G.R. No. 114046 October 24, 1994 HONORATO GALVEZ and GODOFREDO DIEGO, petitioners, vs.

COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents. Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamuswith a petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated February 18, 1994, in CA-G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). 4 On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93. 5 Both accused posted their respective cash bail bonds and were subsequently released from detention. On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper crimes chargeable against the accused," 6 which was granted by Judge Villajuan in an order dated November 16, 1993. 7 Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation of the aforesaid criminal cases filed against herein petitioners. 8

By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 9 filed by respondent prosecutor, the proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue shall have been resolved by the Supreme Court, and the preliminary investigation being conducted by the former shall have been terminated. 10 It appears that on December 2, 1993, private complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to prevent a miscarriage of justice. 11 On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to 3644-M-93, respondent prosecutor filed an Ex parte Motion to Withdraw Informations in said cases. considered withdrawn from the docket of the court.
13 12

This motion was granted by Judge Villajuan also on December 15, 1993 and the cases were

On the same day, Prosecutor Villa-Ignacio filed four new informations against herein petitioners

for murder, two counts of frustrated murder, and violation of Presidential Decree No. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10, Regional Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein petitioners.15 On December 23, 1993, said presiding judge issued an order setting the arraignment of the accused for December 27, 1993. 16 On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993 which granted the motion to withdraw the original informations. 17 Thereafter, a Motion to Quash the new informations for lack of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At the court session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at the same time, directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea. 19 In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused therein for February 8, 1994. 20 On said date, however, the arraignment was suspended and, in the meanwhile, petitioners filed a petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of February 18, 1994, hence this petition. I. On the Main Petition

The main issue in this case involves a determination of the set of informations under which herein petitioners should be tried, that is, (a) the first set of informations for homicide and frustrated homicide in Criminal Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several corollary but equally important issues have likewise been addressed to us for resolution, to wit: 1. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110; 2. Whether the order granting the withdrawal of the original informations was immediately final and executory; 3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly had no authority to file the second set of informations; and (b) the filing thereof constituted forum shopping; and 4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid. We shall discuss these issues seriatim. 1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo, the order granting the same is null and void. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further stressed that in case there is a need to change the nature of the offense charged, that is, from homicide to murder, by adding the qualifying circumstance of treachery, the only legal and proper remedy is through the filing of the corresponding amended information; and that the withdrawal of an information is allowed only where the new information involves a different offense which does not include or is not included in the offense originally charged. Normally, an accused would not object to the dismissal of an information against him because it is to his best interest not to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the merits. 21 However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned, there would be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is not the dismissal of the original three informations but the filing of four new informations, three of which charge graver offenses and the fourth, an additional offense. Had these new informations not been filed, there would obviously have been no cause for the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their real position. Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact that had the original informations been amended so as to charge the capital offense of murder, they still stood to likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not be better off with amended informations than with the subsequent ones. It really made no difference considering that where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under either an amended or a new information. Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass on the merits of the motion. It has been held that

The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and not certiorari.
22

Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed cured. This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of the trial court. The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine whether or not a criminal case should

be filed in court, once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. 23 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.: 24 Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And, if after such re-investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. 25 It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of the proceedings until the re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners should have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion did not state the reasons for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion granted the same, as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that an amendment, not a new information, was required under the circumstances. It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the court to dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his authority in withdrawing those informations because the same bore the imprimatur of the court. The issue is thus focused on whether or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the amendment thereof. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information, it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is not necessarily so. It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that: Sec. 11. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Emphasis supplied.) Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes. It would primarily be the function of the court to motu proprioorder the dismissal of the case and direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation. This provision, therefore, is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated. Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a defective information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures for the dismissal of the original information and the refiling of the correct one, otherwise he would be recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible right, although requiring in all cases the approval of the court in the exercise of its judicial discretion.27 As a matter of fact, the prosecuting attorney is given the broad power, sole authority and discretion to enter anolle prosequi provided he does not act arbitrarily 28 and subject to the discretion of the court. In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the information if he is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the accused. 29 In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a mistake in charging the proper offense, in order that new informations can be filed. The problem that may be posited, and should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he should merely move to amend it. Section 14 of Rule 110, which is invoked by petitioners, reads as follows: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. Under the second paragraph, the court can order the filing of another information to charge the proper offense, provided the accused would not be placed thereby in double jeopardy and that could only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged in the original information. It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were originally charged with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery, taking advantage of superior strength, and employing means to weaken the defense of the victim. Consequently, an amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail being fixed, the new charge being a capital offense. The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus: Here these rules properly apply, since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. Upon the authority of said rules, the amendment could therefore be made even as to substance in order that the proper charge may be made. The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification. The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant. Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder. This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit: This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original information and order the filing of a new one provided the defendant may not be placed in double jeopardy. If a new information may be ordered at any time before judgment no reason is seen why the court may not order the amendment of the information if its purpose is to make it conformable to the true nature of the crime committed. . . .

In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 31 however, Section 14 of Rule 110 was clarified to mean as follows: It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new informations were filed immediately after the motion to withdraw the original informations was granted. 2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder, frustrated murder and illegal possession of firearms, is grounded on three points of disagreement. Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of the original informations had not yet become final and executory and that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused. Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover. Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same. On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to quash. It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. 35 A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have the effect of acquittal. All these go to show, therefore, that the dismissal of Criminal Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion would be based on failure of the district attorney to judiciously exercise his discretion. 39 In most cases, the motion will be readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration of the authority of the special prosecutor to control and direct the prosecution of the case, 41 since the disposition of the case already rests in the sound discretion of the court. This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be recalled and that the accused may be tried on the same information, 43 but before it can be retraced, set aside, cancelled, or struck off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the information is insufficient on its face, is an end to the prosecution of that information, and suchnolle prosequi cannot afterward be vacated and further proceedings had in that case. 44 Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate proceedings on the information, or unless it was entered by mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the offense. 46 The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first court has come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding. 48 With much more reason will this rule apply where only branches of the same court, and not different courts, are involved in the jurisdictional conflict. There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new informations to another branch of the same court was intended to prejudice herein petitioners, or to place them under less favorable circumstances, or to find a court which would act favorably on the prosecution's case. The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been recognized in this jurisdiction and it has been held that such information cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an officer appointed by the President or one expressly empowered by law be permitted to assume these functions. 49 And any irregularity in the appointment does not necessarily invalidate the same if he may be considered a de facto officer. 50 Of course, where the person who signed the information was disqualified from appointment to such position, the information is invalid and the court does not acquire jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any irregularity in the issuance of said directive. At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et al., 52 we said: The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among others, P.D. No. 1275 issued on 11 April 1978 which provides: Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office. The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised Administrative Code of 1917, where the power of the Secretary of Justice to designate acting fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail to

discharge any of the duties of his position." Indeed, the limitation upon which petitioners rely no longer subsisted under P.D. No. 1275. Having been duly designated in accordance with law, the panel of prosecutors had complete control of the investigation and prosecution of the case. . . . 3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of witnesses, after merely reading the informations against them and asking whether they understood the same, which were allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely read in open court, and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial shall proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a literal application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on January 24, 1994 is deemed to have been cured when they were again arraigned on February 18, 1994 with the assistance of counsel de oficio, and the information was read to them in the vernacular. In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be prosecuted thereunder. II. On the Petition for Habeas corpus This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had no jurisdiction over the case, hence their detention should be deemed illegal. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed together with their present petition for certiorari andmandamus. The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. 54 However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter. 55 Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. of habeas corpus to be available to an accused before trial.
57 56

It has to be an exceptional case for the writ

In the absence of special circumstances requiring immediate action, a court will not grant

the writ and discharge the prisoner in advance of a determination of his case in court. 58 In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied. In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial. In the case of Enrile vs. Salazar, etc., et al., 59 we held that: The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. III. On the Motion to Cite for Contempt The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its resolution in Administrative Matter No. 941-13-RTC which is a petition for change of venue filed by the Vinculados, requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases involving herein petitioners which were pending before them. 60 Subsequently, another resolution was issued in said cases, dated March 1, 1994, with the following directive:

ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos, Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues raised in CA-G.R. SP No. 33261 have been resolved with finality.
61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find no merit in the motion to cite them for contempt.

The records reveal that there was a manifestation dated May 31, 1994 62 filed by the Solicitor General wherein the latter manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar, the pertinent part of which agreement is as follows: 1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b) that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court may render in the case before it. Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City. For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings before the present trial court considering that the main petition hinges only on a determination of which set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial. Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the court below. As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket. WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City. SO ORDERED.

G.R. No. 83696 : December 21, 1990.] 192 SCRA 621 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE BARTULAYAccused-Appellant. DECISION MEDIALDEA, J.: Subject of this appeal is the decision of the Regional Trial Court, Branch 49, Puerto Princesa City, in Criminal Case No. 3042 entitled "People vs. Dante Bartulay" convicting appellant

Dante Bartulay of the crime of robbery with homicide under an amended information which reads: "The undersigned accuses ROSALIO LAGUARDIA alias "ROLLY", DANTE BARTULAY alias "TOTOY", BALTAZAR BERAN alias "BOY BUNGAL", as principals, and RAYMUNDO BARTULAY alias "MANDING", as accessory, of the crime of "ILLEGAL POSSESSION OF FIREARM WITH ROBBERY WITH HOMICIDE," committed as follows: 'That on or about the 6th day of September, 1979, and for sometime prior thereto, in Puerto Princesa City, Philippines, and within the jurisdiction of this Honorable Court, accused Rosalio Laguardia, Dante Bartulay and Baltazar Beran, conspiring and confederating together and mutually, helping one another, did then and there wilfully, unlawfully and feloniously have in their possession, custody and control the following firearm(s), to wit: One (1) .380 cal., automatic pistol and One (1) 22 cal. revolver with Serial No. 64618, without having the necessary license and/or permit from the proper authorities; that while in possession of aforedescribed firearms at the aforementioned place and date, the said accused conspiring and confederating together and mutually helping one another, with intent of gain and without the consent and against the will of the owners, by means of force, violence and intimidation and with the use of aforementioned firearms and motor vehicle, did then and there wilfully, unlawfully and feloniously take, steal and carry away from one MIGUEL 'MIKE' CHUA the amount of P50,000.00 cash, more or less, and P37,000.00 in checks, more or less and a panel truck worth P100,000.00 in the total value of P187,000.00 more or less, belonging to said MIGUEL 'MIKE' CHUA and the FORTUNE TOBACCO CORPORATION, to the damage and prejudice of the latters (sic) in the aforesaid amount; that on the occasion of said robbery and for the purpose of enabling them to take said amount and panel truck the said accused, in pursuance of their conspiracy, with treachery, evident premeditation, taking advantage of nighttime, with the use of a motor vehicle and with intent to kill, did then and there wilfully, unlawfully, and feloniously assault, attack and shoot one MIGUEL 'MIKE' CHUA, thereby inflicting upon the latter mortal gunshot wounds which were the direct and immediate cause of his death; that accused Raymundo Bartulay, having full knowledge of the commission of the aforementioned robbery with homicide and without having participated therein either as principal or accomplice, take part subsequent to its commission by then and there profiting himself and/or assisting the abovenamed principal accused to profit by the effects of the crime and also by concealing and hiding the cash money and checks taken from said Miguel 'Mike' Chua in order to prevent its discovery by the authorities.' "CONTRARY TO LAW with the aggravating circumstances of evident premeditation, treachery, use of a motor vehicle and nighttime." (pp. 1-2, Original Records) Since appellant evaded arrest, his co-conspirators Rosalio Laguardia and Baltazar Beran, were convicted ahead of him and are now serving sentence at the National Penitentiary Muntinlupa, Metro Manila. On April 28, 1985, appellant was arrested at Agno St., Tatalon, Quezon City by elements of the Manila Police Force (pp. 6-7; 293, Ibid). At the arraignment, appellant with the assistance of Attys. Gregorio Austria and Ma. Buen Consejo, pleaded GUILTY to the crime of robbery; NOT GUILTY to homicide; hence, a conditional plea of NOT GUILTY was entered into the records (p. 28, Ibid). The facts as gleaned from the records are as follows: Benjamin Caca, driver of Fortune Tobacco Corporation and principal witness for the prosecution, testified that: On September 6, 1979, at about 10:00 in the evening, the victim, Miguel `Mike' Chua, salesman of the Fortune Tobacco Corporation, was driving a panel truck, together with him, helper Edgardo Aniar and friend Frank Morante, passing along kilometer 36 southroad, a zigzag road inside the Iwahig Penal Colony, on their way to

Puerto Princesa City. The group had come from Brooke's Point, Palawan where they delivered cigarettes and collected payments for previous sales amounting to more or less P100,000.00. At a distance of five (5) meters, from the approaching truck, appellant Dante Bartulay and Baltazar Beran, co-accused, motioned to Mike Chua to stop. When the truck stopped at the middle of the road, co-accused Beran approached the victim at the pretext of borrowing a screw driver. The victim told Beran to wait as he will park the truck on the side of the road. At this point, appellant and Beran pulled out their guns and announced a holdup. They ordered the four persons to alight from the truck. Beran directed him, Edgardo Aniar and Frank Morante to stay at the right side of the road some five (5) meters away from the truck while appellant separately led the victim about two meters away from them on the same side of the road. The four of them were ordered to lie down facing the ground. Appellant with one foot, stepped on the shoulder of the victim while pointing a gun at him. Beran then divested him and Frank Morante of their watches and wallets while appellant took Chua's watch and wallet. Appellant asked the victim where his collection was. The latter told appellant that the money is placed at the back of the driver's seat. Appellant then ordered Beran to get the money. The latter did and gave the money contained in a paper bag to appellant. Thereafter, Beran demanded the keys of the truck from the victim, who gave them to appellant, who in turn gave them to Beran. Beran then ordered the companions of the victim to go inside the panel truck. Some twenty five (25) seconds after they were locked up inside the truck, two successive shots were fired. The truck then started to move and while in motion, he opened the secret exit door of the panel and was able to jump out, rolling on the ground until he reached the canal. He was able to hitch a ride up to Narra, Palawan where he reported the incident to the police authorities (Hearing of Sept. 13, 1985; T.S.N., pp. 5-20). The next day, September 7, 1979, the cadaver of Miguel Chua was examined by Dr. Rufino Ynzon, the City Health Officer of Puerto Princesa City. His findings were contained in a necropsy report as follows:
:-cralaw

"POSTMORTEM-FINDINGS "1. Wound, gunshot, (entrance) roughly circular hole, 8-9 mm. in diameter, surrounded by a contuso-abraded collar, located at the occipital region, 3 inches above from the occipital protroberance. "2. (a) Wound, gunshot (exit) hole which is irregular in shape, about 1 inch long, located at the left frontal bone, 2 1/2 inches above left superior orbital ridge. (b) Wound, gunshot (exit) hole which is irregular in shape, about 3/4 inch, long, 1 1/2 inches above wound of exit-(a). "3. Wound, punctured-lacerated, about 1/3 inch in diameter, located at the left inferior orbital ridge. "4. Contusion with hematoma, located at the left superior orbital portion. "5. Contusion with hematoma, located at the right superior orbital portion. "6. Abrasions, located at the left arm, medial third, anterior portion. "7. Abrasions, located at the left elbow, posterior portion. CAUSE OF DEATH: HEMORRHAGE, MASSIVE, INTRA-EXTRA CRANIAL, SECONDARY TO GUNSHOT WOUND." (Exhibit "B", Folder of Exhibits). Appellant took the PAL second flight in Puerto Princesa to Manila in the morning of September 7, 1979 (T.S.N., p. 127; Hearing of July 21, 1986; Ibid., p. 198, Hearing of October 30, 1987).

M/Sgt. Eugenio Enriquez, head of the Intelligence and Operations of the Palawan Constabulary Command, stated that the police authorities were able to investigate Anthony Pediapco who informed them of the presence of one "Boy Bungal" at the scene of the crime as he even borrowed some tools from him that night. After ascertaining that "Boy Bungal" was Baltazar Beran, police authorities traced his whereabouts and arrested him on September 8, 1979. Recovered from him was P4,500.00 which he admitted was part of his share from the booty (Exhibits "F" and "F-1", "G" and "G-1" and "H" and "H-1" Folder of Exhibits). Beran executed a confession before the police authorities on the day he was arrested (Exhibits "P" and "Q", Ibid.) and another statement on September 9, 1979 (Exhibit "Q", Ibid). Based on said confessions, the police authorities were able to recover from the roof of the kitchen of one Rosalio Laguardia, the revolver he used during the holdup, the motorcycle owned by Laguardia, which was used as a getaway vehicle, and some part of the share of appellant from the loot entrusted by him to his brother Raymundo Bartulay who, upon investigation by the police, voluntarily informed them of the place where it was hidden (Exhibits "I"-"N", Ibid.; T.S.N., pp. 55-76, Hearing of Sept. 24, 1985; Ibid., pp. 86-98, Hearing of Feb. 14, 1985).
chan robles v irt ual law l ibra ry

At the trial, appellant admitted that he and Beran only agreed to stage a holdup. He portrayed himself as the one who guarded the companions of Miguel Chua and that he was instructed by Beran to get the money from behind the driver's seat. He stated that upon finding the bag containing the money, he heard two successive shots; he even resented why Baltazar Beran had to kill Miguel Chua as they merely planned to rob him; he was responsible in saving the lives of the three passengers by pleading to Baltazar Beran to spare them (T.S.N., pp. 178, 184, Hearing of Oct. 29, 1987). On March 8, 1988, the trial court rendered its decision convicting appellant of the crime of robbery with homicide, the dispositive portion of which states: "WHEREFORE, the Court find (sic) and so founds (sic) Dante Bartulay guilty beyond reasonable doubt of the crime of Robbery with Homicide defined and penalized under Article 294 (1) of the Revised Penal Code, as principal by direct participation, hereby sentences him to suffer the penalty of RECLUSION PERPETUA, with all accessories provided for by law, to indemnify the heirs of Miguel Chua the amount of Seven Hundred Twenty Thousand (P720,000.00) Pesos for the expected earnings, Ten Thousand (P10,000) Pesos for moral damages and Ten Thousand (P10,000.00) Pesos for exemplary damages and to pay the costs." (p. 55, Rollo). In seeking the reversal of his conviction, appellant claims that the trial court erred: (1) in its findings that he was the one who shot Miguel Chua; (2) in finding him guilty of the complex crime of robbery with homicide despite lack of evidence; and (3) in failing to appreciate that he endeavored and in fact was successful in preventing Baltazar Beran from killing the three companions of Miguel Chua. Appellant admits participation in the commission of robbery but vehemently and specifically denies any participation in the killing of Miguel Chua (pp. 63-64, Rollo). The evidence indubitably shows that appellant and co-accused Beran agreed to commit robbery at Km. 36, Zigzag Road, Iwahig Penal Colony, Puerto Princesa City, two (2) weeks prior to the incident. On September 6, 1979, both appellant and Beran succeeded in robbing Miguel Chua of P87,000.00 and the victim was shot to death 25 seconds subsequent to his three companions' entry into the van. There was no eyewitness to the killing of the said victim. Neither was there a showing that appellant endeavored to prevent the killing of Chua. A conspiracy in the statutory language exists when two or more persons avow to an agreement concerning the commission of a felony and decide to commit it (People v. Taaca, G.R. No. 35652, September 29, 1989).

Appellant tries to exculpate himself of criminal liability by pointing to co-accused Beran as the one who fired the shots and killed Chua. When the conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused and homicide was committed as a consequence thereof, all those who participated are liable as principals in the robbery with homicide, although they did not actually take part in the homicide, unless it appears that they attempted to prevent the killing. The question as to who actually robbed or who actually killed is of no moment since all of them would be held accountable for the crime of robbery with homicide (People v. Salvador, G.R. No. 77964, July 26, 1988, 163 SCRA 574 [1988]). (Emphasis supplied).
:- nad

Moreover, the following actuations of appellant after the shots were fired clearly show that he is a co-conspirator: (a) immediately after the firing of the shots, he followed the truck driven by Baltazar Beran in the motorcycle; (b) when they reached Montible, Baltazar Beran abandoned the truck, rode in the motorcycle with appellant and proceeded to the house of appellant's brother in Puerto Princesa City where they divided the loot (T.S.N., pp. 184, 196-199, Hearing of Oct. 30, 1987). Where conspiracy has been established, a showing as to who inflicted the fatal blow is not required. (People v. Alvarez, G.R. No. 70446, January 31, 1989, 169 SCRA 730). Finally, appellant admitted that when he heard the news that he was being hunted by police authorities in connection with the crime, he immediately bought a plane ticket at the PAL office in Puerto Princesa City and took the second flight to Manila in the morning of September 7, 1979. His sudden departure is indicative of guilt. The guilty flee when no man pursueth but the innocent are as bold as a lion (People v. Espinosa, G.R. No. 72883, December 20, 1989). As correctly found by the trial court, the use of motor vehicle by the appellant and his coconspirator aggravated the commission of the offense since the vehicle was used to facilitate their escape from the scene of the crime. The penalty of robbery with homicide prescribed in Article 294 of the Revised Penal Code is reclusion perpetua to death. Since only one aggravating circumstance attended the commission of the offense, the greater penalty that is death shall be applied pursuant to Article 63 of the Revised Penal Code. However, this penalty cannot be imposed presently in view of the 1987 Constitution. Hence, the penalty of reclusion perpetua was correctly imposed by the trial court upon the appellant. The trial court correctly convicted accused of robbery with homicide only despite the fact that the amended information charged all the four accused namely, Rosalio Laguardia, Dante Bartulay and Baltazar Beran of the crime of illegal possession of firearm with robbery with homicide. The information alleges that the four accused by conspiring and confederating together, unlawfully have in their possession one .380 cal. automatic pistol and one 22 cal. revolver with Serial No. 64618 without the necessary license or permit from the proper authorities and that while in the possession of said firearms, the four accused, by conspiring together, committed robbery with homicide. The information herein is violative of Section 13 Rule 110 of the Rules on Criminal Procedure which states that a complaint or information must charge but one offense except in certain cases. The four accused are charged with two separate offenses of illegal possession of firearms and robbery with homicide. When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he

thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned. In the case at bar, the accused was not formally arraigned as to the offense of illegal possession of firearm. The information wrongly complexed the robbery with homicide with the special offense of illegal possession of firearm. In effect, the accused is charged with two distinct offenses. He should therefore be arraigned and required to plead to the two offenses. Records show that during the arraignment, the accused pleaded guilty to robbery and not guilty to homicide. Hence, the trial court entered a conditional plea of not guilty for him to the offense of robbery with homicide, without requiring the accused to enter his plea to the illegal possession of firearms (p. 28, Records). And in the rendition of judgment, the trial court convicted him only of robbery with homicide as there was no proper arraignment of the accused concerning the other offense. In one case, this Court held that where the defendant is charged with three separate offenses, and he pleaded guilty to the two offenses without pleading to the third offense charged, the court cannot render judgment of conviction on the third offense without requiring him to plead (US v. Sobrevias 35 Phil. 32). This is based on the principle that a defendant is legally placed on trial only when issue upon the information which charges such an offense has been joined after arraignment by his plea of not guilty thereto (People v. Ylagan 58 Phil. 851). We shall sustain the monetary award, consisting of loss of earnings, made by the trial court in favor of the heirs of the victim as this matter was not raised in issue in this appeal. Further, this Court grants the amount of P50,000.00 as death indemnity to be paid by the appellant to the heirs of the victim, in accordance with the new policy of this Court laid down in the Resolution of this Court en banc dated August 30, 1990 and in People v. Daniel Sison, G.R. 86455, September 14, 1990, in addition to the moral and exemplary damages awarded by the trial court.
:-cralaw

ACCORDINGLY, except for the above mentioned modification, the decision appealed from convicting the accused appellant of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua with all the accessories provided for by law is AFFIRMED. SO ORDERED. Cruz, Gancayco and Grio-Aquino, JJ., concur.
G.R. No. 80264 May 31, 1989 SAN MIGUEL VILLAGE SCHOOL, petitioner, vs. HONORABLE AMIR PUKUNUM D. PUNDOGAR and CHRISTINA TRIO, respondents. Estelito R. Alvia for petitioner. Macalalag Law Office & Associates for private respondent.

FELICIANO, J.: On 2 October 1985, petitioner San Miguel Village School filed a complaint for breach of contract with damages against respondent Christina Trio, before the Regional Trial Court, Branch 3, Lanao del Norte, the complaint being docketed as Civil Case No. L-111-577. A Certificate to File Action,

signed by the Barangay Captain of Barangay Palao, Iligan City, dated 17 September 1985, bearing the notation that the "respondent cannot be contacted," was filed along with the complaint. Summons was served upon the private respondent through her husband. On 22 November 1985, private respondent having failed to file an answer within the reglementary period, the petitioner School moved to declare her in default. The trial court granted the motion, declared private respondent in default and designated the Branch Clerk of Court to receive the evidence of the petitioner and thereafter to report back to the court. From the evidence received by the Branch Clerk of Court from the petitioner, the following facts emerged: On 9 May 1985, petitioner, a duly accredited private school located at Barangay Palao, Iligan City, entered into a contract of services with private respondent Christina Trio. Under that contract, Christina Trio would teach at the petitioner School during the schoolyear 1985-1986, which would commence in June 1985 and end in March 1986. She was assigned to take charge of Grade VI, Intermediate Department. The contract also provided that any party desiring to terminate the contract before its scheduled expiration, would give the other party at least one month notice of termination in writing. Sometime in August 1985, while the contract was in full force and effect, and during a final examination period, private respondent suddenly stopped teaching at the petitioner School, without giving notice of termination and thereby causing not inconsiderable difficulties for the School. Petitioner School immediately sought the assistance of the Barangay Captain of Palao and the commencement of conciliation proceedings, This attempt failed because private respondent could not be contacted, she having left Iligan City and having secured a better paying job at the Philippine Refugee Center based in Manila. On 26 January 1986, the trial court then presided over by Judge Magadapa Rasuman rendered a decision against private respondent, the dispositive portion of which read as follows: WHEREFORE, based on the foregoing consideration, judgment is hereby rendered in favor of the plaintiff, San Miguel Village School and against defendant, Christina Trio as follows; 1. Ordering defendant to pay all compensatory damages to the plaintiff, the amount of P8,400.00; 2. To pay plaintiff, the amount of P5,000.00, as moral damages; 3. To pay attorney's fees of P5,000.00, and 4. To pay the costs of this suit. SO ORDERED. Four (4) months later, on 15 May 1986, private respondent filed a Petition for Relief from Judgment with the trial court, alleging that the court had no jurisdiction to render its decision dated 26 January 1986 for failure of petitioner to go through the mandatory conciliation procedure prescribed by Sections 2 and 6 of P.D. No. 1508. Private respondent argued that the certification of the Barangay Captain of Palao dated 17 September 1985 was inadequate compliance with P.D. No. 1508, private respondent being a resident, not of Barangay Palao, Iligan City, but rather of Barangay Tomas Cabili, Iligan City. Almost a year later, on 6 April 1987, the trial court, this time presided over by respondent Judge Amir Pukunum D. Pundogar, issued an order upholding private respondent's contentions and setting aside the assailed decision of 26 January 1986. In his order, while Judge Pundogar acknowledged the impropriety of the Petition for Relief from Judgment, he nonetheless in effect granted the relief sought, holding that the Regional Trial Court in rendering the decision dated 26 January 1986, acted without jurisdiction "over the parties and the subject matter of the action" 1for failure of petitioner to comply with the requirements of P. D. No. 1508. A Motion for Reconsideration by petitioner was denied by the respondent Judge. In the instant Petition, it is vigorously contended by petitioner that the trial court had jurisdiction to render its decision of 26 January 1986. The Court notes, at the outset, that respondent Judge in fact granted the Petition for Relief from Judgment not because he found one or more of the grounds specified in Section 2 of Rule 38 of the Revised Rules of Court (fraud, accident, mistake or excusable negligence) but rather because respondent Judge found his predecessor in the same court to have acted without jurisdiction.

It is, however, firmly settled 2 that failure of a plaintiff to comply with the requirements of P.D. No. 1508 does not affect the jurisdiction of the court that tried the action. In, e.g., Millare v. Hernando, the Court stressed that "the conciliation procedure required under P.D. No. 1508 is not a jurisdictional requirement in the sense that failure to have prior recourse to such procedure would not deprive a court of its jurisdiction either over the subject matter or over the person of the defendant." 3 Failure of a plaintiff to go through the conciliation procedure established by P.D. No. 1508 merely affects the sufficiency, or the maturity or ripeness of the plaintiffs cause of action and the complaint becomes vulnerable to a motion to dismiss, not on the ground of lack of jurisdiction, but rather for want of cause of action or for prematurity. 4 Respondent Judge was thus in palpable error in holding his predecessor without jurisdiction to render the assailed decision. Respondent Judge was equally in error when he either disregarded or misconstrued the Certificate to File Action, dated 17 September 1985, which had been, issued by the Barangay Captain of Barangay Palao. Respondent Judge simply said apropos this Certificate to File Action, that no "confrontation" had taken place between petitioner and private respondent before the Barangay authorities and immediately concluded that the requirements of P.D. No. 1508 had been violated. There is no question

that the "confrontation" or conciliation proceedings did not materialize here, since private respondent did not appear before the Lupon. Where, however, the defendant in an action fails for one reason or another to respond to a notice to appear before the Lupon, the requirement of P.D. No. 1508 must be regarded as having been satisfied by the plaintiff. A defendant cannot be allowed to frustrate the requirements of the statute by her own refusal or failure to appear before the Lupon and then later to assail a judgment rendered in such action by setting up the very ground of noncompliance with P.D. No. 1508. In simplest terms, a defendant cannot be allowed to profit by her own default. In the instant case, private respondent, as noted earlier, had stated in her subsequent Petition for Relief from Judgment that she resided not in Barangay Palao but in Barangay Cabili, in effect suggesting that she had not received notice to appear before the Lupon of Barangay Palao. We do not believe that the statement and suggestion of private respondent should be given much credence. In the first place, the Barangay authorities of Barangay Palao must be presumed to have performed their official duties and to have acted regularly in issuing the Certificate to File Action. They must be presumed to have sent a notice to Christina Trio to appear before theLupon; otherwise, they could not reasonably have stated that Christina "could not be contacted." Secondly, petitioner School had already presented evidence during the hearing before the Commissioner appointed by Judge Rasuman that both petitioner and private respondent were residents of Palao, Iligan City. Finally, and in any event, the alleged failure on the part of a plaintiff to comply with the procedural requirement established by P.D. No. 1508 must be raised in a timely manner, that is, at the first available opportunity, if such alleged failure is to provide legal basis for dismissal of the complaint. Such failure must be pleaded, in other words, in a timely motion to dismiss or in the answer. Failure to so set up that defense produces the effect of waiver of such defense. In the instant case, private respondent was declared in default and that default order was never set aside. Accordingly, private respondent must be held to have waived whatever right she may have had to raise the defense of failure to comply with the compulsory conciliation procedure under P.D. No. 1508. Indeed, that was not the only thing she waived; she also waived the right to appear and to file an answer and there to set up that and other defenses that she might have had. It is simply too late to demand conciliation under P.D. No. 1508 after a judgment on the merits (albeit by default) has been rendered and become final and executory. ACCORDINGLY, the Orders of respondent Judge Amir Pukunum D. Pundogar dated 6 April 1987 and 15 June 1987 in Civil Case No. L-111-577 are hereby REVERSED and SET ASIDE and the Decision dated 26 January 1986 of Judge Magadapa Rasuman is hereby REINSTATED. Costs against private respondent. SO ORDERED. G.R. No. 171277 February 15, 2007

ALMARIO BEJAR (Deceased), as substituted by his heirs - CARMELITA BEJAR, ALFREDO BEJAR, GREGORIA B. DANCEL, BRENDA B. MIANO, LOURDES B. BENDIJO, and SUSANA B. CAMILO, Petitioners, vs. MARICEL CALUAG, Respondent. DECISION SANDOVAL-GUTIERREZ, J.: Before us is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 of the Court of Appeals dated May 23, 2005 in CA-G.R. SP No. 85430. The factual backdrop of the case is as follows: On August 2, 2002, the late Almario Bejar, substituted by his heirs, herein petitioners, filed with the Metropolitan Trial Court (MeTC), Branch 12, Manila, a complaint for illegal detainer and damages against Maricel Caluag, herein respondent, docketed as Civil Case No. 173262-CV. The allegations therein are partly reproduced hereunder: xxx 4. Plaintiff is the owner of a residential house made of light materials consisting of wood and galvanized iron roof built on governmentowned land located at 777 Coral Street, Tondo, Manila. 5. On December 21, 1981, plaintiff sold one-half (1/2) portion of the said residential house with an area of twenty-two feet in length and fifteen feet in width to Fernando Mijares in the amount of Eleven Thousand (P11,000.00) Pesos x x x 6. Subsequently, plaintiff became the owner in fee simple of the government land where his residential house was built including the onehalf portion he sold to Fernando Mijares, located at 777 Coral Street, Tondo, Manila, evidenced by Transfer Certificate of Title No. 156220 registered and entered in the Register of Deeds of Manila on August 30, 1983 x x x 7. On September 2, 1991, Fernando Mijares, sold his residential house to Maricel Caluag with residence address at 1391 R.A. Reyes St., Tondo, Manila to be used as a warehouse for her business x x x 8. Plaintiff badly needs the portion of his land occupied by the defendant to build a residential house for use of his family;

9. On April 9, 2002, plaintiff through counsel sent a formal demand letter to defendant for the latter to vacate the portion of the property situated at 777 Coral Street, Tondo, Manila within ten (10) days from receipt of the demand letter x x x 10. Despite formal demand from the plaintiff on April 19, 2002, defendant failed and refused and still fails and refuses to vacate said portion of the property owned by the plaintiff located at 777 Coral Street, Tondo, Manila to the damage and prejudice of plaintiff. xxx On October 15, 2002, respondent filed a motion to dismiss on the ground that the MeTC has no jurisdiction over the case as it involves the issue of ownership. On February 10, 2003, respondent filed a supplement to her motion to dismiss alleging that pursuant to the"Kasulatan ng Bilihan ng Bahay," Almario Bejar sold to Fernando Mijares both his house and the entire lot on which it was constructed, citing paragraph 4 of the "Kasulatan" which reads: Na alang alang sa halagang LABING ISANG LIBO PISO (P11,000.00) kuartang Filipino na kasasalukuyang gastahin na aking tinanggap ng buong kasiyahang loob kay FERNANDO MIJARES x x x ay aking ipinagbili, ibinigay, isinulit at inilipat ng buo kong pagaari na kalahating harapan ng bahay ko naipaliwanag sa itaas at ang pagbibili kong ito ay kasama ang lahat kong karapatan sa lupa kung may karapatan ako na kinatitirikan ng bahay.2 On June 16, 2003, the MeTC issued an Order dismissing Civil Case No. 173262-CV for want of jurisdiction, holding that the actual issue between the parties is the enforceability of the subsequent sale by Fernando Mijares to respondent of the subject property; and that, therefore, jurisdiction properly lies with the Regional Trial Court (RTC). On appeal, the RTC, Branch 47, Manila, on January 5, 2004, rendered its Decision reversing the Order of dismissal of the MeTC. The RTC held that the issue in Civil Case No. 173262-CV is who has better possession of the disputed property. The RTC then directed the MeTC to hear the case on the merits. Respondent seasonably filed a motion for reconsideration but it was denied. Respondent then filed with the Court of Appeals a petition for review, docketed as CA-G.R. SP No. 85430. In its Decision dated May 23, 2005, the Court of Appeals reversed the RTC judgment, thus: WHEREFORE, the instant petition is GRANTED. The assailed decision of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, in Civil Case No. 03-107631 is REVERSED and SET ASIDE. The order, dated 16 June 2003, of the Metropolitan Trial Court, National Capital Judicial Region, Branch 12. Manila in Civil Case No. 173262-CV, dismissing Almario Bejars complaint for lack of jurisdiction is hereby REINSTATED. Let this case be remanded to the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila for further proceedings pursuant to Section 8, Rule 40 of the Revised Rules of Court. SO ORDERED. The appellate court held that the allegations of the complaint do not make out a case for illegal detainer or forcible entry. Petitioners filed a motion for reconsideration of the above Decision but in its Resolution dated January 27, 2006, the Court of Appeals denied the same. Hence, the instant petition. For our resolution is the issue of whether the MeTC has jurisdiction over Civil Case No. 173262-CV for illegal detainer. There are four (4) remedies available to one who has been deprived of possession of real property. These are: (1) an action for unlawful detainer; (2) a suit for forcible entry; (3) accion publiciana; and (4) accion reinvidicatoria. In unlawful detainer and forcible entry cases, the only issue to be determined is who between the contending parties has better possession of the contested property.3 Pursuant to Section 33 (2) of Batas Pambansa Blg. 129, as amended by Section 3 of Republic Act No. 7691, it is the Municipal Trial Courts, Metropolitan Trial Courts in Cities, and Municipal Circuit Trial Courts that exercise exclusive original jurisdiction over these cases. The proceedings are governed by the Rule on Summary Procedure, as amended. By contrast, an accion publiciana, also known as accion plenaria de posesion,4 is a plenary action for recovery of possession in an ordinary civil proceeding in order to determine the better and legal right to possess, independently of title.5 There are two distinctions between the summary ejectment suits (unlawful detainer and forcible entry) and accion publiciana. The first lies in the period within which each one can be instituted. Actions for unlawful detainer and forcible entry must be filed within one year from the date possession is lost, while an accion publiciana may be filed only after the expiration of that period but within the period prescribed in the statute of limitations. The

second distinction involves jurisdiction. An accion publiciana may only be filed with the RTC, while a complaint for unlawful detainer or forcible entry may only be filed with the first level courts earlier mentioned.
1aw phi1.net

An accion reinvidicatoria, unlike the three remedies previously discussed, involves not only possession, but ownership of the property. The plaintiff in this action sets up title in him and prays that he be declared the owner and be given possession thereof.6 Otherwise put, the plaintiff alleges ownership of real property and prays for recovery of such ownership. Under Article 434 of the Civil Code, two things must be alleged and proven in anaccion reinvidicatoria: (1) the identity of the property and (2) plaintiffs title to it. Sole and exclusive jurisdiction over cases for accion reinvidicatoria is vested in the RTC. We are guided by the elementary principle that what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought.7 To make out a suit for illegal detainer or forcible entry, the complaint must contain two mandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth.8 This latter requirement implies that the possession of the disputed property by the intruder has been unlawful from the very start. Then, the action must be brought within one year from the date of actual entry to the property or, in cases where stealth was employed, from the date the plaintiff learned about it.9 An examination of the allegations in the complaint in Civil Case No. 173262-CV does not show that Almario Bejar was deprived of his possession of the property by force, intimidation, threat, strategy or stealth. Here, the case is for unlawful detainer. The complaint clearly alleges that Almario Bejar sold one-half portion of his house to Fernando Mijares; that the latter, in turn, sold the same portion of the house to respondent; that eventually, Almario Bejar became the owner in fee simple of the entire lot where his house was built; that he needs the portion of the lot occupied by respondent for the construction of a house for the use of his family; and that despite demand, respondent failed and still fails to vacate the premises. From the records, it appears that Almario Bejar filed his complaint within one year from the date of his last demand upon respondent to vacate the contested portion of the land. A suit for unlawful detainer will prosper if the complaint sufficiently alleges that there is a withholding of possession or refusal to vacate the property by a defendant.10 The cause of action arises from the expiration or termination of the defendants right to continue possession which is upon plaintiffs demand to vacate the premises. The complaint for unlawful detainer must then be instituted within one year from the date of the last demand.11 All these incidents are present in the instant case. Considering that the allegations in Almario Bejars complaint in Civil Case No. 173262-CV show that it is one for illegal detainer, hence, it is the MeTC, Branch 12, Manila which has jurisdiction over Civil Case No. 173262-CV. WHEREFORE, we GRANT the petition and REVERSE the assailed Decision of the Court of Appeals. The RTC Decision is AFFIRMED. Let the records of this case be remanded to the MeTC, Branch 12, Manila, for further proceedings with dispatch. SO ORDERED. A.M. No. RTJ-05-1944 December 13, 2005 [Formerly OCA I.P.I. No. 05-2189-RTJ] STATE PROSECUTOR RINGCAR B. PINOTE, Petitioner, vs. JUDGE ROBERTO L. AYCO, Respondent. DECISION CARPIO MORALES, J.: On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26, Regional Trial Court (RTC) of South Cotabato allowed the defense in Criminal Case No. 1771 TB, "People v. Vice Mayor Salvador Ramos, et al.," for violation of Section 3 of Presidential Decree (P.D.) No. 1866, to present evidence consisting of the testimony of two witnesses, even in the absence of State Prosecutor Ringcar B. Pinote who was prosecuting the case. State Prosecutor Pinote was on August 13 and 20, 2004 undergoing medical treatment at the Philippine Heart Center in Quezon City, hence, his absence during the proceedings on the said dates. On the subsequent scheduled hearings of the criminal case on August 27, October 1, 15 and 29, 2004, State Prosecutor Pinote refused to crossexamine the two defense witnesses, despite being ordered by Judge Ayco, he maintaining that the proceedings conducted on August 13 and 20, 2004 in his absence were void. State Prosecutor Pinote subsequently filed a Manifestation on November 12, 2004 before the trial court, he restating why he was not present on August 13 and 20, 2004, and reiterating his position that Judge Aycos act of allowing the defense to present evidence in his absence was erroneous and highly irregular. He thus prayed that he should not be "coerced" to cross-examine those two defense witnesses and that their testimonies be stricken off the record.

By Order issued also on November 12, 2004, Judge Ayco, glossing over the Manifestation, considered the prosecution to have waived its right to cross-examine the two defense witnesses. Hence, arose the present administrative complaint lodged by State Prosecutor Pinote (complainant) against Judge Ayco (respondent), for "Gross Ignorance of the Law, Grave Abuse of Authority and Serious Misconduct." By Comment dated March 18, 2005, respondent proffers that complainant filed the complaint "to save his face and cover up for his incompetence and lackadaisical handling of the prosecution" of the criminal case as in fact complainant was, on the request of the Provincial Governor of South Cotabato, relieved as prosecutor in the case by the Secretary of Justice. And respondent informs that even after complainant was already relieved as the prosecutor in the case, he filed a motion for his inhibition without setting it for hearing. On the above-said Manifestation filed by complainant before the trial court on November 12, 2004, respondent brands the same as "misleading" and "highly questionable," complainants having undergone medical treatment at the Philippine Heart Center on August 13 and 20, 2004 having been relayed to the trial court only on said date. On his Order considering the prosecution to have waived presenting evidence, respondent justifies the same on complainants failure to formally offer the evidence for the prosecution despite several extensions of time granted for the purpose. Finally, respondent proffers that no substantial prejudice was suffered by the prosecution for complainant was permitted to cross examine the two defense witnesses but he refused to do so. By way of counter-complaint, respondent charges complainant with "Contempt of Court" and "Grave Misconduct" and/or "Conduct Unbecoming of a Member of the Bar and as an Officer of the Court." On evaluation of the case, the Office of the Court Administrator (OCA), citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, finds respondent to have breached said rule and accordingly recommends that he be reprimanded therefor, with warning that a repetition of the same or similar act shall be dealt with more severely. Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads: Sec. 5. Who must prosecute criminal actions. - All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. In case of heavy work schedule or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case subject to the approval of the Court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. x x x (Underscoring supplied) Thus, as a general rule, all criminal actions shall be prosecuted under the control and direction of the public prosecutor. If the schedule of the public prosecutor does not permit, however, or in case there are no public prosecutors, a private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case, subject to the approval of the court. Once so authorized, the private prosecutor shall continue to prosecute the case until the termination of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. Violation of criminal laws is an affront to the People of the Philippines as a whole and not merely to the person directly prejudiced, he being merely the complaining witness.1 It is on this account that the presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests, foremost of which is its interest to vindicate the rule of law, the bedrock of peace of the people. 2 Respondents act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a private prosecutor designated for the purpose is thus a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses. Respondents intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be, cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State. Respondents lament about complainants failure to inform the court of his inability to attend the August 13 and 20, 2004 hearings or to file a motion for postponement thereof or to subsequently file a motion for reconsideration of his Orders allowing the defense to present its two witnesses on said dates may be mitigating. It does not absolve respondent of his utter disregard of the Rules. WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to pay a fine FIVE THOUSAND PESOS (P5,000.00) with warning that a repetition of the same or similar acts in the future shall be dealt with more severely.

Respecting the counter-complaint against complainant State Prosecutor Ringcar B. Pinote, respondent is advised that the same should be lodged before the Secretary of Justice. SO ORDERED.

[G.R. No. 113689. July 31, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE SANGIL, SR., accused-appellant. DECISION
BELLOSILLO, J.:

This is incestuous rape - the father perpetuating his lecherous passion on his four (4) guileless daughters and impregnating one of them - the most perverted form of sexual felony a man can commit; thereby reducing himself into a creature lower than the lowliest beast. Lourdes Sangil, then sixteen, is the sixth of ten unmarried siblings - five girls and five boys - of Felipe Sangil Sr. and Bienvenida Villanueva of Balungao, Calumpit, Bulacan. They lived in a one-storey structure with one bedroom and a living room measuring approximately 3-1/2 x 6 meters with a wooden floor elevated about 1-1/4 meters from the ground. Their cramped sala served as their living and dining room as well as kitchen during the day, and as sleeping quarters at night for the entire household. On 5 April 1987, at around 7:30 in the evening, the family, as usual, retired for the night. Except for Alicia who occupied the bedroom, all the rest of the family slept in the sala lying side by side on two mats spread on the floor under one mosquito net. To the right of Lourdes were her older sisters Amelita and Araceli; to her left were another older sister Joselin, her brothers Felipe Jr., Willy and William, followed by their mother and father, in that order. In the hush of night, Lourdes was jolted from her sleep when she felt someone straddling her and trying to remove her panty. Lourdes readily recognized her father. He threatened to kill her if she would not succumb to his lust. Despite the threat Lourdes held on to her panty but did not succeed because her father pushed her downwards with his elbows and pressed his thighs against hers. She could not move because his larger frame pinned her down. She could neither reach out to her brothers and sisters as his hands were pressed against her arms. Overpowered and realizing perhaps the futility of any resistance Lourdes finally gave in to the sexual advances of her

father. In no time, he was able to remove her underwear, positioned himself on top of her, forced his penis into her vagina, and made the usual pelvic thrusts. She had to endure the sexual ordeal for 10 to 15 minutes.
[1]

After spewing his wild oats into his own flesh, Felipe Sangil Sr, casually returned to his place and went back to sleep. Lourdes could only cry in silence. She was fearful of more physical harm because her father was wont to maltreat them with fistblows, slaps on the face and kicks on various parts of their bodies. The next morning, while still feeling the pain of penile penetration, she saw her panty smeared with blood. But she did not report her horrifying experience to anyone because she was afraid her father might kill her as well as her mother, brothers and sisters. This persistent threat to their lives constrained her to conceal her defloration for almost two (2) years while the emotional scars of sexual abuse constantly reappeared in her nightmares. But the fiendish character of the father could not be contained in secrecy forever. On 27 January 1989, visibly irked by Alicias enlarging belly, Bienvenida confronted her daughter why she was pregnant. To her utter dismay, Alicia divulged to her that it was her father who impregnated her. This revelation emboldened the rest of the sisters - Araceli, Joselin and Lourdes - to narrate their similar individual experiences in the hands of their father. Bienvenida could only cry in rage as she cursed her husband Felipe Sangil Sr. Confronted by the whole family, the accused did not deny the charges hurled against him by his daughters. Instead, he tried to indulge in emotional blackmail by telling them, [i]f you want, you can send me to jail. Nevertheless, Bienvenida and her daughters were undeterred in exposing their fathers devilish acts. They went to the police station to lodge their complaints for rape against him. Shortly after, he was apprehended.
[2]

Dr. Fe P. Mesina, Municipal Health Officer of Calumpit, Bulacan, examined the sisters and revealed substantially common findings among them. In particular, Dr. Mesina reported the following findings for Lourdes: hymen, thick, wide; labiae with complete old healed lacerations at 9 and 3 o'clock positions, edges of which were rounded, retracted and non-coaptible x x x hymenal orifice, admits two fingers without any resistance. She concluded that the physical virginity of Lourdes had been lost long before the date and time of examination and sexual intercourses with a man were possible on the alleged date of sexual commission.
[3] [4]

Accordingly, on 7 April 1989 the Office of the Provincial Prosecutor of Malolos, Bulacan, filed an information for rape alleging that on or about the 5th of April 1987 x x x the above-named accused (Felipe Sangil Sr. y Velisario) by means of force, violence and intimidation x x x wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Lourdes Sangil y Villanueva, a minor of sixteen years of age, against her will and by means of force.
[5]

The defense is sheer denial. The accused contended that with their crowded sleeping arrangement that night of the alleged incident it would have been impossible to have committed the rape, if true, without being detected by the other members of his household. He argued that before he could reach Lourdes, he would have to step over the other sleeping immediately beside her. He asserted that since the floor of their tiny shack was only made of plywood and they were sleeping under a common mosquito net, a slight commotion would have easily disturbed and alerted anyone around. He capitalized on the testimony of Bienvenida that she was a light sleeper who could be awakened by any sound and yet she slept like a log the whole night when the alleged incident happened.
[6] [7]

To buttress his defense, the accused imputed ill motives against his parents-in-law and family members for concocting the rape charge. He claimed that the charge was induced by a deep-seated quarrel between him and his in-laws when he inquired about the money he sent to his wife while working abroad. He also maintained that the accusation for rape could have been instigated by his father-in-law to exact vengeance for his having illicit relations with his sister-in-law. He intimated to the court that his daughters agreed to file the charges because they too harbored deep resentment against him for being a very strict and disciplinarian father.
[8]

Lucia Baltazar, mother of the accused, testified that the complaint for rape against her son was trumped up by the relatives of his wife. She insisted that there was no truth to the charges since her granddaughters did not mention to her that they were raped by their father when they never failed to confide their problems to her in the past. She questioned the two-year delay in reporting the alleged rape. She denied knowing any physical abuse inflicted by her son on her grandchildren.
[9] [10] [11]

On 13 August 1993 the trial court found the accused guilty as charged and sentenced him to reclusion perpetua and to indemnify his daughter Lourdes the amount of P50,000.00 as moral damages.
[12]

Accused-appellant now comes to us insisting on his innocence. He faults the lower court for adopting the version of the prosecution despite the almost

impossibility of committing the crime under the circumstances. He reiterates his contention that it strains credulity for him to have raped his daughter in a room where several persons were sleeping like packed sardines. Such an act, he argues, would be contrary to human nature and could only invite disbelief.
[13]

Sangil fails to persuade us. We agree with the trial court that the commission of rape was concededly improbable but not impossible. As Justice Frank said, [t]he improbable - by definition being not impossible sometimes does occur. The trial court thus explained [14] [15]

The hypothesis that the act of sexual intercourse itself, given its usual grunts and movements attracts prompt attention from anyone close by, however soundly asleep, holds true only if the unwilling victim makes a sufficiently audible outcry or offers as relentless a resistance as ordinarily expected of her; when it does not obtain as in this case when the victim opted, albeit grudgingly, to succumb to her sexual violation as can be deduced from a more profound assessment of the attendant circumstances and the actual occurrence itself (emphasis supplied).
[16]

In People v. Ignacio, we took judicial notice of the interesting fact that among poor couples with big families living in small quarters, copulation does not seem to be a problem despite the presence of other persons around them. Considering the cramped space and meager room for privacy, couples perhaps have gotten used to quick and less disturbing modes of sexual congresses which elude the attention of family members; otherwise, under the circumstances, it would be almost impossible to copulate with them around even when asleep. It is also not impossible nor incredible for the family members to be in deep slumber and not be awakened while the sexual assault is being committed. One may also suppose that growing children sleep more soundly than grown-ups and are not easily awakened by adult exertions and suspirations in the night. There is no merit in appellants contention that there can be no rape in a room where other people are present. There is no rule that rape can be committed only in seclusion. We have repeatedly declared that lust is no respecter of time and place, and rape can be committed in even the unlikeliest of places.
[17] [18] [19] [20] [21] [22]

Even granting that any of the children was indeed roused from slumber, we can suppose that they would pretend to be asleep because the accused effectively wielded overwhelming power over his spouse and children who were not only beholden to him for their subsistence but also terrorized into virtual bondage with his quick and heavy hand. One cannot expect any of Lourdes siblings to put up a forbidding opposition to what was happening to their poor sister considering the temper of their father. They were practically
[23]

silenced and cowed into submission as any dissension would certainly provoke physical punishment. As to why Beinvenida who is concededly a light sleeper was not awakened by the supposed disturbance can be easily explained in various ways. She could have been too tired; she could have been in deep sleep or have grown accustomed to her husbands getting out of the mosquito net in the middle of the night. But her inability to discover the sexual assault of her husband on their daughters, particularly on Lourdes, does not necessarily negate the possibility of rape. Lourdes positively identified her father as her rapist. While it is often difficult to articulate this experience, Lourdes poignantly recounted the horrors of the rape, the pain of the violation and the confusion which surrounded the act of aggression. The very implausibility of the commission of the rape is itself a strong evidence of its truthfulness. Had the charge been merely concocted as the defense suggests, the complainant would have made it more acceptable by inventing more believable circumstances not encumbered by the presence of all the members of the family in the room when the rape was committed. The fact that she did not choose to do so suggests that she related the events as they really happened, without omission or embellishment, even if they might appear to be improbable. Verily, it is always possible that something improbable can happen.
[24] [25] [26] [27]

We therefore find no cogent reason to disturb the findings of the lower court. We accord due deference to the trial court's views on who should be given credence since the latter had the opportunity to observe the demeanor of the witnesses at the stand. Such findings may only be disturbed on appeal if there is any showing that the trial court overlooked some material or substantial fact which if given consideration will alter the assailed decision. In this case, no such substantial facts exist.
[28] [29]

Appellant finally alleges that the complaint for rape was merely fabricated in retaliation for his illicit relationship with his sister-in-law and cruel treatment of the family. Such contrived defense is not new. We have repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to examination if such heinous crime was not in fact committed. No person, much less a woman, could attain such height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally feels loving and lasting gratefulness. Even when consumed with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a story which would
[30] [31]

put her own father to jail for the most of his remaining life and drag the rest of the family including herself to a lifetime of shame. It is highly improbable for Lourdes against whom no proof of sexual perversity or loose morality has been shown to fake charges much more against her own father. In fact her testimony is entitled to greater weight since her accusing words were directed against a close relative.
[32] [33] [34]

Victimized daughters are not only denied the right to bodily integrity, but to the very self which is the core of autonomous personhood. The incestuous father violates the childs emotional being as his gratification instills an unnamed trauma in her innocent mind when she still cannot understand the meaning of sexual behavior. By inflicting the primitive, bestial act of incestuous lust on his own blood, appellant deserves to forfeit his place in human society. To allow him to resume normal relations with his fellow beings would surely pose the greatest danger since he had already descended to a level lower than the odious beast.
[35] [36]

The crime in the instant case is so monstrous that no punishment which this Court or any other human tribunal can decree could possibly provide sufficient expiation for the offense. The proliferation of incestuous rape of minors, a crime which figuratively scrapes the bottom of the barrel of moral depravity, is a revolting phenomenon in a Catholic country like the Philippines such that it was not even anticipated in specific penal laws. The appellant is rather fortunate because he committed the crime before the effectivity of R.A. No. 7659 which imposes the death penalty for persons guilty of incestuous rape.
[37] [38] [39]

We thus affirm the decision of the court a quo, except that we condemn appellant to pay exemplary damages which the trial court failed to impose. Considering the moral deprivity the appellant who cruelly ravaged his own daughters and grievously wronged his family, exemplary damages should be imposed to deter other fathers with similar perverse tendencies or aberrant sexual behavior from sexually abusing their daughters.
[40]

WHEREFORE, the judgment of the Regional Trial Court of Malolos, Bulacan, finding accused-appellant FELIPE SANGIL SR. guilty of incestuous rape and imposing upon him the penalty ofreclusion perpetua and to indemnify private complainant Lourdes Villanueva Sangil the amount of P50,000.00 as moral damages is AFFIRMED with the modification that, in addition, he should pay her P20,000.00 as exemplary damages. Costs against accused-appellant. SO ORDERED.

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

JORGE SALAZAR, petitioner, PHILIPPINES, respondent.

vs.

PEOPLE

OF

THE

DECISION
PUNO, J.:

In an information dated January 21, 1987, petitioner Jorge Salazar was charged with estafa under Article 315 paragraph 1(b) of the Revised Penal Code. The information reads: That on or about the 10 date of January 1986 in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being the Vice President and Treasurer of Aurora/Uni-Group, Inc., received from Olivier Philippines and Skiva International, Inc. as represented by Teresita M. Tujan the amount of $41,300.00 for the sole purpose of meeting the cost of textile and labor in the manufacture of seven hundred dozen stretch twill jeans which he (accused) is duty bound to deliver to said complainant, and the accused once in possession of the same, far from complying from his obligation, with unfaithfulness and abuse of confidence and to defraud said complainant, did, then and there willfully and unlawfully and feloniously misappropriate, misapply and convert the same for his own personal use and benefit despite repeated demands to return the said amount, failed and refused and still fails and refuses to do so, to the damage and prejudice of said complainant, in the aforementioned amount of $41,300.00 or its equivalent in Philippine currency.
th

Contrary to law.

