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[Syllabus]

EN BANC [G.R. No. 113930. March 5, 1996] PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as Members of the Department of Judge 349 Committee, and the CITY PROSECUTOR OF QUEZON CITY, respondents. ROBERTO DELGADO, petitioner-intervenor. DECISION DAVIDE, JR., J.: We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226, [1] which dismissed the petition therein on the ground that it has been mooted with the release by the Department of Justice of its decision x x x dismissing petitioners petition for review; (b) the resolution of the said court of 9 February 1994 [2] denying the petitioners motion to reconsider the decision; (c) the order of 17 May 1993 [3] of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying petitioners motion to suspend proceedings and to hold in abeyance the issuance of the warrants of arrest and the public prosecutors motion to defer arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 [4] of the Department of Justice, (DOJ) dismissing petitioners petition for the review of the Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively.
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The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition: I Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the petitioners without examining the record of the preliminary investigation and in determining for himself on the basis thereof the existence of probable cause. II

The Department of Justice 349 Committee acted with grave abuse of discretion when it refused to review the City Prosecutors Joint Resolution and dismissed petitioners appeal therefrom. III The Court of Appeals acted with grave abuse of discretion when it upheld the subject order directing the issuance of the warrants of arrest without assessing for itself whether based on such records there is probable cause against petitioners. IV The facts on record do not establish prima facie probable cause and Criminal Case No. Q-93-43198 should have been dismissed. [5]
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The antecedents of this petition are not disputed. Several thousand holders [6] of 349 Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.s (PEPSIs) Number Fever Promotion [7] filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, ViceChairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913; [8] and (d) violation of Act No. 2333, entitled An Act Relative to Untrue, Deceptive and Misleading Advertisements, as amended by Act No. 3740. [9]
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After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a Joint Resolution [10] where he recommended the filing of an information against the petitioners and others for the violation of Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as follows:
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In view of all the foregoing, it is recommended that: 1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code, while the complaint for violation of Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex 0. Caballes, Sandy

Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed; 2. The complaints against all respondents for violation of R.A. 7394 otherwise known as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740 and E 0. 913 be also dismissed for insufficiency of evidence, and 3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further investigated to afford respondents a chance to submit their counter-evidence. [11]
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On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of insufficiency of evidence. [12]
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The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-43198. [13] The information reads as follows:
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The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA, committed as follows: That in the month of February, 1992, in Quezon City, Philippines and for sometime prior and subsequent thereto, the above-named accused Paul G. Roberts, Jr. Rodolfo G. Salazar Luis F. Lorenzo, Sr. Directors Luis P. Lorenzo, Jr. ) ) ) being then the Presidents and Executive Officers being then the Chairman of the Board of being then the Vice Chairman of the Board being then Members of the Board

J. Roberto Delgado ) Amaury R. Gutierrez ) Bayani N. Fabic ) Jose Yulo, Jr. ) Esteban B. Pacannuayan, Jr. and Wong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed prior to or simultaneously with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the private complainants whose names with their prizes claimed appear in the attached lists marked as Annexes A to A-46; B to -33; C to C-281; D to D-238; E to E-3O and F to F-244 in the following manner: on the date and in the place aforementioned, said accused pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc. Number Fever Promotion from February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and advertised in the media that all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit number will win the full amount of the prize printed on the crowns/caps which are marked with a seven-digit security code as a measure against tampering or faking of crowns and each and every number has its own unique matching security code, enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements to become millionaires, and by virtue of such representations made by the accused, the said complainants bought Pepsi softdrinks, but, the said accused after their TV announcement on May 25, 1992 that the winning number for the next day was 349, in violation of their aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the complainants, who, among others, were able to buy Pepsi softdrinks with crowns/caps bearing number 349 with security codes L2560-FQ and L-3560-FQ, despite repeated demands made by the complainants, to their damage and prejudice to the extent of the amount of the prizes respectively due them from their winning 349 crowns/caps, together with such other amounts they spent ingoing to and from the Office of Pepsi to claim their prizes and such other amounts used in buying Pepsi softdrinks which the complainants normally would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola Products, Inc. CONTRARY TO LAW. On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of the Joint Resolution [14] alleging therein that (a) there was neither fraud in the Number Fever Promotion nor deviation from or modification of the promotional rules approved by the Department of Trade and industry (DTI), for from the start of the promotion, it had always been clearly explained to the public that for one to be entitled to the cash prize his crown must bear both the winning number and the correct security code as they appear in the DTI list; (b) the complainants failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or ommissions purportedly committed by each of the petitioners; (c) the compromise agreement entered into by PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was carried out with utmost good faith and without malicious intent.
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On 15 April 1993, the petitioners filed with the DOJ a Petition for Review [15] wherein, for the same grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and the complaints dismissed. They further stated that the approval of the Joint Resolution by the City prosecutor was not the result
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of a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the grave threats, intimidation, and actual violence which the complainants had inflicted on him and his assistant prosecutors. On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review. [16]
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On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. De Guia issued a 1st Indorsement, [17] directing the City Prosecutor of Quezon City to inform the DOJ whether the petitioners have already been arraigned, and if not, to move in court for the deferment of further proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is being treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990.
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On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the RTC of Quezon City. [18]
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In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for Issuance of Warrants of Arrest. [19]
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In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. [20] He stressed that the DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential part of the petitioners right to a preliminary investigation.
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The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued an order advising the parties that his court would be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for review undertaken by the accused. [21]
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On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer Arraignment wherein he also prayed that further proceedings be held in abeyance pending final disposition by the Department of Justice. [22]
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On 4 May 1993, Gavero filed an Amended Information, [23] accompanied by a corresponding motion [24] to admit it. The amendments merely consist in the statement that the complainants therein were only among others who were defrauded by the accused and that the damage or prejudice caused amounted to several billions of pesos, representing the amounts due them from their winning 349 crowns/caps. The trial court admitted the amended information on the same date. [25]
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Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer Arraignment, [26] and Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest. [27]
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On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest.
[28]

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On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners Motion to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to Defer Arraignment and (2) directing the issuance of the warrants of arrest after 21 June 1993 and setting the arraignment on 28 June 1993. [29] Pertinent portions of the order read as follows:
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In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a petition for review seeking the reversal of the resolution of the City Prosecutor of Quezon City approving the filing of the case against the accused, claiming that: 1. 2. 3. The resolution constituting [sic] force and duress; There was no fraud or deceit therefore there can be no estafa; No criminal overt acts by respondents were proved;

4. Pepsi nor the accused herein made no admission of guilt before the Department of Trade and Industry; 5. The evidence presented clearly showed no malicious intent on the part of the accused. Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for review with the Department of Justice filed by the accused and the Office of the City Prosecutor was directed, among other things, to cause for the deferment of further proceedings pending final disposition of said petition by the Department of Justice. The motions filed by the accused and the Trial Prosecutor are hereby DENIED. This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as follows:

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set on June 28, 1993, at 9:30 in the morning. On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and prohibition with application for a temporary restraining order, [30] which was docketed as CA-G.R. SP No. 31226. They contended therein that respondent Judge Asuncion had acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993 because
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I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS. II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE. III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE SECRETARY OF JUSTICES RESOLUTION OF PETITIONERS APPEAL, AND IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW. On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status quo. [31] In view thereof, respondent Judge Asuncion issued an order on 28 June 1993 [32] postponing indefinitely the arraignment of the petitioners which was earlier scheduled on that date.
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On 28 June 1993, the Court of Appeals heard the petitioners application for a writ of preliminary injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal Case No. Q-93-43198 [33]
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Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993, which fact belied the petitioners claim that the respondent Judge had not the slightest basis at all for determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause

indeed exists for the purpose of issuing the corresponding warrants of arrest; and that the mere silence of the records or the absence of any express declaration in the questioned order as to the basis of such finding does not give rise to an adverse inference, for the respondent Judge enjoys in his favor the presumption of regularity in the performance of his official duty. The Court of Appeals then issued a resolution [34] denying the application for a writ of preliminary injunction.
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On 8 June 1993, the petitioners filed a motion to reconsider [35] the aforesaid resolution. The Court of Appeals required the respondents therein to comment on the said motion.
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[36]

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a Manifestation [37] informing the court that the petitioners petition for review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copy [38] of the resolution was attached to the Manifestation.
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On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss the petition [39] on the ground that it has become moot and academic in view of the dismissal by the DOJ of the petitioners petition to review the Joint Resolution. The dismissal by the DOJ is founded on the following exposition:
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You questioned the said order of the RTC before the Court of Appeals and prayed for the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing any warrant of arrest and from proceeding with the arraignment of the accused. The appellate court in a resolution dated July 1, 1993, denied your petition. In view of the said developments, it would be an exercise in futility to continue reviewing the instant cases for any further action on the part of the Department would depend on the sound discretion of the Trial Court. The denial by the said court of the motion to defer arraignment filed at our instance was clearly an exercise of its discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in effect sending a signal to this Department that the determination of the case is within its exclusive jurisdiction and competence. The rule is that x x x once a complaint or information is filed in Court, any disposition of the case as to dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. x x x (Crespo vs. Mogul, 151 SCRA 462). [40]
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On 28 September 1993, the Court of Appeals promulgated a decision [41] dismissing the petition because it had been mooted with the release by the Department of Justice of its decision x x x dismissing petitioners petition for review by inerrantly upholding the criminal courts exclusive and unsupplantable authority to control the entire course of the case brought against petitioners, reiterating with approval the dictum laid down in the Crespo case.
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The petitioners filed a motion to reconsider the DOJs dismissal of the petition citing therein its resolutions in other similar cases which were favorable to the petitioners and adverse to other 349 Pepsi crowns holders. In its resolution of 3 February 1994, the DOJ, through its 349 Committee, denied the motion and stated: The instant petition is different from the other petitions resolved by this Department in similar cases from the provinces. In the latter petitions, the complaints against herein respondents [sic] [42] were dismissed inasmuch as the informations have not yet been filed or even if already filed in court, the proceedings have been suspended by the courts to await the outcome of the appeal with this Department. [43]
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The petitioners likewise filed a motion to reconsider [44] the aforesaid Court of Appeals decision, which the said court denied in its resolution [45] of 9 February 1994. Hence, the instant petition.
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The First Division of this Court denied due course to this petition in its resolution of 19 September 1994. [46]
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On 7 October 1994, the petitioners filed a motion for the reconsideration [47] of the aforesaid resolution. Acting thereon, the First Division required the respondents to comment thereon.
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Later, the petitioners filed a supplemental motion for reconsideration [48] and a motion to refer this case to the Court en banc. [49] In its resolution of 14 November 1994, [50] the First Division granted the latter motion and required the respondents to comment on the supplemental motion for reconsideration
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In the resolution of 24 November 1994, the Court en banc accepted the referral. On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered the case submitted for decision, since the parties have exhaustively discussed the issues in their pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in effect, that this Court resolve the issue of probable cause On the basis thereof. The pleadings of the parties suggest for this Courts resolution the following key issues: 1. Whether public respondent Judge Asuncion committed grave abuse of discretion in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to defer arraignment until after the petition for review filed with the DOJ shall have been resolved.

2. Whether public respondent Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of arrest without examining the records of the preliminary investigation. 3. Whether the DOJ, through its 349 Committee, gravely abused its discretion in dismissing the petition for review on the following bases: (a) the resolution of public respondent Court of Appeals denying the application for a writ of preliminary injunction and (b) of public respondent Asuncions denial of the abovementioned motions. 4. Whether public respondent Court of Appeals committed grave abuse of discretion (a) in denying the motion for a writ of preliminary injunction solely on the ground that public respondent Asuncion had already before him the Joint Resolution of the investigating prosecutor when he ordered the issuance of the warrants of arrest, and (b) in ultimately dismissing the petition on the ground of mootness since the DOJ has dismissed the petition for review. 5. Whether this Court may determine in this proceedings the existence of probable cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa. We resolve the first four issues in the affirmative and the fifth, in the negative. I. There is nothing in Crespo vs. Mogul [51] which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. More specifically, it stated:
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In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. [52]
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In Marcelo vs. Court of Appeals,

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[53]

this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court.

Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court [54] which recognizes the authority of the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party.
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Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may be appealed to the Secretary of Justice. Its Section 4, [55] however, provided an exception, thus allowing, upon a showing of manifest error or grave abuse of discretion, appeals from resolutions finding probable cause, provided that the accused has not been arraigned.
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The DOJ gave due course to the petitioners petition for review as an exception pursuant to Section 4 of Circular No. 7. Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 [56] which superseded Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable cases and Section 4 on the non-appealable cases and the exceptions thereto.
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There is nothing in Department Order No. 223 which would warrant a recall of the previous action of the DOJ giving due course to the petitioners petition for review. But whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds: This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if

this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. [57]
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However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals: [58]
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Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its supposed insufficiency. As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul. II. Section 2, Article III of the present Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; [59] in cases covered by the rule on summary procedure where the accused fails to appear when required; [60] and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs); [61] and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. [62]
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As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

As to the second, this Court held in Soliven vs. Makasiar [63] that the judge is not required to personally examine the complainant and the witnesses, but
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[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. [64]
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Sound policy supports this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows: 4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either: (a) Rely upon the fiscals certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. x x x This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained in People vs. Inting, [65] where this Court specified what the documents may consist of, viz., the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination of probable cause. Thus:
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We emphasize the important features of the constitutional mandate that x x x no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge x x x (Article III, Section 2, Constitution). First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutors certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic

notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination. In adverting to a statement in People vs. Delgado [66] that the judge may rely on the resolution of the Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest, this Court stressed in Lim vs. Felix [67] that
lxvi lxvii

Reliance on the COMELEC resolution or the Prosecutors certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule in greater detail and hopefully clearer terms. It then proceeded to do so, thus: We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscals bare certification. All of these should be before the Judge. The extent of the Judges personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judges examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutors certification and investigation report whenever, necessary. He should call for the complainant and witnesses themselves to answer the courts probing questions when the circumstances of the case so require. This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutors certification in the informations that there existed probable cause without having before him any other basis for his personal determination of the existence of a probable cause. In Allado vs. Diokno, [68] this Court also ruled that before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof.
lxviii

In the recent case of Webb vs. De Leon, [69] this Court rejected the thesis of the petitioners of absence probable cause and sustained the investigating panels and the respondent Judges findings of probable cause. After quoting extensively from Soliven vs. Makasiar, [70] this Court explicitly pointed out:
lxix lxx

Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted searching examination of witnesses before issuing warrants of arrest against them. They also reject petitioners contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the Probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. (italics supplied) The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating prosecutors certification in an information or his resolution which is made the basis for the filing of the information, or both, would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records of the case. Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certification [71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the information, amended information, and
lxxi

Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutors finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest after June 21, 1993. It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic. III. As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the petitioners petition for review pursuant to the exception provided for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to forward to the Department the records of the cases and to file in court a motion for the deferment of the proceedings. At the time it issued the indorsement, the DOJ already knew that the information had been filed in court, for which reason it directed the City Prosecutor to inform the Department whether the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review of the records of the investigation is addressed to the trial court, which has the option to grant or to deny it. Also, it must have been still fresh in its mind that a few months back it had dismissed for lack of probable cause other similar complaints of holders of 349 Pepsi crowns. [72] Thus, its decision to give due course to the petition must have been prompted by nothing less than an honest conviction that a review of the Joint Resolution was necessary in the highest interest of justice in the light of the special circumstances of the case. That decision was permissible within the as far as practicable criterion in Crespo.
lxxii

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an exercise in futility in that any further action on the part of the Department would depend on the sound discretion of the trial court, and that the latters denial of the motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case is within the courts exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo. IV. If the only issue before the Court of Appeals were the denial of the petitioners Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the

public prosecutors Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review might have been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJs dismissal of the petition for review did not render moot and academic the latter issue. In denying in its resolution of 1 July 1993 the petitioners application for a writ of preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals ,justified its action in this wise: The Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. The mere silence of the records or the absence of any express declaration in the questioned Order of May 17, 1993 as to where the respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The fact remains that the Joint Resolution was at respondent Judges disposal at the time he issued the Order for the issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in the performance of official actuations. And this presumption prevails until it is overcome by clear and convincing evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of doubt as to an officers act being lawful or unlawful it should be construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil. 338). We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants of arrest only after June 21, 1993. If he did read the Joint Resolution and, in so reading, found probable cause, there was absolutely no reason at all to delay for more than one month the issuance of warrants of arrest. The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for review. It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever doubts may have lingered on the issue of probable cause was dissolved when no less than the Court of Appeals sustained the finding of probable cause made by the respondent Judge after an evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the

Court of Appeals does not at all state that it either sustained respondent Judge Asuncions finding of probable cause, or found by itself probable cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint Resolution and found probable cause from a reading thereof. Then too, that statement in the dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for determining probable cause. As stated above, it is not. V. In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting, [73] this Court aptly stated:
lxxiii

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

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

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CAG.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J., [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438). 7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In these exceptional cases, this Court may ultimately resolve the existence or nonexistence of probable cause by examining the records of the preliminary investigation, as it did in Salonga vs. Pao, [75] Allado, and Webb.
lxxv

There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of 349 Pepsi crowns, any affirmative holding of probable cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and

for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions - a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction. [76]
lxxvi

We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latters 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty. WHEREFORE, the instant petition is granted and the following are hereby SET ASIDE: (a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court of Appeals in CA-G.R. SP No. 31226; (b) The Resolution of the 349 Committee of the Department of Justice of 23 July 1993 dismissing the petitioners petition for review and of 3 February 1994 denying the motion to reconsider the dismissal; and (c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal Case No. Q-93-43198. The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice of this decision, the petitioners petition for the review of the Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon. In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioners. No pronouncement as to costs. SO ORDERED. Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.

Narvasa, C.J. (Chairman), see separate concurring opinion. Regalado, J., joins the dissent of J. Puno, pro hac vice. Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno. Puno, J., dissents. Vitug, J., concurs in the opinions of the ponente and the Chief Justice. Kapunan, J., in the result. Francisco, J., No part. Ponente of the assailed decision. Panganiban, J, No Part. Daughter is a management officer of Pepsi Cola, Head Office, NY, USA.

i[1] Annex A of Petition; Rollo, 64-68. Per Justice, now Associate Justice of this Court, Francisco, R., with TayaoJaguros, L. and Verzola, E., JJ., concurring.

ii[2] Annex B of Petition; Rollo, 69-72. iii[3] Annex C, Id.; Id., 3-74. iv[4] Annexes D and E, Id.; Id., 75-78. v[5] Rollo, 19. vi[6] Those represented alone by Atty. Bonifacio Manansala are enumerated, single space, in 91 pages of legal size bond
paper, with an average of 55 names, more or less, per page (Id., Vol.2, 913-1003) and in his Memorandum-Explanation dated 16 February 1995, he discloses that he is presently representing more than 7,000 claimants (Id., Vol. 1, 648). Atty. Jose Espinas revealed in his Comment that he represents 700 INDIVIDUAL COMPLAINANTS, MORE OR LESS (Id., Vol. 1,567). Atty. Julio Contreras claims in his Compliance of 10 September 1995 to represent 4,406 (Id., Vol.2, unpaginated).

vii[7] Originally held from 17 February to 8 May 1992, but later extended from 11 May to 12 June 1992. viii[8] Entitled, Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in order to
further Protect Consumers.

ix[9] Entitled, An Act to Penalize Fraudulent Advertising, Mislabeling or Misbranding of Any Product, Stocks, Bonds,
Etc..

x[10] Rollo, Vol. 1, 152-168; 191-212. xi[11] id., 209-210. xii[12] Rollo, Vol. 1, 210. xiii[13] Records (OR), Criminal Case No. Q-93-43198, Vol. 1 (hereinafter referred to as OR-RTC, Vol. 1), 1-3. xiv[14] OR-RTC, Vol. 1, 4-24. xv[15] OR-RTC, Vol. 1, 28-49. xvi[16] Id. 25-27, 67-68. xvii[17] OR-RTC, Vol. 1, 291. xviii[18] See stamped entry on top of page 1 of the Information; Id., 1. xix[19] Id., 299. xx[20] Id., 232-240. xxi[21] OR-RTC Vol. 1, 288.

xxii[22] Id., 289-290. xxiii[23] Id., Vol. 2, 1-3. xxiv[24] Id., 4. xxv[25] Id., 5. xxvi[26] Id., 6-11. xxvii[27] Id., 12-17, 48-54. xxviii[28] OR-RTC, Vol. 1, 55-64. xxix[29] Id., Vol. 2, 65-66. xxx[30] Rollo, CA-G.R. SP No. 31226 (hereinafter referred to as Rollo-CA), 1-39; see also OR-RTC, Vol. 2, 79-116. xxxi[31] Id., 157; Id., 229. xxxii[32] OR-RTC, Vol. 2, 233. xxxiii[33] Rollo-CA, 193-194. xxxiv[34] Id., 196-201. xxxv[35] Rollo-CA, 288. xxxvi[36] Id., 296. xxxvii[37] Id., 334-335. xxxviii[38] Id., 336-337. xxxix[39] Id., 488-493. xl[40] Rollo-CA, 336-337; 490-491. xli[41] Per Justice, now Associate Justice of this Court, Francisco, R., with Tayao-Jaguros, L. and Verzola, E., JJ.,
concurring.

xlii[42] Should be petitioners. xliii[43] Rollo, Vol. 1, 77-78. xliv[44] Rollo-CA, 500-507. xlv[45] Id., 575-577.

xlvi[46] Rollo, Vol. 1, 425-431. xlvii[47] Id., 456-484. xlviii[48] Id., 533-539. xlix[49] Id., 526-530. l[50] Id., 555. li[51] 151 SCRA 462 [1987]. lii[52] Supra note 51, at 471-472. liii[53] 235 SCRA 39 [1994]. liv[54] The said paragraph reads as follows:
If upon petition by a proper party, the Minister of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or information. (italics supplied)

lv[55] The said section reads:


SEC. 4. Non-appealable cases; Exceptions. -No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.

lvi[56] Revised Rules on Appeals from Resolutions in Preliminary Investigations/Reinvestigations. lvii[57] Supra note 51, at 471 lviii[58] 237 SCRA 575, 585-586 [1994]. See also Dee vs. Court of Appeals, 238 SCRA 254 [1994]. lix[59] Third paragraph, Section 87, The Judiciary Act of 1948 (R.A. No. 269), as amended by R.A. Nos. 2613 and 3828,
which provides: No warrant of arrest shall be issued by any municipal judge in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers.

lx[60] Second paragraph, Section 10, 1983 Rule on Summary Procedure, which provides:
Failure on the part of the defendant to appear wherever required shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses.

