and asked them to list down their names and contact numbers.
On October 3, 1997, while AAA and her friends were discussing the movie
Kama Sutra, petitioner butted in and bragged that it was nothing compared to his
collection of xxx-rated films. To the shock of AAAs group, he lectured on and
demonstrated sexual acts he had already experienced. He then invited the group to
view his collection.

On October 10, 1997, petitioner reiterated his invitation to AAA and her
friends to watch his collection of pornographic films. Afraid of offending
petitioner, AAA and two of her friends went with him. They rode in his car and he
brought them to the Anito Lodge on Harrison St. in Pasay City. They checked in at
a calesa room. Petitioner was disappointed when he found out there was neither a
video cassette player (on which he could play his video tapes) nor an x-rated show
on the closed-circuit television. He suggested that they just cuddle up together.
AAA and her friends ignored him but he pulled each of them towards him to lie
with him in bed. They resisted until he relented.

AAA and her friends regretted having accepted petitioners invitation. For
fear of embarrassment in case their classmates got wind of what happened, they
agreed to keep things a secret. Meanwhile, petitioner apologized for his actuations.
Thereafter, petitioner started to show AAA amorous attention. He called her
on the phone and paged[8] her romantic messages at least thrice a day. When
semestral break came, his calls and messages became more frequent. Their
conversation always started innocently but he had a way of veering the subject to
sex. Young, naive and coming from a broken family, AAA was soon overwhelmed
by petitioners persistence and slowly got attracted to him. He was the first person
to court her. Soon, they had a mutual understanding and became sweethearts.
When AAA secured her class card in Philosophy II at the start of the second
semester, petitioner told her that he gave her a final grade of 3. She protested,
stating that her mid-term grade was 1.2. He gave her a grade of 1.5 when she
promised not to disclose his intimate messages to her to anyone. He also cautioned
her not to tell anyone about their affair as it could jeopardize his job.

On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch
with petitioner outside the premises of the college. Since she was not feeling well
at that time, he asked her to lie down in the backseat of his car. She was surprised
when he brought her to Queensland Lodge[9] on Harrison St. in Pasay City. Once
inside the motel room, he kissed her at the back and neck, touched her breasts and
placed his hand inside her blouse. She resisted his advances but he was too strong
for her. He stopped only when she got angry at him.
On November 26, 1997, petitioner asked AAA to come with him so that they
could talk in private. He again brought her to Queensland Lodge. As soon as they
were inside the room, he took off his shirt, lay down in bed and told her, halika
na, dito na tayo mag-usap. She refused but he dragged her towards the bed, kissed
her lips, neck and breasts and unsnapped her brassiere. She struggled to stop him
but he overpowered her. He went on top of her, lowered her pants and touched her
private part. He tried to penetrate her but she pushed him away forcefully and she
sat up in bed. He hugged her tightly saying, Sige na, AAA, pumayag ka na, I wont
hurt you. She refused and said, Mike, ayoko. He angrily stood up saying,
Fine, hindi na tayo mag-uusap. Dont come to the faculty room anymore. You
know I need this and if you will not give in or give it to me, let us end this. She
replied, Mike, hindi pa ako ready and it was you who said it will be after my debut
on December 3, 1997. He insisted that there was no difference between having sex
then and after her debut. He told her, kung hindi ko makukuha ngayon, tapusin na
natin ngayon. Pressured and afraid of his threat to end their relationship, she
hesitantly replied Fine. On hearing this, he quickly undressed while
commenting ibibigay mo rin pala, pinahirapan mo pa ako and laughed. They had
sexual intercourse.
In July 1999, AAA ended her relationship with petitioner. She learned that
he was either intimately involved with or was sexually harassing his students in
Assumption College and in other colleges where he taught. In particular, he was
dismissed from the De La Salle University-Aguinaldo for having sexual relations
with a student and sexually harassing three other students. His employment was
also terminated by Assumption College for sexually harassing two of his students.
It was then that AAA realized that she was actually abused by petitioner.
Depressed and distressed, she confided all that happened between her and
petitioner to her mother, BBB.

On learning what her daughter underwent in the hands of petitioner, BBB

filed an administrative complaint in Assumption College against him. She also
lodged a complaint in the Office of the City Prosecutor of Pasay City which led to
the filing of Criminal Case No. 00-0691.
In his defense, petitioner proffered denial and alibi. He claimed that the
alleged incidents on October 3, 1997 and October 10, 1997 did not happen. He
spent October 3, 1997 with his colleagues Joseph Hipolito and AJ Lagaso while he
was busy checking papers and computing grades on October 10, 1997. The last
time he saw AAA during the first semester was when she submitted her final paper
on October 18, 1997.
On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out
conflicts of class schedules for the second semester at the Assumption College. On
November 26, 1997, he was at St. Scholasticas College (where he was also
teaching) preparing a faculty concert slated on December 12, 1997. At lunch time,
he attended the birthday treat of a colleague, Evelyn Bancoro.

On November 29, 1997, he attended AAAs 18th birthday party. That was the last
time he saw her.

According to petitioner, AAA became his sweetheart when she was already 19
years old and after he was dismissed from Assumption College. On December 27
and 28, 1998, they spent time together, shared their worries, problems and dreams
and kissed each other. On January 3, 1999, he brought her to Queensland Lodge
where they had sexual intercourse for the first time. It was repeated for at least 20
times from January 1999 until they broke up in July 1999, some of which were
done at either his or her house when no one was around.

The trial court found the evidence for the prosecution sufficient to sustain
petitioners conviction. On March 7, 2001, it rendered a decision finding petitioner
guilty.[10] The dispositive portion read:

In view of the foregoing, the Court finds the accused Michael John
Malto y Zarsadias guilty beyond reasonable doubt for violation of
Article III, Section 5(a)[,] paragraph 3 of RA 7610[,] as amended and
hereby sentences him to reclusion temporal in its medium period or an
imprisonment of seventeen (17) years, four (4) months and one (1) day
to twenty (20) years and to pay civil indemnity in the amount of Php
75,000.00 and moral and exemplary damages of Php 50,000.00 to minor
complainant with subsidiary imprisonment in case of insolvency. [11]

Petitioner questioned the trial courts decision in the CA. In a decision dated July
30, 2004,[12] the appellate court affirmed his conviction even if it found that his acts
were not covered by paragraph (a) but by paragraph (b) of Section 5, Article III of
RA 7610. It further observed that the trial court failed to fix the minimum term of
indeterminate sentence imposed on him. It also ruled that the trial court erred in
awarding P75,000 civil indemnity in favor of AAA as it was proper only in a
conviction for rape committed under the circumstances under which the death
penalty was authorized by law.[13] Hence, the CA modified the decision of the trial
court as follows:

WHEREFORE, the appealed Decision of conviction

is AFFIRMED, with the MODIFICATION that (1) appellant
MICHAEL JOHN MALTO y ZARSADIAS is hereby sentenced to an
indeterminate penalty of Eight (8) Years and One (1) Day of prision
mayor as minimum, to Seventeen (17) Years, Four (4) Months and One
 (1) Day of reclusion temporal as maximum; and (2) the sum
of P75,000.00 as civil indemnity is DELETED.[14]

Hence, this petition.

Petitioner contends that the CA erred in sustaining his conviction although it
found that he did not rape AAA. For him, he should have been acquitted since
there was no rape. He also claims that he and AAA were sweethearts and their
sexual intercourse was consensual.

Petitioner is wrong.

THE OFFENSE STATED IN

THE INFORMATION WAS
WRONGLY DESIGNATED

In all criminal prosecutions, the accused is entitled to be informed of the

nature and cause of the accusation against him.[15] Pursuant thereto, the complaint
or information against him should be sufficient in form and substance. 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 date of the commission of
the offense and the place where the offense was committed.[16]

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.[17] If there is no designation of the
offense, reference shall be made to the section or subsection of the statute
punishing it.[18] The acts or omissions 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.[19]

The designation of the offense in the information against petitioner was

changed from violation of Section 5(b), Article III of RA 7610 to violation of
Section 5(a), Article III thereof. Paragraphs (a) and (b) of Section 5, Article III of
RA 7610 provide:
Section 5. Child Prostitution and Other Sexual Abuse. - Children,
whether male or female, who, for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other
sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child

prostitution which include, but are not limited to, the following:

1. Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by

means of written or oral advertisements or other similar means;

3. Taking advantage of influence or relationship to procure a

child as a prostitute;

4. Threatening or using violence towards a child to engage

him as a prostitute; or

5. Giving monetary consideration, goods or other pecuniary

benefit to a child with intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the victim is under
twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815,
as amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be: Provided, that the penalty for
lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; and

xxx xxx xxx (emphasis supplied)

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child
prostitution;
2. the act is done through, but not limited to, the following means:
a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means

of written or oral advertisements or other similar means;

c. taking advantage of influence or relationship to procure a

child as a prostitute;

d. threatening or using violence towards a child to engage him

as a prostitute or

e. giving monetary consideration, goods or other pecuniary

benefit to a child with intent to engage such child in
prostitution;

3. the child is exploited or intended to be exploited in prostitution and

4. the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are:

 1. the accused commits the act of sexual intercourse or lascivious
conduct;
2. the act is performed with a child exploited in prostitution or
subjected to other sexual abuse and
3. the child, whether male or female, is below 18 years of age.

Paragraph (a) essentially punishes acts pertaining to or connected with child

prostitution. It contemplates sexual abuse of a child exploited in prostitution. In
other words, under paragraph (a), the child is abused primarily for profit.

On the other hand, paragraph (b) punishes sexual intercourse or lascivious

conduct not only with a child exploited in prostitution but also with a child
subjected to other sexual abuse. It covers not only a situation where a child is
abused for profit but also one in which a child, through coercion, intimidation or
influence, engages in sexual intercourse or lascivious conduct.[20]

The information against petitioner did not allege anything pertaining to or

connected with child prostitution. It did not aver that AAA was abused for profit.
What it charged was that petitioner had carnal knowledge or committed sexual
intercourse and lascivious conduct with AAA; AAA was induced and/or seduced
by petitioner who was her professor to indulge in sexual intercourse and lascivious
conduct and AAA was a 17-year old minor. These allegations support a charge for
violation of paragraph (b), not paragraph (a), of Section 5, Article III, RA 7610.