[1]

On arraignment, petitioner pleaded not guilty to the charge. It appears that Skiva International, Inc. (Skiva) is a New York-based corporation which imports clothes from the Philippines through its buying agent, Olivier (Philippines) Inc. (Olivier). Aurora Manufacturing & Development Corporation (Aurora) and Uni-Group Inc. (Uni-Group) are domestic corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora.

Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora and Uni-Group. When an order is procured for the delivery of clothes, Olivier, issues to the local supplier, Aurora/Uni-Group, a Purchase Contract and Olivier issues to Skiva a Sales Contract. In these transactions, payment is usually made by way of a letter of credit wherein the supplier is paid only upon the presentation of the proper shipping documents to the designated bank.
[2]

In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, through its Officer-inCharge, Ms. Teresita Tujan, contacted Aurora and Uni-Group to supply the jeans. Thus, a Purchase Contract dated December 18, 1985 was issued by Olivier to Uni-Group wherein Uni-Group was to supply 700 dozens of three (3) different designs of Ladies Basic 5 Pockets Stretch Twill Jeans payable by means of a letter of credit at sight. The Purchase Contract was confirmed by Mr. Lettmayr on December 30, 1985 . A Sales Contract was also issued by Olivier to Skiva containing the same terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Chehebar of Skiva.
[3] [4] [5] [6]

On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to US$1.00) as Aurora/UniGroup did not have sufficient funds to secure raw materials to manufacture the jeans. It was also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans. Skiva then issued a check in the said amount payable to Uni-Group. However, due to the length of time needed for the check to be cleared, the parties made arrangements to remit the funds instead by way of telegraphic transfer. Thus, the check issued by Skiva was returned by Mr. Lettmayr and as agreed, the funds were remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.
[7] [8] [9] [10] [11] [12]

On January 16, 1986, petitioner, who had possession and control of the passbook of the said joint account, withdrew the amount of US$21,675.21 and on January 22, 1986, petitioner withdrew the amount of US$20,000.00. The prosecution also presented evidence that subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the joint account as telegraphic transfer fee and commission for the remittance of the funds to another account.
[13] [14] [15]

In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of the jeans. She learned that only 3,000 meters out of the

10,000 meters of Litton fabrics required for the order were purchased from Litton Mills by the petitioner. 3,000 meters of Litton fabrics are enough to produce only 200 dozens of ladies jeans - an amount insufficient to satisfy the order of Skiva of 700 dozens of ladies twill jeans. Upon inquiry with Mr. Lettmayr, the latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of securing the materials. However, Ms. Tujan could not locate the petitioner.
[16] [17] [18] [19]

Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group through its President, Mr. Lettmayr, to return the money advanced in the amount of US$41,300.00.
[20]

For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the US$41,300.00 despite demand, Skiva, through its local agent represented by Ms. Tujan, filed a criminal complaint for estafa against Mr. Lettmayr and petitioner. After preliminary investigation, the Public Prosecutor dismissed the complaint against Mr. Lettmayr and an information was filed against petitioner.
[21]

After trial, the lower court convicted herein petitioner of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code, sentencing him to suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as the maximum and to pay Uni-Group and Aurora the amount of P595,259.00. On March 13, 1997, the lower court denied petitioners Motion for Reconsideration. On appeal, the Court of Appeals affirmed in toto the decision of the trial court and denied petitioners Motion for Reconsideration.
[22] [23] [24]

Aggrieved by the aforementioned rulings, petitioner files the instant petition for review. The petition is bereft of merit. The following are the elements of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code: a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; c) that such misappropriation or conversion or denial is to the prejudice of another; and d) there is demand made by the offended party to the offender.
[25]

We agree with the trial courts finding that the contract between Skiva and Aurora/Uni-Group was one of sale. Thus, upon remittance by Skiva of its
[26]

advance payment in the amount of US$41,300.00, ownership thereof was transferred to Aurora/Uni-Group and Aurora/Uni-Group had no obligation to account or deliver the money to Skiva, its only obligation under the contract of sale being to deliver the 700 dozens of ladies jeans. However, petitioner, as an employee of Aurora/Uni-Group who was aware of the specific purpose of the remittance, upon receipt of the amount, had the obligation to account for the proceeds thereof to Aurora/Uni-Group. The records establish that: 1) the amount of US$41,300.00 was remitted by telegraphic transfer to the joint account of the petitioner and his wife and Mr. and Mrs. Werner Lettmayr; 2) the said amount was remitted as advance payment by Skiva for the jeans it ordered; and 3) the amount of US$21,675.21 was withdrawn by petitioner on January 16, 1986 and the amount of US$20,000.00 was withdrawn by petitioner on January 22, 1986. In fact, petitioner himself admits having withdrawn from the joint account on two occasions after the remittance was made. Petitioner further admits having made such withdrawal for the purpose of purchasing materials to be used for the jeans ordered by Skiva and a portion thereof to be given to Aurora. Thus, upon withdrawal by petitioner of the amounts advanced by Skiva, petitioner received the same in trust with an obligation to return the funds or account for the proceeds thereof.
[27] [28] [29] [30] [31]

With respect to the element of conversion or misappropriation of the amount received, petitioner claims that a portion of the amount was used to purchase 3,000 meters of Litton fabrics and the balance was returned to Aurora. However, upon cross-examination, petitioner was unable to recall the amount paid for the purchase of the fabrics or the amount given to Aurora nor was petitioner able to identify whether payment for the purchase of fabric or the return of funds to Aurora was made in cash or in check.
[32] [33]

In fact, except for his bare testimony, petitioner failed to present evidence to support his defense that payment for the purchase of fabrics had been made or that the balance of the amount received by petitioner was given to Aurora. The only reason why the Court is inclined to believe that 3,000 meters of Litton fabrics were purchased for the manufacture of the jeans is because the witness for the prosecution, Ms. Tujan, independently verified the purchase of the said materials from Litton Mills.
[34]

To support petitioners claim that the remainder of the amount withdrawn was returned to Aurora, petitioner presents a letter dated October 15, 1986 from the Philippine Veterans Investment Development Corporation (PHIVIDEC) addressed to Mr. Werner Lettmayr, President of Aurora, regarding the financial audit of Aurora, wherein the amount of

P850,780.00 is indicated as an amount due to Uni-Group. Atty. Cesar Singson, witness for the defense, testified that the amount of P850,780.00 indicated in the said letter represents the peso equivalent of the advance payment of US$41,300.00 made by Skiva to Uni-Group.
[35] [36]

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

Further, even assuming that the letter may be given credence, we are unable to see any indication that the amount of P850,780.00 or at least a portion thereof (assuming that the said amount represents the advance payment made by Skiva) has been received by Aurora and/or Uni-Group from petitioner. At most, what said letter indicates is that Aurora acknowledges liability to Uni-Group in the said amount or that said amount has been received by Uni-Group from Skiva as advance payment which Uni-Group may have, in turn, assigned to Aurora. The glaring fact remains that nowhere can it be seen from the said letter that there was actual receipt by Aurora from petitioner of the amount indicated therein, or at least a portion thereof, after deduction of the cost of the materials purchased to manufacture the jeans ordered. Moreover, the prosecution was able to establish that upon withdrawal of the said amounts, petitioner caused the telegraphic transfer of the amount to another account prior to petitioners receipt of the amount in pesos. In fact, upon being confronted by the prosecution with Exhibits R and T which are account debit forms showing that certain amounts were deducted by Citibank
[38]

N.A. from the joint account as telegraphic transfer fee for the amounts withdrawn by petitioner, petitioner admitted that upon withdrawal, the dollars was converted by the bank, remitted abroad, and given to me in pesos. The act committed by petitioner of remitting the funds abroad constitutes an act of conversion or misappropriation. This Court has previously held that even a temporary disturbance of property rights constitutes misappropriation. The words convert and misappropriate as used in Article 315 paragraph 1 (b) of the Revised Penal Code, connote an act of using or disposing of anothers property as if it were ones own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate a thing of value for ones own use includes, not only conversion to ones personal advantage but also every attempt to dispose of the property of another without right. Thus, when petitioner caused the remittance of the amount withdrawn to another account, such act constituted conversion or misappropriation or unauthorized disposition of the property, contrary to the purpose for which the property was devoted.
[39] [40] [41]

Petitioner also claims that the third element of estafa is not present as the party prejudiced, in accordance with the findings of the trial court and the Court of Appeals, is Skiva, when petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn. Petitioner argues that consistent with the ruling of the lower court that Aurora is the owner of the sum remitted as advance payment, petitioner had the obligation to account for the proceeds thereof to Aurora and not to Skiva. Thus, petitioner maintains that a conviction for estafa will not hold as no damage to Aurora was alleged in the information nor did the prosecution present any proof of damage to Aurora.
[42]

We are not persuaded. As held in the case of First Producers Holdings Corporation v. Co, in estafa, the person prejudiced or the immediate victim of the fraud need not be the owner of the goods misappropriated. Thus, Article 315 of the Revised Penal Code provides that any person who shall defraud another by any means mentioned [in Article 315] may be held liable for estafa. The use by the law of the word another instead of the word owner means that as an element of the offense, loss should have fallen upon someone other than the perpetrator of the crime. Thus, the finding of the trial court that Skiva, the party prejudiced, is not the owner of the sum misappropriated will not nullify the conviction of the petitioner.
[43] [44]

Petitioner claims that the element of demand is absent as no demand was made by Skiva on petitioner. Petitioner argues that although demand was

made by Skiva to Aurora/Uni-Group and/or Mr. Lettmayr, no demand was shown to have been made on petitioner himself. We hold that the element of demand was satisfied when demand was made upon Aurora/Uni-Group. To require Skiva to make a demand on petitioner himself would be superfluous and would serve no other additional purpose. We note that at the time when Ms. Tujan was following up on the delivery of the jeans, except for the advice of Mr. Lettmayr to direct her queries to petitioner who was in charge of procuring the materials for the jeans, Ms. Tujan could not have known that petitioner may be primarily responsible for the non-delivery of the jeans. As far as Skiva/Olivier was concerned, it was the obligation of Aurora/Uni-Group to deliver the jeans, which at the time of demand, was not complied with. Thus, Skiva/Olivier acted appropriately when it demanded from Aurora/Uni-Group the return of the amount advanced. To require that demand should have been made by Skiva/Olivier upon petitioner himself to uphold the conviction of the trial court is to sustain a blind application of the law. In the case ofUnited States v. Ramirez, this Court held:
[45]

The consummation of the crime of estafa does not depend on the fact that a request for the return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the prejudice of the owner thereof are the sole essential facts which constitute the crime of estafa, and thereupon the author thereof incurs the penalty imposed by the Penal Code. Further, in Tubbs v. People and Court of Appeals this Court ruled that the law does not require a demand as a condition precedent to the crime of embezzlement. It so happens only that failure to account, upon demand for funds and property held in trust, is circumstantial evidence of misappropriation.
[46]

In Benito Sy y Ong v. People and Court of Appeals, we also held that in a prosecution for estafa, demand is not necessary when there is evidence of misappropriation.
[47]

Petitioner likewise maintains that Skiva has no authority to institute the present action as estafa was not committed against Skiva but against Aurora/Uni-Group on the basis of the finding that the transaction between Skiva and Aurora/Uni-Group was one of sale. Thus, petitioner argues that pursuant to Section 3, Rule 110 of the Rules on Criminal Procedure, the complaint should not have been instituted by Skiva as it is not the offended
[48]

party contemplated by the Rules and petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn from the joint account.
[49]

The complaint referred to in Rule 110 contemplates one that is filed in court to commence a criminal action in those cases where a complaint of the offended party is required by law, instead of an information which is generally filed by a fiscal. It is not necessary that the proper offended party file a complaint for purposes of preliminary investigation by the fiscal. The rule is that unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any competent person may file a complaint for preliminary investigation.
[50] [51]

Thus, as a general rule, a criminal action is commenced by a complaint or information, both of which are filed in court. If a complaint is filed directly in court, the same must be filed by the offended party and in case of an information, the same must be filed by the fiscal. However, a complaint filed with the fiscal prior to a judicial action may be filed by any person. Thus, in the case at bar, the complaint was validly filed by Skiva despite the finding of the lower court that petitioner had no obligation to account to Skiva.
[52]

WHEREFORE, the instant petition is DENIED and the appealed judgment of the court a quo finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315 paragraph 1 (b) of the Revised Penal Code is AFFIRMED. Costs against appellant. SO ORDERED.
G.R. No. L-23796 July 23, 1968

LOURDES P. SAN DIEGO, Presiding judge, Court of First Instance of Rizal, Quezon City Branch IX and BENJAMIN M. GRECIA, Assistant City Fiscal of Quezon City, petitioners, vs. THE HON. FERNANDO HERNANDEZ, HON. JOSE RODRIGUEZ, HON. ANTONIO CAIZARES, CHAIRMAN and MEMBERS OF THE HONORABLE COURT OF APPEALS, SECOND DIVISION, MODESTO A. OBISPO and CIPRIANO VALERIANO, respondents. Assistant City Fiscal Benjamin M. Grecia for and in his own behalf as petitioner. Bernardo P. Abesamis, Ibarra Vigilia, A. Espinosa, Cesar Francisco, Norberto Cajucom and Cecilio Wycoco for respondents. CONCEPCION, C.J.: Original action, for "certiorari prohibition and injunction", to annul an order of the Court of Appeals and restrain the same from further proceedings in case CA-G.R. No. 34826-R thereof. The record shows that, after investigating an alleged mauling of one Manuel Abella, in Quezon City, on October 3, 1964, Benjamin M. Grecia, as Assistant Fiscal of said City, filed, in connection therewith, with the Court of First Instance of Rizal, Quezon City Branch hereinafter referred to as CFI presided over by Hon. Lourdes P. San Diego, Judge, an information which was docketed as Criminal Case No. Q-6029 of said CFI for frustrated murder, against Juancho G. Gutierrez, Celedonio P. Cayado alias Tony Cayado, Alfonso D. Tagle alias Panchito Alba, Benjamin A. Johnson, Eliseo C. Estanislao and three (3) other persons designated in said pleading as John Doe, Richard Doe and Peter Doe. Among those implicated in the alleged mauling were Modesto Obispo and Cipriano Valeriano, Assistant City Fiscal and member of the Police Force, respectively, of Quezon City; but they were not named specifically in the information for the reason stated in a letter of the City Fiscal to the Secretary of Justice, hereinafter referred to as the Secretary "that only the victim Manuel Abella identified them, while his two other witnesses were negative in their identification of the two, aside from the fact that they were able to present witnesses to show that they did not participate in the mauling." The City Fiscal further stated, in his letter, that the investigation had been set, for continuation thereof, on October 5, 1964, and that, owing to the danger that any action taken thereon by his office may be "misinterpreted", because a member of his staff Assistant Fiscal Obispo was

involved, he (the City Fiscal) requested that a special prosecutor of the Department of Justice hereinafter referred to as the Department be designated "to continue . . . said investigation." Accordingly, on October 5, 1964, the Secretary designated State Prosecutor, Francisco Villa, "to assist the city fiscal of Quezon City in the investigation and prosecution of all the persons responsible for the alleged mauling of Manuel Abella . . ." On the same date, Villa proceeded to conduct the investigation, which he resumed on October 7, 1964. Thereupon, he recommended to the Secretary the dismissal of the case, insofar as Obispo and Valeriano were concerned, upon the ground that Manuel Abella had refused to testify. This recommendation was, however, disapproved by the Secretary, who instructed the prosecution to do everything possible to secure Abella's testimony. Hence, on October 13, 1964, the city fiscal issued a memorandum directing Grecia and Villa to sit together and resume the investigation, as well as report thereon. On October 19, 1964, the defendant designated in the information by their true names were arraigned before the CFI. On this occasion, Judge San Diego asked Assistant Fiscal Grecia about the identity of the persons referred to in said pleading as John Doe, Richard Doe and Peter Doe. Grecia replied that the first two (2) were Assistant City Fiscal Modesto Obispo and Patrolman Cipriano Valeriano, respectively hereinafter referred to collectively as the respondents. Thereupon, Judge San Diego authorized Grecia to cross out the conventional names John Doe and Richard Doe, in the information, and write, instead, "Fiscal Modesto Obispo" and "Patrolman Cipriano Valerians", which Grecia did. Then, the warrants for their arrest were issued, on motion of Grecia. Respondents forthwith moved to set aside said warrants of arrest, but, the motion was denied on October 20, 1964; whereupon, respondents posted their respective bail bonds, and moved to quash the information, upon the ground of absence of a preliminary investigation and the consequent lack of authority to file said pleading. After listening to the argument of respondents' counsel, when said motion was heard on October 31, 1964, Judge San Diego stated that, "not being founded on the grounds provided by the Rules of Court," the motion would "have to be denied." As said counsel requested some time to file a motion for reconsideration, Judge San Diego remarked that she saw no need therefor, if the arguments adduced that morning would merely be reiterated. She, however, allowed Atty. Marvin Hill to appear as amicus curiae and submit, not later than November 2, 1964, a memorandum in support of said motion to quash. Judge San Diego further announced that the written order thereon would be issued on November 4, 1964 as, in fact, it was then issued - on which date respondents would be arraigned and should be ready for trial. Respondents, however, filed, with the Court of Appeals, on November 2, 1964, a petition, docketed as CA-G.R. No. 34826-R, for "certiorari, prohibition and injunction," to annul the information against them and restrain Judge San Diego and Assistant Fiscal Grecia from proceeding with their (respondents') arraignment and trial in said Criminal Case No. Q- 6029. On November 3, 1964, a division of the Court of Appeals passed a resolution requiring said Judge and Assistant Fiscal to answer the petition therein and, upon the filing of a P500 bond, issued a "summons with" the "writ of preliminary injunction" prayed for by respondents herein. On November 12, 1964, Judge San Diego and Assistant Fiscal Grecia in turn, filed, with the Supreme Court, the present action for "certiorari, prohibition and injunction," against the respondents and the Members of the Division of the Court of Appeals that passed said resolution and authorized the issuance of the writ aforementioned, to annul both, upon the ground of grave abuse of discretion, amounting to excess of jurisdiction. As prayed for in the petition herein, we issued a writ of preliminary injunction restraining the Court of Appeals from further proceedings in said CA-G.R. No. 34826-R. Respondents alleged in their petition therein that the amended information against them is null and void: (1) because they were given no preliminary investigation, before being included in said pleading, and (2) because Grecia allegedly "lost all authority to amend the information" by including therein respondents herein. The infirmity of the last ground was manifest on the very face of said petition. Indeed, respondents quoted therein section 2 of Republic Act No. 1198, pursuant to which "State Attorneys shall only assist or collaborate with the Provincial Fiscal or city attorney unless otherwise expressly directed and authorized by the Secretary of Justice," and it is not alleged in said pleading that the latter had thus "otherwise expressly directed and authorized state attorney" Villa, as regards the alleged mauling of Manuel Abella. In fact, Villa was merely "designated to assist the City Fiscal of Quezon City," so that the latter, and on his behalf, Assistant Fiscal Grecia retained control over the prosecution in Criminal Case No. Q-6029. With respect to the first ground, it is worthy of notice that the Constitution does not require the holding of preliminary investigations. The right thereto exists only, if and when created by statute. When so created, the absence of a preliminary investigation if it is not waived may amount to a denial of due process. In this connection, Section 38 of the Revised Charter of Quezon City1 reads:

1w ph1.t

Every person arrested shall, without unnecessary delay, be brought before the City Attorney, the municipal court, or the Court of First instance for preliminary hearing, release on bail, or trial. ...In case triable only in the Court of First Instance the defendant shall not be entitled as of right to preliminary examination in any case where the Fiscal of the city, after a due investigation of the facts, shall have presented an information against him in proper form. But the Court of First Instance may make such summary investigation into the case as it may deem necessary to enable it to fix the bail or to determine whether the offense is bailable. Thus, the defendant in a case "triable only in the Court of First Instance" of Quezon City, "shall not be entitled as of right to preliminary investigation . . . where the Fiscal of the City, after due investigation of the facts, shall have presented an information against him in proper form." In the case at bar, such investigation had been conducted and said "information in proper form" was filed by the "Fiscal of the City." Hence, the action of Assistant Fiscal Grecia in inserting, in the information in Criminal Case No. Q-6029, the true names of those accused therein as John Doe and Richard Doe, and the authority given therefor by Judge San Diego, are violative of neither the Fundamental Law nor the statutes, and do not constitute a denial of due process. In other words, the petition in CA-G.R. No. 34826-R failed to set up a cause of action, because the law relevant to the subject-matter of every pleading and, hence, the Revised Charter of Quezon City, as regards said petition must be considered as part and parcel of the allegations thereof, 2 and in issuing the writ of preliminary injunction, the Court of Appeals had abused, therefore, its discretion so gravely as to have exceeded its jurisdiction.3

Needless to say, the cases cited in respondents' petition in CA-G.R. No. 34826-R are not in point. Conde v. Judge of First Instance 4 was concerned mainly with the harassment visited upon the accused and a denial of speedy trial, through substantial amendments of the information, by changing the nature of the crime charged therein, and the filing of new charges, without a preliminary investigation, after the dismissal of those originally filed, as well as undue delays in proceeding with the hearing of the case. In the one at bar, respondents seek to prevent their trial under an information the allegations of which, as regards the nature of the crime charged have never been changed or amended. In U.S. v. Marfori,5 an information was filed in the court of first instance after the dismissal of the complaint by the justice of the peace who conducted the preliminary investigation. Upon the other hand, the justice of the peace who conducted the preliminary investigation in U.S. v. Banzuela6 found that "there were no grounds for believing that" the "accused was guilty of the crime charged against him," and, accordingly, ordering his release, thus, in effect, dismissing the complaint. In People v. Red,7 no preliminary investigation was ever made. In the case of respondents herein, Assistant Fiscal Grecia had conducted an investigation, and had not dismissed, either expressly or impliedly, the charges against them. What is more, he included them in the information, although under the conventional names of John Doe and Richard Doe, and their true names were not revealed until the arraignment of their co-defendants, on October 31, 1964. Lastly, none of the aforementioned cases involved the application of a provision analogous to that of the Revised Charter of Quezon City, explicitly denying the right to a preliminary investigation in cases triable only in the Court of First Instance thereof, where the prosecutor, after due investigation of the facts, shall have filed an information against him in proper form. WHEREFORE, the writ of preliminary injunction issued by the Court of Appeals in CA-G.R. No. 34826-R is hereby annulled, with costs against respondents, Modesto A. Obispo and Cipriano Valeriano. It is so ordered. G.R. No. L-51745 October 28, 1988 RAMON F. SAYSON, petitioner, vs. PEOPLE OF THE PHILIPPINES and the HON. COURT OF APPEALS, respondents. Federico P. Roy for petitioner. The Solicitor General for respondents.

CORTES, J.: Petitioner seeks the reversal of the Court of Appeals decision finding him guilty of attempted estafa. On March 25, 1972, an information for the crime of Estafa through Falsification of a Commercial Document was filed against the herein petitioner, Ramon F. Sayson before the Court of First Instance of Manila, the pertinent portion of which reads: ... the said accused having come in possession of a blank US dollar check #605908142, with intent to defraud Ernesto Rufino, Sr. and/or Bank of America, did then and there wilfully, unlawfully and feloniously forge and falsify or cause to be forged and falsified the said check, by then and there writing or filling or causing to be written or filled up the following words and figures: "March 10, 1972," "Atty. Norberto S. Perez," "2,250.00" and forging the signature of the Asst. Cashier, Manager of the Bank of America, Dania Branch, making it appear, as it did appear, that the said check was duly issued by the Bank of America, when in truth and in fact, as the accused well knew, the said check was never issued nor authorized by the said bank; that thereafter, said accused wrote or affixed the signature "Norberto Perez" on the back of said check as indorser; that once the said cheek had been forged and falsified in the manner above described, the said accused by means of false manifestations and fraudulent representations which he made to Ernesto Rufino, Sr. that he is "Atty. Norberto Perez" who is the payee of the said Check, and by means of other similar deceits, induced and succeeded in inducing the said Ernesto Rufino, Sr. to change said dollar cheek, as in fact, said Ernesto Rufino, Sr. issued Manufacturer's Bank Check No. 87586 dated March 22, 1972 payable to "Norberto Perez" in the amount of "Pl 4,850.00" in exchange for said dollar check; ... [Rollo, pp. 23-24.] Arraigned on December 8, 1972, petitioner pleaded not guilty. On October 9, 1974, after several postponements, the prosecution rested its case. At the hearing of December 9, 1974, when the defense was scheduled to present its evidence, only the petitioner appeared. He said that his counsel had another case in a different court. In the morning of the said day, his lawyer also sent a telegram to the court requesting cancellation of the hearing because he was sick. The court denied the motion for postponement and the case was considered submitted for decision without petitioner's evidence. The trial court rendered judgment on January 30, 1975, finding the accused guilty of the crime charged and sentencing him to an indeterminate penalty of 2 years, 4 months and 1 day to 6 years of prison correccional to pay a fine of P2,000.00, with subsidiary imprisonment and to pay the costs. The Court of Appeals affirmed but modified the penalty by imposing six months of arresto mayor and eliminating the fine. Hence, this petition for review on certiorari. The background facts as found by the appellate court as well as its conclusions thereon follow: On March 22, 1972, appellant Ramon Sayson y Fernandez was introduced by Vicente Jaucian a former employee of the Luzon Theatres, Inc. to Anselmo Aquiling, private secretary to Ernesto Rufino, Sr., General Manager of the corporation. Vicente Jaucian had known appellant as "Fiscal Perez" who wanted to exchange dollars for pesos, having been introduced to him in

that capacity by his (Jaucian's) cousin. Thinking that Rufino might be interested in dollars, Jaucian accompanied appellant to the offices of the Luzon Theatres, Inc. and Mever Films, Inc. at the Avenue Hotel on Rizal Avenue, Manila. Upon being introduced to Anselmo Aquiling, appellant showed the latter an Identification card indicating that he was Norberto S. Perez, a Prosecuting Attorney from Angeles City. After making the introduction, Jaucian left. Mr. Rufino said that he was not personally interested in dollars but suggested to his secretary to inquire if Mever Films, Inc. needed dollars. Mr. Rufino was also Chairman of the Board of the aforesaid corporation; and when told that Mever Films needed dollars, he authorized the transaction. Appellant then presented to Edgar Mangona, the assistant accountant of Mever Films, a Bank of America check in the amount of $2,250,00 payable to the order of Atty. Norberto S. Perez, a xerox copy of which was introduced in evidence as Exhibit E. Actually, Exhibit E appears to be a bill of exchange or draft drawn by the Dania, Florida Branch of the Bank of America on its San Francisco Branch in favor of said payee and bears serial number 605908142. Edgar Mangona prepared a check of the Manufacturer's Bank and Trust Company in the amount of P14,850.00 at the exchange rate of P6.60 to a dollar (Exh. B). He then walked over to the office of Mrs. Teresita Rufino Litton whom he asked to sign the check and thereafter Mangona asked Mr. Rufino to countersign it. Finally, the check was exchanged with appellant's Bank of America draft and the latter signed the voucher for the peso check. On the same day, March 22, 1972, appellant repaired to the Tayuman Branch of the Banco Filipino and informed its Branch Manager, Mrs. Maria Fe Relova that he wanted to open a savings account. He was given an application form which he filled up with the name Norberto S. Perez as the applicant, among other things. Appellant then presented the Manufacturer 's Bank check Exhibit B, payable to the order of Norberto S. Perez, and after endorsing the same, it was posted in the passbook issued to him. Unknown to appellant, however, Mrs. Relova, an astute woman had been auspicious of the former's actuations. So that after he left, she called up the office of the PLDT and inquired if the telephone number which appellant had unsolicitedly given her was listed in Perez' name. She was told that the number referred to had not yet been issued by PLDT. She then telephoned the office of Mever Films, Inc., the drawer of the check, and inquired if the check was in fact issued by it and she was answered in the affirmative. Despite this assurance, she tested her suspicions further by sending out a bank employee to deliver a brochure to the address given by appellant and the messenger returned without locating the place. Within a short time, the officials of the Mever Films, Inc. became doubtful of the genuineness of the Bank of America draft. And on March 24, 1972, two days after the issuance of the Manufacturer's Bank check and one day after the check was cleared with the Central Bank, Mever Films which was convinced that the draft was spurious ordered its payment stopped (Exhibit D). On the same day, Vicente Jaucian who had introduced appellant to Anselmo Aquiling and the latter himself went to the office of the National Bureau of Investigation (NBI) and there gave written statements on what they knew about appellant (Exhibits F and G). Also on the same day, the Assistant Manager of the Bank of America, Manila Branch, who must have been informed of the transaction involving the draft, addressed a letter to the NBI authorities (Exh. B) which reads: Gentlemen: This is to certify that U.S. Dollar draft No. 605908142 drawn on the Bank of America NT & SA, San Francisco, in favor of Atty. Norberto S. Perez for $2,250.00 and dated March 10, 1972, is one of the blank drafts surreptitiously taken from a shipment sent to us by our San Francisco Headquarters sometime in the latter part of 1970. Issuance of the above-mentioned draft was not authorized by this bank. Jose R. Lopez, the abovementioned assistant manager who issued the aforestated certification, testified that the draft in question was one of the 900 blank drafts which were missing from a shipment received from their head office in the United States sometime in 1971. He declared that the words "Dania Branch" and "Dania, Florida" appearing on the face of the draft were superimposed so as to make it appear that the draft was drawn by the Dania, Florida Branch of the Bank of America on the San Francisco Branch, when in fact the blank draft was for the exclusive use of the Manila Branch, as revealed by the first four code figures of the draft's serial number. We are satisfied with Lopez' testimony that the draft in question was a forgery. Since the same was a blank draft appertaining to the Manila Branch of the Bank of America, of which he was the Assistant Manager, Lopez was competent to state whether or not the draft was a forgery. And the fact that appellant had openly and falsely represented himself to be Atty. Norberto S. Perez indicated in the forged draft as the payee, is a strong circumstantial evidence that he was instrumental in its forgery. [Rollo, p. 25-30.] xxx xxx xxx The appellant has raised the issue of due process, alleging denial of his right to be heard and to present evidence. This requires inquiry into the extent of the rights accorded an accused in a criminal case and whether the accused-appellant has been denied the rights to which he is entitled. The right to be heard by himself and counsel is one of the constitutional rights of the accused. But while the accused has the right to be heard by himself and counsel and to present evidence for his defense by direct constitutional grant, such right is not exempt from the rule on waiver as long as the waiver is not controverted to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law [Article 6, Civil Code.] There is nothing in the Constitution nor in any law prohibiting such waiver. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made, as in this case. Petitioner claims though that he was not waiving such right; on the contrary, he was vigorously asserting his right to be heard by counsel and to present evidence in his verbal motion for postponment due to absence of his counsel de parte. He thus assails the denial of his motion as it in effect deprived him of his day in court.

It is too well established to require citation of authorities that the grant or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court. Justice Malcolm, in a 1919 decision, expounded on such judicial discretion as follows: Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial nor for fight causes jeopardize the rights and interests of the public. Where he consideration--that it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance. The ruling of the court will not be disturbed on appeal in the absence of a clear abuse of discretion. When the discretion of the court is exercised with a reasonable degree of judicial acumen and fairness, it is one which the higher co is loathe to review or disturb. The trial judge must be to a certain extent free to secure speedy and expeditious trials when such speed and expedition are not inconsistent with fairness. Since the court trying the case is, from personal observation, familiar with all the attendant circumstances, and has the best opportunity of forming a correct opinion upon the case presented, the presumption will be in favor of its action. It would take an extreme case of abuse of discretion to make the action of the trial court a denial of due process. (Emphasis supplied; U.S. v. Ramirez, 39 Phil. 738 (1919).] The factual background of the case penned by Justice Malcolm, which was quoted with approval in the case ofPeople v. Mendez [G.R. No. L-27348, July 29, 1969, 28 SCRA 880], is very similar to that of the case at bar. In the instant case, the information was filed on March 25,1972 and arraignment was held on December 8,1973. The prosecution started presenting its evidence on March 12,1973 and after 1 year, 10 months and 1 day from the day of arraignment, it rested its case. During this time, petitioner had already secured seven postponements, which it admitted in its brief filed with the Court of Appeals [Rollo, p. 20] thus prompting the trial judge to remark that "this is a notoriously postponed case' and that "the defense had abused the rules" [TSN, December 12,1973, pp. 2-3.]. Since the judge's comments were home out by the record regarding the postponements which were admitted by petitioner himself in his brief filed before the Court of Appeals, petitioner cannot rightfully cast aspersion on the integrity of said judge by attributing to him a non-existent attitude of bias and hatred toward the petitioner-accused. No grave abuse of discretion in denying the petitioner's motion for postponement can be imputed to the trial court. First, the petitioner's motion was not seasonably filed as the three-day notice required by the rules (Rule 15, Section 4 of the Revised Rules of Court) was not complied with. Moreover, it was not accompanied by an affidavit nor a medical certificate to support the alleged illness of counsel, controverted to what Rule 22, Section 5 of the Revised Rules of Court mandates: Sec. 5. Requisites of motion to postpone trial for illness of party or counsel.A motion to postpone trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. Besides, when petitioner himself sought postponement of the case during the December 9 hearing, he claimed that his counsel had another case in a different court. Certainly, the conflicting stories advanced by petitioner and his counsel only indicate the lack of a good cause for the postponement. Petitioner's lament that 'at least, in the name of justice and fair play, the trial court should have warned accused that no further postponements shall be entertained by the court' [Rollo p. 97] is baseless. As he was aware that the case had already been postponed seven times at his initiative, he had no right to assume that his motion would be granted; rather, he should have foreseen that any further motions for postponement might not be met with approval by the trial court. Besides, the record of the case clearly shows that the accused had repeatedly appeared in court without his counsel, seeking postponements which were liberally granted by the court with an order directing his counsel to show cause why he should not be held in contempt for repeated failure to appear at the trial of the case. In fact, the court, in its Order dated August 1 2, 1974, categorically declared: "In the meantime, let the trial of this case be DEFINITELY POSTPONED FOR THE LAST TIME to August 14, 1974 at 8:30 a.m. as previously scheduled, with the warning to the accused to be ready with his present counsel or another counsel on said date as the court will not entertain any further delays in the proceedings in this case and shall proceed with the trial of this case with or without his counsel." [Original Records, p. 430]. This, certainly, was enough warning. Finally, the motion for postponement was properly denied inasmuch as the defendant failed to present any meritorious defense. This Court's pronouncementthat in incidents of this nature before the trial court, two circumstances should be taken into account, namely, 1) the reasonableness of the postponement and 2) the merits of the case of the movant should not be lightly ignored [Udan v. Amon G.R. No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an accident, surprise or excusable neglect justifying postponement or reconsiderationbut if the movant does not present a meritorious claim or defense, denial of his motion for postponement may not be considered as an abuse of the discretion of the court.[De Cases v. Peyer G.R. No. L-18564, August 31, 1962, 5 SCRA 11 65.] Absent any meritorious case in defendant's favor, his motion for postponement was properly denied. His invocation of his right to counsel and to present evidence was an empty gesture revealing his dilatory scheme. Under the circumstances, the petitioner must be deemed to have waived his rights and to have been extended the protection of due process. Moreover, the petitioner in negotiating the check presented himself as a lawyer; he was addressed in the Notice of the Order dated September 11, 1972 as "Atty. Ramon Sayson y Fernandez" [Original Records, p. 381 and he himself filed the Motion to Quash [Original Records, p. 22] and a pleading captioned "Compliance" dated December 2, 1972 [Original Records, p. 41.] These facts indicate that he was capable of defending himself That he himself was allowed to file pleadings clearly negatives the alleged deprivation of his right to due process of law. Consequently, there being no abuse of discretion on the part of the trial court, its order will not be disturbed. The Court finds the petitioner's plea that it was incumbent upon the trial judge to appoint a counsel de oficio who for him when he appeared without his counsel utterly without legal basis. The duty of the court to appoint a counsel de oficio when the accused has no counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Rule 116, Section 6, Revised Rules of Court This is no longer so where the accused has proceeded with the arraignment and the trial with a counsel of his choice but when the time for the presentation of the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable. This Court's holding in a previous case that there is no deprivation of the light to counsel in such a case is squarely applicable:

As the appellant was represented by counsel of his choice at the arraignment, trial and in the incidental motions to dismiss and to postpone the resumption of the trial of the case, the trial court was not in duty bound to appoint a counsel de oficio to assist him in his defense. His failure to appear with counsel of his choice at the hearing of the case, notwithstanding repeated postponements and warnings that failure to so appear would be deemed a waiver on the part of the appellant to present his evidence and the case would be deemed submitted for decision upon the evidence presented by the prosecution, was sufficient legal justification for the trial court to proceed and render judgment upon the evidence before it. Taking into consideration all the steps taken by the trial court to safeguard the rights of the appellant, the latter cannot pretend that he was deprived of his right to be assisted by counsel and to present evidence in his behalf. Moreover, the repeated failure of the appellant to appear with counsel at the resumptions of the trial of the case may be taken as a deliberate attempt on his part to delay the proceedings. [People vs. Angco, 103 Phil. 33, 39 (1958).] At the most, the appointment of a counsel de oficio in situations like the present case is discretionary with the trial court, which discretion will not be interfered with in the absence of abuse. Here, the trial court had been liberal in granting the postponements secured by the petitioner himself, at the same time admonishing the latter to be ready with his present counsel or another counsel [Original Records, p. 430]. Notwithstanding this admonition, the petitioner kept on attending the hearings without securing another lawyer to substitute his present counsel who was constantly absent during the hearings. Still, as admitted by petitioner in his memorandum, the trial court, at the December 9, 1974 hearing, allowed him to look for a lawyer but no one was available at the time (Rollo, p. 94). These steps undertaken by the trial court removes any doubt that its order was tainted with grave abuse of discretion. The last issue to be resolved dwells on the effect of the alleged variance between the prosecution's allegation and proof. The petitioner vigorously maintains that he cannot be justifiably convicted under the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the evidence presented by the prosecution show very clearly that the accused allegedly attempted to defraud Mever Films, Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr. He firmly asserts that his conviction was in gross violation of his right to be informed of the nature and cause of the accusation against him. Petitioner's claim is unavailing. The rule in this jurisdiction is that "variance between the allegations of the information and the evidence offered by the prosecution in support thereof does not of itself entitle the accused to an acquittal." [People v. Catli G.R. No. L-11641, November 29, 1962, 6 SCRA 642.] 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 partyxxx xxx xxx (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. xxx xxx xxx 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. IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is hereby DENIED and the decision of the Court of Appeals is AFFIRMED in toto with costs against the appellant. SO ORDERED. G.R. Nos. 135554-56 June 21, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO DELA CRUZ y CARIZZA, accused-appellant. KAPUNAN, J.: Before the Court on automatic review is the Decision dated August 13, 1998 of the Regional Trial Court of Baguio City, Branch 6, in Criminal Cases Nos. 15163-R, 15164-R and 15368-R finding accused-appellant Danilo dela Cruz y Carizza guilty of two (2) counts of rape and one (1) count of acts of lasciviousness. On August 29, 1997, two informations for rape were filed against accused-appellant in the RTC of Baguio City. The informations alleged: Criminal Case No. 15163-R That sometime in the month of September, 1990, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of his daughter, JEANNIE ANN DELA CRUZ, a minor, then 11 years of age, against her will and consent. CONTRARY TO LAW.1 Criminal Case No. 15164-R That sometime in the month of July, 1995, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation, have carnal knowledge of his daughter, JEANNIE ANN DELA CRUZ, a minor, then 16 years of age, against her will and consent. CONTRARY TO LAW.2 On December 11, 1997, another information was filed against accused-appellant charging him with violation of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act). The information stated: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW.3 This case was docketed as Criminal Case No. 15368-R. Upon motion of the prosecution, the trial court ordered the consolidation of the three cases. When arraigned, accused-appellant entered a plea of not guilty to each of the charges. Thereafter, a joint trial of the cases ensued. The prosecution presented as its witnesses complainant Jeannie Ann dela Cruz; Dr. Ronald R. Bandonill, the medico-legal officer of the National Bureau of Investigation-Cordillera Administrative Region (NBI-CAR); Mrs. Jean dela Cruz, mother of complainant and spouse of accused-appellant; and SPO2 Melchor Ong of the Baguio City Police. The prosecution established that accused-appellant married Jean dela Cruz in civil rites on 14 April 1977 and again in Catholic rites on 27 December 1978. They begot four children, namely: Jeanie Ann (the private complainant), Divine Grace, Daniel Jay and Gerard Nio. 4 Accused-appellant, a teacher, worked at the Don Bosco Technical Institute in Tarlac from 1978 to 1986. He transferred to the Don Bosco Elementary School in Baguio City sometime in 1986 and taught there until the following year. In 1987, he worked at the Saint Louis Center in Baguio City until his dismissal therefrom in 1993. Accused-appellant again taught at the Don Bosco Technical Institute in Tarlac from 1993 until his arrest in August 1997.5 While working there, he and his son Daniel stayed in Sto. Cristo, Tarlac on weekdays and went home every 15 days or every payday. They would go home to Baguio City, where the rest of their family stayed, on Friday evening and return to Tarlac on Sunday afternoon. 6 Jeannie Ann dela Cruz ("Jeannie Ann") testified that she was born to accused-appellant and Jean Aqui-dela Cruz on April 18, 1979 in Tarlac, Tarlac. Not long after her birth, her family transferred to the house of her maternal grandmother in No. 2 Sumulong Street, Baguio City. Her family lived in an extension of her grandmothers house which had a basement, a second floor and an attic. The second floor had four rooms and a stairs leading to the attic, which served as a stockroom. Jeannie Anns parents and her two brothers, Daniel and Nio, stayed in the basement while she and her sister, Divine stayed in the second floor.7 Jeannie Ann revealed that accused-appellant started molesting her when she was seven years old. While he helped do her homework at night, accused-appellant would on occasion make her hold his penis and masturbate him. There were also instances when he would put his penis inside her mouth and withdraw the same when a white liquid came out. 8 Accused-appellant warned Jeannie Ann not to tell her mother what he was doing to her and told her that it was a normal thing between father and daughter. He further warned Jeannie Ann that her mother might kill them should she learn

about the things that they did. Jeannie Ann believed accused-appellant and did not tell anyone about the sexual acts he performed on her. As she was growing up, accused-appellant continued to engage in the aforementioned sexual activities with her, and continuously threatened to hurt her, her siblings or her mother if she did not give in to his desires. Jeannie Ann still refrained from complaining because she was convinced by the accusedappellant that the sexual activities which he performed on her were proper.9 She recounted before the trial court three particular occasions when accused-appellant molested her. Jeannie Ann said that sometime in September 1990, she was sexually abused by accused-appellant in their house in No. 37 Leonard Wood Road, Baguio City. She was only 11 years old then. According to Jeannie Ann, their family had moved to said house when her grandmothers house in Sumulong St. was destroyed in the July 16, 1990 earthquake that hit Baguio City.10 They occupied the basement of the house in Leonard Wood Road. The basement had two bedrooms, a comfort room and a living room. Nobody stayed in the second floor thereof but during the day they stayed in the main house.11 Sometime that month, Jeannie Ann, her three year-old brother Nio and accused-appellant were left in the house while her mother and her sister Divine went to market. She was in the living room with Nio when her father undressed her. Her father removed his pants and she was made to lie down on a cushion. Her father played with her genitalia and rubbed his penis against her private part until a white liquid came out of his penis. Jeannie Ann said that after said incident, she felt pain in her vagina whenever she would urinate (mahapdi). She did not resist because she thought that what her father was doing to her was a normal act.12 Jeannie Ann narrated that accused-appellant again abused her one night in July 1995 when she was 16 years old. She was watching television with her siblings in the living room. At that time, their mother was attending a meeting in church. Accused-appellant called her three times but she refused to respond to his call as she was watching television. Exasperated, accused-appellant pulled her inside one of the bedrooms and asked her to lie down on the bed saying, "This is only for a while." Accused-appellant then undressed her, removed his pants and underwear, inserted his finger inside her vagina, mashed her breasts and licked her vagina. Accused-appellant proceeded to rub his penis against her vagina and thereafter inserted his penis therein and kept it there until his semen started to come out. Accused-appellant placed his penis on Jeannie Anns stomach where he made his semen flow. While all this was happening, Jeannie Ann could only cry, as she was afraid of accused-appellant, because he threatened her that he would kill her or her mother and siblings.13 The third incident recounted by Jeannie Ann occurred in their house in No. 2 Sumulong Street, Baguio City on August 2, 1997. She was then 18 years old. When she came home at around 10:30 in the morning after her classes at Saint Louis University, she saw accused-appellant at the door. He told her to proceed to the attic shortly. She ignored him and went directly to her room and started cleaning the same. While she was cleaning the outer portion of her room, she saw accused-appellant go up the attic. While he was there, he repeatedly called her and asked her to go there. When Jeannie Ann remembered that her mother had earlier instructed her to clean the attic, she went up when she was done cleaning her room.14 Accused-appellant lay on the bed in the attic as Jeannie Ann swept the floor. When she was done, accused-appellant asked her to join him on the bed. He went near her and again asked her to sit on the bed when she refused to heed his call. Accused-appellant whispered to her that he was running out of time. He talked in whispers so that the other people in the house at that time would not be able to hear what he said. Sensing that accused-appellant would again molest her, Jeannie Ann became nervous and started to cry. He told her to stop crying and to relax, as what he was about to do would only take a while. Accused-appellant then lifted Jeannie Anns t-shirt and brassier, mashed her breasts with his left hand and inserted his right hand inside her pants. Jeannie Ann resisted, but accused-appellant proceeded to insert a finger of his right hand inside her vagina. While he performed the aforementioned acts on his daughter, accused-appellant told her, "I love you very much. Promise me that I will be the only one who will do this to you."15 Accused-appellant only stopped what he was doing when he heard Aileen, a boarder in their house, calling Jeannie Ann. He immediately fixed her clothes and hair, then moved away from her. Accused-appellant instructed Jeannie Ann not to go down and to keep quiet about the incident. When accused-appellant noticed that Aileen had left because Jeannie Ann did not respond to her, accused-appellant embraced Jeannie Ann and said: "Please cooperate with me and trust me. I have given you my life. Promise that I will be the only one who will touch you." Accused-appellant began touching her again. He inserted his fingers inside her vagina. As he touched her, he said, "Please cooperate with me and trust me. This is for your own good and for the good of our family. If you will not follow me, you might regret it. I want you to have a bright future. And after you finish, I can already die and you will no longer have any problem."16 Although Aileen, Divine, Nio and Rogel, another boarder in their house were also there at the time of the incident, Jeannie Ann did not have the courage to call for help because she was very much afraid of accused-appellant, and she saw anger in his eyes.17 When accused-appellant was done with her, Jeannie Ann insisted on going down. She cried as she returned to her room to fix herself. Thereafter, she went out of the house to deal with what had just happened to her. While walking outside toward the bridge, she saw a white L-300 van belonging to the police. She flagged down the vehicle and narrated to the two police officers riding therein, SPO2 Bravo and SPO2 Ong, what accused-appellant had just done to her. The policemen accompanied her back to their house where they met accused-appellant whom Jeannie Ann identified as the person who had raped her. Accused-appellant voluntarily went with the policemen to the Baguio City Police Station.18 When they arrived at the Baguio City Police Station, Jeannie Ann narrated her experience to the police officer stationed at the Womens Desk. In her statement, Jeannie Ann described what accused-appellant did to her on August 2, 1997.19 Jeannie Ann also denied accused-appellants claim that she had sexual relations with her boyfriend Charles, and that she accused her father of rape to get back at him for causing her breakup with Charles.20 Dr. Ronald R. Bandonill, the NBI-CAR medico-legal officer who conducted a physical examination of Jeannie Ann on August 8, 1997, testified that he found two old healed lacerations at 5 o'clock and 7 o'clock positions on Jeannie Anns hymen. He said that the lacerations could have been inflicted more than three months prior to the date of the examination and considering the proximity of their location, could have been inflicted at the same time. A hard rigid instrument like an erect male organ, a rigid wood or a finger could have caused these lacerations. Dr. Bandonill also opined that the positions of the lacerations did not rule out the possibility that the victim had sexual intercourse less than three months prior to his examination of her, since intercourse would not create further lacerations when done in the same position. He likewise noted that the vaginal walls were lax and the vaginal rugosities were slightly flattened and smoothed. The victim's hymenal orifice admitted a tube 2.4 cm. in diameter with ease. Dr. Bandonill said it was possible that penetration happened several times. He further testified that the frequent insertion of a finger or other rigid object, with a diameter of more than an inch, could cause the lacerations as well as the lax condition of vaginal walls. 21

Jean dela Cruz ("Mrs. dela Cruz"), Jeannie Anns mother and wife of accused-appellant, testified that she learned that accused-appellant had sexually abused their daughter Jeannie Ann on August 2, 1997 when she arrived at home after her marketing chores. She was told by her daughter Divine that accused-appellant was picked up by the police. Mrs. dela Cruz followed accused-appellant to the police station and found Jeanie Ann crying while the latter was reporting what had happened to her at the Women's Desk. Upon seeing her daughter, Mrs. dela Cruz hugged her and they cried together.22 Mrs. dela Cruz further stated that she was shocked upon hearing Jeannie Anns statement before the police that accused-appellant had been performing oral sex on their daughter Jeannie Ann since the latter was seven years old, as it was the first time that she learned about it. In her anger, she rushed to the other room where the accused-appellant was being questioned and slapped him, kicked him and scratched his face. She said accused-appellant denied all the accusations against him. When accused-appellant was already incarcerated, Mrs. dela Cruz received several letters23 from him asking for forgiveness from her and from Jeannie Ann.24 She also informed the trial court that after accused-appellants incarceration, she went to Tarlac to get her husband's things since he usually stayed there on weekdays while he taught at Don Bosco.25 She discovered several love letters by a certain Emily addressed to accused-appellant,26 Emilys photograph27 and accused-appellants draft love letters to Emily, dated March 21, 1995,28 September 4, 1995,29 and March 7, 1996.30 Mrs. dela Cruz also found a letter from a certain Maureen telling accused-appellant that he had a chance of winning her heart,31 and a photograph of Maureen.32 She said that the tenor of the letters indicated that accused-appellant was having relations with other women.33 Mrs. dela Cruz also denied accused-appellants claims that she had a paramour and that she helped Jeannie Ann file the complaints against him because she (Mrs. dela Cruz) wanted to get back at him for being unfaithful to her.34 SPO2 Melchor Ong, the police officer assigned to the Baguio City Mobile Group, also testified that on August 2, 1997, between 11:30 a.m. and 12:00 noon, while he and his companion inside an L-300 van of the Baguio City police were passing along Sumulong St., Baguio City, they saw Jeannie Ann walking towards them. The latter stopped them and tearfully reported to them that her father had just sexually molested her. They accompanied Jeannie Ann to her house and there the latter pointed to accused-appellant as the person who mashed her breasts and inserted his finger inside her vagina. SPO2 Ong and his companion approached accused-appellant, introduced themselves as policemen and invited him to the police station. He said that accused-appellant readily agreed to go with them to the police station.35 The defense presented as witnesses the accused-appellant, Camilo Estepa, Barangay Chairman of Barangay Holy Ghost, Baguio City, Fr. Exequiel Veloso, Principal of the Don Bosco Technical Institute, and Fr. Jean Marie Tchang, Director of the Don Bosco in Trancoville, Baguio City. Accused-appellant testified that he was a teacher at the Don Bosco Technical Institute in Tarlac, Tarlac from 1978 to 1986. In 1987, he transferred to Don Bosco in Trancoville, Baguio City and worked there for a year. From 1988 to 1993, he taught also in Saint Louis School Center. In 1994, he went back to the Don Bosco Technical Institute in Tarlac, Tarlac and had taught there until his incarceration in August 1997.36 On weekdays, he and his son Daniel stayed in Sto. Cristo, Tarlac, Tarlac and they would go home to their family in Baguio City every 15th and 30th of each month to give his salary to his wife. When these dates fell on a weekday, they would go home to Baguio City the following Friday and return to Tarlac on Sunday afternoon. 37 He denied all the accusations hurled against him by his daughter Jeannie Ann. 38 According to him, he tried to provide for the needs of his family, especially his wife whom he loved very much. He maintained that even when he was already in jail, he asked his mother and his sister to support his daughter's education. He admitted to having gone home to Baguio City in the evening of August 1, 1997, which he recalled was a Friday. That night, his wife asked him to clean the attic the following day as there was a dead rat therein. 39 The following day, August 2, 1997, accused-appellant removed the decomposing body of the rat from the attic as requested by his wife. He called his daughter Jeannie Ann who was cleaning her room on the second floor of the house to come to the attic and help him. It took a while before Jeannie Ann heeded his call. When she finally went up, she merely swept one third of the floor area of the attic, away from where the dead rat was. When she was done sweeping the floor, accused-appellant asked her to come near him, as he wanted to apologize for having scolded her earlier and to remind her that she should not have ignored him when he commanded her to go up the attic, or to at least tell him that she could not obey his command immediately. While he was talking to her, they heard someone calling her name. Jeannie Ann told accused-appellant that that person was her classmate. She then went down while accused-appellant stayed on to fix the things in the attic. Not long afterwards, his daughter Divine informed him that they had some visitors downstairs. On his way down from the attic, he looked out of the window and saw Jeannie Ann walking beyond the bridge.40 Accused-appellant went down to meet the visitors who were looking for Rogel, one of their boarders. After leading these visitors to Rogel, two policemen arrived in their house with Jeannie Ann. Accused-appellant identified the policemen as SPO2 Leonardo Cruz Bravo and SPO2 Melchor Ong. The former asked for accused-appellants name and thereafter invited him to the police station. He freely went with them, without asking the purpose of the invitation.41 At the station, SPO2 Leonardo Cruz Bravo interviewed accused-appellant. The interview was reduced to writing and he was asked to sign the same. He did not read the document, as he did not have his eyeglasses with him at that time. At first, accused-appellant refused to sign the document without the presence of his counsel. SPO2 Leonardo Cruz Bravo, however, told him that his refusal to sign the document may be interpreted as a sign of resistance on his part. Accused-appellant thereafter decided to sign the document.42 Accused-appellant admitted that he transferred to the Don Bosco Technical Institute in Tarlac, Tarlac because he was dismissed from the Saint Louis Center in Baguio City. He acknowledged that while teaching in Saint Louis Center, a student named Freda Miguel filed a case 43 against him because accused-appellant allegedly embraced her (Miguel) in the Science Laboratory Room of the school, and that he signed an amicable settlement of the complaint. However, he denied the truth of that complaint against him and said that the filing thereof was not the cause of his dismissal from Saint Louis Center.44 He also admitted that the letters from Emily and Maureen addressed to him were his but insisted that they were only his friends, and that Emilys reference to him as her boyfriend in one of her letters45 was only a joke. Accused-appellant claimed that his wife and Jeannie Ann conspired to file the cases against him because they had resentments against him. He said Jeannie Ann blamed him for having caused her breakup with her boyfriend Charles. His wife, on the other hand, wanted him out of her life because she

had a paramour. According to him, his wife admitted to him that she had an illicit relationship with a man named Alfredo dela Cruz, a namesake of his brother. His wife had a second relationship with a person named Alfredo Aquino against whom he filed a case before the barangay. 46 Camilo Estepa, Barangay Captain of Barangay Holy Ghost, Baguio City, told the trial court that sometime in 1993, accused-appellant filed a case for malicious mischief against a certain Alfredo or Federico Aquino, a boarder in the house of Mrs. Aqui, the mother of Mrs. dela Cruz. Accused-appellant alleged that Aquino was courting his wife. However, the case was settled amicably when Aquino agreed to leave the boarding house of Mrs. Aqui.47 Fr. Exequiel Veloso, Principal of the Don Bosco Technical Institute in Tarlac from 1994 to 1998, testified that he had known accused-appellant since 1994 and was not aware of any untoward incident involving the latter. He said that accused-appellant and his son Daniel would go home to his family in Baguio City every weekend and returned to Tarlac either on Sunday evening or Monday morning. He would come to school on time and attended the flag ceremony regularly. Fr. Veloso said that none of the lady teachers ever complained about accused-appellant.48 Fr. Jean Marie Tchang, Director of the Don Bosco Elementary School in Trancoville, Baguio City, testified that accused-appellant was a very competent teacher in Science and had a very good relationship with the other teachers. He said he regretted that accused-appellant left his teaching job at the Don Bosco Elementary School after only one year. 49 On August 13, 1998, the trial court promulgated its decision, the dispositive portion of which reads: WHEREFORE, Judgment is hereby rendered as follows: 1. In Criminal Case No. 15163-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of Rape (committed in September 1990) as charged in the Information defined and penalized under paragraph No. 3 of Article 335 of the Revised Penal Code (Statutory Rape) and hereby sentences him to suffer the penalty of reclusion perpetua; to indemnify the offended party, Jeannie Ann dela Cruz the sum of P50,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Danilo dela Cruz being a detention prisoner is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code. 2. In Criminal Case No. 15164-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of incest rape (committed in July 1995) as charged in the Information defined and penalized under Section 11 of Republic Act 7659 (Heinous Crime Law) which amended Article 335 of the Revised Penal Code and hereby sentences him to suffer the supreme penalty of Death to be implemented in accordance with law; to indemnify the offended party Jeannie Ann dela Cruz the sum of P50,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. 3. In Criminal Case No. 15368-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of Acts of Lasciviousness defined and penalized under Article 336 of the Revised Penal Code instead of violation of RA 7610 (Child Abuse Law) as charged in the Information and hereby sentences him, applying the indeterminate sentence law, to suffer the penalty of imprisonment ranging from two (2) months and one (1) day of Arresto Mayor as Minimum to two (2) years four (4) months and one (1) day of prision correccional as Maximum; to indemnify the offended party Jeannie Ann dela Cruz the sum of P5,000 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Danilo dela Cruz being a detention prisoner is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Law. SO ORDERED.50 In his brief, accused-appellant contends that the trial court erred in giving credence to the testimony of Jeannie Ann and in finding him guilty beyond reasonable doubt of the crimes of rape and acts of lasciviousness. He alleges that Jeannie Anns testimony was fabricated and inconsistent.51 Accused-appellant points out that Jeannie Ann failed to immediately notify the authorities, or at least her mother, of her harrowing experience. Notwithstanding the fact that he was often away from their home because he stayed in Tarlac where he worked on weekdays, and Jeannie Ann was with her mother in Baguio City, it took her eleven years to disclose the sexual abuses which accused-appellant allegedly committed against her.52 Moreover, he claims that considering Jeannie Anns tender age at the time he allegedly raped her, she must have suffered great pain and should have complained about it to her mother or told the latter what accused-appellant had been doing to her. Accused-appellant argues that the delay in the reporting of the sexual acts he performed on his daughter is not normal and is indicative of the untruthfulness of complainants charges.53 The Court finds that the trial court did not err in finding accused-appellant guilty beyond reasonable doubt of raping his daughter Jeannie Ann in September 1990 and July 1995. Article 335 of the Revised Penal Code, which defined the crime of Rape prior to the enactment of Republic Act No. 8353 (the Anti-Rape Law of 1997), and which is the applicable law for the rape incidents of September 1990 and July 1995, states: When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. xxx In reviewing the cases at bar, the Court observed the following guidelines it had previously formulated for the review of rape cases: (1) an accusation of rape can be made with facility, but it is difficult to prove, and even more difficult for the accused to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.54 In rape cases, the issue invariably boils down to the credibility of the victims testimony. The trial courts evaluation of the credibility of the victims statements is accorded great weight because it has the unique opportunity of hearing the witnesses testify and observing their deportment and manner of testifying. The trial court judge is indisputably in the best position to determine the truthfulness of the complainants testimony. Thus, unless it is shown that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight or substance that would otherwise affect the result of the case, its findings will not be disturbed on appeal. 55 The Court has adhered to the rule that when the testimony of a woman who states under oath that she has been raped meets the test of credibility, the accused may be convicted on the basis of such testimony. A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner, and who remains consistent, is a credible witness.56 In the cases at bar, the trial court found Jeannie Anns testimony to be "natural, coherent and touching as she recounted her harrowing experience in the hands of her father,"57 as follows: xxx q Now, sometime in the month of July, 1995, Madame Witness, do you remember if there was anything unusual which took place again in your house at Sumulong St., Baguio City? a q There was, sir. What was that incident?