Section 16, 1991 Revised Rule on Summary Procedure, which provides: The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court.

lxi[61] Section 6(b), Rule 112, Rules of Court, which reads:


If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. Section 37, The Judiciary Reorganization Act of 1980 (B.P. Blg. 129), which reads in part as follows: No warrant of arrest shall be issued by the Judge in connection with any criminal complaint filed with him for preliminary investigation, unless after an examination in writing and under oath or affirmation of the complainant and his witnesses he finds that probable cause exists.

lxii[62] 62 Section 6(a), Rule 112, Rules of Court, which reads:


Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. - Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.

lxiii[63] 167 SCRA 393 [1988]. lxiv[64] Id., 398. lxv[65] 187 SCRA 788, 792 [1990]. lxvi[66] 189 SCRA 715 [1990]. lxvii[67] 194 SCRA 292, 305 [1991]. lxviii[68] 232 SCRA 192,201 [1994]. lxix[69] G.R. No. 121234 and companion cases, 23 August 1995. lxx[70] Supra, note 63. lxxi[71] OR-RTC, Vol. 2, 68 lxxii[72] See for instance the resolutions of 12 January 1993 in the case filed by Merelita Napuran in the Office of the
Provincial Prosecutor of Palo, Leyte (Rollo, Vol. 1, 223); and 14 January 1993 in cases filed with the office of the City Prosecutor of Lucena City (Id., 227). It did likewise on 8 November 1993 in cases filed before the Provincial Prosecutor of Pangasinan (Id., 236); and 10 November 1993 in cases filed with the City Prosecutor of Ozamiz City (Id., 245).

lxxiii[73] Supra note 65. lxxiv[74] 192 SCRA 183, 188-189 [1990].

lxxv[75] 134 SCRA 438 [1985]. lxxvi[76] Dimayuga vs. Fernandez, 43 Phil. 304 [1922], and Fortun vs. Labang, 104 SCRA 607 [1981], cited in Brocka vs.
Enrile, supra note 75.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-42665 June 30, 1988 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG, defendants-appellants.

CORTES, J.: Defendants appeal from the judgment of the Court of First Instance of Bulacan convicting them of the complex crime of forcible abduction with rape. The appeal was elevated by the Court of Appeals to this Tribunal in view of the penalty of life imprisonment imposed by the trial court.chanroblesvirtualawlibrary chanrobles virtual law library Juanita Angeles is the complainant in this complex crime of forcible abduction with rape. At the time the alleged crime was committed she was 43 years of age, single, a registered pharmacist by profession and a rice merchant doing business in Hagonoy, Bulacan.chanroblesvirtualawlibrary chanrobles virtual law library In her complaint she pointed to the three accused-appellants together with one Benjamin Gabriel as the perpetrators of the crime. On March 4, 1965 an information was filed by the Provincial Fiscal accusing the four men of the complex crime of forcible abduction with rape committed as follows: That on or about the 23rd day of October, 1964, in the municipality of Guiguinto province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Silvestre Sunpongco, Benjamin Gabriel, Herminigildo Sunpongco and Arsenio Calayag, conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, by means of violence, force, intimidation and trickery and with lewd designs, abduct the complaining witness Juanita F. Angeles, single, by then and there taking and carrying her out of a jeep while she was in Guiguinto and then forcibly loaded in an automobile and thereafter brought to the Hill Top Hotel in Tagaytay City against her will, and once there by means of violence, threats and intimidation, the said accused Silvestre Sunpongco have carnal knowledge of the said Juanita F. Angeles against her will.chanroblesvirtualawlibrary chanrobles virtual law library That in the commission of this crime the following aggravating circumstances were present, to wit: conspiracy, use of motor vehicle and superior strength. [Records, pp. 61-621. On June 9, 1965, the accused were arraigned and without the assistance of counsel, they all pleaded not guilty.chanroblesvirtualawlibrary chanrobles virtual law library Subsequently, on joint motion of the fiscal and the private prosecutors and over the objection of the defense, accused Benjamin Gabriel was discharged by the court to become a state witness.chanroblesvirtualawlibrary chanrobles virtual law library

The prosecution's version of what transpired on the date when said crime was committed is summarized by the trial court, to wit: ... that on October 23, 1964, at around 9:00 o'clock in the morning, Juanita Angeles, the offended party, left her residence at Hagonoy, Bulacan to get rice from the RCA warehouse of Dr. Lansan at Guiguinto Bulacan. She was with one Benita Fabian and they rode a passenger jeep driven by Virgilio Gan. As they reached the south approach of Tabang Bridge, Guiguinto Bulacan, a car overtook them and stopped right in front of their jeep, thus forcing them to stop. The car was being driven by accused Arsenio Calayag, and the passengers were the accused Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel. Thereafter, the three passengers just mentioned . ..., alighted from the car and boarded the jeep, after which Silvestre Sunpongco co ordered its driver to proceed to the old road. Silvestre Sunpongco sat at the back of Juanita Angeles, Benjamin Gabriel sat behind the driver, and Herminigildo Sunpongco forced himself at the left side of the driver, while Arsenio Calayag followed in the Car he was driving.chanroblesvirtualawlibrary chanrobles virtual law library Upon reaching an uninhabited place on the old road, Silvestre Sunpongco ordered the jeep to stop and the three accused got out. Silvestre tried to pull the offended party out of the jeep, but she struggled and fought back so he ordered Benjamin Gabriel to help him. Benita Fabian, meanwhile, embraced Juanita on the waist and pleaded with the three accused to leave Juanita alone, but Herminigildo Sunpongco separated them by force. Despite her struggling and resisting, the accused were able to pull the offended party out of the jeep, and although Juanita embraced Benita Fabian and asked the latter not to leave her, Silvestre kept on pulling her as Benjamin Gabriel continued pushing her until they were finally able to force her into the car with the aid of a drawn gun. Then Benita Fabian, who was able to free herself from Herminigildo Sunpongco, ran towards the car but Silvestre closed its doors at once. Then Herminigildo pushed Benita and she fell to the ground, after which the former got into the car and it sped away.chanroblesvirtualawlibrary chanrobles virtual law library They proceeded towards Manila, then to the Hilltop Hotel in Tagaytay City, which is owned by Federico Suntay, a first cousin of accused Silvestre Sunpongco. Upon reaching the hotel, Benjamin Gabriel, Herrninigildo Sunpongco and Arsenio Calayag alighted and went inside, while Silvestre and Juanita were left in the car. Then Silvestre tried to pull her out of the car but she resisted, so he drew out his gun again and told her that while he did not like to do it, that was the only way to bring her out. Finally, Silvestre was able to pull her out of the car. He brought her inside the hotel, with one of his arms around her shoulders and the other arm poking the gun at her side, pushed her into a room and locked the door.chanroblesvirtualawlibrary chanrobles virtual law library Once inside the room, Silvestre Sunpongco pushed Juanita Angeles and she fell on a chair. Then he embraced and kissed her, and continued taking liberties, as she cried and fought back. Afterwards he removed his pants, pushed her and forced her to lie down on the bed. Although she kicked and rolled on the bed, Silvestre was able to overcome her when he hit her on the stomach, as a result of which she lost consciousness. It was then that Silvestre Sunpongco succeeded in having his first sexual intercourse with her. After that, he went out and locked the room. Due to hunger and physical exhaustion, she must have dozed off, and when she woke up, Silvestre Sunpongco was on top of her again. She struggled and tried to resist him, but to no avail. Silvestre Sunpongco consummated the second sexual intercourse.chanroblesvirtualawlibrary chanrobles virtual law library Then somebody called for Silvestre and he left the room. Suddenly, she heard the voice of her brother calling her name, so she rushed out to him. Dr. Jose Angeles was there with some CIS agents. She was physically examined the next day by Dr. Ramon Pascual, captain in the Medical Corps of the Philippine Constabulary, who submitted his medicolegal report marked Exhibit "A" containing his findings as follows: lacerations in the complainant's vagina at 9 and 11 o'clock positions, which must be due to the insertion of a penis; vaginal smears are positive for spermatozoa; contusions at the posterior cervical and anterolateral aspect middle third of the right hip, all of which are compatible with recent sexual contact.chanroblesvirtualawlibrary chanrobles virtual law library Benita Fabian corroborated the testimony of Juanita Angeles up to when she was left behind at Tabang, after the car carrying all the accused and the offended party sped towards Tagaytay City. [Records, pp. 523527].chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx

During the time material to this case Silvestre Sunpongco was 34 years old, a widower with six children, and a La Mallorca bus driver whose highest educational attainment is only grade four. The other accused-appellant Arsenio Calayag was then 36 years of age, married and the regular driver of the car borrowed by Silvestre Sunpongco and used by them. Herminigildo Sunpongco, the third accused-appellant, was then 27 years old, married and is a nephew of Silvestre Sunpongco.chanroblesvirtualawlibrary chanrobles virtual law library During the trial of the criminal case, specifically, after the defense had started presenting its evidence but before Silvestre Sunpongco took the witness stand, said accused jumped bail and it was not until six years thereafter that he was arrested and the trial resumed.chanroblesvirtualawlibrary chanrobles virtual law library The principal accused-appellant Silvestre Sunpongco adduced in evidence his own version of the case before the trial court as follows: He started courting the complainant a few weeks after the death of his first wife, and the complainant accepted and they agreed to get married. On October 23, 1964 he went to Malolos, on previous agreement with her, for the express purpose of eloping with her. That morning, he rode the car of his sister driven by Arsenio Calayag. On the way, he gave a lift to Herminigildo Sunpongco and Benjamin Gabriel. Upon arriving at Malolos, Juanita Angeles was not there, but they saw her in a jeep going to Guiguinto So, they followed. At Tabang, he alighted from the car and complainant alighted from the jeep and they talked. Accused Silvestre told her: "If you really love me, You will come with me and we will get married." They agreed to go to Manila to get married, but they later changed their minds and instead proceeded to Cavite. On the way they stopped at the Aristocrat Restaurant to eat, stayed there for more than an hour, then proceeded to Hilltop Hotel at Tagaytay. Later that evening, while in the hotel, Pepito Mangahas, Dr. Jose Angeles and some CIS agents arrived. Pepito asked Silvestre why they were there, and said accused replied that he and complainant had eloped. Then he gave to Pepito the letters which complainant wrote to him. Thereafter, he was brought to Camp Crame.chanroblesvirtualawlibrary chanrobles virtual law library He did not forcibly abduct complainant, he said. Complainant filed this case against him because she was threatened and forced to do so by her brother. He also added that he did not know why Benjamin Gabriel, his boyhood friend, testified for the prosecution. He jumped bail because Dr. Angeles told him: "I am ready to spend even how much just to put you in jail". [Records, pp. 529- 531]. The two other accused-appellants Arsenio Calayag and Herminigildo Sunpongco gave similar testimonies in the trial court as follows: Between 8:00 and 9:00 A.M. on October 23, 1964 Arsenio Calayag was driving the car owned by Nena de Marucot Silvestre Sunpongco's sister, which was borrowed by accused Silvestre, towards Manila. Silvestre had Benjamin Gabriel as companion. On the way, they stopped to give Herminigildo Sunpongco a lift. Thereupon, Silvestre requested Herminigildo to go with them because he was going to elope with Juanita Angeles, to which he consented. After crossing Tabang Bridge, they overtook the jeep on which Juanita Angeles and her companion Benita Fabian were riding and which was being driven by Virgilio Gan, and blocked its way so it had to stop. Thereupon, Silvestre, Herminigildo and Benjamin Gabriel alighted from the car and boarded the jeep. Silvestre Sunpongco pulled the complainant by the hand to the car as Benjamin Gabriel simultaneously pushed her from the back. At the same time, Benita Fabian was holding on to the complainant and embracing her, so Herminigildo held Benita to prevent her from going into the car as instructed by Silvestre. From Tabang, they proceeded to Hilltop Hotel, Tagaytay City, stopping only once to buy gasoline. Upon reaching the hotel, Silvestre Sunpongco and Benjamin Gabriel led Juanita Angeles inside, while Arsenio Calayag and Herminigildo Sunpongco left for Hagonoy, but were apprehended on the way by CIS agents. [Records, pp. 528-529]. On October 2, 1975, after due trial, the Bulacan Court of First Instance rendered a decision convicting the three accusedappellants, to wit: WHEREFORE, this Court finds the accused SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG guilty beyond reasonable doubt as principals of the complex crime of forcible abduction with rape, as defined and penalized under Articles 335 and 342 in relation to Article 48 of the Revised Penal Code, and hereby sentences each of them to suffer the penalty of LIFE IMPRISONMENT, with the accessory penalties of the law, to indemnify jointly and severally the complainant Juanita Angeles in the slim of Twenty Thousand Pesos (P20,000.00) as

moral damages, and to pay their proportionate share of the costs. [Records, p. 539]. They now interpose this present appeal. Silvestre Sunpongco and Arsenio Calayag filed a joint brief and assigned two errors. Herminigildo Sunpongco likewise filed his own appellant's brief and assigned three errors allegedly committed by the trial court.chanroblesvirtualawlibrary chanrobles virtual law library Consolidating the assignments of errors made by herein accused-appellants, they raise the following points: chanrobles virtual law library I. THE TRIAL COURT ERRED IN HOLDING THAT IT HAD ACQUIRED JURISDICTION TO TRY THE CASE.chanroblesvirtualawlibrary chanrobles virtual law library II. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE WAS COMMITTED AND THAT THE APPELLANTS ARE GUILTY THEREOF BEYOND REASONABLE DOUBT.chanroblesvirtualawlibrary chanrobles virtual law library III. THAT THE LOWER COURT ERRED IN HOLDING THAT CONSPIRACY AMONG THE ACCUSED HEREIN TO COMMIT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE HAS BEEN ESTABLISHED.chanroblesvirtualawlibrary chanrobles virtual law library I. The alleged lack of jurisdiction of the trial court is assailed by accused-appellants Silvestre Sunpongco and Arsenio Calayag on the ground that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution during the trial of the case.chanroblesvirtualawlibrary chanrobles virtual law library Article 344 of the Revised Penal Code and Rule 110 section 5 (formerly section 4 of the Revised Rules of Court) of the 1985 Rules on Criminal Procedure require that the offenses of abduction and rape and other offenses which cannot be prosecuted de oficio shall not be prosecuted except upon complaint filed by the Offended party. Compliance with this is a jurisdictional and not merely a formal requirement.chanroblesvirtualawlibrary chanrobles virtual law library The Rules of Court further provides that evidence which has not been formally offered shall not be considered by the court. [Rule 132, section 35].chanroblesvirtualawlibrary chanrobles virtual law library Applying these rules to the case at bar it is admitted that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution, This failure to adhere to the rules however is not fatal and did not oust the court of its jurisdiction to hear and decide the case. Jurisprudence reveals that if the complaint in a case which cannot be prosecuted de oficio is forwarded to the trial court as part of the records of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence for the prosecution [People v. Savellano, G.R. No. L-31227, May 31, 1974, 57 SCRA 320, 324; People v. Tampus G.R. No. L-42608, February 6, 1979, 88 SCRA 217, 221; and People v. Rondina G.R. No. L-47895, April 8, 1987, 149 SCRA 128, 132133].chanroblesvirtualawlibrary chanrobles virtual law library The records of this case forwarded to the Court of First Instance include the complaint filed by Juanita Angeles in the municipal court of Guiguinto Bulacan which conducted the preliminary investigation [Records, page 31. Likewise the minutes of the September 3, 1965 hearing shows that the subject complaint was marked as Exhibit "X" by the court as disclosed by the records on page 91.chanroblesvirtualawlibrary chanrobles virtual law library II. Article 342 of the Revised Penal Code defines and penalizes the crime of forcible abduction. The elements of forcible abduction are (1) that the person abducted is any woman, regardless of her age, civil status, or reputation; (2) that the abduction is against her will and (3) that the abduction is with lewd designs.chanroblesvirtualawlibrary chanrobles virtual law library On the other hand article 335 of the same Code defines the crime of rape and provides for its penalty. The elements of rape pertinent to this case are: (1,) that the offender had carnal knowledge of a woman; and (2) that such act is accomplished by using force or intimidation.chanroblesvirtualawlibrary chanrobles virtual law library

Silvestre Sunpongco would insist that he and complainant were sweethearts who agreed to elope on that fateful day in October, This defense however is belied by the manner in which the so-called "elopement" was carried out. Juanita Angeles' version that the abduction was carried out against her will is borne out by the testimonies of witnesses presented by the prosecution as well as by two of the accused-appellants, Arsenio Calayag and Herminigildo Sunpongco. These two admitted during the trial having seen the complainant resisting as she was forced to board the car. On cross-examination, Arsenio Calayag testified thus: ATTY. OCAMPO: chanrobles virtual law library Q You said while Juanita Angeles was sitting inside the jeep Silvestre Sunpongco was holding her hands, is it not also a fact he was at the same time pulling Juanita Angeles out of the jeep? A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library Q You also stated that when Juanita Angeles was already on the ground ... Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel led her to the car. Will you please tell the Honorable Court how the three of them led her to the car? A They were holding her. Q The three of them? chanrobles virtual law library A The two of them.chanroblesvirtualawlibrary chanrobles virtual law library Q Who? chanrobles virtual law library A Benjamin Gabriel and Silvestre Sunpongcoxxx xxx xxx Q On what part of the body Silvestre Sunpongco holding Juanita Angeles? chanrobles virtual law library A Hands only.chanroblesvirtualawlibrary chanrobles virtual law library Q How about Benjamin Gabriel? chanrobles virtual law library A Waist sir.chanroblesvirtualawlibrary chanrobles virtual law library Q While Silvestre Sunpongco was holding Juanita Angeles on the hands and Benjamin Gabriel by the waist they were pushing her to the car? A Yes, sir. xxx xxx xxx Q Silvestre Sunpongco was pulling her by the arm Benjamin Gabriel was pushing her? A Benjamin Gabriel was pushing her. xxx xxx xxx Q Is it not a fact that while Silvestre Sunpongco was pulling her and Benjamin Gabriel was pushing her Juanita Angeles was struggling?