THE REAL NATURE OF THE

OFFENSE IS DETERMINED BY
FACTS ALLEGED IN THE
INFORMATION, NOT BY THE
DESIGNATION
 The designation in the information of the specific statute violated is
imperative to avoid surprise on the accused and to afford him the opportunity to
prepare his defense accordingly. However, the failure to designate the offense by
statute,[21] or to mention the specific provision penalizing the act,[22] or an
erroneous specification of the law violated[23] does not vitiate the information if the
facts alleged clearly recite the facts constituting the crime charged.[24] What
controls is not the title of the information or the designation of the offense but the
actual facts recited in the information.[25] In other words, it is the recital of facts of
the commission of the offense, not the nomenclature of the offense, that determines
the crime being charged in the information.[26]

The facts stated in the amended information against petitioner correctly

made out a charge for violation of Section 5(b), Article III, RA 7610. Thus, even if
the trial and appellate courts followed the wrong designation of the offense,
petitioner could be convicted of the offense on the basis of the facts recited in the
information and duly proven during trial.

PETITIONER VIOLATED
SECTION 5(B), ARTICLE III
OF RA 7610, AS AMENDED

The first element of Section 5(b), Article III of RA 7610 pertains to the act
or acts committed by the accused. The second element refers to the state or
condition of the offended party. The third element corresponds to the minority or
age of the offended party.
 The first element was present in this case. Petitioner committed lascivious
conduct against and had sexual intercourse with AAA in the following instances:
(1) on November 19, 1997, when he kissed her at the back and neck, touched her
breasts and placed his hand inside her blouse to gratify his lust; (2) on November
26, 1997, when, with lewd designs, he dragged her towards the bed of the motel
room and forcibly kissed her on the lips, neck and breasts and (3) when he exerted
moral influence on her and pressured her until she surrendered herself to him on
November 26, 1997. His acts were covered by the definitions of sexual abuse and
lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases promulgated to implement the
provisions of RA 7610, particularly on child abuse:

(g) Sexual abuse includes the employment, use, persuasion,

inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children;

(h) Lascivious conduct means the intentional touching, either

directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or public area of a
person. (emphasis supplied)

The second element was likewise present here. The following

pronouncement in People v. Larin[27] is significant:

A child is deemed exploited in prostitution or subjected to

other sexual abuse, when the child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any other consideration; or
 (b) under the coercion or influence of any adult, syndicate or group.
(emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in

lascivious acts with or allowed him to commit lascivious acts on her. This was
repeated on November 26, 1997 on which date AAA also indulged in sexual
intercourse with petitioner as a result of the latters influence and moral ascendancy.
Thus, she was deemed to be a child subjected to other sexual abuse as the concept
is defined in the opening paragraph of Section 5, Article III of RA 7610 and
in Larin.
The third element of the offense was also satisfied. Section 3 (a), Article I of
RA 7610 provides:

SECTION 3. Definition of Terms.

(a) Children refers [to] persons below eighteen (18) years of age or
those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition; (emphasis
supplied)

On November 19, 2007 and November 26, 2007, AAA was a child as she
was below 18 years of age. She was therefore within the protective mantle of the
law.

Since all three elements of the crime were present, the conviction of
petitioner was proper.

VIOLATION OF SECTION
5(B), ARTICLE III OF RA 7610
AND RAPE ARE SEPARATE
AND DISTINCT CRIMES

Petitioner was charged and convicted for violation of Section 5(b), Article
III of RA 7610, not rape. The offense for which he was convicted is punished by a
special law while rape is a felony under the Revised Penal Code.[28] They have
different elements.[29] The two are separate and distinct crimes. Thus, petitioner can
be held liable for violation of Section 5(b), Article III of RA 7610 despite a finding
that he did not commit rape.

CONSENT OF THE CHILD IS

IMMATERIAL IN CRIMINAL
CASES INVOLVING
VIOLATION OF SECTION 5,
ARTICLE III OF RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented
to have sexual intercourse with him. They engaged in these acts out of mutual love
and affection. But may the sweetheart theory be invoked in cases of child
prostitution and other sexual abuse prosecuted under Section 5, Article III of RA
7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies

committed against or without the consent of the victim. It operates on the theory
that the sexual act was consensual. It requires proof that the accused and the victim
were lovers and that she consented to the sexual relations.[30]

For purposes of sexual intercourse and lascivious conduct in child abuse

cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in
prostitution or subjected to other sexual abuse cannot validly give consent to
sexual intercourse with another person.

The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct

with a child exploited in prostitution or subjected to other sexual abuse.

Unlike rape, therefore, consent is immaterial in cases involving violation of

Section 5, Article III of RA 7610. The mere act of having sexual intercourse or
committing lascivious conduct with a child who is exploited in prostitution or
subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil
that is proscribed.

A child cannot give consent to a contract under our civil laws.[31] This is on
the rationale that she can easily be the victim of fraud as she is not capable of fully
understanding or knowing the nature or import of her actions. The State, as parens
patriae, is under the obligation to minimize the risk of harm to those who, because
of their minority, are as yet unable to take care of themselves fully.[32] Those of
tender years deserve its protection.[33]

The harm which results from a childs bad decision in a sexual encounter
may be infinitely more damaging to her than a bad business deal. Thus, the law
should protect her from the harmful consequences[34] of her attempts at adult sexual
behavior.[35] For this reason, a child should not be deemed to have validly
consented to adult sexual activity and to surrender herself in the act of ultimate
physical intimacy under a law which seeks to afford her special protection against
abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner
will be justified, or even unwittingly tempted by the law, to view her as fair game
and vulnerable prey.) In other words, a child is presumed by law to be incapable of
giving rational consent to any lascivious act or sexual intercourse.[36]

This must be so if we are to be true to the constitutionally enshrined State

policy to promote the physical, moral, spiritual, intellectual and social well-being
of the youth.[37] This is consistent with the declared policy of the State
[T]o provide special protection to children from all forms of
abuse, neglect, cruelty, exploitation and discrimination, and other
conditions prejudicial to their development; provide sanctions for
their commission and carry out a program for prevention and
deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.[38] (emphasis supplied)

as well as to
intervene on behalf of the child when the parents, guardian, teacher or
person having care or custody of the child fails or is unable to protect
the child against abuse, exploitation, and discrimination or when such
acts against the child are committed by the said parent,
guardian, teacher or person having care and custody of the
same.[39] (emphasis supplied)

This is also in harmony with the foremost consideration of the childs best
interests in all actions concerning him or her.
The best interest of children shall be the paramount consideration
in all actions concerning them, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities, and legislative bodies, consistent with the principles of First
Call for Children as enunciated in the United Nations Convention on the
Rights of the Child. Everyeffort shall be exerted to promote the
welfare of children and enhance their opportunities for a useful and
happy life.[40] (emphasis supplied)
PETITIONER MAY ENJOY THE
BENEFITS OF THE
INDETERMINATE SENTENCE
LAW

The penalty prescribed for violation of the provisions of Section 5, Article

III of RA 7610 is reclusion temporal in its medium period to reclusion perpetua. In
the absence of any mitigating or aggravating circumstance, the proper imposable
penalty is reclusion temporal in its maximum period, the medium of the penalty
prescribed by the law.[41]Notwithstanding that RA 7610 is a special law, petitioner
may enjoy the benefits of the Indeterminate Sentence Law.[42] Since the penalty
provided in RA 7610 is taken from the range of penalties in the Revised Penal
Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence
Law.[43] Thus, he is entitled to a maximum term which should be within the range
of the proper imposable penalty of reclusion temporal in its maximum period
(ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be
taken within the range of the penalty next lower to that prescribed by the
law: prision mayor in its medium period to reclusion temporal in its minimum
period (ranging from 8 years and 1 day to 14 years and 8 months).

THE AWARD OF DAMAGES

SHOULD BE MODIFIED

The trial court awarded AAA P75,000 as civil indemnity, P50,000 as moral
and exemplary damages. The CA deleted the award for civil indemnity. It correctly
reasoned that the award was proper only in a conviction for rape committed under
the circumstances under which the death penalty is authorized by law. Consistent,
however, with the objective of RA 7610 to afford children special protection
against abuse, exploitation and discrimination and with the principle that every
person who contrary to law, willfully or negligently causes damage to another shall
indemnify the latter for the same,[44] civil indemnity to the child is proper in a case
involving violation of Section 5(b), Article III of RA 7610. Every person
criminally liable is civilly liable.[45] The rule is that, in crimes and quasi-delicts, the
defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of.[46] Thus, P50,000 civil
indemnity ex delicto shall be awarded in cases of violation of Section 5(b), Article
III of RA 7610.[47]

Moreover, the CA erred in affirming the grant of P50,000 as moral and

exemplary damages. The rule is that, in every case, trial courts must specify the
award of each item of damages and make a finding thereon in the body of the
decision.[48] Thus, moral damages and exemplary damages should be separate
items of award.

AAA testified that she was emotionally devastated and lost touch of her
inner self as a result of what petitioner did to her. Because of the mental anxiety
and wounded feelings caused by petitioner to her, she had several sessions with the
dean for student affairs[49] and the guidance counselor of Assumption College as
well as with a psychiatrist. This was corroborated by her mother and the dean of
student affairs of Assumption College. Thus, she is entitled to moral damages
of P50,000. However, in the absence of an aggravating circumstance, the grant of
exemplary damages is unwarranted.[50]

Accordingly, the petition is hereby DENIED. Petitioner Michael John Z.

Malto is hereby found guilty of violating Section 5(b), Article III of RA 7610, as
amended, for which he is sentenced to 14 years and 8 months of reclusion
temporal as minimum to 20 years of reclusion temporal as maximum. He is further
ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral damages.

Costs against petitioner.

SO ORDERED.

G.R. No. 169425 March 4, 2008

ROBERTO LICYAYO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,1 petitioner Roberto
Licyayo prays for the reversal of the Decision dated 6 May 20052 and Resolution dated 12 August
20053 of the Court of Appeals in CA-G.R. CR No. 27359, affirming with modification the
Decision4 dated 20 February 2003 of the Regional Trial Court (RTC) of Lagawe, Ifugao, Branch 14,
in Criminal Cases No. 819 and 820, convicting petitioner of Homicide under Article 249 of the
Revised Penal Code in Criminal Case No. 819 while dismissing Criminal Case No. 820 for Direct
Assault as regards him.5

The factual antecedents are as follows:

On 1 February 1993, an Information6 in Criminal Case No. 819 was filed before the RTC charging
petitioner, his brother Aron Licyayo (Aron), Paul Baguilat (Paul) and Oliver Buyayo (Oliver) with
Homicide under Article 249 of the Revised Penal Code quoted as follows:

The undersigned Provincial Prosecutor, hereby accuses ROBERTO LICYAYO, OLIVER BUYAYO,
ARON LICYAYO, and PAUL BAGUILAT, of the crime of HOMICIDE and committed as follows:

That on or about the 16th day of February, 1992, in the Municipality of Kiangan, Ifugao, and within
the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another and with intent to kill, DID then and there willfully, unlawfully and
feloniously attack, assault one Rufino Guay, stabbing him with the use of a double bladed weapon,
thereby inflicting upon the victim several stab wounds which directly caused his death.