[a] On that night I was watching TV with my brothers and sisters. While I was watching TV my father was calling me but I did not heed his call because I said I was watching TV. So, three times he called me and I know that he was already angry. Then he went near me and pulled me into the other room. And in that other room, he did bad things that I cannot imagine. q Now, you said that you and your brothers and sisters were watching TV on that night of July, 1995. Where was your mother at that time? a She was not in the house at that time because she attended a meeting in our church.

COURT: (to witness) q That is why we already excluded the public. Dont let the Court speculate. Will you tell us straight. What did your father actually do which you said (sic) he did things which you cannot imagine? a When we were in the room he let me sit on the bed. And he asked me to lie down. And he said, "This is only for a while". And after that he put down my pants and my underwear. Then he undressed, lowered his pants and removed his brief. Then he started touching my vabina (sic). COURT: Continue from there. Make it of record that at this point the witness is crying. PROS. CENTENO: q Now after your father had removed your pants and your underwear as you said, and he also removed his pants and his brief and started holding your vagina, what else happened?

a He fingered my vagina and also mashed mybreasts (sic). And with his tongue he licked my vagina. After that he used his penis and rubbed it into my vagina. And he played with my vagina. q a q a q a q a q What did you do when your father was doing that to you? I was just crying, sir. Did you not fight back? No sir, because I was afraid of my father. Why are you afraid of your father? Because when I was still young, one time he told me that either I will be killed or our family will be killed. On what occasion was that when your father old (sic) you that it is either you or the family that will be killed? I cannot remember, sir. But that was when I was still young. Now, aside from rubbing his penis to your vagina, what else did your father do?

a When he was rubbing his penis against my vagina there was a white liquid that came out. And when that white liquid came out he placed his penis on my stomach where the white liquid was placed. COURT: (to witness) q a Will you tell us what you mean by his rubbing his penis to your vagina? What was being done actually? I felt that half of the head of his penis was inside my vagina. That is what I felt. (At this point the witness again broke into tears)

COURT: Continue. PROS. CENTENO: q a q a q Now, when you felt that as you said half of the penis of your father was inside your vagina, what did you do? None, sir. Why did you not do anything? Because I didnt know what to do, sir. Did you not try to fight your father?

a No, sir, because I am really afraid of my father. Because when he gets mad at my mother, my brothers and sisters would be involved. q Now, before July 1995, Madame Witness, particularly in September of 1990, several months after the earthquake of July 16, 1990, will you tell us where you were residing? a q a We were residing then at No. 37 Leonard Wood Road, sir. How old were you? I was 11 years old. xxx

q When you were staying at Leonard Wood Road, Baguio City, together with your father, your mother, your sister and your brothers in September of 1990, do you remember if there was any unusual incident which happened to you? a q Yes, sir. What was that incident?

a I was with my father and brother Nio at the sala. And at the sala he undressed me and did the same. He removed his pants. Then he took a cushion from the sala and asked me to lie down. And there he played with my vagina. Then he rubbed his penis against my vagina. Nio was still a baby at that time. q a q a Where was your mother at that time? My mother was not in the house at that time. What I know is that she went to the market. How about you sister Divine? She was with my mother, sir.

COURT: (to witness) q Again, in this incident will you describe actually to us the motions that took place with the rubbing of his penis into your vagina?

a It is like this, sir. For example this is my vagina (witness showing her left hand, palms up) and this is his penis (witness demonstrating with her right forefinger), he made a push and pull movement on my vagina. PROS. CENTENO: q a What did you feel while your father was doing that to you which you term as "rubbing his penis into your vagina"? I felt pain, sir.

PROS. CENTENO: May we put the word "mahapdi" which was the term used by the witness, in the record. (to witness) q a q a q a How long did your father rub his penis into your vagina? It was for quite a long time until a white liquid came out. Did you not fight back when your father did that to you? No, sir. Why did you not fight back? Because I thought that what he was doing to me was a normal act. xxx58 The trial court judge saw "from the face of the victim the anguish and the pain and the shame and the embarrassment as she broke down and cried several times in the course of her testimony every time she was asked [about] the despicable acts of her father." 59 Moreover, no woman would fabricate charges of sexual abuse, allow an examination of her private parts and endure the humiliation of a public trial where she would be forced to recount the details of her unfortunate experience had she not really been raped. This is especially true in cases of incestuous rape, as in these cases where Jeannie Ann accused her own father of abusing her, since reverence and respect for ones parents and other elders is deeply ingrained in Filipino children.60

The delay in reporting a rape incident does not necessarily impair the credibility of the victim where the delay can be attributed to the pattern of fear instilled by the threats of bodily harm, especially when made by a person who exercised moral ascendancy over the victim. It is not uncommon for a young girl to conceal for sometime the assault on her virtue because of the rapists threat on her life, or on the life of the other members of her family. 61 In the cases at bar, Jeannie Ann repeatedly explained that accused-appellant threatened to hurt her, her mother or her siblings if she did not give in to his desires.62 Her fear of what accused-appellant would do to her, her mother and siblings if she revealed his evil deeds was what compelled her to suffer in silence for a long time. In People v. Nicolas,63 the Court stated: The pattern of instilling fear, utilized by the perpetrator in incestuous rape to intimidate his victim into submission, is evident in virtually all cases that have reached this Court. It is through this fear that the perpetrator hopes to create a climax of extreme psychological terror which would, he hopes, numb his victim into silence and force her to submit to repeated acts of rape over a period of time. The relationship of the victim and the perpetrator magnifies this terror, because the perpetrator is a person normally expected to give solace and protection to the victim.64 On the other hand, the trial court found accused-appellant to be evasive in his narration of his story. All that he offered in his defense were his bare denials. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and credible testimony of the prosecution witness that the accused committed the crime. A mere denial constitutes negative evidence which cannot be accorded greater evidentiary weight than the declaration of a credible witness who testifies on affirmative matters. 65 Accused-appellant's assertion that his daughter made up the charges against him to get back at him for causing her breakup with her boyfriend Charles is likewise unbelievable. It is not likely that a complainant in a rape case would fabricate a story of defloration against her own father and put to shame not only herself but her whole family as well, unless it was the plain truth and her motive was purely to obtain justice.66 Neither does the Court believe accused-appellant's claim that his wife urged their daughter to file rape charges against him because she (his wife) wanted to get him out of the way of her extra-marital relationship. It is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject them to embarrassment and even stigma.67 No mother would have the courage to expose an ignominious act of her husband that could lead to a breakup of the family unless she was prompted by a desire to obtain justice for her daughter.68 The trial court committed no error in imposing upon accused-appellant the penalty of reclusion perpetua for the rape he committed in September 1990, since the offense was committed prior to the effectivity of Republic Act No. 7659 (the Death Penalty Law).69 However, the Court finds that the lower court erred in imposing the supreme penalty of death upon him for the rape committed in July 1995. R.A. No. 7659, which was already in force at that time, requires that the circumstances of the minority of the victim and her relationship with the offender must concur for the death penalty to be imposable. Article 335 of the Revised Penal Code, as amended by R.A. No. 7659 provides: xxx 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 degree, or the common-law spouse of the parent of the victim. xxx The Court has previously explained that the circumstances of minority and relationship are considered as special qualifying circumstances because they alter the nature of the crime of rape and thus warrant the imposition of the death penalty. These circumstances must be alleged in the information and established during trial for the court to be able to impose the death penalty.70 It was, therefore, incumbent upon the prosecution to satisfactorily prove both circumstances of minority and relationship. In Criminal Case No. 15164-R, the father-daughter relationship was alleged in the information and proven in the course of the trial. However, Jeannie Anns minority, although likewise alleged in the information, was not sufficiently proved. All that was offered to establish her age was her bare testimony that she was born on April 18, 1979. The prosecution failed to present her birth certificate, or in lieu thereof, other documentary evidence such as her baptismal certificate, school records which would have aided the court in verifying her claim that she was a minor when she was raped by accused-appellant in July 1995. In the absence of adequate proof of Jeannie Anns minority, the penalty imposable for the offense in Criminal Case No. 15164-R is reclusion perpetua.71 The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness." 72 It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant.73 Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides:

Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts.74 The information in Criminal Case No. 15368-R is therefore void for being violative of the accusedappellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him.75 Although accused-appellant failed to call the attention of both the trial court and this Court regarding the defects of the information in Criminal Case No. 15368-R, the Court may motu proprio dismiss said information at this stage, pursuant to its ruling in Suy Sui vs. People,76 because the information is a patent violation of the right of the accused to be informed of the nature and cause of the accusation against him and of the basic principles of due process. Moreover, an appeal in a criminal proceeding throws the whole case open for review, and it is the duty of the appellate court to correct such errors as might be found in the appealed decision, whether these errors are assigned or not. It is likewise necessary to increase the award of damages by the trial court. The lower court in its decision ordered accused-appellant to indemnify the complainant in the amount of Fifty Thousand Pesos (P50,000.00) only in each of the cases, representing moral damages. It failed to award the prescribed amounts for civil indemnity, the award of which is mandatory upon the finding of the fact of rape. 77 This civil liability ex delicto is equivalent to actual or compensatory damages in civil law.78 It is not to be confused with moral damages, which is awarded upon a showing that the victim endured physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.79Under prevailing jurisprudence, when the penalty imposed on the accused is reclusion perpetua, the amount of Fifty Thousand Pesos (P50,000.00) should be awarded as civil indemnity to the rape victim.80 Thus, in Criminal Case Nos. 15163-R and 15164-R, an award of Fifty Thousand Pesos (P50,000.00) as civil indemnity for each count of rape is proper. In addition to civil indemnity, moral damages are automatically granted to the victim in rape cases without need of proof for it is assumed that the private complainant has sustained mental, physical and psychological suffering.81The Court affirms the award by the trial court of Fifty Thousand Pesos (P50,000.00) as moral damages in Criminal Cases Nos. 15163-R and 15164-R, since said amounts are in accord with its current rulings.82 WHEREFORE, the Decision of the Regional Trial Court of Baguio City, Branch 6 in Criminal Cases Nos. 15163-R and 15164-R is hereby MODIFIED, as follows: 1. In Criminal Case No. 15163-R, the accused-appellant is sentenced to suffer the penalty of reclusion perpetuaand ordered to pay the victim the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity and Fifty Thousand Pesos (P50,000.00) as moral damages; 2. In Criminal Case No. 15164-R, the appellant is sentenced to suffer the penalty of reclusion perpetua, and ordered to pay the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity and Fifty Thousand Pesos (P50,000.00) as moral damages. 3. The Information in Criminal Case No. 15368-R is declared null and void for being violative of the accused-appellant's constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. Hence, the case against him is DISMISSED. SO ORDERED.

G. R. No. 128823-24. December 27, 2002]

PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES, JR., y FLORES ALIAS PESIONG, accused-appellant. DECISION
CARPIO-MORALES, J.:

An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an accuseds right to be informed of the nature and cause of the accusation against him.

For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accusedappellant Pedro Flores Jr. y Flores alias Pesiong guilty of two counts of rape of his then 11 year old daughter and sentencing him to suffer the penalty of death in each. The complaints against accused-appellant filed on February 3, 1997 read as follows: Criminal Case No. U-9184: CRIMINAL COMPLAINT
[1]

The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of RAPE, committed as follows: That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her will. x x x (Emphasis supplied). Criminal Case No. U-9185: CRIMINAL COMPLAINT
[2]

The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS PESYONG, committed as follows: That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp pointed bladed weapon and all against her will.

x x x (Emphasis supplied). Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.
[3]

Culled from the records of the case are the following facts established by the prosecution: On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine were left to the care of their father, herein accused-appellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract worker. After partaking of supper on the night of December 9, 1996, accusedappellant asked Filipina to accompany him to the comfort room situated outside their house, claiming that he was afraid of ghosts. Albeit Filipina did not believe him, she acquiesced because her mother had told her to always obey her father.
[4] [5] [6] [7] [8]

When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death if she disobeyed, and made her lie down. He then removed his short pants and brief and, against her will, he inserted his finger and later his penis into Filipinas vagina where she later felt hot fluid.
[9] [10] [11] [12]

Accused-appellant thereafter wiped Filipinas vagina and his hand, threatened to kill her if she reported what he did, directed her to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her Inang Lorie whose full name is Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would have him detained. Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant touched her right foot. Armed with a knife , accused-appellant told her not to talk and ordered her to remove her short pants and panty. She complied. Accusedappellant thereupon removed his short pants and brief and went on top of her chest during which she tried to push him away but failed.
[13] [14] [15]

Accused-appellant then inserted his finger into Filipinas vagina for some time, wiped his hands, and then inserted his penis for a long time as he was sucking her breast. Filipina felt accused-appellants semen drop into her
[16]

private organ where she noticed the presence of blood and a bit of whitish substance. Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to her grandaunt Norielyn, and to her playmate Carla Salvador.
[17] [18]

On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driver-neighbor, reported the matter to the Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in a medical certificate showing the following:
[19]

(-) Negative menarche - Multiple deep healed lacerations all over the labia majora. - Admits examining finger with ease. - (+) sticky whitish discharge. Dr. Jeanna B. Nebril, the examining physician, found the presence of deep-healed lacerations all over the labia majora which deep-healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination.
[20]

Denying the accusations, accused-appellant claimed as follows: Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December that year and for having received money from her classmate, was not in their house on the night of December 9, 1996 because she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his mother Margarita Flores in Cafloresan.
[21] [22]

Accused-appellants testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores who were staying in his mothers house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the house of accused-appellants motherin-law, Lourdes Lazo, also in Barangay Nancamaliran West. Jocelyn added that Filipina had intimated to her that she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused-appellant, jailed as he begrudged him for having eloped with their mother, and that
[23] [24]

Lourdes threatened her with abandonment or detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire. After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April 7, 1997 Joint Decision, the dispositive portion of which reads: WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows: CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review of this Decision. In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-appellant assigns as errors the following:
I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED. II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT.

It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such

errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.
[25]

It is at once apparent, from a reading of the above-quoted complaints, that accused-appellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives:
[26]

1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause; 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy. Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed. For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.
[27] [28] [29]

The court a quo found accused-appellant guilty of Statutory Rape under Article 335 of the Revised Penal Code, as amended by R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides:
[30]

Article 335. When and how rape is committed.--- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. 2. 3. By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and When the woman is under twelve years of age or is demented.

The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances enumerated in the penal code. Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal knowledge of or
[31]

sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation was made. The allegation that accused-appellant did sexually abuse Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiao , this Court ruled that although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge. Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse. The allegation in the instant criminal complaints that accused-appellant sexually abuse[d] the private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant.
[32] [33] [34]

This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal Procedure which reads: SEC. 4. Judgment in case of variance between allegation and proof.When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
[35]

The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply does not properly charge rape, sexual abuse not being an essential element or ingredient thereof. Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is settled that what characterizes the charge is the actual recital of facts in the complaint or information. For every crime is made up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged , the accused being presumed to have no independent knowledge of the facts that constitute the offense.
[36] [37] [38]

And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), accused-appellant cannot be held liable. Section 5 of said Act provides:
[39]

SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:
(1) (2) (3) (4) or (5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. Acting as a procurer of a child prostitute; Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; Taking advantage of influence or relationship to procure a child as a prostitute; Threatening or using violence towards a child to engage him as a prostitute;

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Emphasis and underscoring supplied). Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases , issued pursuant to Section 32 of Republic Act No. 7610, defines sexual abuse by inclusion as follows:
[40]

Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person to engage

in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring supplied) From this broad, non-exclusive definition, this Court finds that the phrase sexually abuse in the criminal complaints at bar does not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the crime. Notably, the phrase sexual abuse is not used under R.A. No. 7610 as an elemental fact but as an altogether separate offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant. The case of People v. Cruz Criminal Case No. 15368-R read:
[41]

is instructive. There the information in

That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW. (Emphasis supplied) Finding the above-quoted information void, this Court held: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), either by raping her or committing acts of lasciviousness. It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: Designation of the offense.The complaint or information shall state the designation of the offense given by the statue, 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. The allegation in the information that accused-appellant willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied) As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts. Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellants constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state the acts or omissions complained of as constituting the offense as exemplified by the present case. The foregoing disquisition leaves it unnecessary to dwell on accusedappellants assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. WHEREFORE, the informations in Criminal Case Nos. U-9184 and U9185 are hereby declared null and void for being violative of the constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias Pesiong, for Rape to be informed of the nature and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED. The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within 10 days from notice. Costs de oficio.

SO ORDERED.

ISIDRO OLIVAREZ, Petitioner,

G.R. No. 163866 Present: Davide, Jr., C.J. (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ.

- versus -

COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

Promulgated:

July 29, 2005 x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:
For review is the Court of Appeals decision in CA-G.R. CR No. 22860 which affirmed the judgment[2] rendered by the Regional Trial Court of San Pedro, Laguna, Branch 93,[3] in Crim. Case No. 0505-SPL finding petitioner Isidro Olivarez guilty of violating Section 5, Republic Act No. 7610;[4] and its resolution denying reconsideration thereof.[5]
[1]

The case originated from a complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna which was the basis upon which an information for violation of R.A. 7610 was filed against Isidro Olivarez, to wit:
The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO OLIVAREZ of the crime of VIOLATION OF RA 7610, committed as follows: That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna, within the jurisdiction of

this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously by means of force and intimidation commit acts of lasciviousness on the person of one CRISTINA B. ELITIONG, by touching her breasts and kissing her lips, against her will, to her damage and prejudice. CONTRARY TO LAW.[6]

The established facts of this case are as follows:

... The offended party Cristina Elitiong was a 16-year old high school student who with her brothers were employed by the accused, 64-year old Isidro Olivarez, in the making of sampaguita garlands. For one year she had been reporting for work during weekends at the residence of the accused. Within the compound and at about three armslength from the main door of the house was her workplace. At about 11:30 oclock in the morning of July 20, 1997, Cristina, her two brothers Macoy and Dodong, and one named Liezel were at their work when the accused who was near the main door called for her. She dutifully approached him. The accused asked her if she had told her mother that he gave her money, and when she said that she did not, he embraced her and held her breast. The workers were facing the street so that the two were not seen. He pulled her to the kitchen and, closing the kitchen door, kissed her on the lips. She pushed him away and went back to her station. Her brother Macoy saw her crying when she came out of the house. She did not say a word, but went to the faucet and washed her face. The offended party continued to finish the garlands she was working on, and waited until the afternoon for her wages. When she arrived at her home, she first told her mother that she no longer wished to go back. When pressed for a reason, she said basta po mama ayaw ko ng magtuhog. Finally, she told her mother what happened. Aurora Elitiong, the mother, accompanied the offended party to the San Vicente Barangay Hall on July 26 to report the incident and give a statement. Days later, Cristina gave another statement to the local police.

In the defense version, the offended party and her brothers had slept overnight in the house of the accused. When Isidro woke up in the early morning to relieve himself, he saw the girl sleeping on the sofa. He admonished her to join her brothers in the basement. He went back to his room and slept until 8 A.M. Two hours later, at 10 A.M., he left for the Caltex Service Station which was only a five minute ride from his home by tricycle. His daughter Analee Olivarez was staying in another house in the compound and attended a morning mass. When she returned at 10:30 A.M., she no longer saw her father. Maritess Buen, the laundrywoman, who was washing clothes outside the kitchen, saw the accused earlier. By 10 A.M., when she entered the house, he already left. He returned by noontime. The accused testified that he was at the Caltex station for two and a half hours waiting for the shipment of flowers from Pampanga. The goods arrived at 12:15 P.M. He left shortly thereafter and passed by the market before going home. He arrived at 12:30 P.M. The next several days were uneventful for him until his laundrywoman Maritess told him that there was a complaint against him at the barangay office. A meeting took place between him and the girls family in the presence of the barangay authorities. The girls mother was demanding P30,000 for the settlement of the case, but he refused to cave in and told a barangay official Jaime Ramos that he would rather see his accusers in court than give a centavo because he did not commit the crime.[7]

The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and sentenced him to suffer an indeterminate penalty of imprisonment from eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, to indemnify the minor Cristina Elitiong in the amount of P15,000.00 as moral damages and to pay the costs. On appeal, the decision of the trial court[8] was affirmed by the Court of Appeals. The motion for reconsideration[9] filed by the accused was denied.[10] Hence, this petition for review[11] on the following grounds:
I. The Honorable Court of Appeals committed grave abuse of discretion in not holding that the essential elements in Violation of Section 5, Article III of Republic Act 7610, which are age of the offended party and that she is an abused or exploited child as defined in the law, not having been alleged in the Information,

petitioner/accused cannot be found guilty of said offense and must be acquitted. II. The Honorable Court of Appeals erred and committed grave abuse of discretion in holding that the Information charging petitioner/accused of Violation of Section 5, Republic Act 7610, but failing to allege the essential elements of said offense, had substantially complied with the requirements of due process for the accused. The Honorable Court of Appeals erred and gravely abused its discretion in not reversing the judgment of the trial court convicting the accused/petitioner and sentencing him to suffer the penalty of imprisonment for alleged Violation of Section 5, Republic Act 7610, which was not alleged in the Information.[12]

III.

Petitioner alleges that his right to be informed of the nature and cause of the accusation against him was violated for failure to allege in the information the essential elements of the offense for which he is being charged. Section 5, Article III of R.A. 7610 states:
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: ... (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is

under twelve (12) years of age shall be reclusion temporal in its medium period; ... (Italics supplied)

The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows: 1. 2. 3. The accused commits the act of sexual intercourse or lascivious conduct. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. The child, whether male or female, is below 18 years of age.[13]

Section 32, Article XIII, of the Implementing Rules and Regulations of R.A. 7610 defines lascivious conduct as follows:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.[14] (Emphasis supplied)

The first element obtains in this case. It was established beyond reasonable doubt that petitioner kissed Cristina and touched her breasts with lewd designs as inferred from the nature of the acts themselves and the environmental circumstances.[15] The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to other sexual abuse, is likewise present. As succinctly explained inPeople v. Larin:[16]
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. ... It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in lascivious conduct. (Emphasis supplied)

We reiterated this ruling in Amployo v. People:[17]

... As we observed in People v. Larin, Section 5 of Rep. Act No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation...

Thus, a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult. In this case, Cristina was sexually abused because she was coerced or intimidated by petitioner to indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual abuse occurred only once. As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is captioned as Child Prostitution and Other Sexual Abuse because Congress really intended to cover a situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for money or profit. The law covers not only child prostitution but also other forms of sexual abuse. This is clear from the deliberations of the Senate:
Senator Angara. I refer to line 9, who for money or profit. I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section. The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera. The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution? Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit.

I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ... The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit. Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse. The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment? ANGARA AMENDMENT Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera. Senator Lina. It is accepted, Mr. President. The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved. How about the title, Child Prostitution, shall we change that too? Senator Angara. Yes, Mr. President, to cover the expanded scope. The President Pro Tempore. Is that not what we would call probable child abuse? Senator Angara. Yes, Mr. President. The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. x x x. (Italicization supplied)[18]

Petitioner makes much of the failure to allege in the information that Cristina was a child below 18 years of age at the time the offense was committed.

He insists that the Court of Appeals mistakenly relied on the case of People v. Rosare[19] because unlike in Rosare, he had no personal knowledge of Cristinas age, which he claims was not proven beyond reasonable doubt. In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him.[20] A complaint is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.[21] 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.[22] 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.[23] In the present case, the Court of Appeals found the information to be sufficient. Relying on the principle laid down in People v. Rosare, it held:
Before us is an information for violation of RA 7610 that, as in Rosare, fails to mention an indispensable element of the offense, the age of the offended party, but makes allusion to another document, the sworn complaint of the offended party, and declares it to be the basis upon which the information was filed. This instrument is the complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna in which she stated that she was 16 years old at the time of the offense. It forms part of the initial records of the case and comes before the posting of bail and entry of the plea of not guilty before the RTC. It appears that after the charge was filed with the MTC, and as the preliminary investigation went underway, the accused filed a manifestation stating that he had filed a counter-affidavit to the charge and reserved the right to file a motion to quash the information if it was

filed. The MTC found probable cause against him and elevated the records to the provincial prosecutor for filing of the information. A complaint is under the Rules one of the two charging instruments for the offense of which the accused was tried and convicted here. While the criminal action was instituted by the complaint of the offended party, the information signed only by the fiscal ushered in the formal trial process. But both are accusations in writing against the accused and serve the purpose of enabling him to take the necessary legal steps for his defense. What is important is that the information states that the accused is being charged of an offense under RA 7610 based on the complaint of the offended party, to which the accused had adequately responded. Under these conditions, the accused was fully apprised of the accusation against him. The purpose and objective of the constitutional mandate are discharged and satisfied. The accused may not be said to be taken by surprise by the failure of the information to state the age of the offended party, when he had received the initiatory complaint where he was told how old the offended party was.[24]

We agree with the ruling of the Court of Appeals. In People v. Rosare, the information did not allege that the victim was a mental retardate which is an essential element of the crime of statutory rape. This Court however sustained the trial courts judgment of conviction holding that the resolution of the investigating prosecutor which formed the basis of the information, a copy of which is attached thereto, stated that the offended party is suffering from mental retardation. It ruled that there was substantial compliance with the mandate that an accused be informed of the nature of the charge against him. Thus:
Appellant contends that he cannot be convicted of statutory rape because the fact that the victim was a mental retardate was never alleged in the information and, absent this element, the acts charged negate the commission of the offense for which he was convicted by the lower court. Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu proprio take cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-0197 dated June 2, 1992, which formed the basis of and a copy of which was attached to the information for rape filed against herein appellant. Therein, it is clearly stated that the offended party is suffering from mental retardation. We hold, therefore, that this should be deemed a substantial compliance with the

constitutional mandate that an accused be informed of the nature of the charge against him. ...[25]

In People v. Villamor,[26] the information failed to allege the age of the offended party but since a copy of the order issued by the investigating judge was attached in the record of the preliminary investigation clearly stating that the complainant was nine years old, it was held that there was substantial compliance with the mandate to inform the accused of the nature of the accusation. It was also declared that the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense, thus:
... Furthermore, even if the information filed did not allege that the complainant was nine years old, there was substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him when the Order issued by the investigating judge, a copy of which was attached in the record of the preliminary investigation, clearly stated that the complainant was nine years old. Consequently, the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense.[27]

In People v. Galido,[28] the information for rape failed to allege the element of force or intimidation. The Court ruled that this omission is not fatal since the complaint specifically charged the accused with three counts of rape committed by means of force and intimidation. Thus:
Appellant avers that because the Informations on which he was arraigned and convicted did not allege the element of force or intimidation, he was deprived of his constitutional right to be informed of the nature and cause of the accusation against him. He insists that such failure was a fatal defect that rendered the Informations void. As a rule, the accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Otherwise, their constitutional right to be informed of the nature and cause of the accusation against them would be violated. In the present case, appellant correctly pointed out that the element of force or intimidation should have been expressly alleged in the Informations. This omission is not fatal, however, because the

Complaint specifically accused him of three counts of rape committed by means of force and intimidation...[29]

The same ground was adopted in People v. Mendez[30] which involved an information for rape that failed to allege force or intimidation. We ruled therein that it was not a fatal omission because it was stated in the complaint that accused Rosendo raped Virginita by means of force. In People v. Torellos,[31] the Court treated the information for rape which failed to allege force and intimidation as merely defective and that the deficiency was cured by the failure of the accused to assail the insufficiency of the allegations in the Information and by competent evidence presented during trial. Thus, while it is necessary to allege the essential elements of the crime in the information, the failure to do so is not an irremediable vice. When the complaint or the resolution by the public prosecutor which contain the missing averments is attached to the information and form part of the records, the defect in the latter is effectively cured, and the accused cannot successfully invoke the defense that his right to be informed is violated. In the instant case, the missing averment in the information is supplied by the Complaint which reads in full:
COMPLAINT The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of VIOLATION OF RA 7610, committed as follows: That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused with lewd design did then and there willfully, unlawfully and feloniously commit an act of lasciviousness against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her private parts and embracing her against her will. CONTRARY TO LAW.[32]

Petitioner was furnished a copy of the Complaint which was mentioned in the information, hence he was adequately informed of the age of the complainant.

The prosecution has also established the minority of the offended party through competent evidence. Cristina testified that she was 16 years old and a certification from the Office of the Local Registrar of San Pedro, Laguna was presented showing that she was born on October 17, 1980.[33] The third element of sexual abuse is therefore present. The information merely states that petitioner was being charged for the crime of violation of R.A. 7610 without citing the specific sections alleged to have been violated by petitioner. Nonetheless, we do not find this omission sufficient to invalidate the information. The character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information.[34] The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a crime and sufficiently apprise the accused of the nature and cause of the accusation against him. True, the information herein may not refer to specific section/s of R.A. 7610 alleged to have been violated by the petitioner, but it is all to evident that the body of the information contains an averment of the acts alleged to have been performed by petitioner which unmistakably refers to acts punishable under Section 5 of R.A. 7610. As to which section of R.A. 7610 is being violated by petitioner is inconsequential. What is determinative of the offense is the recital of the ultimate facts and circumstances in the complaint or information. The prosecution has proved beyond reasonable doubt that petitioner committed acts of sexual abuse against Cristina. The trial court found Cristinas testimony to be clear, candid, and straightforward.[35] Her testimony, given in a categorical, straightforward, spontaneous and candid manner, is worthy of faith and belief.[36] In the face of the accusations against him, petitioner could only interpose uncorroborated alibi and denial. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and categorical identification provided by eyewitnesses.[37] Not only did Cristina identify the petitioner as her assailant but no ill-motive was adduced why she would impute against him so grave a charge. This Court will not interfere with the trial courts assessment of the credibility of witnesses, absent any indication that some material fact was overlooked or a grave abuse of discretion committed. None of the exceptions obtain in the instant case.[38]

In addition to moral damages, a fine in the amount of P15,000.00 should likewise be imposed pursuant to our ruling in Amployo v. People:[39]
It does not end there. In People v. Abadies, and with respect specifically to lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in addition to the award of moral damages on the justification that It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity. With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated January 9, 2004 in CA-G.R. CR No. 22860 and its resolution dated June 4, 2004, are AFFIRMED with MODIFICATION. In addition to the award of P15,000.00 as moral damages, petitioner Isidro Olivarez is also ordered to pay a fine in the amount of P15,000.00. SO ORDERED.

G. R. Nos. 139217-24. June 27, 2003]

PEOPLE OF THE PHILIPPINES, appellee, ESPERANZA, appellant. DECISION

DAVIDE, JR., C.J.:

vs. NELSON

Before us for automatic review is the consolidated decision of 24 June 1999 of the Regional Trial Court, Branch 13, Ligao, Albay, in Criminal Cases Nos. 3680-3687, finding appellant Nelson Esperanza guilty beyond reasonable doubt of eight counts of rape committed against his 12-year-old niece Irma P. Esperanza and sentencing him in each count to suffer the penalty ofdeath and to pay the amount of P50,000 for the civil aspect of the case.
[1] [2]

The information in Criminal Case No. 3680 alleges that Nelson committed the crime of rape as follows:
[3]

That on June 16, 1997, at about 4:00 oclock in the morning, at Brgy. Balinad, Municipality of Polangui, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, thru force and intimidation, and with lewd design, did then and there willfully, unlawfully and feloniously had sexual intercourse with his niece, IRMA P. ESPERANZA, who is of tender age, she being only 13-years old, against her will and consent, to her damage and prejudice. ALL ACTS CONTRARY TO LAW. The accusatory portions in the informations in Criminal Cases Nos. 3681, 3682, 3683, 3684, 3685, 3686, and 3687 are similarly worded as that in Criminal Case No. 3680 except as to the dates of the commission of the rapes which are, respectively, (a) 17 June 1997; (b) 18 June 1997; (c) 19 June 1997; (d) 20 June 1997; (e) 21 June 1997; (f) 22 June 1997; and (g) 23 June 1997.
[4] [5] [6] [7] [8] [9] [10]

The informations were based on the complaint subscribed and sworn to by Irma and her father Avelino Esperanza.
[11]

The cases were consolidated. After Nelson entered a plea of not guilty in each case during his arraignment, joint trial ensued.
[12]

The witnesses presented by the prosecution were Irma, Mary Jeynor Martinez, Teodora S. Salcedo, Ruben Brondial, Dr. Vivian Bustamante, and Avelino Esperanza.

Irma testified that she was born on 29 November 1985 to spouses Avelino Esperanza and Susan Pelonia. When her parents separated, she was entrusted to appellant Nelson, Avelinos full-blood brother, so that Irma could continue her studies at the Balinad Elementary School. Irma started living with appellant's family at Barangay Balinad, Polangui, Albay, on 2 June 1997. She slept at the only bedroom of the house with Jenelle, Nelsons only child; while Nelson and his wife Gina slept at the sala.
[13] [14]

On 14 June 1997, Gina left for Manila to attend to some business. After Gina left, Irma observed that although Nelson slept in the sala when she and Jenelle were about to sleep, she would later found him sleeping between her and Jenelle.
[15]

At about 4:00 a.m. of 16 June 1997, Irma was awakened by the feeling that her breasts were being mashed and that something was being inserted into her vagina. Irma recognized that it was Nelson who was inserting his finger into her vagina. Irma struggled, removed his hands, and turned her back against Nelson. Nelson, however, turned her back to her original position. He then laid on top of her, undressed her, and forcefully inserted his penis into her vagina. Blood oozed from her private part. Nelson warned her not to tell anybody; otherwise, he would kill her.
[16]

For seven successive days thereafter, or from 17 to 23 June 1997, at almost the same time, 4:00 a.m., Irma was awakened by Nelsons sexual advances, which culminated in sexual intercourse. In all those times, Irma could feel burning pain.
[17]

It was only on 24 June 1997, when Gina arrived from Manila, that Irma found the courage to leave Nelsons house. Gina asked Irma why she was leaving. With Nelsons threat etched on her mind, Irma feigned the reason that she no longer wanted to go to school. Gina accompanied Irma to the house of Irmas father in San Agustin, Libon, Albay. Irma was unable to tell her father about Nelsons abuses. The next day, she left for Balinad at about 9:00 a.m. and stayed with her aunt Ester and continued her studies.
[18]

Mary Jeynor Martinez, 12 years old, testified that she is Irmas friend and former classmate. Sometime in February 1998, Irma revealed to her that Nelson fondled her breast, touched and fingered her vagina, and raped her. She advised Irma to seek the assistance of their teacher Mrs. Teodora Salcedo.
[19]

Teodora Sarcia Salcedo, Irma's teacher, testified that on 10 March 1998 she called Irma's attention regarding her failure to pay her graduation fees. On that occasion, Irma told her that she was no longer staying with

Nelson, but with her aunt Ester, because Nelson had been holding her private parts and kissing her lips. Mrs. Salcedo got shocked. As it was almost lunchtime, Mrs. Salcedo put temporarily the matter aside and dismissed her class. After lunch, Irma narrated to Mrs. Salcedo, in the presence of her other teachers and classmates, her horrifying experience at the hands of Nelson. Mrs. Salcedo referred the matter to their Barangay Captain, Ruben Brondial.
[20]

Ruben Brondial testified that he came to know of the case of Irma when the latter, accompanied by Mrs. Salcedo, came to his office to report the abuses committed by Nelson against her. In the course of his investigation, he learned that Irma had been sexually abused by Nelson eight times. He then left for San Agustin, Libon, Albay, to inform Irmas father, Avelino, of what Nelson did to her. He and Avelino forthwith went to the Department of Social Welfare and Development and then to the police station.
[21]

Avelino, father of Irma, testified that Nelson is his brother. He had entrusted the custody of Irma to Nelson. When he came to know of his brothers bestial acts through Irma's teacher he filed a complaint for rape. He felt deeply hurt and humiliated by Nelson's odious deed.
[22]

Dr. Vivian Bustamante, the Municipal Health Officer of Polangui, Albay, who examined Irma on 16 March 1998, testified that she found in Irmas hymen old healed lacerations at 7 and 8 oclock positions. She opined that those lacerations could have been caused by the insertion of a male organ.
[23] [24]

The first witness for the defense was Emeteria Esperanza, Nelsons mother. The announced purpose of her testimony was to establish that contrary to Irmas claim, it was Avelino who raped Irma. However, Emeteria had to be withdrawn from the witness stand during her open court testimony, as she could hardly speak and breathe. Emeteria was not recalled anymore to the witness stand. For his part, Nelson denied the accusations against him, but admitted that sometime in the month of May 1997, Irma was entrusted to him by his brother Avelino. He accepted Irma because he thought that she could be a good companion of Jenelle, his only child. On 10 June 1997, he went to Barangay Bay, Ligao, Albay, to tend to his ducks. Barangay Bay could be reached from Barangay Banilad by a 45-minute bicycle ride. Irma was left to the care of either his wife Gina or his mother Emeteria. Whenever Gina would left for Manila, Nelson would fetch Emeteria to watch over Jenelle and Irma. Nelson pointed to the ongoing rift between his wife Gina and his sister Ester as the motive for the filing of the instant cases.
[25]

Testifying on rebuttal, Irma branded as a lie Nelson's claim that he was at Barangay Bay, Ligao, Albay, from 16 to 23 June 1997 tending his ducks. His ducks were raised at a nearby ricefield in Balinad about twelve meters away from his house. She likewise refuted his claim that he never molested her and that Emeteria stayed with them at his house.
[26]

The trial court gave full faith and credence to Irma's testimony. It declared that Irma's inability to prevent the appellant from committing the crime by shouting or forcibly resisting could not be taken against her. Nelson, being her uncle, definitely exercised moral and physical ascendancy over her, which could be sufficient to cow her into submission to his bestial desire. It disregarded Nelson's defense of denial and alibi not only for being selfserving, but also for lack of proof of physical impossibility for him to be at the locus criminis at the time of its commission. It then convicted Nelson of eight counts of rape and imposed upon him the death penalty for each count, considering the relationship of Nelson as uncle within the third civil degree of consanguinity and the fact that Irma was only 12 years old at the time the rapes were committed. In his Appellant's Brief, Nelson attributes to the trial court the following errors:
I

THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE OBVIOUSLY REHEARSED AND EQUALLY INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT ANENT THE CRIMES CHARGED.
II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF EIGHT (8) COUNTS OF RAPE DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
III

ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT ERRED IN NOT FINDING HIM LIABLE FOR THE LESSER OFFENSE OF ACTS OF LASCIVIOUSNESS.
IV

ON THE ASSUMPTION FURTHER THAT THE ACCUSED-APPELLANT IS GUILTY AS CHARGED, THE TRIAL COURT ERRED IN NOT IMPOSING UPON HIM THE PENALTY OF RECLUSION PERPETUA IN CRIMINAL CASE NOS. 3680 TO 3687.
[27]

In support thereof, Nelson argues that Irma's testimony should not be given weight for being obviously rehearsed, as shown by her identical answers as to the time, place, and manner the rapes were committed. He also asserts that Irma's testimony bore several inconsistencies. Irma flipflopped as to (a) when she left his house; (b) whether he raped her on 17 June 1997; and (c) whether he did insert his penis into her, considering her admission that the room was dimly lit and he had previously inserted his finger into her private part. Finally, Nelson asserts that granting without admitting that he did commit the alleged rapes, the trial court erred in imposing the supreme penalty of death. While the informations alleged that Irma was 13 years old at the time the rapes were committed, they did not allege that Nelson is a relative of Irma within the third civil degree of consanguinity. With this infirmity, Nelson should have been meted the penalty of reclusion perpetua. The Office of the Solicitor General (OSG) maintains that the trial court did not err in giving credence to the testimony of Irma. Her testimony established beyond reasonable doubt that from 16 to 23 June 1997, Nelson, her paternal uncle, had carnal knowledge of her. As for the identical manner of the commission of the eight counts of rape, the OSG argues that a series of rapes committed in almost the same manner is nothing extraordinary and does not necessarily render the complainants testimony incredible. The OSG further argues that the lapses in the testimony of Irma were inconsequential and do not affect her credibility. The OSG adds that the alibi posed by Nelson cannot prevail over the positive and credible testimony of Irma, who had no ill-motive against him. Moreover, Nelson did not prove that it was physically impossible for him to be at the scene of the crime at the time of its commission. As to the penalty, the OSG maintains that the trial court correctly imposed the death penalty. All the eight informations contain the description that Nelson is Irmas paternal uncle. However, the OSG prays that the indemnity be increased from P50,000 to P75,000 in line with prevailing jurisprudence and that Nelson be ordered to pay for each count of rape moral damages ofP50,000 and exemplary damages of P25,000. We affirm Nelsons conviction.

Time and again we have held that the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect and will not be disturbed on appeal. This rule, however, admits of exceptions such as where there exists a fact or circumstance of weight and influence which has been ignored or misconstrued by the court, or where the trial court has acted arbitrarily in its appreciation of the facts.
[28] [29]

In the cases at bar, we give full weight to the trial courts finding that Irma was sexually ravished by Nelson. This Court, however, finds that the prosecution was able to prove only seven counts of rape:
1. Q A Q A Q A Q A Q A Q A The rape on 16 June 1997: Now, when was the first time your uncle raped you? June 16, 1997. At about what time on June 16, 1997 were you raped? Early morning at 4:00 oclock. Where were you raped? In the house. Where particularly, where in the house? In the bedroom. What were you doing on June 16, 1997 at about 4:00 oclock in the morning? During that time I was sleeping. While sleeping what happened? I was awakened because he was mashing my breasts, my vagina and then inserted his finger inside my vagina, laid on top of me, undressed me and then inserted his penis inside my vagina. Who was this person who mashed your breasts, inserted his finger and penis into your vagina? Uncle Nelson. Now, after your Uncle Nelson inserted his male organ into your female organ, what else did he do to you, if any? He kissed my lips. What else? Sucking my breasts. What else? After that he did nothing anymore. But in the morning he told me that I should not tell anybody about what happened not even to Jenelle or his wife because if I do that he [would] kill me.[30] The rape on 18 June 1997: When was the third time that you were sexually abused? June 18, 1997. What time were you sexually abused on June 18, 1997?

Q A Q A Q A Q A

2. Q A Q

A Q A Q A Q A Q A 3. Q A Q A Q A Q A Q A Q A Q A 4. Q A Q A Q A Q A Q

Again about 4:00 oclock early morning. Where? In their house. What were you doing at that time? Sleeping. And while sleeping, what happened? I was then sleeping when I was awakened while he removed my panty then he laid on top of me and inserted his penis into my vagina. What did you feel when your uncle Nelson Esperanza inserted his penis into your vagina? Painful. [31] The rape on 19 June 1997: Now, when was the fourth time that your uncle sexually abused you? June 19, 1997. Where were you sexually abused by your uncle? In their house. The same place where you were first, second, third time abused? Yes, sir. At about what time were you sexually abused on June 19, 1997? Again about 4:00 oclock in the early morning. What were you doing at that time? Sleeping. And while sleeping what happened? I was awakened while he was kissing my lips but I tried to remove my lips from his and he got irked (naudit). What else happened? After that I tried to move to my side, I turned to my side but he made me lie on my back again removed my panty and then inserted his penis into my vagina.[32] The rape on 20 June 1997: Now, when was the next time after June 19, 1997 when you were again sexually abused? June 20,1997. At about what time? Again in the early morning about 4:00 oclock. Where were you sexually abused on that date? In their house. What were you doing at 4:00 oclock in the morning of June 20, 1997? Sleeping. And while sleeping, what happened if any?

A Q A 5. Q A Q A Q A Q A Q A Q A Q A 6. Q A Q A Q A Q A Q A Q A Q A 7.

I was awakened because he was undressing me. After he was able to he again inserted his penis into my vagina. What did you feel when your uncle inserted his penis into your vagina on June 20, 1997? Painful.[33] The rape on 21 June 1997: Now, after June 20, 1997, when did your uncle again abuse you? June 21, 1997. About what time were you sexually abused? Again early morning of 4:00 oclock. What did your uncle do to you? He mashed my breasts, removed my panty, laid on top of me and then inserted his penis into my vagina. Where did this happen? In Balinad. Where in Balinad? Polangui, Albay. At the same place where you were first abused? Yes, sir. What did you feel when your uncle inserted his penis into your vagina on the 21st of June 1997? Painful.[34] The rape on 22 June 1997: When did your uncle abuse you after June 21, 1997? June 22, 1997. At about what time? Again about 4:00 oclock in the early morning. Where did this happen? In Balinad, Polangui, Albay. Where in Balinad? In their house. What were you doing on June 22, 1997 at about 4:00 oclock in the morning? Sleeping. And while sleeping what happened? I was awakened because he was removing my panty and after that he laid on top of me and again he inserted his penis into my vagina. What did you feel after your uncle inserted his penis into your vagina? Painful.[35] The rape on 23 June 1997:

Q A Q A Q A Q A Q A Q A Q A

When was the last time when you were sexually abused by your uncle? June 23, 1997. Where? In Balinad, Polangui, Albay. Particularly where in Balinad, Polangui, Albay? Their house. At what time were you abused on June 23, 1997? Again about 4:00 oclock in the early morning. What were you doing at 4:00 oclock in the morning of June 23, 1997? Sleeping. What happened while you were sleeping? Again I was awakened while he was removing my panty then he laid on top of me and again he inserted his penis into my vagina. What did you feel when your uncle inserted his penis into your vagina? Painful.[36]

The fact that the series of rape had been committed in almost the same manner and the same time is nothing extraordinary and does not necessarily render the testimony of Irma incredible. In rape cases, the lone testimony of the offended party, if free from serious and material contradictions, is sufficient to sustain a verdict of conviction. In the cases at bar, considering the age of the victim, it is unlikely that her narration is merely the product of a scheming and malicious mind. No woman would openly admit that she was raped and consequently subject herself to an examination of her private parts, undergo the trauma and humiliation of a public trial, and embarrass herself with the need to narrate in detail how she was raped, if she was not raped at all. This ruling especially holds true where the complainant is a minor, whose testimony deserves full credence. And such credibility is definitely enhanced when the accusing words, as in the instant cases, are directed against a close relative, like an uncle. It is thus unthinkable, if not completely preposterous, for Irma to falsely accuse her own uncle in wanton disregard of the unspeakable trauma and social stigma it may generate on her and the entire family.
[37] [38] [39] [40]

Anent the alleged incident on 17 June 1997, the following testimony of Irma does not establish the commission of rape.
Q A Q A Q A When was the second time when you were abused by your uncle? June 17, 1997. Where were you sexually abused? In their house. The same place where you were raped for the first time? Yes, sir.

Q A Q A Q A Q A

What time was it when you were abused for the second time? Around 4:00 oclock. How did your uncle sexually abuse you? During that time that I was again sleeping when I was awakened while he was mashing my breasts and also my vagina. After mashing your breasts and your vagina, what followed next? I tried to remove his hand. What else did your uncle do to you? No more after that but the following morning he told me that he was just testing me.[41]

Every charge of rape is a distinct and separate crime and each must be proved beyond reasonable doubt. Irmas explanation that because of her nervousness during the direct examination she forgot to state that Nelson had sexual intercourse with her on 17 June 1997 deserves scant consideration. The absence of any detail on how the crime of rape was committed bars conviction for such crime. Thus, in the absence of any evidence showing that Nelson had carnal knowledge of Irma, aside from his mashing of Irmas breasts and vagina, the crime committed is merely acts of lasciviousness under Article 336 of the Revised Penal Code, which reads:
[42] [43]

Article 336. Acts of lasciviousness -- Any person who shall commit any act of lasciviousness upon other persons of either sex under any of the circumstances mentioned in the preceding article shall be punished by prision correccional. Nelson could be convicted of acts of lasciviousness because the latter is necessarily included in the crime of rape. Section 4, Rule 120 of the Rules of Court states:
[44]

Sec. 4. Judgment in case of variance between allegation and proof. - When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. The inconsistencies in the testimony of Irma pointed out by Nelson are inconsequential. Minor lapses in the memory of a rape victim can be expected. It is an understandable human frailty not to be able to recount with facility all the details of a dreadful and harrowing experience. Thus, the failure of Irma to respond properly to some questions propounded to her does not put to naught her reliability and sincerity.
[45]

We cannot yield to the contention of Nelson that the darkness of the room made it impossible for Irma to declare with certainty that sexual intercourse took place, as she could not have been sure that it was his penis that penetrated her and not his finger. Irma categorically declared that Nelson inserted his penis after he inserted his finger into her vagina. The imputation by Nelson of ill-motive on Ester hardly merits consideration. It is difficult to accept his claim that Ester manipulated Irma into filing the present case because of the on-going rift between her and Gina. No member of a rape victims family would dare encourage the victim to publicly expose the dishonor of the family, more specifically if such accusation is against a member of the family, unless the crime was in fact committed.
[46]

In light of the positive testimony of Irma showing beyond doubt Nelsons accountability, the latters bare denial and alibi must fail. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. A mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.
[47]

Having found that the appellant committed rape in Criminal Cases Nos. 3680 and 3682-3687, and acts of lasciviousness in Criminal Case No. 3681, we shall proceed to determine the penalties to be imposed on him. With respect to Criminal Cases Nos. 3680 and 3682-3687, we cannot impose the penalty of death. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, which is the law applicable in these cases, provides, inter alia, that the death penalty shall be imposed if the rape victim is under eighteen years of age and the offender is a relative by consanguinity within the third civil degree. Each of the informations charges Nelson with the crime of simple rape only because while it alleges that the victim was only 13 years of age at the time of the incident, there is no allegation that Nelson is her relative by consanguinity within the third civil degree. The twin circumstances of minority and relationship under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of qualifying circumstances because they alter the nature of the crime of rape and increase the penalty. As special qualifying circumstances they must be specifically pleaded or alleged with certainty in the information; otherwise, the death penalty cannot be imposed. In these cases, the allegation that Irma is Nelsons niece is not specific enough to satisfy the special qualifying

circumstance of relationship. If the offender is merely a relation - not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim the specific relationship must be alleged in the information, i.e., that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree. The informations in these cases merely allege that Irma is the niece of Nelson. She could be a niece beyond the third civil degree either of consanguinity or affinity. Hence, the informations are fatally defective in this respect.
[48]

And even granting that the relationship within the third civil degree either of consanguinity or affinity was duly proved during the trial, still such proof cannot be appreciated against Nelson to justify the imposition of the death penalty because he would thereby be denied of his constitutional and statutory right to be informed of the nature and cause of the accusation against him. Nelson cannot be charged with committing the crime of rape in its simple form and then be tried and convicted of rape in its qualified form.
[49]

We also take note of the fact that while the informations allege that Irma was 13 years old at the time she was raped, her birth certificate reveals that she was only 11 years old at the time, having been born on 29 November 1985. Thus, these cases could have been cases of statutory rape. But, Nelson cannot be convicted of statutory rapes. In People vs. Moreno, reiterated inPeople v. Capinpin, we ruled that an accused cannot be convicted under paragraphs 2 or 3 of Article 335 of the Revised Penal Code in an information charging him with rape under paragraph 1 (by using force or intimidation) because none of these modes of committing rape (i.e., when the woman is deprived of reason or otherwise unconscious; or when the woman is under twelve years of age) were alleged in the information. The rationale for this rule is that [t]o convict him under either of these statutory provisions is to deprive him of the constitutional right to be informed of the accusation against him. Section 14 (2), Article III of the 1987 Constitution provides that [i]n all criminal prosecutions, the accusedshall enjoy the right to be informed of the nature and cause of the accusation against him.
[50] [51]

However, conformably with People v. Bayya and People v. Escao, we may appreciate as an aggravating circumstance the victims minority, which was pleaded in the informations and proved by her birth certificate. In those cases, we held that when either one of the twin special qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded in the information and proved by the evidence, like the complainants minority in these cases, may be considered as an aggravating circumstance. Nonetheless, the presence of an aggravating circumstance cannot serve to raise the penalty to be imposed on Nelson. Since simple rape
[52] [53]

is punishable by the single indivisible penalty of reclusion perpetua, that penalty shall, pursuant to the first paragraph of Article 63 of the Revised Penal Code, be imposed regardless of any modifying circumstance that might have attended the commission of the crime. For the crime of acts of lasciviousness under Article 336 of the Revised Penal Code, Nelson may be sentenced to suffer prision correccional in its medium period, there being no modifying circumstance that attended the commission thereof. Applying the Indeterminate Sentence Law, he may be meted an indeterminate penalty of three months of arresto mayor as minimum to three years of prision correccional as maximum. On the civil liability of Nelson, we note that the trial court merely ordered the payment of civil indemnity in the sum of P50,000 in each case. It failed to award moral damages, which is mandatory upon a finding of rape. Thus, consistent with the current case law, moral damages in the amount of P50,000 is awarded in Criminal Cases Nos. 3680 and 3682-3687. Likewise, moral damages in the amount of P30,000 is proper in Criminal Case No. 3681 pursuant to Article 2219 of the Civil Code. In view of the presence of one aggravating circumstance, we award exemplary damages in the amount of P25,000 for each count of rape in accordance with Article 2230 of the Civil Code.
[54] [55]

WHEREFORE, the assailed decision of the Regional Trial Court of Ligao, Albay, Branch 13, in Criminal Cases Nos. 3680-3687, inclusive, is AFFIRMED with MODIFICATIONS. In Criminal Cases Nos. 3680 and 3682-3687, appellant NELSON ESPERANZA is hereby found guilty beyond reasonable doubt as principal of the crime of simple rape under Article 335 of the Revised Penal Code, as amended, and sentenced to suffer the penalty of reclusion perpetua in each case. He is also ordered in each case to pay the victim Irma P. Esperanza P50,000 as civil indemnity; P50,000 as moral damages; and P25,000 as exemplary damages. In Criminal Case No. 3681, the appellant is hereby found guilty beyond reasonable doubt of the crime of acts of lasciviousness and sentenced to suffer an indeterminate penalty of three (3) months of arresto mayor, as minimum, to three (3) years of prision correccional, as maximum, and to pay the victim the amount of P30,000 as moral damages. Costs de oficio. SO ORDERED.
G.R. NO. 153979 February 6, 2006

REGINO SY CATIIS, Petitioner, vs. COURT OF APPEALS (17th Division), REYNALDO A. PATACSIL, ENRICO D. LOPEZ,LUZVIMINDA A. PORTUGUEZ and THE BUREAU OF JAIL MANAGEMENT AND PENOLOGY, NATIONAL CAPITAL REGION, MAKATI CITY JAIL, THROUGH ITS OFFICER-IN-CHARGE WARDEN, CHIEF INSP. ISAGANI M. GAMINO,Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari filed by Regino Sy Catiis (petitioner) seeking to nullify the Decision 1dated June 14, 2002 of the Court of Appeals (CA) which sustained the Order dated December 18, 2001 of the Regional Trial Court, Branch 96, Quezon City, 2 allowing private respondents to post bail and the Order dated December 21, 2001 of the Executive Judge of the same court3 approving the surety bond posted by respondents and their release. Petitioner filed a letter-complaint dated May 28, 2001 against private respondents Reynaldo A. Patacsil, Enrico D. Lopez, Luzviminda A. Portuguez and a certain Margielyn Tafalla before the Office of the City Prosecutor of Quezon City, for violation of Art. 315, No. 2(a) of the Revised Penal Code in relation to Presidential Decree No. 1689 (syndicated estafa) and other related offenses. The complaint was docketed as I.S. No. 01-10686. Private respondents, except for Tafalla, filed their joint counter-affidavits denying the charges against them. On October 10, 2001, Assistant City Prosecutor Alessandro D. Jurado issued a Resolution 4 finding the existence of a probable cause for syndicated Estafa against private respondents and Tafalla with no bail recommended. The Resolution was approved by City Prosecutor Claro A. Arellano. An Information was filed on the same day by Prosecutor Jurado against private respondents and Tafalla before the Regional Trial Court of Quezon City and raffled off to Branch 96, which reads: The undersigned accuses REYNALDO A. PATACSIL, ENRICO D. LOPEZ, LUZVIMINDA A. PORTUGUEZ and MARGIELYN TAFALLA, of the crime of Estafa under Article 315, paragraph 2(a) of the Revise Penal Code in relation to P.D. 1689, committed as follows: That on or about the 3rd week of January 2000 or subsequent thereto in Quezon City and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and all of them mutually helping and aiding one another in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there willfully, unlawfully and feloniously defraud REGINO SY CATIIS and several other persons in the following manner, to wit: by falsely or fraudulently pretending or representing, in a transaction or series of transactions, which they made with the Complainant and the public in general to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the following name and style of Asia Profits Philippines, Incorporation, Winggold Management Philippines Incorporated, Belkin Management Consultancy, Inc. and/or Belkin Profits Limited or other unregistered foreign entities induced and succeeded in inducing complainant and several other persons to give and deliver and in fact, the latter and said persons gave and delivered to said accused the amount of at least US$ 123,461.14 or its equivalent in Philippine Pesos on the strength of said manifestations and representations, the accused knowing fully well that the above-named corporations registered with the SEC and/or those unregistered foreign entities are not licensed nor authorized to engage in foreign exchange trading corporations and that such manifestations and representations to transact in foreign exchange were false and fraudulent that resulted to the damage and prejudice of the complainant and other persons and that the defraudation pertains to funds solicited from the public in general by such corporations/associations.5 On November 7, 2001, Judge Lucas P. Bersamin issued an Order finding probable cause against all the accused and approved the recommendation of the City Prosecutor that the charge be non-bailable. The corresponding warrants of arrest were issued.6 A return7 on the warrant of arrest was made by PO3 Joselito M. Coronel, PNP Criminal Investigation and Detection Group, Camp Crame, Quezon City, with the information that except for Margielyn Tafalla, who remained at large, all other accused were already detained at the Makati City Jail. On November 12, 2001, a notice of hearing was issued by Judge Bersamin setting the case for arraignment on November 20, 2001. Private respondents on the same day filed an urgent motion to fix bail. On November 20, 2001, private respondents, when arraigned, entered pleas of not guilty. The Prosecution was required to file their comment/opposition on private respondents motion to fix bail which they did through the Private Prosecutor with the conformity of Assistant City Prosecutor Arthur O. Malabaguio.8 On December 18, 2001, Judge Bersamin issued an Order reconsidering his earlier Order of November 7, 2001 by declaring that the offense charged is bailable. In finding that the accused are entitled to bail, Judge Bersamin made the following disquisitions: xxx In order to impose the penalty of life imprisonment to death under Sec. 1, P.D. No. 1689, the estafa or swindling must be committed by a syndicate. The law plainly states that a syndicate consists of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise, or scheme, and the defraudation results in the misappropriation of money or of funds solicited by corporations/associations from the general public.