xxx xxx xxx A Yes, sir. [TSN, June 23, 1967, pp. 90-92, 94-951. (Emphasis supplied). Herminigildo Sunpongco likewise admitted having witnessed the vain struggles of Juanita Angeles and at the same time her tears when he stated on cross- examination that: ATTY. OCAMPO: chanrobles virtual law library Q Will you please tell the Honorable Court how Silvestre A Sunpongco was leading Juanita Angeles after she alighted from the jeep in that old road? chanrobles virtual law library A I noticed that he (sic) was being pulled by the hands of Silvestre Sunpongco while her other hand was holding the jeep. xxx xxx xxx Q And Juanita Angeles was crying at that time? A Yes, sir. Q And she was finally led into the car by Silvestre Sunpongco because Silvestre Sunpongco was pulling her while Benjamin Gabriel was pushing her at the back? A Yes, sir. Q All along Juanita Angeles was crying? A Yes, sir. [TSN, July 21, 1967, pp. 123-1241. (Emphasis supplied). The three accused-appellants would further negate the probability of carrying on the abduction considering the incident took place in broad daylight and the group had to travel from Guiguinto Bulacan to Tagaytay City. They aver that in view of these circumstances complainant could have screamed or raised an outcry to summon assistance. Juanita Angeles' conduct however can be explained by her fear at that time when four men suddenly confronted them and positioned themselves in such a way that resistance would be impossible. Further during their travel to Tagaytay City Juanita Angeles was rendered practically helpless. She was forced to sit between Silvestre Sunpongco and Benjamin Gabriel while Arsenio Calayag and Herminigildo Sunpongco sat in front of the car.chanroblesvirtualawlibrary chanrobles virtual law library The presence of the lewd design is manifested by the subsequent rape that occurred.chanroblesvirtualawlibrary chanrobles virtual law library At this point, it is noteworthy to mention that the crime of rape is difficult both to prove and to disprove considering the very nature of the offense involving as it does in most cases only two persons. Consequently, the final resolution of the trial court would hinge on whose version is more credible, more plausible and more trustworthy considering the circumstances surrounding its commission.chanroblesvirtualawlibrary chanrobles virtual law library The case at bar is no different. To prove that the crime of rape was committed the court has to examine carefully the evidence presented by the parties. In this instance the circumstance of force and intimidation attending the crime of rape is manifested not only by the testimony of the complainant but the medicolegal report filed by Capt. Ramon Pascual as well.chanroblesvirtualawlibrary chanrobles virtual law library His findings are as follows: xxx xxx xxx

Extragenital: xxx xxx xxx chanrobles virtual law library Contusion at the posterior cervical region, measuring 6 cm. by 4 cm., at the posterior midline, 143 cm. above the heel. Contusion at the anterolateral aspect middle third of the right leg, measuring 7 cm. by 5 cm., 3 cm. from its anterior midline, 27 cm. above the heel. Genital: There is moderate amount of pubic hair, evenly distributed. The labia majora and minora are in coaptation There is moderate amount of leucorrheal discharge. On separating the lips are revealed abrasions at perineum and at both sides of the vulva. The hymen disclosed lacerations at 9 and 11 o'clock positions. The external vaginal orifice offers moderate resistance upon introduction of the examining index finger and the virgin-sized speculum. The cervix is normal in color and consistency, with an abraded area at its lower lip. The uterus is not enlarged. MICROSCOPIC FINDINGS: Vaginal smears are positive for spermatozoa and negative for gram-negative diplococci. REMARKS: Findings are compatible with recent sexual contact. [Records, pp- 23-24]. As stated by the Supreme Court, "(P)hysical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesse, ..." [People v. Sacabin, G.R. No. L-36638, June 28, 1974, 57 SCRA 707, 713].chanroblesvirtualawlibrary chanrobles virtual law library Moreover the conduct of the complainant after the incident took place further strengthens her case. After the forcible abduction and the rape took place and her rescue that same night, she lost no time the following day to have herself examined at the Philippine Constabulary Central Laboratory Office at 8:30 in the morning, she went to the Criminal Investigation Service office at Camp Crame to give her testimony, and she filed her complaint before the fiscal's office. Compare this to the conduct of accused-appellants particularly Silvestre Sunpongco who jumped bail in the course of the trial and was not arrested until after six years.chanroblesvirtualawlibrary chanrobles virtual law library It also behooves this Court to look into the possible motive Juanita Angeles could have had in filing the criminal complaint against accused-appellants had she not been wronged, considering her age, status, reputation and educational attainment, for on this point, accused-appellants argue that the complainant was merely threatened and forced by her brother, Dr. Jose Angeles, to file the complaint against them. Considering the evidence presented this Court finds the appellants' stance as implausible.chanroblesvirtualawlibrary chanrobles virtual law library III. Anent the last error assigned by the accused-appellants, they would refute the testimony given by accused-turned state witness Benjamin Gabriel summarized by the trial court, as: Sometime in the second week of October, 1964, between 8:00 and 9:00 P.M., he met the accused Silvestre Sunpongco, Herminigildo Sunpongco and Arsenio Calayag by previous appointment at the "glorietta" in Hagonoy, Bulacan, at which time Silvestre told them to wait for Juanita Angeles on her way to church the next day, a Sunday, and then take her by force, place her inside the car, and bring her to Tagaytay where Silvestre would rape her so that she would be his, because somebody from Pulilan was courting her. They waited for Juanita as planned, but she failed to appear. Saturday night of the succeeding week, they met again and agreed to consummate their plan to abduct Juanita Angeles the day after, also a Sunday, but again she did not appear. Silvestre Sunpongco told them to wait for another occasion.chanroblesvirtualawlibrary chanrobles virtual law library

On October 20, 1964 they met again in the same place. This time, Silvestre told them that on Friday, October 23,1964 Juanita Angeles would get rice from the RCA at Guiguinto and they will wait for her at the crossing at Malolos to snatch her and take her to Tagaytay in order that he would rape her. On October 23,1964, between 7:00 and 9:00 A.M., they all met in front of the municipal building of Hagonoy, Bulacan, rode a car belonging to Nena Marucot the sister of Silvestre Sunpongco, which was being driven by Arsenio Calayag, and proceeded to the appointed police at Malolos, where they stopped and waited for Juanita Angeles. After a while, they saw her coming in a jeep driven by Virgilio Gan. They followed the jeep and on reaching Tabang Bridge, they blocked its way and forced it to stop.chanroblesvirtualawlibrary chanrobles virtual law library The rest of his story is a corroboration of those of the other prosecution witnesses, although he ended it by saying that once Juanita Angeles was placed inside a room at the Hilltop Hotel by Silvestre Sunpongco, the latter ordered this witness to stay on guard outside while he ordered Herminigilo Sunpongco and Arsenio Calayag to return to Hagonoy; that at 5:00 P.M. he entered one of the rooms because he had fever, and that at about 9:00 P.M. a hotel boy woke him up and told him to tell Silvestre Sunpongco that somebody was looking for him. [Records, pp. 523-528]. The accused-appellants in denying the existence of conspiracy would question the discharge of Benjamin Gabriel to become a state witness. Particularly they aver that Benjamin Gabriel's testimony cannot be substantially corroborated in its material points.chanroblesvirtualawlibrary chanrobles virtual law library An indicium of conspiracy is ". ... when the defendants by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. ... (People v. Geronimo, G.R. No. L-35700 October 15, 1973, 53 SCRA 246, 2541.chanroblesvirtualawlibrary chanrobles virtual law library This Court agrees with the prosecution contention that coupled with the testimonies of Juanita Angeles and Benita Fabian, the following are sufficient corroboration of Benjamin Gabriel's testimony on conspiracy: (1) After the jeep where Juanita Angeles and Benita Fabian were riding and forced to stop by a car occupied by appellants, the appellants and Benjamin Gabriel all got off from said car and approached the jeep.chanroblesvirtualawlibrary chanrobles virtual law library (2) Herminigildo Sunpongco, Benjamin Gabriel and Silvestre SunPori9co boarded the jeep used by the complainant and Benita Fabian. Thereafter, Silvestre ordered the driver of the jeep to proceed to an old road.chanroblesvirtualawlibrary chanrobles virtual law library (3) Arsenio Calayag, in the meantime drove the car and followed the jeep that carried complainant and the other appellants.chanroblesvirtualawlibrary chanrobles virtual law library (4) Upon reaching an isolated place, Silvestre Sunpongco ordered the driver of the jeep to stop. The car also stopped. Whereupon, the appellants riding in the jeep alighted.chanroblesvirtualawlibrary chanrobles virtual law library (5) To force Juanita Angeles into the car, Silvestre Sunpongco pulled Juanita by the hand, Benjamin Gabriel pushed her at the back, while Arsenio Calayag positioned himself behind the wheel of the car, ready to drive the moment Juanita was successfully brought into it. As this was going on, Herminigildo Sunpongco was holding Benita to prevent her from giving the complainant a helping hand. (6) From the time the car finally drove off with Juanita Angeles, up to the time it reached Tagaytay City, appellants Herminigildo Sunpongco, Benjamin Gabriel, Silvestre Sunpongco and Arsenio Calayag were inside the vehicle. [Appellee's Brief, pp. 12-131. The discharge of Benjamin Gabriel to become a state witness is likewise questioned by Herminigildo Sunpongco who avers that on the basis of the evidence presented by the prosecution it is he who appears to be the least guilty. On this point suffice it to state that, " .... (A)ll that the law requires, in order to discharge an accused and to use him as a state witness is that the defendant whose exclusion is required does not appear to be the most guilty, not necessarily that he is the least guilty, ... [People v. Court of Appeals, G.R. No. 55533, July 31, 1984, 131 SCRA 107, 112].chanroblesvirtualawlibrary chanrobles virtual law library

Considering the testimonies and evidence presented this Court is of the belief that the trial court did not err in convicting herein appellants of the crime charged.chanroblesvirtualawlibrary chanrobles virtual law library However, the penalty imposed by the trial court is erroneously designated "life imprisonment". The correct term is reclusion perpetua [People v. Abletes G.R. No. L-33304, July 31, 1974, 58 SCRA 241, 248].chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the decision of the Court of First Instance of Bulacan is hereby AFFIRMED with chanrobles virtual law library the modification that the indemnity awarded by the trial court is raised to P30,000.00.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Fernan, Feliciano and Bidin, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Gutierrez, Jr., J., is on leave Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 80116 June 30, 1989 IMELDA MANALAYSAY PILAPIL, Petitioner, vs. HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, Respondents.

REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.chanroblesvirtualawlibrary chanrobles virtual law library On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 chanrobles virtual law library Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them.chanroblesvirtualawlibrary chanrobles virtual law library After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 chanrobles virtual law library Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3

chanrobles virtual law library On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 chanrobles virtual law library On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 chanrobles virtual law library On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9 chanrobles virtual law library Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 chanrobles virtual law library On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15 chanrobles virtual law library On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 chanrobles virtual law library We find this petition meritorious. The writs prayed for shall accordingly issue.chanroblesvirtualawlibrary chanrobles virtual law library

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.chanroblesvirtualawlibrary chanrobles virtual law library Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.chanroblesvirtualawlibrary chanrobles virtual law library Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.chanroblesvirtualawlibrary chanrobles virtual law library The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.chanroblesvirtualawlibrary chanrobles virtual law library This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21 chanrobles virtual law library In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so.chanroblesvirtualawlibrary chanrobles virtual law library To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter.chanroblesvirtualawlibrary chanrobles virtual law library American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the

offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 chanrobles virtual law library In the cited Loftus case, the Supreme Court of Iowa held that 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint.chanroblesvirtualawlibrary chanrobles virtual law library In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.chanroblesvirtualawlibrary chanrobles virtual law library Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ...chanroblesvirtualawlibrary chanrobles virtual law library It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ...chanroblesvirtualawlibrary chanrobles virtual law library Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ... 25 Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.chanroblesvirtualawlibrary chanrobles virtual law library The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.chanroblesvirtualawlibrary chanrobles virtual law library

The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce.chanroblesvirtualawlibrary chanrobles virtual law library Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Melencio-Herrera, Padilla and Sarmiento, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library chanrobles virtual law library Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-58595 October 10, 1983 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. RICARDO M. ILARDE, in his capacity as Presiding Judge, CFI of Iloilo, Br. V, CECILE SANTIBANEZ and AVELINO T. JAVELLANA, Respondents.

ESCOLIN, J.: chanrobles virtual law library Petition for review on certiorari of the order of the then Court of First Instance (now Regional Trial Court) of Iloilo, Branch V, presided by the respondent Judge Ricardo M. Ilarde, granting the motion to quash the information in Criminal Case No. 13086, entitled, "People of the Philippines, plaintiff versus Cecile Santibaez and Avelino T. Javellana accused." chanrobles virtual law library The information in Criminal Case No. 13086 was filed on March 4, 1981 by City Fiscal Ricardo P. Galvez. It reads: The undersigned City Fiscal upon sworn complaint originally filed by the offended party Efraim Santibaez, copies of which are thereto attached as Annexes "A" and "B" hereby accused CECILE SANTIBAEZ and AVELINO T. JAVELLANA of the crime of adultery, committed as follows: chanrobles virtual law library

That on or about the 3rd day of November, 1980, in the City of Iloilo, Philippines, and within the jurisdiction of this Court, said accused Cecile Santibaez being lawfully married to Efraim Santibaez, which marriage at that time has not been legally dissolved, with deliberate intent, did then and there wilfully, maliciously and criminally have sexual intercourse with her coaccused Avelino T. Javellana, a man not his husband and who in turn knowing fully well that his co-accused was then lawfully married to Efraim Santibaez, did then and there wilfully, maliciously and criminally have sexual intercourse with her.chanroblesvirtualawlibrary chanrobles virtual law library CONTRARY TO LAW. 1 Annex "A" referred to in the information is the sworn complaint for adultery filed by Efraim Santibaez against herein private respondents, Cecile Santibanez and Avelino T. Javellana, with the Integrated National Police, Iloilo Metro Police District, Iloilo City, on November 4, 1980, which complaint was immediately forwarded to the Office of the City Fiscal for preliminary investigation. Said complaint reads: COMPLAINT chanrobles virtual law library The undersigned accuses ATTY. AVELINO JAVELLANA, a resident of CPU Compound, Jaro, Iloilo City, and Cecile Santibaez. a resident of Candido Subdivision, Iloilo City, for the crime of adultery ...chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx (Sgd.) EFRAIM SANTIBAEZ (Signature of complainant) SUBSCRIBED AND SWORN to before me this 4th day of November, 1980 in the City of Iloilo: (Sgd.) RICARDO P. GALVEZ City Fiscal Annex "B" of the information is the affidavit-complaint dated November 6, 1980 executed by Efraim Santibaez, sworn to and filed before City Fiscal Galvez on November 7, 1980, wherein Santibaez recounted in detail the antecedents which brought about the apprehension in flagrante of private respondents. The same is quoted as follows: chanrobles virtual law library I, EFRAIM SANTIBAEZ, of age, married, and a resident of Fundidor Molo, Iloilo City, after having been duly sworn to according to law depose and say: chanrobles virtual law library That I am legally married to Cecile Soriano in a Civil Marriage solemnized by Judge Vicente Santos, City Court of Pasay City on March 22, 1974 but subsequently remarried in a religious ceremony before Rev. Panfilo T. Brasil at the Parish Church of La Paz, iloilo City on July 18, 1974, xerox copies of the aforesaid marriage contracts are hereto attached as Annexes "A" and "B", forming integral parts of this affidavit; chanrobles virtual law library After our marriage, I built a house for our permanent residence and as our conjugal home in Fundidor, Molo, Iloilo City and furnished it with all the comforts well within my means; chanrobles virtual law library At the start of our marriage, I was led to believe by my wife of her total concern, love and devotion to me valid in turn I lavished her with all the material comfort at my command and even tried to build up her social status by sending her as a delegate to the Zonta World Conference at Washington, D.C. last July, 1980 without any company. As a token of my love and unfailing trust we went sightseeing and on second honeymoon to Hongkong only last month.chanroblesvirtualawlibrary chanrobles virtual law library Sometime during the last week of October, 1980, while I went on my normal work routine to Passi Sugar Millsite in Passi Iloilo, my son Edmund took me aside in confidence and told me that he has some very delicate matters to take up with

which may be misinterpreted by me or may be taken by her in a wrong light; however, he said hat the his valid dignity of the family is at mistake and I have to know it whatever be the consequence. After I gave him the go signal, he narrated to her that my wife Cecile Sorianosos has been unfaithful to me and has been. having illicit relationship with another man. Of curse, I was taken aback and stunned so I asked him for the source of his information. He informed me that our maid Elsa Barios and our driver Loreto Reales had beeen aware of the relationship and the man usually went to my house and even slept there whenever I was in Manila. I got angry and blamed our maid and the driver for not telling me but Edmund told me that they were afraid to tell because they were threatened. After I have calmed down, I commended that if I confront my wife about her illicit relationship, she will surely deny it. So I thought that the best way was to catch her red-handed in the act of infidelity so that she could not deny it. anymore. I suggested to Edmund to think of a plan so we can catch his wife red-handed.chanroblesvirtualawlibrary chanrobles virtual law library After several days of planning we agreed to put our plan of action in operation on November 3, 1980 since I will be leaving for Manila in the morning of that day. Our problem was how to catch my wife in the very act of having sexual intercourse with her lover considering the fact that our master's room was air-conditioned with all windows framed by glass jalousies closed and covered by curtains. At first we thought of breaking down the main door with a sledge hammer so we could take them by surprise, later we abandoned the Idea because of legal complications, chanrobles virtual law library Finally, I thought of removing a glass of the jalousy so the inside of the bedroom can be seen from the outside once the curtain can be brushed aside by means of a thin wire and the persons on bed could be seen clearly since the bed is on the same level as the opening of the window. After several experiments whenever my wife was out, I found out that my wife cannot notice the removal of the glass jalousy since our windows are screened from the inside of our room.chanroblesvirtualawlibrary chanrobles virtual law library As pre-arranged, I removed one jalousy glass of the window of our master room so that the people inside our room could be seen actually from the outside and the moment my wife and her lover is seen in the act of sexual intercourse.chanroblesvirtualawlibrary chanrobles virtual law library Having completed all the plans to effect our plan of operation, I told my wife that I Qfor Manila on that day. I instructed my son Edmund to inform me immediately of the result of the plan of action as soon as possible.chanroblesvirtualawlibrary chanrobles virtual law library Almost midnight of November 3, 1980, I was informed by my daughter-in-law Rebecca that the operation was successful and resulted in the arrest of my wife and Atty. Bob Javellana inside our bedroom.chanroblesvirtualawlibrary chanrobles virtual law library I know Atty. Bob Javellana for quite a time and we have been close friends. As a friend he has come to our house at Molo Iloilo City oftentimes to discuss matters about the court case between the Iloilo City Government and St. Therese Memorial Chapel which is a business which I have given to my wife Cecile. Atty. Javellana knew that Cecile Sorianosos is my legally married wife.chanroblesvirtualawlibrary chanrobles virtual law library When I returned to Iloilo City from Manila on November 4, 1980, I was shown the photographs taken inside our master bedroom and I am attaching hereto the photographs which are marked as Annexes "C", "D", "E", "F", "G", "H", "I" and "J".chanroblesvirtualawlibrary chanrobles virtual law library That I am formally charging my wife, Cecile Sorianosos and Atty. Bob Javellana of Qcomplaint against them (pp. 4-5, Original Records). Sometime in January 1981, i.e., before the conclusion of the preliminary investigation then being conducted by the Fiscal's Office, Efraim Santibaez learned that he was sick of cancer and decided to leave for the United States for medical treatment. Before his departure, he executed a holographic Will, dated January 10, 1981, a portion of which provided: I do hereby disinherit my second wife Cecilia Sorianosos of any and all inheritance she is entitled under the law as my wife on the ground that she had given cause for legal separation by committing acts of adultery with Atty. Bob Javellana in the evening of November 3, 1980 in my conjugal abode at Candido Subdivision and as a result of which I charged her and Atty. Bob Javellana for adultery with the Fiscal's Office and I filed a case of legal separation against her in Civil Case No. SP- 11-

309 of the Juvenile and Domestic Relations Court in Iloilo City for which act of infidelity, I can never forgive her. 2 On January 15, 1981, after several requests for postponement, private respondents submitted their memorandum to the Fiscal's Office; and on February 19, 1981, Fiscal Galvez issued a resolution finding the existence of a prima facie case for adultery against private respondents.chanroblesvirtualawlibrary chanrobles virtual law library On February 26, 1981, Fiscal Galvez was informed by relatives of Efraim Santibaez that the latter had died in the United States on February 16, 1981. This notwithstanding, he prepared the information in question on March 3, 1981, and on the following and filed the same with the Court of First Instance of Iloilo.chanroblesvirtualawlibrary chanrobles virtual law library Private respondents filed a motion to quash the information on the ground that the court did not acquire jurisdiction over the offense charged, as the offended party had not filed the required complaint pursuant to the provisions of Article 344 of the Revised Penal Code and Section 4, Rule 110 of the Rules of Court to the effect that "the crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed and the offended spouse," chanrobles virtual law library Finding merit in the position taken by private respondents, respondent judge granted the motion and dismissed the case. The city fiscal moved for a reconsideration, but the same was denied. Hence, the present recourse.chanroblesvirtualawlibrary chanrobles virtual law library The sole issue to be resolved is whether or not there has been compliance with the requirement of Article 344 of the Revised Penal Code, reiterated in Section 4, Rule 110 of the Rules of Court, that "the crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended party " chanrobles virtual law library We rule in the affirmative, chanrobles virtual law library We are aware that in a long line of decisions, 3 this Court has maintained strict adherence to the requirement imposed by Article 344 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library It must be borne in mind, however, that this legal requirement was imposed "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." 4 Thus, the law leaves it to the option of the aggrieved spouse to seek judicial redress for the affront committed by the erring spouse. And this, to Our mind, should be the overriding consideration in determining the issue of whether or not the condition precedent prescribed by said Article 344 has been complied with. For needless to state, this Court should be guided by the spirit, rather than the letter, of the law.chanroblesvirtualawlibrary chanrobles virtual law library In the case at bar, the desire of the offended party, Efraim Santibaez, to bring his wife and her alleged paramour to justice is only too evident. Such determination of purpose on his part is amply demonstrated in the dispatch by which he filed his complaint with the police [annex "A", supra]; the strong and unequivocal statement contained in the affidavit filed with the Fiscal's Office that "I am formally charging my wife Cecile Sorianosos and Atty. Bob Javellana of the crime of adultery and would request that this affidavit be considered as a formal complaint against them" [Annex "B", supra]; his filing of a complaint for legal separation against Cecile Santibaez with the local Juvenile and Domestic Relations Court; and finally, in disinheriting his wife in his Last Will and Testament dated January 10, 1981.chanroblesvirtualawlibrary chanrobles virtual law library In quashing the information, respondent judge relied upon Our decision in People vs. Santos 5 to the effect that a "salaysay" or sworn statement of the offended party, which prompted the fiscal to conduct a preliminary investigation and then to file an information in court, was not the complaint required by Article 344 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library The ruling in Santos is not applicable to the case at bar. In that case, the "salaysay" executed by complainant Bansuelo was not considered the complaint contemplated by Article 344 of the Revised Penal Code because it was a mere narration of how the crime of rape was committed against her. However, in the affidavit-complainant submitted by Efraim Santibaez, the latter not only narrated the facts and circumstances constituting the crime of adultery, but he also explicitly and categorically charged private respondents with the said offense. Thus-