On 11 May 1993, an Amended Information7 in Criminal Case No. 820 was filed before the RTC
accusing petitioner of Direct Assault under Article 148 of the Revised Penal Code, viz:

That on or about the 16th of February 1992, in the Municipality of Kiangan, Ifugao, and within the
jurisdiction of this Honorable Court, the above-named accused, DID then and there willfully,
unlawfully and feloniously attack and assault PO3 Miguel Buyayo with the use of a bladed weapon
while the victim was in the performance of his official duties as a policeman which fact was known to
the accused.

Subsequently, these cases were consolidated for joint trial. In Criminal Case No. 819, petitioner,
Aron and Paul pleaded "Not Guilty" to the charge of homicide,8 while the other accused, Oliver, was
not arraigned.9 With respect to Criminal Case No. 820, petitioner was not arraigned.10 Thereafter,
trial on the merits ensued.

The prosecution presented as witnesses three members of the Philippine National Police (PNP),
Kiangan, Ifugao, namely, Joseph Danglay (Officer Danglay), Miguel Buyayo (Officer Buyayo) and
Alfonso Baguilat (Officer Baguilat); and three other persons namely, Jeffrey Malingan (Jeffrey),
Jimmy Guay (Jimmy), and Jose Guay (Jose). Their testimonies, woven together, bear the following:

On 16 February 1992, victim Rufino Guay (Rufino), along with his friends, Jeffrey and a certain Joel
Dumangeng (Joel) attended a wedding at Mabbalat, Kiangan, Ifugao. Petitioner, together with his
friends, Paul and Oliver, were also present at the same wedding. After the wedding reception,
Rufino, Jeffrey and Joel went to Natama’s Store at the Kiangan Public Market and ordered two
bottles of gin. While the three were drinking gin at the said store, petitioner, Paul and Oliver arrived
and likewise ordered bottles of gin. Later, petitioner, Paul and Oliver left the store. Subsequently,
Rufino, Jeffrey and Joel likewise adjourned their drinking session and left the store.11

Rufino, Jeffrey and Joel dropped by at Famorca’s Store. Petitioner and his brother, Aron, as well as
Paul and Oliver, were also present therein. While Jeffrey was talking to the store’s owner, Larry
Famorca (Larry), a brawl suddenly occurred between Rufino and Aron. As a consequence thereof,
Rufino fell to the ground. Aron thereafter placed himself on top of Rufino and punched the latter
several times. Jeffrey approached the two and tried to pacify them. Paul entered the scene and
punched Jeffrey on the head. Thereupon, a scuffle followed.12

Officers Danglay, Buyayo and Baguilat were on their way home from the Kiangan Police Station
when they heard some individuals calling for police assistance regarding the commotion. The three
officers rushed to the scene. Upon arriving thereat, they saw petitioner holding a six-inch double-
bladed knife and walking towards Rufino and Aron who were then wrestling with each other. Officer
Buyayo, then wearing only civilian clothes and unarmed, approached petitioner and held the latter’s
back collar to prevent him from joining the fray. Petitioner turned around, faced Officer Buyayo, and
tried to stab the latter but he missed. Officer Buyayo retreated. The officers introduced themselves to
petitioner as policemen and pleaded with him to put down the knife. Petitioner ignored the officers’
pleas.13

Afterwards, petitioner approached Rufino, who was then wrestling with Paul, and stabbed Rufino in
different parts of the body.14 Officer Baguilat fired a warning shot while Officer Danglay immediately
pounced on petitioner and disarmed the latter.15 Petitioner was brought to the Kiangan Police Station
while Rufino was taken to a nearby hospital where he later died due to stab wounds.16
The prosecution also presented documentary and object evidence to bolster the testimonies of its
witnesses, to wit: (1) sworn statements of Officer Danglay, Officer Buyayo, Officer Baguilat, Jeffrey,
Jimmy, Jose and Arsenio;17 (2) death certificate of Rufino;18 (3) certification from the Ifugao General
Hospital stating that Rufino sustained several stab wounds which directly caused his death;19 and (4)
the knife used by the petitioner in stabbing Rufino.20

For its part, the defense proffered the testimonies of petitioner and his corroborating witnesses --
Daniel Cayong (Daniel), Aron, and Paul -- to refute the foregoing accusations. Their version of the
incident is as follows:

On the morning of 16 February 1992, petitioner attended a wedding at Mabbalat, Kiangan, Ifugao.
After the wedding, petitioner met Paul and they proceeded to the Kiangan Public Market where they
chanced on Oliver, a certain Kimayong and Fernando who invited them for a drink in one of the
stores near the market. Later, Rufino, Jeffrey and Joel entered the store where petitioner’s group
was drinking and occupied a separate table. Jeffrey and Joel approached petitioner’s group and sat
at their table. Jeffrey shook and pressed hard the hand of Oliver. The storeowner signalled
petitioner’s group to pay its bills and leave. Petitioner brought out his wallet to pay their bills but
Jeffrey, who was still holding and pressing Oliver’s hand, told him to buy another bottle. Petitioner
pleaded with Jeffrey to let go of Oliver’s hand because the latter is his friend. Jeffrey, however,
warned him not to interfere if he did not want to get involved. Petitioner glanced at the store’s door
and saw Rufino standing therein. Thereafter, Jimmy passed by in front of the store and made a
signal to Rufino, Jeffrey and Joel. Petitioner, Paul and Oliver paid their bills, left the store and
proceeded to Sakai Store.21

Subsequently, Jeffrey and a companion went to Famorca’s Store and saw Aron and Daniel seated in
one of the benches outside the store. Jeffrey then told his companion "Can you tackle his
brother?" Sensing that he was the brother being referred to by Jeffrey and a trouble might occur,
Aron went inside the store but Jeffrey followed him. Thus, Aron went outside the store and sat on
one of the benches nearby. Afterwards, Rufino arrived at the store and approached Aron. Rufino
held the collar of Aron’s shirt and punched the latter on the left cheek. Jeffrey also approached Aron
and grabbed the latter’s arm. Aron fought back but he fell to the ground.22

Daniel immediately proceeded to Sakai Store and told petitioner that Aron was being mauled.
Petitioner went to the scene and saw Rufino and Jeffrey punching Aron who was sprawled on the
ground. Petitioner pushed Jeffrey away but the latter’s other companions suddenly arrived and
started hitting him. Petitioner fought back but he was overpowered. Petitioner cannot recall anymore
the subsequent events that transpired.23

After trial, the RTC rendered a Decision dated 20 February 2003, finding petitioner guilty of homicide
in Criminal Case No. 819. It acquitted Aron and Paul because the prosecution failed to prove the
existence of conspiracy. It did not rule on the liability of Oliver because he was not arraigned in the
said case. Further, it dismissed Criminal Case No. 820 for direct assault because petitioner was not
arraigned therein.24

The dispositive portion of the decision in Criminal Case No. 819 reads:

WHEREFORE, premises considered, accused Roberto Licyayo is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code. Applying
the provisions of the Indeterminate Sentence Law and there being no aggravating circumstances, he
is hereby sentenced to suffer the penalty of 8 years of prision mayor as minimum to 15 years
of reclusion temporal medium as maximum.
Further, accused is hereby ordered to pay the victim’s heirs the amount of ₱50,000.00 as civil
indemnity for the death of Rufino Guay. "Per prevailing jurisprudence, death indemnity is fixed in the
sum of ₱50,000.00. This kind of civil indemnity is separate and distinct from other forms of indemnity
for damages and is automatically awarded without need of further proof other than the fact of death
and that the accused is responsible therefore." (People v. Julius Kinok, G.R. No. 104629, November
13, 2001; Case Digest of Supreme Court Decisions; vol. 53, No. 2).

Likewise, accused is ordered to pay the victim’s heirs another ₱50,000.00 as moral damages. "This
award is mandatory and does not require proof other than the death of the victim." (People v.
Mariano Pascua, Jr., G.R. No. 130963, November 27, 2001; Case Digest of Supreme Court
Decisions; vol. 53, No. 2).

But the Court cannot award actual damages as testified to by the victim’s father, Jose Guay, in the
amount of ₱12,000.00 since the same were not covered by receipts. The same goes true with the
alleged annual income of the deceased in the amount of ₱30,000.00. "Well-entrenched is the
doctrine that actual, compensatory and consequential damages must be proved, and cannot be
presumed." (Ibid.).25

Petitioner appealed to the Court of Appeals. On 6 May 2005, the appellate court promulgated its
Decision affirming with modifications the RTC decision. In addition to the civil indemnity and moral
damages awarded by the RTC, the appellate court also ordered petitioner to pay for the loss of
earning capacity of Rufino in the amount of ₱580,050.00 and temperate damages in the amount of
₱25,000.00. Thus:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 14 of
Lagawe, Ifugao in Criminal Cases Nos. 819 and 820 is hereby AFFIRMED with MODIFICATION as
to the award of damages, in that accused-appellant is also ordered to pay the victim’s heirs the
following:

(a) the amount of ₱25,000.00 as temperate damages; and

(b) the amount of ₱580,050.00 for lost earnings.26

Petitioner filed a Motion for Reconsideration which the appellate court denied. Hence, petitioner
elevated the instant case before us on the following grounds:

I.

THE INFORMATION FILED IS NOT SUFFICIENT AS IT DID NOT SPECIFICALLY

CHARGED PETITIONER FOR THE CRIME OF "HOMICIDE" DEFINED AND PENALIZED
UNDER ARTICLE 249 OF THE REVISED PENAL CODE; HENCE, PETITIONER COULD
NOT BE VALIDLY CONVICTED FOR SAID CRIME.

II.