Herein, only four persons are actually charged. Consequently, the estafa charged has no relation to the crime punished with life imprisonment to death under Sec. 1, Presidential Decree No. 1689. The allegation of the information that the accused conspired with each other "in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme" cannot change the juridical nature of the offense charged. If the Government has chosen to indict only four persons, without more, the obvious reason is that only the persons actually charged were involved in the commission of the offense. As such, there was no syndicate. In all likelihood, the allegation of "in a syndicated manner consisting of five (5) or more persons" is made herein solely for having bail denied. Whether that is true or not is beside the point, but the Court cannot now lend itself to such a likelihood which, according to the foregoing disquisition, lacks legal basis. For that matter, the Court must recant its approval of the recommendation to deny bail. The Prosecution represents that the Supreme Court has affirmed in People vs. Romero a conviction under Presidential Decree No.1689 "even if the accused charged is only less than five (5) accused." Such representation is grossly misleading. Far to the contrary, in People v. Romero, where two accused were actually charged but only one was ultimately penalized due to the death of the other accused during the pendency of the case, the Supreme Court did not impose the higher penalty of life imprisonment to death because the Prosecution "failed to clearly establish that the corporation was a syndicate, as defined under the law," holding, instead, that, since the crime was not committed by a syndicate, the proper penalty is that provided in the second paragraph of Sec.1, P.D. No. 1689, to wit: When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000.00 pesos. Yet, one should ask: Where, as here, the amount alleged in the information clearly "exceeds 100,000.00 pesos" such that the second paragraph of Sec. 1, P.D. No. 1689, is applicable, is the offense still bailable considering that the range of the imposable penalty is from reclusion temporal to reclusion perpetua? The answer is in the affirmative. Under Rule 110, 2000 Rules of Criminal Procedure, the Information should aver, among others, the qualifying and aggravating circumstances of the offense "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 circumstance and for the court to pronounce judgment." A perusal of the information discloses that no aggravating circumstance has been alleged in the information. The omission consequently precludes the State from proving any aggravating circumstancewhich will raise the penalty to its maximum period of reclusion perpetua. The Court itself is also prohibited from imposing reclusion perpetua, since the requirement of complete allegations of the particulars in the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense pursuant to the due process clause of the Constitution. As stated in People v. Romero, supra, the penalty under the second paragraph of Sec.1, P.D. No. 1689, when there is neither mitigating or aggravating circumstance attendant, is the medium period of reclusion temporal, that is from sixteen (16) years and one (1) day to twenty (20) years. Hence, the offense charged is unquestionably bailable.9 On December 26, 2001, petitioner filed with the CA a petition for certiorari with prayer for temporary restraining order and/or writ of preliminary injunction10 assailing the Order of Judge Bersamin allowing private respondents to post bail. On the same day, then Associate Justice Romeo J. Callejo Sr.,11 Justice on Duty Per Office Memorandum of Presiding Justice, issued a Resolution12 granting petitioners prayer for the issuance of a temporary restraining order, thus, private respondents and all those acting for and in their behalf were temporarily restrained from enforcing and implementing the Order of Judge Bersamin and from further proceeding in Criminal Case No. 01-105430. However, unknown to petitioner, private respondents had already filed or posted their surety bonds on December 21, 2001 with the Office of Executive Judge Monina A. Zenarosa13 who approved the same on the same day and ordered the immediate release of private respondents unless held for other lawful cause.14 Petitioner filed a supplemental petition with the CA on January 14, 2002 assailing the jurisdiction of Judge Zenarosa in issuing the Order dated December 21, 2001. On June 14, 2002, the CA issued its assailed decision denying due course to the petition and dismissed the same after it found no grave abuse of discretion committed by Judge Bersamin and Judge Zenarosa in issuing the assailed orders. Hence, the instant petition filed by petitioner raising the following issues, to wit: A

Whether or not the issuance of the questioned Decision promulgated June 14, 2002 by the 17th Division of the Court of Appeals sustaining the validity of the 1st assailed Order dated December 18, 2001 of Hon. Presiding Judge Lucas P. Bersamin of Branch 96 of the Regional Trial Court of Quezon City ruling that there should be at least five (5) persons that must be charged under Section 1, Presidential Decree No. 1689 is not in accordance with law or with applicable decisions of this Honorable Supreme Court. B Whether or not the questioned Decision sanctioning the grant of bail in the 1st assailed Order dated December 18, 2001 of Hon. Presiding Judge Lucas P. Bersamin of Branch 96 of the Regional Trial Court of Quezon City violated Section 7, Rule 114 of the Revised Rules of Criminal Procedure and actually departed from the accepted and usual course in the determination of bailability of criminal offenses. C Whether or not the questioned Decision sustaining the order of release in the 2nd assailed Order dated December 21 of Hon. Executive Judge Monina A. Zenarosa of the Regional Trial Court of Quezon City violated Section 17, Rule 114 of the Revised Rules of Criminal Procedure15 Anent the first issue, petitioner contends that under Section 1 of P.D. No. 1689, the term "any person" must be understood and read in its singular meaning so that even only one person can be indicted for committing "estafa or other forms of swindling" in relation to P.D. No. 1689 citing the case of People v. Romero; that Judge Bersamin erred when he already computed the possible penalty in case of private respondents conviction; that the capital nature of an offense for the purpose of bailability is determined by the penalty prescribed by law, not by penalty which may actually be imposed since the latter requires a consideration of the evidence on trial; that since no evidence had yet been presented by both prosecution and defense, Judge Bersamin has again shown bias by already computing the imposable penalty just to stretch the application of the law and questionably grant bail in favor of private Respondents. We are not persuaded. The CA found that the assailed order of Judge Bersamin cannot be characterized as one issued with grave abuse of discretion for he correctly determined that the Information did not charge a syndicated Estafa; that with only four charged in the information, it could not be considered as committed by a syndicate which must consist of five or more persons and he cannot be faulted for that. Section 1 of P.D. No. 1689, increasing the penalty for certain forms of swindling or estafa, provides: SECTION 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks cooperatives, "samahang nayon(s)," or farmers associations, or of funds solicited by corporations/associations from the general public. When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal toreclusion perpetua if the amount of the fraud exceeds 100,000 pesos. Clearly, P.D. No. 1689 penalizes offenders with life imprisonment to death regardless of the amount involved, provided that a syndicate committed the crime. A syndicate is defined in the same law as "consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme." Under the second paragraph, it is provided that if the offenders are not members of a syndicate, they shall nevertheless be held liable for the acts prohibited by the law but they shall be penalized by reclusion temporal to reclusion perpetua if the amount of the fraud is more than P100,000.00. Petitioners interpretation that the term "any person" in the first paragraph of section 1 could mean that even one person can be indicted for syndicated estafa is contrary to the provision of the law. It bears stressing that the law must be considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning.16 It is a dangerous practice to base construction upon only a part of a section since one portion may be qualified by the other portion.17 In fact, there is no need for any construction or interpretation of P. D. No. 1689 since the law is clear and free from any doubt or ambiguity. Section 1 of P.D. No. 1689 has defined what constitutes a syndicate and such definition is controlling. Where a requirement is made in explicit and unambiguous terms, no discretion is left to the judiciary. It must see to it that its mandate is obeyed.18 In this case, the Information specifically charged only four persons without specifying any other person who had participated in the commission of the crime charged, thus, based on the definition of syndicate under the law, the crime charged was not committed by a syndicate. We find no reversible error committed by the CA when it upheld the ruling of Judge Bersamin that with only four persons actually charged, the estafa charged has no relation to the crime punished with life imprisonment to death under section 1 of P. D. No. 1689. The wordings in the information that the accused conspired with each other "in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme" is not sufficient compliance with the requirements of the law on what constitute a syndicate. It bears stressing that the first paragraph of the accusatory portion of the Information charges only four persons. To repeat, P.D. No. 1689 has provided for the definition of a syndicate and it is controlling. As correctly found by the trial court, if the government has chosen to indict only four persons, without more, the obvious reason is that only the persons actually charged were involved in the commission of the offense, thus, there was no syndicate.
1avv phil.net

Petitioners reliance in People v. Romero to support his argument is misleading. First, the issue of whether only one person can be indicted for syndicated estafa was not an issue in the Romero case. Secondly, the Court did not impose the penalty of life imprisonment to death on the accused since the prosecution failed to clearly establish that the corporation was a syndicate as defined under the law. There is no other way of establishing a syndicate under P.D. No. 1689 than by the adherence to the definition provided by law. Since the crime charged was not committed by a syndicate as defined under the law, the penalty of life imprisonment to death cannot be imposed on private Respondents. Judge Bersamin is correct when he ruled that private respondents could only be punished with reclusion temporal to reclusion perpetua in case of conviction since the amount of the fraud exceeds P100,000.00. The next question is, whether Judge Bersamin is correct in finding that the crime charged is bailable despite that the imposable penalty ranges from reclusion temporal toreclusion perpetua? The Court answers in the affirmative. Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, provide: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the 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. Clearly, it is now a requirement that the aggravating as well as the qualifying circumstances be expressly and specifically alleged in the complaint or information. Otherwise, they cannot be considered by the trial court in their judgment, even, if they are subsequently proved during trial.19 A reading of the Information shows that there was no allegation of any aggravating circumstance, thus Judge Bersamin is correct when he found that the lesser penalty, i.e., reclusion temporal, is imposable in case of conviction. Section 13, Article III of the Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. Since the imposable penalty on private respondents, in case of conviction, is reclusion temporal, they are entitled to bail as a matter of right. Notably, Judge Bersamin issued his Order finding the crime charge bailable and fixed the amount of P150,000.00 each for the provisional liberty of private respondents only after petitioner had submitted their comment/opposition to petitioners motion to fix bail. Petitioner claims that the Order of Judge Bersamin allowing private respondents to post bail already prejudged the case; that he summarily decided the eventual and imminent dismissal of the criminal case without even the reception of evidence; that such prejudgment came from a ruling on a mere issue of bail. Such argument is baseless. The Order was issued on the basis that the allegations in the Information do not establish that the crime charged was committed by a syndicate as defined under the law where the penalty of life imprisonment to death could be imposed. Nowhere in the Order did Judge Bersamin state that the act complained of is not punishable at all. Petitioner next contends that private respondents filing of bail with Executive Judge Monina Zenarosa, other than Branch 96 where the case is pending, is questionable and not in accordance with Section 17, Rule 11420 of the Revised Rules on Criminal Procedure; that the records show that when private respondents filed their bail with Judge Zenarosa, Branch 96 was open and available as private respondents through their representative were able to pay for the issuance of the certifications on the Information and the Order dated December 18, 2001; that petitioners counsel and the Assistant City Prosecutor Arthur Malabaguio had personally received their respective copies of the Order dated December 18, 2001 inside the staff room of Branch 96 and they even attested that Judge Bersamin was physically present on December 21, 2002, the day private respondents filed their bail bond with Judge Zenarosa; that despite these circumstances, Judge Zenarosa still exercised jurisdiction over the bail filed by private respondents and issued the Order dated December 21, 2001 approving the surety bonds and ordering the release of private respondents; that the CAs justification that Judge Zenarosa accepted the bail bond due to the fact that Judge Bersamin was momentarily out of his office or premises at the time of posting of the bond was not borne by the records. We are not persuaded. Section 17, Rule 114 of the Revised Rules on Criminal Procedure provides that bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. While Branch 96 is open and available on the day private respondents posted their bail with Judge Zenarosa, it does not necessarily follow that Judge Bersamin was available at that precise moment. Although it is alleged in the supplemental petition prepared by petitioners counsel, Atty. Rodeo Nuez, with the conformity of Prosecutor Malabaguio filed before the CA that both of them saw Judge Bersamin discharging his function on that day, it is not under oath. Moreover, it is not specifically stated in the supplemental petition that at the exact time Judge Zenarosa approved the bail, Judge Bersamin was available. Thus, petitioner failed to rebut the presumption that official duty had been regularly performed21 by Judge Zenarosa under the rules. WHEREFORE, the petition for review on certiorari is DENIED. The assailed decision of the Court of Appeals dated June 14, 2002 is AFFIRMED. Costs against petitioner. SO ORDERED.

G.R. No. 130593. June 19, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO ARILLAS Y MONTOYA, accused-appellant. DECISION PUNO, J.: In a sworn complaint, Amor O. Arillas accused her father, Romeo Arillas y Montoya, of raping her on two occasions when she was barely 16 years old. The trial court found her father guilty beyond reasonable doubt. It sentenced him to suffer the penalty of death. These cases are now before the Court on automatic review.
[1] [2]

Amor Arillas alleged in her complaint that in December 1995 and on February 10, 1996, her father sexually abused her while they were alone in their house at Barangay Sto. Nio, Bula, Camarines Sur. Through the use of force, violence and intimidation, he succeeded in having carnal knowledge of her.
[3]

Based on the sworn complaint, two informations were filed against appellant by the Assistant Provincial Prosecutor of Camarines Sur. The information in Criminal Case No. P-2532, filed in Branch 33, Regional Trial Court, Pili, Camarines Sur, reads: "That sometime in December, 1995 in the Barangay of Sto. Nio, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor A. Arillas against her will and consent, to the damage and prejudice of the offended party."
[4]

and the information in Criminal Case No. P-2533, filed in Branch 31 of the same court, reads: "That on or about the 10th day of February, 1996 in the Barangay of Sto. Nio, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor Arillas y Onquit, against

her will and consent, to the damage and prejudice of the offended party.
[5]

On motion by the counsel of the appellant, the cases were consolidated in Branch 33. It appears that in the morning of December 23, 1995, while Amor Arillas was sweeping their backyard, her father told her to go inside their house to prepare their breakfast. At that time, her brothers were grazing their carabao in the mountains, her sisters were washing clothes in a creek about 300 to 400 meters away from their house and her mother was selling soft drink and bread in the rice field. She was alone with her father in their house.
[6]

While doing her chore; her father came near her, embraced and forcibly kissed her. She resisted but her father kicked her on the right buttocks. The force of the blow threw her beside the stairs of their house. Her father embraced her again and dragged her towards their room. She tried to run away but she could not escape as her father held her hands. Inside the room, her father undressed her and forced her to lie down. Her gallant resistance proved futile. He was able to take her maidenhood. She bled and felt pain all over her body. In Amor's words, it was her first experience.
[7]

Appellant threatened Amor that something bad would happen if she reports the incident to anyone. He became strict with her. She was afraid of her father and did not want her family broken. Hoping that the bestial act would not be repeated, she kept silent.
[8]

Amor's hope was not to happen. On February 10, 1996, while preparing lunch inside their house, her father approached her, embraced and kissed her. She resisted by pushing him but he held her tight and continuously touched her private part. He dragged her inside their room, undressed her and forced her to lie down. He slapped her when she refused. Amor fought hard to free herself but she was no match against the appellant who was heavy and very strong. He mounted her and violated her. She felt pain all over her body. Appellant again threatened her that he would kill them if she would reveal the incident to anyone. He began harming her and her brothers and sisters. He also forbade her to go out of their house. Amor suspected that he still wanted to ravish her.
[9]

She finally found the courage to report the incident on April 1, 1996. She narrated her ordeal to their barangay captain Domingo Arevalo. A complaint
[10]

was filed against the appellant. Amor then underwent a medical examination. Dr. Mylene Chavez Milla, Municipal Health Officer of Bula, Camarines Sur found five old lacerations in the hymen of Amor Arillas at 10:00 o'clock, 2:00 o'clock, 9:00 o'clock, 5:00 o'clock and 6:00 o'clock positions. She said that these lacerations might have been caused by inserting a hard object like a male organ. She also testified that her hymen admits two fingers with ease which indicates that penetration was made more than once.
[11]

To prove the age of Amor, Romeo Decena, Assistant Local Civil Registrar, was presented. He testified that despite diligent search, he failed to find her name in the registry book. However, when shown her birth certificate, he confirmed its issuance by their office. The date of birth of private complainant, as indicated in her birth certificate, was May 10, 1980.
[12] [13]

Romeo Arillas interposed the defense of denial and alibi. Allegedly, on December 23, 1995, he was in the farm and on February 10, 1996, he was repairing an irrigation pump in San Jose, Minalabac, Camarines Sur. He claimed that the charges against him were due to the anger of her brothers and sisters and parents-in-law with him. This arose when he left his brother-inlaw drunk during a fiesta celebration in San Ramon, Bula. From then on, his relationship with his in-laws soured.
[14]

On June 26, 1997, the trial court rendered a joint judgment on the two cases convicting the appellant. It held that appellant was positively identified by the complainant as the culprit. It ruled that the fact of carnal knowledge is supported by the presence of laceration in the victim's hymen. It further explained that the testimony of the complainant, coupled with the absence of any motive on her part to falsely testify against her father, is more than sufficient to convict the appellant.
[15] [16]

The imputed ill-motive on the part of his in-laws, emanating from the alleged quarrel between him and his brother-in-law, was held as too insignificant to cause his daughter to falsely charge him with such a serious crime. The appellant was sentenced to death. It considered Section 11 of R.A. 7659, calling for the imposition of the death penalty when the victim is under 18 years of age and the offender is her parent or ascendant. The dispositive portion of the joint judgment reads: "WHEREFORE, in view of the foregoing, joint judgment is hereby rendered in these two (2) cases finding the accused ROMEO

ARILLAS Y MONTOYA, guilty beyond reasonable doubt of the two charges of rape filed against him, defined and punished under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 and is hereby sentenced to suffer the penalty of death. And as civil liability to pay Amor O. Arillas the amount of P100,000.00 for actual and moral damages. "Let the entire records of these cases be forwarded immediately to the Honorable Supreme Court for automatic review pursuant to Sec. 22 of Republic Act No. 7659, amending Article 47 of the Revised Penal Code."
[17]

Against this judgment, accused-appellant assigns a single error, viz.: "THE COURT OF ORIGIN HAS COMMITTED AN ERROR IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE PRESENCE OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME."

[18]

In his brief, accused-appellant insists that even if his defense is merely denial and alibi, reasonable doubt exists as to his guilt. He maintains that these cases were filed against him out of spite. They were the end result of the quarrel between him and an uncle of the private complainant. He argued that his testimony to this effect was never rebutted by the prosecution.
[19]

We are not persuaded. It is the teaching of countless cases that for the defense of alibi to prosper, it must be proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the place where the crime was committed. In the cases at bar, appellant's bare allegations that he was in the rice field when his daughter was raped on December 23, 1995 and that he was in San Jose, Minalabac, Camarines Sur when his daughter was again raped on February 10, 1996 cannot exculpate him. The positive assertions of his daughter that he raped her is entitled to greater weight. Her candid and straightforward testimony that she lost her virginity is supported by the medical findings of the Municipal Health Officer. The claim of the appellant that the cases at bar were filed out of spite did not convince the trial court, and so are we not convinced. Aside from the fact that he failed to substantiate this claim, it is highly inconceivable why Amor would falsely accuse appellant, her father, just to advance the interest of her uncle in

a quarrel. More worthy of credence is the statement of Amor that she filed these cases because she could no longer bear the conduct of her father. After his bestial acts, he did not allow her to go out of their house and he inflicted harm on her and her siblings. She feared that he still wanted to ravish her.
[20]

Needless to state, appellant cannot contend that the prosecution failed to rebut the motive he ascribed to the relatives of Amor. The prosecution does not have to rebut his outlandish claim. An allegation that does not merit any credence need not be rebutted. Be that as it may, the trial court erred when it imposed the death penalty on accused-appellant. We make the correction motu proprio for an appeal in a criminal proceeding throws the whole case open for review. It is the duty of the appellate court to correct any error in the judgment whether assigned or not.
[21]

When the offenses at bar were committed, rape is defined and punished by Article 335 of the Revised Penal Code as amended by Section 11 of Republic Act No. 7659, which reads: "Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1.....By using force or intimidation; 2.....When the woman is deprived of reason or otherwise unconscious; and 3.....When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 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. 2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." The trial court imposed the death penalty for the reason that the victim was under eighteen years old at the time of the commission of the offense and the offender was her father. In People vs. Garcia, we held that these circumstances should be considered as special qualifying circumstances as they change the nature of simple rape by punishing the offender with the penalty of death. For a crime to be elevated in its qualified form, the circumstance that qualifies it should be alleged in the information. If the
[22] [23]

qualifying aggravating circumstance is not alleged but proved, it shall only be, considered as an aggravating circumstance since the latter may be proven even if not alleged. It follows that in such cases, the accused can not be convicted of the crime in its qualified form. It is fundamental that every element of an offense must be alleged in the complaint or information. The purpose of the rule is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. Thus, we ruled that it is a denial of the right of an accused to be informed of the nature of the accusation against him, and consequently, a denial of due process if he is convicted of a crime in its qualified form notwithstanding the fact that the information, on which he was arraigned, charges him only of the crime in its simple form by not specifying the circumstance that qualifies the crime.
[24] [25] [26]

The informations in these cases alleged that the victim is the daughter of the appellant but it did not allege that the victim is under eighteen (18) years old. Hence, the appellant was only charged with simple rape and its penalty is reclusion perpetua. Finally, the trial court awarded P100,000.00 as actual and moral damages. We note that the prosecution failed to present any evidence regarding actual damages and hence, the award cannot be sustained. However, the amount of P50,000.00 may be retained as an award for moral damages as it requires no proof of mental and physical suffering. It is now the ruling case law that the victim's injury is inherently concomitant with, and necessarily resulting from, the odious crime of rape to justify per se an award for moral damages. Considering that the offender is the father of the victim, we also find the appellant liable for P25,000.00 as exemplary damages for each rape committed. We also award a civil indemnity of P50,000.00 for each count of rape.
[27] [28]

IN VIEW WHEREOF, we find Romeo Arillas guilty of simple rape under Crim. Case Nos. P-2532 and P-2533 and he is sentenced to suffer the penalty of reclusion perpetua in each case and to pay the offended party, for each count of rape, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages. SO ORDERED.

G.R. Nos. 144340-42. August 6, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, AQUINO y RODA, accused-appellant. RESOLUTION

PER CURIAM:

vs. RODELIO

Appellant Rodelio Aquino y Roda filed this Motion for Reconsideration asking the Court to reconsider its Decision of April 17, 2002, which held him guilty of qualified rape. The relevant portion of the Decision reads:

To warrant the imposition of the supreme penalty of death in qualified rape under Article 266-B (1) of the Revised Penal Code, the concurrence of the minority of the victim and her relationship to the offender must be specifically alleged and proved with equal certainty as the crime itself. In the instant case, the Information alleges that the child-victim was a five-year old minor and appellant was the child-victims uncle. The prosecution presented Charlaines birth certificate to prove her age. This undisputed circumstance standing alone, qualifies the rape. Under Article 266-B (5) of the Revised Penal Code, the death penalty is mandated in rape cases "when the victim is a child below seven (7) years old. The qualifying circumstance of relationship was also undisputedly proven by the prosecution. The child-victims mother, Winnie Bautista, testified in court that appellant is her brother, making appellant a blood relative of the victim within the third civil degree. Moreover, appellant categorically admitted during trial that the child-victim is his niece. (Decision, pp. 19-20)
Appellant argues that he should only be convicted of simple rape because while the age of the complainant(s) as well as their relationship to the accused-appellant were (sic) stated in the Information(s), the same were not alleged particularly to qualify the offense charged.[1] Appellant contends that this failure to charge him specifically with the qualified offense bars the imposition of the death penalty upon him. We deny the Motion for Reconsideration. Appellant anchors his Motion for Reconsideration on two recent cases -People v. Manlansing[2] and People v. Alba.[3] In People v. Manlansing, the Court, citing People v. Alba, disregarded the qualifying circumstance of treachery, ruling that -

We noted in Gario Alba, that although the circumstance of treachery was stated in the Information, it was not alleged with specificity as qualifying the killing to murder. Since the Information in Gario Alba failed to specify treachery as a circumstance qualifying the killing to murder, treachery was considered only a generic aggravating circumstance, hence, we said that the crime committed in Gario Alba was homicide and not murder. (Emphasis supplied)
[4]

However, the Court has repeatedly held,[5] even after the recent amendments to the Rules of Criminal Procedure, that qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an offense. The Court has repeatedly qualified cases of rape[6] where the twin circumstances of minority and relationship have been specifically alleged in the Information even without the use of the descriptive words qualifying or qualified by. In the recent case of People v. Lab-eo,[7] the appellant there questioned the decision of the lower court raising the killing to murder. The appellant there argued that he could only be convicted of homicide since the Information merely stated that the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended the commission of the offense. The appellant also asserted that since the circumstances were merely described as aggravating and not qualifying, he should only be convicted of the lesser crime of homicide. On this score, the Court ruled that -

The fact that the circumstances were described as aggravating instead of qualifying does not take the Information out of the purview of Article 248 of the Revised Penal Code. Article 248 does not use the word qualifying or aggravating in enumerating the circumstances that raise a killing to the category of murder. Article 248 merely refers to the enumerated circumstances as the attendant circumstances.
[8]

Article 266-B of the Revised Penal Code, as amended by RA No. 8353, [9] states that the death penalty shall be imposed in the crime of rape if any of the aggravating/qualifying circumstances mentioned in Article 266-B is present. Prior to RA No. 8353, Article 335 of the Revised Penal Code, as amended by RA No. 7659,[10] penalized qualified rape with the death penalty when any of the attendant circumstances mentioned in Article 335 was present. The present law uses the words aggravating/qualifying circumstances in referring to the attendant circumstances that qualify rape to a heinous crime punishable by death. The old law referred to these circumstances as the attendant circumstances. The change in the wording did not make the use of the words aggravating/qualifying circumstances an essential element in specifying the crime in the Information. As in the old law, the essential element that raises rape to a heinous crime is the attendance of a circumstance mentioned in Article 266-B. As an essential element of the heinous crime, such attendant circumstance must be specifically alleged in the Information to satisfy the constitutional requirement that the accused must be informed of the nature of the charge against him. The use of the words aggravating/qualifying circumstances will not add any essential element to the crime. Neither will the use of such words further apprise the accused of the nature of the charge. The specific allegation of the attendant circumstance in the Information, coupled with the designation of the offense and a statement of the acts constituting the offense as required in Sections 8 and 9 of Rule 110, is sufficient to warn the accused that the crime charged is qualified rape punishable by death.

The change in the wording from attendant circumstances to aggravating/qualifying circumstances did not signify a change in the law. As used in Article 335 (old provision on qualified rape), the words attendant circumstances referred to the circumstances that changed the nature of the crime when these circumstances were present in the commission of the crime. As used in Article 266-B (new provision on qualified rape), the words aggravating/qualifying circumstances also refer to the circumstances that change the nature of the crime when these circumstances are present in the commission of the crime. The words aggravating circumstances include qualifying circumstances.[11] Qualifying circumstances are aggravating circumstances which, by express provision of law, change the nature of the crime to a higher category. The words attendant circumstances, which still appear in Article 248 (raising homicide to murder), refer to qualifying circumstances -those aggravating circumstances that, by express provision of law, change the nature of the crime when present in the commission of the crime. Section 9, Rule 110 of the Revised Rules of Criminal Procedure states that the-

x 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 reads-

Sometime in October 1999, in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, being the uncle of the 5-year old Charlaine Bautista, with lewd designs, did then and there willfully, unlawfully, and feloniously have sexual intercourse with said Charlaine Bautista, by then and there touching her vagina and inserting his penis in her vagina, against the latters will and consent. Contrary to law.

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

SO ORDERED.

G.R. No. 148965. February 26, 2002]

JOSE JINGGOY E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents. DECISION
PUNO, J.:

A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against him by the respondent Ombudsman. The antecedent facts are as follows: In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman. On April 4, 2001, the respondent Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose Jinggoy Estrada, then mayor of San Juan, Metro Manila.
[1]

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no bail for petitioners provisional liberty was fixed. On April 24, 2001, petitioner filed a Motion to Quash or Suspend the Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080,

is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion. On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis, petitioner and his co-accused were placed in custody of the law. On April 30, 2001, petitioner filed a Very Urgent Omnibus Motion alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a series or combination of overt or criminal acts as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court.
[2] [3]

On June 28, 2001, petitioner filed a Motion to Resolve Mayor Jose Jinggoy Estradas Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him.
[4]

On July 3, 2001, petitioner filed a Motion to Strike Out So-Called Entry of Appearance, To Direct Ombudsman To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents.
[5]

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioners Motion to Quash and Suspend and Very Urgent Omnibus Motion. Petitioners alternative prayer to post bail was set for hearing after arraignment of all accused. The court held:
[6]

WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose Jinggoy Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio. Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose Jinggoy Estrada, his VERY URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled

for July 10, 2001, at 2:00 oclock in the afternoon after the arraignment of all the accused.
[7]

The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of not guilty for him.
[8]

Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in: 1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal protection of the laws; 2) not holding that the Plunder Law does not provide complete and sufficient standards; 3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process; 4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality.
[9]

We shall resolve the arguments of petitioner in seriatim. I. Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the laws.
[10]

The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been settled in the case of Estrada v. Sandiganbayan. We take off from the Amended Information which charged petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie Atong Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows:
[11]

AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. ASIONG SALONGA AND a.k.a JOSE VELARDE, together with Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OREleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, illgotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a

(b)

portion of the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.

(d)

CONTRARY TO LAW. Manila for Quezon City, Philippines, 18 April 2001

[12]

Petitioners contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to bail. Petitioners premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of

plunder together with petitioner Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act. Pertinent to the case at bar is the predicate act alleged in subparagraph (a) of the Amended Information which is of receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x. In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioners posture, the allegation is that he received or collected money from illegal gambling on several instances. The phrase on several instances means the petitioner committed the predicate act in series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the phrase several instances is to indulge in a twisted, nay, pretzel interpretation. It matters little that sub-paragraph (a) did not utilize the exact words combination or series as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan, we held that where these two terms are to be taken in their popular, not technical, meaning, the word series is synonymous with the clause on several instances. Series refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word combination contemplates the commission of at least any two different predicate acts in any of said items. Plainly, sub-paragraph (a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate act under Section 1 (d) (2) of the law.
[13]

Similarly misleading is petitioners stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million, which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne out by the April 4, 2001Resolution of the Ombudsman, recommending the filing of charges against petitioner and his co-accused, which in pertinent part reads:

x x

x xxx

Respondent Jose Jinggoy Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov. Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1 million in February, 2000. An alleged listahan of jueteng recipients listed him as one Jingle Bell, as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI].
[14]

Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner as jueteng haul on at least two occasions. The P2 million is, therefore, not the entire sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that: x x x x xxx x x

It is clear that Joseph Ejercito Estrada, in confabulation with Jose Jinggoy Estrada, Atty. Edward Serapio and Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the operators thereof, channeled thru Gov. Luis Chavit Singson, in exchange for protection from arrest or interference by law enforcers; x x x.
[15]

To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this petition. II. Next, petitioner contends that the plunder law does not provide sufficient and complete standards to guide the courts in dealing with accused alleged to have contributed to the offense. Thus, he posits the following questions:
[16]

For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another accused is shown to have participated in three of the ten specifications, what would be the penalty imposable, compared to one who may have been involved in five or seven of the specifications? The law does not provide the standard or specify the penalties and the courts are left to guess. In other words, the courts are called to say what the law is rather than to apply what the lawmaker is supposed to have intended.
[17]

Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz: Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. III. Petitioner also faults the respondent Sandiganbayan for sustaining the charge against petitioner for alleged offenses and with alleged conspirators,

with which and with whom he is not even remotely connected contrary to the dictum that criminal liability is personal, not vicarious results in the denial of substantive due process.
[18]

The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs of the Amended Information.
[19]

For better focus, there is a need to examine again the allegations of the Amended Information vis--vis the provisions of R.A. No. 7080. The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the Jose Velarde account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, subparagraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name Jose

Velarde at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080. From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion. We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies.Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the overall conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. R.A. No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz:
[20] [21] [22]

Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power. There is no denying the fact that the plunder of an entire nation resulting in material damage to the national economy is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonalityto help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. Thegravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the so-called wheel or circle conspiracy, in which there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.
[23]

From a reading of the Amended Information, the case at bar appears similar to a wheel conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the

common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth. IV. Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence. We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law. Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the agreement or conspiracy itself is the gravamen of the offense. The essence of conspiracy is the combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means. Its elements are: agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the underlying substantive offense.
[24] [25] [26]

A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of conspiracy conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371, as follows:
[27] [28]

Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz: Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both. Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2) conspiracy to defraud the United States or any agency thereof. The conspiracy to commit any offense against the United States refers to an act made a crime by federal laws. It refers to an act punished by statute. Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory. These laws cover criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of federal regulation. Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of conspiracy is generally separate and distinct from the substantive offense, hence, the court rulings that acquittal on the substantive count does not foreclose prosecution and conviction for related conspiracy.
[29] [30] [31] [32] [33] [34]

The conspiracy to defraud the government refers primarily to cheating the United States out of property or money. It also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It comprehends defrauding the United States in any manner whatever, whether the fraud be declared criminal or not.
[35] [36]

The basic difference in the concept of conspiracy notwithstanding, a study of the American case law on how conspiracy should be alleged will reveal that it is not necessary for the indictment to include particularities of time, place, circumstances or causes, in stating the manner and means of effecting the object of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars. An indictment for conspiracy
[37]

is sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed; and (3) the overt acts performed in furtherance of the agreement. To allege that the defendants conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy. To allege a conspiracy is to allege an agreement. The gist of the crime of conspiracy is unlawful agreement, and where conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required in cases where such object is charged as a substantive offense.
[38] [39] [40]

In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for this crime must contain the following averments: Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information. The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date of the commission of the offense and the place where the offense was committed. Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference to the section or subsection of the statute punishing it. The information must also state the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. The acts
[41] [42]

or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense.
[43] [44] [45] [46] [47]

To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. For example, the crime of conspiracy to commit treason is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. The elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information.
[48]

The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree of their participation in the crime. The liability of the conspirators is collective and each participant will be equally responsible for the acts of others, for the act of one is the act of all. In People v. Quitlong, we ruled on how conspiracy as the mode of committing the offense should be alleged in the Information, viz:
[49] [50] [51] [52]

x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his

defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well. A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844). x x x x xxx x x

x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words conspired or confederated or the phrase acting in conspiracy, must aptly

appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term conspire or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. x x x x x x x. x x

Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.
[53] [54]

The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it. A statement of this evidence is not necessary in the information.
[55]

In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused committed the crime of plunder. It used the words in connivance/conspiracy with his co-accused. Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of plunder. V. We now come to petitioners plea for bail. On August 14, 2002, during the pendency of the instant petition before this Court, petitioner filed with respondent Sandiganbayan an Urgent Second Motion for Bail for Medical

Reasons. Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if he goes back to his place of detention. The motion was opposed by respondent Ombudsman to which petitioner replied. For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati MedicalCenter, testified as sole witness for petitioner. On December 18, 2001, petitioner filed with the Supreme Court an Urgent Motion for Early/Immediate Resolution of Jose Jinggoy Estradas Petition for Bail on Medical/Humanitarian Considerations. Petitioner reiterated the motion for bail he earlier filed with respondent Sandiganbayan.
[56]

On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and requiring said court to make a report, not later than 8:30 in the morning ofDecember 21, 2001. On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated December 20, 2001 denying petitioners motion for bail for lack of factual basis. Basing its finding on the earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail.
[57] [58]

The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong, to wit: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.
[59]

Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The

right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt.
[60]

This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on petitioners guilt was presented before the lower court. Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioners guilt is strong as to warrant the granting of bail to petitioner. IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Mendoza, Panganiban, Quisumbing, and De Leon, Jr., JJ., concur. Vitug, J., please see Separate Opinion. Kapunan, and Buena, J., joins Justices Santiago and Gutierrez in their separate dissenting opinions. Ynares-Santiago, J., pls. see separate Dissenting Opinion. Sandoval-Gutierrez, J., please see my Dissent. Carpio, J., no part as before.
G.R. No. 119601 December 17, 1996 DANILO BUHAT, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

HERMOSISIMA, JR., J.:p

Delicate and sensitive is the issue in this case, which is, whether or not the upgrading of the crime charged from homicide to the more serious offense of murder is such a substantial amendment that it is proscribed if made after the accused had pleaded "not guilty" to the crime of homicide, displaying as alleged by the defense, inordinate prejudice to the rights of the defendant. On March 25, 1993, an information for HOMICIDE 1 was filed in the Regional Trial Court (RTC) 2 against petitioner Danny Buhat, "John Doe" and "Richard Doe". The information alleged that on October 16, 1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked and killed one Ramon George Yu while the said two unknown assailants held his arms, "using superior strength, inflicting . . . mortal wounds which were . . . the direct . . . cause of his death" 3 . Even before petitioner could be arraigned, the prosecution moved for the deferment of the arraignment on the ground that the private complainant in the case, one Betty Yu, moved for the reconsideration of the resolution of the City Prosecutor which ordered the filing of the aforementioned information for homicide. Petitioner however, invoking his right to a speedy trial, opposed the motion. Thus, petitioner was arraigned on June 9, 1993 and, since petitioner pleaded "not guilty", trial ensued. On February 3, 1994, then Secretary of Justice Franklin M. Drilon, finding Betty Yu's appeal meritorious, ordered the City Prosecutor of Roxas City "to amend the information by upgrading the offense charged to MURDER and implead therein additional accused Herminia Altavas, Osmea Altavas and Renato Buhat". 4 On March 10, 1994, the Assistant City Prosecutor filed a motion for leave to amend information. The amendment as proposed was opposed by the petitioner. The amended information read: The undersigned assistant City Prosecutor accuses DANNY BUHAT, of Capricho II, Barangay V, Roxas City, Philippines, HERMIIA ALTAVAS AND OSMEA ALTAVAS both resident of Punta Tabuc, Roxas City, Philippines, of the crime of Murder, committed as follows: That on or about the 16th day of October, 1992, in the City of Roxas, Philippines, the above-named accused, Danny Buhat armed with a knife, conspiring, confederating and helping one another, did and then and there willfully, unlawfully and feloniously [sic] without justifiable motive and with intent to kill, attack, stab and injure one RAMON GEORGE YU, while the two other accused held the arms of the latter, thus using superior strength, inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Ramon George Yu in such amount as maybe [sic] awarded to them by the court under the provisions of the Civil Code of the Philippines.

CONTRARY TO LAW.

The prosecution had by then already presented at least two witnesses. In an order, 6 dated June 2, 1994, the RTC denied the motion for leave to amend information. The denial was premised on (1) an invocation of the trial court's discretion in disregarding the opinion of the Secretary of Justice as allegedly held in Crespo vs. Mogul 7 and (2) a conclusion reached by the trial court that the resolution of the inquest prosecutor is more persuasive than that of the Secretary of Justice, the former having actually conducted the preliminary investigation "where he was able to observe the demeanor of those he investigated"
8

The Solicitor General promptly elevated the matter to the Court of Appeals. He filed a petition for certiorari 9assailing the aforecited order denying the motion for leave to amend information. Finding the proposed amendment as non-prejudicial to petitioner's rights, respondent court granted the petition for certiorari in a decision, dated March 28, 1995, the decretal portion of which reads:

THE FOREGOING CONSIDERED, herein petition is hereby granted: the Order dated June 2, 1994 is set aside and annulled; amendment of the Information from homicide to murder, and including as additional accused Herminia Altavas and Osmea Altavas is allowed; and finally, the writ of preliminary injunction we issued on January 30, 1995 is made permanent by prohibiting the public respondent from hearing aforementioned criminal case under the original information.
10

Hence this petition raising the sole issue of whether or not the questioned amendment to the information is procedurally infirm. The petition lacks merit. The additional allegation of conspiracy is only a formal amendment, petitioner's participation as principal not having been affected by such amendment. Petitioner asseverates that the inclusion of additional defendants in the information on the ground of conspiracy "is a substantial amendment which is prohibited by Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure, because the allegation of conspiracy . . . is a substantial amendment saddling the [p]etitioner with the need of a new defense in order to met [sic] a different situation at the trial [c]ourt" 11

Petitioner cites the case of People v. Montenegro 12 as jurisprudential support. Indeed, we stated in theMontenegro case that "the allegation of conspiracy among all the private respondents-accused, which was not previously included in the original information, is . . . a substantial amendment saddling the respondents with the need of a new defense in order to meet a different situation in the trial court" 13. And to explain the new defense theory as a bar to a substantial amendment after plea, we cited the case of People v. Zulueta 14 where we elucidated, thus: Surely the preparations made by herein accused to face the original charges will have to be radically modified to meet the new situation. For undoubtedly the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused Zulueta all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance of the conspiracy. The amendment thereby widens the battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the opposite camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the controversy, bearing in mind that the accused is only guaranteed two-days' preparation for trial. Needless to emphasize, as in criminal cases the liberty, even the life, of the accused is at stake, it is always wise and proper that he be fully apprised of the charges, to avoid any possible surprise that may lead to injustice. The prosecution has too many facilities to covet the added advantage of meeting unprepared adversaries. This jurisprudential rule, however, is not without an exception. And it is in the same case of Zulueta that we highlighted the case of Regala v. Court of First Instance of Bataan 15 as proffering a situation where an amendment after plea resulting in the inclusion of an allegation of conspiracy and in the indictment of some other persons in addition to the original accused, constitutes a mere formal amendment permissible even after arraignment. In Zulueta, we distinguished the Regala case in this wise:

Some passages from "Regala contra El Juez del Juzgado de Primera Instancia de Bataan" are quoted by petitioners. Therein the accused pleaded not guilty to an information for murder, and later the fiscal amended the indictment by including two other persons charged with the same offense and alleging conspiracy between the three. Five justices held that the amendment was not substantial. But that situation differs from the one at bar. The amendment there did not modify theory of the prosecution that the accused had killed the deceased by a voluntary act and deed. Here there is an innovation, or the introduction of another alternative imputation, which, to make matters worse, is inconsistent with the original allegations.
16

Applying our aforegoing disquisition in the 1946 case of Regala, we likewise ruled in the 1983 case of People v.Court of Appeals 17 that a postarraignment amendment to further allege conspiracy, is only a formal amendment not prejudicial to the rights of the accused and proper even after the accused has pleaded "not guilty" to the charge under the original information. We held in said case of People v. Court of Appeals: . . . The trial Judge should have allowed the amendment . . . considering that the amendments sought were only formal. As aptly stated by the Solicitor General in his memorandum, "there was no change in the prosecution's theory that respondent Ruiz willfully, unlawfully and feloniously attacked, assaulted and shot with a gun Ernesto and Rogelio Bello . . . . The amendments would not have been prejudicial to him because his participation as principal in the crime charged with respondent Ruiz in the original informations, could not be prejudiced by the proposed amendments." In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After plea, the fiscal presented an amended information wherein two other persons were included as co-accused. There was further allegation that the accused and his codefendants had conspired and confederated together and mutually aided one another to commit the offense charged. The amended information was admitted . . . . xxx xxx xxx Otherwise stated, the amendments . . . would not have prejudiced Ruiz whose participation as principal in the crimes charged did not change. When the incident was investigated by the fiscal's office, the respondents were Ruiz, Padilla and Ongchenco. The fiscal did not include Padilla and Ongchenco in the two informations because of "insufficiency of evidence." It was only later when Francisco Pagcalinawan testified at the reinvestigation that the participation of Padilla and Ongchenco surfaced and, as a consequence, there was the need for the information of the informations . . . . The aforegoing principle, by way of exception to the general rule, also appositely applies in the present controversy. Petitioner undoubtedly is charged as a principal in the killing of Ramon George Yu whom petitioner is alleged to have stabbed while two unknown persons held the victim's arms. The addition of the phrase, "conspiring, confederating and helping one another" does not change the nature of petitioner's participation as principal in the killing. Whether under the original or the amended information, petitioner would have to defend himself as the People makes a case against him and secures for public protection the punishment of petitioner for stabbing to death, using superior strength, a fellow citizen in whose health and safety society as a whole is interested. Petitioner, thus, has no tenable basis to decry the amendment in question. Furthermore, neither may the amendment in question be struck down on the ground that Herminia Altavas, Osmea Altavas and Renato Buhat would be placed in double jeopardy by virtue of said amendment. In the first place, no first jeopardy can be spoken of insofar as the Altavases are concerned since the first information did not precisely include them as accused therein. In the second place, the amendment to replace the name, "John Doe" with the name of Renato Buhat who was found by the Secretary of Justice to be one of the two persons who held the arms of the victim while petitioner was

stabbing him, 18 is only a formal amendment and one that does not prejudice any of the accused's rights. Such amendment to insert in the information the real name of the accused involves merely a matter of form as it does not, in any way, deprive any of the accused of a fair opportunity to present a defense; neither is the nature of the offense charged affected or altered since the revelation of accused's real name does not change the theory of the prosecution nor does it introduce any new and material fact. 19 In fact, it is to be expected that the information has to be amended as the unknown participants in the crime became known to the public prosecutor. 20 "Abuse of superior strength" having already been alleged in the original information charging homicide, the amendment of the name of the crime to murder, constitutes a mere formal amendment permissible even after arraignment In the case of Dimalibot v. Salcedo, 21 we ruled that the amendment of the information so as to change the crime charged from homicide to murder, may be made "even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused." In that case, several accused were originally charged with homicide, but before they were arraigned, an amended information for murder was filed. Understandably raised before us was the issue of the propriety and legality of the afore-described amendment, and we ruled, thus:

. . . it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. . . . the amendment could therefore be made even as to substance in order that the proper charge may be made. . . . The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant.
22

Thus, at the outset, the main consideration should be whether or not the accused had already made his plea under the original information, for this is the index of prejudice to, and the violation of, the rights of the accused. The question as to whether the changing of the crime charged from homicide to the more serious offense of murder is a substantial amendment proscribed after the accused had pleaded "not guilty" to the crime of homicide was, it should be noted, categorically answered in the affirmative by us in the case of Dionaldo v. Dacuycuy, 23 for then we ruled: . . . the provision which is relevant to the problem is Rule 110, Sec. 13 [now Sec. 14 under the 1985 Rules on Criminal Procedure] of the Rules of Court which stipulates: . . . The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. xxx xxx xxx

To amend the information so as to change the crime charged for homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the above-clouted provision. For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequences.
24

Indeed, petitioner forcefully and strongly submits that, in the light of this ruling, we are allegedly obliged to grant his prayer for the reversal of the assailed decision of respondent Court of Appeals and the affirmance of the trial court's ruling that the post-arraignment amendment sought by the People is prohibited under Section 14, Rule 110, of the 1985 Rules on Criminal Procedure, the same being a substantial amendment prejudicial to the rights of the accused. The cited ruling, however, differs from the case at bench because the facts herein sustain a contrary holding. As pointed out by the Court of Appeals: . . . the original Information, while only mentioning homicide, alleged: Danny Buhat, John Doe and Richard Doe as the accused; [sic] of Danny Buhat stabbing the deceased Ramon while his two other companions were holding the arms of Ramon, thus, "the Information already alleged superior strength"; and inflicting mortal wounds which led to the death of Ramon. Superior strength qualifies the offense to murder (Article 248). xxx xxx xxx Before us, the Information already alleged superior strength, and the additional allegation that the deceased was stabbed by Buhat while the arms of the former were being held by the two other accused, referring to John Doe and Richard Doe. . . xxx xxx xxx

If the killing is characterized as having been committed by superior strength, then to repeat, there is murder . . .

Also the case of Dacuycuy was mentioned, as a justification for not allowing change of designation from homicide to murder, but then the body of the Information in the Dacuycuy ruling did not allege averments which qualifies [sic] the offense of murder. The case before us instead is different in that the Information already alleges that Buhat attacked the deceased while his two other companions held him by the arms, "using superior strength." . . . We would even express the possibility that if supported by evidence, Buhat and the Altavases could still be penalized for murder even without changing the designation from homicide to murder, precisely because of aforementioned allegations. The proposed change of the word from homicide to murder, to us, is not a substantial change that should be prohibited.
25

In the matter of amending a criminal information, what is primarily guarded against is the impairment of the accused's right to intelligently know the nature of the charge against him. This right has been guaranteed the accused under all Philippine Constitutions 26 and incorporated in Section 1 (b), Rule 115, of the 1985 Rules on Criminal Procedure
2

7.

In a criminal case, due process requires that, among others, the accusation be indue form, and that notice thereof and an opportunity to answer the charge be given the accused; 28 hence, the constitutional and reglementary guarantees as to accused's right "to be informed of the nature and cause of the accusation against him." An accused should be given the necessary data as to why he is being proceeded against and not be left in the unenviable state of speculating why he is made the object of a prosecution, 29 it being the fact that, in criminal cases, the liberty, even the life, of the accused is at stake. It is always wise and proper that the accused be fully apprised of the charge against him in order to avoid any possible surprise that may lead to injustice. 30 In order to sufficiently inform the accused of the charge against him, a written accusation, in the form of a criminal information indicting the accused and subscribed by the fiscal, must first be filed in court. 31 Such information must state, among others, the name of the accused, the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense. 32 Evidently, the important end to be accomplished is to describe the act with sufficient certainty in order that the accused may be apprised of the nature of the charge against him. 33 In the event, however, that the appellation of the crime charged as determined by the public prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor. As this court, through Justice Moreland's authoritative disquisition, has held: . . . Notwithstanding apparent contradiction between caption and body, . . . the characterization of the crime by the fiscal in the caption of the information is immaterial and purposeless . . . the facts stated in the body of the pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this doctrine . . . is thoroughly in accord with common sense and with the requirements of plain justice. . . . Procedure in criminal actions should always be so framed as to insure to each criminal that retributive punishment which ought swiftly and surely to visit him who willfully and maliciously violates the penal laws of society. We believe that a doctrine which does not produce such a result is illogical and unsound and works irreparable injury to the community in which it prevails. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. . . . That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the matter therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal . . . For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor.It is the province of the court alone to say what the crime is or what it is named. If accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute. The plea of not guilty ought always to raise a question of fact and not of law. The characterization of the crime is a conclusion of law on the part of the fiscal. The denial by the accused that he committed that specific crime so characterized raises no real question. No issue can be raised by the assertion of a conclusion of law by one party and a denial of such conclusion by the other. The issues raised by the pleadings in criminal actions . . . are primarily and really issues of fact and not of law. . . . .

. . . Issues are not made by asserting and denying names. They are framed by the allegation and denial of facts. . . . To quibble about names is to lose sight of realities. To permit an accused to stand by and watch the fiscal while he guesses as to the name which ought to be applied to the crime of which he charges the accused, and then take advantage [sic] of the guess if it happens to be wrong, while the acts or omissions upon which that guess was made and which are the real and only foundation of the charge

against him are clearly and fully stated in the information, is to change the battle ground in criminal cases from issues to guesses and from fact to fancy. It changes lawyers into dialecticians and law into metaphysics that fertile field of delusion propagated by language. [Emphasis ours]
34

In other words, the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of the law alleged to have been violated, they being conclusions of law which in no way affect the legal aspects of the information, but from the actual recital of facts as alleged in the body of the information. 35 Petitioner in the case at bench maintains that, having already pleaded "not guilty" to the crime of homicide, the amendment of the crime charged in the information from homicide to murder is a substantial amendment prejudicial to his right to be informed of the nature of the accusation against him. He utterly fails to dispute, however, that the original information did allege that petitioner stabbed his victim "using superior strength". And this particular allegation qualifies a killing to murder, regardless of how such a killing is technically designated in the information filed by the public prosecutor. Our ruling in the case of People v. Resayaga 36 is clearly apropos: The appellant maintains that the Information filed in this case is only for Homicide. . . .

The contention is without merit. Reliance is placed mainly upon the designation of the offense given to it by the fiscal. . . . In the instant case, the information specifically alleges that "the said accused conspiring, confederating together and mutually helping one another, with intent to kill and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab with ice picks one Paulo Balane . . ." Since the killing is characterized as having been committed by "taking advantage of superior strength," a circumstance which qualifies a killing to murder, the information sufficiently charged the commission of murder. 7
3

On another aspect, we find merit in the manifestation of the Solicitor General to the effect that the respondent Court of Appeals erroneously supposed that petitioner and Renato Buhat are one and the same person, hence the non-inclusion of Renato Buhat as additional accused in its order allowing the amendment of the information. 38We also agree with the observation of the Solicitor General that the amended information filed in this case still fails to embody the correct identity of all of the persons found to be indictable in the Resolution of the Secretary of Justice. Explained the Solicitor General: In its Decision under review, the Court of Appeals erroneously supposed that Danny Buhat and Renato Buhat are one and the same person (CA Decision, 1st par.). This, however, is not correct because Danny Buhat and Renato Buhat are, in fact, brothers. Moreover, it was not Osmea Altavas and his wife Herminia Altavas who held the arms of the victim while Danny Buhat stabbed him. According to the Resolution of the Secretary of Justice, which is requoted hereunder: The evidence on hand clearly shows that while Osmea Altavas was continuously hitting Ramon Yu with his fists, his wife Herminia aided him by hitting the victim with a chair. It was also during this time that Danny Buhat and two (2) unidentified persons appeared and joined spouses Osmea and Herminia. One of the unidentified persons was later identified as Renato Buhat. Renato Buhat and the other unidentified person held the arms of Ramon Yu while Danny Buhat stabbed Ramon Yu twice on the chest which resulted in his death. The restraint on the person of Ramon Yu before he was stabbed was described by eyewitness Susan Labrador during the continuation of the preliminary investigation of the instant case on December 2, 1992. The Amended Information to be filed in this case must, therefore, reflect the above facts set forth in the aforesaid Resolution of the Secretary of Justice which was the result of the preliminary investigation (as reviewed by the Secretary of Justice) conducted in this case. Strangely enough, however, the Amended Information (Annex "C") that was subsequently filed before the Roxas City RTC in this case by Assistant City Prosecutor Alvin D. Calvez of Roxas City does not reflect the above facts set forth in the aforesaid Resolution of the Secretary of Justice. Said Amended Information in effect alleges that Osmea and Herminia Altavas were the ones who held the arms of the victim while Danny Buhat stabbed him, whereas, according to the Resolution of the Secretary of Justice abovecited, it was Renato Buhat and another unidentified person who held the arms of the victimwhile Danny Buhat stabbed him. According to the said Resolution of the Secretary of Justice, the participation of Osmea Altavas in the crime was that of hitting the victim with his fists, while . . . the participation of Herminia Altavas in the crime was that of hitting the victim with a chair. Verily, the statement of facts in the Information or Amended Information must conform with the findings of fact in the preliminary investigation (in this case, as reviewed by the Secretary of Justice) so as to make it jibe with the evidence . . . to be presented at the trial. . . . .