That I am formally charging my wife Cecile Sorianosos and Atty. Bob Javellana of the crime of adultery and would request that this affidavit be considered as a formal complaint against them. Moreover, in Santos, this Court noted that the information filed by Rizal Provincial Fiscal Nicanor P. Nicolas "commenced with the statement "the undersigned fiscal accuses Engracio Santos with the crime of rape," the offended party not having been mentioned at all as one of the accusers." In the instant case, however, the information filed by the city fiscal of Iloilo reads as follows: chanrobles virtual law library The undersigned city fiscal upon sworn statement originally filed by the offended party Efraim Santibaez, xerox copies of which are hereto attached as Annexes "A" and "B" ...chanroblesvirtualawlibrary chanrobles virtual law library Undoubtedly, the complaint-affidavit filed by Santibaez contains all the elements of a valid complaint, as "it states the names of the defendants, the designation of the offense by the statute, the acts or omission complained of as constituting the offense; the name of the offended party, the approximate time of the commission of the offense, and the place wherein the offense was committed. 6 chanrobles virtual law library What is more, said complaint-affidavit was attached to the information as an integral part thereof, and duly filed with the court. As held in Fernandez vs. Lantin, 7 the filing in court of which affidavit or sworn statement of the offended party, if it contains all the allegations required of a criminal complaint under Section 5, Rule 110 of the Rules of Court, constitutes sufficient compliance of the law. Thus: ... in a case where the Fiscal filed an Information charging the accused with "telling some people ill the neighborhood that said Fausta Bravo (a married woman) was a paramour of one Sangalang, a man not her husband", and Fausta Bravo did not subscribe to the complaint this Court held that the trial court had no jurisdiction over the case. It ruled that since the accused imputed to Fausta Bravo the commission of adultery, a crime which cannot be prosecuted cle oficio, the Information filed by the Fiscal cannot confer jurisdiction upon the court of origin.chanroblesvirtualawlibrary chanrobles virtual law library lt must be noted, however, that this error could be corrected without sustaining the motion to quash and dismissing the case. Pursuant to section I of paragraph (a) of Presidential Decree No. 77, under which the Assistant City Fiscal conducted the preliminary investigation the statement of the complainant was sworn to before the aforesaid Investigating Fiscal. Assuming that the recitals in said worn statement contain all those required of a complaint under the rules i copy of said verified statement of the complainant should be filed With respondent Court in order to comply with the requirements of Article 360 of the Revised Penal Code; otherwise, the respondent Fiscal should file with said court a verified complaint of the offended party Upon these premises, We cannot but conclude that the adultery charge against private respondents is being prosecuted "upon complaint filed by the offended party." chanrobles virtual law library WHEREFORE, the petition is hereby granted. The orders of the Court of First Instance of Iloilo, Branch V, in Criminal Case No. 13086, dated May 21 and September 14, 1981, are hereby set aside, and respondent judge is directed to proceed with the trial of the case on the merits. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Makasiar (Chairman), Aquino, Guerrero, Abad Santos and Relo , JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Concepcion, Jr., J., and De Castro, J., are on leave. Endnotes: 1 p. 1, Original Records.chanrobles virtual law library 2 pp. 92-93, Original Records.chanrobles virtual law library

3 U.S. v. Gomez, 12 Phil. 279; U.S. v. Narvas 14 Phil. 410; U.S. v. dela Cruz, 17 Phil. 139; U.S. v. Castaares 18 Phil. 210; U.S. v. Salazar, 19 Phil. 233; Quilatan and Santiago v. Caruncho, 21 Phil. 399; People v. Martinez, 76 Phil. 559.chanrobles virtual law library 4 Samilin vs. CFI of Pangasinan, 57 Phil. 298, 304.chanrobles virtual law library 5 101 Phil. 798.chanrobles virtual law library 6 SEC. 5. Sufficiency of complaint or information.-A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by the statute; the acts or Omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed...chanrobles virtual law library 7 74 SCRA 338,343,344.

Separate Opinions

PARAS, J., concurring: chanrobles virtual law library It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.chanroblesvirtualawlibrary chanrobles virtual law library In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved.chanroblesvirtualawlibrary chanrobles virtual law library In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife.chanroblesvirtualawlibrary chanrobles virtual law library The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.chanrobles virtual law library In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved.chanrobles virtual law library In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife.chanrobles virtual law library The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 75853 January 31, 1989 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANDRES BUGTONG, Defendant-Appellant.

FERNAN, C.J.: What makes this case of rape most unfortunate is that the victim is a fifteen-year old lass with a mental age of between five (5) and eight (8) years and a numerical I.Q. of 47.chanroblesvirtualawlibrary chanrobles virtual law library Irene Cutiam, the minor complainant, was born on December 30, 1968 in Sitio Duban, Tublay, Benguet. The accused, Andres Bugtong, is her neighbor.chanroblesvirtualawlibrary chanrobles virtual law library

Sometime in July, 1984, Luisa Cutiam noticed that the stomach of her daughter Irene was growing bigger and bigger. Dr. Salome Pilit, a government physician who conducted a medical examination confirmed that Irene was pregnant. Irene, at first, would not reveal the identity of the man responsible for her condition, but when she felt something moving inside her belly, she confessed to her mother Luisa that accused raped her and that her refusal to talk earlier was due to the fear that accused would make good his threats to kill her should she squeal.chanroblesvirtualawlibrary chanrobles virtual law library With this information, Luisa, together with Irene, went to the Acop Tublay Police Station to report the crime which resulted in Irene's pregnancy. Irene gave birth to a baby boy later on. 1 chanrobles virtual law library Andres Bugtong was thereafter charged before the Regional Trial Court of La Trinidad, Benguet with the crime of Rape allegedly committed as follows: ... the above-named accused by means of force and intimidation and threats, did then and there wilfully, unlawfully and feloniously have sexual intercourse and carnal knowledge of one Irene Cutiam, a fifteen-year old girl against her will and consent. 2 chanrobles virtual law library On accused's plea of not guilty, trial ensued. When Irene was called to the witness stand, it was observed that she had difficulty understanding the questions propounded to her. On motion of the fiscal, she was made to undergo pyschological testing which revealed that she had an Intelligence Quotient (IQ) of only 47, equivalent to the mental age of a person between the ages of 5 and 8 years, far below her actual age of 15 years. Her mental retardation was classified as moderate. 3 chanrobles virtual law library Her testimony, as summarized by the trial court, is as follows: On November 13, 1984, Irene Cutiam testified. ... One day in January 1984, she was sent by her mother Luisa Cutiam to the house of Andres Bugtong, the herein accused to pay her account to the latter in the amount of TEN PESOS (P10.00).This fact of indebtedness and payment of the same was previously testified on by Luisa Cutiam. 4 Witness claimed that when she handed the money to Andres Bugtong, the latter grabbed her other hand and placed her on the bed, and when she tried to shout, the accused covered her mouth with his hand and allegedly threatened her by saying: 'If you will report the matter, I will kill you, anyway our house (sic) are near each other. 5After having uttered those threatening words, Irene was apparently released from the hold of the accused as could be inferred from the following: chanrobles virtual law library Q After saying that, what is the next thing he did, if any? chanrobles virtual law library A While he was removing his pants, I tried to open the door but it was locked then he came again and pulled me.chanroblesvirtualawlibrary chanrobles virtual law library Q And when he came again to pull you, where did he bring you? chanrobles virtual law library A In their bed just the same, Sir.chanroblesvirtualawlibrary chanrobles virtual law library Q What did he do when you were already in bed? chanrobles virtual law library A He did the act and after doing the act he opened the door and let me go out. 6 xxx xxx xxx chanrobles virtual law library On recross-examination, complainant disclosed that at one time the accused came to their house when she was with her two younger brothers. The accused sent the two boys to the mountain to gather guavas and after they have left, had again sexual intercourse with her; that when the two boys came back and knocked at the door, accused barred her from opening and again was threatened with death if she would do so; that she just kept on crying until the accused sneaked out through the other door of the house. 7 chanrobles virtual law library Accused Andres Bugtong, testifying on January 23, 1985 gave the following version:

... He and his wife are farmers with a vegetables garden near their house and another one which is farther. They usually start working early in the morning and go home for breakfast after having watered the plants and then go back to continue with their garden works (sic). At 2:00 o'clock noon they go home for lunch after which the wife goes back to the garden while the accused sometimes stays behind for some works (sic) at home. They have two houses which are near each other. Seven (7) of their eight (8) children occupy one of these two houses while he and his wife stay in the other house. 8 Occasionally especially during harvesting season, they used to engage the services of Irene Cutiam to help them in the garden.chanroblesvirtualawlibrary chanrobles virtual law library One day in January 1984, Irene came to their house after lunch. Andres Bugtong was then alone. Without any word, she just entered the one-room house, sat on the bed and kept on smiling and never talked although repeatedly asked by the accused of what she needed because he was then about to leave for the garden. He served her with coffee and while both of them were drinking, the accused, without any word sat beside the complainant, who in turn leaned on the former with her breast on his left shoulder. At this juncture, the accused said: chanrobles virtual law library Q And what happened after that? chanrobles virtual law library A So I told her, 'your breast is big.' chanrobles virtual law library Q What did she answer you if any? chanrobles virtual law library A None, she was just smiling. chanrobles virtual law library Q So what did you do? chanrobles virtual law library A And so I put my left arm around her shoulders.chanroblesvirtualawlibrary chanrobles virtual law library Q What did she do when you put your left hand or arm around her shoulder? chanrobles virtual law library A I took hold of her breast.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library Q And what did she do when you held her breast? chanrobles virtual law library A She was placing down her coffee and then she encircled her two arms around my body (Witness illustrating his both hands.) 9 At this stage when accused was already sexually aroused, he laid down the complainant on the bed and after closing the door, he removed his clothes, sat between the legs of the former, lifted her skirt and when he noticed that complainant had no panty, he proceeded with the sexual intercourse with both hands holding her shoulders while the latter took hold of his waist. This was the first sexual intercourse which was repeated four or five times during the succeeding months of 1984. All were done in his house after lunch time. Accused said further that during all these sex contacts with complainant and thereafter, no words were uttered neither they (sic) converse with each other. He only learned that the latter was already pregnant after this case was filed. (Ibid., pp, 12-16) 10 chanrobles virtual law library Giving credence to the prosecution's version, the trial court rendered judgment finding Andres Bugtong guilty beyond reasonable doubt of the crime of Rape as defined in Article 335 (1) and (2) of the Revised Penal Code and sentencing him to suffer the penalty of Reclusion Perpetua; to recognize the child born to Irene Cutiam as a result of the crime; to indemnify the complainant in the sum of Twenty Thousand (P20,000.00) pesos as moral damages and to pay the costs. From said judgment, Bugtong interposed the present appeal.chanroblesvirtualawlibrary chanrobles virtual law library He alleges that: The lower court erred: chanrobles virtual law library

I chanrobles virtual law library IN TAKING JURISDICTION OF THE CASE chanrobles virtual law library II chanrobles virtual law library IN CONVICTING THE ACCUSED AS DEFINED IN ART. 335 (1) AND (2), AS AMENDED, OF THE REVISED PENAL CODE.chanroblesvirtualawlibrary chanrobles virtual law library III chanrobles virtual law library IN NOT DISMISSING THE CASE. 11 chanrobles virtual law library Appellant contends that as rape is a personal offense which, under Article 334 of the Revised Penal Code and Section 4, Rule 110 of the Rules of Court, now Section 5, Rule 110 of the 1985 Rules on Criminal Procedure, must be prosecuted upon a complaint filed by the offended party, the trial court erred in assuming jurisdiction over the instant case on the basis of the Information signed by the fiscal alone.chanroblesvirtualawlibrary chanrobles virtual law library Only recently, did this Court reiterate its ruling on the meaning and import of this requirement. We said in People vs. Hon. Santiago Taada G.R. No. L-32215, October 17, 1988, that: ... In the 1966 case of Valdepenas v. People this Court, through then Associate, later Chief Justice Roberto Concepcion clarified: chanrobles virtual law library ... It is true that pursuant to the third paragraph of Art. 344 of the Revised Penal Code, chanrobles virtual law library ... the offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents ...chanroblesvirtualawlibrary chanrobles virtual law library ... The provision does not determine, however, the jurisdiction of our courts over the offenses therein enumerated. It could not affect said jurisdiction, because the same is governed by the Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with the definition of crimes and the factors pertinent to the punishment of the culprit. The complaint required in said Article is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. And such condition has been imposed out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through, with the scandal of a public trial. 12 xxx xxx xxx chanrobles virtual law library This ruling was followed in the subsequent case of People v. Babasa where the Court, citing the Valdepeas case, ruled that Act 344 was not enacted for the specific purpose of benefiting the accused. When it is said that the requirement in Article 334 that there should be a complaint of the offended party or her relatives is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the Court to try the case. The Court's jurisdiction is vested in it by the Judiciary Law. In the case at bar, it is evident that the prosecution for rape was initiated by the offended party herself with the assistance of her mother. The Information filed by the Fiscal said so, thus: the undersigned 3rd Assistant Provincial Fiscal, upon a sworn originally filed by the offended party accuses Andres Bugtong of the crime of Rape... 13 chanrobles virtual law library And extant on record is Exhibit "B", 14 the criminal complaint 15 filed by Irene Cutiam with the assistance of her mother. The appellant's insinuation that the Information should have been signed and sworn to by the complainant is incorrect for it is not necessary for the complainant to sign and verify the Information for rape filed by the Fiscal. 16 chanrobles virtual law library

Based on the foregoing, no error can be imputed to the trial court in taking cognizance of the Information filed by the fiscal.chanroblesvirtualawlibrary chanrobles virtual law library Appellant questions next the trial court's finding that he is guilty of the crime of rape as defined in Article 335 (1) and (2) of the Revised Penal Code. He contends that since it is clear from the allegations in the Information that the offense charged falls under par. 1 of Art. 335, to find him guilty of rape under par. 2 thereof is violative of his constitutional right to be informed of the charges against him.chanroblesvirtualawlibrary chanrobles virtual law library There is merit in this contention. While the conviction of accused-appellant under paragraphs (1) and (2) of Article 335 of the Revised Penal Code appears to be an innocuous error as these paragraphs refer merely to the modes of commission of the same crime of rape punishable by the same penalty of reclusion perpetua, the harm inflicted upon accused-appellant gains considerable proportion when we consider not only the no win situation in which appellant was placed by reason of such conviction, but more importantly, the surprise attendant to his conviction for a crime under a mode of commission different from that alleged in the information.chanroblesvirtualawlibrary chanrobles virtual law library Having been charged with Rape allegedly committed thru force or intimidation, it is to be expected that appellant should focus his defense on showing that the sexual intercourse complained of was the result of mutual consent, rather than of force or intimidation. This defense, however, has been rendered futile and ineffective by the appellant's further conviction under par. (2) of Art. 335, for even if he should succeed in convincing us that the sexual act under consideration was born out of mutual consent, he nonetheless remains liable under par. (2) of Art. 335, wherein consent of the offended party is not a defense, the latter being considered to be legally incapable of giving her consent.chanroblesvirtualawlibrary chanrobles virtual law library Furthermore, and more importantly, as herein appellant was tried on an information charging him with rape committed thru force and intimidation, his conviction for rape committed when the woman is deprived of reason or otherwise unconcious would be violative of his constitutional right as an accused to be informed of the nature and cause of the accusation against him. 17 chanrobles virtual law library This is not to say however, that the conviction of accused-appellant should be set aside altogether. Only his conviction under par. (2) of Article 335 of the Revised Penal Code is nullified as his guilt of the crime of rape committed thru force and intimidation, as charged in the Information, has been proven beyond reasonable doubt. 18 chanrobles virtual law library That accused-appellant succeeded in obtaining carnal knowledge of Irene thru force and intimidation has been established by Irene's testimony that appellant uttered the following threat: If you will report the matter, I will kill you, anyway our house (sic) are near each other. 19 chanrobles virtual law library with respect to which we share the Solicitor-General's observation, thus: At first blush, it would seem that the force employed by the appellant and the resistance put up by Irene would not meet the degree of force and resistance required to qualify the sex act for rape. However, it is to be stressed that force and intimidation are not limited to physical force, it includes the moral kind such as fear especially in the case at bar where it was established that Irene, had the mental capacity of a child between five (5) to eight (8) years old. 20 Moreover, it has been ruled that the force used need not be irresistible. As long as it is present and brings the desired result, all consideration of whether it was more or less irresistible is beside the point. 21 chanrobles virtual law library WHEREFORE, except for the modifications that (1) the conviction of accused-appellant under paragraph (2) of Article 335 of the Revised Penal Code is set aside and (2) the civil indemnity to be paid to the victim is increased to P30,000.00, the appealed decision is hereby AFFIRMED in all other respect.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., .