GRANTING THAT THE INFORMATION IS SUFFICIENT, PETITIONER IS ENTITLED TO

THE MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION AND
INTOXICATION.27

Anent the first issue, petitioner points out that the Information does not specifically mention the law
which he allegedly violated and for which he was charged. Although the information accuses him of
the crime of homicide, it does not categorically state that he is being charged with homicide, as
defined and penalized under Article 249 of the Revised Penal Code. According to him, the
information should have been more explicit by stating that he is being indicted for homicide as
defined and penalized under Article 249 of the Revised Penal Code. He argues that the specification
in the information of the law violated is necessary to enable him to adequately prepare for his
defense, and that to convict him under such defective information would violate his constitutional and
statutory right to be informed of the nature and cause of the accusation against him.28

Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that an 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.

With particular reference to the designation of the offense, Section 8, Rule 110 of the Revised Rules
of Criminal Procedure merely directs that the information must 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.

The information in the instant case contains the foregoing required statements. The information
mentions the name of petitioner as the accused, the name of Rufino as the offended party, the date
and place of the commission of the crime, and designates the crime committed by petitioner as
homicide. It also alleges the act of petitioner constituting homicide which is the unlawful stabbing of
Rufino with the use of a bladed weapon.29

The fact that the information does not specifically mention Article 249 of the Revised Penal Code as
the law which defines and penalizes homicide, does not make it defective. There is nothing in the
afore-quoted Rules which specifically requires that the information must state the particular law
under which the accused is charged in order for it to be considered sufficient and valid. What the
Rules merely require, among other things, is that the information must designate the offense
charged and aver the acts constituting it, which in this case, were obviously done. People v.
Gatchalian30 categorically stated that there is no law which requires that in order that an accused
may be convicted, the specific provision which penalizes the act charged be mentioned in the
information.

Besides, it should be stressed that the character of the crime is determined neither by the caption or
preamble of the information nor by the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the recital of the ultimate facts and circumstances in
the information.31 The sufficiency of an information is not negated by an incomplete or defective
designation of the crime in the caption or other parts of the information but by the narration of facts
and circumstances which adequately depicts a crime and sufficiently apprises the accused of the
nature and cause of the accusation against him.32

Although the information herein does not specifically mention Article 249 of the Revised Penal Code
as the law which defines and penalizes homicide, it, nonetheless, narrates that petitioner stabbed
Rufino with a bladed weapon during the incident which caused the latter’s death. The foregoing
allegation unmistakably refers to homicide under Article 249 of the Revised Penal Code which is the
unlawful killing of any person without any attendant circumstance that will qualify it as murder,
parricide or infanticide.

Apropos the second issue, petitioner alleges that Rufino started the scuffle by punching Aron on the
left cheek; that by such act, Rufino had given him sufficient provocation; and that it was the pitiful
sight of Aron lying on the ground and being beaten by Rufino and Jeffrey which caused him to stab
Rufino.33 Petitioner further claims that he was intoxicated during the incident; that this fact was
affirmed by Officers Danglay and Baguilat in their court testimonies; that his intoxication was not
subsequent to any plan to commit a felony because the encounter between him and Rufino was
merely accidental and there was no previous agreement to harm Rufino; that prior to the incident, he
met old friends and had a drink with them; that such is a mere custom or practice among Filipinos;
and that his intoxication is not habitual.34

Under paragraph 4, Article 13 of the Revised Penal Code, a criminal liability may be mitigated if
there was sufficient provocation on the part of the offended party which immediately preceded the
act complained of. To avail oneself of this mitigating circumstance, it must be duly proven that the
alleged provocation originated from the offended party.35

The records do not sufficiently establish who between Rufino and Aron started the brawl which
resulted in the stabbing of Rufino by petitioner. What is evident is that Rufino and Aron suddenly and
unexpectedly grappled during the incident.36 As aptly observed by the RTC:

From the facts of the case earlier discussed, the fight between Rufino Guay and Aron Licyayo
was so sudden. In his defense, Aron Licyayo in his direct examination testified though self-serving,
that it was victim Rufino Guay who punched him first and so he fought back.

Nevertheless, this claim of unlawful aggression is belied during his cross-examination:

Q. You claim, Mr.Witness, that on February 16, 1992, you did not know the late Rufino Guay?

A. Yes, Sir.

Q. You therefore cannot imagine why he should assault you since you did not know each other?

A. None.

Q. You never had any misunderstanding or altercation prior to February 16, 1992?

A. None.

Q. And all of a sudden, in the afternoon of February 16, 1992 you fought each other and you being
bigger than Rufino Guay, you are on top of him, is that right?

A. Yes, sir.

Q. And you delivered several blows when you were on top of him?

A. No because they were already many and they held me.

Q. How many blows did you deliver when you were on top of him before the others came?

A. I do not know how many.

Q. Was it more than ten?

A. No.
Q. Was it more than fifteen?

A. I do not know.

Q. Why do you not know, Mr. Witness, were you drunk at that time?

A. No, I was not. (TSN, pp. 82-83, Crim. Case No. 820).

Granting arguendo that there was unlawful aggression on the part of the victim, it is obvious that
immediately he became the underdog, literally even. He was easily overpowered by the bigger and
sober Aron Licyayo, who unfortunately, does not know how to count. With this development, the
situation changed. The aggressor became the attacked and the attacked, the aggressor.

But even from the testimonies of both the prosecution and the defense witnesses, the former
(prosecution) prevailed in convincing this Court that unlawful aggression was not started by
any of the protagonists but that a sudden fight was started by Rufino Guay and accused Aron
Licyayo. This is verifiable from the testimony of the fourth prosecution witness, Jeffrey
Malingan.

Defense on the other hand, tried to show that it was the victim who started the unlawful aggression
through witnesses Daniel Cayong and accused Aron Licyayo. They failed miserably, however, to
show this. Daniel Cayong, in his direct examination narrated that it was not only Rufino Guay who
started the trouble but rather he and his two companions Joel Dumangeng and Jeffrey Malingan
took hold of Aron Licyayo and started punching him. The latter witness, as shown earlier, showed his
bias by inculpating the deceased only to contradict himself that the fight suddenly started when he
and the deceased grappled.37

The rule is that the findings of the trial court, its calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its conclusions anchored on said findings are
accorded respect if not conclusive effect. This is more true if such findings were affirmed by the
appellate court. When the trial court’s findings have been affirmed by the appellate court, said
findings are generally binding upon this Court.38

Since it was not convincingly shown that the alleged provocation originated from Rufino, the
mitigating circumstance of sufficient provocation should not be appreciated in favor of petitioner. We
have held that where there is no evidence as to how the quarrel arose, the accused is not entitled to
the mitigating circumstance of sufficient provocation.39

For intoxication to be considered as a mitigating circumstance, it must be shown that the intoxication
impaired the willpower of the accused and that he did not know what he was doing or could not
comprehend the wrongfulness of his acts.40 The person pleading intoxication must prove that he took
such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason.41

In the case at bar, there is no plausible evidence showing that the quantity of liquor taken by
petitioner was of such quantity as to affect his mental faculties. On the contrary, the fact that
petitioner could recall the details that transpired during and after his drinking session with friends is
the best proof that he knew what he was doing during the incident. His vivid narration that he had a
confrontation with Rufino, Jeffrey and Joel during the drinking session; that Daniel approached and
told him that Aron was being mauled; that he immediately went to the scene and saw Aron being
beaten by Rufino and Jeffrey; that he pushed Jeffrey away from Aron; that he was allegedly beaten
by the companions of Jeffrey; and that he fought back but was allegedly overpowered --- all point to
the conclusion that petitioner had complete control of his mind during the incident.42
Petitioner cannot avail himself of the mitigating circumstance of intoxication merely on the
testimonies of the prosecution witnesses that he was drunk during the incident.43 Such testimonies
do not warrant a conclusion that the degree of petitioner’s intoxication had affected his
faculties.44 There must be convincing proof of the nature and effect of his intoxication which
petitioner failed to adduce in the present case.45

We now go to the propriety of the sentence imposed on petitioner and the damages awarded to the
heirs of Rufino.

Homicide is punishable by reclusion temporal.46 There being no mitigating or aggravating

circumstance proven in the case at bar, the penalty should be applied in its medium period of 14
years, 8 months and 1 day to 17 years and 4 months.47 Applying the Indeterminate Sentence Law,
the maximum penalty will be selected from the above range, with the minimum penalty being
selected from the range of the penalty one degree lower than reclusion temporal, which is prision
mayor (six years and one day to 12 years). We found the indeterminate sentence of eight years
of prision mayor as minimum, to 15 years of reclusion temporal as maximum, imposed by the RTC,
and affirmed by the Court of Appeals, sufficient.

The Court of Appeals correctly awarded civil indemnity in the amount of ₱50,000.00 and moral
damages amounting to ₱50,000.00 in line with prevailing jurisprudence.48

As to actual damages, Jose testified that his family incurred expenses for the hospitalization and
funeral of Rufino.49However, since no documentary evidence was proffered to support this claim, it
cannot be awarded.50 Nonetheless, the award of ₱25,000.00 in temperate damages in homicide or
murder cases is proper when no evidence of the said expenses is presented in the trial
court.51 Under Article 2224 of the Civil Code,52 temperate damages may be recovered as it cannot be
denied that the heirs of the victim suffered pecuniary loss although the exact amount was not
proved.53 Thus, the award of temperate damages in the amount of ₱25,000.00 by the Court of
Appeals is in order.

We also agree with the Court of Appeals that the heirs of Rufino should be indemnified for loss of
earning capacity pursuant to Article 2206 of the New Civil Code54 in the amount of ₱580,050.00. In
accordance with current jurisprudence,55 the formula for the indemnification for loss of earning
capacity is:

Net Earning Capacity = Life Expectancy x Gross Annual Income (GAI) – Living Expenses
= 2/3(80 – age of deceased) x (GAI – 50% of GAI)

Generally, documentary evidence is necessary for the purpose of proving the victim’s annual
income. As an exception, testimonial evidence suffices if 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 victim’s 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.56

Rufino falls under these exceptions. Jose testified that Rufino was earning an average annual gross
income of ₱30,000.00 from gardening and cultivating ricefields.57 Rufino was 22 years old at the time
of his death.58

We have held that in the absence of proof as regards the victim’s living expenses, his net income is
deemed to be 50 percent of his gross income.59
Applying the above-stated formula, the indemnity for the loss of earning capacity of Rufino is
₱580,050.00, computed as follows:

Net earning capacity = 2/3 (58) x (30,000.00 – ₱15,000.00)

= 38.67 x ₱15,000.00
= ₱580,050.00

WHEREFORE, the petition is hereby DENIED. The Decision dated 6 May 2005 and Resolution
dated 12 August 2005 of the Court of Appeals in CA-G.R. CR No. 27359 is hereby AFFIRMED in
toto. No costs.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

SSGT. JOSE M. PACOY, G.R. NO. 157472

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

HON. AFABLE E. CAJIGAL,

PEOPLE OF THE PHILIPPINES
and OLYMPIO L. ESCUETA, Promulgated:
Respondents. September 28, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by
SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders dated
October 25, 2002[2] and December 18, 2002[3] issued by Presiding
Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC),
Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.