The Decision of the Court of Appeals in this case (which merely resolved affirmatively the legal issues of whether or not the offense charged in the Information could be upgraded to Murder and additional accused could be included in said Information) should not be

made the basis of the Amended Information herein as the said Decision does not constitute the preliminary investigation conducted in this case. Such Amended Information should be based on the findings of fact set forth in the Resolution of the Secretary of Justice, as above quoted and requoted. [Emphasis theirs]
39

The Solicitor General prays for at least the remanding of this case to respondent Court of Appeals for the correction of the error abovecited and for the ordering of the filing of the correct Amended Information by the City Prosecutor of Roxas City. Considering, however, that further delay of the trial of this case is repugnant to our inveterate desire for speedy justice and that the full and complete disposition of this case virtually serves this end, we see it to be within our jurisdiction and authority to order the correct amended information to be filed in this case without the need to remand the same to respondent appellate court. WHEREFORE, the petition is DISMISSED for lack of merit. The City Prosecutor of Roxas City is HEREBY ORDERED to file the correct Amended Information fully in accordance with the findings of fact set forth in the Resolution of the Secretary of Justice, dated February 3, 1994, and in disregard of the finding of the Court of Appeals in its Decision, dated March 28, 1995, in CA-G.R. SP No. 35554 to the effect that "Danny Buhat and Renato Buhat are one and the same person." SO ORDERED. G.R. No. 126518 December 2, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO BUGAYONG, accused-appellant.

PANGANIBAN, J.: The Information charged appellant with statutory rape committed "before and until October 15, 1994 . . . several times." In the instant appeal, he asserts that this allegation regarding the date of the commission of the offense violated his constitutional right "to be informed of the nature and cause of the accusation against him." The Case This is the main question raised before the Court by the appellant who seeks the reversal of the May 29, 1996 Decision 1 of the Regional Trial Court of Baguio City, which convicted him of rape and acts of lasciviousness. On January 5, 1995, First Assistant City Prosecutor Herminio C. Carbonell charged appellant with rape in an Information 2 which reads: The undersigned 1st Asst. City Prosecutor hereby accuses RODELIO BUGAYONG a.k.a. "BOY" of the crime of RAPE, at the instance, relation and written complaint of ARLENE CAUAN, a minor, 11 years of age. Copies of her statement are hereto attached and made an integral part of this INFORMATION, committed as follows: That sometime before and until October 15, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, and by means of force or intimidation, have carnal knowledge of the said complainant, several times, against her will and consent. When arraigned on July 10, 1995, 3 appellant, with the assistance of counsel, entered a plea of not guilty. After trial in due course, the court a quo rendered the assailed Decision, the dispositive portion of which we quote below:

WHEREFORE, premises considered, the accused RODELIO BUGAYONG is hereby found GUILTY of the crime of Acts of Lasciviousness committed on October 15, 1994 and he is hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months ofprision correccional as maximum, and of the crime of Rape he committed in 1993 for which he is sentenced to suffer the penalty of reclusion perpetua.
4

Hence, this appeal filed directly before this Court. 5 The Facts

Common Version of the Prosecution and the Defense Adopted by the lower court and the prosecution, appellant's summation of the facts of the case is reproduced hereunder:
6

Alberto Cauan and Leticia Yu Cauan got married on May 14, 1978. Out of this marital union they begot three (3) children, namely: ALBERT, HONEYLET and ARLENE[,] the private complainant herein. The spouses Alberto and Leticia Cauan separated way back in 1983. Albert and Arlene stayed with their mother Leticia while Honeylet stayed with her grandmother Anita Yu at Slaughter Comp[o]und, Baguio City. Later, Alberto and Leticia started living together with another woman and another man respectively, [with whom each of them] raised another family . . . . Leticia cohabited with the accused RODELIO BUGAYONG and had one (1) child, a minor by the name of CATHERINE BUGAYONG. For his part, ALBERTO CAUAN lived in with another woman with whom he has six (6) children. In October 1994, Leticia, the accused RODELIO BUGAYONG, ALBERT and the then 11 year old ARLENE (who was born on November 19, 1982) were residing at No. 13 MRR Queen of Peace, Baguio City. On October 15, 1994 accused RODELIO BUGAYONG had ARLENE hold his penis inside the room he share[d] with Leticia, At that time CATHERINE BUGAYONG who was six (6) years old was also inside the same room and her father, the accused was letting her sleep. Bugayong threatened to maim Arlene if she [did] not hold his penis. When the penis was already hard and stiff, he placed it inside the mouth of Arlene and a white substance came out from the penis. The young girl CATHERINE BUGAYONG saw this incident. Arlene testified that her stepfather had been doing the same act when she was still in Grade 3 and was nine years old. She also said that there were occasions when BUGAYONG played first with his penis then touched her vagina with his penis until a white substance [came] out [of] it and that was the time BUGAYONG would pull back his penis, or in the words of Arlene "idinidikit at pag may lumabas saka inilalayo. When asked to explain what she meant by "idinidikit", Arlene said that the penis of BUGAYONG partly entered [her] vagina and she got hurt. In any event, when LETICIA arrived home that day, CATHERINE reported to her that her father, RODELIO BUGAYONG, had Arlene hold his penis and put it inside the mouth of the former. Leticia called for RODELIO BUGAYONG and they talked. While the two (2) were talking, Alberto, the elder brother of Arlene, called for the latter and they went to the house of their grandmother ANITA YU at Slaughter Compound for fear that something [would] happen. Arlene reported the incident to her grandmother. Anita Yu told Arlene that she [would] not allow her to go to her mother and that she (YU) [would] file a case against Bugayong. In the morning of October 27, 1994, Arlene Cauan accompanied by her father Alberto Cauan and her aunt Marilyn Yu, Carmelita Yu and Rosie Yu went to the National Bureau of Investigation to file a complaint. They were advised by an NBI agent to go to the hospital to have Arlene examined by a Medico-legal Officer. Dr. HUMBELINA HARRIET M. LAZO examined Arlene and issued a certification stating therein her findings. The medical findings (EXH. "A") are hereunder quoted: CERTIFICATION TO WHOM THIS MAY CONCERN: This is to certify that I have personally seen and examined ARLENE CAUAN, 11 years old, female, child, a Grade V pupil from Slaughter Compound, who was allegedly sexually assaulted, . . . by father Alberto Cauan. NOI: Alleged Sexual Assault POI: #13 Queen of Peace Road, Baguio City TOI: 3:15 P.M. DOI: 15 October 1994 G/S: Conscious, coherent, ambulatory, afebrile. Skin: No abrasion, no hematoma. C/L: Clear breath sounds. Extremities: No edema. Perineal Inspection: Posterior fourchette not well coaptated.

Labia majora with erythema. Labia minora with erythema. Hymen: open with old healed laceration at 5 o'clock and 8 o'clock position[s]. V[a]gina: Admit one finger with ease. Laboratory Result: Sperm Cell Identification: Negative for sperm cell. Gram Stain: Smear shows moderate gram (+) cocci appearing singly and in pairs with rare (+) rods. Epithelial cells: few. Pus cells: 5-8. The following day, October 28, 1994 they went back to the NBI office. Arlene gave her sworn statement (EXH. "C"). Alberto Cauan also gave his sworn statement (EXH "E"). Pertinent portions of Arlene's statement given to the NBI read 4. Q. Of what nature [is the complaint you are] filing . . . against your stepfather? A. The nature of my . . . complaint against my "TATAY" (RODELIO BUGAYONG) is [that] he raped me several times ever since I was nine years old and while I was in Grade 3. 7. Q. Were there other instances that your father sexually molested you? A. I could no longer remember how many times and everytime he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid already c[a]me out [of] his penis, he would put his penis into my vagina and force it inside and he [would] put the sticky liquid inside my vagina. He did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out. Ruling of the Trial Court The trial court held that the accused raped the victim in 1993, not in 1994. Notwithstanding the rather encompassing allegation in the Information that the crime was committed "before and until October 15, 1994," the trial court ruled that it could legally convict the accused for the crime committed in 1993. The primordial consideration in determining the sufficiency of the averment in the Information as to time is whether the accused was accorded the opportunity to prepare a defense. In this case, the trial court observed that he was not so deprived. Furthermore, it noted that the Information charged more than one offense, but that the accused failed to interpose an opposition. The Issues In his Brief, appellant raises the following issues: I The lower court erred in convicting the accused-appellant [of] statutory rape that was proved to have been committed in 1993 under an information alleging that the offense was committed on or before October 15 of the year 1994. II

The lower court erred [i]n convicting the accused [of] statutory rape [on] an unspecified date in 1993.
7

In fine, he poses the question of whether he may be convicted of rape committed in 1993, under the present Information, which accused him of committing the said crime "before and until October 15, 1994 . . . several times." In other words, the issue is whether appellant's conviction for the said act is warranted under the Information. In resolving this issue, the Court will determine whether the averment in the Information in respect to the time of the commission of the crime sufficiently apprised appellant of the "nature and cause of the accusation against him." 8 The Court's Ruling The appeal is devoid of merit. Main Issue: Sufficiency of the Information Appellant argues that he cannot be convicted of a crime committed in 1993 under the Information that accused him of rape "before or until October 15, 1991." He insists that the Information "refer[red] to dates shortly before and until October 15, 1994," but that the trial court "unnecessarily stretched the meaning of the phrase . . . to include any date before it." 9 Thus, appellant claims a violation of his constitutional right to be informed of the nature and cause of the accusation against him. He maintains that he was unable to prepare properly for his defense or to anticipate the evidence to be controverted. We disagree. Precise Date Need Not Be Alleged in the Information Although the Information alleged that the crime was committed "before and until October 15, 1994," the trial court did not err in convicting appellant of rape committed in 1993. It is doctrinal that the precise time of the commission of an offense need not be alleged in the complaint or information, unless time is an essential element of the crime charged. 10 Section 11, Rule 110 of the Rules of Court, buttresses this view. Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. It bears emphasis that the date is not an essential element of rape, for the gravamen of the offense is carnal knowledge of a woman. 11 The time-tested rule is that "when the 'time' given in the complaint is not of the essence of the offense, it need not be proven as alleged and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action." 12 Explaining that the specific date or time need not always appear in the complaint or information, the Court held:

It is true that the complaint must allege a specific time and place when and where the offense was committed. The proof, however, need not correspond to this allegation, unless the time and place [are] material and of the essence of the offense as a necessary ingredient in its description. The evidence is admissible and sufficient if it shows that the crime was committed at any time within the period of the statute of limitations and before or after the time stated in the complaint or indictment and before the action is commenced.
13

In US v. Dichao, 14 the Court also ruled that "the question [of] whether the allegations of the information are sufficiently definite as to time and the question which arises [from] a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles." Applying the aforecited rule in People v. Borromeo, 15 the Court elucidated: "[A] difference of one (1) year or twelve (12) months [is] merely a matter of form and does not prejudice the rights of the accused. . . . . The phrase 'on or about' employed in the information does not require the prosecution to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant." Indeed, the determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his corollary inability to defend himself properly. The records of this case belie appellant's claim of surprise. No Surprise on the Part of the Accused The text of the Information filed in the court below clearly alleged that appellant committed rape "before or until October 15, 1994. . . . several times." If vagueness afflicted the aforementioned text of the Information, it was cured by the victim's Sworn Statement, which was expressly made an integral

part of the Information. The victim categorically alleged that she had been raped by appellant in 1993 when she was in grade three, as the pertinent portions of the Sworn Statement indicate: 04. Q Of what nature [is the complaint you are] filing . . . against your stepfather? A The nature of my filing a complaint against my "TATAY" is [that] he raped me several times ever since I was nine years old and while I was in Grade 3. 05. Q Could your please narrate to me how this happened? A Ever since I was [in] Grade 3, my stepfather always forced me to play with his penis and whenever I refused, he would threaten to hurt me by saying "KUNG HINDI KA PAPAYAG, LULUMPUHIN KITA", so I played with his penis until it was fully erect, then he [would] tell me to get out of their room. 06. Q Was your mother ever around, when he forced you to play with his penis? A No sir, he would always make it a point that my mother was out of the house when be molested me. 07. Q [Were] there other instances that your father sexually molested you? A I could no longer remember how many times sir, the only thing that I could remember is he did it to me many times and ever[y]time he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid [would] already come out [of] his penis, he would put his penis into my vagina, and force it inside and he [would] put the sticky liquid inside my vagina[;] he did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out. 08. Q Did he ever repeat the forcing of his penis into your vagina? A Many times sir, he would always pin me down [o]n the bed and force his penis in[to] my vagina. 09. Q When was the last time he molested you? A The last time he sexually molested me was when my younger sister, CATHERINE BUGAYONG caught us. 10. Q When was this?

A Last October 15, 1994 sir, my sister CATHERINE caught me while my stepfather was forcing me to swallow his penis and letting me play with it. My sister CATHERINE told my mother about the incident when she arrive[d], then my mother talked to me and asked me if it was true[;] at first I denied it because my "TATAY" might hurt me, but after a while confessed to her so she talked to my stepfather and they had a fight. When my relatives learned of the incident, they fetched me at home and brought me to my grandmother's house at Slaughter House Compound." (Emphasis supplied.)
In effect, the Sworn Statement substantiated the averments in the Information. Hence, appellant was sufficiently apprised that the "several" instances of rape committed "before and until October 15, 1994," which were asserted in the body of the Information, included the sexual assault on the victim in 1993 as alleged in the said Statement. Furthermore, appellant could not have been oblivious to the victim's Sworn Statement, for he requested and was given an opportunity to rebut the same in his Motion for Reinvestigation. Below, we repeat with approval the trial court's astute refutation of appellant's feigned ignorance:

Besides, it can not be said that the accused was surprised and deprived of the chance to prepare for trial because of the allegations of several incidents of rape he committed "sometime before and until October 15, 1994." The records will show that before he was arraigned under the present information the accused moved for a reconsideration of the

resolution of the City Prosecutor of Baguio finding probable cause against him and asked for a re-investigation of the case. The Court granted his motion and ordered the City Prosecutor to conduct a re-investigation of the case. The accused was given the chance to rebut the sworn statement of the private complainant Arlene Cauan contained in Exhibit "C". And in this sworn statement, Arlene narrated what happened not only on October 15, 1994; she also related other incidents occurring before the said date, more specifically the one that took place in 1993 when she was in Grade 3. The accused, therefore, was fully aware, or at least made aware, that he would be charged with rape committed several times before and until October 15, 1994.
16

In arguing that "before and until October 15, 1994" could only mean "on October 15, 1994 or within a reasonable time before such date" 17 and not 1993, appellant asks rhetorically: "What if the prosecution proved that the rape was committed in 1985?" 18 The question, indeed, is academic. The Sworn Statement alleged and the appellant is here convicted of a rape committed in 1993, not 1985. There is basis to hold him liable for the rape committed in 1993, but none for a putative crime committed in 1985. Waiver of the Right to Object to the Duplicitous Information It will be noted that appellant was charged with rape committed "before and until October 15, 1994 . . . several times." Said acts are alleged in only one Information which as a general rule, is defective for charging more than one offense. 19 Sec. 1, Rule 117 of the Rules of Court, states that the accused may move to quash the information "at any time before entering his plea." However, appellant failed, within the prescribed period, to file such motion on the ground of duplicity. He is thus deemed to have waived the defect in the Information. It is axiomatic that "when the accused fails, before arraignment, to move for the quashal of such information and goes to trial thereunder, he thereby waives the objection, and may be found guilty of as many offenses as those charged in the information and proved during the trial." 20 To recapitulate, appellant cannot be said to have been deprived of his constitutional right to be informed of the accusation against him. Despite the duplicitous nature of the Information, he did not object to such defect. Moreover, he was given the chance to defend himself in court and to crossexamine the complainant. There was no deprivation of due process here. Sufficiency of Evidence In his Brief, appellant did not challenge the sufficiency of the evidence preferred to show that he committed rape in 1993. Notwithstanding such failure, the Court rigorously examined the records and arrived upon the conclusion that his guilt had been established beyond reasonable doubt. The victim's clear, categorical and straightforward testimony indubitably demonstrated the culpability of appellant for the dastardly acts committed before and until October 15, 1994, viz.: Q. Do you know Arlene, will you please tell the Court if in the month of October Rodelio Bugayong did something to you? A. Yes, sir. Q. What did he do to you? A. He had his penis held by me, sir. Q. Where did this happen? A. At Queen of Peace, sir. Q. In your house? A. Yes, sir. Q. Who were the persons there at the time when Bugayong told you to hold his penis, in your house at the time? A. I was with my younger stepsister. PROS. DIZON:

Q. How old is this younger sister? A. Six (6) years old. Q. In 1994, how old was she? A. Five (5). Q. So you mean to say younger stepsister, this stepsister is the daughter of Bugayong? A. Yes, sir. Q. I see! Now, what did you do when Bugayong told you to hold his penis? A. I just held it. Q. Why did you hold it? A. Because I was afraid of him. Q. Why, what did he say, if any, to make you afraid of him? A. He told me that "lulumpuhin kita" (I will maim you). Q. In what place of the house did this incident happen? A. In their room with my mother. Q. Who were in the room at the time aside from you and Rodelio? A. My stepsister. Q. Your stepsister [was] inside the room at the time or she was outside the room? A. She was inside the room but my stepfather was letting her sleep. Q. Was she asleep at that time? A. Yes, sir. Q. Now, so did you hold the penis of Bugayong the accused? A. Yes, sir. Q. What else did he tell you to do, if any? A. He placed his penis in my mouth, sir. Q. Was the penis hard at that time or stiff? A. Yes, sir. Q. And what did he do when his penis was already inside your mouth? A. Whenever his penis [was] . . . placed inside my mouth I [would] go out to drink water because I [would feel] like vomitting, sir. PROS. DIZON:

Q. You say whenever[;] you mean to say that was not the only time he did that to you? A. No, sir. Q. How many times did he do that to you? A. When I was still in Grade 3. Q. And how young were you when you were in Grade 3? ATTY. ESTRADA: At this point in time, Your Honor, we now object to this line of questioning because this was never stated in the information. PROS. DIZON: This is preliminary, Your Honor. ATTY. ESTRADA: Because what is being elicited now is that incident when she was in Grade 3. PROS. DIZON: We have to consider the tender age of the accused. COURT: I will allow the prosecution to propound additional questions. ATTY. ESTRADA: We submit, Your Honor. PROS. DIZON: Q. How old were you when you were in Grade 3? A. Nine (9) years old. Q. Now, why did you feel like vomitting whenever he did that thing to you? A. Because whenever he [put] his penis inside my mouth it seem[ed] like pus [was] coming out [of] his penis. Q. What [was] the color, if you know? A. White. Q. Now, aside from all those things, do you remember if in the month of October, the same month, 1994, he did anything else to you aside from what you have relayed before this Court? A. Sometimes he [put] his penis in my vagina and when something sticky . . . COURT: Agree on the translation.

ATTY. ESTRADA: We object to that translation. INTERPRETER: Whenever the penis of Rodelio Bugayong touche[d] my vagina something . . . ATTY. ESTRADA: May we just have the word "idinidikit" . . . COURT: All right! The word "dikit" will remain and [the] translation touch. INTERPRETER: Whenever the penis of Rodelio touche[d] my vagina something white [would come] out and he [would take] his penis farther from me. PROS. DIZON: Before [d]oing that he [would] first [play] with his penis and then the moment . . . COURT: You agree first on the translation. PROS. DIZON: There were occasions when he brought out his penis and touch[ed] . . . my vagina [with it] but before doing so he played with his penis until the sticky white substance . . . c[a]me out and that [was] the time he touched my vagina, the penis touched my vagina. I think that is the answer. I do not know if counsel is agreeable. COURT: Will you please read back the translation? Stenographer reading back the answer, as follows: There were occasions when he brought out his penis and touch[ed] . . . my vagina [with it] but before doing so he playe[d] with his penis first until the sticky white substance . . . c[a]me out and that [was] the time the penis touched my vagina. COURT: If I remember correctly the testimony of the victim and Tagalog was that "idinidikit at pag may lumabas saka inilalayo". PROS. DIZON: Okay, we submit. INTERPRETER: Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back. COURT:

Official translation, Mrs. Lockey? Stenographer reading back the translation, as follows: Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back. ATTY. ESTRADA: I think the interpretation is not accurate. PROS. DIZON: May we just be allowed to ask the witness? Q. Aside from putting his penis in[to] your mouth, what other things did he do to you in the month of October and previous to that, if any? COURT: Defense counsel please assist the interpreter. INTERPRETER: The penis of Rodelio touche[d] my vagina and sometimes he . . . PROS. DIZON: We really have to ask the assistance of . . . COURT: Again! INTERPRETER: A Sometimes his penis touche[d] my vagina but before doing that he played first with his penis until a white substance [came] out of his penis and after that his penis touche[d] my vagina. PROS. DIZON: Q. I see! How may times did he do that to you? A. Maybe five (5) times or ten (10) times, sir. Q. During th[o]se times he did that to you[,] were there people in the house? A. None, sir. PROS. DIZON: Q. And in those five (5) or ten (10) times, where did this happen, where did he do that to you, in what place in the house? A. In our house, sir. Q. In what particular place in the house? A. In their room, sir.

Q. The room of Bugayong and your mother? A. Yes, sir. Q. Why did you not object? A. Because I was afraid of what he told me that . . . "lulumpuhin niya ako". Q. Now, every time he did that thing to you, that is the touching of . . . your vagina [with his penis], what did you feel, if any? Do you not feel any pain? A. I got hurt, sir. Q. Now, you remember the last time he had his penis touch your vagina? A. I could not remember, sir. Q. Now, you said that his penis touched your vagina. You mean to say the penis [] we will withdraw that in the meantime. We will rephrase it rather. Q. You said that his penis touched your vagina. You said "idinikit". Will you please tell the Court what do you mean by "idinikit" or touched your vagina?

A. He had his penis partly enter my vagina that is why I got hurt, sir.

21

The foregoing shows that appellant sexually assaulted complainant in 1993 when she was 10 years old. Thus, the trial court correctly convicted him of statutory rape under Article 335 (3) of the Revised Penal Code. Moreover, appellant is also guilty of acts of lasciviousness committed on October 15, 1995. The trial court correctly awarded P50,000 as indemnity ex delicto, an amount which is automatically granted to the offended party without need of further evidence other than the fact of the commission of rape. 22 Consistent with recent jurisprudence, appellant should also be ordered to pay the victim the additional amount of P50,000 as moral damages. In People v. Prades, 23 the Court resolved that "moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice." Republic Act 7659, which amended the Revised Penal Code, prescribes, among others, the death penalty where the rape victim is under is years of age and the offender is the common-law spouse of her mother. The amendatory law, however, cannot be applied in this case, because there is no showing that the crime was committed after the effectivity of the said law. WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED, with the MODIFICATION that Appellant Rodelio Bugayong is ordered to pay Complainant Arlene Cauan P50,000 as indemnity and the additional amount of P50,000 as moral damages, or a total of P100,000. Costs against the appellant. SO ORDERED.

G.R. No. 130922. November 19, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO REQUIZ alias Fred, accused-appellant. DECISION
BELLOSILLO, J.:

ALFREDO REQUIZ appeals from the Decision of the Regional Trial Court of Pasay City finding him guilty of violating Sec. 15 of RA 6425, The Dangerous Drugs Act of 1972, as amended by RA 7659,[1] and sentencing him to reclusion perpetua and to pay a fine of P5,000,000.00. The object of the crime consisting of one (1) pack of methamphetamine hydrochloride (commonly known as shabu) weighing 248.66 grams was ordered forfeited by the trial court in favor of the Government, to be turned over to the Dangerous Drugs Board for proper disposition.[2] The facts: In the early morning of 2 July 1996 a police informant by the name of "Boy Mata" reported at the PARAC II headquarters in Quezon City that he met accused-appellant Alfredo Requiz who lived along Estrella Street in Pasay City and who could sell large quantities of shabu. Police Inspector Ferdinand Marticio, Deputy Intelligence Officer of PARAC II, immediately dispatched SPO4 Junvoy Yacat and "Boy Mata" to meet accused-appellant and conduct a "test-buy." They were further instructed, if the "test-buy" was successful, to close a deal for the purchase of about 250 grams of shabu. Marticio gave Yacat P200.00 and some expensive pieces of jewelry to convince accused-appellant of his capacity to buy large quantities of drugs. Yacat and "Boy Mata" then proceeded to the house of accused-appellant Alfredo Requiz on Estrella St., Pasay City. Requiz was not at home, but one Conrado de la Cruz invited them in. "Boy Mata" immediately left the house to look for accusedappellant and returned after ten (10) minutes with someone who introduced himself as "Fred" (accused-appellant Alfredo Requiz). Yacat gave "Boy Mata" the P200.00 to buy shabu from Requiz for the groups consumption. Requiz immediately produced the stuff from his pocket and prepared the sniffing paraphernalia. The group had a "jamming" session during which Yacat negotiated with Requiz for the sale of 250 grams of shabu, 50 grams of which, he explained, would be for his consumption and 200 grams would be sent to his cousins in Samar. Requiz agreed to deliver the drugs in the same place at 5:00 o'clock that afternoon. Thereafter, Yacat and "Boy Mata" returned to the headquarters of PARAC II in Quezon City and reported to Marticio that the projected sale would be at 5:00 oclock in the afternoon. Marticio immediately prepared the "buy-bust" money in the amount of P43,000.00 in paper bills which were laced with ultra-violet fluorescent powder on top and at the bottom of the bundle. Then he organized his "buy-bust" team composed of Yacat, Police Officer Abelardo Ramos and himself as Team Leader. At 1:30 in the afternoon the team proceeded to Harrison Plaza for the final briefing. Shortly before 5:00 oclock, Yacat drove his car towards Estrella Street followed by Marticio and Ramos in another car. Upon reaching the place, Yacat parked his vehicle facing Harrison Street where Marticio and Ramos could see and observe him from a distance.

Yacat waited for about ten (10) minutes. Then accused-appellant Requiz appeared and asked Yacat if he had the money. Yacat showed him the bundle of money. Requiz then left and returned with something wrapped in a newspaper. He went into the car through the right front door and handed the illegal merchandise to Yacat who unwrapped the package and, after being satisfied that it was indeed shabu, handed the marked money to accused-appellant. Simultaneously, Yacat switched on the "hazard" lights of his car, a pre-arranged signal to Marticio and Ramos that the sale had been consummated. Marticio and Ramos inched their way towards the car of Yacat. Marticio then entered through the right front door and arrested Requiz, while Ramos entered through the rear door. Stunned, Requiz timidly submitted himself to the arresting officers. He was handcuffed. He was then ordered by Marticio to accompany him to the house where they had the "jamming" session earlier in the morning, and there he found Conrado de la Cruz whom he invited for questioning at the PARAC II headquarters in Quezon City.[3] Acting on the request of PARAC II for laboratory examination,[4] Forensic Analyst Ophelia Sotelo of the PNP Crime Laboratory conducted examinations on both hands of Requiz and the specimen submitted by the arresting officers consisting of a white crystalline substance packed in cellophane. The examinations yielded positive results, i.e., ultraviolet fluorescent powder was found on both hands of Requiz and the white crystalline substance was identified as methamphetamine hydrochloride weighing 248.99 grams.[5] Accused-appellant gave a different version. He denied having sold shabu to the police officers claiming that when he came to the house of Conrado de la Cruz at around 5:00 o'clock in the afternoon of 28 June 1996 he saw de la Cruz seated in a sofa with a short, stout man in civilian clothes who suddenly pulled a gun and arrested him together with de la Cruz allegedly for drug pushing. He claimed that during intense interrogation at the PARAC II headquarters in Quezon City he was forced to admit that he was a pusher. He was likewise brought to a crime laboratory at around 2:00 o'clock in the morning of 29 June 1996 where a forensic chemist placed two (2) P100.00 bills dusted with ultraviolet fluorescent powder on his hands to transfer the powder to his palms. He further alleged that after four (4) days from the date of his arrest the police decided to file the instant complaint, making it appear that he was apprehended on 2 July 1996 and not 28 June 1996 to escape criminal liability for detaining him for more than three (3) days without filing any charges against him. He contends in this appeal that the trial court erred in: (a) not finding that the Information was defective; (b) believing that the alleged "buy-bust" operation really took place; and, (c) finding that he was guilty beyond reasonable doubt of the crime charged.

The errors raised hinge on the credibility of witnesses. As we have consistently stressed in the majority of appeals in criminal cases, appellate courts give weight, and at times even finality, to the findings of the trial judge who is in a better position to determine the credibility of witnesses as he can observe firsthand their demeanor and deportment while testifying. Appellate courts do not have the vantage position of the trial judge. They only rely on the cold records of the case and on the judge's perception of the evidence before him. There is no doubt from the records that accused-appellant was caught in flagrante delicto, i.e., in the act of selling shabu. The evidence for the prosecution is both substantial and convincing. At its core is the testimony of SPO4 Junvoy Yacat, the poseur-buyer in the "buy-bust" operation conducted by a team of police officers from PARAC II. He categorically pinpointed accused-appellant as the person who sold to him approximately 250 grams of shabu, thus Q: What happened after Alfredo Requiz arrived? x x x x A: He asked me: "dala mo ba ang pera?" and I replied "Oo naandito. Q: When you told him that you have (sic) the money, what was his reaction? A: Alfredo Requiz told me: "hintayin mo ako sandali, babalik ako. x x x x Q: What happened when he returned? A: He went inside my car bringing with him the suspected shabu wrapped in a newspaper x x x x Q: How did you know that it was methamphetamine hydrochloride or shabu? A: After I unwrapped the same, your Honor. Q: After unwrapping the same, what did you see? A: Alfredo Requiz held (sic) to me the newspaper which I unwrapped and saw the physical appearance of the shabu. Q: Please describe to us the shabu after unwrapping the same? A: It was placed inside the sealed cellophane x x x x Q: After this thing was handed to you by Alfredo Requiz, what else transpired next? A: Alfredo Requiz demanded the money. Q: After demanding the money from you, what did you do? A: I handed to him the marked money and he received it with his bare hands. Q: How thick is the wad of money which you handed to him? A: Approximately 5 inches thick, sir. COURT: You said mark money, why do you say it is mark money? A: Because the same was dusted with ultraviolet powder, sir.[6]

Such testimony of SPO4 Yacat was strongly reinforced by the individual testimonies of Police Inspector Marticio, team leader of the "buy-bust" operation who himself arrested accused-appellant, and Forensic Analyst Ophelia Sotelo who concluded on examination that what was taken from accused-appellant was shabu and that the latter was tested positive of ultraviolet fluorescent powder on both hands. As can be gleaned from the assailed decision of the trial court, the narration of events by the police officers was positive, credible, probable and entirely in accord with human experience. It bears all the earmarks of truth that it is extremely difficult for a rational mind not to give credence to it. The police officers testified in a clear, precise and straightforward manner, and even the rigid cross-examination by the defense and searching questions by the court failed to disturb the essence of their testimonies. The allegation of accused-appellant that he was just a victim of a police frame-up - arrested for no apparent reason, forced to admit ownership of the subject shabu, and directly incriminated for drug trafficking - is simply too hollow and obviously selfserving. Stronger proof is needed to overcome the findings of the trial court. Indeed, we cannot discern any improper motive, and no such motive was ever imputed to them by accused-appellant, as to why the police would fabricate evidence and falsely implicate him in such a serious offense. From all the attendant circumstances, it appears that these police officers were simply carrying out their mission to curb drug abuse. The absence of evidence as to the improper motive actuating the principal witnesses for the prosecution strongly sustains the conclusion that no such improper motive existed, and that their testimony is worthy of full faith and credit. It would not be amiss to point out that the prosecution witnesses are not just ordinary witnesses but law enforcers. As compared to the baseless disclaimers of accused-appellant, the narration of the incident by the prosecution witnesses is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duty in the absence of proof to the contrary. [7] We find no reason
from the evidence at hand to discredit their declarations.

As to his claim that he was framed, the exact term should have been "entrapped." A "buy-bust" operation is a form of entrapment whereby narcotics agents employ a poseur-buyer to trap or capture drug traffickers. Oftentimes it is the only effective way of apprehending drug pushers in the act of peddling their prohibited wares. In the instant case, records show that accused-appellant had a ready supply of shabu for sale and disposition to anyone willing to pay the price. When police officer Yacat met accused-appellant for the first time, he readily quoted his price and set the actual delivery the very same day. The acts of the police officers from PARAC II clearly constitute entrapment which is not prohibited by law.

Accused-appellant insists that the Information is fatally defective since it alleged that the crime was committed on 2 July 1996 when the truth is he was actually arrested on 28 June 1996 or four (4) days before 2 July 1996. He relies, albeit erroneously, on the testimony of SPO2 Antonio Canoy who purportedly testified that on 29 June 1996 the mother of accused-appellant, Corazon Requiz, went to him at the Pasay City Police Station looking for her son. The argument is specious. Primarily, there is nothing in the testimony of SPO4 Canoy which shows that it was Corazon Requiz who approached him on 29 June 1996 looking for her son, herein accused-appellant. SPO4 Canoys testimony reads Q: On that said date, 29 June 1996, at around 7:00 in the morning, do you recall a woman by the name of Corazon Requiz approaching you, while you were on duty? A: I saw a woman approaching me and looking for her son, but I do not recall the name of the woman, Maam. Q: Do you recall the reason why this woman who approached you was looking for her son? A: According to her, her son was arrested together with another man by an unidentified law enforcer, Maam (underscoring supplied).[8]

Moreover, other than the self-serving allegation of accused-appellant, we find no evidence on record that he was actually arrested on 28 June 1996. On the contrary, both testimonial and documentary evidence clearly and unequivocally point to 2 July 1996 as the date of the arrest, and not 28 June 1996.[9] But even assuming ex-gratia argumenti that the prosecution committed an error in the allegation of the date of the commission of the crime in the Information, such mistake does not impair the validity of the Information. Time is not a material ingredient of drug pushing. Hence it need not be stated with precision, and the criminal act may be alleged to have been committed at any time as near to the actual date on which it was committed as the Information or Complaint will permit.[10] Discrepancy of a few days between the time of the sale of illegal drugs set out in the Information and that established by the evidence does not constitute an error so serious as to warrant reversal of a conviction solely on that score. It does not affect the essential rights of accused-appellant, as the defect is merely formal rather than substantial in character.[11] The defense likewise strives to establish the innocence of accused-appellant by claiming that no drug pusher in his right mind would sell to a stranger 250 grams of shabu on a busy street like Estrella Street, and certainly not in broad daylight, inasmuch as activities such as this are done clandestinely. We are not persuaded. If pushers peddle drugs only to persons known to them, then drug abuse would certainly not be as rampant as it is today and would not pose a serious threat to society. We have found in many cases that drug pushers sell their

prohibited articles to any prospective customer, be he a stranger or not, in private as well as in public places, even in the daytime. Indeed, drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the law. Hence, what matters is not the existing familiarity between the buyer and the seller or the time and venue of the sale, but the fact of agreement and the acts constituting sale and delivery of the prohibited drugs.[12] Finally, accused-appellant points to certain circumstances which supposedly show that the "buy-bust" operation could not have taken place, to wit: (a) Yacat, the arresting officer, participated in the "pot-session" with accused-appellant together with Conrado de la Cruz and "Boy Mata;" (b) The prosecution failed to present as witnesses "Boy Mata," the police informer, and Mr. Gene Palomo, the movie director who lent the money and pieces of jewelry used by the police during the "buy-bust" operation; (c) The prosecution failed to explain why Conrado de la Cruz was freed without any charges being filed against him; and, (d) It was highly impossible for the ultraviolet powder to have remained on the hands of accused-appellant after several hours, and after touching so many things prior to his physical examination by Forensic Analyst Ophelia Sotelo. As correctly observed by the Solicitor General, the foregoing circumstances do not disprove the fact that accused-appellant actually sold 248.66 grams of shabu to a police officer. In the prosecution for the sale of illegal drugs, like shabu, what is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti. The circumstances enumerated above are of no great significance in establishing the guilt or innocence of accusedappellant. What is important is the fact that the poseur-buyer received shabu from accused-appellant and the same was presented as evidence in court. Moreover, the matter of presentation of witnesses by the prosecution is not for accused-appellant or even the trial court to decide. Discretion belongs to the prosecutor as to how the prosecution should present its case. He has the right to choose whom he would present as witnesses. Certainly, the non-presentation of "Boy Mata" and Gene Palomo in court is not a crucial debacle for the prosecution. As the prosecutor had other witnesses - police members of the "buy- bust" team - who could sufficiently prove the criminal operation of accused-appellant, he could dispense with the evidence to be provided by "Boy Mata" and Gene Palomo, which would merely be corroborative. On the presence of ultraviolet fluorescent powder on the hands of accusedappellant even after the lapse of several hours prior to his physical examination, Forensic Analyst Ophelia Sotelo, an expert witness, testified that the ultraviolet fluorescent powder would remain for as long as the subject did not wash his hands.

All told, this Court is satisfied that the evidence against accused-appellant has overcome the constitutional presumption of innocence and established his guilt beyond any scintilla of doubt. We sustain the penalty ofreclusion perpetua and fine of P5,000,000.00 imposed by the trial court on accused-appellant, it appearing that it is in accordance with Sec. 15, RA 6425, The Dangerous Drugs Act of 1972, as amended by RA 7659. Illegal drug trade is the scourge of our society. Drug pushers are merchants of death, "killers without mercy who poison the mind and deaden the body." [13] Their pernicious commodities cause so much physical, mental and moral pain not only to the immediate victims of their greed, but also, and more especially, to the families of their victims. Hence, they deserve no mercy. WHEREFORE, the assailed Decision of the trial court dated 20 June 1997 convicting accused-appellant ALFREDO REQUIZ of violating Sec. 15 of The Dangerous Drugs Act of 1972, as amended by RA 7659, and sentencing him to reclusion perpetua as well as to pay a fine of Five Million Pesos (P5,000,000.00), is AFFIRMED. Costs against accused-appellant. SO ORDERED.
G.R. No. 128096 January 20, 1999 PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent. ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1

However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. The recommendation was approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-the-fact. Upon motion by all the accused in the 11 information, 3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4 After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations 5before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher. On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No. 1094 11(sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the Philippines on February 5, 1997. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day 15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. xxx xxx xxx Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases.

To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and decide the cases (Empahasis supplied)
16

Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all cases pending in any court over which trial has not begun as to the approval hereof." Petitioner argues that: a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial

Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975) b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 2304723057 to procedural due process.

c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26 (1), Article VI of the Constitution.
17

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an expost facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan. 18 They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law. The said special court is retained in the new (1987) Constitution under the following provisions in Article XI, Section 4: Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20 of Batas Pambansa Blg. 123, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases: Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher. (f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as-Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employee, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 8249 states: Sec. 7. Transitory provision This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied)

The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further amended to read as follows: Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the pricipal accused are afficials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineer, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 4-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment, resolutions or orders of regular court where all the accused are occupying positions lower than grade "27," or not otherwise covered by the preceding enumeration. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them.

xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 7975 reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, 29 contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and

(4) must apply equaly to all members of the same class,

all of which are present in this case.

35

The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonables of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commence and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory

provision of R.A. 8249. 39 R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40 Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post facto law is one (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed.

(d) which alters the legal rules of evidence and recieves less or different testimony that the law required at the time of the commission of the offense on order to convict the defendant.
43

(e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.
44

This Court added two more to the list, namely: (f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful;

(g) deprives a person accussed of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of a amnesty.
45

Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of their nature, and provide dor their punishment. 48 R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. 54 In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome. 56 Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all

the provisions of the law are germane to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts. 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations, 61 and not by the evidence presented by the parties at the trial. 62 As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers and employees, including those in goverment-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accussed PNP officers. In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions. 65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the informations." 66 As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of Court mandates: Sec. 9 Couse of accusation The acts or omissions complied of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such from as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the facts." 67The real nature of the criminal charge is determined not from the caption or preamble of the informations nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. 68 The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact andcircumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is presumed to have no indefendent knowledge of the facts that constitute the offense." 70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations 71 for murder reads: AMENDED INFORMATIONS The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows

That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery evident premeditation and taking advantage of their superior strenghts did then and there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and members of the Philippine National Police are charged herein as accessories after-the-fact for concealing the crime herein above alleged by among others falsely representing that there where no arrest made during the read conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY LAW. While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intevenors as among the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the said accessories concelead "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion between of law, not a factual avernment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policeman and . . . special policemen appointed and provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who denied in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetreated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused for the purpose of extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose they shot; and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial.

In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office "does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, 73 not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the said cases.
1wphi1.nt

SO ORDERED. Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.

G.R. No. 119063 January 27, 1997 JOSE G. GARCIA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and ADELA TEODORA P. SANTOS, respondents.

DAVIDE, JR., J.: The issue here is whether the Court of Appeals committed reversible error in affirming the trial court's order granting the motion to quash the information for bigamy based on prescription. On 28 August 1991, petitioner Jose G. Garcia filed with the (Quezon City Prosecutor's Office an "Affidavit of Complaint" 1 charging his wife, private respondent Adela Teodora P. Santos alias "Delia Santos," with Bigamy, Violation of C.A. No. 142, as amended by R.A. No. 6085, and Falsification of Public Documents. However, in his letter of 10 October 1991 to Assistant City Prosecutor George F. Cabanilla, the petitioner informed the latter that he would limit his action to bigamy. 2 After appropriate proceedings, Assistant Prosecutor Cabanilla filed on 8 January 1992 with the Regional Trial Court (RTC) of (Quezon City an information, 3 dated 15 November 1991, charging the private respondent with Bigamy allegedly committed as follows: That on or before the 2nd day of February, 1957, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being previously united in lawful marriage with REYNALDO QUIROCA, and without the said marriage having been dissolved, (or before the absent spouse has been declared presumptively dead by a judgment rendered in the proper proceedings), did then and there wilfully, unlawfully and feloniously contract a second marriage with JOSE G. GARCIA, which marriage has [sic] discovered in 1989, to the damage and prejudice of the said offended party in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW. The information was docketed as Criminal Case No. Q-92-27272 and assigned to Branch 83 of the said court. On 2 March 1992, the private respondent filed a Motion to Quash alleging prescription of the offense as ground therefor. She contended that by the petitioner's admissions in his testimony given on 23 January 1991 in Civil Case No. 90-52730, entitled "Jose G. Garcia v. Delia S. Garcia," and in his complaint filed with the Civil Service Commission (CSC) on 16 October 1991, the petitioner discovered the commission of the offense as early as 1974. Pursuant then to Article 91 of the Revised Penal Code (RPC), 4 the period of prescription of the offense started to run therefrom. Thus, since bigamy was punishable by prision mayor, 5 an afflictive penalty 6 which prescribed in fifteen years pursuant to Article 92 of the RPC, then the offense charged prescribed in 1989, or fifteen years after its discovery by the petitioner. The private respondent quoted 7 the petitioner's testimony in Civil Case No. 90-52730 as follows: Q No, no, just answer. What did you learn from her (Eugenia) about the private respondent? A That she has been married previously in case I don't know it. But she said she has been previously married, in fact I saw her husband Rey, a few days ago and they said, "Baka magkasama pa silang muli." xxx xxx xxx

A'ITY. EVANGELISTA: Q When did Eugenia R. Balingit told [sic] that private respondent was already married to another man? A That was when I told her that we are Separating now. I told her in tagalog, "na maghihiwalay na kami ni Delia ngayon." "Ang unang tanong niya sa akin, "si Rey ba ang dahilan," ang alam ko po, Rey ang dating boyfriend niya, kaya ang sabi ko, "hindi po, Mario, ang panga!an," napabagsak po siya sa upuan, sabi niya, "hindi na nagbago." Q When was that when you came to know from Eugenia Balingit, the judicial guardian, that private respondent was already married to another man when she married you? A That was when the affair was happening and I found out. Q What year?

A 1974.

The portion of the complaint filed on 16 October 1991 before the CSC which the private respondent alluded to, reads as follows: 5. At the time the respondent married the herein complainant she never informed him that she was previously married to a certain REYNALDO QUIROCA" on December 1, 1951 wherein she used the name of "ADELA SANTOS" which was part of her true name "ADELA TEODORA P. SANTOS" as per her genuine Baptismal Certificate issued by the Parish of San Guillermo, Bacolor, Pampanga, a copy of the said Baptismal Certificate is hereto attached as ANNEX "D"; 6. . . .

7. These facts were discovered only by the herein complainant in the year 1974 where they separated from each other because of her illicit relations with several men continued use of her alias name "DELIA", without proper authority from the Courts; and committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of which is hereto attached as ANNEX "F",
9

In its 29 June 1992 order, 10 the trial court granted the motion to quash and dismissed the criminal case, ruling in this wise: This court believes that since the penalty prescribed under Article 349 of the Revised Penal Code for the offense of bigamy is prision mayor, which is classified as an afflictive penalty under Article 25 of the same Code, then said offense should prescribe in fifteen (15) years as provided in Article 92 of the Code. The complainant having discovered the first marriage of the accused to one Reynaldo Quiroca in 1974 when he was informed of it by one Eugenia Balingit, the offense charged has already prescribed when the information was filed in this case on November 15, 1991. The argument presented by the prosecution that i was difficult for the complainant to obtain evidence of the alleged first marriage, hence, the prescriptive period should be counted from the time the evidence was secured will not hold water. Article 91 of the Revised Penal Code specifically provides, thus: "The period of prescription shall commence to run from the day on which the crime is discovered. . . ." it did not state "on the day sufficient evidence was gathered," thus this Court cannot change the requirements of the law. The petitioner moved for reconsideration of the above order on 26 August 1992, 11 to which he filed "numerous" supplements thereto, focusing on the private respondent's many trips abroad which the petitioner claimed suspended the running of the prescriptive period. These trips were enumerated in the certification 12 issued by Associate Commissioner Ramon M. Morales of the Bureau of Immigration (BID), which reads as follows: This is to certify that the name GARCIA/DELIA/S. appears in the Bureau's files of Arrivals and Departures as having the following travel records: Departed for HKG on 06/03/77 aboard PR Arrived from HKG on 07/02/77 aboard PA Arrived from SYD on 07/09/77 aboard PR Arrived from GUM on 06/14/80 aboard PA Arrived from MEL on 07/17/81 aboard PR Arrived from TYO on 05/20/83 aboard PA Departed for HKG on 09/22/83 aboard PR

Arrived from SIN on 09/28/83 aboard PR Departed for TYO on 04/30/84 aboard PA Arrived from SFO on 07/03/84 aboard PA Departed for TYO on 11/19/84 aboard PA Departed for TYO on 08/05/85 aboard PA Departed for TYO on 11/1 7/86 aboard UA Arrived from LAX on 12/12/87 aboard UA Departed for LAX on 11/30/87 aboard UA Departed for CHI on 11/14/88 aboard UA The trial court disallowed reconsideration of its 29 June 1992 order, finding "no urgent or justifiable reason to disturb or set [it] aside." As to the sojourns abroad of the private respondent as shown in the certification, the trial court held that the same "is not that kind of absence from the Philippines which will interrupt the period of prescription of the offense charged. . ." 13 The petitioner then appealed to the Court of Appeals which docketed the appeal as CA-G.R. CR No. 14324. He contended therein that: (a) the trial court erred in quashing the information on the ground of prescription; and (b) the counsel for the accused was barred from filing the motion to quash the information against the accused. 14 As to the first, the petitioner argued that bigamy was a public offense, hence "the offended party is not the first or second (innocent) spouse but the State whose law/policy was transgressed." He tried to distinguish bigamy from private offenses such as adultery or concubinage "where the private complainant is necessarily the offended party," thus, the prescriptive period for the former should commence from the day the State, being the offended party, discovered the offense, which in this case was on 28 August 1991 when the petitioner filed his complaint before the Prosecutor's Office. The petitioner added that the "interchanging use" in Article 91 of the RPC of the terms "offended party," "authorities," and "their agents" supports his view that the State is the offended party in public offenses. Additionally, the petitioner referred to the general rule stated in People v. Alagao 15 "that in resolving the motion to quash a criminal complaint or information[,] the facts alleged in the complaint or information should be taken as they are." The information in this case mentioned that the bigamy was discovered in 1989. He admitted, however, that this rule admits of exceptions, such as when the ground for the motion to quash is prescription of the offense, as provided in Section 4 of the old Rule 117 of the Rules of Criminal Procedure. Nonetheless, he advanced the view that this exception is no longer available because of the implied repeal of Section 4, as the amended Rule 117 no longer contains a similar provision under the rule on motions to quash; and that granting there was no repeal, the private respondent failed to introduce evidence to "support her factual averment in her motion to quash," which is required by Rule 117. He further asserted that the factual bases of the motion to quash, viz., the petitioner's testimony in Civil Case No. 90-52730 and his complaint filed with the CSC are not conclusive because the testimony is hearsay evidence, hence inadmissible, while the complaint is vague, particularly the following portion quoted by the private respondent: 7. These facts where discovered only by the herein complainant in the year 1974 when they separated from each other because of her illicit relations with several men continued use of her alias name "DELIA", without proper authority from the Courts; and committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of which is hereto attached a ANNEX "F"; The petitioner alleged that the phrase "These facts" in said paragraph 7 does not clearly refer to his discovery of the private respondent's first marriage. Moreover, he doubted whether the term "discovered" in the said paragraph was used in the sense contemplated by law. At best, the petitioner theorized, the discovery only referred to the "initial, unconfirmed and uninvestigated raw, hearsay information" which he received from Balingit. Finally, the petitioner reiterated that the prescriptive period was interrupted several times by the private respondent's numerous trips abroad. As regards his second contention, the petitioner argued that the counsel for the private respondent had already stated that he represented only Delia S. Garcia and not Adela Teodora P. Santos. Consequently, the private respondent's counsel could not ask for the quashal of the information in favor of Adela Teodora P. Santos alias Delia Santos. The petitioner opined that the counsel for the private respondent should have sought a dismissal of the case in favor of Delia Garcia alone. The Court of Appeals gave credence to the private respondent's evidence and concluded that the petitioner discovered the private respondent's first marriage in 1974. Since the information in this case was filed in court only on 8 January 1992, or eighteen years after the discovery of the offense, then the 15-year prescriptive period had certainly lapsed. 16 It further held that the quashal of an information based on prescription of the offense could be invoked before or after arraignment and even on appeal, 17 for under Article 89(5) of the RPC, the criminal liability of a person is "totally extinguish[ed]' by the prescription of the crime, which is a mode of extinguishing criminal liability." Thus, prescription is not deemed waived even if not pleaded as a defense. 18 Undaunted, the petitioner is now before us on a petition for review on certiorari to annul and set aside the decision of the Court of Appeals and to compel the respondent court to remand the case to the trial court for further proceedings. He submits the following assignment of errors: I BIGAMY IS A PUBLIC OFFENSE, CONSEQUENTLY, PRESCRIPTION SHOULD HAVE BEEN COUNTED FROM THE TIME THE STATE DISCOVERED ITS COMMISSION; II A MOTION TO QUASH CANNOT ALSO GO BEYOND WHAT IS STATED IN THE INFORMATION;

III BY THEMSELVES, THE FACTUAL BASES OF THE MOTION TO QUASH ARE NOT ALSO CONCLUSIVE; IV ASSUMING THE PRESCRIPTIVE PERIOD STARTED IN 1974, SAID PERIOD HOWEVER WAS INTERRUPTED SEVERAL TIMES. We notice that except for the first two pages of the petition, the deletion of a few paragraphs, the substitution of the term "petitioner" for "appellant," and the deletion of the contention on the' counsel for the private respondent being barred from filing a motion to quash, the herein petition is a reproduction of the Appellant's Brief filed by the petitioner with the Court of Appeals. Verily then, the instant petition is a rehash of an old tale. However, the Court of Appeals failed to sufficiently address several issues raised by the petitioner, most probably prompting him to seek redress from this Court. We resolved to give due course to the petition and required the parties to submit their respective memoranda. The Office of the Solicitor General was the last to submit a Memorandum for the public respondent. Both the private and public respondents ask for the dismissal of this petition and the affirmance of the challenged decision. Petitioner's position is untenable. Denial then of this petition is all it merits. We shall take up the assigned errors in seriatim. I It is true that bigamy is a public offense. But, it is entirely incorrect to state, as the petitioner does, that only the State is the offended party in such case, as well as in other public offenses, and, therefore; only the State's discovery of the crime could effectively commence the running of the period of prescription therefor. Article 91 of the RPC provides that "[t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents. . . ." This rule makes no distinction between a public crime and a private crime. In both cases then, the discovery may be by the "offended party, the authorities, or their agents." Article 91 does not define the term "offended party." We find its definition in Section 12, Rule 110 of the Rules of Court as "the person against whom or against whose property, the offense was committed. 19 The said Section reads as follows: Sec. 12. Name of the offended party. A complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known, and if there is no better way of identifying him, he must be described under a fictitious name. More specifically, it is reasonable to assume that the offended party in the commission of a crime, public or private, is the party to whom the offender is civilly liable, in light of Article 100 of the RPC, which expressly provides that [e]very person criminally liable for a felony is also civilly liable." 20 Invariably then, the private individual to whom the offender is civilly liable is the offended party. This conclusion is strengthened by Section 1, Rule 111 of the Rules of Court which reads: Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with a criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. . . . It is settled that in bigamy, both the first and the second spouses may be the offended parties depending on the circumstances. 21 The petitioner even admits that he is the offended party in Criminal Case No. (Q-92-27272. The information therein, 22 which he copied in full in the petition in this case, describes him as the "offended party" who suffered "damage and prejudice . . . in such amount as may be awarded under the provisions of the Civil Code." 23 The distinction he made between public crimes and private crimes relates not to the discovery of the crimes, but to their prosecution. Articles 344 and 360 of the RPC, in relation to Section 5, Rule 110 of the Rules of Court, are clear on this matter. II The petitioner's contention that a motion to quash cannot go beyond the information in Criminal Case No. Q-92-27272 which states that the crime was discovered in 1989, is palpably unmeritorious. Even People v. Alaga, 24which he cites, mentions the exceptions to the rule as provided in paragraphs (f) and (h) of Section 2, and Sections 4 and 5 of the old Rule 117, viz., (a) extinction of criminal liability, and (b) double jeopardy. His additional claim that

the exception of extinction can no longer be raised due to the implied repeal of the former Section 4, 25Rule 117 of the Rules of Court occasioned by its non-reproduction after its revision, is equally without merit. No repeal, express or implied, of the said Section 4 ever took place. While there is no provision in the new Rule 117 that prescribes the contents of a motion to quash based on extinction of criminal liability, Section 2 thereof encapsulizes the former Sections 3, 4, and 5 of the old Rule 117. The said Section 2 reads as follows: Sec. 2. Foms and contents. The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the factual and legal grounds therefor and the court shall consider no grounds other than those stated therein, except lack of jurisdiction over the offense charged. (3a, 4a, 5a). (underscoring supplied for emphasis) It is clear from this Section that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained as among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that facts outside the information itself may be introduced to grove such grounds. As a matter of fact, inquiry into such facts may be allowed where the ground invoked is that the allegations in the information do not constitute the offense charged. Thus, in People v. De la Rosa, 26 this Court stated:

As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. However, as held in the case of People vs. Navarro, 75 Phil. 516, additional facts not alleged in the information, but admitted or not denied by the prosecution may be invoked in support of the motion to quash. Former Chief justice Moran supports this theory.
27

In Criminal Case No. 92-27272, the trial court, without objection on the part of the prosecution, allowed the private respondent to offer evidence in support of her claim that the crime had prescribed. Consequently, the trial court, upon indubitable proof of prescription, correctly granted the motion to quash. It would have been, to quote De la Rosa, "pure technicality for the court to close its eyes to [the fact of prescription) and still give due course to the prosecution of the case" a technicality which would have meant loss of valuable time of the court and the parties. As noted by Dr. Fortunato Gupit, Jr., consultant of the Rules of Court Revision Committee, the aforequoted Section 2 of the new Rule 117 on "factual and legal grounds" of a motion to quash is based on the De la Rosa case. 28 III The petitioner likewise claims that the factual bases of the private respondent's motion to quash are inconclusive. The petitioner cannot be allowed to disown statements he made under oath and in open court when it serves his purpose. This is a contemptible practice which can only mislead the courts and thereby contribute to injustice. Besides, he never denied having given the pertinent testimony. He did, however, term it vague in that it was not clear whether the prior marriage which Eugenia Balingit disclosed to him was that entered into by the private respondent with Reynaldo Quiroca. It is immaterial to whom the private respondent was first married; what is relevant in this case is that the petitioner was informed of a prior marriage contracted by the private respondent. Neither may the petitioner be heard to cast doubt on the meaning of his statements in his sworn complaint filed before the CSC. We find no hint of vagueness in them. In any event, he has not denied that he in fact discovered in 1974 that the private respondent had been previously married. Finally, the petitioner draws our attention to the private respondent's several trips abroad as enumerated in the certification of the Bureau of Immigration, and cites the second paragraph of Article 91 of the RPC, viz.: "[t]he term of prescription shall not run when the offender is absent from the Philippine Archipelago." We agree with the Court of Appeals that these trips abroad did not constitute the "absence" contemplated in Article 91. These trips were brief, and in every case the private respondent returned to the Philippines. Besides, these were made long after the petitioner discovered the offense and. even if the aggregate number of days of these trips are considered, still the information was filed well beyond the prescriptive period. WHEREFORE, the instant petition is DENIED for lack of merit and the challenged decision of 13 February 1995 of the Court of Appeals in CA-G.R. CR No. 14324 is AFFIRMED. Costs against the petitioner. SO ORDERED.

