You are on page 1of 42

MARIO FL. CRESPO vs. HON. LEODEGARIO L.

MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., G.R. No. L-53373 June 30, 1987 The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 1

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating: For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of

said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal 2

is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to 3

dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38 The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the

case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. EDUARDO G. RICARZE vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, CALTEX PHILIPPINES, INC., PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK (PCIBANK), G.R. No. 160451 February 9, 2007 Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. SP No. 68492, and its Resolution2 which denied the Motion for Reconsideration and the Supplemental Motion for Reconsideration thereof. Petitioner Eduardo G. Ricarze was employed as a collector-messenger by City Service Corporation, a domestic corporation engaged in messengerial services. He was assigned to the main office of Caltex Philippines, Inc. (Caltex) in Makati City. His primary task was to collect checks payable to Caltex and deliver them to the cashier. He also delivered invoices to Caltex s customers.3 On November 6, 1997, Caltex, through its Banking and Insurance Department Manager Ramon Romano, filed a criminal complaint against petitioner before the Office of the City Prosecutor of Makati City for estafa through falsification of commercial documents. Romano alleged that, on October 16, 1997, while his department was 4

conducting a daily electronic report from Philippine Commercial & Industrial Bank (PCIB) Dela Rosa, Makati Branch, one of its depositary banks, it was discovered that unknown to the department, a company check, Check No. 74001 dated October 13, 1997 in the amount of P5,790,570.25 payable to Dante R. Gutierrez, had been cleared through PCIB on October 15, 1997. An investigation also revealed that two other checks (Check Nos. 73999 and 74000) were also missing and that in Check No. 74001, his signature and that of another signatory, Victor S. Goquinco, were forgeries. Another check, Check No. 72922 dated September 15, 1997 in the amount of P1,790,757.25 likewise payable to Dante R. Gutierrez, was also cleared through the same bank on September 24, 1997; this check was likewise not issued by Caltex, and the signatures appearing thereon had also been forged. Upon verification, it was uncovered that Check Nos. 74001 and 72922 were deposited at the Banco de Oro s SM Makati Branch under Savings Account No. S/A 2004-0047245-7, in the name of a regular customer of Caltex, Dante R. Gutierrez. Gutierrez, however, disowned the savings account as well as his signatures on the dorsal portions thereof. He also denied having withdrawn any amount from said savings account. Further investigation revealed that said savings account had actually been opened by petitioner; the forged checks were deposited and endorsed by him under Gutierrez s name. A bank teller from the Banco de Oro, Winnie P. Donable Dela Cruz, positively identified petitioner as the person who opened the savings account using Gutierrez s name.4 In the meantime, the PCIB credited the amount of P581,229.00 to Caltex on March 29, 1998. However, the City Prosecutor of Makati City was not informed of this development. After the requisite preliminary investigation, the City Prosecutor filed two (2) Informations for estafa through falsification of commercial documents on June 29, 1998 against petitioner before the Regional Trial Court (RTC) of Makati City, Branch 63. The Informations are worded as follows:

Criminal Case No. 98-1611 That on or about the 24th day of September 1997 in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, a private individual, with intent to defraud and intent to gain, without the knowledge and consent of Caltex Philippines, Inc. through its duly authorized officers/representatives, and by means of falsification of commercial document, did then and there willfully, unlawfully and feloniously defraud Caltex Phils., Inc., in the following manner, to wit: said accused, having obtained possession of PCIBank check no. 72922 dated September 15, 1997 payable to Dante R. Gutierrez, in the amount of Php1,790,757.50 with intent to defraud or cause damage to complainant Caltex Phils., Inc., willfully, unlawfully and feloniously affixed or caused to be affixed signatures purporting to be those of Ramon Romano and Victor Goquingco, Caltex authorized officers/signatories, and of payee Dante R. Gutierrez, causing it to appear that Ramon Romano and Victor Goquingco have participated in the issuance of PCIBank check no. 72922 and that Dante R. Gutierrez had endorsed it, when in truth and in fact, as said accused well knew, such was not the case, since said check previously stolen from Payables Section of CALTEX, was neither duly signed by Ramon Romano and Victor Goquingco nor endorsed by Dante R. Gutierrez, after the check, a commercial document, was falsified in the manner above set forth, the said accused purporting himself to be the payee, Dante R. Gutierrez, deposited the check with Banco De Oro under Account No. 2004-0047245-7, thereby appropriating the proceeds of the falsified but cleared check, to the damage and prejudice of complainant herein represented by Ramon Romano, in the amount of Php1,790,757.50. Criminal Case No. 98-1612 That on or about the 15th day of October 1997 in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, a private individual, with intent to defraud and intent to gain, without the knowledge and consent of Caltex Philippines, Inc. through its duly 5

authorized officers/representatives, and by means of falsification of commercial document, did then and there willfully, unlawfully and feloniously defraud Caltex Phils., Inc., in the following manner, to wit: said accused, having obtained possession of PCIBank check no. 74001 dated October 13, 1997 payable to Dante R. Gutierrez, in the amount of Php5,790,570.25 with intent to defraud or cause damage to complainant Caltex Phils., Inc., willfully, unlawfully and feloniously affixed or caused to be affixed signatures purporting to be those of Ramon Romano and Victor Goquingco, Caltex authorized officers/signatories, and of payee Dante R. Gutierrez, causing it to appear that Ramon Romano and Victor Goquingco have participated in the issuance of PCIBank check no. 74001 and that Dante R. Gutierrez had endorsed it, when in truth and in fact, as said accused well knew, such was not the case, since said check previously stolen from Payables Section of CALTEX, was neither duly signed by Ramon Romano and Victor Goquingco nor endorsed by Dante R. Gutierrez, after the check, a commercial document, was falsified in the manner above set forth, the said accused purporting himself to be the payee, Dante R. Gutierrez, deposited the check with Banco De Oro under Account No. 2004-0047245-7, thereby appropriating the proceeds of the falsified but cleared check, to the damage and prejudice of complainant herein represented by Ramon Romano, in the amount of Php5,790,570.25.5 Petitioner was arraigned on August 18, 1998, and pleaded not guilty to both charges.6 Pre-trial ensued and the cases were jointly tried. The prosecution presented its witnesses, after which the Siguion Reyna, Montecillio and Ongsiako Law Offices (SRMO) as private prosecutor filed a Formal Offer of Evidence.7 Petitioner opposed the pleading, contending that the private complainant was represented by the ACCRA Law Offices and the Balgos and Perez Law Office during trial, and it was only after the prosecution had rested its case that SRMO entered its appearance as private prosecutor representing the PCIB. Since the ACCRA and Balgos and Perez Law Offices had not withdrawn their appearance, SRMO had no personality to appear as private prosecutor. Under the Informations, the private

complainant is Caltex and not PCIB; hence, the Formal Offer of Evidence filed by SRMO should be stricken from the records. Petitioner further averred that unless the Informations were amended to change the private complainant to PCIB, his right as accused would be prejudiced. He pointed out, however, that the Informations can no longer be amended because he had already been arraigned under the original Informations.8 He insisted that the amendments of the Informations to substitute PCIB as the offended party for Caltex would place him in double jeopardy. PCIB, through SRMO, opposed the motion. It contended that the PCIB had re-credited the amount to Caltex to the extent of the indemnity; hence, the PCIB had been subrogated to the rights and interests of Caltex as private complainant. Consequently, the PCIB is entitled to receive any civil indemnity which the trial court would adjudge against the accused. Moreover, the recredited amount was brought out on cross-examination by Ramon Romano who testified for the Prosecution. PCIB pointed out that petitioner had marked in evidence the letter of the ACCRA Law Office to PCIBank dated October 10, 1997 and the credit memo sent by PCIB to Caltex.9 Petitioner filed a Motion to Expunge the Opposition of SRMO.10 In his Rejoinder, he averred that the substitution of PCIB as private complainant cannot be made by mere oral motion; the Information must be amended to allege that the private complainant was PCIB and not Caltex after the preliminary investigation of the appropriate complaint of PCIB before the Makati City Prosecutor. In response, the PCIB, through SRMO, averred that as provided in Section 2, Rule 110 of the Revised Rules of Criminal Procedure, the erroneous designation of the name of the offended party is a mere formal defect which can be cured by inserting the name of the offended party in the Information. To support its claim, PCIB cited the ruling of this Court in Sayson v. People.11

On July 18, 2001, the RTC issued an Order granting the motion of the private prosecutor for the substitution of PCIB as private complainant for Caltex. It however denied petitioner s motion to have the formal offer of evidence of SRMO expunged from the record.12 Petitioner filed a motion for reconsideration which the RTC denied on November 14, 2001.13 Petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Court with Urgent Application for Temporary Restraining Order with the Court of Appeals (CA,) praying for the annulment of the RTC s Orders of July 18, 2001 and November 14, 2001. The petitioner averred that: I RESPONDENT JUDGE GRIEVEOUSLY (SIC) ERRED IN RENDERING ITS ORDER ISSUED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION BY ALLOWING THE SUBSTITUTION OF PRIVATE COMPLAINANT, AFTER THE ACUSED WAS ALREADY ARRAIGNED AND PROSECUTION HAS ALREADY TERMINATED PRESENTING ITS EVIDENCE THEREBY PATENTLY VIOLATING THE STRICT CONDITION IMPOSED UPON BY RULE 110 SEC. 14 RULES ON CRIMINAL ROCEDURE. II AND AS A COROLLARY GROUND RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN EXCESS OF JURISDICTION IN RENDERING AN ORDER RECOGNIZING THE APPEARANCE OF A NEW PROSECUTOR WITHOUT WRITTEN OR EVEN ORAL WITHDRAWAL OF THE COUNSEL ON RECORD.14 According to petitioner, damage or injury to the offended party is an essential element of estafa. The amendment of the Informations substituting the PCIBank for Caltex as the offended party would prejudice his rights since he is deprived of a defense available before the amendment, and which would be unavailable if the Informations are amended. Petitioner further insisted that the ruling in the Sayson case did not apply to this case. 6