On July 4, 2002, an Information for Homicide was filed in

the RTC against petitioner committed as follows:

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

of Mayantoc, Province of Tarlac, Philippines and within the jurisdiction
of this Honorable Court, the said accused with intent to kill, did then and
there wilfully, unlawfully and feloniously shot his commanding officer
2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon
2Lt. Frederick Esquitamultiple gunshot wounds on his body which caused
his instantaneous death.
With the aggravating circumstance of killing, 2Lt.
Frederick Esquita in disregard of his rank.[4]

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

counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge
set the pre-trial conference and trial on October 8, 2002.[5]

However, on the same day and after the arraignment, the respondent judge issued
another Order,[6] likewise dated September 12, 2002, directing the trial prosecutor
to correct and amend the Information to Murder in view of the aggravating
circumstance of disregard of rank alleged in the Information which public
respondent registered as having qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by crossing out the
word Homicide and instead wrote the word Murder in the caption and in the
opening paragraph of the Information. The accusatory portion remained exactly the
same as that of the original Information for Homicide, with the correction of the
spelling of the victims name from Escuita to Escueta.[7]

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner
was to be re-arraigned for the crime of Murder. Counsel for petitioner objected on
the ground that the latter would be placed in double jeopardy, considering that his
Homicide case had been terminated without his express consent, resulting in the
dismissal of the case. As petitioner refused to enter his plea on the amended
Information for Murder, the public respondent entered for him a plea of not
guilty.[8]

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend
Proceedings Pending the Resolution of the Instant Motion[9] on the ground of
double jeopardy. Petitioner alleged that in the Information for Homicide, he was
validly indicted and arraigned before a competent court, and the case was
terminated without his express consent; that when the case for Homicide was
terminated without his express consent, the subsequent filing of the Information for
Murder in lieu of Homicide placed him in double jeopardy.

In an Order[10] dated October 25, 2002,[11] the respondent judge denied the Motion
to Quash. He ruled that a claim of former acquittal or conviction does not
constitute double jeopardy and cannot be sustained unless judgment was rendered
acquitting or convicting the defendant in the former prosecution; that petitioner
was never acquitted or convicted of Homicide, since the Information for Homicide
was merely corrected/or amended before trial commenced and did not terminate
the same; that the Information for Homicide was patently insufficient in substance,
so no valid proceedings could be taken thereon; and that with the allegation of
aggravating circumstance of disregard of rank, the crime ofHomicide is qualified
to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In
his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in
an arbitrary, capricious and partial manner in mandating the amendment of the
charge from Homicide to Murder in disregard of the provisions of the law and
existing jurisprudence.

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

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

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

hereby DENIED while the Motion for Reconsideration is hereby
GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge
shall continue hearing this case. Further, the Order dated October 25,
2002 is reconsidered and the original information charging the crime of
homicide stands.[13]
In granting the Motion for Reconsideration, respondent judge found that a close
scrutiny of Article 248 of the Revised Penal Code shows that disregard of rank is
merely a generic mitigating[14] circumstance which should not elevate the
classification of the crime of homicide to murder.

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

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION

AND EXCEEDED HIS JURISDICTION IN ORDERING THE
AMENDMENT OF THE INFORMATION FROM HOMICIDE TO
MURDER.
 THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION
AND VIOLATED THE LAW IN DENYING THE MOTION TO
QUASH THE INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION

AND EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW
IN ORDERING THE REINSTATEMENT OF THE INFORMATION
FOR HOMICIDE WHICH WAS ALREADY TERMINATED.[15]

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

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

Petitioner further argues that although the respondent judge granted his Motion for
Reconsideration, he did not in fact grant the motion, since petitioner's prayer was
for the respondent judge to grant the Motion to Quash the Information for Murder
on the ground of double jeopardy; that his Motion for Reconsideration did not seek
the reinstatement of the Information for Homicide upon the dismissal of the
Information for Murder, as he would again be placed in double jeopardy; thus, the
respondent judge committed grave abuse of discretion in reinstating the Homicide
case.

In his Comment, the Solicitor General argues that the respondent judge's Order
reinstating the Information to Homicide after initially motu proprio ordering its
amendment to Murder renders herein petition moot and academic; that petitioner
failed to establish the fourth element of double jeopardy, i.e., the defendant was
acquitted or convicted, or the case against him was dismissed or otherwise
terminated without his consent; that petitioner confuses amendment with
substitution of Information; that the respondent judge's Order dated September 12,
2002 mandated an amendment of the Information as provided under Section 14,
Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not
entail dismissal or termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment
alleging that no grave abuse of discretion was committed by the respondent judge
when he denied petitioner's Motion to Quash the Amended Information, as
petitioner was not placed in double jeopardy; that the proceedings under the first
Information for homicide has not yet commenced, and the case was not dismissed
or terminated when the Information was amended.

In his Reply, petitioner reiterates his contention that the amendment of the charge
of Homicide to Murder after his arraignment would place him in double jeopardy,
considering that said amendment was without his express consent; and that such
amendment was tantamount to a termination of the charge of Homicide.

The parties filed their respective Memoranda.

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

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

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

The Courts Ruling

The petition is not meritorious.

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

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

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

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

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

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

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

xxx

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint
or information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
 placed thereby in double jeopardy, and may also require the witnesses to
give bail for their appearance at the trial.
with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper
offense. - When it becomes manifest at any time before judgment that a
mistake has been made in charging the proper offense and the accused
cannot be convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be discharged if there
appears good cause to detain him. In such case, the court shall commit
the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.
First, a distinction shall be made between amendment and substitution under
Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19] is
instructive, viz:

The first paragraph provides the rules for amendment of the

information or complaint, while the second paragraph refers to
the substitution of the information or complaint.

It may accordingly be posited that both amendment and

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

1. Amendment may involve either formal or substantial changes,

while substitution necessarily involves a substantial change from the
original charge;

2. Amendment before plea has been entered can be effected

without leave of court, but substitution of information must be with leave
of court as the original information has to be dismissed;

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

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

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

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

In determining, therefore, whether there should be an amendment

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

There is identity between the two offenses when the evidence to

support a conviction for one offense would be sufficient to warrant a
conviction for the other, or when the second offense is exactly the same
as the first, or when the second offense is an attempt to commit or a
frustration of, or when it necessarily includes or is necessarily included
in, the offense charged in the first information. In this connection, an
offense may be said to necessarily include another when some of the
essential elements or ingredients of the former, as this is alleged in the
information, constitute the latter. And, vice-versa, an offense may be
said to be necessarily included in another when the essential ingredients
of the former constitute or form a part of those constituting the latter.[20]

In the present case, the change of the offense charged from Homicide to
Murder is merely a formal amendment and not a substantial amendment or a
substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information
shows that the only change made was in the caption of the case; and in the opening
paragraph or preamble of the Information, with the crossing out of word Homicide
and its replacement by the word Murder. There was no change in the recital of
facts constituting the offense charged or in the determination of the jurisdiction of
the court. The averments in the amended Information for Murder are exactly the
same as those already alleged in the original Information for Homicide, as there
was not at all any change in the act imputed to petitioner, i.e., the killing of
2Lt. Escueta without any qualifying circumstance. Thus, we find that the
amendment made in the caption and preamble from Homicide to Murder as purely
formal.[21]

Section 14, Rule 110 also provides that in allowing formal amendments in cases in
which the accused has already pleaded, it is necessary that the amendments do not
prejudice the rights of the accused. The test of whether the rights of an accused are
prejudiced by the amendment of a complaint or information is whether a defense
under the complaint or information, as it originally stood, would no longer be
available after the amendment is made; and when any evidence the accused might
have would be inapplicable to the complaint or information.[22] Since the facts
alleged in the accusatory portion of the amended Information are identical with
those of the original Information for Homicide, there could not be any effect on the
prosecution's theory of the case; neither would there be any possible prejudice to
the rights or defense of petitioner.

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

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

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

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of
Court, which provides:
 SEC. 3. Grounds. - The accused may move to quash the complaint
or information on any of the following grounds:

xxxx

(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense of
double jeopardy may prosper, to wit:

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

accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint
or information.
Thus, there is double jeopardy when the following requisites are present: (1)
a first jeopardy attached prior to the second; (2) the first jeopardy has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.[24]

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment;
(b) before a competent court; (c) after arraignment; (d) when a valid plea has been
entered; and (e) when the accused was acquitted or convicted, or the case was
dismissed or otherwise terminated without his express consent.[25]

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

case that bars further prosecution for the same offense or any attempt to commit
the same or the frustration thereof; or prosecution for any offense which
necessarily includes or is necessarily included in the offense charged in the former
complaint or information.[26]
Petitioner's insistence that the respondent judge dismissed or terminated his case
for homicide without his express consent, which is tantamount to an acquittal, is
misplaced.

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

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

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

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

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

and Section 19, Rule 119, which provides:

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

Evidently, the last paragraph of Section 14, Rule 110, applies only when the
offense charged is wholly different from the offense proved, i.e., the accused
cannot be convicted of a crime with which he was not charged in the information
even if it be proven, in which case, there must be a dismissal of the charge and a
substitution of a new information charging the proper offense. Section 14 does not
apply to a second information, which involves the same offense or an offense
which necessarily includes or is necessarily included in the first information. In
this connection, the offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved when the essential ingredients of the
former constitute or form a part of those constituting the latter.[28]

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

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

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

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

A reading of the Order dated December 18, 2002 showed that the respondent judge
granted petitioner's motion for reconsideration, not on the ground that double
jeopardy exists, but on his realization that disregard of rank is a generic
aggravating circumstance which does not qualify the killing of the victim to
murder. Thus, he rightly corrected himself by reinstating the original Information
for Homicide. The requisite of double jeopardy that the first jeopardy must have
attached prior to the second is not present, considering that petitioner was neither
convicted nor acquitted; nor was the case against him dismissed or otherwise
terminated without his express consent.[29]
WHEREFORE, the petition is DISMISSED, there being no grave abuse of
discretion committed by respondent Judge.
SO ORDERED.