G.R. No. 127904. December 5, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ESTEBAN VICTOR y PENIS, accused-appellant. DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision of Branch 95 of the Regional Trial Court, Quezon City, finding accused-appellant Esteban Victor y Penis guilty beyond reasonable doubt of qualified rape in Criminal Case No. Q-9667322 and sentencing him to suffer the penalty of death and to pay private complainant Marilyn Corpuz Villanueva the amount of P50,000.00 for moral damages; and of acts of lasciviousness in Criminal Case No. Q-96-67323 and sentencing him to suffer an indeterminate penalty of six (6) months and one (1) day of prision correccional in its minimum period, as minimum, to four (4) years and two (2) months of prision correccional in its medium period, as maximum, and to pay the offended party the amount of P120,000.00 for moral damages.
[1]

The criminal complaint for qualified rape filed against accused-appellant, docketed as Criminal Case No. Q-96-67322 alleges that: The undersigned accuses ESTEBAN VICTOR y PENIS, STEP-FATHER, of the crime of Rape, committed as follows: That sometime in May 1996 in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously undress said Marilyn Villanueva, a minor, 13 years old, step-daughter; and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.
[2]

The criminal complaint for acts of lasciviousness filed against accusedappellant, docketed as Criminal Case No. Q-96-67323 alleges that: The undersigned accuses ESTEBAN VICTOR y PENIS, STEP-FATHER, of the crime of ACTS OF LASCIVIOUSNESS, committed as follows: That on or about the 5th day of August 1996 in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the undersigned complainant, a minor, 13 years of age, step-

daughter; by then and there mashing (sic) her private parts, with lewd design and against her will. CONTRARY TO LAW.
[3]

At the arraignment, accused-appellant with the assistance of a counsel de parte, entered a plea of not guilty. The cases having been consolidated, joint trial thereupon ensued. The prosecution presented two (2) witnesses: private complainant Marilyn Villanueva and Dr. Rosaline O. Cosidon, the Medico-Legal Officer of the PNP Central Crime Laboratory of Quezon City. Marilyn testified that she was 13 years old at the time she was raped by accused-appellant. She further stated that accused-appellant was jobless; worse, he was usually drunk. He eked a living as a scavenger. He and her mother, Julieta Corpuz, lived together as husband and wife in a house constructed on a lot located at Phase IV, Urban Poor, Payatas, Quezon City owned by Pinong dela Cruz. The couple had no children of their own. However, she and her sister Rachel, being Julietas daughters by Rodrigo Villanueva, from whom Julieta was separated, and Jovet, accusedappellants son by another woman, lived with accused-appellant and Julieta. The latter oftentimes maltreated her. Although Marilyn considered accusedappellant as her stepfather, she called him Kuya. In May 1996, while Julieta was out of the house, accused-appellant, armed with a knife, gained entry into Marilyns room, pointed his knife at her and warned her not to shout or run; otherwise, he would run after her. Petrified, Marilyn just stayed put. Accused-appellant then took off Marilyns clothes and immediately removed his clothes. He then pinned Marilyn to the floor and placed himself on top of her. Accused-appellant held her legs, spread them apart, inserted his penis into Marilyns genitalia and proceeded to make the pumping motions of the sexual act. He kissed Marilyn on her lips and mashed her breasts as he ravished her. Marilyn felt an excruciating pain on her genitalia and pushed accused-appellant back, but to no avail. She begged for mercy and said Kuya huwag po, masama yan (please dont do it, its bad) but her entreaties fell on deaf ears. Satiated, accused-appellant dismounted but warned Marilyn not to tell a word about the incident or else he would kill her. Afraid that accused-appellant would make good his threats, not to mention his invariable presence in the house since he was a boozer and jobless, Marilyn kept her silence.
[4] [5] [6] [7]

Marilyns ordeal, however, was not the last. Accused-appellant continued to torment her day by day by persistently kissing her and touching her private

parts. All she could do was cry and suffer in silence. To avoid further encounters with accused-appellant, Marilyn resorted to frequenting the back of their house and staying thereat for hours just sitting. Marilyn later mustered enough courage to tell her mother that she had been sexually abused and subjected to lascivious acts by accused-appellant. Instead of helping her daughter, Julieta simply told Marilyn to avoid herKuya Esteban. Marilyn was flabbergasted.
[8] [9]

On August 5, 1996, at about 11:00 a.m., accused-appellant and Marilyn were alone in the house. Accused-appellant again touched Marilyns private parts, kissed her on the lips, smashed her breasts, and touched her thighs and legs. Marilyn recoiled with anguish as accused-appellant abused her. Unable to bear accused-appellants satyric acts, Marilyn ran away from home and went to her sister Raquel, who was then working as housemaid of a certain Pinong dela Cruz. Marilyn related to him her traumatic ordeals at the hands of accused-appellant. Dela Cruz took pity on Marilyn and accompanied her to the police station where she reported accused-appellants sexual assault and lascivious acts on her. It turned out that accused-appellant himself abused not only Marilyn but Raquel as well.
[10] [11] [12]

On August 7, 1996, Marilyn, assisted by Remedios Jasmin and Hope Bernardes of the Department of Social Welfare and Development (DSWD), executed an Affidavit-Complaint before SPO1 Nido Gevero of the Central Police District Command, Quezon City, narrating her ordeals at the hands of accused-appellant. She likewise declared in said affidavit-complaint that she was 13 years old.
[13]

Dr. Rosaline O. Cosidon, the Medico-Legal Officer of the Central Crime Laboratory of the Northern Police District Command in Quezon City, testified that on August 6, 1996, she conducted a genitalia examination on Marilyn and that she prepared and signed Medico-Legal Report No. 1178-96 containing her findings on said examination, thus: FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with dark brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft. GENITAL:

There is absence of growth of pubic hair. Labia majora are full, convex and gaping with the pinkish brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy-type hymen with deep, healed laceration at 3 oclock position and shallow healed laceration at 5 and 7 oclock positions. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency. Subject is in non-virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. Vaginal and peri-urethral smears are negative for gram-negative diplococci and spermatozoa. She further testified that the deep healed lacerations in the hymenal area could have been caused by a blunt instrument such as an erect hard penis. The prosecution and accused-appellant stipulated in open court that Marilyn was 13 years old when the offenses were committed and on the basis of said stipulation, the Court dispensed with the presentation by the prosecution of her birth certificate. Accused-appellant testified in his behalf. He denied having raped Marilyn, and by way of avoidance, testified that he and Julieta Corpuz were married; that she had three daughters by another man, namely Marife, 21 years old, Raquel, 17 years old and Marilyn, 13 years old; and that in May 1996, and even before that, Marilyn and her other sisters were staying in the house of their aunt in Valenzuela, Metro Manila because of their studies. He averred that there was no occasion in the past that Marilyn ever visited him and Julieta in their house at Payatas as Marilyn was so busy attending to her summer classes as a Grade 1 pupil at the public school in Valenzuela. He could not have abused Marilyn because he considered and treated her as a stepdaughter. He insisted that he loved her only as a stepdaughter and even gave financial support for her education. He also claimed that his relationship with his stepdaughters, especially Marilyn, was good. He denied having subjected Marilyn to acts of lasciviousness and averred that he could not have perpetrated the same because Marilyn was residing with her sister Raquel, who was employed in Quezon City. As to why Marilyn filed the charges against him, accused-appellant explained that this was Marilyns way of getting back at him for scolding her in the past for arriving home very late at night. He further testified that Marilyn was no longer a virgin because she
[14] [15] [16] [17] [18] [19] [20]

was raped in 1995 by a certain Mon Oliva, a third cousin of his mother. Accused-appellant undertook to adduce in evidence his marriage contract with Julieta Corpuz but never did.
[21]

In due course, the trial court rendered a joint decision finding accusedappellant guilty as charged. The dispositive portion of the decision reads:
[22]

WHEREFORE, judgment is rendered in the following: 1. In Crim. Case No. Q-96-67322, the Court finds the accused, Esteban Victor y Penis, GUILTY beyond reasonable doubt of the crime of rape, defined in and penalized by Article 335 of the Revised Penal Code, as amended, and hereby sentences the said accused to suffer the penalty of DEATH. The accused is further ordered to indemnify Marilyn Villanueva the amount of P50,000.00, as moral damages; and 2. In Crim. Case No. Q-96-67323, the Court finds the accused, Esteban Victor y Penis, GUILTY beyond reasonable doubt of the crime of acts of lasciviousness, defined in and penalized by Article 336 of the Revised Penal Code and hereby sentences the said accused to suffer the indeterminate penalty of from six (6) months and one (1) day of prision correccional minimum, as the minimum penalty to four (4) years and two (2) months ofprision correccional medium, as the maximum penalty. The accused is further ordered to pay Marilyn Villanueva the amount of P20,000.00, as moral damages. The accused is ordered to pay the costs. SO ORDERED.
[23]

The trial court imposed the death penalty on accused-appellant for the crime of rape in its qualified form on its finding that he was the stepfather of Marilyn, or the common-law husband of her mother, Julieta Corpuz. In his Brief, accused-appellant contends that: Re: Criminal Case No. Q-96-67322
I

THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH DESPITE THE FACT THAT THE RELATIONSHIP OF THE ACCUSED AND THE NATURAL MOTHER OF PRIVATE COMPLAINANT WAS NOT PROVED WITH CERTAINTY.
[24]

Accused-appellant avers that the trial court erred in imposing on him the death penalty on its finding that he was the stepfather of private complainant. He insists that the evidence on record shows that he and Julieta Corpuz, the natural mother of private complainant were merely live-in partners; they were not legally married. Accused-appellant points out that even the trial court found that he was merely the common-law husband of Julieta Corpuz. Even if he were the common-law husband of Julieta Corpuz, the death penalty could not have been lawfully imposed on him because what was alleged in the criminal complaint for rape as a special qualifying circumstance was that he was the stepfather of Marilyn Villanueva; however, the prosecution proved that he was merely the common-law husband of Julieta. Accused-appellant cites the decision of the Court in People vs. Juan Manggasin to fortify his contention. The Solicitor General, however, insists that the evidence on record shows that accused-appellant was the stepfather of private complainant. The Solicitor General points out that not only did private complainant declare that accused-appellant was her stepfather when she testified but accused-appellant also admitted in his testimony that he and Julieta Corpuz were married. Finally, the Solicitor General contends that accused-appellant cannot find solace in the decision of the Court in People vs. Juan Manggasin because the Court found and declared in said case that accused-appellant and the mother of the offended party were not legally married.
[25] [26]

Article 335 of the Revised Penal Code, as amended by RA 7659, provides that the death penalty shall be imposed if the crime of rape is committed when the victim is under eighteen (18) years of age and the offender is a stepfather or the common-law spouse of the parent of the victim. 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. xxx The minority of the victim and her relationship to the offender is a special qualifying circumstance in the crime of rape and may raise the penalty for rape to the supreme penalty of death. Such circumstance must be alleged in the criminal complaint or information and proved conclusively and indubitably as the crime itself; otherwise, the crime shall be considered simple rape warranting the imposition of the lower penalty of reclusion perpetua.
[27]

In the case at bar, the criminal complaint in Criminal Case No. Q-86-67322 alleged the special qualifying circumstance of minority concurring with stepfather-stepdaughter relationship of accused-appellant and private complainant. It bears stressing that a stepfather-stepdaughter relationship presupposes a legitimate relationship - a valid marriage between the mother of private complainant and accused-appellant. And the best evidence to prove the marriage between accused-appellant and Julieta Corpuz, the mother of private complainant, is their marriage contract. However, the prosecution inexplicably failed to adduce in evidence the marriage contract of accused-appellant and Julieta on its evidence-in-chief.
[28] [29]

The prosecution relied solely on the admission of accused-appellant during cross-examination that he was married to Julieta:
PROS: (to witness) Q A Q A Q A Q A Esteban Victor, you claimed that you were married to one Julieta Corpuz, am I right? Yes, sir. And you will agree with me that because you are married, you also have a marriage contract? Yes, sir. Do you have that marriage contract with you now? Its with my wife, sir. Can you bring it before this Honorable Court during next hearing? I will tell her.[30]

Oddly, the prosecution agreed that the case be submitted for the decision of the court instead of moving for the continuance of the hearing to enable accused-appellant to present to the court a copy of the said contract of marriage between him and Julieta. This resulted in the prosecutions failure to offer in evidence the said marriage contract. The declaration of accused-appellant that he was married to Julieta, even if made in the course of the proceedings in the trial court, is not conclusive proof that the two are legally married. Said declaration did not dispense with the burden of the prosecution to adduce in evidence the marriage contract of accused-appellant and Julieta. Neither may the prosecution rely on the disputable presumption that when a man and a woman live together as husband and wife, they are presumed to be married. Relationship is a qualifying circumstance in rape and must not only be alleged. It must also be proved beyond reasonable doubt as the crime itself.
[31] [32]

The evidence on record shows that accused-appellant used a knife, a deadly weapon in intimidating Marilyn to succumb to his bestial desire. Under Article 335 of the Revised Penal Code, as amended, the use of a bladed weapon to force or intimidate into agreeing to sexual intercourse is a qualifying circumstance requiring the imposition of the penalty of reclusion perpetua to death. However, said circumstance must be alleged in the criminal complaint for rape and proved with certainty. Even if such is proved but not alleged in the Information, the same cannot serve as basis for the imposition of the penalty of reclusion perpetua to death. In the present case, although the prosecution established that accused-appellant used a knife to force Marilyn into submitting to his carnal desires, said circumstance was not alleged in the Information for rape. Hence, the appropriate penalty should be reclusion perpetua.
[33] [34]

Further, although the prosecution proved that accused-appellant used a deadly weapon in raping the private complainant, a qualifying circumstance in the commission of said crime, the trial court did not award exemplary damages. In People vs. Danilo Catubig, we held that an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the context of Article 2230 of the New Civil Code, even if the information or criminal complaint has not alleged said aggravating circumstance as required by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. The offended party is still entitled to exemplary damages even if the information or criminal complaint was filed before the effectivity of said Rule. We held that:
[35]

The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the private offended party that have become vested prior 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.
[36]

We also note that the trial court awarded private complainant the amount of P50,000.00 for moral damages but did not award any amount to private complainant for civil indemnity ex delicto. We have consistently held that the offended party in simple rape is entitled to civil indemnity ex delicto from the offender in the amount of P50,000.00.
[37]

Re: Criminal Case No. Q-96-67323 Accused-appellant avers in his Brief that

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-ACCUSEDAPPELLANT OF ACTS OF LASCIVIOUSNESS INSTEAD OF THE LESSER OFFENSE OF UNJUST VEXATION. Accused-appellant argues that although he touched the private parts of private complainant and grabbed her breasts, held her thighs and legs and kissed her, the said acts were not lewd and do not constitute the felony of acts of lasciviousness. The Solicitor General points out that indeed the acts of accused-appellant in the morning of August 5, 1996 constitute acts of lasciviousness since the indispensable element of lewdness is present: Moreover, it is not necessary that intimidation be irresistible. It being sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party (Criminal Law, Revised Penal Code, Padilla, Vol. 4, 1990 Edition, p. 610). In this case, the moral intimidation posed by appellant as a stepfather was more than sufficient to intimidate Marilyn and force her to submit to his lewd designs.
[38]

The felony of acts of lasciviousness is defined and penalized by Article 336 of the Revised Penal Code, as amended, thus: ART. 336. Acts of lasciviousness.- Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. The elements of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done under any of the following circumstances: (a) by using force or intimidation; (b) when the offended woman is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve (12) years of age.
[39]

In People vs. Tiburcio Balbar, we held that what constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances.
[40]

It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amendable to the provisions of article 439 (now article 336) of the Penal Code. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another

case to say where the line of demarcation lies between such conduct and the amorous advances of an ardent lover. (U.S. v. Gomez, 30 Phil. 22, 25) The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. xxx. In the instant case, accused-appellant raped Marilyn at the point of a knife in May, 1996, and threatened to kill her if she divulged the incident to anyone. Accused-appellant had been subjecting Marilyn to lascivious acts, the same culminating on August 5, 1996 when he again indulged in his lecherous predatory acts and touched her private parts, grabbed her breasts, held her thighs and legs and then kissed her. Accused-appellant and Marilyn were alone by themselves in the house. All she could do was cry as she was still petrified by accused-appellants threats on her life in May 1996 if she revealed that she had been subjected to sexual assault at the hands of accused-appellant. There can be no doubt that accused-appellant was propelled by lewd designs when on August 5, 1996, he touched her private part, mashed her breasts, touched her thighs and legs and kissed her.
[41]

The Solicitor General avers that the penalty imposed by the trial court on accused-appellant for the felony of acts of lasciviousness, namely, six (6) months and one (1) day of prision correccional in its minimum period, as minimum, to four (4) years, two (2) months of prision correccional in its medium period, as maximum, is not correct. We agree with the Solicitor General. The penalty for the felony of acts of lasciviousness is prision correccional in its full range. Reducing the penalty by one degree to determine the minimum of the indeterminate penalty, such penalty is arresto mayor which has range of one (1) month and one (1) day to six (6) months. The minimum of the indeterminate penalty shall be taken from the full range of arresto mayor. Absent any modifying circumstances attendant to the crime, the maximum of the indeterminate penalty shall be taken from the medium period of prision correccional. Accordingly, accused-appellant is hereby meted an indeterminate penalty of five (5) months and ten (10) days of arresto mayor in its medium period, as minimum, to four (4) years and two (2) months of prision correccional in its medium period, as maximum. IN THE LIGHT OF ALL THE FOREGOING, the Decision of the trial court is hereby AFFIRMED with MODIFICATIONS:
1. In Criminal Case No. Q-96-67322, accused-appellant is hereby found GUILTY beyond reasonable doubt of the felony of simple rape defined and penalized by Article 335 of the Revised Penal Code, as amended by RA 7659 and is hereby meted the penalty of reclusion perpetua. Accused-appellant is ORDERED to pay to Marilyn Villanueva the amount of P50,000.00, by way of civil

indemnity ex delicto, the amount of P50,000.00 by way of moral damages, in keeping with current jurisprudence and the amount of P25,000.00 by way of exemplary damages; 2. In Criminal Case No. Q-96-67233, accused-appellant is hereby found GUILTY beyond reasonable doubt of the felony of acts of lasciviousness defined and penalized in Article 366 of the Revised Penal Code, as amended, and is hereby sentenced to an indeterminate penalty of five (5) months and ten (10) days of arresto mayor in its medium period, as minimum, to four (4) years and two (2) months of prision correccional, in its medium period, as maximum. He is hereby ORDERED to pay Marilyn Villanueva the amount of P25,000.00 by way of moral damages; and costs.

Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona and Carpio-Morales, JJ., concur. Puno, J., on official leave. Azcuna, J., on leave.
G.R. No. L-48157 March 16, 1988 RICARDO QUIAMBAO, petitioner, vs. HON. ADRIANO OSORIO, ZENAIDA GAZA BUENSUCERO, JUSTINA GAZA BERNARDO, and FELIPE GAZA, respondents-appellees, LAND AUTHORITY, intervenor-appellant.

FERNAN, J.: This case was certified to Us by the Court of Appeals as one involving pure questions of law pursuant to Section 3, Rule 50 of the Revised Rules of Court. The antecedents are as follows: In a complaint for forcible entry filed by herein private respondents Zenaida Gaza Buensucero, Justina Gaza Bernardo and Felipe Gaza against herein petitioner Ricardo Quiambao before the then Municipal Court of Malabon, Rizal, docketed therein as Civil Case No. 2526, it was alleged that private respondents were the legitimate possessors of a 30,835 sq. m. lot known as Lot No. 4, Block 12, Bca 2039 of the Longos Estate situated at Barrio Longos, Malabon Rizal, by virtue of the Agreement to Sell No. 3482 executed in their favor by the former Land Tenure Administration [which later became the Land Authority, then the Department of Agrarian Reform]; that under cover of darkness, petitioner surreptitiously and by force, intimidation, strategy and stealth, entered into a 400 sq. m. portion thereof, placed bamboo posts "staka" over said portion and thereafter began the construction of a house thereon; and that these acts of petitioner, which were unlawful per se, entitled private respondents to a writ of preliminary injunction and to the ejectment of petitioner from the lot in question. Petitioner filed a motion to dismiss the complaint, and upon denial thereof, filed his Answer to the complaint, specifically denying the material allegations therein and averring that the Agreement upon which private respondents base their prior possession over the questioned lot had already been cancelled by the Land Authority in an Order signed by its Governor, Conrado Estrella. By way of affirmative defense and as a ground for dismissing the case, petitioner alleged the pendency of L.A. Case No. 968, an administrative case before the Office of the Land Authority between the same parties and involving the same piece of land. In said administrative case, petitioner disputed private respondents' right of possession over the property in question by reason of the latter's default in the installment payments for the purchase of said lot. Petitioner asserted that his administrative case was determinative of private respondents' right to eject petitioner from the lot in question; hence a prejudicial question which bars a judicial action until after its termination. After hearing, the municipal court denied the motion to dismiss contained in petitioner's affirmative defenses. It ruled that inasmuch as the issue involved in the case was the recovery of physical possession, the court had jurisdiction to try and hear the case.

Dissatisfied with this ruling, petitioner filed before the then Court of First Instance of Rizal, Branch XII, Caloocan City in Civil Case No. C-1576 a petition for certiorari with injunction against public respondent Judge Adriano Osorio of the Municipal Court of Malabon and private respondents, praying for the issuance of a writ of preliminary injunction ordering respondent judge to suspend the hearing in the ejectment case until after the resolution of said petition. As prayed for, the then CFI of Rizal issued a restraining order enjoining further proceedings in the ejectment case. In his answer, respondent municipal judge submitted himself to the sound discretion of the CFI in the disposition of the petition for certiorari. Private respondents, on the other hand, filed a motion to dismiss the petition, maintaining that the administrative case did not constitute a prejudicial question as it involved the question of ownership, unlike the ejectment case which involved merely the question of possession. Meanwhile, the Land Authority filed an Urgent Motion for Leave to Intervene in Civil Case No. C-1576 alleging the pendency of an administrative case between the same parties on the same subject matter in L.A. Case No. 968 and praying that the petition for certiorari be granted, the ejectment complaint be dismissed and the Office of the Land Authority be allowed to decide the matter exclusively. Finding the issue involved in the ejectment case to be one of prior possession, the CFI dismissed the petition for certiorari and lifted the restraining order previously issued. Petitioner's motion for reconsideration of the dismissal order, adopted in toto by Intervenor Land Authority was denied for lack of merit. Hence, this appeal filed by petitioner Quiambao and intervenor Land Authority with the Court of Appeals, and certified to Us as aforesaid. The instant controversy boils down to the sole question of whether or not the administrative case between the private parties involving the lot subject matter of the ejectment case constitutes a prejudicial question which would operate as a bar to said ejectment case. A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal. 1 The doctrine of prejudicial question comes into play generally in a situation where civil and criminal actions are pending and the issues involved in both cases are similar or so closely related that an issue must be pre-emptively resolved in the civil case before the criminal action can proceed. Thus, the existence of a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former. The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the Revised Rules of Court are: [a] the civil action involves an issue similar or intimately related to the issue in the criminal action; and [b] the resolution of such issue determines whether or not the criminal action may proceed. The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two [2] proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. For while it may be true that private respondents had prior possession of the lot in question, at the time of the institution of the ejectment case, such right of possession had been terminated, or at the very least, suspended by the cancellation by the Land Authority of the Agreement to Sell executed in their favor. Whether or not private respondents can continue to exercise their right of possession is but a necessary, logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation of the Agreement to Sell and the subsequent award of the disputed portion to petitioner. If the cancellation of the Agreement to Sell and the subsequent award to petitioner are voided, then private respondents would have every right to eject petitioner from the disputed area. Otherwise, private respondent's light of possession is lost and so would their right to eject petitioner from said portion. Faced with these distinct possibilities, the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in the pending administrative case is to needlessly require not only the parties but the court as well to expend time, effort and money in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us:

The court in which an action is pending may, in the exercise of a sound discretion, upon proper application for a stay of that action, hold the action in abeyance to abide the outcome of another pending in another court, especially where the parties and the issues are the same, for there is power inherent in every court to control the disposition of causes on its dockets with economy of time and effort for itself, for counsel, and for litigants. Where the rights parties to the second action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed.
2

While this rule is properly applicable to instances involving two [2] court actions, the existence in the instant case of the same considerations of Identity of parties and issues, economy of time and effort for the court, the counsels and the parties as well as the need to resolve the parties' right of possession before the ejectment case may be properly determined, justifies the rule's analogous application to the case at bar. Fortich-Celdran, et al. vs. Celdran, et al., 19 SCRA 502, provides another analogous situation. In sustaining the assailed order of the then Court of First Instance of Misamis Oriental ordering the suspension of the criminal case for falsification of public document against several persons, among them the subscribing officer Santiago Catane until the civil case involving the issue of the genuineness of the alleged forged document shall have been decided, this Court cited as a reason therefor its own action on the administrative charges against said Santiago Catane, as follows: It should be mentioned here also that an administrative case filed in this Court against Santiago Catane upon the same charge was held by Us in abeyance, thus:

"As it appears that the genuineness of the document allegedly forged by respondent attorneys in Administrative Case No. 77 [Richard Ignacio Celdran vs. Santiago Catane, etc., et al.] is necessarily involved in Civil Case No. R-3397 of the Cebu Court of First Instance, action on the herein complaint is withheld until that litigation has finally been decided. Complainant Celdran shall inform the Court about such decision."
3

If a pending civil case may be considered to be in the nature of a prejudicial question to an administrative case, We see no reason why the reverse may not be so considered in the proper case, such as in the petition at bar. Finally, events occuring during the pendency of this petition attest to the wisdom of the conclusion herein reached. For in the Manifestation filed by counsel for petitioner, it was stated that the intervenor Land Authority which later became the Department of Agrarian Reform had promulgated a decision in the administrative case, L.A. Case No. 968 affiriming the cancellation of Agreement to Sell No. 3482 issued in favor of private respondents. With this development, the folly of allowing the ejectment case to proceed is too evident to need further elaboration. WHEREFORE, the instant petition is hereby GRANTED. Civil Case No. 2526 of the then Municipal Court of Malabon, Rizal is hereby ordered DISMISSED. No Costs. SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur. G.R. No. L-53642 April 15, 1988 LEONILO C. DONATO, petitioners, vs. HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents. Leopoldo P. Dela Rosa for petitioner. Emiterio C. Manibog for private respondent. City Fiscal of Manila for public respondent.

GANCAYCO, J.: In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of marriage pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent judge ruled in the negative. We sustain him. The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the complaint of private respondent Paz B. Abayan. On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September 26, 1978, which action was docketed as Civil Case No. E02627. Said civil case was based on the ground that private respondent consented to entering into the marriage, which was petitioner Donato's second one, since she had no previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's answer in the civil case for nullity interposed the defense that his second marriage was void since it was solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the subsequent or second marriage, petitioner and private respondent had lived together and deported themselves as husband and wife without the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by them on September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the New Civil Code pertaining to marriages of exceptional character. Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the proceedings of said case contending that Civil Case No. E-02627 seeking the annulment of his second marriage filed by private respondent raises a prejudicial question which must first be determined or decided before the criminal case can proceed. In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the proceedings in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than that cited by respondent judge in his order of denial. The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition with preliminary injunction. A prejudicial question has been defined to be one which arises in a case, the resolution of which question is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. 3 It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 4 A prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in a criminal case. 5 The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her consent was obtained through deceit. Petitioner Donato raised the argument that the second marriage should have been declared null and void on the ground of force, threats and intimidation allegedly employed against him by private respondent only sometime later when he was required to answer the civil action for anulment of the second marriage. The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that: The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant the suspension of the case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that the petitioner's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the basis of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on the ground alleged by petitioner, the fact would not be material to the outcome of the case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore, has not abused much less gravely abused, its discretion in failing to suspend the hearing as sought by petitioner. In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained by the use of threats, force and intimidation. Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such judgment in the civil case. Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress, violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar. Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978, he had been living with private respondent Paz B. Abayan as husband and wife for more than five years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by private respondent through force, violence, intimidation and undue influence in entering a subsequent marriage is belled by the fact that both petitioner and private respondent executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was private respondent who eventually filed the civil action for nullity. Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that petitioner came up with the story that his consent to the marriage was secured through the use of force, violence, intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when the latter left their abode upon learning that Leonilo Donato was already previously married. In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier order. There is no pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated April 14, 1980 should be sustained. WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no pronouncement as to costs. SO ORDERED. Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

FIRST DIVISION

MYRNA P. ANTONE, Petitioner,

G.R. No. 183824

Present: CORONA,C.J., Chairperson, LEONARDODE CASTRO,* DEL CASTILLO, and ABAD,** PEREZ, JJ. R. Promulgated: Respondent. December 8, 2010 x-----------------------------------------------------------------------------------------x

-versus-

LEO BERONILLA,

DECISION PEREZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CAG.R. SP No. 102834, to wit: (a) the Resolution[1] dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial courts Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-

0907-CFM for Bigamy; and (b) the Resolution[3] dated 18 July 2008 denying the motion for reconsideration of the first resolution. The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage. The Antecedents On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint[4] for Bigamy against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City. She alleged that her marriage with respondent in 1978 had not yet been legally dissolved when the latter contracted a second marriage with one Cecile Maguillo in 1991. On 21 June 2007, the prosecution filed the corresponding Information[5] before the Regional Trial Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and raffled to Branch 115. Pending the setting of the case for arraignment, herein respondent moved to quash the Information on the ground that the facts charged do not constitute an offense.[6] He informed the court that his marriage with petitioner was declared null and void by the Regional Trial Court, Branch 16, Naval, Biliran on 26 April 2007;[7] that the decision became final and executory on 15 May 200[7]; [8] and that such decree has already been registered with the Municipal Civil Registrar on 12 June 2007.[9] He argued that since the marriage had been declared null and void from the beginning, there was actually no first marriage to speak of. Absent a first valid marriage, the facts alleged in the Information do not constitute the crime of bigamy.[10] In its comment/opposition to the motion,[11] the prosecution, through herein petitioner, maintained that the respondent committed an act which has all the essential requisites of bigamy. The prosecution pointed out that the marriage of petitioner and respondent on 18 November 1978 has not yet been severed when he contracted a second marriage on 16 February 1991, for which reason, bigamy has already been committed before the court declared the first marriage null and void on 27 April 2007.[12] The prosecution also invoked the rulings of the Supreme

Court holding that a motion to quash is a hypothetical admission of the facts alleged in the information, and that facts contrary thereto are matters of defense which may be raised only during the presentation of evidence.[13] After a hearing on the motion,[14] the Information.[15] Applying Morigo v. People,[16] it ruled: court quashed the

Hence, contrary to what was stated in the Information, accused Beronilla was actually never legally married to Myrna Antone. On this score alone, the first element appears to be missing. Furthermore, the statement in the definition of Bigamy which reads before the first marriage has been legally dissolved clearly contemplates that the first marriage must at least be annullable or voidable but definitely not void, as in this case. xxx [I]n a similar case, [the Supreme Court] had the occasion to state: The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. xxx The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. xxx[17]

The prosecution, through herein petitioner, moved for reconsideration of the said Order[18] on the ground, among others, that the facts and the attending circumstances inMorigo are not on all fours with the case at bar. It likewise pointed out that, in Mercado v. Tan,[19] this Court has already settled that (a) declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense.[20] In its Order of 6 December 2007,[21] the court denied the motion for reconsideration stating that Mercado has already been superseded by Morigo. In the interim, in a Petition for Relief from Judgment[22] before the Regional Trial Court of Naval, Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of nullity of marriage in Civil Case No. B-1290

on 5 October 2007. On 24 March 2008, the court set aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null and void, and required herein petitioner (respondent in Civil Case No. B-1290) to file her answer to the complaint.[23] On 21 July 2008, the court DISMISSED the petition for nullity of marriage for failure of herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial brief.[24] Respondent, however, challenged the orders issued by the court before the Court of Appeals.[25] The matter is still pending resolution thereat.[26] Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March 2008 before the Court of Appeals,[27] herein petitioner alleged that the Pasay City trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed the case of bigamy and denied her motion for reconsideration. In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:
The present petition xxx is fatally infirm in form and substance for the following reasons: 1. The verification is defective as it does not include the assurance that the allegations in the petition are based on authentic records. 2. Since the petition assails the trial courts dismissal of the criminal information for bigamy filed against private respondent Leo Beronilla, the petition, if at all warranted, should be filed in behalf of the People of the Philippines by the Office of the Solicitor General, being its statutory counsel in all appealed criminal cases. 3. There is a violation of the rule on double jeopardy as the dismissal of the subject criminal case is tantamount to an acquittal based on the trial courts finding that the first essential element of bigamy, which is a first valid marriage contracted by private respondent is wanting. There is no clear showing in the petition that the dismissal was tainted with arbitrariness which violated petitioners right to due process. Notably, petitioner filed her comment/opposition to private respondents motion to quash before the trial court issued its Order dated September 20, 2007 dismissing the information. Hence, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. [28]

On 18 July 2008, the Court of Appeals denied respondents Motion for Reconsideration of the aforequoted Resolution for lack of merit. [29] Hence, this petition.[30] Our Ruling I We are convinced that this petition should be given due course despite the defect in the pleading and the question of legal standing to bring the action. The Rules of Court provides that a pleading required to be verified which lacks a proper verification shall be treated as unsigned pleading.[31] This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the ends of justice may be served.[32] The defect being merely formal and not jurisdictional, we ruled that the court may nevertheless order the correction of the pleading, or even act on the pleading if the attending circumstances are such that xxx strict compliance with the rule may be dispensed with in order that the ends of justice xxx may be served.[33] At any rate, a pleading is required to be verified only to ensure that it was prepared in good faith, and that the allegations were true and correct and not based on mere speculations.[34] There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the authority to represent the government in a judicial proceeding before the Court of Appeals. The Administrative Code specifically defined its powers and functions to read, among others:
Sec. 35. Powers and Functions. - The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme

Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.[35]

As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal officers with respect to such cases.[36]

Thus, in Republic v. Partisala,[37] we held that the summary dismissal of an action in the name of the Republic of the Philippines, when not initiated by the Solicitor General, is in order.[38] Not even the appearance of the conformity of the public prosecutor in a petition for certiorari would suffice because the authority of the City Prosecutor or his assistant to represent the People of the Philippines is limited to the proceedings in the trial court.[39] We took exceptions, however, and gave due course to a number of actions even when the respective interests of the government were not properly represented by the Office of the Solicitor General. In Labaro v. Panay,[40] this Court dealt with a similar defect in the following manner: It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling of the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order or ruling before us.[41] xxx Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the Philippines, we opted not to dismiss the petition on this technical ground. Instead, we required the OSG to comment on the petition, as we had done before in some cases.[42] In light of its Comment, we rule that the OSG has ratified and adopted as its own the instant petition for the People of the Philippines. (Emphasis supplied.) In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.,[43] without requiring the Office of the Solicitor

General to file a comment on the petition, this Court determined the merits of the case involving a novel issue on the nature and scope of jurisdiction of the Cooperative Development Authority to settle cooperative disputes as well as the battle between two (2) factions concerning the management of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc. (DARBCI) that inevitably threatens the very existence of one of the countrys major cooperatives.[44] And, lest we defeat the ends of justice, we opt to look into the merit of the instant petition even absent the imprimatur of the Solicitor General. After all, for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone.[45] To borrow the words of then Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case pending with the trial court was sought:
[T]he task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who [come or are brought to court] are afforded a fair opportunity to present their side[s]. xxx The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case.[46]

II We cannot agree with the Court of Appeals that the filing of this petition is in violation of the respondents right against double jeopardy on the theory that he has already been practically acquitted when the trial court quashed the Information. Well settled is the rule that for jeopardy to attach, the following requisites must concur:
(1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.[47]

The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not yet entered his plea to the charge when he filed the Motion to

Quash the Information, and (2) the case was dismissed not merely with his consent but, in fact, at his instance.[48] We reiterate, time and again, that jeopardy does not attach in favor of the accused on account of an order sustaining a motion to quash.[49] More specifically, the granting of a motion to quash anchored on the ground that the facts charged do not constitute an offense is not a bar to another prosecution for the same offense.[50] Thus:
It will be noted that the order sustaining the motion to quash the complaint against petitioner was based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court that the facts charged in the complaint do not constitute an offense. If this is so then the dismissal of said complaint will not be a bar to another prosecution for the same offense, for it is provided in Section 8 of Rule 117 of the Rules of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that an order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 2, Subsection[s] (f) and (h) of this rule [now substantially reproduced in Section 3, Subsections (g) and (i) of the 2000 Rules of Criminal Procedure] xxx.[51]

III We now determine the merit of the petition did the trial court act without or in excess of jurisdiction or grave abuse of discretion when it sustained respondents motion to quash on the basis of a fact contrary to those alleged in the information? Petitioner maintains that the trial court did so because the motion was a hypothetical admission of the facts alleged in the information and any evidence contrary thereto can only be presented as a matter of defense during trial. Consistent with existing jurisprudence, we agree with the petitioner. We define a motion to quash an Information as
the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[52]

This motion is a hypothetical admission of the facts alleged in the Information,[53] for which reason, the court cannot consider allegations contrary to those appearing on the face of the information.[54] As further elucidated in Cruz, Jr. v. Court of Appeals:[55]
It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained. The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law. Contrary to the petitioners contention, a reading of the information will disclose that the essential elements of the offense charged are sufficiently alleged. It is not proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial. The issues require a fuller examination. Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations on the basis only of the petitioners evidence, such as [this].[56]

As in the recent case of Los Baos v. Pedro,[57] where we found no merit in respondents allegation that the facts charged do not constitute an offense because the Information duly charged a specific offense and provide[d] the details on how the offense was committed,[58] we see no apparent defect in the allegations in the Information in the case at bar. Clearly, the facts alleged in its accusatory portion, which reads:
That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, LEO R. BERONILLA, having been united in a lawful marriage with one MYRNA A. BERONILLA, which marriage is still in force and subsisting and without having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with one Cecile Maguillo, which subsequent marriage of the accused has all the essential requisites for validity.[59]

sufficiently constitute an offense. It contained all the elements of the crime of Bigamy under Article 349 of the Revised Penal Code hereunder enumerated:
(1) that the offender has been legally married; (2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity.[60]

The documents showing that: (1) the court has decreed that the marriage of petitioner and respondent is null and void from the beginning; and (2) such judgment has already become final and executory and duly registered with the Municipal Civil Registrar of Naval, Biliran are pieces of evidence that seek to establish a fact contrary to that alleged in the Information that a first valid marriage was subsisting at the time the respondent contracted a subsequent marriage. This should not have been considered at all because matters of defense cannot be raised in a motion to quash. Neither do we find a justifiable reason for sustaining the motion to quash even after taking into consideration the established exceptions to the rule earlier recognized by this Court, among others: (1) when the new allegations are admitted by the prosecution;[61] (2) when the Rules so permit, such as upon the grounds of extinction of criminal liability and double jeopardy; [62] and (3) when facts have been established by evidence presented by both parties which destroyed the prima facie truth of the allegations in the information during the hearing on a motion to quash based on the ground that the facts charged do not constitute an offense, and it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction xxx.[63] For of what significance would the document showing the belated dissolution of the first marriage offer? Would it serve to prevent the impracticability of proceeding with the trial in accordance with People v. dela Rosa thereby warranting the non-observance of the settled rule that a motion to quash is a hypothetical admission of the facts alleged in the information? We quote:
[W]here in the hearing on a motion to quash predicated on the ground that the allegations of the information do not charge an offense,

facts have been brought out by evidence presented by both parties which destroy the prima facie truth accorded to the allegations of the information on the hypothetical admission thereof, as is implicit in the nature of the ground of the motion to quash, it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction, and hold the accused to what would clearly appear to be a merely vexatious and expensive trial, on her part, and a wasteful expense of precious time on the part of the court, as well as of the prosecution.[64] (Emphasis supplied.)

We find that there is none. With the submission of the documents showing that the court has declared the first marriage void ab initio, respondent heavily relied on the rulings[65] in People v. Mendoza and Morigo declaring that: (a) a case for bigamy based on a void ab initio marriage will not prosper because there is no need for a judicial decree to establish that a voidab initio marriage is invalid;[66] and (b) a marriage declared void ab initio has retroactive legal effect such that there would be no first valid marriage to speak of after all, which renders the elements of bigamy incomplete.[67] Both principles, however, run contrary to the new provision of the Family Code, which was promulgated by the late President Corazon C. Aquino in 1987, a few years before respondents subsequent marriage was celebrated in 1991. The specific provision, which reads:
ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

was exhaustively discussed in Mercado,[68] where this Court settled the conflicting jurisprudence on the need for a judicial declaration of nullity of the previous marriage. After establishing that Article 40 is a new provision expressly requiring a judicial declaration of nullity of a prior marriage and examining a long line of cases,[69] this Court, concluded, in essence, that under the Family Code a subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case because, by then, the crime had already been consummated. Otherwise stated, this Court declared that a person, who contracts a

subsequent marriage absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy.[70] Notably, Morigo, was indeed promulgated years after Mercado. Nevertheless, we cannot uphold the Order dated 6 December 2007 of the trial court, which maintained thatMorigo has already superseded Mercado. In fact, in Morigo, this Court clearly distinguished the two (2) cases from one another, and explained:
The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. xxx It bears stressing though that in Mercado, the first marriage was actually solemnized xxx. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.[71]

The application of Mercado to the cases following Morigo even reinforces the position of this Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in Tenebro v. Court of Appeals:[72]
Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, xxx said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these

legal consequences is incurring bigamy. xxx.[73] (Emphasis supplied.)

criminal

liability

for

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico,[74] this Court pronounced: In a catena of cases,[75] the Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. xxx To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy does not constitute an offense. Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence. All considered, we find that the trial court committed grave abuse of discretion when, in so quashing the Information in Criminal Case No. 07-0907CFM, it considered an evidence introduced to prove a fact not alleged thereat disregarding the settled rules that a motion to quash is a hypothetical admission of the facts stated in the information; and that facts not alleged thereat may be appreciated only under exceptional circumstances, none of which is obtaining in the instant petition. WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional Trial Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July 2008 of the Court of Appeals are hereby SET ASIDE. Criminal Case No. 07-0907-CFM is REMANDED to the trial court for further proceedings. SO ORDERED.

FIRST DIVISION

ARTEMIO T. TORRES, JR., Petitioner,

G.R. No. 164268

Present: Davide, Jr., C.J. (Chairman), - versus Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ. SPS. DRS. EDGARDO AGUINALDO & NELIA T. TORRES-AGUINALDO, Promulgated: Respondents. June 28, 2005 x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari[1] assails the decision[2] of the Court of Appeals dated March 22, 2004 in CA-G.R. SP No. 77818, and its resolution[3] dated June 28, 2004 denying reconsideration thereof.

The facts are as follows:

Respondent-spouses Edgardo and Nelia Aguinaldo filed before the Office of the City Prosecutor (OCP) of Manila,[4] a complaint against petitioner Artemio T. Torres, Jr. (Torres) for falsification of public document. They alleged that titles to their properties covered by Transfer Certificates of Title Nos. T-93596, T-87764, and T-87765, were transferred without their knowledge and consent in the name of Torres through a forged Deed of Sale[5] dated July 21, 1979.

Torres denied the allegations of forgery and claimed that Aguinaldo sold the subject properties to him[6] as evidenced by the March 10, 1991 Deed of Absolute Sale.[7]

Finding probable cause, the OCP recommended the filing of an information for falsification of public document against Torres,[8] which was filed before the Metropolitan Trial Court of Manila (MTC), Branch 8, on October 3, 2001.

Torres moved for reconsideration[9] but was denied.[10]

On appeal,[11] the Secretary of Justice reversed the findings of the investigating prosecutor and ordered the withdrawal of the information.[12] The motion for reconsideration filed by Aguinaldo was denied.[13]

A Motion to Withdraw Information[14] was filed which the MTC granted on June 11, 2003.[15] It should be noted that petitioner has not been arraigned.

Meanwhile, Aguinaldo filed before the Court of Appeals a petition for certiorari[16] which was granted in the assailed decision dated March 22, 2004.

The dispositive portion of the assailed decision reads:

WHEREFORE, in view of the foregoing, the petition is GRANTED. The resolutions of the Secretary of Justice dated November 12, 2002 and April 30, 2003 in IS No. 01B05485 are REVERSED and SET ASIDE. The April 30, 2001 Resolution of the City Prosecutor of Manila finding probable cause against private respondent Artemio Torres, Jr. is REINSTATED. No costs.

SO ORDERED.[17]

Torres motion for reconsideration was denied,[18] hence, the instant petition for review on certiorari[19] on the following grounds:
I.

WHETHER OR NOT THE ORDER OF THE MTC-MANILA DATED 11 JUNE 2003 RENDERED MOOT AND ACADEMIC THE PETITION FOR CERTIORARI UNDER RULE 65 FILED BY RESPONDENTS BEFORE THE COURT OF APPEALS FOR THE PURPOSE OF REINSTATING THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001.
II. WHETHER OR NOT THE ASSAILED DECISION OF THE COURT OF APPEALS REINSTATING THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001 VIOLATED THE DOCTRINE THAT THE DETERMINATION OF A CRIMINAL CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT ONCE THE INFORMATION HAS BEEN FILED THEREIN.

III. WHETHER OR NOT THE EVIDENCE OF A RESPONDENT IN A CRIMINAL CASE SHOULD BE CONSIDERED DURING THE PRELIMINARY INVESTIGATION IN DETERMINING IF PROBABLE CAUSE EXISTS TO INDICT HIM FOR THE CRIME CHARGED.

IV. WHETHER OR NOT THE OCP-MANILA HAS ABSOLUTE DISCRETION IN DETERMINING IF PROBABLE CAUSE EXISTS TO INDICT THE PETITIONER FOR THE CRIME CHARGED.

V. WHETHER OR NOT THE COURT OF APPEALS WENT BEYOND THE OFFICE OF A WRIT OF CERTIORARI WHEN IT SUBSTITUTED ITS OWN JUDGMENT FOR THAT OF THE SECRETARY OF JUSTICE.

VI.
WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DELIBERATE DISREGARD OF THE RULES OF PROCEDURE WHEN IT IGNORED THE FINAL ORDER OF THE MTCMANILA DATED 11 JUNE 2003 AND ORDERED THE REINSTATEMENT OF THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001.

VII. WHETHER OR NOT RESPONDENTS ENGAGED IN FORUM SHOPPING WARRANTING THE OUTRIGHT DISMISSAL OF THE PETITIONER (sic) FOR CERTIORARI UNDER RULE 65 WHICH THEY FILED BEFORE THE COURT OF APPEALS.

VIII. WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DISREGARD OF SECTION 3, RULE 46 OF THE 1997 RULES OF CIVIL PROCEDURE WHEN IT ENTERTAINED THE PETITION FOR CERTIORARI UNDER RULE 65 FILED BY RESPONDENTS.[20]

The foregoing assignment of errors may be summarized into three issues:

I.

Whether the order of the MTC-Manila dated June 11, 2003 granting the motion to withdraw the information rendered moot the petition for certiorari filed by Aguinaldo for the purpose of reinstating the April 30, 2001 resolution of the OCP of Manila; and in the alternative, whether the rule on provisional dismissal under Section 8, Rule 117 applies.

II.

Whether Aguinaldo committed forum shopping.

III.

Whether the Court of Appeals erred in finding that the Secretary of Justice gravely abused his discretion in reinstating the April 30, 2001 order of the OCP of Manila finding probable cause against petitioner.

Anent the first issue, Torres contends that the order granting the withdrawal of the information rendered moot the petition for certiorari filed before the Court of Appeals. Citing Baares II v. Balising,[21] Torres insists that an order dismissing a case without prejudice is final if no motion for reconsideration or appeal therefrom is timely filed.

The contention is untenable. A motion to withdraw information differs from a motion to dismiss. While both put an end to an action filed in court, their legal effect varies. The order granting the withdrawal of the information attains finality after fifteen (15) days from receipt thereof, without prejudice to the refiling of the information upon reinvestigation.

On the other hand, the order granting a motion to dismiss becomes final fifteen (15) days after receipt thereof, with prejudice to the re-filing of the same case once such order achieves finality. In Baares II v. Balising, a motion to dismiss was filed thus putting into place the time-bar rule on provisional dismissal.

In the case at bar, a motion to withdraw information was filed and not a motion to dismiss. Hence, Baares II v. Balising would not apply. Unlike a motion to dismiss, a motion to withdraw information is not time-barred and does not fall within the ambit of Section 8, Rule 117 of the Revised Rules of Criminal Procedure which provides that the law on provisional dismissal becomes operative once the judge dismisses, with the express consent of the accused and with notice to the offended party: (a) a case involving a penalty of imprisonment not exceeding six (6) years or a fine of any amount, or both, where such provisional dismissal shall become permanent one (1) year after issuance of the order without the case having been revived; or (b) a case involving a penalty of imprisonment of more than six (6) years, where such provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

There is provisional dismissal[22] when a motion filed expressly for that purpose complies with the following requisites, viz.: (1) It must be with the express consent of the accused; and (2) There must be notice to the offended party. Section 8, Rule 117 contemplates the filing of a motion to dismiss, and not a motion to withdraw information. Thus, the law on provisional dismissal does not apply in the present case.

Even assuming that the Motion to Withdraw Information is the same as a Motion to Dismiss, we do not find that it complied with the above requisites. The Motion to Withdraw Information was filed by the Assistant City Prosecutor and approved by the City Prosecutor without the conformity of the accused, herein petitioner Torres. Thus, it cannot be said that the motion was filed with his express consent as required under Section 8, Rule 117.

Respondent-spouses are not guilty of forum shopping. The cases they filed against petitioner are based on distinct causes of action. Besides, a certificate of non-forum shopping is required only in civil complaints under Section 5, Rule 7 of the Revised Rules of Civil Procedure. In People v. Ferrer,[23] we held that such certificate is not even necessary in criminal cases and distinct causes of action.

Be that as it may, what is principally assailed is the Court of Appeals decision reversing the resolution of the Justice Secretary and reinstating the April 30, 2001 resolution of the OCP of Manila.

The issue, therefore, is whether the Secretary of Justice gravely abused his discretion in reversing the investigating prosecutors findings on the existence of probable cause. Section 1, Rule 112 of the Revised Rules of Criminal Procedure defines preliminary investigation as an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held

for trial. The officers authorized to conduct a preliminary investigation are the: (a) Provincial or city fiscals and their assistants; (b) Municipal Trial Courts and Municipal Circuit Trial Courts Judges; (c) National and Regional state prosecutors; and (d) Such other officers as may be authorized by law.[24]

Preliminary investigation is executive in character. It does not contemplate a judicial function. It is essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be reasonably charged with a crime. It is not a trial on the merits and has no purpose except to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. It does not place the person against whom it is taken in jeopardy.

Generally, preliminary investigation falls under the authority of the prosecutor. However, since there are not enough prosecutors, this function was also assigned to judges of Municipal Trial Courts and Municipal Circuit Trial Courts. Their findings are reviewed by the provincial or city prosecutor whose findings, in turn, may be reviewed by the Secretary of Justice in appropriate cases. After conducting preliminary investigation, the investigating judge must transmit within ten (10) days the resolution of the case together with the entire records to the provincial or city prosecutor.[25]

In Crespo v. Mogul,[26] we underscored the cardinal principle that the public prosecutor controls and directs the prosecution of criminal offenses whose resolutions may be reviewed by the Secretary of Justice.[27] We held that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail.[28]

We ruled in Ledesma v. Court of Appeals[29] that when a motion to withdraw an information is filed on the ground of lack of probable cause based on a resolution of the Secretary of Justice, the bounden duty of the trial court is to independently assess the merits of the motion. The judge is not bound by the resolution of the Justice Secretary but must evaluate it before proceeding with

the trial. While the ruling of the Justice Secretary is persuasive, it is not binding on courts.

In sum, prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to review by the Secretary of Justice. While his resolution is persuasive, it is not binding on the courts. The trial court must at all times make its own independent assessment of the merits of each case.

Thus, it is only where the decision of the Justice Secretary, or the trial court, as the case may be, is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure whose decision may then be appealed to this Court by way of a petition for review on certiorari.

The Court of Appeals held that the Justice Secretary committed grave abuse of discretion because he based his findings on the lack of probable cause on the 1991 Deed of Sale when what was assailed was the 1979 Deed of Sale. [30] It ruled that the defenses raised by Torres should not have been considered during the preliminary investigation but should be threshed out only during trial. [31] Only the evidence presented by the complainant should be considered in determining probable cause or the lack thereof. We are not persuaded. The Court of Appeals erred in relying solely on the affidavit-complaint and the NBI report[32] and disregarding totally the counter-affidavit and documentary evidence of petitioner. It is well to note that Section 3, Rule 112 of the Revised Rules of Criminal Procedure not only requires the submission of the complaint and the affidavits of the complainant and his witnesses, as well as other supporting documents, but also directs the respondent to submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. Section 4 thereof also

mandates the investigating prosecutor to certify under oath in the information that the accused was informed of the complaint and the evidence against him, and that he was given an opportunity to submit controverting evidence. Thus, in determining the existence or absence of probable cause, the investigating officer shall examine the complaint and documents in support thereof as well as the controverting evidence presented by the defense. While the validity and merits of a partys defense or accusation and the admissibility of the testimonies and evidence are best ventilated in a full blown trial, still, in a preliminary investigation, a proper consideration of the complaint and supporting evidence as well as the controverting evidence, is warranted to determine the persons who may be reasonably charged with the crime. The determination must be based on the totality of evidence presented by both parties. Prescinding from these premises, we find that the Justice Secretary did not abuse his discretion in examining both the evidence presented by the complainant and the accused in determining the existence or the lack of probable cause. There is basis in his finding that no probable cause exists. The complaint and the 1979 Deed of Sale do not connect petitioner with the crime of falsification. While the NBI report showed that the 1979 Deed of Sale was falsified, there is no showing that petitioner was the author thereof. We cannot discern direct and personal participation by the petitioner in the alleged forged deed. While a finding of probable cause rests on evidence showing that, more likely than not, a crime has been committed and was committed by the accused, the existence of such facts and circumstance must be strong enough to create a rational and logical nexus between the acts and omissions and the accused. The allegation that petitioner effectuated the illicit transfer of the disputed properties in his name is without factual basis. He was not in possession of the alleged forged deed which does not even bore his signature. We find merit in his contention that the subject properties were sold to him on March 10, 1991 considering that the new TCTs were issued in his name only on March 26, 1991. His address mentioned in the 1979 Deed of Sale was non-existent yet in 1979, thus giving the impression that it was executed on a later date. It would be absurd for petitioner to use the 1979 Deed of Sale to facilitate the transfer on March 26, 1991 considering his possession of the March 10, 1991 Deed of Sale. Respondents never denied the allegation that they assumed the obligation of transferring the Tanza properties in petitioners name. Considering that they

wanted to cancel the sale and that they were in possession of the forged deed, it is not far-fetched to assume that they facilitated the transfer of the properties using the allegedly 1979 forged deed. It appears that the conveyance of the questioned properties in favor of petitioner was made at the instance of the respondents. Torres has no reason to falsify the 1979 Deed of Sale when he had in his possession the 1991 Deed of Sale which he claims to be authentic. By presenting the alleged forged deed of sale, respondents cast a cloud of doubt on petitioners title. While motive is not reasonable basis in determining probable cause, the absence thereof further obviates the probability of petitioners guilt. Besides, Nelia Aguinaldo admitted in her letter dated November 12, 1998 the sale of the properties although she wanted the sale cancelled. This admission is consistent with petitioners declaration that the sale took place. In their complaint, respondents claimed that they discovered the alleged illegal conveyance in November 2000.[33] This was, however, belied by their Adverse Claim dated December 18, 1999 which appeared as Entry No. 5856-115 and annotated on the new titles issued in the name of Torres in February 2000.[34] In November 1998, Nelia was claiming her share in the property that was sold by Torres to Porfirio and Yolanda Dones in 1993.[35]

In D.M. Consunji, Inc. v. Esguerra,[36] grave abuse of discretion is defined:

By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.