SECOND DIVISION [G.R. No. 131820. February 29, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROLANDO ATIENZA Y BAUTISTA, Accused-Appellant. DECISION BELLOSILLO, J.: ROLANDO ATIENZA Y BAUTISTA was charged before the Regional Trial Court of San Jose, Camarines Sur, with having raped through force and intimidation one Maria Theresa Obias y Raola, a 13-year old minor. He was thereafter sentenced to reclusion perpetua and ordered to pay the private offended party P50,000.00 as civil indemnity and to pay the costs.1 Supremex These are the facts on which the Decision was based: Complaining witness Maria Theresa Obias was alone in the room which her family was renting at Rizal Street, Goa, Camarines Sur, in the afternoon of 22 September 1996. At around 3:00 o'clock, 35-year old Rolando Atienza, her mother's godson and a former neighbor, arrived inquiring about his Ninang Feling. Ninang Feling is Maria Theresa's mother, Felicisima Obias, who stood as principal sponsor in Rolando's wedding. Upon learning that she (Maria Theresa) was alone, Rolando closed the door and windows, dragged her towards her mother's bed and forcibly tried to remove her shorts, but she cried, "Habo ko!" (I don't want!). But the accused succeeded despite her resistance. He then laid on top of her and inserted his penis into her vagina. All the while Maria Theresa was pushing him away saying, "Habo ko, habo ko!"2 After satisfying his lust, the accused gave Maria Theresa two (2)five-peso bills3 with a threat however before he left that he would harm her family should she reveal the incident to her mother.4 The offended party also testified that Rolando Atienza had previously kissed and embraced her on three (3) occasions when her family was still staying in Panday.5 Felicisima Obias, mother of Maria Theresa, narrated that at around 5:00 o'clock in the afternoon of 22 September 1996, after arriving home from church, she noticed that her youngest daughter, Maria Theresa, was nervous. While dressing her up to go to church with her father and a sister, Felicisima noticed two (2) five-peso bills tucked in Maria Theresa's short pants. Since she was not in the habit of giving her daughter that much money Felicisima asked where it came from. When Maria Theresa answered tearfully that the money came from Rolando Atienza, Felicisima became apprehensive and questioned her further. It was at that point when Maria Theresa revealed what had happened to her. After the physical examination conducted by Dr. Diosdado Fuentebella, the Rural Health Physician of Goa, Camarines Sur, Felicisima learned further that Maria Theresa was no longer a virgin even before the incident as Rolando had sexually abused her previously.6 Dr. Fuentebella physically examined private complainant the day after the incident.7 He opined that she lost her physical virginity even before 22 September 1996 but that her recent sexual contact was evidenced by spermatozoa found upon microscopic examination of her vaginal secretion.8 On cross-examination, Dr. Fuentebella conceded that there was no sign of physical injury on the body of private complainant although he clarified on redirect examination that it was not at all unusual in cases where the woman already had healed hymenal lacerations as in the case of Maria Theresa.9 Es msc Dr. Chona Belmonte, a psychiatrist from the Bicol Regional Hospital and admitted by the trial court as a medical expert,10 testified that she conducted a psychiatric examination on private complainant and found her to be suffering from mild mental retardation. Specifically, Dr. Belmonte said that Maria Theresa, in addition to being poor in abstract reasoning and general knowledge, was quite weak in critical judgment; that although private complainant was already thirteen (13) years old at the time her intelligence quotient (IQ) was only sixty-three (63) thus making her mental age equivalent only to that of an eight (8)-year old child.11

The defense on the other hand presented only the accused Rolando Atienza who admitted that he went to his Ninang Feling's house in the early afternoon of 22 September 1996. However he claimed that he did so only to collect on a debt. When he learned that his Ninang Feling was in church he waited for her by lying on the sofa and looking over some pictures in an album. He denied raping private complainant and claimed that he left at about 3:00 o'clock in the afternoon after he got tired of waiting for his Ninang Feling. To rebut the testimony that private complainant had the mental capacity of an eight (8)-year old child, the defense presented private complainant's Elementary School Permanent Record or DECS Form No. 137-A12 showing that the latter obtained passing grades from Grades I to VI. On 7 October 1997 judgment was rendered finding the accused guilty of rape. The trial court found the testimony of private complainant more credible than the denial of the accused after noting the simple manner by which private complainant testified, with no sign of shuffling or falsehood. Moreover, in addition to finding that rape was indeed committed through force the trial court concluded that the accused would still be liable for rape, even if no such force was exerted, considering the mental age of private complainant which was that of an eight (8)-year old child. Accordingly, the he was sentenced to suffer the penalty of reclusion perpetua and ordered to pay private complainant P50,000.00 as civil indemnity, plus the costs.13 Esmm is Accused-appellant contends in this appeal that the trial court erred in finding him guilty of rape as defined in par. (2), Art. 33514 of the Revised Penal Code, providing for a mode of commission different from that charged in the Information, i.e., while the Information charged him with rape committed through force and intimidation as defined in par. (1), Art. 335, he was nevertheless eventually convicted of rape under par. (2) thereof, i.e., rape of a woman who was deprived of reason, including those with the mental capacity of a child below twelve (12) years old.15 Accused-appellant strongly argues that he was deprived of his constitutional right to be informed of the nature and cause of the accusation against him, hence, he is entitled to acquittal. We find no merit in accused-appellant's contention. First, the trial court did not find him guilty solely of rape committed under par. (2), Art. 335, of the Revised Penal Code.16 On the contrary, a plain reading of the appealed Decision readily shows that the primary basis of his conviction was the finding that he had carnal knowledge of the thirteen (13)-year old private complainant through force and intimidation as properly charged in the Information. Thus the court a quo said [T]he Court believes that the accused Rolando Atienza sexually assaulted the offended party, Maria Theresa Obias with the use of force. It is true that neither the offended party nor the Municipal Health Officer, Dr. Diosdado Fuentebella, testified that there was physical force sustained by the former. But, force or violence required in rape is relative x x x x Being relative, the force needed to overpower the resistance of the offended party is that which is necessary to consummate the offense. Besides, in the instant case, it is hard to believe that a 13-year old girl, with a mental age of an eight (8) years of age would voluntarily submit sexually to a man more than twice her age if no force was exerted. Moreover, if the mental age of a woman above twelve (12) years of age is that of a child below twelve (12) years of age voluntarily submits herself to the bestial desire of the accused, or even if the circumstances of force or intimidation do not exist, or of the victim being deprived of reason or otherwise rendered unconscious, are absent, the accused would still be liable for rape (People v. Bulaybulay, 248 SCRA 601). Jksm Secondly , even though private complainant's subnormal mental capacity was not alleged in the Information, hence, conviction under par. (2), Art. 335, of the Revised Penal Code would normally be violative of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him,17 it cannot be denied however that he did not object to the presentation of Dr. Chona Belmonte who was precisely called by the prosecution as its first witness to testify on private complainant's subnormal mental capacity, that is, although the latter was already thirteen (13) years old at the time of the incident, her mental capacity was equivalent only to that of an eight (8)-year old child. While defense counsel did object to Dr. Belmonte's Psychiatric Evaluation Report18 during the prosecution's formal offer of documentary evidence, he did so only on the ground that private complainant did not appear to him to be feeble-minded during crossexamination.19 Thus, instead of objecting outright to the aforementioned prosecution evidence on the ground that private complainant's alleged subnormal mental capacity was not properly alleged in the Information, the defense in fact waived this procedural infirmity20 by presenting evidence of its own to prove the contrary, that is, that private complainant was normal as shown by her Elementary School Permanent Record or DECS Form No. 137-A formally offered as Exh. "1" for the defense. In People v. Abiera21 the Court passing upon the very same contention raised by herein accused-appellant ruled -

The appellant maintains that he cannot be convicted of rape committed under one mode when the information alleged another mode. He cites the case of People v. Pailano (169 SCRA 649), where this Court held that to convict the appellant on the finding that he had committed rape while the victim was unconscious or otherwise deprived of reason- and not through force and intimidation, which was the method alleged-would violate his constitutional right to be informed of the nature and cause of the accusation against him. That case works against appellant. In Pailano, this Court impliedly recognized that an accused charged with rape through one mode of commission may still be convicted of the crime if the evidence shows another mode of commission provided that the accused did not object to such evidence (underscoring ours). Finally, even assuming arguendo that accused-appellant's conviction under par. (2) of Art. 335 of the Revised Penal Code should be set aside, he is nevertheless still liable for rape committed through force and intimidation since his guilt thereof, as properly charged in the Information, has been proved beyond reasonable doubt.22 The thirteen (13)-year old private complainant tearfully recounted on the witness stand how accused-appellant forcibly dragged her to her mother's bed upon learning that she was alone, undressed her, sexually abused her despite her resistance Habo ko! Habo ko! (I don't want! I don't want!)23 - and that after having succeeded in his evil design, threatened her and her family with harm should she reveal the incident to her mother. justice It is well-settled that testimonies of victims who are young and of tender age deserve full credence24 and should not be so easily dismissed as a mere fabrication.25 No woman, much less a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in fact, been a victim of rape and impassioned to seek justice for the wrong done to her being.26 What makes private complainant's testimony doubly credible was the fact that no improper reason or ill motive could be imputed to her as would impel her to falsely charge accusedappellant, her mother's godson and a former neighbor, of such a grave crime as rape. Moreover, private complainant's testimony was corroborated by Dr. Diosdado Fuentebella who affirmed on the witness stand the presence of spermatozoa in her vaginal secretion, consistent with the claim of recent sexual contact. Although no sign of external physical injury was noted on her body the same did not negate her claim of rape. We have held that it was not necessary that there be marks of physical violence on the victim's body because the exertion of irresistible force by the accused is not an element of the offense,27 more so when the force required to overwhelm a child especially one who is of subnormal mental capacity like herein private complainant, is obviously and understandably of a lesser degree than that needed to overwhelm a normal adult.28 Considering that accused-appellant was at the time of the incident athirty-five (35)year old normal male while private complainant was a puny thirteen (13)-year old with a mental capacity of an eight (8)year old, it is not really difficult to understand how accused-appellant succeeded in his criminal design with minimal force but force nonetheless29 - such that no manifestation of physical injury was noted on private complainant. Considering all the foregoing, we affirm the trial court's finding of accused-appellant's guilt beyond reasonable doubt of the crime of rape. A slight modification of the Decision however is in order. The trial court merely ordered accused-appellant to pay private complainant P50,000.00 as civil indemnity. But since moral damages are now automatically awarded to victims of rape without need of proving the same,30 the additional amount of P50,000.00 may properly be awarded in favor of private complainant Maria Theresa Obias. Es m WHEREFORE , the judgment appealed from finding accused-appellant ROLANDO ATIENZA Y BAUTISTA guilty of rape beyond reasonable doubt, imposing upon him a prison term of reclusion perpetua and ordering him to indemnify private complainant Maria Theresa Obias in the amount of P50,000.00 is AFFIRMED. He is further ordered to pay her an additional amount of P50,000.00 for moral damages in accordance with recent jurisprudence. Costs against accusedappellant Rolando Atienza y Bautista. SO ORDERED. Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC [G.R. Nos. 124559-66. April 30, 1999] THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ERIBERTO MAGLENTE y CABAHUG, accused-appellant. DECISION MENDOZA, J.: This is an appeal from the decision[1 of the Regional Trial Court of Quezon City, Branch 78 (Judge Percival Mandap Lopez, presiding), finding accused-appellant Eriberto Maglente y Cabahug guilty of eight (8) counts of rape and sentencing him, in each case, to suffer the penalty of death and to indemnify the victim in the amount of P100,000.00, as moral damages, and P50,000.00, as exemplary damages. Complainant Maylene (Mylene) Q. Maglente is accused-appellants own daughter. She is the eldest child of spouses Eriberto Maglente and Rebecca Q. Maglente.[2 Mylene and her two other sisters, Monalisa and Maritess, then aged 16 and 14, were left in the care of their father, as their mother Rebecca left on January 2, 1994 to work as a domestic helper in Hongkong.[3 In eight (8) separate complaints[4 filed on September 15, 1995, Mylene accused her father of raping her on eight different occasions in 1995. Except as to the date appearing therein, the complaints commonly allege as follows: The undersigned accuses ERIBERTO MAGLENTE y CABAHUG, father of the undersigned, of the crime of Rape, committed as follows: That on or about the [date[5] in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there wilfully, unlawfully and feloniously undress said MAYLENE MAGLENTE y QUENDANGAN, 17 years of age and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW. When arraigned, accused-appellant pleaded not guilty to the eight (8) charges of rape against him. The cases were then jointly tried. The prosecution presented complainant Mylene Q. Maglente who narrated how, on the eight (8) occasions mentioned in the informations, she was raped by her father. She testified:

On April 15, 1995, at about 3 oclock in the morning, while she was asleep in their house at 125 St. Catherine Street, Barangay Holy Spirit, Quezon City, she was awakened by accused-appellant. Thinking that it was time to prepare their breakfast, she proceeded to the kitchen. There, she was grabbed by accusedappellant who covered her mouth and told her not to make any noise, otherwise she would get hurt. Accused-appellant told her not to resist and dragged her to his bedroom. Once inside the bedroom, accused-appellant ordered her to sit on the bed as he placed his hand inside her t-shirt, lifted her bra, and fondled her breasts. Accused-appellant removed her shorts, touched her private parts, undressed her, and forcibly inserted his penis into her private organ. She could not remember how long accused-appellants penis was inside her private organ because she was afraid and did not know what to do. After she was released, she went to the bathroom and washed herself because she felt dirty. Afterwards, she went under the table and cried.[6 On April 28, 1995, at about 2 oclock in the morning, accused-appellant again raped her although, because of her resistance, he failed to achieve full penetration and only succeeded in rubbing his penis (kiniskis lang po niya pero hindi niya ipinasok) against the opening of her vagina (doon po sa pinakabuka). On that day, accused-appellant slept on the same bed with his children because their place was flooded and his bed got wet.[7 On May 1, 1995, accused-appellant again raped her. This was done inside complainants bedroom.[8 On May 24, 1995, she resisted accused-appellants sexual attack, but the latter boxed her. Accused-appellant thus succeeded in having sexual intercourse with her.[9 On June 20, 1995, accused-appellant arrived home drunk. He pulled her from her bed and took her to his bedroom where he ravished her. Accused-appellant also kissed and inserted his fingers into her private parts. As in previous instances, she did not complain to the police for fear that her two younger sisters might suffer the same fate she did.[10 On July 9, 1995, between 3:30-4:00 in the morning, accused-appellant took her to his bedroom where he raped her.[11 On July 31, 1995, accused-appellant was able to rape complainant despite her resistance by kicking her and thus rendering her helpless.[12 The rape was committed inside accused-appellants bedroom. On cross and re-crossexamination, she clarified the date to be July 31, 1995, and not July 30, 1995 as stated in her Salaysay, dated September 14, 1995, and in the transcript of stenographic notes.[13

Finally, on September 11, 1995, at about 1 oclock in the morning, complainant was again raped by accused-appellant inside his bedroom, hours after he had beaten up Mylene and her sisters.[14 On re-cross-examination, complainant said that the date (September 10, 1995) appearing in her Salaysay of September 14, 1995 and in the transcript of stenographic notes should read September 11, 1995.[15 Mylene left their house on September 11, 1995 and stayed in a friends house. Before doing so, however, she related her ordeals to her sister Monalisa. She kept quiet and never reported these rapes to any other person as she was afraid of accused-appellant until her grandaunt Maria Codera found her. On September 14, 1995, they sought the assistance of two police officers and proceeded to Police Station Six, SIID, CPDC on Commonwealth Avenue, Quezon City. Mylene gave her sworn statement (Exh. C)[16 to PO3 Jovencio Villacorte. Rebecca (complainants mother) also gave a sworn statement to PO3 Villacorte alleging that the rapes were reported to her by Paz Codera (Maria Paz Codera) when she was still in Hongkong.[17 Mylene wrote down on a piece of paper (Exh. B)[18 the dates, time, and behavior of accused-appellant when he raped her so that she could tell her mother when the latter arrived from abroad.[19 On cross-examination, Mylene reiterated her claim that accused-appellant had raped her on eight (8) different occasions enumerated in a piece of paper (Exh. B).[20 Complainants mother, Rebecca, filed a motion in the trial court seeking custody of Mylene as she was then in the care of Paz Codera. The motion was denied after Mylene refused to go with her mother and expressed a desire to live instead with her maternal grandparents, Samiro Quendangan and Auring Bungag.[21 Rebecca Maglente was scheduled to testify, but her testimony was dispensed with after the parties stipulated that Rebecca is legally married to accused-appellant and that Mylene is their daughter.[22 Dr. Rosaline O. Cosidon, medico-legal officer of the Philippine National Police (PNP), examined Mylene on September 13, 1995.[23 Her report (Exh. D)[24 reads in pertinent parts: FINDINGS: .... GENITAL : There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the congested labia minora presenting in between. On separating the same is disclosed a congested and elastic, fleshytype hymen with shallow, healed lacerations at 3, 6 and 9 oclock positions. External vaginal orifice

offers moderate resistance to the introduction of examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. REMARKS: Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa. Dr. Cosidon testified that Mylenes physical condition (non-virgin) could have been caused by the insertion of a foreign object.[25 She stated that the healed lacerations at 3, 6, and 9 oclock positions were more than seven days old but, due to the congestion at the labia minora, it was possible there was sexual intercourse two days before the examination.[26 In addition, she said, she found contusions in the following areas of Mylenes body: right knee (Exh. E-1), left knee (Exh. E-2), and left elbow (Exh. E-3) as shown in the Medico-Legal Sketch (Exh. E).[27 The contusions could be more than one day old or, possibly, two to three days old.[28 On cross-examination, she said that the non-virgin condition of Mylene was due to the laceration of her hymen which could have been caused by the insertion of a foreign object like an eggplant or by sexual intercourse or masturbation. The laceration was shallow because it did not penetrate the whole width or base of the hymen.[29 She corrected the statement in her report that there are no external signs of recent application of any form of trauma at the time of examination. She said that there actually were contusions sustained but through inadvertence she had failed to state this fact. A supplemental anatomical sketch was prepared after examining Mylene last September 13, 1995.[30 PO3 Jovencio Villacorte of Station 6, PNP, CPDC, SIID, IBP Lane on Commonwealth Avenue, Quezon City, said that on September 14, 1995 he conducted an investigation of the alleged rapes and prepared the affidavit of Mylene as well as the referral letter to the City Prosecutor of Quezon City.[31 Villacorte said that Mylene was accompanied by Paz Codera to their station. Mylene looked frightened and cried while she gave her statement, but she related her story without any assistance or coaching from Paz Codera.[32 The defense presented as its sole witness accused-appellant Eriberto Maglente y Cabahug. He testified that he formerly worked as a security guard while his wife

Rebecca Maglente worked as a manicurist and hair stylist until she left for Hongkong on January 2, 1994 to work as a domestic helper. The children were left to his care.[33 Testifying on the eight (8) occasions when he allegedly raped his daughter, accused-appellant said: On April 14, 1995, it being a Good Friday, he stayed at home and did not report for work. He did some laundry and at 3 oclock in the afternoon, he and his children went to the BF Homes Chapel, returning home at about 7 oclock in the evening. After supper, they watched television and slept at 10 oclock. He did not drink liquor before going to sleep. He woke up the following day, April 15, 1995, at 8 oclock in the morning and did not report for work. He did not get up from bed and go to his childrens bedroom before that time.[34 He recalled that the weather was very humid when he arrived home at 9 oclock in the evening on April 27, 1995. He slept at 10 oclock and woke up at 6 oclock the following morning, April 28, 1995. He denied that he got up from his bed before that time and went to the room of his daughter.[35 On May 1, 1995, it being a non-working day, he did not get up until 8 oclock in the morning, although his children woke up earlier. He went to bed between 10 oclock and 11 oclock in the evening of April 30, 1995 and did not get up earlier than 8 oclock in the morning of the next day in order to go to his childrens room. [36 On May 24, 1995, according to him, no unusual incident happened, particularly at 1:30 in the morning. He got up at 6 oclock in the morning on that day because he had to report for work. He denied having hit his daughter.[37 On June 20, 1995, he again woke up at 6 oclock in the morning. He denied he ever went to his childrens bedroom before that time.[38 He likewise denied that he went to the room of his children on July 9, 1995 at around 2:30 in the morning. He did not get up from bed until 8 oclock in the morning, as it was Sunday. He went to the market with his daughter Maritess. Mylene and Monalyn (Monalisa) stayed in the house to clean it.[39 On July 30, 1995, it being a Sunday, he did not get up from bed until it was 8 oclock in the morning. He denied getting out of his room at about 1 oclock that morning. He said that his children went to the house of their Aunt Maria (sister of his wife Rebecca) and visited their cousins and other relatives.[40 On September 10, 1995, he admitted, he had beaten his children (Napalo ko ang mga anak ko) because they had lost the key to their house. At that time, his

three children were already staying with their grandaunt, Paz Codera. Paz Codera is especially close to Mylene because she wanted to have Mylene as her own daughter. According to accused-appellant, after beating and scolding his children, he sent them to bed at 8 oclock that evening, while he watched television to forget his anger. He went to bed and slept at 10 oclock. He woke up the following morning, September 11, 1995, at 6 oclock and then went to work. When he arrived home that night, Mylene had already left.[41 Accused-appellant stated that Mylene probably filed the rape charges against him because he had beaten her. He surmised that Paz Codera instigated her to file the complaints because of a previous misunderstanding he had with her over a P25,000.00 loan which Paz Codera owed him.[42 Mylene Q. Maglente was recalled to the stand to disprove the claim of accusedappellant that Paz Codera was behind the filing of the rape charges against accused-appellant. She also denied that there was a misunderstanding between Paz Codera and accused-appellant regarding money matters.[43 Mylene stated that her father had advanced the payment for the house of Paz Codera, but the latter had since repaid the loan. She said Paz Codera had been supportive of her since the time of filing of the cases.[44 The trial court warned complainant that, if proven guilty, her father could be sentenced to death. However, complainant stood by her testimony that accusedappellant indeed raped her.[45 On April 8, 1996, the trial court rendered a decision finding accused-appellant guilty of all counts of rape. The dispositive portion of its decision reads as follows: WHEREFORE, the Court finds ERIBERTO MAGLENTE Y CABAHUG guilty beyond reasonable doubt for eight (8) counts of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659 and is hereby sentenced to suffer the penalty of: 1. DEATH for Criminal Case No. Q-95-63093; 2. DEATH for Criminal Case No. Q-95-63094; 3. DEATH for Criminal Case No. Q-95-63095; 4. DEATH for Criminal Case No. Q-95-63096; 5. DEATH for Criminal Case No. Q-95-63097; 6. DEATH for Criminal Case No. Q-95-63098; 7. DEATH for Criminal Case No. Q-95-63099; and,

8. DEATH for Criminal Case No. Q-95-63100. Said accused is likewise ordered to pay the complainant the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS as moral damages and FIFTY THOUSAND (P50,000.00) PESOS as exemplary damages. SO ORDERED. Accused-appellant assails the judgment of conviction, contending that: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE INCONSISTENCIES OF THE TESTIMONY OF THE COMPLAINANT AND THE INSUFFICIENCY OF THE ENTIRE EVIDENCE FOR THE PROSECUTION. II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE PROSECUTION FAILED TO PROVE THE ACCUSEDAPPELLANTS GUILT BEYOND REASONABLE DOUBT. Accused-appellants contentions will be discussed seriatim. To begin with, it is hardly necessary to say that the trial courts findings carry great weight and deserve respect and will be sustained on appeal unless the court overlooked some facts or circumstances of weight and substance which will alter its findings. The evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses and their demeanor, conduct, and attitude, especially under cross-examination.[46 In these cases, the Court notes the categorical, clear, and positive testimony of Mylene regarding every incident of rape committed against her by accused-appellant and how, despite withering crossexamination by the defense counsel, she remained steadfast in her claim that her father had violated her. Our own review of Mylenes testimony confirms the conclusion of the trial court that her testimony deserves full faith and credence.
Alleged Inconsistencies in Complainants Testimony

Accused-appellant claims that the prosecutions evidence is contradictory and is flawed due to serious inconsistencies and improbabilities in material points. He cites the testimony of complainant on direct examination that she remembered the dates she was allegedly raped by accused-appellant because she wrote them down[47 and her answer to the question of the court that the dates were written on the piece of paper marked Exhibit B in one sitting only. On this point, the transcript of stenographic notes shows the following:[48 ATTY. URBANO: [on cross-examination] ....