On November 5, 2002, the appellate court rendered judgment dismissing the petition. The fallo reads: WHEREFORE, premises considered, the petition to annul the orders dated July 18, 2001 and November 14, 2001 of the Regional Trial Court, Branch 63, Makati City in Criminal Case Nos. 98-1611 and 98-1612 is hereby DENIED and consequently DISMISSED. The appellate court declared that when PCIB restored the amount of the checks to Caltex, it was subrogated to the latter s right against petitioner. It further declared that in offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. The appellate court cited the rulings of this Court in People v. Ho16 and People v. Reyes.17 On October 17, 2003, the CA issued a Resolution denying petitioner s Motion for Reconsideration and Supplemental Motion for Reconsideration.18 Hence, petitioner filed the instant petition which is anchored on the following grounds: I. THE PEOPLE V. YU CHAI HO 53 PHILIPPINES 874 IS INAPPLICABLE TO THE CASE AT BAR CONSIDERING THE PACTS ARE SUBSTANTIALLY DIFFERENT. II. LIKEWISE, THE CASE OF PEOPLE VS. REYES CA, 50 (2) OG 665, NOVEMBER 11, 1953 HAS NO MATERIAL BEARING TO THE PRESENT CASE. III. THE SUBSTITUTION OF PCIBANK WILL SUBSTANTIALLY PREJUDICE THE RIGHTS OF THE PETITIONER HENCE, IT IS PROHIBITED BY SEC. 14 OF RULE 110. IV. THERE IS NO VALID SUBROGATION BETWEEN CALTEX AND PCIBANK. ASSUMING THERE IS, THE CIVIL CASE SHOULD BE DISMISSED TO PROSECUTE. V. THE TWIN INFORMATIONS UPON WHICH PETITIONER WAS INDICTED, ARRAIGNED, PRE-TRIAL HELD AND PUBLIC PROSECUTOR TERMINATED THE PRESENTATION OF ITS EVIDENCE IN CHIEF ARE DEFECTIVE AND VOID, HENCE THE DISMISSAL IS IN ORDER. 7

VI. PETITIONER TIMELY OBJECTED TO THE APPEARANCE OF PRIVATE PROSECUTOR FOR PCIBANK. VII. THE FINDINGS OF MATERIAL FACTS ARE NOT SUPORTED BY THE RECORD NOR EVIDENCE AND BASED ON MISAPPRECIATION OF FACTS. VIII. PETITIONER S SUPPLEMENTAL MOTION FOR RECONSIDERATION DID NOT VIOLATE THE OMNIBUS MOTION RULE UNDER SEC. 8, RULE 15 OF THE 1997 RULES OF CIVIL PROCEDURE.19 The Court s Ruling Petitioner argues that the substitution of Caltex by PCIB as private complainant at this late stage of the trial is prejudicial to his defense. He argues that the substitution is tantamount to a substantial amendment of the Informations which is prohibited under Section 14, Rule 110 of the Rules of Court. Under Section 5, Rule 11020 of the Revised Rules of Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted, and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action (including the civil) remains under the control and supervision of the public prosecutor. The prosecution of offenses is a public function. Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case. The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite

proceeding, with the criminal action predominating the civil. The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.21 On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused.22 Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code include 1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. On the other hand, Section 14, Rule 110 of the Revised Rules of Criminal Procedure states: Section 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. Thus, before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court. After the entry of 8

a plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.23 A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form.24 The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution s theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged.25 The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance.26 In the case at bar, the substitution of Caltex by PCIB as private complaint is not a substantial amendment. The substitution did not alter the basis of the charge in both Informations, nor did it result in any prejudice to petitioner. The documentary evidence in the form of

the forged checks remained the same, and all such evidence was available to petitioner well before the trial. Thus, he cannot claim any surprise by virtue of the substitution. Petitioner next argues that in no way was PCIB subrogated to the rights of Caltex, considering that he has no knowledge of the subrogation much less gave his consent to it. Alternatively, he posits that if subrogation was proper, then the charges against him should be dismissed, the two Informations being "defective and void due to false allegations." Petitioner was charged of the crime of estafa complex with falsification document. In estafa one of the essential elements "to prejudice of another" as mandated by article 315 of the Revise Penal Code. The element of "to the prejudice of another" being as essential element of the felony should be clearly indicated and charged in the information with TRUTH AND LEGAL PRECISION. This is not so in the case of petitioner, the twin information filed against him alleged the felony committed " to the damage and prejudice of Caltex." This allegation is UNTRUE and FALSE for there is no question that as early as March 24, 1998 or THREE (3) LONG MONTHS before the twin information were filed on June 29, 1998, the prejudice party is already PCIBank since the latter Re-Credit the value of the checks to Caltex as early as March 24, 1998. In effect, assuming there is valid subrogation as the subject decision concluded, the subrogation took place an occurred on March 24, 1998 THREE (3) MONTHS before the twin information were filed. The phrase "to the prejudice to another" as element of the felony is limited to the person DEFRAUDED in the very act of embezzlement. It should not be expanded to other persons which the loss may ultimately fall as a result of a contract which contract herein petitioner is total stranger. In this case, there is no question that the very act of commission of the offense of September 24, 1997 and 9

October 15, 1997 respectively, Caltex was the one defrauded by the act of the felony. In the light of these facts, petitioner submits that the twin information are DEFECTIVE AND VOID due to the FALSE ALLEGATIONS that the offense was committed to the prejudice of Caltex when it truth and in fact the one prejudiced here was PCIBank. The twin information being DEFECTIVE AND VOID, the same should be dismissed without prejudice to the filing of another information which should state the offense was committed to the prejudice of PCIBank if it still legally possible without prejudicing substantial and statutory rights of the petitioner.27 Petitioner s argument on subrogation is misplaced. The Court agrees with respondent PCIB s comment that petitioner failed to make a distinction between legal and conventional subrogation. Subrogation is the transfer of all the rights of the creditor to a third person, who substitutes him in all his rights.28 It may either be legal or conventional. Legal subrogation is that which takes place without agreement but by operation of law because of certain acts.29 Instances of legal subrogation are those provided in Article 130230 of the Civil Code. Conventional subrogation, on the other hand, is that which takes place by agreement of the parties.31 Thus, petitioner s acquiescence is not necessary for subrogation to take place because the instant case is one of legal subrogation that occurs by operation of law, and without need of the debtor s knowledge. Contrary to petitioner s asseverations, the case of People v. Yu Chai Ho32 relied upon by the appellate court is in point. The Court declared We do not however, think that the fiscal erred in alleging that the commission of the crime resulted to the prejudice of Wm. H. Anderson & Co. It is true that originally the International Banking Corporation was the prejudiced party, but Wm. H. Anderson & Co. compensated it for its loss and thus became subrogated to all its rights against the defendant (article 1839, Civil Code). Wm. H. Anderson & Co., therefore, stood exactly

in the shoes of the International Banking Corporation in relation to the defendant's acts, and the commission of the crime resulted to the prejudice of the firm previously to the filing of the information in the case. The loss suffered by the firm was the ultimate result of the defendant's unlawful acts, and we see no valid reason why this fact should not be stated in the information; it stands to reason that, in the crime of estafa, the damage resulting therefrom need not necessarily occur simultaneously with the acts constituting the other essential elements of the crime. Thus, being subrogated to the right of Caltex, PCIB, through counsel, has the right to intervene in the proceedings, and under substantive laws is entitled to restitution of its properties or funds, reparation, or indemnification. Petitioner s gripe that the charges against him should be dismissed because the allegations in both Informations failed to name PCIB as true offended party does not hold water. Section 6, Rule 110 of the Rules on Criminal Procedure states: Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense; and the place wherein the offense was committed. When the offense is committed by more than one person, all of them shall be included in the complaint or information. On the other hand, Section 12 of the same Rule provides: Section. 12. Name of the offended party. The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. 10

(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law. (12a) In Sayson v. People,33 the Court held that in case of offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified: The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of Identifying him, he must be described under a fictitious name (Rule 110, Section 11, Revised Rules of Court; now Rule 110, Section 12 of the 1985 Rules on Criminal Procedure.] In case of offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. Thus, Rule 110, Section 11 of the Rules of Court provides that: Section 11. Name of the offended party(a) In cases of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly Identify the particular offense charged.