G.R. No. 179962 June 11, 2014

DR. JOEL C. MENDEZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and COURT OF TAX APPEALS, Respondents.

DECISION

BRION, J.:

Before the Court is a petition for certiorari and prohibition under Rule 651 filed by Dr. Joel C. Mendez
(petitioner) assailing the June 12, 2007 and August 13, 2007 resolutions2 of the Court of Tax Appeals
(CTA)3 The assailed resolutions granted the prosecution's Motion to Amend Information with Leave
of Court and denied the petitioner's motion for reconsideration.

ANTECEDENTS

The Bureau of Internal Revenue (BIR) filed a complaint-affidavit4 with the Department of Justice
against the petitioner. The BIR alleged that the petitioner had been operating as a single proprietor
doing business and/or exercising his profession for taxable years 2001 to 2003 under the following
trade names and registration addresses:5

1. Mendez Body and Face Salon and Spa

Registered with Revenue District Office (RDO) No. 39 – South Quezon City

2. Mendez Body and Face Salon and Spa

Registered with RDO No. 39 – South Quezon City

3. Mendez Body and Face Salon and Spa

Registered with RDO No. 40 – Cubao

4. Mendez Body and Face Skin Clinic

Registered with RDO No. 47 – East Makati

5. Weigh Less Center

Registered with RDO No. 21

 6. Mendez Weigh Less Center

Registered with RDO No. 4 – Calasiao Pangasinan

Based on these operations, the BIR alleged that petitioner failed to file his income tax returns for
taxable years 2001 to 2003 and, consequently evaded his obligation to pay the correct amount of
taxes due the government.6

In his defense, the petitioner admitted that he has been operating as a single proprietor under these
trade names in Quezon City, Makati, Dagupan and San Fernando. However, he countered that he
did not file his income tax returns in these places because his business establishments were
registered only in 2003 at the earliest; thus, these business establishments were not yet in existence
at the time of his alleged failure to file his income tax return.7

After a preliminary investigation, State Prosecutor Juan Pedro Navera found probable cause against
petitioner for non-filing of income tax returns for taxable years 2001 and 2002 and for failure to
supply correct and accurate information as to his true income for taxable year 2003, in violation of
the National Internal Revenue Code.8Accordingly an Information9 was filed with the CTA charging the
petitioner with violation of Section 255 of Republic Act No. 8424 (Tax Reform Act of 1997). The
Information reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA]
the above named accused, a duly registered taxpayer, and sole proprietor of "Weigh Less Center"
with principal office at No. 31 Roces Avenue, Quezon City, and with several branches in Quezon
City, Makati, San Fernando and Dagupan City, did then and there, wilfully, unlawfully and feloniously
fail to file his Income Tax Return (ITR) with the Bureau of Internal Revenue for the taxable year
2001, to the damage and prejudice of the Government in the estimated amount of ₱1,089,439.08,
exclusive of penalties, surcharges and interest.

CONTRARY TO LAW.10

The accused was arraigned11 and pleaded not guilty on March 5, 2007.12 On May 4, 2007, the
prosecution filed a "Motion to Amend Information with Leave of Court."13 The amended information
reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the CTA]
the above named accused, doing business under the name and style of "Weigh Less
Center"/Mendez Medical Group", with several branches in Quezon City, Muntinlupa City,
Mandaluyong City and Makati City, did then and there, wilfully, unlawfully and feloniously fail to file
his income tax return (ITR) with the Bureau of Internal Revenue for income earned for the taxable
year 2001, to the damage and prejudice of the Government in the estimated amount of
₱1,089,439.08, exclusive of penalties, surcharges and interest (underscoring and boldfacing in the
original).14

The petitioner failed to file his comment to the motion within the required period; thus on June 12,
2007,the CTA First Division granted the prosecution’s motion.15 The CTA ruled that the prosecution’s
amendment is merely a formal one as it "merely states with additional precision something already
contained in the original information."16The petitioner failed to show that the defenses applicable
under the original information can no longer be used under the amended information since both the
original and the amended information charges the petitioner with the same offense (violation of
Section 255). The CTA observed:
the change in the name of his business to include the phrase "Mendez Medical Group" does not alter
the fact the [petitioner] is being charged with failure to file his Income Tax Return... The change in
the branches of his business, likewise did not relieve [the petitioner] of his duty to file an ITR. In
addition, the places where the accused conducts business does not affect the Court’s jurisdiction...
nor ... change the nature of the offense charged, as only one [ITR] is demanded of every taxpayer.
We likewise see no substantial difference on the information with the insertion of the phrase ‘for
income earned’ for it merely stated the normal subject matter found in every income tax return.

The petitioner filed the present petition after the CTA denied his motion for reconsideration.17 THE
PETITION

The petitioner claims in his petition that the prosecution’s amendment is a substantial amendment
prohibited under Section 14, Rule 110 of the Revised Rules of Criminal Procedure. It is substantial in
nature because its additional allegations alter the prosecution’s theory of the case so as to cause
surprise to him and affect the form of his defense.18 Thus, he was not properly informed of the nature
and cause of the accusation against him.

Adopting the observation of a dissenting CTA justice, he claims that to change the allegation on the
locations of his business from San Fernando, Pampanga and Dagupan City to Muntinlupa and
Mandaluyong cities would cause surprise to him on the form of defense he would have to assume.

The petitioner adds that the change in the date of the commission of the crime from 2001 to 2002
would also alter his defense considering that the difference in taxable years would mean requiring a
different set of defense evidence. The same is true with the new allegation of "Mendez Medical
Group" since it deprived him of the right, during the preliminary investigation, to present evidence
against the alleged operation and or existence of this entity.19 In sum, the amendments sought
change the subject of the offense and thus substantial.20 RESPONDENTS’ COMMENT

The respondents claim that the petitioner availed of the wrong remedy in questioning the CTA
resolutions. Under Rule 9, Section 9 of the Revised Rules of CTA, the remedy of appeal to the CTA
en banc is the proper remedy, to be availed of within fifteen days from receipt of the assailed
resolution. The filing of the present petition was clearly a substitute for a lost appeal. Even assuming
that certiorari is the proper remedy, the CTA did not commit an error of jurisdiction or act with grave
abuse of discretion. On the contrary, the assailed resolutions were in accord with jurisprudence. The
amended information could not have caused surprise to the petitioner since the amendments do not
change the nature and cause of accusation against him. The offense the petitioner probably
committed and the acts or omissions involved remain the same under the original and the amended
information, i.e., his failure to file his ITR in 2002 for income earned in 2001 from the operation of his
businesses.21

Neither would the change in the date of the commission of the crime nor the inclusion of the phrase
"Mendez Medical Group" cause surprise to the petitioner since he was fully apprised of these facts
during the preliminary investigation. Likewise, the original information already alleged that the
petitioner’s failure to file an ITR refers to "taxable year 2001."

Contrary to the petitioner’s contention, the preparation of the defense contemplated in the law does
not strictly include the presentation of evidence during the preliminary investigation because this
stage is not the occasion for the full and exhaustive display of the parties’ evidence. ISSUES:

1. Is the remedy of certiorari proper?

 2. Whether the prosecution’s amendments made after the petitioner’s arraignment are
substantial in nature and must perforce be denied?

COURT’S RULING

We resolve to dismiss the petition.

Preliminary consideration

The petitioner correctly availed of the remedy of certiorari. Under Rule 65 of the Rules of Court,
certiorari is available when there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. After failing in his bid for the CTA to reconsider its admission of the amended
information, the only remedy left to the petitioner is to file a petition for certiorari with this Court.

Contrary to the prosecution’s argument, the remedy of appeal to the CTA en banc is not available to
the petitioner. In determining the appropriate remedy or remedies available, a party aggrieved by a
court order, resolution or decision must first correctly identify the nature of the order, resolution or
decision he intends to assail. What Section 9 Rule 922 of the Rules of the CTA provides is that appeal
to the CTA en banc may be taken from a decision or resolution of the CTA division in criminal cases
by filing a petition for review under Rule 43 of the Rules of Court. Under Section 1, Rule 43, the
remedy of a petition for review is available only against a judgments or a final order.

A judgment or order is considered final if it disposes of the action or proceeding completely, or

terminates a particular stage of the same action; in such case, the remedy available to an aggrieved
party is appeal. If the order or resolution, however, merely resolves incidental matters and leaves
something more to be done to resolve the merits of the case, as in the present case, the order is
interlocutory and the aggrieved party’s only remedy after failing to obtain a reconsideration of the
ruling is a petition for certiorari under Rule 65.

Nonetheless, while we rule that the petitioner availed of the correct remedy, we resolve to dismiss
the petition for failure to establish that the CTA abused its discretion, much less gravely abused its
discretion.

Amendment of information

Section 14, Rule 110 of the Revised Rules of Criminal Procedure governs the matter of amending
the information:

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 reasons
in resolving the motion and copies of its order shall be furnished all parties, especially the offended
party.

There is no precise definition of what constitutes a substantial amendment. According to

jurisprudence, substantial matters in the complaint or information consist of the recital of facts
constituting the offense charged and determinative of the jurisdiction of the court.23 Under Section 14,
however, the prosecution is given the right to amend the information, regardless of the nature of the
amendment, so long as the amendment is sought before the accused enters his plea, subject to the
qualification under the second paragraph of Section 14.

Once the accused is arraigned and enters his plea, however, Section 14 prohibits the prosecution
from seeking a substantial amendment, particularly mentioning those that may prejudice the rights of
the accused.24 One of these rights is the constitutional right of the accused to be informed of the
nature and cause of accusation against him, a right which is given life during the arraignment of the
accused of the charge of against him. The theory in law is that since the accused officially begins to
prepare his defense against the accusation on the basis of the recitals in the information read to him
during arraignment, then the prosecution must establish its case on the basis of the same
information.

To illustrate these points, in Almeda v. Judge Villaluz,25 the prosecution wanted to additionally
alleged recidivism and habitual delinquency in the original information. In allowing the amendment,
the Court observed that the amendment sought relate only to the range of the penalty that the court
might impose in the event of conviction. Since they do not have the effect of charging an offense
different from the one charged (qualified theft of a motor vehicle) in the information, nor do they tend
to correct any defect in the trial court’s jurisdiction over the subject-matter, the amendment sought is
merely formal.