You earlier produced a piece of paper with dates thereon. My question is - When did you write those dates[?] A The first time he raped me, sir. Q You mean to say you already prepared all those dates during the first time that you were allegedly raped by your father? A No, sir. I had to think hard on what to do so that my mother would know what was happening, sir. Q I am showing to you this piece of paper earlier marked as Exh. B. Madam Witness, I noticed that all these writings are in black. Do you mean to say that you only used one ballpen in writing these? ANSWER: Yes, sir . Q And you were able to religiously write these dates. A The other dates I failed to write down on that list but I had to look at the calendar and from there I could tell on the dates that he raped me, sir. Q So you were not contradicting your earlier testimony that you wrote down each date after each rape that occurred. A Others I recall but others I wrote down because I was too busy, I have to go to school, I have to attend my classes and then upon arrival at home, I have to do the household chores, sir. COURT: All right, this handwriting containing the dates from April 15, 1995 to September 10, 1995, did you write the entries in this document on different dates or on one date only. A I only wrote that down in one (1) sitting, sir. ATTY. URBANO: And I understand that you wrote all these dates on September 13, 1995, is that correct? A Yes, sir. It is apparent that complainant could not follow the line of questioning. Thus, although to the question when did you write those dates? she answered, The first time he raped me, sir, when further queried, You mean to say you already prepared all those dates during the first time that you were allegedly raped by your father?, she categorically said, No, sir. What is clear is that the dates she wrote on Exhibit B were written in one (1) sitting on September 13, 1995 based

on what she had previously recorded with respect to some dates and on what she remembered after consulting the calendar. The defense also tried to show another seeming contradiction in the testimony of complainant:[49 ATTY. URBANO: [on cross-examination] .... Q You also said that on April 14 you slept at about 9:00 oclock in the evening and woke up the following morning at 6:00 oclock in the morning. . . COURT: [To the cross-examiner] Where is that? ATTY. URBANO: I am referring to page 19 of the transcript, your Honor. First question-- What time did you go to bed in the night of April 14, 1995? Answer-- 9:00 oclock, sir. And then-- What time did you wake up the following morning? A-- 6:00 oclock, sir. .... QUESTION: So how would you explain your two (2) conflicting answers? On the one hand you woke up at 6:00 oclock in the morning and that you were raped at 3:00 oclock in the morning of the same day, April 15, 1995? ANSWER: It is really true that he raped me on April 15, sir. Q How would you explain that there is a conflict in your answer, how will you explain? A Because what he really did to me was painful and I felt it that is why I remembered, sir. .... QUESTION: You mean to say, Madam Witness, that after you were raped by your father, you were able to sleep? ANSWER:

No more, sir. Q So why did you say that you woke up at 6:00 oclock on the said date? A Because I did not go back to sleep anymore and I prepared our food because that has been my usual work to prepare our breakfast, sir. It is clear that although complainant said she woke up at 6 oclock in the morning, thereby seemingly belying her claim that she had earlier been raped by accusedappellant at 3 oclock, what she meant was that she got out of bed at 6 oclock in the morning. However, she had been awake since 3 oclock after she had been abused. Alleged discrepancies in the dates when complainant said she was raped were explained by her as follows:[50 Q What about on July 30, 1995, do you remember of any unusual incident that happened to you? A There was, sir. It was in their bedroom that he raped me, sir. Q When you say their room (kuwarto nila), which room? A The room of my father and mother, sir. .... Q When you said that you were raped, are you trying to say, Madam Witness, that he was able to penetrate your vagina? COURT: When? ATTY. URBANO: On that particular date, your Honor, July 30? ANSWER: Yes, sir because even if I was putting a fight I could not do anything because my sisters were not present and we were in their room. QUESTION: During the last hearing, Madam Witness, you identified the Sinumpaang Salaysay which was marked as Exhibit C, and this exhibit, this sworn statement you executed before the police, you answered to the question Matatandaan mo ba kung anu-anong petsa at oras ang mga pangyayaring ito?

COURT: What question? ATTY. URBANO: Question No. 6, your Honor, and in particular-- you said that on the 7th time-- ika-pito po ay ika 30 ng Hulyo, 1995, ala 1:40 ng madaling araw. .... A The truth is the rape occurred on July 31 and that was the last day when my Auntie arrived and so we have to leave for the province, sir. Q So you are saying now in your testimony that this alleged rape took place on July 30 is not correct? So there was no rape on July 30? A No, sir. It was on July 31. Q So you are saying that your testimony in this Court in this particular instance is not correct? A Everything that I have stated in this Court are correct and maybe the date only is not correct because what you said is July 30. Q Are you saying, Madam Witness, that there were two (2) rapes on July 30 and July 31? A No, sir. Only once and that was on July 31. Q So on September 10, 1995, Madam Witness, do you remember of any unusual incident which happened to you? A Yes, sir. ATTY. URBANO: [on cross-examination] QUESTION: And what was that? ANSWER: He beat us up (binugbog kami), sir. Q To whom are you referring to as the one who beat you up? A My father, sir. After beating us, he used (ginamit) me.

Q What do you mean by he used you? A He raped me, sir. Q When did he rape you? A September 10, sir. Q What time? A I think it was 3:00 oclock, sir. Q Three (3:00) oclock in the morning or in the afternoon? A Early morning, sir. Q Do you still recall, Madam Witness, what date you returned to your house...I withdraw the question, your Honor. Before September 10, 1995, Madam Witness, where were you staying? A At the house of my Auntie which is near our house at Fairview, sir. Q And how long have you been staying at your Aunties house before September 10, 1995? A Since we returned from the province I have been staying with my Auntie and before he raped me, I went to Sacrifice Valley and when I returned my Auntie was no longer there so I had to sleep in our house and that was the time I was raped, sir. ATTY. URBANO: [on cross-examination] QUESTION: So when exactly did you return to your house, Madam Witness? ANSWER: In the afternoon of September 9[51 which was a Sunday, sir. Q You mean to say that you returned to your house on Sunday of that date, Madam Witness? A It was Sunday afternoon that I went home. That was the time we were beaten up and early morning I was raped and when I can not endure any longer I left our house the following morning, sir. Q So it is not possible that you were raped on September 10, 1995 because September 10 is a Sunday and you said that you were raped at the early morning at 3:00 oclock of September 10, 1995, the following day?

COURT: [To the cross-examiner] She said she went back on the 9th. She went back to the house on the 9th and then early morning, the following day, that was the time when she was raped. ATTY. URBANO: According to her, your Honor, after she was beaten up, she was raped. COURT: Yes, in the morning already. ATTY. URBANO: September 11? COURT: September 9 she went home. The following morning, September 10. All right, you ask your question. ATTY. URBANO: [on cross-examination] QUESTION: Madam Witness, you earlier testified that you were raped on September 10 at 3:00 oclock in the morning, are you maintaining that answer? ANSWER: Yes, sir because that was a Sunday. Q And that you were raped after your father beat you up and your other sisters, is that what you are saying? A Yes, sir. Q So you mean to say, Madam Witness, that your father beat you up and your sisters on Saturday, September 9? A We came back from Sacrifice Valley early morning of Sunday then at about 6:30 in the evening on the same day, we were beaten up by my father and then I was raped at about 3:00 oclock in the morning of Monday, sir. Admittedly, there are certain discrepancies in the testimony of complainant regarding the exact dates she was allegedly raped. The lapses, however, are inconsequential and are doubtless due to the fact that complainant was raped in

the wee hours of the morning, between 2 oclock and 3 oclock in the morning. A young girl like complainant could easily be mistaken as to the date the incident happened, i.e., whether it was on July 30 or July 31, 1995 (when complainant was allegedly raped for the seventh time), and whether it was on September 10 or September 11, 1995 (when she was allegedly raped for the eighth time). If the discrepancies amounted to differences in dates in the magnitude of the difference, say, between July 20 and July 31, 1995 or between September 1 and September 11, 1995, there might arise doubt as to the truthfulness of complainant. But that is not so in these cases. The lapses are insignificant and they are to be expected of a young and inexperienced girl like complainant. Far from detracting from her veracity, these minor inconsistencies in fact tend to bolster it.[52 Indeed, anyone reading complainants testimony given during cross-examination will not fail to be impressed by the earnestness and candor with which it was given:[53 ATTY. URBANO: [on cross-examination] .... Q So you admit also, Madam Witness, that the dates and time you wrote in that list may not be correct, is that correct, Madam Witness? A They are all correct, sir. Q How can you say that it is correct when you just try to recall those dates and time in one sitting, Madam Witness? A I am sorry, they are all correct because if the same thing happen to anybody, it will always be remembered just as I have remembered all the kababoyan that was done to me, sir. . . . It is indeed incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt but to justify acquittal based on reasonable doubt, the doubt should relate to the facts constitutive of the crime charged.[54 Discrepancies should touch on significant facts which are crucial to the guilt or innocence of an accused.[55 Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime are not grounds for acquittal.[56 We stress that the exact date when complainant was sexually abused is not an essential element of the offense of rape.[57 What is material in a rape case is the commission of the rape by the accused-appellant against the complainant. Thus, Art. 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides: Article 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and, 3. When the woman is under twelve years of age or is demented. . . .
Complainants Inconsistency as to Whether or not

Commission of Rape is an Unusual Incident

Accused-appellant makes much of the fact that when asked whether or not an unusual incident took place on the dates she was allegedly raped, she said there was no unusual incident that happened to her on May 1, 1995 (when she was allegedly raped for the third time), May 24, 1995 (when she was allegedly raped for the fourth time), and July 9, 1995 (the sixth time she was allegedly raped), while there was no testimony to that effect regarding the alleged rape on June 20, 1995. Again it is clear complainant did not understand what the phrase means. Complainants statement that no unusual incident happened on the specified dates was amply explained by her during the re-direct examination from which it is clear that she did not really understand what the phrase unusual incident means. She testified:[58 ATTY. QUENDANGAN: [on re-direct examination] .... Q Madam Witness, during your direct examination, another question was put to you, quote - When for the third time did your father rape you? Answer - May 1, sir. Do you still recall that? A Yes, sir. Q During your cross-examination, a question on the same matter was put to you, quote - So do you remember of any unusual incident on that date, May 1, 1995? Answer - No, sir. I cannot remember. Do you still remember that? A Yes, sir. Q Madam Witness, would you describe or refer on that rape which transpired on May 1, 1995 as an unusual incident? A Yes, sir. COURT:

Now, if you regard that third rape as an unusual incident, why did you answer on cross-examination that nothing unusual happened on May 1? A I was raped on May 1, sir. It was an unusual incident, sir. COURT: How come that on cross-examination, you said that no unusual incident happened on May 1. A Yes, sir. I was really raped on May 1. In fact, I had been raped eight (8) times until September 10, sir. The truth is, I was really raped. COURT: On May 1? A Yes, sir. COURT: Proceed. ATTY. QUENDANGAN: Also during the direct examination Madam Witness, a question was put to you, quote - When for the fourth time did he again rape you? Answer - May 24, sir. Do you remember that? A Yes, sir. Q And in cross-examination, a question was put by Atty. Urbano to you, quote - On May 24 Madam Witness, do you remember any unusual incident that happened to you? Answer - None, sir. Do you recall that? A Yes, sir. COURT: Why did you answer that no unusual incident happened when according to you [you] were raped. A Yes, sir, I was really raped on that occasion. ATTY. URBANO: Your Honor, may I move that the answer of the witness be stricken off the record for not being responsive to the question. COURT:

Let it remain on record. [to the witness] The question is - when you were asked if there was an unusual incident that happened on May 24, you said none. And yet you said that you were raped on that date. Do you consider being raped not an unusual incident? A Yes, sir. That was an unusual incident because I had been raped eight (8) times. COURT: Then why did you say on cross-examination, when you were asked, if there is an unusual incident that happened on May 24 and you answered none. A I only made a mistake that time, sir. COURT: What was your mistake? That nothing happened or you were raped? A Because I was already confused when I was being asked, sir. COURT: Proceed. ATTY. QUENDANGAN: [on re-direct examination] Will you please tell the Honorable Court Madam Witness your understanding of the question unusual incident . ANSWER: The way I understood it was that nothing happened, sir . Q On direct examination Madam witness, I asked you the question, quote - Now, when for the sixth time did your father, Eriberto, raped you? Answer - July 9, sir. Do you still recall that? A Yes, sir. Q But during cross-examination, a question was put to you by Atty. Urbano, quote - What about on July 9? Answer - None, sir. Do you also recall that? A Yes, sir. I remember that.

Q Madam Witness, would you describe or refer on that rape which transpired on July 9, 1995 as an unusual incident? .... ANSWER: No, sir . COURT: What do you mean no, sir. Do you consider being raped unusual or not unusual. A Its an unusual incident, sir.
Complainants Clarification of the Discrepancies and

Contradictions in her Testimony

Complainant clarified the discrepancies as to the dates she was sexually assaulted and her answers that she did not regard the incidents unusual. She explained:[59 ATTY. URBANO: [on re-cross-examination] So when did again the alleged rape took place. ANSWER: After we were beaten up and that was on a Sunday, the following early morning, that was the time when I was raped. So that means it is September 11 already, sir . .... Q You testified a while ago Madam Witness that during your direct testimony, you said that the seventh rape took place on July 31. When in truth and in fact, during your direct, you actually said July 30, 1995. So do you admit that your statements are conflicting or one maybe true or the other maybe correct and the other is not true. A The other one is correct, sir. Q So which one is correct now? A The July 31, sir. .... ATTY. URBANO: [on re-cross-examination]

Madam Witness, you said in your direct that you were raped on May 1, 1995. Then when I asked you during cross if there was an unusual incident which happened on May 1, 1995 you said there was no unusual incident. So you admit Madam Witness that one of this answer is correct and one is not correct. ANSWER: The correct one is that I was raped on May 1 and the truth is it was an unusual incident because I remember when he raped me, sir, and pangkaraniwan nyang ginawa sa akin yon. ATTY. URBANO: Your Honor, may we make it of record that the witness refused to answer the question. COURT: No. What the Court observes is that when the Court is trying to make the witness answer, she was crying . ATTY. URBANO: So you mean to say now Madam Witness, the raping done by your father is not an unusual incident. ATTY. QUENDANGAN: Already answered your Honor. COURT: Witness may answer for clarification. ANSWER: Yes, sir . ATTY. URBANO: But you just testified Madam Witness during your re-direct that such act of your father is not usual incident. So how would you now explain your disconflicting (sic) answer. PROS. REAS: That is misleading question, your Honor. The manifestation of counsel earlier your Honor, the word di pangkaraniwan was referred to the incident which happened on a particular date. But not on the act of the father in raping the girl. That is misleading question. ATTY. URBANO:

Your Honor, may I know to which act the counsel was referring to when he asked the witness during re-direct di pangkaraniwang pangyayari. ATTY. QUENDANGAN: The di pangkaraniwang pangyayari was referred only to three (3) instances. The May 1, May 24 and July 9. I shoot that phrase only on those three (3) instances, your Honor. ATTY. URBANO: So am I correct to say your Honor that when the counsel, the Private Prosecutor was asking the witness about unusual incident, he is not referring to the rape act of the father. ATTY. QUENDANGAN: There are eight (8) incidents your Honor. I asked only on three (3) incidents. It does not refer to other incidents. In reviewing the evidence in these cases, the Court has been guided by the following principles set forth in previous cases, to wit:[60 1. That an accusation for rape can be made with facility, and while the commission of the crime may not be easy to prove, it becomes even more difficult, however, for the person accused, although innocent, to disprove; 2. That in view of the intrinsic nature of the crime of rape where only two persons normally are involved, the testimony of the complainant must always be scrutinized with great caution; and, 3. That the evidence for the prosecution must stand or fall on its own merits and should not be allowed to draw strength from the weakness of the evidence for the defense.
Alleged Improbabilities in Complainants Testimony

Accused-appellant argues that on April 28, 1995, when he allegedly raped his daughter for the second time, the latter did not put up any resistance or make any noise to wake up her two sisters who were sleeping beside her. In effect, he is saying there was lack of force or intimidation. Mylene testified that the sexual assaults by accused-appellant were all attended by force and threats which rendered her resistance futile. Indeed, as this Court said in People v. Matrimonio,[61 the test is whether the threat or intimidation produces a reasonable fear in the victim that if she resists or does not yield to the desires of the accused, the threat would be carried out. Where resistance would be futile, offering none at all cannot amount to consent to the sexual assault. And, in a rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter sufficiently takes the place of violence or intimidation. That ascendancy or influence flows from the fathers

parental authority over his children and from the latters correlative duty to obey and observe reverence and respect towards the former. Accused-appellant contends that he could not have raped Mylene inside her bedroom because his two other daughters were sleeping there. Complainant was asked this question and her answer was that if her sisters were in fact awakened by her struggle as her father abused her and they knew what was going on, they did not tell her: Q Is anyone of your sisters awakened when that incident was taking place? A I am not aware if they were awakened or if they have seen it or they do not just want to tell me if they knew about it, sir.[62 Indeed, it is common judicial experience that rapists are not deterred from committing their odious act by the presence of people nearby.[63 Lust is no respecter of places,[64 it has been said. In these cases, the commission of the crime was effectively aided by the fact of accused-appellants great moral ascendancy over complainant, which prevented the latter from making an outcry as she could have done were it another person who committed the sexual assaults against her. Finally, accused-appellant contends:[65 It is worthy to note that even prosecution witness, Dr. Cosidon testified on her findings of the physical examination of the private complainant done two days after the alleged rape on September 11, 1995 to the effect that: There are no external signs of recent application of any form of trauma at the time of examination. The vaginal and peri-urethral smear are negative for gram-negative diplococci and for spermatozoa. This fact is very material considering the positive testimony of the accused that she was raped two days before said medico-legal examination. The accused is well-aware of the fact that jurisprudence has ruled that the absence of spermatozoa when private complainant is examined does not negate the commission of rape. However, it is submitted that this rule applies only when there is a clear evidence to show that said act was committed. In this regard, this rule should not be applied in the case at bar as there is sufficient evidence to show that the complained act did not take place at all. Thus, the absence of spermatozoa should be seriously considered and weighed heavily in the determination of the accuseds innocence. As already stated, the evidence of the prosecution shows beyond doubt that accused-appellant raped his daughter eight (8) times. Moreover, such crime is consummated when the penis touches the pudendum, however slightly.[66 In rape cases, a broken hymen is not an essential element thereof. Accused-appellant says that Paz Codera, who is childless, is behind the filing of the charges against him. He claims that Paz wants to take Mylene as her own. It will suffice to say that accused-appellant has presented no evidence to prove this assertion, let alone that the allegation is silly.