(b) If in the course of the trial, the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information or record. In U.S. v. Kepner [1 Phil. 519 (1902)], this Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to Identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant. Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly Identify the particular offense charged. In the instant suit for estafa which is a crime against property under the Revised Penal Code, since the check, which was the subject-matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of convicting the accused, that it was established during the trial that the offended party was actually Mever Films and not Ernesto Rufino, Sr. nor Bank of America as alleged in the information. Lastly, on petitioner s claim that he timely objected to the appearance of SRMO34 as private prosecutor for PCIB, the Court agrees with the observation of the CA that contrary to his claim, petitioner did not question the said entry of appearance even as the RTC acknowledged the same on October 8, 1999.35 Thus, petitioner cannot feign ignorance or surprise of the incident, which are "all water under the bridge for [his] failure to make a timely objection thereto."36

/WHEREFORE, the petition is DENIED. The assailed decision and resolution of the Court of Appeals are AFFIRMED. This case is REMANDED to the Regional Trial Court of Makati City, Branch 63, for further proceedings. Luz M. Zaldivia v. Hon. Andres B. Reyes, Jr. July 6, 2010 Facts:Petitioner Zaldivia is charged with quarrying for commercial purposes without a mayor'spermit in the municipality of Rodriguez, Province of Rizal.She moved to quash the information on the ground that the crime had prescribed but itwas denied. She appealed to the RTC and denial was sustained by the respondent judge.Petitioner filed for a petition for review on certiorari arguing that the case filed againsther is govern by the provisions on the Rules of Summary Procedure. She contends that criminalcases like violations of municipal or city ordinances does not require preliminary investigationand shall be filed directly to the court and not in the Prosecutor s office. She also invoked Act No. 3226 An Act to Establish Periods of Prescription for Violations Penalized by Special Actsand Municipal Ordinances and to Provide when Prescription Shall Begin to Run . Concludingthat the case should have been dismissed since the case against her was being filed in courtway beyond the 2 month statutory period.The prosecution contends that when the case was filed on the Prosecutor s office itsuspends the prescriptive period. Issue: Whether or not the prescription of period ceased to run when the case was filed on theprosecutor s office? Decision: Petition granted. Case dismissed on the ground of prescription. Ruling: As a general rule, the filing of the case in the prosecutor s office is sufficient to interrupt the running of the prescriptive period except when the case is covered by the Rules on Summary Procedure. If it is 11

any crime, you file it in the fiscal s office; the running of the prescriptive period is interrupted. But in the case at bar having only a penalty of arresto menor it therefore falls under the provisions of the Rules on Summary Procedure. If it is covered by the Summary Rules, the period continues. It must be the filing of the case in court which will interrupt the period from running. [G.R. Nos. 144340-42. August 6, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO AQUINO y RODA, accused-appellant. 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-victim s uncle. The prosecution presented Charlaine s 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 childvictim s 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 12

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] However, the Court has repeatedly held, 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 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, 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. 13

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 latter s will and consent. 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-victim s 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 appellant s 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 14

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. G.R. No. 130644. March 13, 1998 THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by his mother, MARGARITA G. Present: LARRANAGA, petitioner vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPPINES. The following are submitted before the Court for resolution: 1.an urgent motion to implement petitioners release filed by petitioner on November 3, 1997; 2.a motion for reconsideration of this Courts resolution of October 27, 1997 filed on November 17, 1997 by the counsels for the prosecution in Crim. Case No. CBU45303 and 45304; 3.a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional Trial Court, Branch 7, Cebu City, against petitioners counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for allegedly deliberately withholding from this Court the omnibus order, supplemental order and order of arraignment he issued on October 17, 1997, thus misleading the Court into issuing its resolution of October 27, 1997; and 4.an urgent motion to change the venue and the officers to conduct the preliminary investigation filed by petitioner on November 17, 1997. The antecedent facts: Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal detention docketed as CBU-45303 and CBU-45304 pending before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently detained at the Bagong Buhay Rehabilitation Center. On October 1, 1997, Petitioner, represented by his mother, Margarita G. Larranaga, filed with this Court a petition for certiorari, prohibition and mandamus with 15

writs of preliminary prohibitory and mandatory injunction. Petitioner alleged that he was denied the right to preliminary investigation and sought to annul the informations as well as the warrant of arrest issued in consequence thereof. In the alternative, petitioner prayed that a preliminary investigation be conducted and that he be released from detention pending the investigation.1 Petitioner filed a supplemental petition for habeas corpus or bail on October 6, 1997.2 On October 20, 1997, the Solicitor General filed a manifestation and motion in lieu of comment submitting that petitioner should have been given a regular preliminary investigation before the filing of the informations and the issuance of the warrant of arrest. The Solicitor General recommended that petitioner be accorded his right to preliminary investigation and that he be released from detention during the pendency thereof.3 On October 27, 1997, we issued a resolution holding that petitioner was deprived of his right to preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to an inquest investigation.4 Hence, we resolved: 1. to set aside the inquest investigation of petitioner and to order the Office of the City Prosecutor of Cebu to conduct a regular preliminary investigation of the petitoner in accord with Section 3, Rule 112; 2. to annul the Order for Detention During The Pendency of the Case issued by Executive Judge Priscila Agana against the petitioner in Crim. Case No. CBU45303 and 45304; 3. to order the immediate release of petitioner pending his preliminary investigation; and 4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and desist from proceeding with the arraignment and trial of petitioner in Crim. Case No. CBU-45303 and 45304, pending the result of petitioners preliminary investigation. On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying for his

immediate release pursuant to our October 27 resolution.5 The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of petitioners motion. It stated that it would be premature to act on the motion since the trial court has not yet received an official copy of our October 27 resolution and that said resolution has not yet attained finality. Furthermore, Judge Ocampo called the Courts attention to the fact that petitioner has been arraigned on October 14, 1997 and waived his right to preliminary investigation.6 On November 3, 1997, petitioner filed with this Court an urgent motion praying, among others, that Judge Ocampo be directed to order petitioners immediate release upon receipt of our October 27 resolution.7 Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that petitioners counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus order, supplemental order and order of arraignment, all issued by him on October 14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge Ocampo alleged that by withholding said orders, petitioners counsels unwittingly misled the Court in its October 27 resolution. On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU-45303 and 45304 filed a motion for reconsideration of our October 27 resolution.9 They raised the following arguments: 1. Petitioner is charged with a continuing offense; hence, his arrest and detention about two months after the abduction of the victims was lawful; 2. Since petitioner was arrested without a warrant, his case comes within the purview of Section 7 of Rule 112, not under Section 3 thereof; 3. The filing of the informations in court and the issuance of the corresponding warrants of arrest by Executive Judge Priscila S. Agana cured whatever defect there was in petitioners arrest and detention; 16

4. Petitioner was validly arraigned on October 14, 1997 and the validity of such arraignment was not set aside by this tribunal; 5. The case of Sanchez v. Demetriou squarely applies to the instant case; and 6. Petitioner is no longer a minor pursuant to R.A. 6809. The Solicitor General, meanwhile, in its comment to petitioners urgent motion for release, modified its stance regarding the validity of petitioners detention.10 It stated: Considering that petitioner was arraigned (a supervening event after the filing of the petition and before the issuance of the TRO), petitioner should be kept in detention without prejudice to his right to preliminary investigation.11 Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue of the preliminary investigation from Cebu City to Manila and to replace the Office of the City Prosecutor of Cebu with the Office of the State Prosecutor, Department of Justice, as the authority to conduct the preliminary investigation because of the extensive coverage of the proceedings by the Cebu media which allegedly influenced the peoples perception of petitioners character and guilt.12 The primary issues to be resolved are: (1) whether petitioner is entitled to a regular preliminary investigation, and (2) whether petitioner should be released from detention pending the investigation. We resolve the first issue in the affirmative. The prosecutors argue that petitioner is entitled only to an inquest investigation under Section 7 of Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the Revised Rules of Court. The prosecutors argument is bereft of merit. Section 7 of Rule 11213 applies only to persons lawfully arrested without a warrant. Petitioner in this case was, in the first place, not arrested either by a peace officer or a private person. The facts show that on September 15, 1997, some members of the Philippine National Police

Criminal Investigation Group (PNP CIG) went to the Center for Culinary Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner resisted the arrest and immediately phoned his sister and brother-in-law. Petitioners sister sought the aid of Atty. Raymundo A. Armovit. Atty. Armovit, over the phone, dissuaded the police officers from carrying out the warrantless arrest and proposed to meet with them at the CIG headquarters in Camp Crame, Quezon City. The police officers yielded and returned to the CIG headquarters. Petitioner, together with his sister and brother-in-law also went to the CIG headquarters aboard their own vehicle. Atty. Armovit questioned the legality of the warrantless arrest before CIG Legal Officer Ruben Zacarias. After consulting with his superiors, Legal Officer Zacarias ordered to stop the arrest and allowed petitioner to go home. Atty. Armovit made an undertaking in writing that he and petitioner would appear before the Cebu City Prosecutor on September 17, 1997 for preliminary investigation. An arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of an offense.14 It is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.15 An arrest signifies restraint on person, depriving one of his own will and liberty, binding him to become obedient to the will of the law.16 The foregoing facts show no restraint upon the person of petitioner. Neither do they show that petitioner was deprived of his own will and liberty. Hence, Section 7 of Rule 112 does not apply to petitioner. To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless arrest is deemed lawful, thus: Sec. 5. Arrest without a warrant; when lawful.-A peace officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 17