In Teehankee, Jr. v. Madayag,26 the prosecution sought during trial to amend the information from
frustrated to consummated murder since the victim died after the information for frustrated murder
was filed. The accused refused to be arraigned under the amended information without the conduct
of a new preliminary investigation. In sustaining the admission of the amended information, the Court
reasoned that the additional allegation, that is, the supervening fact of the death of the victim was
merely supplied to aid the trial court in determining the proper penalty for the crime. Again, there is
no change in the nature of offense charged; nor is there a change in the prosecution’s theory that
the accused committed a felonious act with intent to kill the victim; nor does the amendment affect
whatever defense the accused originally may have.

In short, amendments that do not charge another offense different from that charged in the original
one;27 or do not alter the prosecution's theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume are considered merely as formal amendments.

In the present case, the amendments sought by the prosecution pertains to (i) the alleged change in
the date in the commission of the crime from 2001 to 2002; (ii) the addition of the phrase "doing
business under the name and style of Mendez Medical Group;" (iii) the change and/or addition of the
branches of petitioner’s operation; and (iv) the addition of the phrase "for income earned." We
cannot see how these amendments would adversely affect any substantial right of the petitioner as
accused.

The "change" in the date from 2001 to 2002 and the addition of the phrase "for income earned"

At the outset we note that the actual year of the commission of the offense has escaped both the
petitioner and prosecution. In its Motion to Amend the Information, the prosecution mistakenly stated
that the information it originally filed alleged the commission of the offense as "on or about the 15th
day of April, 2001" – even if the record is clear that that the actual year of commission alleged is
2002. The petitioner makes a similar erroneous allegation in its petition before the Court.
Interestingly, in its August 13, 2007 resolution, denying the petitioner’s motion for reconsideration,
the CTA implicitly ruled that there was in fact no amendment of the date in the information by
correctly citing what the original information alleges. This, notwithstanding, the petitioner still
baselessly belaboured the point in its present petition by citing the erroneous content of the
prosecution’s motion to amend instead of the original information itself.28 This kind of legal advocacy
obviously added nothing but confusion to what is otherwise a simple case and another docket to the
High Court’s overwhelming caseload.

That the actual date of the commission of the offense pertains to the year 2002 is only consistent
with the allegation in the information on the taxable year it covers, i.e., for the taxable year 2001.
Since the information alleges that petitioner failed to file his income tax return for the taxable year
2001, then the offense could only possibly be committed when petitioner failed to file his income tax
return before the due date of filing, which is on April of the succeeding year, 2002. Accordingly, the
addition of the phrase "for the income earned" before the phrase "for the taxable year 2001" cannot
but be a mere formal amendment since the added phrase merely states with additional precision
something that is already contained in the original information, i.e., the income tax return is required
to be filed precisely for the income earned for the preceding taxable year.

The nature of the remaining two items of amendment would be better understood, not only in the
context of the nature of the offense charged under the amended information, but likewise in the
context of the legal status of the "Mendez Medical Group."

The addition of the phrase "doing business

under the name and style of Mendez
Medical Group and the change and/or
addition of the branches of petitioner’s
operation

Under the National Internal Revenue Code (NIRC), a resident citizen who is engaged in the practice
of a profession within the Philippines is obligated to file in duplicate an income tax return on his
income from all sources, regardless of the amount of his gross income.29 In complying with this
obligation, this type of taxpayer ought to keep only two basic things in mind: first is where to file the
return; and second is when to file the return. Under Section 51 B of the NIRC, the return should "be
filed with an authorized agent bank, Revenue District Officer, Collection Agent or duly authorized
Treasurer of the city or municipality in which such person has his legal residence or principal place
of business in the Philippines."

On the other hand, under Section 51 C of the NIRC, the same taxpayer is required to file his income
tax return on or before the fifteenth (15th) day of April of each year covering income for the
preceding taxable year.30 Failure to comply with this requirement would result in a violation of Section
255 of the NIRC which reads:

Section 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax Withhold and
Remit Tax and Refund Excess Taxes Withheld on Compensation. - Any person required under this
Code or by rules and regulations promulgated thereunder to pay any tax, make a return, keep any
record, or supply any correct and accurate information, who wilfully fails to pay such tax, make such
return, keep such record, or supply correct and accurate information, or withhold or remit taxes
withheld, or refund excess taxes withheld on compensation, at the time or times required by law or
rules and regulations shall, in addition to other penalties provided by law, upon conviction thereof, be
punished by a fine of not less than Ten thousand pesos (₱10,000) and suffer imprisonment of not
less than one (1) year but not more than ten (10) years. [emphasis supplied]
Since the petitioner operates as a sole proprietor from taxable years 2001 to 2003, the petitioner
should have filed a consolidated return in his principal place of business, regardless of the number
and location of his other branches. Consequently, we cannot but agree with the CTA that the change
and/or addition of the branches of the petitioner’s operation in the information does not constitute
substantial amendment because it does not change the prosecution’s theory that the petitioner failed
to file his income tax return.

Still, the petitioner cites the case of Matalam v. Sandiganbayan, Second Division31 in claiming that
the deletion of San Fernando (Pampanga City) and Dagupan City deprives him of the defenses he
raised in his counter-affidavit.

In Matalam, the prosecution charged the accused with violation of RA No. 3019 for "[c]ausing undue
injury to several [government employees] thru evident bad faith xxx by illegally and unjustifiably
refusing to pay [their] monetary claims xxx in the nature of unpaid salaries during the period when
they have been illegally terminated, including salary differentials and other benefits." After a
reinvestigation, the prosecution sought to amend the information to allege that the accused –

[c]ause[d] undue injury by illegally dismissing from the service [several government] employees, xxx
to their damage and prejudice amounting to ₱1,606,788.50 by way of unpaid salaries during the
period when they have been illegally terminated including salary differentials and other benefits.32

The accused moved to dismiss the amended information for charging an entirely new cause of
action and asked for preliminary investigation on this new charge of illegal dismissal.

The Sandiganbayan observed that (i) there is a clear change in the cause of action (from refusal to
pay to illegal dismissal); and (ii) 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 no longer be available under the amendment. After finding, however, that the
complainants’ demand for monetary claim actually arose from their alleged illegal dismissal, the
Sandiganbayan allowed the amendment because an "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."33

As to when the rights of an accused are prejudiced by an amendment made after he had pleaded to
the original information, Montenegroruled34 that prejudice exists when a defense under the original
information would no longer be available after the amendment is made, and when any evidence the
accused might have, would be inapplicable to the Information as amended.35 Applying this test, the
Court disallowed the amendment for being substantial in nature as the recital of facts constituting the
offense charged was altered.36

The inapplicability of Matalam to the present case is obvious. Here, the prosecution’s theory of the
case, i.e., that petitioner failed to file his income tax return for the taxable year 2001 did not change.
The prosecution’s cause for filing an information remained the same as the cause in the original and
in the amended information. For emphasis, the prosecution’s evidence during the preliminary
investigation of the case shows that petitioner did not file his income tax return in his place of legal
residence37 or principal place of business in Quezon City or with the Commissioner. In short, the
amendment sought did not alter the crime charged.

At first, a change in the location of branches alleged in the information may appear to deprive the
petitioner of his defense in the original information, i.e., the petitioner’s branches in Dagupan and
San Fernando were registered only in 2003 and were therefore "in existent" in 2001. However, this is
not the kind of defense contemplated under the Rules of Criminal Procedure, and broadly under the
due process of law.

Contrary to the petitioner’s claim, the opportunity given to the accused to present his defense
evidence during the preliminary investigation is not exhaustive. In the same manner that the
complainant’s evidence during preliminary investigation is only required to establish the minimal
evidentiary threshold of probable cause, the evidence that the respondent may present during trial is
not limited to what he had presented during the preliminary investigation, so long as the evidence for
both parties supports or negates the elements of the offense charged.

To be sure, the jurisprudential test on whether a defendant is prejudiced by the amendment of an

information pertains to the availability of the same defense and evidence that the accused previously
had under the original information. This test, however, must be read together with the characteristic
thread of formal amendments, which is to maintain the nature of the crime or the essence of the
offense charged.38

In the present case, this thread remained consistently under the amended information, alleging the
petitioner’s failure to file his return and consequently to pay the correct amount of taxes. Accordingly,
the petitioner could not have been surprised at all.

We also reject for lack of merit petitioner’s claim that the inclusion of the phrase "doing business
under the name and style of Mendez Medical Group" after his preliminary investigation and
arraignment deprives him of the right to question the existence of this "entity."

The petitioner however has not drawn our attention to any of his related operations that actually
possesses its own juridical personality. In the original information, petitioner is described as "sole
proprietor of Weigh Less Center." A sole proprietorship is a form of business organization conducted
for profit by a single individual, and requires the proprietor or owner thereof, like the petitioner-
accused, to secure licenses and permits, register the business name, and pay taxes to the national
government without acquiring juridical or legal personality of its own.39

In the amended information, the prosecution additionally alleged that petitioner is "doing business
under the name and style of ‘Weigh Less Center’/Mendez Medical Group.’" Given the nature of a
sole proprietorship, the addition of the phrase "doing business under the name and style" is merely
descriptive of the nature of the business organization established by the petitioner as a way to carry
out the practice of his profession. As a phrase descriptive of a sole proprietorship, the petitioner
cannot feign ignorance of the "entity" "Mendez Medical Group" because this entity is nothing more
than the shadow of its business owner - petitioner himself.

At any rate, we agree with the prosecution that petitioner has no reason to complain for the inclusion
of the phrase "Mendez Medical Group." In the Reply-Affidavit it submitted during the preliminary
investigation, the prosecution has attached copies of petitioner's paid advertisements making
express reference to "Mendez Medical Group."40

WHEREFORE, premises considered, we DISMISS the petition for lack of merit, with costs against
the petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice
WE CONCUR:

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,

vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:

In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks: (1) to
nullify the order 1 of respondent judge admitting the amended information for murder filed in Criminal
Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent
judge when petitioner refused to be arraigned on the amended information for lack of preliminary
investigation therefor; (3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent
petitioner; (4) to prohibit respondent judge from "over-speedy and preferential scheduling of the trial
of the aforementioned criminal case;" and (5) to compel respondent judge to order preliminary
investigation of the crime charged in the amended information.

Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated
murder allegedly committed as follows:

That on or about the 13th day of July 1991, in the Municipality of Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, while armed with a handgun, with intent to kill, treachery and
evident premeditation, did then and there willfully, unlawfully, and feloniously attack,
assault and shoot one Maureen Navarro Hultman on the head, thereby inflicting
gunshot wounds, which ordinarily would have caused the death of said Maureen
Navarro Hultman, thereby performing all the acts of execution which would have
produced the crime of Murder as a consequence, but nevertheless did not produce it
by reason of cause or causes independent of her will, that is, due to the timely and
able medical assistance rendered to said Maureen Navarro Hultman which
prevented her death.

After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a
demurrer to evidence. However, before the said motion could be filed, Maureen Navarro Hultman
died.

Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court to
file an amended information and to admit said amended information. The amended
information, 4 filed on October 31, 1991, reads:
 That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the said
Claudio Teehankee, Jr. y. Javier, armed with a handgun, with intent to kill and
evident premeditation and by means of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said handgun Maureen
Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which
directly caused the death of said Maureen Hultman.

Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution. On
November 13, 1991, the trial court issued the questioned order admitting the amended information.

At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the
amended information for lack of a preliminary investigation thereon. By reason of such refusal,
respondent judge ordered that a plea of "not guilty" be entered for petitioner.

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

Petitioner now raises the following issues before us:

(a) Whether or not an amended information involving a substantial amendment,

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

(b) Whether or not a counsel de oficio may legally and validly be appointed to
represent an accused who is represented by counsel of choice who refuses to
participate in the proceedings because of a perceived denial of due process and after
a plea for appellate remedies within a short period is denied by the trial court; and

(c) Whether or not a particular criminal case may legally and validly be rushed and
preferentially scheduled for trial over and at the expense and sacrifice of other,
specially older, criminal cases. 8

In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the basic petition. It appearing from a further
review of the record that the operative facts and determinant issues involved in this case are sufficiently presented in the petition and the
annexes thereto, both in regard to the respective positions of petitioner and respondents, the Court has decided to dispense with the
aforesaid comment to obviate needless delay in fairness to petitioner.

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

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

We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders
of the trial court.

Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:

Sec. 14. Amendment. — The information or complaint may be amended, in

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

If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in accordance with Rule 119,
Section 11, provided the accused would not be placed thereby in double jeopardy
and may also require the witnesses to give bail for their appearance at the trial.

The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made
before or after the defendant pleaded, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily
involves a substantial change from the original charge;

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

3. Where the amendment is only as to form, there is no need for another preliminary investigation
and the retaking of the plea of the accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the new information; and

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

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is
that where the second information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, and amendment of the information is
sufficient; otherwise, where the new information charges an offense which is distinct and different
from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a conviction for one offense
would be sufficient to warrant a conviction for the other, or when the second offense is exactly the
same as the first, or when the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the first information. In this
connection, an offense may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information, constitute the latter. And,
vice-versa, an offense may be said to be necessarily included in another when the essential
ingredients of the former constitute or form a part of those constituting the latter. 10

Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the
crime of murder, hence the former is necessarily included in the latter. It is indispensable that the
essential element of intent to kill, as well as qualifying circumstances such as treachery or evident
premeditation, be alleged in both an information for frustrated murder and for murder, thereby
meaning and proving that the same material allegations are essential to the sufficiency of the
informations filed for both. This is because, except for the death of the victim, the essential elements
of consummated murder likewise constitute the essential ingredients to convict herein petitioner for
the offense of frustrated murder.

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

Petitioner would insist, however, that the additional allegation on the fact of death of the victim
Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed
after a plea has been entered. The proposition is erroneous and untenable.

As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or
substance, may be made at any time before the accused enters a plea to the charge and, thereafter,
as to all matters of form with leave of court.

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

We repeat that after arraignment and during the trial, amendments are allowed, but only as to
matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test of
whether an amendment is only of form and an accused is not prejudiced by such amendment has
been said to be whether or not a defense under the information as it originally stood would be
equally available after the amendment is made, and whether or not any evidence the accused might
have would be equally applicable to the information in the one form as in the other; if the answer is in
the affirmative, the amendment is one of form and not of substance. 16

Now, an objective appraisal of the amended information for murder filed against herein petitioner will
readily show that the nature of the offense originally charged was not actually changed. Instead, an
additional allegation, that is, the supervening fact of the death of the victim was merely supplied to
aid the trial court in determining the proper penalty for the crime. That the accused committed a
felonious act with intent to kill the victim continues to be the prosecution's theory. There is no
question that whatever defense herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information for murder. Under the circumstances
thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment
as to form which is allowed even during the trial of the case.

It consequently follows that since only a formal amendment was involved and introduced in the
second information, a preliminary investigation is unnecessary and cannot be demanded by the
accused. The filing of the amended information without the requisite preliminary investigation does
not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and
to be protected from an open and public accusation of a crime, as well as from the trouble, expenses
and anxiety of a public trial. The amended information could not conceivably have come as a
surprise to petitioner for the simple and obvious reason that it charges essentially the same offense
as that charged under the original information. Furthermore, as we have heretofore held, if the crime
originally charged is related to the amended charge such that an inquiry into one would elicit
substantially the same facts that an inquiry into the other would reveal, a new preliminary
investigation is not necessary. 17

We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein
petitioner whose counsel of record refused to participate in the proceedings because of an alleged
legal issue. Such issue having been demonstrated herein as baseless, we apprehend his refusal to
participate in the trial as causative of or contributive to the delay in the disposition of the case. And,
finally, for as long as the substantial rights of herein petitioner and other persons charged in court
are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court.

WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously
attributed to him, the extraordinary writs prayed for are hereby DENIED and the instant petition is
DISMISSED for lack of merit.

SO ORDERED.

FIRST DIVISION
SUSAN FRONDA-BAGGAO, G.R. No. 151785
Petitioner,

Present:

PUNO, C.J., Chairperson,

*
YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,
- versus - CORONA, and

AZCUNA, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,

Respondent.
December 10, 2007

x --------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is the instant Petition for Review on Certiorari under Rule 45 of

the 1997 Rules of Civil Procedure, as amended, assailing the
Decision[1] dated August 29, 2001and Resolution dated January 15, 2002 of the
Court of Appeals in CA-G.R. SP No. 58270.
The facts are:

Sometime in 1989, the Provincial Prosecutor of Abra filed with the Regional Trial
Court, Branch 1, Bangued, same province, four separate Informations for illegal
recruitment against Susan Fronda-Baggao, petitioner, and Lawrence Lee,
docketed as Criminal Cases Nos. 744, 745, 746 and 749.

Petitioner eluded arrest for more than a decade; hence, the cases against her
were archived. On July 25, 1999, petitioner was finally arrested.[2]
On July 26, 1999, the prosecutor filed with the trial court a motion to
amend the Informations. He prayed that the four separate Informations for illegal
recruitment be amended so that there would only be one Information for illegal
recruitment in large scale. On the same day, the trial court denied the motion for
lack of merit.

On August 6, 1999, the prosecutor filed a motion for reconsideration. In its Order
dated January 26, 2000, the trial court granted the motion and admitted the
Information for Illegal Recruitment in Large Scale, thus:

Accordingly, the Order dated July 26, 1999 denying the motion to
amend Information is hereby set aside and the Information for Illegal
Recruitment in Large Scale is hereby admitted in substitution of the
other four Informations.

Moreover, considering that illegal recruitment when committed

by a syndicate or in a large scale shall be considered an offense
 involving economic sabotage, let this case be forwarded to RTC, Branch
2, a Special Criminal Court.

SO ORDERED.

Petitioner filed a motion for reconsideration, but it was denied by the trial court
in its Order dated March 21, 2000.

On April 11, 2000, petitioner filed with the Court of Appeals a petition
for certiorari and prohibition with prayer for the issuance of a preliminary
injunction and/or temporary restraining order, docketed as CA-G.R. SP No. 58270.

In its Decision dated August 29, 2001, the Court of Appeals denied the
petition. Likewise, in its Resolution dated January 15, 2002, petitioners motion for
reconsideration was denied.

Hence, the present petition.

The issue for our resolution is whether the four Informations for illegal
recruitment could be amended and lumped into one Information for illegal
recruitment in large scale.

Petitioner contends that (a) Section 14, Rule 110 of the Revised Rules on
Criminal Procedure refers to an amendment of one Information only, not four,
which cannot be joined in only one Information; and that (b) the amendment of
the four Informations for illegal recruitment into a single Information for a graver
offense violates her substantial rights.

Respondent, on the other hand, prays that the petition be denied for lack
of merit.

Section 14, Rule 110 of the Revised Rules on Criminal Procedure provides:

Section 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 reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been

made in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the
proper offense in accordance with section 19, Rule 119, provided the
accused would not be placed in double jeopardy. The court may require
the witnesses to give bail for their appearance at the trial. (Emphasis
ours)
 Simply stated, 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 only if it does not prejudice the rights of the accused. After
arraignment, a substantial amendment is proscribed except if the same is
beneficial to the accused.[3]

Following the above provisions and considering that petitioner has not yet
entered her plea, the four Informations could still be amended.

Petitioner also contends that the above Rule refers to an amendment of

one Information only, not four or multiple Informations which cannot be joined
into only one Information.

We disagree.

A careful scrutiny of the above Rule shows that although it uses the singular
word complaint or information, it does not mean that two or more complaints or
Informations cannot be amended into only one Information. Surely, such could
not have been intended by this Court. Otherwise, there can be an absurd
situation whereby two or more complaints or Informations could no longer be
amended into one or more Informations. On this point, Section 6, Rule 1 of the
Revised Rules of Court is relevant, thus:

SEC. 6. Construction. - These Rules shall be liberally construed in

order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
 In fact, in Galvez v. Court of Appeals,[4] before the accused were arraigned,
this Court allowed the amendment of three original Informations for homicide
and frustrated homicide into four Informations for murder, frustrated murder and
illegal possession of firearms.

Petitioner contends that the amendment of the four Informations for illegal
recruitment into a single Information for illegal recruitment in large scale violates
her substantial rights as this would deprive her of the right to bail which she
already availed of. Such contention is misplaced. Obviously, petitioner relies on
Section 14 of the same Rule 110 which provides that 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. As stated earlier,
petitioner has not yet been arraigned. Hence, she cannot invoke the said
provision.

WHEREFORE, we DENY the petition. The challenged Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 58270 are AFFIRMED. Costs
against petitioner.

SO ORDERED.