The Court is convinced beyond a shadow of doubt that accused-appellant committed the eight (8) counts of rape alleged in the informations against his daughter. The trial court correctly held accused-appellant guilty of each count of rape. Indeed, Mylene spoke in a simple and forthright manner. She maintained her testimony even after the trial court had warned her that her father could be meted out the death penalty if found guilty of the charges. Her testimony is corroborated by medical findings that she suffered lacerations in her hymen. Against such evidence of the prosecution, the bare denial of accused-appellant cannot prevail.[67 Denial is an intrinsically weak defense which must be buttressed by strong evidence of non-culpability to merit credibility.[68 In these cases, complainants testimony is entitled to greater weight because it is against her own father.[69 We cannot believe she would fabricate charges against her father if the charges were not true. At one point, Mylene broke down while testifying.[70
Lack of Sufficient Evidence As to Complainants Age

We think, however, that the trial court erred in applying in these cases the provision of Art. 335 of the Revised Penal Code, as amended by 11 of R.A. No. 7659, that the penalty of death shall be imposed on the offender in rape cases if the victim is under eighteen (18) years of age and the offender is a parent . . . of the victim. The concurrence of the minority of the victim and her relationship to the offender is a special qualifying circumstance which should be both alleged[71 and proved[72 with certainty in order to warrant the imposition of the death penalty. In these cases, complainant never said she was below 18 years of age when she was allegedly raped by her father on any of the dates stated in her complaints, i.e., April 15, April 28, May 1, May 24, June 20, July 9, July 31, and September 10, 1995. That she was so is merely a deduction (1) from her Salaysay, dated September 14, 1995, and her testimony in court on November 7, 1995[73 when, in stating her personal circumstances, she said she was 17 years of age, and (2) from her answer to the question how old she was, when asked by the defense counsel on November 14, 1995.[74 On the other hand, the decision of the trial court contains no express and categorical finding that complainant was below 18 when she was raped to justify the imposition of the death penalty on accused-appellant. The trial courts references to the age of complainant on November 7, 1995 were made in connection with the motion filed by Rebecca Maglente for custody of complainant. Even then, the courts references to complainants age are equivocal. Thus, in its order, dated November 7, 1995,[75 the court stated it was denying Rebeccas motion for custody for the additional reason that complainant was more than 17 years of age now [i.e., November 7, 1995]. In the course of the proceedings for custody held that day, November 7, 1995, the court said:

Although as I said, the Motion for Custody should be filed before the proper forum and that is the Courts who are designated to try cases regarding Juvenile and Domestic Relations cases. But as you said Atty. Urbano, considering that the rape cases is with this sala, the Presiding Judge could also resolve the pending motion. Now, before resolving the Motion for Custody, I would like to ask the complainant considering that she is past 17 years of age, according to her, where her last birthday is August 21, 1995, she turned 17.[76 The statements complainant was more than 17 years of age and past 17 years of age are susceptible of varying interpretations. They could mean she was 18 years of age, in which case the death penalty could not be imposed, just as they could mean complainant was 17 years and a few days or months, in which case the imposition of the death penalty would be justified. Of course, the trial court also mentioned August 21, 1995 as complainants last birthday. The records do not, however, show when complainant said this to be her last birthday or that she said this at all. At all events, it is the burden of the prosecution to prove with certainty the fact that the victim was below 18 when the rapes were committed in order to justify the imposition of the death penalty. The fact that accused-appellant has not denied the allegation in the complaints that Mylene was below 18 years of age when any of the crimes was committed cannot make up for the failure of the prosecution to discharge its burden. Because of its failure to discharge this burden and the corresponding failure of the trial court to make a categorical finding as to the minority of the victim, we are constrained to hold that the qualifying circumstance of minority and relationship cannot be appreciated in these cases. It is different with regard to the relationship of the offended party and accused-appellant, because the latter admitted that complainant is his daughter. Perforce, the death penalty imposed by the trial court in each of the eight (8) cases should be reduced to reclusion perpetua as provided in the second paragraph of Art. 335 of the Revised Penal Code, as amended. The award of damages made by the trial court should likewise be modified. Under present case law, the award of P50,000.00 for civil indemnity is mandatory upon the finding of the fact of rape.[77 Hence, accused-appellant should be ordered to pay complainant the total amount of P400,000.00. In addition, he should be ordered to pay in each case moral damages in the amount of P50,000.00. This award is to be given even if there is neither allegation nor evidence presented as basis therefor.[78 But the award of exemplary damages in the amount of P50,000.00 should be disallowed for lack of basis.[79 WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 78, is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case Nos. Q-95-63093-100, accused-appellants sentence in each case is reduced to reclusion perpetua. (2) In Criminal Case Nos. Q-95-63093-100, accused-appellant is ordered to pay the offended party, Mylene Q. Maglente, the amount of P50,000.00 in each case, or the total of P400,000.00, as indemnity. (3) In Criminal Case Nos. Q-95-63093-100, accused-appellant is also ordered to pay P50,000.00 in each case, or the total of P400,000.00, as moral damages. (4) In Criminal Case Nos. Q-95-63093-100, the award of P50,000.00 as exemplary damages is deleted. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. EN BANC [G.R. Nos. 144340-42. August 6, 2002] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RODELIO AQUINO y RODA, AccusedAppellant. RESOLUTION PER CURIAM: Appellant Rodelio Aquino y Roda filed this Motion for Reconsideration asking the Court to reconsider its Decision of April 17, 2002, which held him guilty of qualified rape. The relevant portion of the Decision reads: To warrant the imposition of the supreme penalty of death in qualified rape under Article 266-B (1) of the Revised Penal Code, the concurrence of the minority of the victim and her relationship to the offender must be specifically alleged and proved with equal certainty as the crime itself. In the instant case, the Information alleges that the child-victim was a five-year old minor and appellant was the child-victims uncle. The prosecution presented Charlaines birth certificate to prove her age. This undisputed circumstance standing alone, qualifies the rape. Under Article 266-B (5) of the Revised Penal Code, the death penalty is mandated in rape cases "when the victim is a child below seven (7) years old. The qualifying circumstance of relationship was also undisputedly proven by the prosecution. The child-victims mother, Winnie Bautista, testified in court that appellant is her brother, making appellant a blood relative of the victim within the third civil degree. Moreover, appellant categorically admitted during trial that the child-victim is his niece. (Decision, pp. 19-20) Appellant argues that he should only be convicted of simple rape because while the age of the complainant(s) as well as their relationship to the accused-appellant were (sic) stated in the

Information(s), the same were not alleged particularly to qualify the offense charged.[1 Appellant contends that this failure to charge him specifically with the qualified offense bars the imposition of the death penalty upon him. We deny the Motion for Reconsideration. Appellant anchors his Motion for Reconsideration on two recent cases -People v. Manlansing[2 and People v. Alba.[3 In People v. Manlansing, the Court, citing People v. Alba, disregarded the qualifying circumstance of treachery, ruling that We noted in Gario Alba, that although the circumstance of treachery was stated in the Information, it was not alleged with specificity as qualifying the killing to murder. Since the Information in Gario Alba failed to specify treachery as a circumstance qualifying the killing to murder, treachery was considered only a generic aggravating circumstance, hence, we said that the crime committed in Gario Alba was homicide and not murder.[4 (Emphasis supplied) However, the Court has repeatedly held,[5 even after the recent amendments to the Rules of Criminal Procedure, that qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an offense. The Court has repeatedly qualified cases of rape[6 where the twin circumstances of minority and relationship have been specifically alleged in the Information even without the use of the descriptive words qualifying or qualified by. In the recent case of People v. Lab-eo,[7 the appellant there questioned the decision of the lower court raising the killing to murder. The appellant there argued that he could only be convicted of homicide since the Information merely stated that the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended the commission of the offense. The appellant also asserted that since the circumstances were merely described as aggravating and not qualifying, he should only be convicted of the lesser crime of homicide. On this score, the Court ruled that The fact that the circumstances were described as aggravating instead of qualifying does not take the Information out of the purview of Article 248 of the Revised Penal Code. Article 248 does not use the word qualifying or aggravating in enumerating the circumstances that raise a killing to the category of murder. Article 248 merely refers to the enumerated circumstances as the attendant circumstances. [8 Article 266-B of the Revised Penal Code, as amended by RA No. 8353,[9 states that the death penalty shall be imposed in the crime of rape if any of the aggravating/qualifying circumstances mentioned in Article 266-B is present. Prior to RA No. 8353, Article 335 of the Revised Penal Code, as amended by RA No. 7659,[10 penalized qualified rape with the death penalty when any of the attendant circumstances mentioned in Article 335 was present. The present law uses the words aggravating/qualifying circumstances in referring to the attendant circumstances that qualify rape to a heinous crime punishable by death. The old law referred to these circumstances as the attendant circumstances. The change in the wording did not make the use of the words aggravating/qualifying circumstances an essential element in specifying the crime in the Information. As in the old law, the essential element that raises rape to a heinous crime is the attendance of a circumstance mentioned in Article 266-B. As an essential element of the heinous crime, such attendant circumstance must be specifically alleged in the Information to satisfy the constitutional requirement that the accused must be informed of the

nature of the charge against him. The use of the words aggravating/qualifying circumstances will not add any essential element to the crime. Neither will the use of such words further apprise the accused of the nature of the charge. The specific allegation of the attendant circumstance in the Information, coupled with the designation of the offense and a statement of the acts constituting the offense as required in Sections 8 and 9 of Rule 110, is sufficient to warn the accused that the crime charged is qualified rape punishable by death. The change in the wording from attendant circumstances to aggravating/qualifying circumstances did not signify a change in the law. As used in Article 335 (old provision on qualified rape), the words attendant circumstances referred to the circumstances that changed the nature of the crime when these circumstances were present in the commission of the crime. As used in Article 266-B (new provision on qualified rape), the words aggravating/qualifying circumstances also refer to the circumstances that change the nature of the crime when these circumstances are present in the commission of the crime. The words aggravating circumstances include qualifying circumstances.[11 Qualifying circumstances are aggravating circumstances which, by express provision of law, change the nature of the crime to a higher category. The words attendant circumstances, which still appear in Article 248 (raising homicide to murder), refer to qualifying circumstances -those aggravating circumstances that, by express provision of law, change the nature of the crime when present in the commission of the crime. Section 9, Rule 110 of the Revised Rules of Criminal Procedure states that thex x x 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 x x x (the) qualifying and aggravating circumstances x x x. Thus, even the attendant circumstance itself, which is the essential element that raises the crime to a higher category, need not be stated in the language of the law. With more reason, the words aggravating/qualifying circumstances as used in the law need not appear in the Information, especially since these words are merely descriptive of the attendant circumstances and do not constitute an essential element of the crime. These words are also not necessary in informing the accused that he is charged of a qualified crime. What properly informs the accused of the nature of the crime charged is the specific allegation of the circumstances mentioned in the law that raise the crime to a higher category. The rules require the qualifying circumstances to be specifically alleged in the Information in order to comply with the constitutional right of the accused to be properly informed of the nature and cause of the accusation against him.[12 The purpose is to allow the accused to prepare fully for his defense to prevent surprises during the trial.[13 The Information in the instant case passes this test. The Information readsSometime in October 1999, in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, being the uncle of the 5-year old Charlaine Bautista, with lewd designs, did then and there willfully, unlawfully, and feloniously have sexual intercourse with said Charlaine Bautista, by then and there touching her vagina and inserting his penis in her vagina, against the latters will and consent.

Contrary to law. The Information clearly forewarns the accused that the circumstances of minority and relationship attended the commission of the crime. It specifically states that the child-victim is a five-year old minor while also specifically alleging that the accused is the child-victims uncle. These allegations, once proven beyond reasonable doubt, qualify the rape to a heinous crime. The appellant never raised in the trial court the argument that he was not apprised of the charges against him because of an alleged defect in the Information. Not even in his appellants brief did he remotely suggest that the Information was defective or insufficient. Section 8 of Rule 110 requires that the 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. (Emphasis supplied) Section 8 merely requires the Information to specify the circumstances. Section 8 does not require the use of the words qualifying or qualified by to refer to the circumstances which raise the category of an offense. It is not the use of the words qualifying or qualified by that raises a crime to a higher category, but the specific allegation of an attendant circumstance which adds the essential element raising the crime to a higher category. In the instant case, the attendant circumstances of minority and relationship were specifically alleged in the Information precisely to qualify the offense of simple rape to qualified rape. The absence of the words qualifying or qualified by cannot prevent the rape from qualifying as a heinous crime provided these two circumstances are specifically alleged in the Information and proved beyond reasonable doubt. We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the Information allege, specify or enumerate the attendant circumstances mentioned in the law to qualify the offense. These circumstances need not be preceded by the words aggravating/qualifying, qualifying, or qualified by to be considered as qualifying circumstances. It is sufficient that these circumstances be specified in the Information to apprise the accused of the charges against him to enable him to prepare fully for his defense, thus precluding surprises during the trial. When the prosecution specifically alleges in the Information the circumstances mentioned in the law as qualifying the crime, and succeeds in proving them beyond reasonable doubt, the Court is constrained to impose the higher penalty mandated by law. This includes the death penalty in proper cases. Unfortunately, this is one of those cases. The allegation of the twin circumstances of minority and relationship in the Information, which were proven beyond reasonable doubt during the trial, compels the Court to impose the death penalty. To guide the bench and the bar, this Resolution clarifies and resolves the issue of how to allege or specify qualifying or aggravating circumstances in the Information. The words aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by need not be expressly stated as long as the particular attendant circumstances are specified in the Information. WHEREFORE, the Motion for Reconsideration is DENIED and the Decision of the Court dated April 17, 2002 is AFFIRMED. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur. EN BANC [G.R. Nos. 132625-31. December 18, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NOEL SANDOVAL, accused-appellant. DECISION YNARES-SANTIAGO, J.:
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For ravishing his two (2) minor step-daughters, Noel Sandoval was charged in seven (7) separate Informations with seven (7) counts of Rape, five of which were committed against Teresa Micu, then thirteen (13) years old, and two counts of statutory rape committed against Victoria Rhea Micu, then only eleven (11) years old as evidenced by her Birth Certificate.[1 The Informations were filed before the Regional Trial Court of Dagupan, Pangasinan, Branch 42, and allege as follows:
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In Criminal Case No. 97-01815-D

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That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent, to the damage and prejudice of the latter.
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CONTRARY TO LAW.

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In Criminal Case No. 97-01816-D

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That on or about May 9, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
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CONTRARY TO LAW.

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In Criminal Case No. 97-01817-D

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That on or about April 24, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against

her will and consent, to the damage and prejudice of the latter. CONTRARY TO LAW.
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In Criminal Case No. 97-01818-D

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That on or about April 18, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
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CONTRARY TO LAW.

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In Criminal Case No. 97-01819-D

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That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
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CONTRARY TO LAW.

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In Criminal Case No. 97-01820-D

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That sometime in April 2, 1997 in the evening thereof, at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the stepfather, by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in their conjugal house with VICTORIA RHEA F. MICU, who is under twelve (12) years old, against her will and consent, to her damage and prejudice.
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CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659. In Criminal Case No. 97-01821-D
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That sometime in April 5, 1997 in the evening thereof, at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the stepfather, by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in their conjugal house with VICTORIA RHEA F. MICU, who is under twelve (12) years old, against her will and consent, to her damage and prejudice.
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CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659.

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Accused-appellant was arraigned on July 23, 1997 for the first five (5) counts of rape, wherein he pleaded NOT GUILTY. The following day, the Public Prosecutor filed a Motion for Leave to Amend the five (5) criminal complaints to allege the relationship of the victim and the accused. On July 31, 1997, accused-appellant was scheduled to be arraigned for the other two (2) counts of rape but he failed to appear because of lack of notice on the Provincial Warden. At this point, the Public Prosecutor called the attention of the Court to the Amended Informations he filed in the first five (5) cases, to which accused-appellant has already been arraigned and has pleaded not guilty on July 23, 1997. Counsel for the defense objected on the ground that the amendment would prejudice the right of accused-appellant.
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The court a quo ruled that since there was no evidence yet presented, the matter of amendment should be brought at the proper time after the prosecution has presented its evidence. Thus, the resolution of the Motion to Amend Information in Criminal Cases Nos. 97-01815-D, 97-01816-D, 97-01817-D, 9701818-D and 97-01819-D was held in abeyance. Meanwhile, on August 7, 1997, accused-appellant was arraigned and pleaded NOT GUILTY to the two (2) counts of statutory rape in Criminal Cases Nos. 9701820-D and 97-01821-D. Thereafter, a joint trial of all the seven (7) cases was conducted. The prosecution presented five (5) witnesses, including the two (2) complainants while on the other hand, the defense presented three (3) witnesses including the accused-appellant.
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On January 9, 1998, the court a quo rendered its decision,[2 the dispositive portion of which reads:
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WHEREFORE, premises considered, the accused NOEL SANDOVAL is found guilty beyond reasonable doubt of six (6) counts of the crime of rape in Criminal Cases Nos. 97-01815-D, 97-01816D, 97-01817-D, 97-01819-D, 97-01820-D and 97-01821-D and is hereby sentenced to suffer the mandatory penalty of DEATH for each act of rape. In addition, he is ordered to pay P50,000.00 as moral damages for each case or a total of P300,000.00. Also for each count of rape, he is further ordered to pay P5,000.00 as exemplary damages as example for the public good or a total of P30,000.00. He is however acquitted in Criminal Case No. 97-01818-D for insufficiency of evidence.
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SO ORDERED.

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In view of the penalty imposed, the records were elevated to this Court for automatic review pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the Rules of Court.
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Accused-appellant seeks the reversal of his conviction on the following grounds: I


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The court a quo erred in convicting the accused-appellant of the crime of Rape on the person of Teresa Micu and imposing the death penalty upon him notwithstanding the fact that, at the time of the alleged commission, he was not yet married to the victims mother. II
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The court a quo erred in convicting the accused-appellant of the crime of Rape over Rhea Micu, considering her lack of credibility which finds support in the medical findings of the physician who examined her. III
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The court a quo erred in awarding damages to the complainants notwithstanding that the latter never testified to establish the same and the only basis of such on record is the testimony of their aunt, Perlita Fernandez, who is not their legal guardian.
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After a thorough scrutiny of the records of the case at bar, this Court finds that the trial court did not err in convicting accused-appellant of the crime of rape on the person of Teresa Micu. During her testimony, she clearly and convincingly established before the court a quo the facts and circumstances that transpired during the several occasions when accused-appellant raped her.[3
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The rule has always been that in the matter of credibility of witnesses, factual findings of the trial court should be highly respected. The trial judge is in a better position to pass judgment on the credibility of witnesses, having had the opportunity to personally hear them, observe their deportment and manner of testifying and detect if they were telling the truth.[4 We find no reason to depart from this rule in this particular case. It should be remembered also that courts usually give credence to the testimony of a girl who is a victim of sexual assault because, ordinarily, no person would be willing to undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to condemn an injustice.[5
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However, we cannot agree with the trial courts imposition of the death penalty on accused-appellant for the rape of Teresa Micu. The pertinent law in effect at the time of commission of the crimes in this case, Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, provides:
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ART. 335. When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
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1. By using force or intimidation; xxx


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The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. x x x. (Underscoring ours)
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The above-quoted provision states, inter alia, that where the victim of the crime of rape is under eighteen (18) years of age and the offender is a common-law spouse of the parent of the victim, the death penalty shall be imposed. This is one of the seven (7) modes enumerated in Section 11 of R.A. No. 7659 which are considered special circumstances specifically applicable to the crime of rape. In the subsequent cases of People v. Ilao[6 and People v. Medina,[7 it was ruled that the
seven new attendant circumstances in Section 11 of R.A. No. 7659 partake of the nature of qualifying circumstances and not merely aggravating circumstances, since said qualifying circumstances are punishable by the single indivisible penalty of death and not by reclusion perpetua to death. A qualifying circumstance increases it to a higher penalty while an aggravating circumstance affects only the period of the penalty but does not increase it to a higher degree. Unlike a generic aggravating circumstance which may be proved even if not alleged, a qualifying aggravating circumstance cannot be proved as such unless alleged in the information.
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A reading of the Information for the rape of Teresa Micu filed against accusedappellant reveals that he was merely charged with the crime of simple rape. The fact that accused-appellant is the common-law spouse of the victims parent is not alleged in the Information. What was stated therein was only the minority of the victim. As we have emphasized, the elements of minority of the victim and her relationship to the offender must be both alleged.[8 As such, the special qualifying circumstance stated in Section 11 of RA 7659 was not properly pleaded in the Information. Thus, the penalty of death prescribed in RA 7659 can not be imposed on accused-appellant. Indeed, it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process if he is charged with simple rape and be convicted of its qualified form punishable with death although the attendant circumstances qualifying the offense and resulting in the capital punishment was not alleged in the indictment on which he was arraigned.[9
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The amendment sought by the prosecution of the five informations, in order to allege the relationship of accused-appellant to the victim, were clearly substantial in character as they had the effect of changing the crime charged, thereby exposing accused-appellant to a higher penalty. Such amendment can no longer be done after accused-appellant has pleaded to the Information for simple rape on July 23, 1997,[10 without violating his constitutional rights. Rule 110, Section 14 of the Rules of Court, provides:
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The information or complaint may be amended, in substance or form, without leave of court, at anytime before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done, without prejudice to the rights of the accused. x x x.
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In sum, the failure of the prosecution to allege the relationship of the accused to the victim has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659, which prescribes the death penalty when the victim is

under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim.[11 In the recent cases of People v. Calayca,[12 People v. Tabion[13 and People v. Acala,[14 where the prosecution failed to allege the fact of minority of the victim in the Informations, we reduced the penalty imposed from death to reclusion perpetua.
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Anent the second assigned error, accused-appellant attempts to discredit Rhea Micu, the second victim, by invoking the findings of the examining physician, Dr. Luisa Cayabyab, to the effect that she could not tell whether force attended the laceration of Rheas organ and that even the tip of her finger could not reach the said complainants cervix when she attempted to check the same.[15 According to accused-appellant, this shows that the victim had never experienced sexual intercourse.
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Appellants claim is without merit.