(b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sectio 7. It does not appear in the case at bar that petitioner has just committed, is actually committing or is attempting to commit an offense when the police officers tried to arrest him on September 15, 1997. In fact, petitioner was attending classes at the Center for Culinary Arts at that time. We reject the prosecutors' argument that petitioner was actually committing a crime at the time of the arrest since kidnapping with serious illegal detention is a continuing crime. In the case of Parulan v. Director of Prisons17 cited by the prosecutors, kidnapping with illegal detention is considered a continuing crime where the deprivation of liberty is persistent and continuing from one place to another. The facts show that the alleged kidnapping was committed on July 16, 1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains missing to date. There is no showing that at the time of the arrest on September 15, 1997, Jacqueline Chiong was being detained by petitioner who was then residing in Quezon City. Hence, petitioner may not be considered as continually committing the crime of kidnapping with serious illegal detention at the time of the arrest. Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors assert that petitioner is no longer entitled to a preliminary investigation because he had

previously waived his right to such investigation. In his omnibus order dated October 14, 1997, Judge Ocampo held that petitioner waived his right to preliminary investigation when he failed to appear during the preliminary investigation set by the City Prosecutor in the afternoon of September 17, 1997, despite the express warning that "failure of the counsel (to present the petitioner to the Cebu City Prosecutor on said time and date) would be treated as a waiver of his clients right to preliminary investigation." We disagree. A waiver, whether express or implied, must be made in clear and unequivocal manner. Mere failure of petitioner and his counsel to appear before the City Prosecutor in the afternoon of September 17, 1997 cannot be construed as a waiver of his right to preliminary investigation, considering that petitioner has been vigorously invoking his right to a regular preliminary investigation since the start of the proceedings before the City Prosecutor. At 9:00 in the morning of September 17, 1997, petitioners counsel appeared before the City Prosecutor of Cebu and moved that petitioner be accorded a regular preliminary investigation. The City Prosecutor, however, denied the motion, stating that petitioner is entitled only to an inquest investigation. Petitioner orally moved for a reconsideration, to no avail. Petitioner assailed the decision of the City Prosecutor before the Court of Appeals on a petition for certiorari, prohibition and mandamus. After the Court of Appeals dismissed said petition, petitioner went to this Court, still asserting that he should be accorded a regular preliminary investigation. Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the City Prosecutors directive to appear before him in the afternoon of September 17, 1997 for preliminary investigation. As stated above, petitioners counsel appeared before the City Prosecutor earlier that day and specifically demanded a regular preliminary investigation for his client. The City Prosecutor, however, insisted that petitioner was entitled only to an inquest investigation which he scheduled in the afternoon of the same day. Petitioner and his counsel 18

refused to submit to such investigation as it might be construed as a waiver of petitioners right to a regular preliminary investigation. Our ruling is not altered by the fact that petitioner has been arraigned on October 14, 1997. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.18 Petitioner, in this case, has been actively and consistently demanding a regular preliminary investigation even before he was charged in court. Also, petitioner refused to enter a plea during the arraignment because there was a pending case in this Court regarding his right to avail of a regular preliminary investigation.19 Clearly, the acts of petitioner and his counsel are inconsistent with a waiver. Preliminary investigation is part of procedural due process. It cannot be waived unless the waiver appears to be clear and informed. The next question is whether petitioner should be released from detention pending the investigation. We rul in the negative. The records show that on September 17, 1997, two informations were filed against petitioner for kidnapping and serious illegal detention.20 Executive Judge Priscila Agana issued a warrant of arrest on September 19, 1997.21 Petitioner was arrested on September 22, 1997 by virtue of said warrant. We held in Sanchez v. Demetriou22 that the filing of charges and the issuance of the warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. The Court ruled: The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired

jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of the court. The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93124637 for violation of R.A. No. 6713. Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention. The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that: Sec. 4. When writ is not allowed or discharge authorized.-If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. In one case, the petitioner sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While 19

frowning at the tactics of the respondents, the Court said: The case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade. The same doctrine has been consistently followed by the Court more recently in the Umil case.23 We hold, therefore, that petitioners detention at the Bagong Buhay Rehabilitation Center is legal in view of the information and the warrant of arrest against him. The absence of a preliminary investigation will not justify petitioners release because such defect did not nullify the information and the warrant of arrest against him.24 We ruled in Sanciangco, Jr. v. People:25 The absence of preliminary investigations does not affect the courts jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted.26 As regards petitioners motion to change the venue and the authority to conduct the preliminary investigation, we are constrained to dismiss the same for lack of jurisdiction. The holding of a preliminary investigation is a function of the Executive Department and not of the Judiciary.27 Petitioner should therefore address their plea to the Department of Justice that has control and supervision over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioners motion should still be denied because it failed to allege and prove that the City Prosecutor of Cebu has been actually affected by the publicity. We held in Webb v. De Leon:28 Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.29 We further held in People v. Teehankee:30 We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting 20

enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of the appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other offcourt publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, or idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twains wit and wisdom put them all in better perspective when he observed: When a getleman of high social standing, intellegence, and probity swears that testimony given under the same oath will overweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity xxx. Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants? Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et

al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove this actual bias and he has not discharged the burden.31 We likewise dismiss the complaint filed by Judge Martin A. Ocampo against Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for lack of concrete evidence to prove that said lawyers deliberately withheld from the Court the orders he issued with intent to mislead the Court. Finally, we also deny the motion of the prosecutors to dismiss the petition on the ground that it was not filed by the proper party. The prosecutors argue that petitioner Francisco Juan Larranaga is no longer a minor under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the authority to file the instant petition as his representative. It appears, however, that on October 6, 1997, petitioners mother filed a supplemental petition for habeas corpus on his behalf. This converted the petition at bar to one for habeas corpus. Section 3, Rule 102 of the Revised Rules of Court states that a petition for habeas corpus may be filed either by the party for whose relief it is intended or by some person on his behalf. IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the City Prosecutor of Cebu to conduct a regular preliminary investigation of petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease and desist from proceeding with the trial of petitioner until a preliminary investigation shall have been conducted; (2) SET ASIDE our order to immediately release petitioner pending the preliminary investigation and thus DENY petitioners urgent motion to implement petitioners release; (3) DISMISS Judge Ocampos complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido; and 21

(4) DENY petitioners motion to change the venue and the authority to conduct the preliminary investigation. [G.R. No. 164938. August 22, 2005] VICTOR C. AGUSTIN, petitioner, vs. HON. FERNANDO VIL PAMINTUAN, in his capacity as Presiding Judge of the Regional Trial Court of Baguio City, Branch 3; ANTHONY DE LEON and PEOPLE OF THE PHILIPPINES, Before the Court is a petition for review on certiorari of the Court of Appeals (CA) Decision[1] in CA-G.R. SP No. 70629 dismissing the petition for certiorari and prohibition filed by petitioner Victor C. Agustin which, in turn, assailed the Order of the Regional Trial Court (RTC) of Baguio City, Branch 3, denying the motion to quash the Informations in Criminal Case Nos. 17892-R to 17895-R, for libel. On June 13, 2000, the Office of the City Prosecutor of Baguio City, filed four separate Informations[2] charging the petitioner, a Philippine Daily Inquirer columnist, with libel. The inculpatory portion of that in Criminal Case No. 17892-R is quoted infra, as follows: That on or about the 17th day of March 2000, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent and malicious intent and evil motive of attacking, injuring and impeaching the character, honesty, integrity, virtue and reputation of one Anthony De Leon the acting general manager of the Baguio Country Club, and as a private citizen of good standing and reputation in the community and with malicious intent of exposing the (sic) Anthony De Leon to public hatred, contempt, ridicule, discredit and dishonor, without any justifiable motive, did then and there willfully, maliciously and criminally prepare or cause to prepare, write in his column Cocktails and publish in the Philippine Daily Inquirer, a newspaper of general circulation in the City of Baguio and in the entire Philippines, wherein in said column the said accused did then and there defame the complainant Anthony De Leon by branding and imputing upon him the following defamatory and libelous statements, to wit: The trysting place between the President Marcos and Hollywood actress Dovie

Beams is not the subject of a high level tax evasion investigation ordered by no less than the new BIR Commissioner, Dakila Fonacier. That bungalow on Northwestern Street had hastily changed hands in the last two years, and had supposedly been sold to, first Anthony De Leon, the acting general manager of the exclusive Baguio Country Club, who in turn disposed of it to an unwitting Chinoy couple. According to preliminary BIR findings, the transfer to Mr. De Leon is already spurious since the cook De Leon had been missing and had gone TNT in New York more than eight years ago. The spurious sale to the male De Leon who is not related to the cook, was necessary to make it appear that it had been an intra-family transfer. Second, the Baguio Country Club manager made it appear that he and his family had been using the house himself, but the BIR had now gotten a certification from the Greenhills homeowners association that the said bungalow has all these years been rented to third parties, the last of which was an ADB executive. The most damaging of the findings was the supposed transfer price of the bungalow between the De Leons and how much the bungalow was later palmed off to the Chinese-Filipino couple. We will leave those details for the BIR Commissioner to announce himself, that, if he could overcome the tremendous and well-oiled lobbying efforts by De Leon s principals. Tip: One of the principals is a lawyer and selfproclaimed best friend of Lenny Dragon Lady de Jesus. which aforesaid defamatory, malicious and libelous words and statements have been read by the personnel of the Baguio Country Club, by the residents of the City of Baguio, and by the public in the other parts of the country, and that those libelous and defamatory words and statements aforementioned are untrue, false and malicious tending to impeach the character, integrity, virtue and reputation of the said Anthony De Leon as 22