The Secretary of Justice did not whimsically and capriciously exercise his discretion. His findings was grounded on sound statutory and factual basis. Chief Justice Andres Narvasa in his separate opinion in Roberts, Jr. v. Court of Appeals[37] declared that the determination of probable cause to warrant the

prosecution in court should be consigned and entrusted to the Department of Justice, as reviewer of the findings of the public prosecutors. To do otherwise is to usurp a duty that exclusively pertains to an executive official. In Noblejas v. Salas,[38] we reaffirmed the power of supervision and control of the department secretary over his subordinate. We stated that the power of control therein contemplated means to alter, modify, or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. For, while it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Secretary of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecution. He would be committing a serious dereliction of duty if he orders or sanctions the filing of an information based upon a complaint where he is not convinced that the evidence warrants the filing of the action in court. We also find that the trial court independently assessed the merits of the motion to withdraw information. Before it was granted, respondents were allowed to submit their opposition[39] and the petitioner to comment[40] thereon, which were both considered. The trial judge also considered the basis of the Justice Secretarys resolution before finding that no probable cause exists, thus:
The two DOJ Resolutions absolving the accused from incipient criminal liability were premised on the ground that the herein accused had no participation in the preparation of the alleged falsified Deed of Sale dated July 29, 1979, which deed, in effect, transferred ownership of private complainants three parcels of land located in Tanza, Cavite to the accused. This finding was based on the argument that it would be highly irregular for the accused to effect the transfer of the property through a falsified deed when accused had in his possession a valid and genuine Deed of Sale dated March 10, 1991 executed by the spouses-complainants transferring ownership of the aforesaid property to him.

The court is inclined to grant the motion of the public prosecutor.

The issues which the court has to resolve in the instant case had been amply discussed in the aforesaid resolutions of the DOJ and it is convinced that, indeed, no probable cause exists against the accused.[41]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated March 22, 2004 is REVERSED and SET ASIDE. The resolution of the Secretary of Justice dated November 12, 2002 is REINSTATED. No costs. SO ORDERED.

G.R. No. 149111. August 9, 2005]

JOSE S. BALTAZAR, petitioner, vs. DOMINGO B. PANTIG, RUBEN PANTIG, TITO F. BELMONTE, MARLON T. AGAPITO, FRED C. PANGANIBAN, EDDIE DELA CRUZ AGUILAR, RICARDO S. TOLENTINO, MIGUEL ESTABILLO, MELVIN C. VILLANUEVA, EDSEL M. LUNGAY, ROLDAN C. CENTES, RODOLFO J. SANTOS, CONRADO P. JUAT, and LEOPOLDO SANTOS, JR., respondents. DECISION
SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, of the Decision dated March 23, 2001 and Resolution dated July 16, 2001 of the Court of Appeals in CAG.R. SP No. 62074.
[1]

This case is an offshoot of a property dispute between Jose S. Baltazar, petitioner, and the above-named respondents. In Pantig vs. Baltazar, this Court declared respondents the rightful owners of a 139,126 hectare fishpond located at Sasmuan, Pampanga. After they had been placed in possession of the fishpond, they started cleaning it and had it resurveyed. They rebuilt the destroyed dikes which separate their fishpond from petitioners property.
[2]

Alleging that respondents stole fish and other marine products from his property, petitioner filed a complaint for qualified theft against them with the Municipal Trial Court (MTC) of Sasmuan, Pampanga. After conducting a preliminary investigation, the MTC found probable cause against all the

accused (now respondents) and forwarded the records to the Office of the Provincial Prosecutor of that province. On December 7, 1999, the Provincial Prosecutor filed an Information for qualified theft against respondents with the Regional Trial Court (RTC), Branch 49, Guagua, Pampanga, docketed as Criminal Case No. G-4877. Upon motion of respondents, the RTC, in a Resolution dated December 14, 1999, ordered a reinvestigation of the case. On January 10, 2000, the Office of the Provincial Prosecutor filed with the RTC its Resolution recommending the dismissal of the complaint on the following ground: The long and protracted land registration case which the Pantigs won should have finally put to rest the issue of ownership and possession of the fishponds in issue, but it seems that the issue is being resurrected again through this complaint where one owner, his son and a son-in-law of a co-owner are being accused of stealing from their own fishpond together with their workers. That, to put it mildly is ridiculous. Acting thereon, the RTC issued an Order dated January 25, 2000 dismissing the Information. Instead of filing with the RTC a motion for reconsideration, petitioner, on February 9, 2000, filed a motion with the Office of the Provincial Prosecutor praying, among others, that the Information in Criminal Case No. G-4877 be reinstated and/or refiled by the Office of the Provincial Prosecutor. On March 6, 2000, the Provincial Prosecutor denied petitioners motion for lack of merit, pointing out the proper recourse petitioner should have taken, thus: Procedurally and substantially, the Motions is defective. The reinvestigation was ordered by the court and it was also the court which dismissed the case. Accordingly, complainants recourse is either to file a motion for reconsideration with that court, or elevate the case to the higher court in a proper action for that purpose. Petitioner moved for a reconsideration but was denied by the Provincial Prosecutor in an Order dated March 31, 2000. On April 4, 2000, petitioner filed a petition for certiorari, raffled to the same RTC, Branch 49, docketed therein as Special Civil Case No. G-313. Petitioner alleged that the Provincial Prosecutor committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the

Resolutions dated March 6 and 31, 2000; and that he was denied due process. For their part, respondents filed a motion to dismiss the petition for certiorari based on the following grounds: a) Petitioner failed to exhaust all administrative remedies; b) He failed to appeal to the Secretary of Justice pursuant to Department Order No. 223; and c) Petitioner lacks the legal capacity to sue. The Provincial Prosecutor also moved for the dismissal of the petition on the ground that petitioner pursued the wrong remedy, arguing that the correctness of the findings of the prosecution in resolving a complaint is a matter of appeal. Petitioner should have appealed the January 10, 2000 resolution of dismissal, if he so desired, for that is a matter of discretion. That he did not do so is his own fault. A certiorari is not a substitute for appeal. Plainly, this petition is unmeritorious simply because jurisdiction is a non-issue and petitioner had a right to appeal which he did not pursue. On October 20, 2000, the RTC dismissed the petition for certiorari on the ground that petitioner failed to exhaust all administrative remedies. Petitioner then interposed an appeal to the Court of Appeals. In a Decision dated March 23, 2001, the Appellate Court affirmed the RTCs assailed Order of October 20, 2000, holding that petitioners proper remedy was not to file a petition for certiorari, but to appeal the assailed Resolutions of the Provincial Prosecutor to the Department of Justice. After his motion for reconsideration was denied by the Court of Appeals on July 16, 2000, petitioner filed the instant petition for review on certiorari, raising the following grounds: A. THE ADVERSE MARCH 23, 2001 DECISION AND JULY 16, 2001 RESOLUTION OF THE HONORABLE COURT OF APPEALS ARE NOT IN ACCORD WITH LAW AND ESTABLISHED JURISPRUDENCE. B. THE HONORABLE COURT OF APPEALS IN EFFECT SANCTIONED THE DEPARTURE OF THE PUBLIC RESPONDENTS AND THE REGIONAL TRIAL COURT FROM THE USUAL COURSE OF JUDICIAL PROCEEDINGS.

C. THE HONORABLE COURT OF APPEALS IN EFFECT DID NOT RECOGNIZE THE BASIC RIGHT OF PETITIONER TO DUE PROCESS OF LAW. We hold that the Court of Appeals seriously erred in affirming the Decision of the RTC dismissing petitioners petition for certiorari for his failure to exhaust administrative remedies. When the RTC dismissed the Information for qualified theft on the basis of the Provincial Prosecutors Resolutions, petitioners remedy was to file a motion for reconsideration. If it were granted, then the Information could have been reinstated. If not, he could have elevated the matter to a higher court. In other words, the remedies then available to him were within the courts, not elsewhere. This is basic. It bears emphasis that the case was no longer in the Provincial Prosecutors Office. The Information had been filed and pending in the RTC. Therefore, the discretion whether to dismiss the Information lay in the same court, as what it did, as well as the discretion to reverse its order of dismissal. We simply cannot understand why the Court of Appeals ruled that petitioner should have interposed an appeal to the Secretary of Justice. This is a gross procedural infirmity that the Appellate Court Justices concerned are expected to know. While the RTC correctly dismissed the petition for certiorari, however, the ground relied upon (non-exhaustion of administrative remedies) is utterly misplaced. Worse, the Court of Appealserroneously upheld such procedural lapse. WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 62074 are REVERSED. SO ORDERED.

G.R. No. 144037. September 26, 2003]

PEOPLE OF THE TUDTUD y PAYPA appellants.

PHILIPPINES, plaintiff-appellee, vs. NOEL and DINDO BOLONG y NARET, accusedDECISION

TINGA, J.:

. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime, I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part. So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. On this occasion, this Court is made to choose between letting suspected criminals escape or letting the government play an ignoble part.
[1]

Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a report from a civilian asset named Bobong Solier about a certain Noel Tudtud. Solier related that his neighbors have been complaining about Tudtud, who was allegedly responsible for the proliferation of marijuana in their area.
[2] [3]

Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their superior, SPO1 Villalonghan, all members of the Intelligence Section of the Toril Police Station, conducted surveillance in Soliers neighborhood in Sapa, Toril, Davao City. For five days, they gathered information and learned that Tudtud was involved in illegal drugs. According to his neighbors, Tudtud was engaged in selling marijuana.
[4] [5] [6] [7]

On August 1, 1999, Solier informed the police that Tudtud had headed to Cotabato and would be back later that day with new stocks of marijuana. Solier described Tudtud as big-bodied and short, and usually wore a hat. At around 4:00 in the afternoon that same day, a team composed of PO1 Desierto, PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon and McArthur Highway to await Tudtuds arrival. All wore civilian clothes.
[8] [9] [10] [11]

About 8:00 later that evening, two men disembarked from a bus and helped each other carry a carton marked King Flakes. Standing some five feet away from the men, PO1 Desierto and PO1 Floreta observed that one of the men fit Tudtuds description. The same man also toted a plastic bag.
[12] [13] [14] [15]

PO1 Floreta and PO1 Desierto then approached the suspects and identified themselves as police officers. PO1 Desierto informed them that the police had received information that stocks of illegal drugs would be arriving that night. The man who resembled Tudtuds description denied that he was
[16] [17]

carrying any drugs. PO1 Desierto asked him if he could see the contents of the box. Tudtud obliged, saying, it was alright. Tudtud opened the box himself as his companion looked on.
[18] [19] [20] [21]

The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped plastic bag and another in newspapers. PO1 Desierto asked Tudtud to unwrap the packages. They contained what seemed to the police officers as marijuana leaves.
[22] [23] [24] [25]

The police thus arrested Tudtud and his companion, informed them of their rights and brought them to the police station. The two did not resist.
[26] [27]

The confiscated items were turned over to the Philippine National Police (PNP) Crime Laboratory for examination. Forensic tests conducted by Police Chief Inspector Noemi Austero, forensic chemist of the PNP Crime Laboratory, Region XI, on specimens taken from the confiscated items confirmed the police officers suspicion. The plastic bag contained 3,200 grams of marijuana leaves while the newspapers contained another 890 grams. Police Chief Inspector Austero reduced her findings in her report, Physical Sciences Report No. D-220-99 dated 2 August 1999.
[28] [29] [30]

Noel Tudtud and his companion, Dindo Bulong, were subsequently charged before the Regional Trial Court (RTC) of Davao City with illegal possession of prohibited drugs. Upon arraignment, both accused pleaded not guilty. The defense, however, reserved their right to question the validity of their arrest and the seizure of the evidence against them.
[31] [32] [33] [34]

Trial ensued thereafter. The prosecution presented five witnesses, namely, arresting officers PO1 Desierto and PO1 Floreta, their civilian informant Bobong Solier, forensic chemist Police Chief Inspector Noemi Austero, and SPO3 Nicolas Algabre, exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the foregoing narration of facts. The accused, denying the charges against them, cried frame-up. Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan, North Cotabato to sell pairs of Levis pants, which was his sideline. At about 5:00 in the afternoon, he returned to Davao City by bus. Upon reaching Toril, Tudtud, along with less than ten passengers, got down the bus.
[35] [36] [37]

Suddenly, a man who identified himself as a police officer approached him, pointing a .38 caliber revolver. The man told him not to run. Tudtud raised his arms and asked, Sir, what is this about? The man answered that
[38] [39] [40]

he would like to inspect the plastic bag Tudtud was carrying, and instructed Tudtud to open the bag, which revealed several pairs of Levis pants.
[41]

The man then directed Tudtud to open a carton box some two meters away. According to Tudtud, the box was already there when he disembarked the bus. Tudtud told the man the box was not his, but proceeded to open it out of fear after the man again pointed his revolver at him. Tudtud discovered pieces of dried fish, underneath which was something wrapped in cellophane.
[42] [43] [44] [45]

What is that? the man asked. Tudtud replied that he did not know. Without even unwrapping the cellophane, the man said it was marijuana and abruptly handcuffed Tudtud.
[46] [47] [48]

Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street, some eight meters from Tudtud.
[49]

Bolong recounted that he was on his way to a relative in Daliao after attending a cousins wedding in Hagonoy, Davao del Sur when he was accosted. After alighting the bus, Bolong crossed the street. Someone then approached him and pointed a gun at him. The man ordered him not to move and handcuffed him. Bolong asked why he was being arrested but the man just told him to go with them.
[50] [51] [52] [53] [54]

The suspects were then taken to the police station where, they would later claim, they met each other for the first time.
[55]

Assailing the credibility of informant Bobong Solier, the defense offered the testimonies of Felicia Julaton, Branch 3 Clerk of Court, Claudio Bohevia, Branch 7 Clerk of Court, and Mercedita Abunda, Branch 9 Utility Clerk, all of the Davao City Municipal Trial Circuit Court. They testified and presented court documents showing that one Bobo or Bobong Ramirez was charged in their respective branches with various crimes, specifically, light threats, less serious physical injuries and robbery. The defense asserted that the Bobo or Bobong Ramirez accused in these cases is the same person as the informant Bobong Solier.
[56] [57] [58] [59]

Swayed by the prosecutions evidence beyond reasonable doubt, the RTC rendered judgment convicting both accused as charged and sentencing them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00.
[60]

On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the admission in evidence of the marijuana leaves, which they claim were seized in violation of their right against unreasonable searches and seizures.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution, which states: SEC. 2. The right of the people to be secured in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the places to be searched and the persons or things to be seized. The rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes unreasonable within the meaning of the above-quoted constitutional provision, and any evidence secured thereby, will be inadmissible in evidence for any purpose in any proceeding. Section 3 (2), Article III of the Constitution explicitly provides:
[61]

(2) Any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding. The proscription in Section 2, Article III, however, covers only unreasonable searches and seizures. The following instances are not deemed unreasonable even in the absence of a warrant: 1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search of evidence in plain view. The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (d) plain view justified mere seizure of evidence without further search; 3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search;

5. 6. 7.

Customs search; Stop and Frisk; and Exigent and emergency circumstances.
[62]

The RTC justified the warrantless search of appellants belongings under the first exception, as a search incident to a lawful arrest. It cited as authorities this Courts rulings in People v. Claudio, People v. Tangliben, People v. Montilla, and People v. Valdez. The Office of the Solicitor General (OSG), in arguing for the affirmance of the appealed decision, invokes the cases of People v. Maspil, Jr., People v. Malmstedt, and People v. Bagista.
[63] [64] [65] [66] [67] [68] [69]

A search incidental to a lawful arrest is sanctioned by the Rules of Court. Prior to its revision in 2000, Section 12, Rule 126 of said Rules read as follows:
[70]

SEC. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests: SEC. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; . It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. The question, therefore, is whether the police in this case had probable cause to arrest appellants. Probable cause has been defined as:
[71] [72]

an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on

actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith of the peace officers making the arrest.
[73]

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that reliable information alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. In the leading case of People v. Burgos, this Court held that the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. In Burgos, the authorities obtained information that the accused had forcibly recruited one Cesar Masamlok as member of the New Peoples Army, threatening the latter with a firearm. Upon finding the accused, the arresting team searched his house and discovered a gun as well as purportedly subversive documents. This Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court inapplicable, ruled that:
[74] [75]

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellants wife. At the time of the appellants arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.
[76]

Consequently, the items seized were held inadmissible, having been obtained in violation of the accuseds constitutional rights against unreasonable searches and seizures. In People v. Aminnudin, this Court likewise held the warrantless arrest and subsequent search of appellant therein illegal, given the following circumstances:
[77]

the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that he called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.
[78]

Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding ones abdomen, or of standing on a corner with ones eyes moving very fast, looking at every person who came near, does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in ones pocket, handing over ones baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction State intrusion. The same rule applies to crossing the street per se.
[79] [80] [81] [82] [83] [84] [85]

Personal knowledge was also required in the case of People v. Doria. Recently, in People v. Binad Sy Chua, this Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Reliable information alone is insufficient.
[86] [87]

In the following cases, the search was held to be incidental to a lawful arrest because of suspicious circumstances: People v. Tangliben (accused was acting suspiciously), People v. Malmstedt (a bulge on the accuseds waist), and People v. de Guzman (likewise a bulge on the waist of the accused, who was wearing tight-fitting clothes).
[88] [89] [90]

There is, however, another set of jurisprudence that deems reliable information sufficient to justify a search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating fromBurgos. To this class of cases belong People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People v. Montilla, People v. Valdez, and People v. Gonzales. In these cases, the arresting authorities were acting on information regarding an offense but there were no overt acts or suspicious circumstances that would indicate that the accused has committed, is actually committing, or is attempting to commit the same. Significantly, these cases, except the last two, come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches.
[91] [92] [93] [94] [95] [96] [97]

Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase in his presence therein, connoting personal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law.
[98]

The cases invoked by the RTC and the OSG are, therefore, gravely misplaced. In Claudio, the accused, who was seated aboard a bus in front of the arresting officer, put her bag behind the latter, thus arousing the latters suspicion. In Tangliben and Malmstedt, the accused had also acted suspiciously.
[99]

As noted earlier, Maspil, Jr., Bagista and Montilla were justified by other exceptions to the rule against warrantless searches. Montilla, moreover, was not without its critics. There, majority of the Court held: Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellants luggage. It would obviously have been irresponsible, if now downright absurd under the circumstances, to require the constable to adopt a wait and see attitude at the risk of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified.
[100]

While concurring with the majority, Mr. Justice Vitug reserved his vote on the discussion on the warrantless search being incidental to a lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices Melo and Puno, filed a Separate Opinion. Although likewise concurring in the majoritys ruling that appellant consented to the inspection of his baggage, Justice Panganiban disagreed with the conclusion that the warrantless search was incidental to a lawful arrest. He argued that jurisprudence required personal knowledge on the part of the officers making the in flagrante delicto arrest. In Montilla, the appellant did not exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise. Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. . To say that reliable tips constitute probable cause for a warrantless arrest or search is in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilis during the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will

no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed the majoritys ruling would open loopholes that would allow unreasonable arrests, searches and seizures.
[101]

Montilla would shortly find mention in Justice Panganibans concurring opinion in People v. Doria, supra, where this Court ruled: Accused-Appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangits) query as to where the marked money was. Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, with or without any conspiracy. Save for accused-appellant Dorias word, the Narcom agents had no showing that the person who affected the warantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. [Italics in the original.]
[102]

Expressing his accord with Mr. Justice Punos ponencia, Justice Panganiban said that Doria rightfully brings the Court back to well-settled doctrines on warrantless arrests and searches, which have seemingly been modified through an obiter in People v. Ruben Montilla.
[103]

Montilla, therefore, has been seemingly discredited insofar as it sanctions searches incidental to lawful arrest under similar circumstances. At any rate, Montilla was a consented search. As will be demonstrated later, the same could not be said of this case. That leaves the prosecution with People v. Valdez, which, however, involved an on-the-spot information. The urgency of the circumstances, an element not present in this case, prevented the arresting officer therein from obtaining a warrant. Appellants in this case were neither performing any overt act or acting in a suspicious manner that would hint that a crime has been, was being, or was about to be, committed. If the arresting officers testimonies are to be

believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud did appear afraid and perspiring, pale and trembling, this was only after, not before, he was asked to open the said box.
[104] [105] [106]

In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in possession of marijuana be described as personal, having learned the same only from their informant Solier. Solier, for his part, testified that he obtained his information only from his neighbors and the friends of appellant Tudtud:
Q What was your basis in your report to the police that Tudtud is going to Cotabato and get stocks of marijuana?

A Because of the protest of my neighbors who were saying who will be the person whou [sic] would point to him because he had been giving trouble to the neighborhood because according to them there are [sic] proliferation of marijuana in our place. That was the complained [sic] of our neighbors. Q Insofar as the accused Tudtud is concerned what was your basis in reporting him particularly?

A His friends were the once who told me about it. Q For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of marijuana?

A About a month. . Q Regarding the report that Tudtud went to Cotabato to get stocks of marijuana which led to his apprehension sometime in the evening of August 1 and according to the report [which] is based on your report my question is, how did you know that Tudtud will be bringing along with him marijuana stocks on August 1, 1999?

. A Because of the information of his neighbor.[107]

In other words, Soliers information itself is hearsay. He did not even elaborate on how his neighbors or Tudtuds friends acquired their information that Tudtud was responsible for the proliferation of drugs in their neighborhood. Indeed, it appears that PO1 Floreta himself doubted the reliablility of their informant. He testified on cross-examination:
Q Q You mean to say that Bobot Solier, is not reliable? A He is trustworthy. Why [did] you not consider his information not reliable if he is reliable?

A (witness did not answer). ATTY. CAETE: Never mind, do not answer anymore. Thats all.[108]

The prosecution, on re-direct examination, did not attempt to extract any explanation from PO1 Floreta for his telling silence. Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own surveillance. This surveillance, it turns out, did not actually consist of staking out appellant Tudtud to catch him in the act of plying his illegal trade, but of a mere gather[ing] of information from the assets there. The police officers who conducted such surveillance did not identify who these assets were or the basis of the latters information. Clearly, such information is also hearsay, not of personal knowledge.
[109]

Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant, PO1 Desiertos assertions of lack of time notwithstanding. Records show that the police had ample opportunity to apply for a warrant, having received Soliers information at around 9:00 in the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening of the same day. In People v. Encinada, supra, the Court ruled that there was sufficient time to procure a warrant where the police officers received at 4:00 in the afternoon an intelligence report that the accused, who was supposedly carrying marijuana, would arrive the next morning at 7:00 a.m.:
[110] [111]

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows application for search warrants even after office hours: 3. Raffling shall be strictly enforced, except only in case where an application for search warrant may be filed directly with any judge whose jurisdiction the place to be searched is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal holidays; . . .. The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled Amended Guidelines and Procedures on Application for search warrants for Illegal Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas:

This Court has received reports of delay while awaiting raffle, in acting on applications for search warrants in the campaign against loose firearms and other serious crimes affecting peace and order. There is a need for prompt action on such applications for search warrant. Accordingly, these amended guidelines in the issuance of a search warrant are issued: 1. All applications for search warrants relating to violation of the Antisubversion Act, crimes against public order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located. 2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where application is filed. 3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that its issuance is urgent. 4. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Courts Administrative Circular No. 13, dated October 1, 1985. [Italics in the original.]
[112]

Given that the police had adequate time to obtain the warrant, PO1 Floretas testimony that the real reason for their omission was their belief that they lacked sufficient basis to obtain the same assumes greater significance. This was PO1 Floretas familiar refrain:
Q When Solier reported to you that fact, that Tudtud will be coming from Cotabato to get that (sic) stocks, you did not go to court to get a search warrant on the basis of the report of Bobot Solier? A No. Q Why? A Because we have no real basis to secure the search warrant.

Q When you have no real basis to secure a search warrant, you have also no real basis to search Tudtud and Bulong at that time? A Yes, sir. . Q And Bobot Solier told you that Tudtud, that he would already bring marijuana? A Yes, sir. Q And this was 9:00 a.m.? A Yes, sir. Q The arrival of Tudtud was expected at 6:00 p.m.? A Yes, sir. Q Toril is just 16 kilometers from Davao City? A Yes, sir. Q And the Office of the Regional Trial Court is only about 16 kilometers, is that correct? A Yes, sir. Q And it can be negotiated by thirty minutes by a jeep ride? A Yes, sir. Q And you can asked [sic] the assistance of any prosecutor to apply for the search warrant or the prosecutor do [sic] not assist? A They help. Q But you did not come to Davao City, to asked [sic] for a search warrant? A As I said, we do not have sufficient basis.[113]

It may be conceded that the mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on [the courts] which must independently scrutinize the objective facts to determine the existence of probable cause and that a court may also find probable cause in spite of an officers judgment that none exists. However, the fact that the arresting officers felt that they did not have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises serious questions whether such surveillance actually yielded any pertinent information and even whether they actually conducted any informationgathering at all, thereby eroding any claim to personal knowledge.
[114]

Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present: 1. It must appear that the rights exist;

2. The person involved had knowledge, actual or constructive, of the existence of such right; 3. Said person had an actual intention to relinquish the right.
[115]

Here, the prosecution failed to establish the second and third requisites. Records disclose that when the police officers introduced themselves as such and requested appellant that they see the contents of the carton box supposedly containing the marijuana, appellant Tudtud said it was alright. He did not resist and opened the box himself. The fundamental law and jurisprudence require more than the presence of these circumstances to constitute a valid waiver of the constitutional right against unreasonable searches and seizures. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights; acquiescence in the loss of fundamental rights is not to be presumed. The fact that a person failed to object to a search does not amount to permission thereto.
[116]

. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. [Underscoring supplied.]
[117]

Thus, even in cases where the accused voluntarily handed her bag or the chairs containing marijuana to the arresting officer, this Court held there was no valid consent to the search.
[118] [119]

On the other hand, because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented.
[120]

In any case, any presumption in favor of regularity would be severely diminished by the allegation of appellants in this case that the arresting officers pointed a gun at them before asking them to open the subject box. Appellant Tudtud testified as follows:
Q This person who approached you according to you pointed something at you[.] [What] was that something?

A A 38 cal. Revolver. Q How did he point it at you?

A Like this (Witness demonstrating as if pointing with his two arms holding something towards somebody). Q This man[,] what did he tell you when he pointed a gun at you? A He said do not run. Q What did you do? A I raised my hands and said Sir, what is this about? Q Why did you call him Sir? A I was afraid because when somebody is holding a gun, I am afraid. Q Precisely, why did you address him as Sir? A Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman. Q Q What did you say when you were asked to open that carton box? A I told him that is not mine. Q What did this man say? A He again pointed to me his revolver and again said to open. Q What did you do? A So I proceeded to open for fear of being shot.[121] When you asked him what is this? What did he say? A He said I would like to inspect what you are carrying.[]

Appellants implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, appellants lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.
[122] [123]

As the search of appellants box does not come under the recognized exceptions to a valid warrantless search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants cannot be sustained. The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of

primacy in the fundamental law way above the articles on governmental power.
[124]

The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. This is as it should be for, as stressed by a couple of noted freedom advocates, the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure includes the right to exist, and the right to enjoyment of life while existing. Emphasizing such right, this Court declared inPeople v. Aruta:
[125] [126] [127]

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: I think it is less evil that some criminals escape than that the government should play an ignoble part. It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.
[128]

Thus, given a choice between letting suspected criminals escape or letting the government play an ignoble part, the answer, to this Court, is clear and ineluctable. WHEREFORE, the Decision of the Regional Trial Court of Davao City is REVERSED. Appellants Noel Tudtud y Paypa and Dindo Bolong y Naret are hereby ACQUITTED for insufficiency of evidence. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. SO ORDERED. Bellosillo, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur. Quisumbing, J., please see dissenting opinion.
G.R. Nos. 92319-20 October 2, 1990

EDUARDO M. COJUANGCO, JR., petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) AND HON. FRANCISCO I. CHAVEZ in his capacity as Solicitor General, and the HON. OMBUDSMAN, respondents, MARIA CLARA L. LOBREGAT and JOSE R. ELEAZAR, JR., intervenors. Estelito P. Mendoza and Villareal Law Offices for petitioner. Angara, Abello, Concepcion, Regala & Cruz for intervenors.

GANCAYCO, J.: In these petitions the issues raised are: (1) whether or not the Presidential Commission on Good Government (PCGG) has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Cojuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a violation of petitioner's rights to due process and equal protection of the law. On November 28, 1989, President Corazon C. Aquino directed the Solicitor General to prosecute all persons involved in the misuse of coconut levy funds. Pursuant to the above directive the Solicitor General created a task force to conduct a thorough study of the possible involvement of all persons in the anomalous use of coconut levy funds. On January 12, 1990, the Solicitor General filed two criminal complaints with respondent PCGG docketed under I.S. Nos. 74 and 75.
1

The PCGG assigned both complaints to prosecutor Cesario del Rosario for preliminary investigation. The latter scheduled both cases for hearing. Del Rosario prepared a subpoena dated January 16, 1990 setting the preliminary investigation on January 29, 1990 at 2:00 o'clock in the afternoon as to respondents Maria Clara Lobregat, Jose Eleazar, Felix Duenas Jr., and Salvador Escudero, III, and on January 31, 1990 at 2:00 o'clock in the afternoon as to petitioner Eduardo M. Cojuangco, Jr., Rolando de la Cuesta, and Hermenegildo Zayco. At the scheduled preliminary investigation on January 31, 1990 petitioner appeared through counsel. Instead of filing a counter-affidavit, as required in the subpoena, he filed two motions addressed to the PCGG, namely; (1) a motion to disqualify/inhibit PCGG; alternatively, a motion to dismiss; and (2) motion to have the PCGG itself hear or resolve Cojuangco's motion to disqualify/inhibit PCGG alternatively, motion to dismiss. Prosecutor del Rosario denied both motions and declared the proceedings closed and the cases submitted for resolution. Thereafter, petitioner requested the PCGG to resolve directly his aforesaid motions. On February 27, 1990, the PCGG issued an order denying petitioner's motions and required him, together with all the respondents in I.S. Nos. 74 and 75 to submit counter-affidavits within five (5) days from receipt thereof. Petitioner did not submit the required counter-affidavit. Instead, he filed in this Court on March 12, 1990 the herein petitions for prohibition with prayer for a temporary restraining order/writ of preliminary injunction. He alleges that the PCGG may not conduct a preliminary investigation of the complaints filed by the Solicitor General without violating petitioner's rights to due process and equal protection of the law, and that the PCGG has no right to conduct such preliminary investigation. It is prayed that a temporary restraining order be issued enjoining the respondents and any or all persons acting under their orders or in their behalf from continuing with the preliminary investigation of I.S. Nos. 74 and 75 and enjoining as well the PCGG from taking any further action on said cases; and after hearing on the merits, to issue a writ of preliminary injunction prohibiting respondent PCGG from conducting a preliminary investigation of said criminal complaints and to order that the records of I.S. Nos. 74 and 75 be forwarded to the Ombudsman for such action he may consider appropriate and to pay the costs of the suits. In a resolution dated March 13, 1990, this Court, without giving due course to the petition, resolved to require respondents to comment thereon within ten (10) days from notice. On the same date, the PCGG issued an order that reads as follows: Considering that none of the respondents have filed their counter-affidavits and supporting evidence, except respondent Hermenegildo Zayco, the complaints filed against them may now be considered submitted for resolution by this Commission. Since the respondents, except Hermenegildo Zayco, have not submitted counter-affidavits and controverting evidence, the evidence submitted by the complainants stands uncontradicted. And this Commission finds the findings and conclusions of fact of the investigating prosecutor, that a prima facie case has been established against all the respondents, including Hermenegildo Zayco, to warrant the filing of an information for a violation of Section 3(1) in relation to Section 3(i) thus making them liable under Section 3(a) of RA 3019, to be well-founded.

Wherefore, let the corresponding information be filed.

On March 14, 1990, two informations 3 were filed by the PCGG with the Sandiganbayan against petitioner and all other respondents named in I.S. Nos. 74 and 75 which were docketed as Criminal Cases No. 14398 and 14399. Meanwhile, the Solicitor General filed with the PCGG several other complaints against petitioner and several others bearing on the misuse of the coconut levy funds. Two of these complaints were docketed as I.S. Nos. 79 and 82. A panel of prosecutors designated by the PCGG issued a subpoena to petitioner in order to compel him to appear in the investigation of said cases. On March 20, 1990, petitioner filed a supplemental petition informing the Court of the filing of said informations and the additional complaints aforestated. He prays that a temporary restraining order be issued enjoining respondents and other persons acting under their orders or in their behalf from continuing with the preliminary investigation of as well as taking further action in I.S. Nos. 79 and 82 and similar cases filed with the PCGG. Petitioner also prays that, after hearing, the PCGG be prohibited from continuing with the preliminary investigation of I.S. Nos. 79 and 82 and that it be ordered to forward the records of the case to the Ombudsman for appropriate action, and to pay the costs of the suit. On the same date, petitioner filed a motion reiterating the petition for the issuance of a temporary restraining order/writ of preliminary injunction and alternatively seeking that the case be set for hearing. On March 22, 1990, the Court admitted the supplemental pleading of the petitioner; required respondents to comment thereon within a non-extendible period of ten (10) days from notice; and issued a status quo order prevailing at the time this petition was filed on March 12, 1990. On April 2, 1990, a consolidated comment was submitted by the respondents attaching as annex thereto the letters of the Executive Secretary dated February 9, 1990 and February 21, 1990, respectively, addressed to the Chairman, PCGG, conveying the instructions of the President of the Philippines that the complaints involving coconut levy funds be filed with the PCGG, to conduct the necessary investigation and if warranted to file and prosecute the cases before the Sandiganbayan; and it confirmed the earlier instructions of the President dated November 28, 1989 to the same effect. 4 On May 4, 1990 petitioner filed a reply to the consolidated comment as required by the Court. In a resolution dated June 5, 1990, the Solicitor General was required to file a rejoinder. On May 31, 1990, a motion for hearing of said cases was filed by petitioner and this was granted by the Court on June 21, 1990. It was directed that the Ombudsman be impleaded as party-respondent. The Court required the Ombudsman to comment on the petition within ten (10) days from notice. The case was set for hearing on Tuesday, July 17, 1990 at 10:00 in the morning. The Ombudsman submitted his comment on July 3, 1990 and the Court required petitioner to file a reply to the same. On July 6, 1990, Maria Clara Lobregat and Jose R. Eleazar, Jr. filed a Motion for Leave to Intervene and a Motion to Admit Petition to Intervene wherein they ask that the PCGG desist from further proceeding with the preliminary investigation of I.S. Nos. 74, 75, 77, 79, 80, 81, 82, 83, and 84 charging the intervenors and other respondents, including petitioner, with violations of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) in connection with the, coconut levy funds. The intervenors question the authority of the PCGG to conduct a preliminary investigation of the said cases. They maintain that even assuming that the PCGG has such authority, the same cannot be delegated to a prosecutor or his assistants. On July 10, 1990, the court granted the motion for leave to intervene and admitted the petition for intervention. The PCGG was required to comment on said petition within ten (10) days from notice. On July 13, 1990, respondents filed their rejoinder to the reply of petitioner to their consolidated comments. The Ombudsman filed his comment to the petition for intervention, while petitioner filed his reply to the comment of the Ombudsman on July 16, 1990. The hearing was held as scheduled on July 17, 1990 where all the parties including the Ombudsman appeared and/or were duly represented by counsels. After the hearing, the parties were required to submit their simultaneous memoranda within fifteen (15) days from the date of the hearing. On July 21, 1990, the Solicitor General asked for an extension of time within which to file his comment to the petition for intervention. He filed said comment within the period of extension asked for on July 31, 1990. The memoranda of all the parties having been submitted, the petitions were deemed submitted for resolution. On the first issue wherein petitioner and intervenors question the authority of the PCGG to conduct a preliminary investigation of the criminal complaints filed against them by the Solicitor General, the Court finds and so holds the same to be devoid of merit. Under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure the officers authorized to conduct a preliminary investigation are the following: Sec. 2. Officers authorized to conduct preliminary investigation. The following may conduct a preliminary investigation: (a) Provincial or city fiscals and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Court;

(c) National and Regional state prosecutors; and (d) Such other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. Under Section 2 likewise of Rule 112 of the Rules of Court before its present amendment, the officers authorized to conduct preliminary investigation are as follows: Sec. 2. Officers authorized to conduct preliminary examination: Every justice of the peace, municipal judge, city or provincial fiscal, shall have authority to conduct preliminary examination or investigation in accordance with these rules of all offenses alleged to have been committed within his municipality, city or province, cognizable by the Court of First Instance. The justice of the peace of the provincial capital or of the municipality in which the provincial jail is located when directed by an order of the Court of First Instance, shall have authority to conduct such preliminary examination or investigation of any offense committed anywhere within his province at the expense of the municipality wherein the same was committed. Under Section 3 thereof in case of temporary absence of the justice of the peace or his auxiliary, the municipal mayor may conduct the preliminary investigation. For complaints filed directly with the Court of First Instance, the judge of the said court may refer the case to the justice of the peace or he may himself conduct both the preliminary examination and investigation simultaneously, under Section 13 of the same rule. Upon the enactment of the Anti-Graft and Corrupt Practices Act on August 17, 1960, 5 and Republic Act No. 1379 (covering unexplained wealth cases) on August 18, 1955, the preliminary investigation of cases involving the Anti-Graft and Corrupt Practices Act and/or unexplained wealth cases was vested on the aforestated officers. However, on July 17, 1979, Presidential Decree No. 1630 was promulgated whereby the Tanodbayan was vested with the "exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan." 6Under Presidential Decree No. 1486 which was approved on June 11, 1978, the Sandiganbayan was created and vested with exclusive jurisdiction over all offenses committed by public officers enumerated therein. This was amended by Presidential Decree No. 1606 dated December 10, 1978 and further amended by Presidential Decree No. 1861 issued on March 23, 1983 wherein the jurisdiction of the Sandiganbayan was defined as follows: Sec. 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows: Sec. 4. Jurisdiction The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccionalor imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. (b) Exclusive appellate jurisdiction: (1) On appeal, from the final judgments, resolutions or orders of the Regional Trial Courts in cases originally decided by them in their respective territorial jurisdiction. (2) By petition for review, from the final judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in their respective jurisdiction. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules the Supreme Court has promulgated and may hereinafter promulgate, relative to appeals/petitions for review to the Intermediate Appellate Court shall apply to appeals and petition for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan, the Office of the Tanodbayan shall represent the People of the Philippines. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees.

Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with and jointly determined in the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: PROVIDED, HOWEVER, that where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case maybe, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be considered abandoned. Sec. 2. All cases pending in the Sandiganbayan or in the appropriate courts as of the date of the effectivity of this Decree shall remain with and be disposed of by the courts where they are pending. Sec. 3. The provisions of this Decree notwithstanding, the office of the Tanodbayan shall continue to have the exclusive authority to conduct preliminary investigation, file the necessary information, and direct and control the prosecution of all cases enumerated in Section 4 of Presidential Decree No.1606, whether such cases be within the exclusive original/appellate jurisdiction of the Sandiganbayan or the appropriate courts in accordance with the provisions of Presidential Decree No. 1630. (Emphasis supplied.) However, this exclusive jurisdiction of the Tanodbayan to conduct preliminary investigation of said cases was modified by Executive Order No. 1 signed by President Corazon C. Aquino on February 28, 1986 creating the PCGG and constituting its membership to assist the President in the recovery of ill gotten wealth accumulated by the former President, his relatives and cronies. Therein it is provided, among others: Sec. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters: (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. (b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time to time. (c) The adoption of safeguards to ensure that the above practices shall not be repeated in any manner under the new government, and the institution of adequate measures to prevent the occurrence of corruption. Sec. 3. The Commission shall have the power and authority: (a) To conduct investigations as may be necessary in order to accomplish and carry out the purposes of this order. (Emphasis supplied.) Under Executive Order No. 14 signed by President Aquino on May 7, 1986, it is also provided: Sec. 1. Any provision of the law to the contrary notwithstanding, the Presidential Commission on Good Government with the assistance of the Office of the Solicitor General and other government agencies, is hereby empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986 and Executive Order No. 2, dated March 12, 1986, as may be warranted by its findings. Sec. 2. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof . Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No.1 dated February 28, 1986 and Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by preponderance of evidence. (Emphasis supplied.) From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, it is clear that the PCGG has the power to investigate and prosecute such ill-gotten wealth cases of the former President, his relatives and associates, and graft and corrupt practices cases that may be assigned by the President to the PCGG to be filed with the Sandiganbayan. No doubt, the authority to investigate extended to the PCGG includes the authority to conduct a preliminary investigation. 7 Thus, the Tanodbayan lost the exclusive authority to conduct the preliminary investigation of these types of cases by the promulgation of the said Executive Order Nos. 1 and 14 whereby the PCGG was vested concurrent jurisdiction with the Tanodbayan to conduct such preliminary investigation and to prosecute said cases before the Sandiganbayan. 8 The power of the PCGG to conduct a preliminary investigation of the aforementioned types of cases has been recognized by this Court in Bataan Shipyard and Engineering Co. Inc. (BASECO) vs. PCGG. 9 Upon the adoption of the 1987 Constitution, the Office of the Ombudsman was created under Article XI, as follows:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Emphasis supplied) This Court, in Zaldivar, 10 interpreting the aforesaid provision of the Constitution, particularly Section 13(1) thereof vesting on the Ombudsman the right and the power to investigate on its own or on complaint, any act or omission of any public official, employee, office or agency which appears "to be illegal, unjust, improper, or inefficient", held that the general power of investigation covers the lesser power to conduct a preliminary investigation. Thus, as the power of investigation vested on the Ombudsman under the Constitution includes the power to conduct a preliminary investigation, then the special prosecutor (former Tanodbayan) may no longer conduct such a preliminary investigation unless duly authorized by the Ombudsman. 11 A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive. Hence, the said provision of the Constitution did not repeal or remove the power to conduct an investigation, including the authority to conduct a preliminary investigation, vested on the PCGG by Executive Orders Nos. 1 and 14. Although under Section 26 of Article XVIII of the Constitution the authority of the PCGG to issue sequestration or freeze orders was maintained for not more than eighteen months after the ratification of the Constitution, it cannot be construed thereby that its power of investigation had thereby been revoked by the failure to reiterate said power in the Constitution. Indeed, upon the passage of Republic Act No. 6770, otherwise known as the "Ombudsman Act of 1989," it is therein specifically provided in Section 15 as follows: Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; xxx xxx xxx (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein. The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties. Under Section 15(l) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial courts. 12

In other words, the aforestated provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary jurisdiction. It is also noted that under Section 15(11) of the aforestated Republic Act No. 6770, among the powers vested on the Ombudsman is to investigate and to initiate the proper action for recovery of ill-gotten wealth and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein. The Court agrees with the contention of the public respondent PCGG that this provision is a tacit recognition that the authority of the PCGG to conduct preliminary investigation of ill-gotten wealth and/or unexplained wealth amassedbefore February 25, 1986 is maintained. However, the Court finds and so holds that the aforesaid provision of the law cannot in any manner dilute or diminish the primary jurisdiction of the Ombudsman over all such types of cases committed by public officers or employees as provided in Section 13, Article XI of the Constitution. Thus, notwithstanding the provision of Section 15(11) of Republic Act No. 6770, the primary jurisdiction of the Ombudsman to investigate covers ill-gotten wealth and/or unexplained wealth cases that occurred even before February 25, 1986. The second issue raised that the preliminary investigation by the PCGG of the aforestated complaints violates the right of petitioner to due process and to equal protection of law is impressed with merit. Under Section 1, Rule 112 of the 1985 Rules on Criminal Procedure, preliminary investigation is defined as "an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also to protect the state from useless and expensive trials. 13 The conduct of a preliminary investigation is the initial step towards the criminal prosecution of a person. After such preliminary investigation, if the investigating officer finds that there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial, then the corresponding complaint or information shall be filed in the competent court. It is the filing of said complaint or information that initiates the criminal prosecution of the accused when he is brought to court for trial.

Such a preliminary investigation is required for offenses cognizable by the Regional Trial Court and the Sandiganbayan. 14 It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process. As correctly pointed out by petitioner, an indispensable requisite of due process is that the person who presides and decides over a proceeding, including a preliminary investigation, must possess the cold neutrality of an impartial judge. 15 Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for, the production and weighing of evidence, and a decision is rendered thereon. The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. 16 While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and must be considered to be a quasi judicial officer. Soon after the creation of the PCGG under Executive Order No. 1, the PCGG sequestered and froze all the properties of petitioner Cojuangco in accordance with the powers vested in it by law. On July 31, 1987, said petitioner was sued by the PCGG before the Sandiganbayan by way of a complaint entitled "Republic of the Philippines vs. Eduardo M. Cojuangco, Jr.," et al. docketed as Civil Case No. 0033. Among the allegations of the complaint are as follows: This is a civil action against Defendants Eduardo Cojuangco, Jr., Ferdinand E. Marcos, Imelda R. Marcos and the rest of the Defendants in the above-entitled case to recover from them ill-gotten wealth consisting of funds and other property which they, in unlawful concert with one another, had acquired and accumulated in flagrant breach of trust and of their fiduciary obligations as public officers with, grave abuse of right and power and in brazen violation of the Constitution and laws of the Republic of the Philippines, thus resulting in their unjust enrichment during Defendant Ferdinand E. Marcos' 20 years of rule from December 30, 1965 to February 25, 1986, first as President of the Philippines under the 1935 Constitution and, thereafter, as one man ruler under martial law and Dictator under the 1973 Marcos-promulgated Constitution.

2. The wrongs committed by Defendant acting singly or collectively and in unlawful concert with one another,include the misappropriation and theft of public funds, plunder of the nation's wealth, extortion, blackmail, bribery, embezzlement and other acts of corruption, betrayal of public trust and brazen abuse or power as more fully described

below, all at the expense and to the grave and irreparable damage of Plaintiff and the Filipino people. (Emphasis supplied.)
17

The complaint was filed by the PCGG through its Chairman, Ramon A. Diaz, who verified the complaint, and Solicitor General Francisco I. Chavez and Assistant Solicitor General Ramon S. Desuasido. Petitioner in turn filed a counterclaim against the PCGG for the sequestration of his properties and the institution of the suit. He also questioned the acts of the PCGG in several special civil actions before the court. 18 On November 27, 1989, the first working day after petitioner Cojuangco returned to the Philippines, the PCGG filed with the Sandiganbayan an information against said petitioner for violation of Republic Act No. 3019 entitled "People of the Philippines vs. Eduardo M. Cojuangco, Jr." docketed as Criminal Case No. 14161. However, the Sandiganbayan found no probable cause for the issuance of a warrant of arrest so a petition for certiorari was filed by the Solicitor General in this Court docketed as G.R. No. 91741. On March 29, 1990 this Court denied the petition. On November 28, 1989, President Aquino directed the Solicitor General to prosecute all persons involved in the misuse of the coconut levy funds. The Solicitor General created a task force for the purpose. On January 12, 1990, the Solicitor General filed with the PCGG the first two criminal complaints for violation of the Anti-Graft and Corrupt Practices Act, bearing on the anomalous use and/or misuse of the coconut levy funds docketed as I.S. Nos. 74 and 75. Among the respondents were the petitioner and intervenors Lobregat and Eleazar. The PCGG assigned assistant prosecutor Cesario del Rosario to conduct the preliminary investigation. As hereinabove related, a subpoena was issued by the said prosecutor for the preliminary investigation on January 29, 1989 insofar as intervenors are concerned while that of petitioner, de la Cuesta and Herminigildo Zayco was scheduled on January 31, 1990. In the same subpoena, respondents were required to submit their counter-affidavits and other supporting documents to controvert the complaint within ten (10) days from notice. On the scheduled investigation dated January 29, 1990, intervenors appeared through counsel and moved to dismiss the complaints for lack of jurisdiction of the PCGG to conduct the preliminary investigation but this was denied by said prosecutor. They were asked by the prosecutor if they will submit their counter-affidavits but intervenors' counsel replied that they were not yet ready to file the same because of their pending motion. Thus, the cases were considered closed insofar as they are concerned. The intervenors contested the prosecutor's action before the Sandiganbayan through a petition for certiorari and prohibition docketed as Criminal Case No. 0093. On March 13, 1990, the Sandiganbayan promulgated its decision wherein it declared the preliminary investigation conducted by del Rosario null and void, enjoined the PCGG from filing an information on the basis thereof and directed the PCGG to conduct another preliminary investigation of I.S. Nos. 74 and 75 as to the intervenors and to assign another investigating prosecutor. Earlier however, that is, on February 27, 1990, the PCGG, overruling prosecutor del Rosario's order, gave the intervenors in I.S. Nos. 74 and 75 another period of five (5) days from notice within which to submit their counter-affidavits and supporting evidence. Based on this action the PCGG filed a motion for reconsideration of the aforesaid decision of the Sandiganbayan which had not been resolved. As to petitioner, on the day of the preliminary investigation dated January 31, 1990, his counsel filed a motion to disqualify or inhibit the PCGG, an alternative motion to dismiss, and a motion to have the PCGG itself hear and/or resolve the motion to disqualify or inhibit itself alternatively a motion to dismiss. The preliminary investigation presided by prosecutor del Rosario started at 2:00 o'clock P.M. with eight other respondents duly represented by their counsel. The said motion was denied and the preliminary investigation was adjourned. Immediately thereafter petitioner brought the matter to Chairman Mateo A.T. Caparas of the PCGG and in several communications sought resolution of the motion by the PCGG. On February 27, 1990, the PCGG issued an order denying petitioner's motion to dismiss for lack of jurisdiction but did not resolve the motion to disqualify. Therein, the PCGG directed petitioner to submit his counter-affidavits within five (5) days from receipt of notice. On March 12, 1990, the same day this petition was filed in this Court, the petitioner, instead of filing the counter-affidavit, filed with the PCGG an urgent motion to defer proceedings in I.S. Nos. 74 and 75 for at least until March 22, 1990 within which to seek judicial relief from the order of February 27, 1990. Upon the filing of this petition, petitioner filed a supplemental urgent motion to defer proceedings with the PCGG informing it of the filing of this petition. Nevertheless, on March 14, 1990, the PCGG filed two informations corresponding to the complaints in I.S. Nos. 74 and 75 which are docketed as Criminal Cases Nos. 14398 and 14399, respectively, at the Sandiganbayan. The PCGG recommended bail as P100,000.00 for each case. Meanwhile, the Solicitor General filed two other complaints against the petitioner with the PCGG accusing the petitioner of violation of Republic Act No. 3019 and other penal laws in connection with the coconut levy funds, namely, I.S. No. 79 which concerns an alleged arbitration award in favor of Agricultural Investors Inc., and I.S. No. 82 which concerns the acquisition of coconut oil mills. Several other complaints were filed by the Solicitor General with the PCGG against petitioner for preliminary investigation petition, to wit: (a) I.S. No. 80 which concerns the acquisition of the First United Bank, now United Coconut Planters' Bank; (b) I.S. No. 81 concerning shares of the United Coconut Oil Mills Inc.; (c) I.S. No. 83 regarding the acquisition of coconut oil mills and certain indebtedness thereof; and (d) I.S. No. 84 regarding settlement of an Anti-Graft suit in the United States. All of these complaints were for alleged violation of Republic Act No. 3019.

The question that arises, therefore, is whether under the circumstances of this case, it would be fair and just for the PCGG to conduct the preliminary investigation of the said complaint instead of the Ombudsman or any other duly authorized investigating agency. Upon the creation of the PCGG under Executive Order No. 1 issued by President Aquino, the PCGG was charged with the task of assisting the President not only in the recovery of ill-gotten wealth or unexplained wealth accumulated by the former President, his immediate family, relatives, subordinates and close associates but also in the investigation of such cases of graft and corruption as the President may assign to the Commission from time and to prevent a repetition of the same in the future. Section 3 of Executive Order No. 1 provides as follows: Sec. 3. The Commission shall have the power and authority: (a) To conduct investigation as may be necesssary in order to accomplish and carry out the purposes of this order. (b) To sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task. (c) To provisionally take over in the public interest or to prevent its disposal or dissipation, business enterprises and properties taken over by the government of the Marcos administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities. (d) To enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to carry out its tasks under this order. (e) To administer oaths, and issue subpoenas requiring the attendance and testimony of witnesses and/or the production of such books, papers, contracts, records, statement of accounts and other documents as may be material to the investigation conducted by the Commission. (f) To hold any person in direct or indirect contempt and impose the appropriate penalties, following the same procedures and penalties provided in the Rules of Court. (g) To seek and secure the assistance of any office, agency or instrumentality of the government. (h) To promulgate such rules and regulations as may be necessary to carry out the purposes of this order. From the foregoing provisions of law, it is clear that the PCGG has the following powers and authority: 1. To conduct an investigation including the preliminary investigation and prosecution of the ill-gotten wealth cases of former President Marcos, relatives and associates, and graft and corruption cases assigned by the President to it; 2. Issue sequestration orders in relation to property claimed to be ill-gotten; 3. Issue "freeze orders" prohibiting persons in possession of property alleged to be ill-gotten from transferring or otherwise disposing of the same; 4. Issue provisional takeover orders of the said property; 5. Administer oaths and issue subpoenas in the conduct of its investigation; 6. Hold any person in direct or indirect contempt and impose the appropriate penalties as provided by the rules. Considering that the PCGG, like the courts, is vested with the authority to grant provisional remedies of (1) sequestration, (2) freezing assets, and (3) provisional takeover, it is indispensable that, as in the case of attachment and receivership, there exists a prima facie factual foundation, at least, for the sequestration order, freeze order or takeover order, an adequate and fair opportunity to contest it and endeavor to cause its negation or nullification. Both are assured under the foregoing executive orders and the rules and regulations promulgated by the PCGG. 19 Thus, in Baseco, this Court held, as follows:

Executive Order No. 14 enjoins that there be "due regard to the requirements of fairness and due process." Executive Order No. 2 declares that with respect to claims on allegedly "ill-gotten" assets and properties, "it is the position of the new democratic government that President Marcos . . . (and other parties affected) be afforded fair opportunity to

contest these claims before appropriate Philippine authorities." Section 7 of the Commission's Rules and Regulations provides that sequestration or freeze (and takeover) orders issue upon the authority of at least two commissioners, based on the affirmation or complaint of an interested party, ormotu propio when the Commission has reasonable grounds to believe that the issuance thereof is warranted. A similar requirement is now found in Section 26, Art. XVIII of the 1987 Constitution, which requires that "sequestration or freeze order shall be issued only upon showing of a prima facie case."
20

Insofar as the general power of investigation vested in the PCGG is concerned, it may be divided into two stages. The first stage of investigation which is called the criminal investigation stage is the fact-finding inquiring which is usually conducted by the law enforcement agents whereby they gather evidence and interview witnesses after which they assess the evidence and if they find sufficient basis, file the complaint for the purpose of preliminary investigation. The second stage is the preliminary investigation stage of the said complaint. It is at this stage, as above discussed, where it is ascertained if there is sufficient evidence to bring a person to trial. In the petition before this Court, it is not denied that the PCGG conducted the appropriate criminal investigation of petitioner and intervenors as a law enforcer. In the process it sequestered all the properties of the petitioner after a prima facie finding that the same amount to ill-gotten wealth and/or were acquired in relation to allegedly anomalous disposition or misuse of the coconut levy funds. The PCGG then filed on July 31, 1987 a complaint docketed as Civil Case No. 0033 against petitioner and intervenors not only for alleged ill-gotten wealth as associates of former President Marcos but for the unlawful concert with the former President and his wife to unjustly enrich themselves at the expense of the Filipino people through the alleged misuse, misappropriation and dissipation of the coconut levy funds, as enumerated in the complaint. This complaint was verified and filed by the then Chairman of the PCGG and also signed by the Solicitor General and the Assistant Solicitor General. Among the allegations in the civil complaint, are the very transactions now subject of the criminal complaints filed by the Solicitor General against petitioner to wit: 13. Defendant Eduardo Cojuangco, Jr., taking undue advantage of his association, influence and connection, acting in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, embarked upon devices, schemes and stratagems to unjustly enrich themselves at the expense of Plaintiff and the Filipino people, such as, when he 13(a) manipulated, beginning the year 1975, with the active collaboration of Defendants Juan Ponce Enrile, Maria Clara Lobregat Danilo Ursua, Jose R. Eleazar, Jr. and Herminigildo C. Zayco, the purchase by Philippine Coconut Authority (PCA) of 72.2% of the outstanding capital stock of the First (sic) (FUB)which was subsequently converted into a universal bank named United Coconut Planters Bank (UCPB) through the use of the Coconut Consumers Stabilization-Fund (CCSF) levy initially in the amount of P85,773,100.00 in a manner contrary to law and to the specific purposes for which said coconut levy funds were imposed and collected under P.D. 276, and under anomalous and sinister designs and circumstances, to wit: xxx xxx xxx At pp. 22 to 22-A, Expanded Complaint, Civil Case No.0033) [I.S. No. 080] (c) misappropriated, misused and dissipated P840 million of the Coconut Industry Development Fund (CIDF) levy funds deposited with the National Investment Development Corporation (NIDC) as administrator-trustee of said funds and later with UCPB, of which Defendant Eduardo Cojuangco, Jr. was the Chief Executive Officer in connection with the (i) development, improvement, operation and maintenance of the Bugsuk Island Seed Garden ("BUGSUK") by Agricultural Investors, Inc. ("AII") as developer (both Bugsuk and AII are beneficially held and controlled by Defendant Eduardo Cojuangco, Jr.) pursuant to a highly oppressive, anomalous and one-sided memorandum agreement, dated November 20, 1974, (ii) sale by AII to PCA of the seed nuts produced at Bugsuk Seed Garden at exorbitant prices pursuant to a very onerous, oppressive and disadvantageous agreement, dated August 2, 1985 and (iii) payment of liquidated damages in the amount of P640,856,879.67 and arbitration fee of P150,000.00 pursuant to a decision rendered by a Board of Arbitrators against UCPB for alleged breach of contract.; xxx xxx xxx (At pp. 26-27) [I.S. No. 079] (d) established and caused to be funded with coconut levy funds, with the active collaboration of Defendant Ferdinand E. Marcos through the issuance of LOI 926, and of defendants, Juan Ponce Enrile, Jose R. Eleazar, Jr., Maria Clara Lobregat, Jose C. Concepcion, Inaki Mendezona, Douglas Lu Ym, Teodoro D. Regala, Emmanuel Almeda, Eduardo Escueta, Leo Palma, and Rolando de la Cuesta, the United Coconut Oil Mills, Inc. (UNICOM) a corporation beneficially held and controlled by Defendant Eduardo Cojuangco, Jr. and bought sixteen (16) competing and/or non-operating oil mills at exorbitant prices in the total amount of P184,935 million, then mothballed them in order to control the prices of copra and other coconut products, and

assumed and paid the outstanding loan obligations of seven (7) of those purchased oil mills in the total amount of P805,984 million with the express consent and approval of Defendant Ferdinand E. Marcos, thereby establishing a coconut monopoly for their own benefit and unjust enrichment and to the grave damage of Plaintiff and the Filipino people; (e) manipulated with the active collaboration of Defendants Mohammad Ali Dimaporo and Teodoro D. Regala, the sale of the Mindanao Coconut Oil Mills (MINCOCO) to UNICOM through the issuance of LOI 926 by Defendant Ferdinand E. Marcos, in violation of the Guaranty Agreement dated July 23, 1976, which prohibited the sale, among others, of the MINCOCO assets/properties without the prior written consent of NIDC, under terms and conditions grossly disadvantageous to Plaintiff and the Filipino people; (f) drew up a scheme of payment to settle the accounts of MINCOCO and other UNICOM-acquired mills with their respective creditors: namely the National Investment Development Corporation (NIDC), Deveploment Bank of the Philippines (DBP), Philippine Veterans Bank (PVB), under terms grossly disadvantageous to Plaintiff; xxx xxx xxx (At pp. 27-28) [I.S. Nos. 81, 82 and 83] (g) misappropriated and dissipated the coconut levy funds by withdrawing therefrom tens of millions of pesos in order to pay damages adjudged against UNICOM, headed and controlled by Defendant Eduardo Cojuangco, Jr., in an anti-trust suit in California, U.S.A.; xxx xxx xxx (At p. 29) [I.S. No. 84] (h) misused, dissipated and unlawfully disbursed coconut levy funds with the active collaboration and participation of defendants Maria Clara Lobregat, Juan Ponce Enrile, Jose Eleazar, Jr., Rolando de la Cuesta and Herminigildo Zayco as members of the PCA governing board for projects and purposes completely alien to those for which the fund was collected and donations made by PCA such as . . . P6 million to COCOFED; and other similar unlawful disbursements, which all remain unaccounted for to date; xxx xxx xxx (At pp 28 to 28-A Emphasis supplied) [I.S. No. 74 and 75] Thereafter, as aforestated, the Solicitor General filed the first two complaints against petitioner and intervenors among others, under I.S. Nos. 74 and 75 for alleged violation of the Anti Graft and Corrupt Practices Act for donations allegedly made out of coconut levy funds to the Philippine Coconut Producers Federation (COCOFED). Petitioner and intervenors questioned not only the authority of the PCGG to conduct the preliminary investigation but asserted a denial of due process and equal protection of the law. There is cogent basis for their plea. The PCGG, as a law enforcer, gathered evidence as to the alleged ill-gotten wealth of petitioner and intervenors and, after satisfying itself that there is a prima facie case, sequestered and issued a freeze order for all the properties of petitioner. Based also on the said finding of a prima facie case, the PCGG filed a civil complaint docketed as Civil Case No. 0033 against petitioner and intervenors for alleged ill-gotten wealth including the alleged misuse, misappropriation, and diversion of coconut levy funds. As hereinabove discussed the criminal complaints under I.S. Nos. 74, 79, 80, 81, 82, 83 and 84 filed by the Solicitor General all for alleged violation of Republic Act No. 3019, are covered and alleged in the aforesaid civil complaint docketed as Civil Case No. 0033. The PCGG conducted the preliminary investigation of I.S. Nos. 74 and 75 and is poised to conduct the preliminary investigation of the other aforementioned complaints for the same alleged violations of law subject of the civil complaint. The Court cannot close its eyes to the glaring fact that in earlier instances, the PCGG had already found a prima facie case against the petitioner and intervenors when, acting like a judge, it caused the sequestration of the properties and the issuance of the freeze order of the properties of petitioner. Thereafter, acting as a law enforcer, in collaboration with the Solicitor General, the PCGG gathered the evidence and upon finding cogent basis therefor filed the aforestated civil complaint. Consequently the Solicitor General filed a series of criminal complaints.