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A circumspect scrutiny of Dr. Cayabyabs testimonial declarations discloses that they were not conclusive. As a matter of fact, the medical examination, standing alone, is not sufficient to prove nor disprove the fact of rape. On the contrary, her testimony even tended to clarify the apparent conflict pointed out by accusedappellant, viz:
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Q Likewise one of your findings is that her vagina admits one finger, in this finding of yours, it does not show any force or can be interpreted that there was no force of inserting something on the vagina of the patient, is that right?
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A I cannot say directly that there was no force because the vagina is so elastic like a rubber, sir. Q And so you can conclude that there was really no force?
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A I cannot say that there was no force because as I have said the vaginal canal is so elastic, sir. COURT
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Q There may be force or no force? A Yes, Your Honor.


Proceed,
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ATTY. TAMINAYA

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Q When you stated in your findings, admits one finger, could you tell this Court that there was no penis yet or any object that was inserted?
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A As I have said, the vaginal canal is so elastic so I cannot say if there was or there was no object that was inserted, sir.
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COURT

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Q Was there something introduced into the vagina or inserted inside? A Maybe yes, maybe no, sir.
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Q I think that the hymen can tell you that something was inserted into the vagina because of the laceration?
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A It is possible, sir.
Proceed.
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ATTY. TAMINAYA

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Q In this case, there was no showing that the hymen was lacerated? A There was healed laceration, sir. COURT
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Q But whether or not the laceration was caused by force or no force, you could not tell? A Yes, Your Honor.[16
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In the crime of rape, complete or full penetration of the complainants private part is not necessary. Neither is the rupture of the hymen essential. What is fundamental is that the entrance or at least the introduction of the male organ into the labia of the pudendum is proved. The mere introduction of the male organ into the labia majora of the victims genitalia and not the full penetration of the complainants private part consummates the crime.[17 More importantly, it has been ruled in People v. San Juan[18 that in crimes against chastity, the medical examination of the victim is not an indispensable element for the successful prosecution of the crime, as her testimony alone, if credible, is sufficient to convict the accused thereof.
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As found by the court a quo, Rheas testimonies were overwhelmingly straightforward, logical and convincing as to be worthy of belief and impervious to a mere denial by accused-appellant Noel Sandoval, to wit:
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Q Sometime in the evening of April 2, 1997, do you remember where you were? A Yes, sir.
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Q Where were you?

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A I was in Brgy. Casibong, San Jacinto, Pangasinan, sir. Q Where in Brgy. Casibong were you staying? A In the house of my step-father, sir.
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Q Your step-father, you are referring to the accused in this case? A Yes, sir.
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Q While you were in the house of your step-father in the evening of April 2, 1997, where were you in relation to that house?
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A I was inside the house, sir.

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Q What were you doing at that precise time? A I was tending the small child to sleep, sir. Q What is the name of that small child? A John, sir.
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Q While you were tending the small child by the name of John, what happened next after that? A While tending, I was able to sleep, sir. Q Were you awakened? A Yes, sir.
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Q Why were you awakened, could you explain to the Honorable Court? A I was awaken because somebody went on top of me, sir.
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Q When somebody went on top of you, who was that person? A Noel Sandoval, sir.
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Q When Noel Sandoval went on top of you, what happened next after that? A He removed my shortpant and my pantie, sir.
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Q After Noel Salvador removed your shortpant and pantie, what did Noel Sandoval do, if he did anything?
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A After he removed my shortpant and my pantie, Noel Sandoval also removed his pants and brief and thereafter, he inserted his penis into my vagina, sir.
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Q After Noel Sandoval inserted his penis to your vagina, what did Noel Sandoval do, if he did anything?
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A He kissed me, sir.

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Q What part of your body did Noel Sandoval kiss you? A My neck, sir. Q What else?
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A Only my neck, sir.

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Q On April 5, 1997, do you remember where you were? A I was also in the house of my step-father, sir.
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Q What were you doing in that precise time of the day? A I was already asleep then, sir. Q Were you awakened? A Yes, sir.
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Q Why? Could you explain before the Honorable Court why you were awakened on the evening of April 5, 1997?
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A I was awakened because I felt pain, sir. Q Why did you feel pain.
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A I felt pain inside my vagina, sir.

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Q Why? Can you explain before the Honorable Court why you felt pain in your vagina? A Because my step-father inserted his penis inside my vagina, sir.
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Q What part of the house of your step-father did he insert his penis? A Inside the house, sir.[19
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It is a well-settled rule that an affirmative testimony is far stronger than a negative testimony, especially so when it comes from the mouth of a credible

witness.[20

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We agree with the trial court that the evidence for the prosecution has proved beyond reasonable doubt that Noel Sandoval is guilty of the rape of Rhea Micu. However, as in the other four cases, the death penalty can not be imposed on him. The prosecution failed to prove that accused-appellant was legally married to the victims mother, in order to substantiate the allegation in the Amended Informations in Criminal Cases Nos. 01820-D and 01821-D that the accusedappellant is the stepfather of the victim. In People v. Brigildo,[21 a stepdaughter was defined as the daughter of ones spouse by a previous marriage or the daughter of one of the spouses by a previous marriage. It is the burden of the prosecution to prove with certainty the fact that the victim was the stepdaughter of the accused-appellant to justify the imposition of the death penalty. Corollarily, the prosecution must establish that accused-appellant is legally married to the victims mother. In order that the qualifying circumstances under Section 11 of R.A. 7659, which raises the penalty of rape to death, can be appreciated, the circumstances must be both alleged and proved. Accordingly, the proper penalty for the two counts of rape against Rhea Micu is reclusion perpetua.
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Finally, we affirm the trial courts award of moral and exemplary damages to the complainants notwithstanding that the latter never testified to establish the same.
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The award of moral damages for rape is proper as it is provided in Article 2219 (3) of the Civil Code. In accordance with prevailing jurisprudence, accusedappellant should be made to pay P50,000.00, especially considering that the offended parties were of tender age at the time of the crime.[22 In People v. Prades,[23 it was ruled that the award of moral damages to the victim is proper even if there was no proof presented during the trial as basis therefor. The fact that the complainant suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility.
[24
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On the other hand, exemplary damages may also be awarded in criminal cases as part of the civil liability if the crime was committed with one or more aggravating circumstances.[25 Accused-appellant being the stepfather of the victims, relationship should be appreciated as an aggravating circumstance under Article 15 of the Revised Penal Code.
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In addition to moral and exemplary damages, civil indemnity must also be awarded to the victims since it is mandatory upon the finding of the fact of rape. [26 The recent judicial prescription is that the indemnification for the victim shall be in the amount of P50,000.00 for each count of rape if the death penalty is not imposed.[27
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WHEREFORE, the decision of the Regional Trial Court of Dagupan, Pangasinan, Branch 42, is AFFIRMED with the MODIFICATION that accused-appellant Noel Sandoval is found guilty of four (4) counts of simple rape committed against Teresa Micu and two (2) counts of simple rape committed against Victoria Rhea Micu, and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA for each of the six (6) counts.
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Further, accused-appellant is ordered to pay P50,000.00 for each of the six (6) counts of rape, or a total of P300,000.00, as moral damages; P10,000.00 for each of the six (6) counts of rape, or a total of P60,000.00, as exemplary damages; and P50,000.00 for each of the six (6) counts of rape, or a total of P300,000.00, as civil indemnity.
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SO ORDERED.

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Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila
THIRD DIVISION

JOHN ERIC LONEY,


STEVEN PAUL REID and PEDRO B. HERNANDEZ,
Petitioners, Present:

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G.R. No. 152644

QUISUMBING, J., Chairperson, CARPIO,


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versus -

CARPIO MORALES, and TINGA, JJ.

PEOPLE OF THE PHILIPPINES,

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Respondent.February 10, 2006

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

DECISION

CARPIO, J.:

The Case

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This is a petition for review[1] of the Decision[2] dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals. The5 November 2001 Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash Informations filed against petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez (petitioners'). The 14 March 2002 Resolution denied petitioners' motion for reconsideration.

The Facts

cralawPetitioners

John

Eric

Loney,

Steven

Paul

Reid,

and

Pedro

B.

Hernandez are the President and Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations, respectively, of Marcopper Mining Corporation (Marcopper'), a corporation engaged in mining in the province of Marinduque.

cralawMarcopper

had been storing tailings[3] from its operations in a pit in

Mt.Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnel's end. On 24 March 1994, tailings gushed out of or near the tunnel's end.In a few days, the Mt.Tapian pit had discharged millions of tons of tailings into the Boac and Makalupnit rivers.

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August 1996, the Department of Justice separately charged

petitioners in the Municipal Trial Court of Boac, Marinduque (MTC') with violation of Article 91(B),[4] sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the Philippines (PD 1067'), [5] Section 8[6] of Presidential Decree No. 984 or the National Pollution Control Decree of 1976 (PD 984'),[7] Section 108[8] of Republic Act No. 7942 or the Philippine Mining Act of 1995 (RA 7942'),[9] and Article 365[10] of the Revised Penal Code (RPC') for Reckless Imprudence Resulting in Damage to Property.[11]chanroblesvirtuallawlibrary
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Petitioners moved to quash the Informations on the following grounds: (1) the

Informations were 'duplicitous' as the Department of Justice charged more than one offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the incident subject of the Informations took place; and (3) the Informations contain allegations which constitute legal excuse or justification.

The Ruling of the MTC

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its Joint Order of 16 January 1997 (Joint Order'), the MTC[12]

initially deferred ruling on petitioners' motion for lack of 'indubitable ground for the quashing of the [I]nformations x x x. The MTC scheduled petitioners' arraignment in February 1997. However, on petitioners' motion, the MTC issued a Consolidated Order on 28 April 1997 (Consolidated Order'), granting partial reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD 984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the RPC. The MTC held:
cralaw cralaw[T]he 12 Informations have common allegations of pollutants pointing to 'mine tailings' which were precipitately discharged into the Makulapnit and Boac Rivers due to breach caused on the Tapian drainage/tunnel due to negligence or failure to institute adequate measures to prevent pollution and siltation of the Makulapnit and Boac River systems, the very term and condition required to be undertaken under the Environmental Compliance Certificate issued on April 1, 1990.

cralawThe allegations in the informations point to same set [sic] of evidence required to prove the single fact of pollution constituting violation of the Water Code and the Pollution Law which are the same set of evidence necessary to prove the same single fact of pollution, in proving the elements constituting violation of the conditions of ECC, issued pursuant to the Philippine Mining Act.In both instances, the terms and conditions of the Environmental Compliance Certificate were allegedly violated.In other words, the same set of evidence is required in proving violations of the three (3) special laws.

carefully analyzing and weighing the contending arguments of the parties and after taking into consideration the applicable laws and jurisprudence, the Court is convinced that as far as the three (3) aforesaid laws are concerned, only the Information for [v]iolation of Philippine Mining Act should be maintained.In other words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and the Water Code (PD 1067) should be dismissed/quashed because the elements constituting the aforesaid

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violations are absorbed by the same elements which constitute violation of the Philippine Mining Act (RA 7942).
cralawTherefore, x x x Criminal Case[]Nos. 96-44, 96-45 and 9646 for [v]iolation of the Water Code; and Criminal Case[] Nos. 9647, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine Mining Act are hereby retained to be tried on the merits.

Information for [v]iolation of Article 365 of the Revised Penal Code should also be maintained and heard in a full blown trial because the common accusation therein is reckless imprudence resulting to [sic]damage to property.It is the damage to property which the law punishes not the negligent act of polluting the water system.The prosecution for the [v]iolation of Philippine Mining Act is not a bar to the prosecution for reckless imprudence resulting to [sic] damage to property.[13] cralaw

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The MTC re-scheduled petitioners' arraignment on the remaining charges on 28 and

29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be arraigned on the charge for violation of Article 365 of the RPC but not on the charge for violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it maintained the Informations for that offense. After making of record petitioners' manifestation, the MTC proceeded with the arraignment and ordered the entry of 'not guilty pleas on the charges for violation of RA 7942 and Article 365 of the RPC.

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Petitioners subsequently filed a petition for certiorari with the Regional Trial Court,

Boac, Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for violation of RA 7942. Petitioners' petition was raffled to Branch 94.For its part, public respondent filed an ordinary appeal with the same court assailing that portion of the Consolidated Order quashing the Informations for violation of PD 1067 and PD 984. Public respondent's appeal was raffled to Branch 38. On public respondent's motion, Branch 38 ordered public respondent's appeal consolidated with petitioners' petition in Branch 94.

The Ruling of Branch 94

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its Resolution[14] of 20 March 1998, Branch 94 granted public

respondent's appeal but denied petitioners' petition. Branch 94 set aside the Consolidated Order in so far as it quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held:

After a careful perusal of the laws concerned, this court is of the opinion that there can be no absorption by one offense of the three other offenses, as [the] acts penalized by these laws are separate and distinct from each other.The elements of proving each violation are not the same with each other.Concededly, the single act of dumping mine tailings which resulted in the pollution of the Makulapnit and Boac rivers was the basis for the information[s] filed against the accused each charging a distinct offense.But it is also a well-established rule in this jurisdiction that ' single act may offend against two or more entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. x x x. xxxx
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different laws involve cannot absorb one another as the elements of each crime are different from one another.Each of these laws require [sic] proof of an additional fact or element which the other does not although they stemmed from a single act.
[15]chanroblesvirtuallawlibrary

cralawPetitioners

filed a petition for certiorari with the Court of Appeals

alleging that Branch 94 acted with grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC 'proceed from and are based on a single act or incident of polluting the

Boac and Makalupnit rivers thru dumping of mine tailings' and (2) the duplicitous nature of the Informations contravenes the ruling in People v. Relova.[16]Petitioners further contended that since the acts complained of in the charges for violation of PD 1067, PD 984, and RA 7942 are 'the very same acts complained of in the charge for violation of Article 365 of the RPC, the latter absorbs the former. Hence, petitioners should only be prosecuted for violation of Article 365 of the RPC.[17]chanroblesvirtuallawlibrary

The Ruling of the Court of Appeals

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its Decision of 5 November 2001, the Court of Appeals affirmed

Branch 94's ruling. The appellate court held:

The records of the case disclose that petitioners filed a motion to quash the aforementioned Informations for being duplicitous in nature.Section 3 of Rule 117 of the Revised Rules of Court specifically provides the grounds upon which an information may be quashed. x x x xxxx [D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117]. cralaw xxxx We now go to petitioners' claim that the resolution of the public respondent contravened the doctrine laid down in People vs. Relova for being violative of their right against multiple prosecutions. In the said case, the Supreme Court found the People's argument with respect to the variances in the mens rea of the two offenses being charged to be correct.The Court, however, decided

the case in the context of the second sentence of Article IV (22) of the 1973 Constitution (now under Section 21 of Article III of the 1987 Constitution), rather than the first sentence of the same section. x x x xxxx [T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since the Informations filed against the petitioners are for violation of four separate and distinct laws which are national in character. xxxx This Court firmly agrees in the public respondent's understanding that the laws by which the petitioners have been [charged] could not possibly absorb one another as the elements of each crime are different.Each of these laws require [sic] proof of an additional fact or element which the other does not, although they stemmed from a single act. x x x xxxx [T]his Court finds that there is not even the slightest indicia of evidence that would give rise to any suspicion that public respondent acted with grave abuse of discretion amounting to excess or lack of jurisdiction in reversing the Municipal Trial Court's quashal of the Informations against the petitioners for violation of P.D. 1067 and P.D. 984.This Court equally finds no error in the trial court's denial of the petitioner's motion to quash R.A. 7942 and Article 365 of the Revised Penal Code.[18]chanroblesvirtuallawlibrary

cralawPetitioners

sought reconsideration but the Court of Appeals denied

their motion in its Resolution of 14 March 2002.

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Petitioners raise the following alleged errors of the Court of Appeals:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE MINING ACT(R.A. 7942) AND REINSTATING THE CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION CONTROL LAW (P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE REVISED PENAL CODE PROCEED FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC AND MAKULAPNITRIVERS THRU DUMPING OF MINE TAILINGS. B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986] THAT 'AN ACCUSED SHOULD NOT BE HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH DIFFERENT FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED BY A COMMON SET OR OVERLAPPING SETS OF TECHNICAL ELEMENTS. II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST PETITIONERS[.][19]

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The Issues

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petition raises these issues:

(1)

Whether all the charges filed against petitioners except one should be quashed for duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to Property should stand; and

(2)

Whether Branch 94's ruling, as affirmed by the Court of Appeals, contravenes People v. Relova.

The Ruling of the Court

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petition has no merit.

No Duplicity of Charges in the Present Case

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Duplicity of charges simply means a single complaint or information charges more

than one offense, as Section 13 of Rule 110[20] of the 1985 Rules of Criminal Procedure clearly states:
Duplicity of offense. ' A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense.[21]

Under Section 3(e), Rule 117[22] of the 1985 Rules of Criminal Procedure, duplicity of offenses in a single information is a ground to quash the Information.The Rules prohibit the filing of such Information to avoid confusing the accused in preparing his defense.[23]Here, however, the prosecution charged each petitioner with four offenses, with each Information charging only one offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the Informations.On this score alone, the petition deserves outright denial.

The Filing of Several Charges is Proper

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Petitioners contend that they should be charged with one offense only ' Reckless

Imprudence Resulting in Damage to Property ' because(1) all the charges filed against them 'proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings' and (2) the charge for violation of Article 365 of the RPC absorbs' the other charges since the element of 'lack of necessary or adequate protection, negligence, recklessness and imprudence is common among them.

The contention has no merit. As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense.[24] The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for 'the same offense.[25] In People v. Doriquez,[26]we held that two (or more) offenses arising from the same act are not 'the same '

x x xif one provision [of law] requires proof of an additional fact or element which the other does not, x x x. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.[27](Emphasis supplied)

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Here, double jeopardy is not at issue because not all of its elements are present.[28]

However, for the limited purpose of controverting petitioners' claim that they should be charged with one offense only, we quote with approval Branch 94's comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which petitioners were charged, there is one essential element not required of the others, thus:
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P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of mine tailings into the Makulapnit River and the entire Boac River System without prior permit from the authorities concerned.The gravamen of the offense here is the absence of the proper permit to dump said mine tailings.This element is not indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code.One can be validly prosecuted for violating the Water Code even in the absence of actual pollution, or even [if] it has complied with the terms of its Environmental Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent damage to property. In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual pollution.The gravamen is the pollution itself.In the absence of any pollution, the accused must be exonerated under this law although there was unauthorized dumping of mine tailings or lack of precaution on its part to prevent damage to property. In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful violation and gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance Certificate, particularly that the Marcopper should ensure the containment of run-off and silt materials from reaching the Mogpog and Boac Rivers.If there was no violation or neglect, and that the accused satisfactorilyproved [sic] that Marcopper had done everything to ensure containment of the run-off and silt materials, they will not be liable.It does not follow, however, that they cannot be prosecuted under the Water Code, Anti-Pollution Law and the Revised Penal Code because violation of the Environmental Compliance Certificate is not an essential element of these laws. On the other hand, the additional element that must be established in Art. 365 of the Revised Penal Code is the lack of necessary or adequate precaution, negligence, recklessness and imprudence on the part of the accused to prevent damage to property.This element is not required under the previous laws.Unquestionably, it is different from dumping of mine tailings without permit, or causing pollution to the Boac river system, much more from violation or neglect to abide by the terms of the Environmental Compliance Certificate.Moreover, the offenses punished by special law are mal[a] prohibita in contrast with those punished by the Revised Penal Code which are mala in se.[29]

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Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled doctrine.

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On petitioners' claim that the charge for violation of Article 365 of the RPC 'absorbs'

the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se

felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.

People v. Relova not in Point

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reiterate their contention in the Court of Appeals that

their prosecution contravenes this Court's ruling in People v. Relova. In particular, petitioners cite the Court's statement in Relova that the law seeks to prevent harassment of the accused by 'multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements.

This contention is also without merit.

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel Opulencia (Opulencia') with theft of electric power under the RPC, after the latter had been acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring, violated Opulencia's right against double jeopardy.We held that it did, not because the offenses punished by those two laws were the same but because the act giving rise to the charges was punished by an ordinance and a national statute, thus falling within the proscription against multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article III of the 1987 Constitution.We held:

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of BatangasCity] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information. The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the express terms of the constitutional provision involved ' which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.x x x and from our case law on this point. The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. x x x[30] (Italicization in the original; boldfacing supplied)

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Relova is no authority for petitioners' claim against multiple

prosecutions based on a single act not only because the question of double jeopardy is not at issue here, but also because, as the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall under the first sentence ofSection 21, Article III which prohibits multiple prosecution for the same offense,andnot, as in Relova, for offenses arising from the same incident.

cralawWHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the Resolution dated 14 March 2002 of the Court ofAppeals.

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SO ORDERED.

ANTONIO T. CARPIO Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

CONCHITA CARPIO MORALESDANTE O. TINGA Associate Justice


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Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

ARTEMIO V. PANGANIBAN

Chief Justice