Acting General Manager of the Baguio Country Club, thus, placing and causing said Anthony De Leon to public hatred, contempt, dishonor, discredit and ridicule which acts are serious and insulting in nature, to the damage and prejudice of the said Anthony De Leon.[3] Except for the alleged libelous articles, as well as the dates of the commission of the crimes charged therein, the three other Informations are similarly worded. Agustin was arraigned on September 10, 2001, and pleaded not guilty to all the charges.[4] Agustin then filed a Motion to Quash the Informations, on the sole ground that the court had no jurisdiction over the offenses charged. He pointed out that the said Informations did not contain any allegation that the offended party, Anthony de Leon, was actually residing in Baguio City, or that the alleged libelous articles were printed and first published in a newspaper of general circulation in Baguio City. Private complainant De Leon, through counsel, opposed the motion, alleging that he was a bona fide resident of the Baguio Country Club located at the Country Club Road, Baguio City; he was also the acting general manager of the club at the time the alleged libelous article was published. He emphasized that the Informations alleged that he was of good standing and reputation in the community, and that the word community meant Baguio City, where he was residing. Moreover, Agustin was estopped from assailing the court s lack of jurisdiction since he was arraigned before he filed his motion to quash the Information. Even if it may be assumed that there was some ambiguity in the Informations as to whether he was an actual resident of Baguio City, amending them would suffice; based on the entirety of the context and applying the doctrine of necessary implication, there can be no other conclusion than that he was a resident of Baguio City. By way of Reply, Agustin averred that the allegations in the Informations (that the private complainant was the acting general manager of the Baguio Country Club and was a private citizen of good standing and reputation in the community) do not constitute an allegation that the

private complainant was an actual resident of Baguio City. He insisted that to construe the word community in the Informations to mean the community in Baguio City would be to unduly strain the limits of a fair interpretation; there must be clear and positive allegations in the Informations that the private complainant actually resided in Baguio City. He argued that he was not estopped from assailing the court s jurisdiction over the crimes charged even after his arraignment because lack of jurisdiction is a matter which can be dealt with at any time. On January 16, 2002, the trial court issued an Order[5] denying the motion to quash, holding that in the light of the petitioner s admission that the private complainant was the General Manager of the Baguio Country Club, it was reasonable to infer therefrom that the private complainant was actually a resident of Baguio City at the time the alleged libelous articles were published. Agustin filed a motion for reconsideration of the Order, insisting that the mere fact that the private complainant was the General Manager of the Baguio Country Club did not necessarily mean that the latter was actually residing in Baguio City, as it was also possible that he was actually residing in a place nearby. The trial court, however, denied the motion on April 1, 2002. Agustin forthwith filed a Petition for Certiorari and Prohibition with a plea for an injunctive relief before the Court of Appeals (CA), claiming that the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in denying his Motion to Quash. On February 24, 2004, the CA rendered a decision dismissing the petition. It disagreed with Agustin, and held that the trial court did not commit a grave abuse of discretion amounting to excess or lack of jurisdiction in so ruling. According to the CA, while the Informations filed by the prosecution did not contain allegations that the complainant was actually a resident of Baguio City at the time the alleged libelous articles were printed and first published, and that the alleged libelous articles were printed and first published in Baguio City, such defects were merely of form and not of substance. 23

Thus, there is no need to quash the Informations, as they may merely be amended pursuant to Section 14, Rule 110 of the Revised Rules of Criminal Procedure, which provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge, and thereafter, as to all matters of form with leave of court. [6] The CA further ruled that any amendment that would be made to conform to the private complainant s residency requirements would not place the accused at a disadvantage. Agustin filed a motion for reconsideration of the decision, which the appellate court denied for lack of merit.[7] Agustin, now the petitioner, insists that the CA erred in dismissing his petition for certiorari and prohibition, it appearing that the trial court committed a grave abuse of its discretion in denying his Motion to Quash the Informations, as well as his motion for reconsideration of the trial court s order denying the same. The petitioner maintains that in the absence of any allegations in the Informations that the private respondent was actually residing in Baguio City, or that the alleged libelous articles were printed and first published in Baguio City as mandated by Article 360 of the Revised Penal Code, the trial court had no jurisdiction over the offenses charged. He asserts that the amendments of the Informations would likewise be improper, considering that the defects of the Informations were not merely of form but of substance. The petitioner posits that venue in criminal cases is jurisdictional and mandatory; hence, conformably with the decisions of the Court in Lopez v. City Judge,[8] and Agbayani v. Sayo,[9] the Informations must be quashed. In its Comment on the petition, the Office of the Solicitor General (OSG) maintains that the failure of the Informations to allege that the private respondent is a resident of Baguio City (where the Informations were filed) is not a jurisdictional defect. It asserts that the averment in the Informations that the crimes charged were committed within the jurisdiction of the trial court in Baguio City, taken in conjunction with the other

allegations therein, are sufficient to vest jurisdiction over the subject cases in the RTC of Baguio City. For his part, the private complainant reiterated his arguments in the RTC and in the CA in his Comment on the Petition. The threshold issues in the present petition are (1) whether or not the RTC of Baguio City has jurisdiction over the offenses charged in the four Informations on the premise that the Informations are defective; and (2) whether the Informations may be amended to cure the said defects. The petition is meritorious. Venue in criminal cases is an essential element of jurisdiction.[10] The jurisdiction of a court over the criminal case is determined by the allegations in the complaint or Information, and the offense must have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court.[11] Article 360 of the Revised Penal Code provides ART. 360. Persons responsible. Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense; Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be 24

filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance or the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions to which have been filed in court at the time of the effectivity of this law. Preliminary investigation of criminal actions for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such actions may be instituted in accordance with the provisions of this article. No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. Thus, the rules on venue in Article 360 of the Revised Penal Code are as follows: 1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published. 2. If the offended party is a private individual, the criminal action may also be filed in the Court of First

Instance of the province where he actually resided at the time of the commission of the offense. 3. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila. 4. If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.[12] Experience has shown that under the old rule, the offended party could harass the accused in a libel case by laying the venue of the criminal action in a remote or distant places.[13] To obviate controversies as to the venue of the criminal action from written defamation, the complaint or Information should contain allegations as to whether the offended party was a public officer or a private individual at the time the offense was committed, and where he was actually residing at that time; whenever possible, the place where the written defamation was printed and first published should likewise be alleged.[14] In this case, the Informations did not allege that the offended party was actually residing in Baguio City at the time of the commission of the offenses, or that the alleged libelous articles were printed and first published in Baguio City. It cannot even be inferred from the allegation the offended party was the Acting General Manager of the Baguio Country Club and of good standing and reputation in the community that the private respondent (complainant) was actually residing in Baguio City. The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode provided he resides therein with continuity and consistency; no particular length of time of residence is required. However, the residence must be more than temporary.[15] The term residence involves the idea of something beyond a transient stay in the place; and to be a resident, one must abide in a place where he had a 25

house therein.[16] To create a residence in a particular place, two fundamental elements are essential: The actual bodily presence in the place, combined with a freely exercised intention of remaining there permanently or for an indefinite time.[17] While it is possible that as the Acting General Manager of the Baguio Country Club, the petitioner may have been actually residing in Baguio City, the Informations did not state that he was actually residing therein when the alleged crimes were committed. It is entirely possible that the private complainant may have been actually residing in another place. One who transacts business in a place and spends considerable time thereat does not render such person a resident therein.[18] Where one may have or own a business does not of itself constitute residence within the meaning of the statute. Pursuit of business in a place is not conclusive of residence there for purposes of venue.[19] We do not agree with the ruling of the CA that the defects in the Informations are merely formal. Indeed, the absence of any allegations in the Informations that the offended party was actually residing in Baguio City, where the crimes charged were allegedly committed, is a substantial defect. Indeed, the amendments of the Informations to vest jurisdiction upon the court cannot be allowed.[20] IN LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 70629 are SET ASIDE. The Regional Trial Court of Baguio City, Branch 3, is hereby DIRECTED TO QUASH the Informations and DISMISS the cases against petitioner Victor C. Agustin in Criminal Case Nos. 17892R to 17895-R.

.R. No. 124212. June 5, 1998 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. WILFREDO FELOTEO, Accused-Appellant. Accused WILFREDO FELOTEO was charged with and convicted of the crimes of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and Illegal Possession of Firearm, a violation of Section 1 of Presidential Decree No. 1866. The Informations against accused read: In Criminal Case No. 11109 "That on or about the 6th day of May, 1993, in the evening, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with evident premeditation and treachery, while armed with a firearm and with intent to kill, did then and there willfully, unlawfully and feloniously shoot with his firearm, to wit: an armalite rifle, one SONNY SOTTO, hitting him on the vital part of his body and inflicting upon him a gunshot wound on the left side of his chest, thru and thru, which injury was the direct and immediate cause of his instantaneous death. (emphasis ours) "CONTRARY TO LAW and committed with aggravating circumstance of treachery." In Criminal Case No. 11644 "That on or about the 6th day of May, 1993, and prior thereto, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control, one armalite rifle with Serial No. 9035914 and ammunitions, without any license or permit to possess the same and that this firearm was used in shooting to death one SONNY SOTTO in a case of Murder filed with the RTC of Palawan and Puerto Princesa City, docketed as Criminal Case No. 11109 and that this crime have no

relation or in furtherance of the crime of rebellion or subversion. (emphasis ours) "CONTRARY TO LAW." When arraigned, accused pled not guilty. Trial ensued. The records show that in the evening of May 6, 1993, the victim, SONNY SOTTO, and his friends, ARNEL ABELEDA and JOHNNY ABREA, were walking along the highway in Barangay Bintuan, Coron, Province of Palawan. They had a few drinks earlier that day and were on their way home to Sitio Nagbaril. Abrea walked ahead of the group, about thirteen meters away from Sotto, followed by Abeleda. They were in a lively mood as Abeleda playfully walked backwards, facing Sotto.1 The accused, WILFREDO FELOTEO, appeared on the opposite side of the road and walked past Abrea and Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the accused, their barriomate, as the moon was shining brightly. They did not pay much attention to the accused as Abeleda was playing "habulan" with Sotto. Without uttering a word, the accused aimed the armalite at Sotto and pressed its trigger. Sotto was hit above the left chest and fell on the ground, face down. Abeleda and Abrea scampered away to find help, while the accused fled from the crime scene.2 Ten (10) minutes later, Abeleda and Abrea, accompanied by Barangay Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They found Sotto dead. Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a gunshot wound, with the bullet entering the left side of his collarbone and exiting at the spinal cord. The bullet came from an M-16 armalite rifle. He also had abrasions on the knees and face. Dr. Hew G. Curameng of the Palawan Provincial Hospital opined that Sotto fell on his knees before he slumped on the ground, face down. There were no powder burns on his body, indicating that the victim was shot from a distance. The cause of death was massive blood loss secondary to gunshot wound.3

26

The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2 Adion went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official service firearm, an M-16 armalite rifle,4 as he has been ordered to go to Jandanao the next day to investigate a land dispute. He slept early. At around 6:30 p.m., Alaquin woke him up and informed him that the accused stole his armalite. SPO2 Adion, together with Nazario Adion and Frank Adion, immediately looked for the accused. They heard a gunshot coming from a distance of about four hundred (400) meters and rushed to the place where it emanated. They saw Sotto lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his armalite was used in the shooting incident and he continued his hunt for the accused. The next day, May 7, 1993, at 5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen (19) bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and magazine before it was stolen.5 SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to carry a firearm.6 The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto was an accident. He averred that on May 6, 1993, he was in his sister's house in Barangay Bintuan, Coron, when SPO2 Adion passed by and invited him over to the place of Teofisto Alaquin in Nagbaril. They boarded SPO2 Adion's tricycle and arrived at Nagbaril at about 3:00 p.m. Frank Adion dropped by the house of Alaquin and borrowed the tricycle of SPO2 Adion. Frank Adion later returned on foot and told SPO2 Adion that the tricycle's engine broke down so he left it along the road. SPO2 Adion checked on his tricycle and left behind his armalite rifle. Before leaving, he instructed the accused to wait for him at Alaquin's house.7

After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked the road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as they walked. In jest, the accused said to Sotto, "Boots, don't get near me, I'll shoot you." He pointed the armalite to Sotto and pressed its trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused fled but was apprehended by SPO2 Adion the following day. He told SPO2 Adion that he accidentally shot Sotto.8 After trial, the accused was found guilty as charged.9 He was sentenced to suffer the penalties of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of firearm. He was further ordered to pay the heirs of Sotto the amount of fifty thousand pesos (P50,000.00), as civil indemnity. In this appeal, appellant contends: "THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AS ATTENDING THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSED-APPELLANT GUILTY OF MURDER IN THE KILLING OF SONNY SOTTO." We affirm the judgment of conviction. We reject the argument of the appellant that he should not have been convicted for murder as treachery was not duly established by the prosecution. Allegedly, Sotto knew of the impending attack for it was frontal. Moreover, Sotto was warned, albeit jokingly, that he was going to be shot. Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make.10 The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the execution of the attack, without the slightest provocation from a 27

victim who is unarmed, made it impossible for the victim to defend himself or to retaliate.11 In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto. When Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as they just came from a drinking spree. Although they saw appellant carrying an armalite, they did not suspect anything untoward to happen. However, without any provocation, appellant shot Sotto. The fact that the attack was frontal cannot negate treachery. The shooting was unexpected. There is no showing that the alleged warning given by appellant to Sotto afforded the latter sufficient time to defend himself. Indeed, Sotto could not defend himself as he was unarmed and a bit drunk-- as observed by the appellant himself, the victim was walking in a zigzag manner. There was no way for Sotto to avoid the armalite bullets. We now come to the penalty imposed on appellant for the illegal possession of firearm in view of the recent amendments to P.D. No. 1866 by R.A. No. 8294. Appellant was convicted under Section 1 of P.D. No. 1866, the governing law at the time the crime was committed. It provides: "SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition of machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." (emphasis ours) The penalty for the aggravated form of illegal possession of firearm under P.D. No. 1866 is death. Since at that time, the death penalty cannot be 28

enforced in view of Article III (19) (1) of the 1987 Constitution, appellant should have been sentenced to serve the penalty of reclusion perpetua,12 not twenty (20) years of imprisonment. Nonetheless, Republic Act No. 8294, amended P.D. No. 1866, by reducing the penalties for simple and aggravated forms of illegal possession of firearms.13 The law now provides: "Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include: 1) firearms with expired license, or 2) unauthorized use of licensed firearm in the commission of the crime."

Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a fine of P30,000.00. In case homicide or murder is committed with the use of unlicensed firearm, such use of unlicensed firearm shall be merely considered as an aggravating circumstance. The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant.14 So we held in People vs. Simon,15 viz: "Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved or invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: `x x x. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.' If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic consideration would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus." As mentioned above, the penalty for simple illegal possession of high powered firearm is prision mayor in its minimum period.16 This penalty was taken from the Revised Penal Code, hence, although P.D. No. 1866, as amended by RA 8294, is a special law, the rules in said Code for graduating penalties by degrees or determining the proper period should be applied.17 In the case at bar, an unlicensed firearm was used in committing murder, thus, aggravating the crime and 29

increasing the imposable penalty to the maximum period of prision mayor minimum, the duration of which ranges from seven (7) years, four (4) months and one (1) day to eight (8) years.18 We determine the minimum and maximum sentence pursuant to the first part of Section 1 of the Indeterminate Sentence Law19 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." Accordingly, the minimum range of the indeterminate sentence shall be taken from any of the periods of prision correccional maximum, the penalty next lower in degree to the penalty of prision mayor minimum. Prision correccional maximum has a duration of four (4) years, two (2) months and one (1) day to six (6) years. On the other hand, the maximum penalty to be imposed, taking into consideration the aggravating circumstance attending the commission of the crime, shall be taken from the maximum period of prision mayor minimum which ranges from seven (7) years, four (4) months and one (1) day to eight (8) years. IN VIEW WHEREOF, the judgment against appellant in Criminal Case Nos. 11109 (for Murder) and Criminal Case No. 11644 (for Illegal Possession of Firearm) is AFFIRMED, with the MODIFICATION that, in Criminal Case No. 11644, appellant should be sentenced, as he is hereby sentenced, to an indeterminate penalty of six (6) years of prision correccional, as the minimum term, and eight (8) years of prision mayor minimum, as the maximum term. No costs.

SSGT. JOSE M. PACOY - versus - HON. AFABLE E. CAJIGAL,PEOPLE OF THE PHILIPPINES and OLYMPIO L. ESCUETA, September 28, 2007 gr 157472 Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders dated October 25, 2002[2] and December 18, 2002[3] issued by Presiding Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42. On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as follows: That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body which caused his instantaneous death. With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.[4] On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on October 8, 2002.[] However, on the same day and after the arraignment, the respondent judge issued another Order,[6] likewise dated September 12, 2002, directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the crime to Murder. Acting upon such Order, the prosecutor entered his amendment by crossing out the word Homicide and instead wrote the word Murder in the caption 30

and in the opening paragraph of the Information. The accusatory portion remained exactly the same as that of the original Information for Homicide, with the correction of the spelling of the victim s name from Escuita to Escueta. [7] On October 8, 2002, the date scheduled for pretrial conference and trial, petitioner was to be rearraigned for the crime of Murder. Counsel for petitioner objected on the ground that the latter would be placed in double jeopardy, considering that his Homicide case had been terminated without his express consent, resulting in the dismissal of the case. As petitioner refused to enter his plea on the amended Information for Murder, the public respondent entered for him a plea of not guilty.[8] On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the Resolution of the Instant Motion[9] on the ground of double jeopardy. Petitioner alleged that in the Information for Homicide, he was validly indicted and arraigned before a competent court, and the case was terminated without his express consent; that when the case for Homicide was terminated without his express consent, the subsequent filing of the Information for Murder in lieu of Homicide placed him in double jeopardy. In an Order[10] dated October 25, 2002,[11] the respondent judge denied the Motion to Quash. He ruled that a claim of former acquittal or conviction does not constitute double jeopardy and cannot be sustained unless judgment was rendered acquitting or convicting the defendant in the former prosecution; that petitioner was never acquitted or convicted of Homicide, since the Information for Homicide was merely corrected/or amended before trial commenced and did not terminate the same; that the Information for Homicide was patently insufficient in substance, so no valid proceedings could be taken thereon; and that with the allegation of aggravating circumstance of disregard of rank, the crime of Homicide is qualified to Murder.

Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and partial manner in mandating the amendment of the charge from Homicide to Murder in disregard of the provisions of the law and existing jurisprudence. In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or otherwise terminated without his express consent, which constitutes a ground to quash the information for murder; and that to try him again for the same offense constitutes double jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard of rank qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to affect the imposition of the period of the penalty. Petitioner also argued that the amendment and/or correction ordered by the respondent judge was substantial; and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already been arraigned and he would be placed in double jeopardy. In his Order dated December 18, 2002,[12] the respondent judge denied the Motion to Inhibit and granted the Motion for Reconsideration, thus: WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the Motion for Reconsideration is hereby GRANTED. Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this case. Further, the Order dated October 25, 2002 is reconsidered and the original information charging the crime of homicide stands.[13] In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article 248 of the Revised Penal Code shows that disregard of rank is merely a generic mitigating[14] circumstance which should not elevate the classification of the crime of homicide to murder. On April 30, 2003,

petitioner filed herein petition for certiorari on the following grounds: THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM HOMICIDE TO MURDER. THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER. THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED.[15] Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the public respondent ordered the amendment of the Information from Homicide to Murder because of the presence of the aggravating circumstance of disregard of rank, which is in violation of Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the public respondent s ruling that disregard of rank is a qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of rank is only a generic aggravating circumstance which serves to affect the penalty to be imposed upon the accused and does not qualify the offense into a more serious crime; that even assuming that disregard of rank is a qualifying aggravating circumstance, such is a substantial amendment which is not allowed after petitioner has entered his plea. Petitioner next contends that the respondent judge gravely abused his discretion when he denied the Motion to Quash the Information for Murder, considering that the original Information for Homicide filed against him was terminated without his express consent; thus, prosecuting him for the same offense would place him in double jeopardy. Petitioner further argues that although the respondent judge granted his Motion for 31

Reconsideration, he did not in fact grant the motion, since petitioner's prayer was for the respondent judge to grant the Motion to Quash the Information for Murder on the ground of double jeopardy; that his Motion for Reconsideration did not seek the reinstatement of the Information for Homicide upon the dismissal of the Information for Murder, as he would again be placed in double jeopardy; thus, the respondent judge committed grave abuse of discretion in reinstating the Homicide case. In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the Information to Homicide after initially motu proprio ordering its amendment to Murder renders herein petition moot and academic; that petitioner failed to establish the fourth element of double jeopardy, i.e., the defendant was acquitted or convicted, or the case against him was dismissed or otherwise terminated without his consent; that petitioner confuses amendment with substitution of Information; that the respondent judge's Order dated September 12, 2002 mandated an amendment of the Information as provided under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not entail dismissal or termination of the previous case. Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no grave abuse of discretion was committed by the respondent judge when he denied petitioner's Motion to Quash the Amended Information, as petitioner was not placed in double jeopardy; that the proceedings under the first Information for homicide has not yet commenced, and the case was not dismissed or terminated when the Information was amended. In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to Murder after his arraignment would place him in double jeopardy, considering that said amendment was without his express consent; and that such amendment was tantamount to a termination of the charge of Homicide.

The parties filed their respective Memoranda. Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the established policy of strict observance of the judicial hierarchy of courts. However, the judicial hierarchy of courts is not an iron-clad rule.[16] A strict application of the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do not involve factual but legal questions.[17] In the present case, petitioner submits pure questions of law involving the proper legal interpretation of the provisions on amendment and substitution of information under the Rules of Court. It also involves the issue of double jeopardy, one of the fundamental rights of the citizens under the Constitution which protects the accused not against the peril of second punishment but against being tried for the same offense. These important legal questions and in order to prevent further delay in the trial of the case warrant our relaxation of the policy of strict observance of the judicial hierarchy of courts. The Court s Ruling The petition is not meritorious. We find no merit in petitioner's contention that the respondent judge committed grave abuse of discretion in amending the Information after petitioner had already pleaded not guilty to the charge in the Information for Homicide. The argument of petitioner Considering the fact that the case for Homicide against him was already terminated without his express consent, he cannot anymore be charged and arraigned for Murder which involve the same offense. The petitioner argued that the termination of the information for Homicide without his express consent is equivalent to his acquittal. Thus, to charge him again, this time for Murder, is tantamount to placing the petitioner in Double Jeopardy.[18]

32

is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the Rules of Court, to wit -SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. with Section 19, Rule 119 of which provides: SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19] is instructive, viz: The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. It may accordingly be posited that both amendment and substitution of the information may be made 33

before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would

be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter.[20] In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution as defined in Teehankee. While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal.[21] Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the 34

complaint or information.[22] Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner. While the respondent judge erroneously thought that disrespect on account of rank qualified the crime to murder, as the same was only a generic aggravating circumstance,[23] we do not find that he committed any grave abuse of discretion in ordering the amendment of the Information after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was only formal and did not adversely affect any substantial right of petitioner. Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that the respondent judge committed grave abuse of discretion in denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy is not meritorious. Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides: SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:x x x x (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit: SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated

without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.[24] As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.[25] It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof; or prosecution for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.[26] Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his express consent, which is tantamount to an acquittal, is misplaced. Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal which terminates the case.[27] And for the dismissal to be a bar under the jeopardy clause, it must have the effect of acquittal. The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend the Information but not to dismiss the same 35

upon the filing of a new Information charging the proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court - which, for convenience, we quote again -If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. and Section 19, Rule 119, which provides: SEC. 19.- When mistake has been made in charging the proper offense - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to a second information, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.[28]

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word Homicide and writing the word Murder, instead, which showed that there was no dismissal of the homicide case. Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering that the original Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder. That ruling was again a violation of his right against double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has already been terminated earlier. We are not convinced. Respondent judge did not commit any grave abuse of discretion. A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's motion for reconsideration, not on the ground that double jeopardy exists, but on his realization that disregard of rank is a generic aggravating circumstance which does not qualify the killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original Information for Homicide. The requisite of double jeopardy that the first jeopardy must have attached prior to the second is not present, considering that petitioner was neither convicted nor acquitted; nor was the case against him dismissed or otherwise terminated without his express consent.[29] WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by respondent Judge.

EN BANC [G.R. No. 137842. August 23, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO CATUBIG y HORIO, accused-appellant. In an information, dated 29 January 1998, the accused, Danilo Catubig y Horio, was charged with the crime of rape before the Regional Trial Court, Branch 78, of Malolos, Bulacan; viz: The undersigned Asst. Provincial Prosecutor on complaint of the offended party Dannilyn Catubig y Lazaro accuses Danilo Catubig y Horio of the crime of rape, penalized under the provisions of Art. 335 of the Revised Penal Code, committed as follows: That on or about the 27th day of November, 1997, in the municipality of San Jose del Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, by means of force, threats and intimidation and with lewd design have carnal knowledge of the said offended party against her will. [1] When arraigned on 16 July 1998, accused Catubig, represented by counsel de oficio, pleaded not guilty to the offense charged; forthwith, trial ensued. The case for the prosecution was laid bare in Appellee s Brief submitted by the Office of the Solicitor General. On November 27, 1997, at around 4:00 o clock in the afternoon, private complainant Dannilyn Catubig, who was born on August 9, 1985, and her four (4) younger siblings were watching television in the sala of their house located at Sunlife Subdivision, San Jose del Monte, Bulacan. After an hour, Dannilyn s father, herein appellant Danilo Catubig, arrived and told Dannilyn s siblings to proceed, as in fact they did proceed, to her aunt s house which is just located nearby. Thereafter, appellant told Dannilyn to go inside a room and to lie down on the bed. After Dannilyn had complied, appellant removed Dannilyn s shorts and panty, while appellant, after removing his brief and t-shirt, [laid] on 36

top of Dannilyn. Afraid of appellant who beat and raped her in the past, Dannilyn was not able to resist appellant who succeeded in inserting his penis into Dannilyn s vagina. However, Dannilyn s aunt, who got suspicious of what appellant was doing to Dannilyn, informed the latter s mother, Jocelyn Catubig, about the said suspicion. Thus, when confronted by her mother, Dannilyn was forced to reveal that she was indeed raped by appellant. The sexual assault was reported to the San Jose del Monte Police Station where Dannilyn s sworn statement was subsequently taken on December 3, 1997. Upon the request of the police authorities, Dannilyn was examined on December 1, 1997 by Dr. Wilfredo E. Tiera, Medico-Legal Officer of the National Bureau of Investigation, who found out that Dannilyn s healed laceration in the hymen was caused by sexual intercourse. [2] The accused denied the accusation against him. He claimed that the rape charge was brought about only because of the ill-will between him, on the one hand, and his wife and daughter Dannilyn, on the other hand, following a quarrel. On 27 November 1997, he asseverated, he had fought with his wife, hitting her and his daughter. His wife then threatened him that it was the last time that she would allow him to harm her and that he would regret what he did. True to her foreboding, the next day, he was arrested and a complaint for rape was filed against him. On 11 December 1998, the Regional Trial Court rendered a decision holding the accused guilty of the crime of rape; it adjudged: WHEREFORE, in view of the foregoing, the Court hereby finds accused DANILO CATUBIG Y HORIO GUILTY beyond reasonable doubt of the crime of Rape defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, and hereby sentences him to suffer the penalty of DEATH, and to pay private complainant Dannilyn Catubig the

amount of Fifty Thousand Pesos (P50,000.00) as moral damages. [3] With the imposition of the death penalty by the trial court, the records were elevated to this Court for automatic review. In his brief, appellant submitted thusly: 1. The lower court erred in finding the accused guilty of the crime of rape in violation of Article 335 of the Revised Penal Code as amended by Republic Act 7659. 2. The lower court erred in not taking into consideration the fact that the information was defective for failure to state that the accused is the father of the victim and that the victim was under 18 years [of] age at the time of the commission of the alleged rape. [4] Private complainant Dannilyn Catubig narrated how she was repeatedly abused by her own father; she testified: Q Now, after your sisters and brother [went] to the house of your aunt, what did your father do? A He instructed me to go inside the room. Q How many rooms were there in your house? A Only one. Q Did you go to the room per instruction? A Yes, sir. Q And what happened inside the room? A My father entered the room. Q And when your father entered the room, what did he do next? A He removed my short [pants] and my panty. Q What was your position at that time when your father removed your short pants and panty? A I was lying. Q When you entered the room, did you lie immediately? A No, I just sat. Q How come as you claimed a while ago, you were lying when your father removed your short pants and panty? 37

A Once I entered the room, I was sitting then he removed my short [pants] and panty. Q You said upon entering the room, you sat and while sitting, all of a sudden your father removed your short pants and panty while already lying at that time, how come you were lying when according to you, you were sitting inside the room? A I was sitting first and he instructed me to lie down. Q While you were sitting inside the room and you were instructed by your father to lie, what comes to your mind? A That he will rape me. Q How did you come to know that?

A He was inserting his penis to my vagina. Q At this juncture, may we make of record that witness starts to cry. Q How did you know your father inserted his penis to your vagina? A I can feel it and it is painful. Q That was the time when your father was already lying on top of you? A Yes, sir. Q And what was the movement of the body of your father while he was lying on top of you? A Push and pull movement.

A He was raping me before, doing that before. Q In other words, that was not the first time your father raped you on that particular date? A No, sir. Q Aside from the pain, what else did you feel? Q When was the first time, if you remember? A Mahapdi at parang may pumipitik sa loob ng ari ko. A When I was still in grade 1. Q Did you not try to resist? Q How many times were you raped by your father? A No, because I am afraid of him. A I can no longer remember how many it was several. Q When was the last time your father raped you? A November 27. Q Now, when your father removed your short pants and panty, what did he do next? A He removed his brief and shirt. Q After removing his brief and shirt, what did he do? A He [laid] on top me. Q When your father [laid] on top of you, what did he do? 38 Q You are afraid of your father? A Yes, sir. Q Afraid of what? A Because he was beating us, hitting us. Q Why, what was the reason why your father was hitting you? A To threaten us. Q For what purpose? A Whenever my mother sided with us, my father and mother engaged in a fight. Q For how long did your father stay on top of you doing that push and pull movement? A That must be about 1 hour, but my aunt arrived.

Q In this case, you were raped and sexually abused by your father, what made you afraid of him? A Because we were afraid of my father since childhood. [5] Dannilyn has given her testimony in a plain, categorical, spontaneous and frank manner, remaining consistent throughout, and there is hardly anything on record that can cast doubt on her sincerity. The revelations of an innocent child whose chastity has been abused, coupled with her willingness to face police investigation and to undergo the trouble and humiliation of a public trial, should merit credence unless strong justifications dictate otherwise. Indeed, it would take a most senseless kind of depravity for a young daughter to just make up a story which could put her own father to an undeserved indictment and to even possibly face death in the hands of the law.[6] When rape is committed against one s own daughter, the moral ascendancy and influence of the father, that necessarily flows from his parental authority, can sufficiently cow the child to submission and can rightly be held to substitute for the requisite violence or intimidation that, normally, would be characterized by physical acts and uttered threats made on the victim. The trite defenses of alibi and denial proferred by appellant cannot prevail over the positive and categorical statements of private complainant. Alibi is often viewed with suspicion and received with caution not only because it is inherently weak and unreliable but also because it is easy to fabricate. In order that this defense can prosper, it must be convincing to preclude any doubt on the physical impossibility of the presence of the accused at the locus criminis at the time of the incident. These conditions have not been met in the case at bar. The contention of appellant that his wife and daughter Dannilyn have accused him merely because of his violent ways is much too flimsy to be believed. The mere resentment of a wife and daughter is not so compelling as to have motivated them to wrongly lodge

a complaint for a crime much more serious than might, if at all, be expected. It is likewise a settled doctrine that the assessment made by the trial court on the credibility of witnesses deserves great regard and weight on appeal. The rule is not without reason; the trial judge has a unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude during the course of the testimony in open court. There is no valid reason to now ignore this long accepted jurisprudence in this instance. This Court, however, finds the second assignment of error impressed with merit. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, at times also referred to as the Death Penalty Law, states in part: Art. 335. When and how rape is committed. x x x 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, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The concurrence of the minority of the victim and her relationship to the offender are special qualifying circumstances that are needed to be alleged in the complaint or information for the penalty of death to be decreed.[7] The Constitution guarantees to be inviolable the right of an accused to be informed of the nature and cause of the accusation against him.[8] It is a requirement that renders it essential for every element of the offense with which he is charged to be properly alleged in the complaint or information. Here, the information failed to state the minority of the victim and her relationship with the offender, both special qualifying circumstances under Republic Act No. 7659, and for want of such allegations, the trial court erred in imposing the death penalty on the accused.[9] Appellant could only thus be convicted under Article 39

335 of the Revised Penal Code, as amended, of simple rape punishable by reclusion perpetua. Anent the award of damages, the trial court has correctly awarded P50,000.00 moral damages, an award that rests on the jural foundation that the crime of rape necessarily brings with it shame, mental anguish, besmirched reputation, moral shock and social humiliation to the offended party.[10] In addition, the offended party deserves to receive the amount of P50,000.00 civil indemnity,[11] the equivalent of compensatory damages, and exemplary damages in the amount of P25,000.00. An apparent discord in the award of exemplary damages in simple and qualified rape cases perhaps deserves more than just a passing remark. The Civil Code of the Philippines provides, in respect to exemplary or corrective damages, thusly: ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. ART. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. ART. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. ART. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated.

ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages. ART. 2235. A stipulation whereby exemplary damages are renounced in advance shall be null and void. The attendance of aggravating circumstances in the perpetration of the crime serves to increase the penalty (the criminal liability aspect),[12] as well as to justify an award of exemplary or corrective damages (the civil liability aspect),[13] moored on the greater perversity of the offender manifested in the commission of the felony such as may be shown by (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender or the offended party or both. There are various types of aggravating circumstances, among them, the ordinary and the qualifying. Relationship is an alternative circumstance under Article 15 of the Revised Penal Code. Art. 15. Their concept. --Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. They are relationship, intoxication, and degree of instruction and education of the offender. The alternative circumstance of relationship shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degree of the offender.

40

As a rule, relationship is held to be aggravating in crimes against chastity, such as rape and acts of lasciviousness, whether the offender is a higher or a lower degree relative of the offended party.[14] Under Section 11 of Republic Act No. 7659, amending Article 335 of the Revised Penal Code, the death penalty is to be imposed in rape cases when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The Court has since held that the circumstances enumerated by the amendatory law are to be regarded as special qualifying (aggravating) circumstances. Somehow doubts linger on whether relationship may then be considered to warrant an award for exemplary damages where it is used to qualify rape as a heinous crime, thereby becoming an element thereof, as would subject the offender to the penalty of death. Heretofore, the Court has not categorically laid down a specific rule, preferring instead to treat the issue on a case to case basis. In People vs. Fundano,[15] People vs. Ramos,[16] People vs. Medina,[17] People vs. Dimapilis,[18] People vs. Calayca,[19] People vs. Tabion,[20] People vs. Bayona,[21] People vs. Bayya,[22] and People vs. Nuez,[23] along with still other cases, the Court has almost invariably appreciated relationship as an ordinary aggravating circumstance in simple rape and thereby imposed exemplary damages upon the offender whether or not the offense has been committed prior to or after the effectivity of Republic Act No. 7659. Exceptionally, as in People vs. Decena,[24] People vs. Perez,[25] People vs. Perez,[26] and People vs. Ambray,[27] the Court has denied the award of exemplary damages following the effectivity of that law. In qualified rape cases, such as in People vs. Magdato,[28] People vs. Arizapa,[29] and People vs. Alicante,[30] the Court decreed the payment of exemplary damages to the offended party but it did not so do as in People vs. Alba,[31] People vs. Mengote,[32] and People vs. Maglente.[33]

It may be time for the Court to abandon its pro hac vice stance and provide, for the guidance of the bar and the bench, a kind of standard on the matter. Also known as punitive or vindictive damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted,[34] the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud[35]- that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like him from similar conduct in the future.[36] The term aggravating circumstances used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It 41

would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. Relevantly, the Revised Rules on Criminal Procedure, made effective on 01 December 2000, requires aggravating circumstances, whether ordinary or qualifying, to be stated in the complaint or information. Sections 8 and 9 of Rule 110 of the Rules of Court now provide: Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusations. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. A court would thus be precluded from considering in its judgment the attendance of qualifying or aggravating circumstances if the complaint or information is bereft of any allegation of the presence of such circumstances. The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the private offended party that have become vested prior 42

to the effectivity of said rules. Thus, in the case at bar, although relationship has not been alleged in the information, the offense having been committed, however, prior to the effectivity of the new rules, the civil liability already incurred by appellant remains unaffected thereby. WHEREFORE, the decision of the court a quo is AFFIRMED with MODIFICATION in that appellant Danilo Catubig y Horio is found guilty only of simple rape and not in its qualified form, and he is hereby sentenced to suffer the penalty of reclusion perpetua and to pay complainant Dannilyn Catubig P50,000.00 civil indemnity, P50,000.00 moral damages and P25,000.00 exemplary damages. Costs de oficio.