It is difficult to imagine how in the conduct of such preliminary investigation the PCGG could even make a turn about and take a position contradictory to its earlier findings of a prima facie case against petitioner and intervenors. This was demonstrated in the undue haste with which I.S. Nos. 74 and 75 was investigated and the informations were filed in court even as the petitioner and intervenors questioned its authority, invoked the denial of due process and promptly informed the PCGG of the filing of this petition. In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It is to say the least arbitrary and unjust. It is in such instances that We say one cannot be "a prosecutor and judge at the same time." Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor. The circumstances of the instant petition are even worse. To repeat, the PCGG and the Solicitor General finding aprima facie basis filed a civil complaint against petitioner and intervenors alleging substantially the same illegal or criminal acts subject of the subsequent criminal complaints the Solicitor General filed with the PCGG for preliminary investigation. While ostensibly, it is only the Solicitor General who is the complainant in the criminal cases filed with the PCGG, in reality the PCGG is an unidentified co-complainant. Moreover, when the PCGG issued the sequestration and freeze orders against petitioner's properties, it was on the basis of a prima facie finding that the same were ill-gotten and/or were acquired in relation to the illegal disposition of coconut levy funds. Thus, the Court finds that the PCGG cannot possibly conduct the preliminary investigation of said criminal complaints with the "cold neutrality of an impartial judge," as it has prejudged the matter. Add to this the fact that there are many suits filed by petitioner and the intervenors against the PCGG and vice versa. For lesser grounds this Court had disqualified a fiscal or a judge from handling a case. A fiscal was disqualified from conducting a preliminary investigation because he had appeared for the prosecution when said case was pending in the municipal court. 21 In a case filed before the Commission on Elections this Court held Commissioner Opinion should not have participated in the case since he was the former lawyer of Arturo Pacificador. 22 A judge was required to inhibit himself in a case where he was a witness for the complainant.23 A judge before whom the extrajudicial statement of one of the accused was subscribed was disqualified from hearing the case. 24 A judge who told the complainant is case was weak and it would be to his advantage to settle the case was disqualified. 25 A judge against whom an administrative complaint was filed by one of the parties was also disqualified. 26 In a case where the motion for inhibition was found to be groundless, this Court held that the judge should inhibit himself considering the seriousness of the charges. 27 A judge was asked to inhibit himself from trying a malversation case against the accused since he previously convicted the latter of arson. 28 In another case, the judge was ordered to inhibit himself because of strained relationship with the defendant. 29 There are numerous other cases wherein the judges and fiscals were disqualified on similar grounds as those aforementioned.
30

Where the circumstances do not inspire confidence in the objectivity and impartiality of the judge, such judge should inhibit voluntarily or if he refuses, he should be prohibited from handling the case. Judge must not only be impartial but must also appear impartial as an assurance to the parties that his decision will be just. 31 His actuation must inspire that belief. This is an instance when appearance is as important as reality.
32

The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. This is the reason why under Section 1679 of the former Revised Administrative Code, the Secretary of Justice, who has supervision over the prosecution arm of the government, is given ample power to designate another prosecutor to handle the investigation and prosecution of a case when the prosecutor handling the same is otherwise disqualified by personal interest, or is unable or fails to perform his duty. The Court finds that under the circumstances of the case, the PCGG cannot inspire belief that it could be impartial in the conduct of the preliminary investigation of the aforesaid complaints against petitioner and intervenors. It cannot possibly preside in the said preliminary investigation with an even hand. The Court holds that a just and fair administration of justice can be promoted if the PCGG would be prohibited from conducting the preliminary investigation of the complaints subject of this petition and the petition for intervention and that the records of the same should be forwarded to the Ombudsman, who as an independent constitutional officer has primary jurisdiction over cases of this nature, to conduct such preliminary investigation and take appropriate action. All violators of the law must be brought before the bar of justice. However, they must be afforded due process and equal protection of the law, whoever they may be. WHEREFORE, the petitions of Eduardo M. Cojuangco, Jr. and intervenors Maria Clara Lobregat, and Jose Eleazar, Jr. are hereby GRANTED. The PCGG is directed to transmit the complaints and records thereof under I.S. Nos. 74, 75, 79, 80, 81, 82, 83 and 84 to the Ombudsman for appropriate action. All proceedings of the preliminary investigation conducted by the PCGG of said complaints are hereby declared null and void including the informations which it filed in the Sandiganbayan against petitioner and intervenors docketed as Criminal Cases Nos. 14398 and 14399. The status quo order which this Court issued on March 12, 1990 is hereby made permanent and the PCGG is permanently prohibited from further conducting the preliminary investigation of the aforestated complaints. The Court makes no pronouncement as to costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Feliciano, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Paras, J., took no part. G.R. No. L-59524 February 18, 1985 JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines. The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980. On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected. On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority.

Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him. On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner. The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx ... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599;Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."

Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. ExSenator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay? A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission

37. Q. Did you comply as instructed? A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila. 38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then? A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. About thirty (30) minutes. 41. Q. What happened when the man arrived? A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you? A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed. xxx xxx xxx 45. Q. What were the contents of the Puma bag? A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx Q. Who were the people that you contacted in Manila and for what purpose?

A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS: A. Not to my knowledge. COURT TO WITNESS: Q. Mr. Witness, who invited you to the party? A. Raul Daza, your Honor. Q. Were you told that Mr. Salonga would be present in the party. A. I am really not quite sure, your Honor. Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this crossexamination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT:

According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions. COURT: In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons(1) Because his house was used as a "contactpoint"; and (2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer,

279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS: Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga. It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing

against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions. The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports.

In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur. Aquino, De la Fuente and Alampay, JJ., took no part.

G.R. No. 108251. January 31, 1996]

CEFERINO S. PAREDES, JR. and MANSUETO J. HONRADA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, Second Division; HONORABLE ANIANO DESIERTO, in his official capacity as Special Prosecutor; HONORABLE CONRADO M. VASQUEZ, in his official capacity as Ombudsman; and TEOFILO GELACIO, respondents.
SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; MAY BE INITIATED AND CONCLUDED BY DIFFERENT INVESTIGATORS. - Petitioners contend that the filing of charges against them was not recommended by the prosecutor who conducted the preliminary investigation, but by another one who, it is alleged, had no part at all in the investigation. There is no basis for petitioners claim that the resolution was prepared by one who did not take any part in the investigation. What happened here is similar to the trial of a case by one judge who, without being able to finish the hearing, ceases from office for one reason or another and by necessity the decision is rendered by another judge who has taken over the conduct of the case. Such an arrangement has never been thought to raise any question of due process. For what is important is that the judge who decides does so on the basis of the evidence in record. It does not matter that he did not conduct the hearing of that case from the beginning. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE; VALUE NOT DIMINISHED BY FAILURE TO ANTICIPATE THAT HIS CERTIFICATE WOULD BE USED IN EVIDENCE. - That Violan gave credence to the Certification of Judge Ario in concluding that no

2.

arraignment had been held in Criminal Case No. 1393 is not proof that Violan was biased against petitioners. Although Judge Ario subsequently gave an Affidavit, he never in that Affidavit repudiated what he had earlier stated. Judge Ario never denied his earlier Certification that Criminal Case No. 1393 never reached the arraignment stave, because having learned that Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal later moved for the dismissal of the case. The fact that Judge Ario did not anticipate that his certificate might be used in evidence, much less in the criminal cases now pending in the Sandiganbayan, is not a reason to disregard it. The fact is that Judge Ario did not retract his previous Certification that there was no arraignment held in Criminal Case No. 1393. If that is the truth, then the fact that he now says he did not anticipate that his certificate would be used in evidence in any case would not diminish a whit the value of the certificate. 3. ID.; EVIDENCE; ADMISSIBILITY; RETRACTION OF AFFIDAVIT MADE IN VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, INADMISSIBLE. There is nothing in the resolution of Violan which shows that she based her conclusion (that petitioners were probably guilty of falsification of public documents) on Atty. Sansaets retraction. In her resolution, all that she stated is that the confession of Atty. Sansaet has important bearing in this case. Otherwise she did not cite the confession as proof of the falsification of public documents. To the contrary, Violan thought that the retraction was made in violation of attorney-client privilege and therefore, would be inadmissible in evidence. Violan could not, therefore, have relied on the affidavit of retraction. 4. ID.; DISQUALIFICATION OF JUDGES; DIVERGENCE OF OPINIONS BETWEEN A JUDGE AND A PARTYS COUNSEL, NOT A GROUND. Mere divergence of opinions between a judge and a partys counsel as to applicable laws and jurisprudence is not sufficient ground for disqualifying the judge from hearing the case on the ground of bias and partiality. ID.; ACTIONS; MERE FILING OF SEVERAL CASES BASED ON THE SAME INCIDENT, NOT FORUM-SHOPPING; TEST. - The mere filing of several cases based on the same incident does not necessarily constitute forum-shopping. The test is whether the several actions filed involve the same transactions, essential facts, and circumstances. ID.; ID.; ID.; CASES INVOLVING SUBSTANTIALLY DIFFERENT TRANSACTIONS, FACTS AND CIRCUMSTANCES, NOT FORUM

5.

6.

SHOPPING; CASE AT BAR. - Here, although several cases were filed by the same complainant against the same defendant and the subject matter of the actions of two of the cases was the same incident (i.e., the application for free patent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involve essentially different facts, circumstances and causes of action. Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco,. Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 by petitioner Paredes, Jr. in connection with his free patent application. Criminal Case No. 13800, which was filed in the Sandiganbayan, although based on the filing of the same application for free patent, was for violation of the Anti-graft and Corrupt Practices Act, on the allegation that petitioner, as Provincial Attorney, had unduly influenced the Public Land Inspector to secure the approval of his free patent application. On the other hand, as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are for falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P-90-396 is an administrative case against petitioner Honrada based on the same incident and facts that are subject of the preceding criminal cases. The rest are incidents of these cases, being the petition for review and motions for reconsideration ifl Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus the present cases involve substantially different transactions, facts and circumstances from those involved in the other, though related, cases. Although they arose from the same incident, i.e., petitioners public land application, they involve different issues. It is well settled that a single act may offend against two or more distinct and related provisions of law or that the same act may give rise to criminal as well as administrative liability. As such, they may be prosecuted simultaneously or one after another, so long as they do not place the accused in double jeopardy of being punished for the same offense. 7. ID.; CRIMINAL PROCEDURE; DISMISSAL OF ADMINISTRATIVE COMPLAINT DOES NOT NECESSARILY BAR FILING OF CRIMINAL PROSECUTION. - Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez that only this Court has the power to oversee court personnels compliance with laws and take the appropriate administrative action against them for their failure to do so and that no other branch of the government may exercise this power without running afoul of the principle of separation of powers. But one thing is administrative liability. Quite another thing is the criminal liability for the same act. Our determination of the administrative liability for falsification of

public documents is in no way conclusive of his lack of criminal liability. As we have held in Tan v. Comelec, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. 8. ID.; ID.; POLITICALLY MOTIVATED FILING OF CRIMINAL CHARGE CANNOT JUSTIFY PROHIBITION OF CRIMINAL PROSECUTION IF THERE IS EVIDENCE TO SUPPORT IT. - That the filing of the charges is politically motivated cannot justify the prohibition of a criminal prosecution if there is otherwise evidence to support them. Here a preliminary investigation of the complaint against petitioners was held during which petitioners were heard. Their evidence, as well as that of private respondent Gelacio, was considered in great detail in the resolution of GIO II Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubin who made his own detailed resolution concurring in the finding of Violan. We cannot say that, in approving the resolutions of two investigators, the respondent Ombudsman and Special Prosecutor committed an abuse of their discretion. ID.; ID.; PRELIMINARY INVESTIGATION; PURPOSE. - A preliminary investigation is not a trial. The function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause.

9.

10. ID.; ID.; POLITICAL HARASSMENT; REQUISITES; CASE AT BAR. To warrant a finding of political harassment so as to justify the grant of the extraordinary writs of certiorari and prohibition, it must be shown that the complainant possesses the power and the influence to control the prosecution of cases. Here, the prosecution is handled by the Office of the Ombudsman. Although it is intimated that petitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies in Agusan del Sur, it has not been alleged, much less shown, that his enemies have influence and power over the national prosecution service. To show political harassment petitioners must prove that public prosecutor, and not just the private complainant, is acting in bad faith in prosecuting the case or has lent himself to a scheme that could have no other purpose than to place the accused in contempt and disrepute. For it is only if he does so may the prosecutor, in conducting the preliminary investigation, be said to have deserted the performance of his office to determine objectively and impartially the existence of probable cause and thus justify judicial intervention in what is essentially his province. APPEARANCES OF COUNSEL

Rolando A. Suarez & Associates for petitioners. Esmeraldo I. Guloy for private respondent.

DECISION
MENDOZA, J.:

This is a petition for certiorari, prohibition and injunction, seeking to set aside the resolution dated December 9, 1992 of the Office of the Ombudsman, denying petitioners motion for the reinvestigation of three cases of falsification of public documents which had been filed against petitioners and to restrain the Second Division of the Sandiganbayan from hearing the cases. The cases originated in a complaint filed on January 23, 1990 by Teofilo Gelacio, then vice mayor of San Francisco, Agusan del Sur. Charged with petitioner Paredes, Jr., who was then the provincial governor, were petitioner Mansueto J. Honrada, clerk of court of the Municipal Circuit Trial Court of San Francisco, Agusan del Sur, and Atty. Generoso Sansaet, counsel of petitioner Paredes, Jr. in Criminal Case No. 1393 of the MCTC. In his complaint Gelacio alleged that MCTC clerk of court Honrada, in conspiracy with petitioner Paredes, Jr. and the latters counsel Atty. Sansaet, certified as true a copy of a Notice of Arraignment dated July 1, 1985 and of the Transcript of Stenographic Notes on July 9, 1985, showing that an arraignment had been held in Criminal Case No. 1393 and issued a certification dated March 24, 1986 to that effect when in truth no arraignment had been held in that case. In support of his allegation, Gelacio submitted a Certification issued by Judge Ciriaco C. Ario of the MCTC to the effect that Criminal Case No. 1393 had never reached the arraignment stage before it was dismissed on motion of the prosecution.1 A preliminary investigation of the complaint was conducted by Public Prosecutor Albert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao. Petitioners and Atty. Sansaet, as respondents in the case, filed their respective counter-affidavits. Paredes, Jr. denied the charges. He alleged that their filing was politically motivated and that the complainant, Teofilo Gelacio, was being used by his political enemies to harass him. For his part, Honrada maintained that an arraignment had indeed been held in Criminal Case No. 1393 as certified by him. His claim was corroborated by Atty. Generoso Sansaet, who stated in an affidavit that he was present during the arraignment, being the counsel of Paredes, Jr. Sansaet called Judge Arios Certification, denying that there was an arraignment, the product of a faltering mind.2

Prosecutor Axalan submitted his resolution to the Deputy Ombudsman for Mindanao, but before it could be acted upon, Atty. Sansaet, one of the respondents, retracted his earlier statement to the effect that Paredes, Jr. had been arraigned before the case against him was dismissed. In an Affidavit of Explanations and Rectifications dated July 29, 1991, Sansaet claimed that there was really no arraignment held in Criminal Case No. 1393 and that Honrada made false certifications which were used to support the dismissal (on the ground of double jeopardy) of Criminal Case No. 13800 which was then pending against Paredes, Jr. in the Sandiganbayan.3 As a result of this development, Paredes, Jr. and Honrada, were required to comment. Paredes, Jr. claimed that the Sansaets aboutface was the result of their political estrangement.4 For his part Honrada insisted that an arraignment in Criminal Case No. 1393 had indeed been held and that in making the certifications in question he stated the truth. On the basis of the evidence of the parties, Gay Maggie Balajadia-Violan, Graft Investigation Officer of the Office of the Deputy Ombudsman, recommended on February 24, 1992 that petitioners and Atty. Sansaet be charged with Falsification of Public Documents. Her recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to Ombudsman Conrado Vasquez, Who, upon the recommendation of Erdulfo Querubin of the Office of the Special Prosecutor, approved the filing of three informations for falsification of public documents against Paredes, Jr., Honrada and Sansaet with the Sandiganbayan.5 The cases were docketed as Criminal Case Nos. 17791, 17792 and 17793. On July 9, 1992, petitioners moved to quash the informations. Their motion was denied by the Sandiganbayan in its resolution of August 25, 1992, as was the motion for reconsideration they subsequently filed. Petitioners next moved for a reinvestigation of the cases. They complained (1) that the resolution, recommending the filing of the cases, was not prepared by Public Prosecutor Axalan, who had conducted the preliminary investigation, but by GIO II Gay Maggie Balajadia-Violan, who allegedly had no hand in the investigation; (2) that Violan relied solely on the retraction of Atty. Generoso Sansaet and the Certification of Judge Ciriaco C. Ario and disregarded evidence in favor of petitioners; and (3) that Prosecutor Erdulfo Q. Querubin, who reviewed Violans recommendation, could not be expected to act fairly because he was the prosecutor in Criminal Case No. 13800 in connection with which the allegedly falsified records were used and in fact appealed the dismissal of the case to this Court.6

Although these grounds were the same ones invoked by petitioners in their motion to quash, which the Sandiganbayan had denied, the Sandiganbayan nonetheless directed the prosecution to conduct a reinvestigation of the cases. Accordingly, the Office of the Ombudsman required complainant, the herein respondent Teofilo Gelacio, to comment on petitioners Motion for Reinvestigation. In a resolution dated December 9, 1992, Special Prosecution Officer Carlos D. Montemayor recommended denial of petitioners motion. He noted that the matters raised in the motion were the same ones contained in petitioners motion to quash which had already been denied and that in fact a cursory examination of the resolution of GIO II Gay Maggie Balajadia-Violan shows that the existence of a prima facie case has been duly established and the same was reviewed by SPO III Erdulfo Querubin and also the approval of Honorable Conrado M. Vasquez. He held that as no newly-discovered evidence or denial of due process had been shown, there was no basis for petitioners request for a reinvestigation. Montemayors recommendation was approved by Special Prosecutor Aniano Desierto and Ombudsman Conrado Vasquez. Accordingly the Sandiganbayan set the cases for trial. The present petition for certiorari, prohibition and injunction was then filed to enjoin the trial of the criminal cases. Petitioners pray that: (1) Upon the filing of this petition and before its final resolution, to issue a temporary restraining order immediately ordering the Sandiganbayan, Second Division, to cease and desist from proceeding with the scheduled hearing of this case; (2) After due hearing, to adjudge that respondents Honorable Special Prosecutor Aniano A. Desierto and Honorable Ombudsman Conrado M. Vasquez have committed grave abuse of discretion, amounting to lack of jurisdiction, in issuing and approving the questioned resolution dated December 9, 1992 and ordering said resolution denying petitioners motion for reinvestigation be annulled and set aside; (3) To adjudge that the Sandiganbayan, Second Division, is without jurisdiction to try Criminal Case Nos. 17791, 17792, and 17793 all of which are apparently intended as political harassments against the herein petitioners, particularly as against Ceferino S. Paredes, Jr., and prohibiting the said court from proceeding (with) the hearing of the said cases on January 15, 1993, and likewise ordering the said court to dismiss the said cases, with costs against respondents and Teofilo Gelacio; and

(4) To issue a writ of injunction, thereby making the restraining order permanent, and prohibiting the respondents and complainant Teofilo Gelacio from committing any act or acts tending to harass and to inflict further damage and injury to petitioners, such as but not limited to the continuation and further prosecution of said Criminal Cases Nos. 17791, 17792, and 17793. Petitioners contend (1) that their constitutional right to due process was violated at various stages of the preliminary investigation; (2) that the prosecutors closed their eyes to the fact that in filing the cases private respondent Teofilo Gelacio engaged in forum-shopping; and (3) that the cases were filed for political harassment and there is in fact no prima facie evidence to hold them answerable for falsification of public documents.7 I. Anent the first ground, petitioners contend that the filing of charges against them was not recommended by the prosecutor who conducted the preliminary investigation, but by another one who, it is alleged, had no part at all in the investigation. Petitioners contention has no basis in fact. It appears that the preliminary investigation of the complaint filed by Teofilo Gelacio was initially conducted by Public Prosecutor Albert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao in the investigation of graft cases. Axalan prepared a resolution. The records do not show what his recommendation was. What is clear, however, is that no action had been taken on his recommendation in view of the fact that Atty. Generoso Sansaet, one of the respondents in the cases, retracted an earlier statement he had given to the effect that petitioner Ceferino S. Paredes, Jr. had been arraigned in Criminal Case No. 1393 before the case was dismissed. Atty. Sansaet now claimed that no arraignment had been held after all. This new development required the reopening of the investigation (in fact Paredes, Jr. and Honrada were required to comment on the retraction), the reevaluation of the evidence, and the preparation of a new resolution. Gay Maggie Balajadia-Violan, Graft Investigation Officer II of the Office of the Deputy Ombudsman for Mindanao, was designated to conduct the investigation and prepare a report, which she did. Violans recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to Ombudsman Conrado Vasquez, who then referred the matter to Special Prosecution Officer Ill Erdulfo Querubin for review. Querubin

concurred in the recommendation of Violan but suggested that, instead of one, three separate informations for falsification of public documents be filed against respondents (Paredes, Jr., Honrada and Sansaet), considering that three documents were involved. On June 26, 1992, Ombudsman Conrado Vasquez approved the recommendations of Violan and Querubin. Accordingly three cases were filed against petitioners with the Sandiganbayan, where they were docketed as Criminal Case Nos. 17791, 17792 and 17793. There is thus no basis for petitioners claim that the resolution was prepared by one who did not take any part in the investigation. What happened here is similar to the trial of a case by one judge who, without being able to finish the hearing, ceases from office for one reason or another and by necessity the decision is rendered by another judge who has taken over the conduct of the case. Such an arrangement has never been thought to raise any question of due process. For what is important is that the judge who decides does so on the basis of the evidence in record. It does not matter that he did not conduct the hearing of that case from the beginning. Petitioners nonetheless charge that GIO II Violan and Prosecutor Querubin did not have such cold neutrality of an impartial judge to be trusted to conduct a fair investigation. According to petitioners, Violan gave credence to the Certification issued by Judge Ciriaco C. Ario when the fact is that Judge Ario subsequently executed an affidavit, dated November 5, 1990, in which he explained that he issued the said certificate without expectation that the same would be used as evidence in any case and that the use of said certificate . . . is against [his] conscience. Worse, it is contended, Violan considered the Affidavit of Explanations and Rectifications executed by Atty. Sansaet, which she should have disregarded because it was made in violation of the confidentiality of attorney-client communication under Rule 130, 24 (b) of the Rules of Court. As for Prosecutor Querubin, they claim that he is the same prosecutor who had handled the prosecution of Criminal Case No. 13800 against petitioner Paredes, Jr. in the Sandiganbayan and after its dismissal, sought review in this Court and, therefore, he was biased against petitioners. That Violan gave credence to the Certification of Judge Ario in concluding that no arraignment had been held in Criminal Case No. 1393 is not proof that Violan was biased against petitioners. Although Judge Ario subsequently gave an Affidavit, he never in that Affidavit repudiated what he had earlier stated. In his Affidavit he merely stated:

1. That I am the incumbent Municipal Circuit Trial Court Judge in the First Municipal Circuit Trial Court of San Francisco-Rosario-Bunawan, Agusan del Sur; 2. That I am the same Ciriaco C. Ario who issued a certificate in Criminal Case No. 1393 entitled Pp. vs. Ceferino S. Paredes, Jr. which certificate was used as evidence in administrative complaint against Mansueto J. Honrada, in the Administrative Complaint No. A.M. P-90-396 and Criminal Complaint against Mansueto J. Honrada, incumbent Governor Ceferino S. Paredes, Jr. and Atty. Generoso S. Sansaet before the Ombudsman under Criminal Case No. OBM-MIN90-0053 (sic) entitled Teofilo Gelacio vs. Mansueto J. Honrada, et. al.; 3. That honestly, the said certificate was issued without my expectation that the same be used as evidence in any case and I be a witness; 4. That the use of said certificate as evidence in the above-mentioned cases is against my conscience, more so upon discovery that the cases aforesaid are known to me to be politically motivated and involves [sic] big time politicians in Agusan del Sur about whom I am not at liberty to name names for security reason; 5. That in view of all the foregoing, I am not interested to testify in any investigation to be conducted in connection thereof, either in the administrative or criminal proceedings.

Thus, Judge Ario never denied his earlier Certification that Criminal Case No. 1393 never reached the arraignment stage, because having learned that Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal later moved for the dismissal of the case. The fact that Judge Ario did not anticipate that his certificate might be used in evidence, much less in the criminal cases now pending in the Sandiganbayan, is not a reason to disregard it. The fact is that Judge Ario did not retract his previous Certification that there was no arraignment held in Criminal Case No. 1393. If that is the truth, then the fact that he now says he did not anticipate that his certificate would be used in evidence in any case would not diminish a whit the value of the certificate. Nor was consideration of the retraction of Atty. Sansaet proof that GIO II Violan was biased against petitioners. Petitioners contend that Sansaets confession was privileged and that Violan herself acknowledged that the affidavit of retraction might be inadmissible in court. In the first place, there is nothing in the resolution of Violan which shows that she based her conclusion (that petitioners were probably guilty of falsification of public documents) on Atty. Sansaets retraction. In her resolution, all that she stated is that the confession of Atty. Sansaet has important bearing in this case. Otherwise she did not cite the confession as proof of the falsification of public documents. To the contrary, Violan thought that the retraction was made in violation of attorney-client privilege and

therefore, would be inadmissible in evidence. Violan could not, therefore, have relied on the affidavit of retraction. Moreover, the admissibility of this piece of evidence is a question for the Sandiganbayan to determine in the event it is used by the prosecution. It is untenable to ascribe bias and partiality to the investigator because she considered this retraction in her resolution of the case. Even if she relied on it mere divergence of opinions between a judge and a partys counsel as to applicable laws and jurisprudence is not sufficient ground for disqualifying the judge from hearing the case on the ground of bias and partiality.8 As for Prosecutor Querubin, simply because he was the one who handled the prosecution of Criminal Case No. 13800, in connection with which the documents allegedly falsified were used by petitioners, is not a reason for supposing he could not act fairly. As any other counsel in a case, it was his duty to act with full devotion to [his clients] genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability.9 It cannot be casually assumed that because of his engagement in that case he had lost his objectivity to such an extent that he forsook his duty to see to it that justice was done and not to act out of vindictiveness. Indeed, Querubin is a public prosecutor, not a private attorney. In the familiar terminology, he is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done.10 It may therefore be assumed that he was merely performing an official duty and that nothing personal was involved in his recommendation to prosecute the cases. Above all, it should be stressed that the decision to charge petitioners in the Sandiganbayan was the decision not only of one person but of all those who in one way or another were called upon to act in the cases, namely: Graft Investigation Officer Gay Maggie Balajadia-Violan, Deputy Ombudsman Cesar Nitorreda, Ombudsman Conrado Vasquez, and Special Prosecutor Aniano Desierto. Indeed, Querubins only contribution to the process was to suggest the filing of three separate informations of falsification of public documents against petitioners. II.

The second ground for the petition is that the Office of the Ombudsman closed its eyes to the fact that in filing these cases, complainant Teofilo Gelacio is guilty of forum-shopping and that his purpose for the filing of the cases is simply political harassment. To buttress their contention, petitioners call attention to the factual background of the cases.11 According to petitioners, way back in 1984 private respondent Teofilo Gelacio charged petitioner Paredes, Jr. with perjury on the ground that in 1975 Paredes, Jr. made false statements in an affidavit which he used in support of his application for a free patent. As already noted, the case which was filed with the Municipal Trial Court of San Francisco, Agusan del Sur, and docketed there as Criminal Case No. 1393, was dismissed on March 24, 1986 upon motion of the prosecution. On October 28, 1986, Teofilo Gelacio filed another complaint against petitioner Paredes, Jr., then the acting governor of the province. The complaint was for violation of 3 (a) of Republic Act 3019, otherwise known as Anti-Graft and Corrupt Practices Act. Allegedly, in 1976 petitioner Paredes, Jr., then the Provincial Attorney of Agusan del Sur, unduly persuaded, induced and influenced the Public Land Inspector to approve his (Paredes, Jrs) application for a free patent. According to petitioners, this case involved the same application for a free patent of petitioner Paredes, Jr., which was the subject of Criminal Case No. 1393. The information was filed by Special Prosecutor Erdulfo Querubin in the Sandiganbayan where it was docketed as Criminal Case No. 13800. Petitioner Paredes, Jr. moved to quash the information, but the court denied his motion. He then filed a motion for reconsideration. It was in connection with this motion that the procurement of allegedly falsified documents, now the subject of prosecution, was made by petitioner Paredes, Jr. The documents were used to support his motion for reconsideration. On August 1, 1991, the Sandiganbayan reconsidered its previous resolution and dismissed Criminal Case No. 13800, although on the ground of prescription. The Office of the Ombudsman sought a review of the action of the Sandiganbayan, but its petition was dismissed by this Court on July 3, 1992 in G.R. No. 101724. The motion for reconsideration filed by the prosecution was likewise denied. As an offshoot of the execution of these documents, two cases were filed by Teofilo Gelacio: (1) an administrative complaint (A.P. Case No. P-90-3 96) for falsification of public documents which was filed with this Court against Mansueto Honrada, the clerk of the MCTC who made certifications and (2) a complaint for falsification of public documents, initially filed as OMB-MIN-90-

0053 with the Office of the Ombudsman and eventually as Criminal Case Nos. 17791, 17792, and 17793 in the Sandiganbayan, against the petitioners and Atty. Generoso Sansaet. The first case was dismissed for insufficiency of the evidence. But with respect to the second complaint, Graft Investigation Officer Violan found probable cause to proceed against petitioners and against Atty. Sansaet and so recommended the filing of a case against them. Her recommendation was approved by the Ombudsman on June 26, 1992, although upon the recommendation of Special Prosecutor Querubin three separate informations were filed with the Sandiganbayan. Earlier on July 29, 1991, Atty. Sansaet, one of the respondents, executed an Affidavit of Explanations and Rectifications in which he stated that, contrary to his previous affidavit, there was no arraignment held in Criminal Case No. 1393. A. Petitioners contend that these cases should be dismissed, being merely the latest in a series of cases which arose out of the same alleged incident i.e. that of allegedly having induced the land inspector to approve his (Paredes, Jr.s) land application,12 for having been filed in violation of the rules on forum-shopping. Petitioners cite the following statement in Crisostomo v. Securities and Exchange Commission:13 There is forum-shopping whenever as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts while an administrative proceeding is pending as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. . . A violation of this rule shall constitute contempt of court and shall be a cause for summary dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or the party concerned. The mere filing of several cases based on the same incident does not necessarily constitute forum-shopping. The test is whether the several actions filed involve the same transactions, essential facts, and circumstances.14 Here, although several cases were filed by the same complainant against the same defendant and the subject matter of the actions of two of the cases was the same incident (i.e., the application for free patent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involve essentially different facts, circumstances and causes of action. Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco, Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 by petitioner Paredes, Jr. in connection with his free

patent application. Criminal Case No. 13800, which was filed in the Sandiganbayan, although based on the filing of the same application for free patent, was for violation of the Anti-graft and Corrupt Practices Act, on the allegation that petitioner, as Provincial Attorney, had unduly influenced the Public Land Inspector to secure the approval of his free patent application. On the other hand, as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are for falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P-90-396 is an administrative case against petitioner Honrada based on the same incident and facts that are subject of the preceding criminal cases. The rest are incidents of these cases, being the petition for review and motions for reconsideration in Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus the present cases involve substantially different transactions, facts and circumstances from those involved in the other, though related, cases. Although they arose from the same incident, i.e., petitioners public land application, they involve different issues. It is well settled that a single act may offend against two or more distinct and related provisions of law15 or that the same act may give rise to criminal as well as administrative liability.16 As such, they may be prosecuted simultaneously or one after another, so long as they do not place the accused in double jeopardy of being punished for the same offense. Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez17 that only this Court has the power to oversee court personnels compliance with laws and take the appropriate administrative action against them for their failure to do so and that no other branch of the government may exercise this power without running afoul of the principle of separation of powers. But one thing is administrative liability. Quite another thing is the criminal liability for the same act. Our determination of the administrative liability for falsification of public documents is in no way conclusive of his lack of criminal liability. As we have held in Tan v. Comelec,18 the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. Petitioners assertion that private respondent Alterado has resorted to forum-shopping is unacceptable. The investigation then being conducted by the Ombudsman on the criminal case for falsification and violation of the AntiGraft and Corrupt Practices Act, on the one hand, and the inquiry into the

administrative charges by the COMELEC, on the other hand, are entirely independent proceedings. Neither would the results in one conclude the other. Thus an absolution from a criminal charge is not a bar to an administrative prosecution (Office of the Court administrator v. Enriquez, 218 SCRA 1) or vice versa.19 B. As final argument, petitioners allege that the complaint in Criminal Case Nos. 17791, 17792 and 17793 was filed by political enemies of petitioner Paredes, Jr. merely to harass him and that there is in fact no probable cause to support the prosecution of these cases. Petitioners cite the following which allegedly indicate that the charges below have merely been trumped up: (1) The affidavit of Agusan del Sur District Citizens Attorney Lou Nueva, stating that then Congressman Democrito O. Plaza instructed Atty. Leonardo Cadiz to secure a certification from Judge Ciriaco C. Ario that no arraignment had been held in Criminal Case No. 1393, threatening that if the judge refused to give the certification, he (Congressman Plaza) would do everything against Judge Ciriaco C. Ario, including reviving certain cases against Judge Ario;20 and (2) The affidavit, dated November 5, 1990, of Judge Ario in which he stated that he did not expect that the certificate which he had previously issued would be used in evidence and that the use of the certificate in the cases below was against his conscience, because the cases were politically motivated and he was not going to testify in any investigation concerning such certificate.21 At the same time petitioners seek to minimize the retraction of Atty. Sansaet by ascribing political motivation for its execution. Petitioner Ceferino Paredes, Jr. claims that Sansaets obsession has been to win in an election and that his loss to petitioner Paredes, Jr. in the May 11, 1992congressional elections was Sansaets sixth defeat. As for private respondent Teofilo Gelacio, petitioners say he is a political leader of Democrito Plaza. They claim that in 1991 Atty. Sansaet changed political affiliation and allied himself with Democrito Plaza and Teofilo Gelacio. Petitioners argue that the certifications made by the clerk of court with respect to an arraignment allegedly held on July 9, 1985 in Criminal Case No. 1393 is conclusive and cannot be altered by Atty. Sansaets claim to the contrary. They cite what is now Rule 132, 23 of the Revised Rules on Evidence, which provides that public instruments are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. We find the foregoing averments to be unpersuasive. First of all, that the filing of the charges is politically motivated cannot justify the prohibition of a criminal prosecution if there is otherwise evidence to support them. Here a

preliminary investigation of the complaint against petitioners was held during which petitioners were heard. Their evidence, as well as that of private respondent Gelacio, was considered in great detail in the resolution of GIO II Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubin who made his own detailed resolution concurring in the finding of Violn. We cannot say that, in approving the resolutions of two investigators, the respondent Ombudsman and Special Prosecutor committed an abuse of their discretion. Indeed, this Court is loath to interfere with the discretion of the Ombudsman unless such discretion is clearly shown to have been abused. As explained in Young v. Office of the Ombudsman:22 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. There are instances, constituting exceptions to the general rule, when this Court will intervene in the prosecution of cases. Some of these instances were enumerated in Brocka v. Enrile,23 as follows:
a. Where injunction is justified by the necessity to afford protection to the constitutional rights of the accused; (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95) b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al. L-38383, May 27 1981, 104 SCRA 607) c. When there is a prejudicial question which is sub judice;. (De Leon vs. Mabanag, 70 Phil. 202) d. When the acts of the officer are without or in excess of authority; (Planas vs. Gil, 67 Phil 62) e. Where the prosecution is under an invalid law, ordinance or regulation; (Young vs. Rafferty, 33 Phil 556; Yu Co Eng vs. Trinidad, 47 Phil. 385, 389) f. When double jeopardy is clearly apparent; (Sangalang vs. People and Avendia, 109 Phil. 1140) g. Where the court has no jurisdiction over the offense; (Lopez vs. City Judge, L25795, October 29, 1966, 18 SCRA 616).

h. Where it is a case of persecution rather than prosecution; (Rustia vs. Ocampo, CAG.R. No. 4760, March 25, 1960) i. Where the charges are manifestly false and motivated by the lust for vengeance; (Recto vs. Castelo, 18 L.J. (1953), cited in Ranoa vs. Alvendia, CA G.R. No. 30720R, October 8, 1962; cf Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577). j. When there is clearly no prima facie case against the accused and motion to quash on that ground has been denied; (Salonga vs. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438); and k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners. (Rodriguez vs. Castelo, L-6374, August 1, 1953) (cited in Regalado, REMEDIAL LAW COMPENDIUM, p. 188 1988 Ed).

But none of these instances is present here. What petitioners raise are questions which go to the weight to be given to the affidavits by Atty. Nueva and Judge Ario. These are matters for the trial courts appreciation. A preliminary investigation is not a trial. The function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause.24 As we explained in Pilapil vs. Sandiganbayan,25 this function involves only the following: Probable cause is a reasonable ground of presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. (Words and Phrases, Probable Cause v. 34, p. 12) The term does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. Secondly, to warrant a finding of political harassment so as to justify the grant of the extraordinary writs of certiorari and prohibition, it must be shown that the complainant possesses the power and the influence to control the prosecution of cases. Here, the prosecution is handled by the Office of the Ombudsman. Although it is intimated that Petitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies in Agusan del Sur, it has not been alleged, much less shown, that his enemies have influence and power over the national prosecution service. To show political harassment petitioners must prove that public prosecutor, and not just the private complainant, is acting in bad faith in

prosecuting the case26 or has lent himself to a scheme that could have no other purpose than to place the accused in contempt and disrepute.27 For it is only if he does so may the prosecutor, in conducting the preliminary investigation, be said to have deserted the performance of his office to determine objectively and impartially the existence of probable cause and thus justify judicial intervention in what is essentially his province. WHEREFORE, the petition for certiorari and prohibition is DISMISSED. SO ORDERED.

G.R. No. 130319. October 21, 1998]

ERIBERTO L. VENUS, petitioner, vs. HON. ANIANO DESIERTO, in his official capacity as Ombudsman; SANDIGANBAYAN [Third Division]; MARS REGALADO and HARRY ABAYON, respondents. DECISION
DAVIDE, JR., J.:

In this is petition for prohibition under Rule 65 of the Rules of Court, with application for a temporary restraining order and writ of preliminary injunction, petitioner urges us to (1) annul and set aside (a) the Ombudsmans approval, granted on 26 April 1996, of the Memorandum of 22 February 1996[1] of Special Prosecution Officer III Orlando I. Ines finding reasonable ground to charge herein petitioner for violation of Section 3(e) of R.A. No. 3019, as amended; (b) the Information[2] thereafter filed before respondent Sandiganbayan, docketed therein as Criminal Case No. 23332; and (c) the disapproval of 1 August 1997 by the Ombudsman of the Order[3] of 15 July 1997 of Special Prosecution Officer III Victor A. Pascual recommending the dismissal of the case for lack of probable cause; (2) prohibit the Ombudsman from further prosecuting the case; and (3) prohibit the Sandiganbayan from acting on and trying Criminal Case No. 23332. Acting on petitioners urgent motion to resolve his application for a temporary restraining order, oral arguments were held on 27 October 1997. On that occasion, petitioner stressed the absence of a prima facie case for the offense for which he was charged, and argued that unless injunctive relief was granted, his suspension from office was almost inevitable in light of the mandatory language of the law. Assistant Solicitor General Pio Guerrero opposed the application, alleging that there was a paucity of material facts and that the propriety of determining the presence or absence of bad faith lay with the Ombudsman. Arguing for the Ombudsman, Special Prosecutor Carlos Montemayor characterized the application as premature

as petitioner had not yet been arraigned and suspension from office could only be ordered after arraignment. After the filing of the required memoranda[4] by the parties, except the Office of the Solicitor General which was excused from filing any further pleadings in this case, we issued a temporary restraining order on 12 January 1998, effective during the pendency of this case or until further orders, enjoining public respondents, their agents, representatives and persons acting upon their orders or in their place or stead from prosecuting Criminal Case No. 23332 and from conducting further proceedings thereon. Thereafter, in compliance with the resolution of 2 February 1998, the parties informed us that they were submitting this case for decision on the basis of the pleadings already filed. The antecedents are not complicated. On and prior to 2 September 1988, petitioner was the Municipal Mayor of New Washington, Aklan, while private respondents Mars C. Regalado and Harry P. Abayon were members of the Sangguniang Bayan (SB) of said municipality. At its sixteenth regular session on 2 September 1988, the SB of New Washington passed Resolution No. 19, S. 1988 authorizing petitioner to:

Negotiate And/or Inter (sic) Into A Contract With the Board of Liquidators, Office of The President of The Philippines In The Acquisition Of The GarciaDiapo Enterprise, Lot No. 2, PSU-134402 Tax Declaration No. 154 Which Is At Present In the Position (sic) Of The Board of Liquidators Scheduled For Public Bidding On September 19, 1988.[5]
Pursuant to the resolution, petitioner proceeded to Manila on 6 September 1988 and submitted to one Wenceslao Buenaventura, a Director and the General Manager of the Board of Liquidators, a copy of Resolution No. 19 S. 1998, together with petitioners letter-proposal wherein, on behalf of the Municipality of New Washington and pursuant to his authority under the Resolution, he offered to buy the lot on a government-to-government basis at a price mutually acceptable to the parties. On 8 September 1988, petitioners offer to purchase the lot for the Municipality of New Washington, as well as that of a certain Tomas Manalang, was deliberated upon by the Board of Liquidators. The Board rejected both offers by way of Resolution No. 420, Series of 1988, which reads:

RESOLVED, to reject the offer of the Sangguniang Bayan of New Washington, Province of Aklan, and Mr. Tomas Manalang to purchase the parcel of land covered by TCT No. 3278 located in New Washington, Aklan, and instead, the Ad Hoc Committee on Bids shall conduct a public bidding over said land on 19 September 1988.[6]
Petitioner returned to New Washington and informed the SB thereof of the denial. He likewise submitted to the Municipal Treasurer his voucher for P1,401.00 for the transportation expenses

he incurred for the trip, which was covered by an itinerary of travel. He then sought the opinion of the Provincial Auditor, Atty. Antonio Tabang, as regards the municipalitys participation in the bidding. The latter informed the municipality of the requirements in order that a municipal government validly participate in a public bidding, which he set forth in his affidavit as quoted in the Order of 15 July 1997 of Special Prosecution Officer III Pascual, thus:

[I]n order that a municipal government can participate in a public bidding it has to get a Sangguniang Bayan Resolution authorizing him [sic] to participate in a public bidding and to appropriate an amount needed for the bidding representing the Municipality, although I mentioned that this is a rare case where a Municipality will participate in a public bidding; that said resolution ha[s] to be reviewed and approved by the Sangguniang Panlalawigan in accordance with the existing law and regulation; that I further told Mayor Venus that for him to draw a cash advance needed for the purpose, the Resolution must be approved by the authority concerned and the cash advance must be pre-audited by my office before the municipal Treasurer release[s] the payment, and that this procedure/requirements [sic] will take time, not less than two (2) weeks at most [sic], and cannot meet the scheduled date of the bidding set [for] 19 September 1988.[7]
In view of the numerous requirements, the SB doubted whether New Washington could participate in the public bidding. Nevertheless, on 19 September 1988, petitioner went to Manila at his personal expense and submitted a letter-request to the Board of Liquidators that the public bidding be postponed to another date. However, the Board did not accede. Petitioner then submitted his personal bid, which turned out to be the highest bid. The property was thus sold to him and a Deed of Absolute Sale executed on 3 October 1988. Thereafter, he introduced improvements thereon at his expense. During his incumbency as Mayor, he allowed a portion of the lot to be used, without charge, as a garage for the municipalitys fire truck and for the municipalitys mushroom culture laboratory. Private respondents filed a sworn letter-complaint with the Office of the Provincial Prosecutor of Kalibo, Aklan, charging petitioner with violation of paragraph (h) of Section 3 of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), as amended. The case was docketed as I.S. No. 92-2449. The case was forwarded to the Office of the Deputy Ombudsman for the Visayas in Cebu City, which docketed the complaint as Case No. OMB-2-92-2584. Private respondents alleged in their letter-complaint, thus:

That on or about the period from September to October, 1988, in the Municipality of New Washington, Province of Aklan, Philippines, and City of Manila, Philippines, and within the jurisdiction of this Honorable Office, the above-named respondent being then the duly elected Mayor of New Washington, Aklan, did then and there wilfully, unlawfully and feloniously having been previously authorized to negotiate and/or enter into a contract with the Board of Liquidators, Office of the President of

the Philippines, in the acquisition of the Garcia-Diapo Lot No. 2, PSU-134402, Tax Declaration No. 154 and covered with TCT No. T-16837 which was already then acquired by the Board of Liquidators and scheduled for public bidding on September 19, 1988 and further, having withdrawn money from the Municipality Treasury for said purpose as expenses thereof in the amount of P1,401.00, to the prejudice of the Municipality of New Washington and for his own personal benefit, entered into a Contract of Sale with the Board of Liquidators in his own name and purchased the aforementioned lot for and in his own behalf in contravention with [sic] the Anti-Graft and Corrupt Practices [Act] (Republic Act No. 3019, As Amended, Section 3, Par. H thereof).[8]
In their Joint Affidavit in support of the complaint, private respondents alleged that in contravention of the resolution and authority, in evident bad faith and for the sole purpose of self-interest, petitioner bought the lot in his name and for personal gain, and that they never suspected otherwise because from 1988 up to May 1990, the lot was utilized as a garage for fire trucks and for the municipal mushroom culture laboratory. It was only when petitioner lost in the 1992 elections and ejected the Municipal Firetruck that they came to know that petitioner bought the land in his name and not for the municipality.[9] In his Counter-Affidavit, petitioner summarized the facts stated above prior to the filing of the letter-complaint. He averred that the filing of the complaint was pure harassment in retaliation for an election protest he filed earlier. In a resolution[10] dated 20 October 1993, issued after due proceedings, the Office of the Deputy Ombudsman for the Visayas recommended the dismissal of the complaint on the ground that there existed no case for violation of paragraph (h) of Section 3 of R.A. No. 3019, as amended, thus:

After a meticulous examination of the pleadings of both parties, giving due consideration to documentary evidences [sic] respectively submitted in support of their contending [sic] allegations, the undersigned investigator determines to be of no sufficient basis the present charge [for] violation of Section 3, paragraph (h), of R.A. 3019, the pertinent provision of which reads as follows: h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. It would be of some worth citing the case of Trieste, Sr. vs. Sandiganbayan, 145 SCRA 508, to clarify the application of the above-pertinent provision wherein the Supreme Court said: What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach (Opinion No. 306, Series 1961 and Opinion No. 94,

Series 1972 of the Secretary of Justice). xxxx. For the law aims to prevent dominant use of influence, authority and power (Deliberation on Senate Bill 293, May 6, 1959, Constitutional Record, Vol. II, page 603). And as was cited in Macariola vs. Asuncion, 114 SCRA 77, regarding a ruling in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition [against] public officers [from] directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, (I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and hence, the official who intervene [sic] in contracts or transactions which have no relation to his office cannot commit this crime (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. II 1976). Evidently, the above citations find appropriate application [so] as to dismiss the charge in the instant case. The representation made by the respondent former mayor Eriberto L. Venus before the Board of Liquidators pursuant to the authority given him by the Sangguniang Bayan of New Washington, Aklan, per Resolution No. 19, s. 1988, to negotiate and/or enter into a contract with the Board for the purchase by the municipality of New Washington of the subject lot, did not constitute actual intervention as contemplated in the aforecited provision of the anti-graft law. What the same respondent did was merely to make arrangement [sic] or bargain with the Board regarding the offer of the Sangguniang Bayan of New Washington. He was not a member of the Board of Liquidators, and his being the authorized representative of the municipality of New Washington to deal with the Board or his capacity as mayor of New Washington, Aklan, were not reasons for him to intervene in the transaction of the Board. The respondent was not in the position to intercede in whatever official capacity in the Boards deliberation/meeting to decide on whether to accept or reject the offer made. The decision was purely the exclusive prerogative of the Board, which in fact rejected the offer per its Resolution No. 420, s. 1988. And there was absolutely no evidence that the respondent had, in his capacity as then Mayor, used his influence, power, and authority in the rejection of the offer of the municipality of New Washington, Aklan, and in the award to him of the contract for the sale of [the] subject lot when he subsequently tendered his own personal bid. Hence, no legal prohibition exists against the respondents acquisition of the property in question. The complainants charge that the municipality of New Washington was prejudiced when the respondent, having been previously authorized to negotiate and/or enter into a contract with the Board of Liquidators for the acquisition of the subject lot and having withdrawn money from the Municipal Treasury for said purpose as expenses thereof in the amount of P1,401.00, entered into a Contract of Sale with the Board of Liquidators on his own behalf and for his personal benefit. It need be pointed out,

however, that pursuant to the authority given him the respondent had in fact made negotiations by manifesting the offer of the municipality of New Washington through a letter to the Director & General Manager, Wenceslao M. Buenaventura, of the Board of Liquidators dated September 7, 1988 (Annex C of counter-affidavit). Unluckily, aforesaid offer was rejected by the Board, per its Resolution No. 420, s. 1988 (Annex E), which decided that the Ad Hoc Committee on Bids should instead conduct a public bidding over [the] subject lot on September 19, 1988. Accordingly, the members of the Sangguniang Bayan of New Washington were informed by the respondent of the rejection of their offer. And having done what he had been mandated and authorized to do, although unsuccessfully, the respondent reasonably claimed reimbursement for his actual expenses in connection thereof in the amount of P1,401.00 as justified by him in his Itinerary of Travel dated September 12, 1988 (Annex C of complaint or Annex A of respondents reply to complainants rejoinder), for which Disbursement Voucher No. 101-88-09-632 (Annex B of complaint) was duly prepared and approved. Considering that the authority given the respondent was to negotiate and/or enter into a contract with the Board of Liquidators, and that the negotiated transaction or offer pursuant thereof had been rejected by the Board and instead a public bidding was called, no contract for the sale of subject lot to the municipality of New Washington could possibly be pursued based thereon. There being no subsequent authority for the respondent to tender before the Ad Hoc Committee on Bids a bid offer of the municipality of New Washington, the respondents authority to represent the municipality concerned for purposes of acquiring the subject lot had been effectively terminated upon the rejection of their offer of a negotiated purchase. That he transacted and bidded [sic] for said purchase on his own and not upon any authority or official representation is shown by his letter-request to Governor Corazon L. Cabagnot dated September 17, 1988 (Annex C of respondents reply to complainants rejoinder) for authority to travel to Manila and the 1st Indorsement dated September 17, 1988 of Governor Cabagnot (Annex D) granting such authority. WHEREFORE, premises considered, the undersigned respectfully recommends the DISMISSAL of the instant complaint.
Then Ombudsman Conrado M. Vasquez, however, disapproved the resolution, with a marginal note to [c]onsider the possible liability of [petitioner] for a violation of Section 3(e), R.A. 3019 [since] [t]here is a pervading showing of bad faith on the part of [petitioner] in maneuvering to acquire for himself a piece of property which he himself knew to be badly needed by the municipality. The case was re-raffled to Graft Investigation Officer I Carla N. Tanco of the Office of the Deputy Ombudsman for the Visayas. In her Resolution[11] dated 5 December 1994, she found

prima facie evidence to proceed against [petitioner] for violation of Sec. 3(e), of R.A. No. 3019, as amended, and recommended the filing of the corresponding information. The Deputy Ombudsman for the Visayas recommended approval thereof. The resolution was thereafter referred for review to Special Prosecutor Officer III Orlando I. Ines of the Office of the Special Prosecutor. In his Memorandum[12] of 22 February 1996, Ines found that there is a reasonable ground to charge respondent Mayor Eriberto L. Venus of New Washington, Aklan, for violation of Sec. 3(e) of RA 3019, as amended, and forthwith prepared the corresponding Information for filing with the Sandiganbayan. Ines justified his conclusion in this manner:

The undersigned Special Prosecution Officer totally agrees with the observations / recommendation made by GIO Carla N. Tanco as lengthily expounded in her Resolution. Based on the circumstances and evidence at hand, it is crystal clear that respondent acted in bad faith in acquiring the lot for himself instead of for his municipality. It is a fact that he was commissioned by the SB to negotiate with the Board of Liquidators for the acquisition of said lot through public bidding but sequences [sic] of events would now prove that he ha[d] a hidden motive to personally acquire the lot in his own name. Being commissioned by the SB, he now become an agent of the Municipality of New Washington. Thus, he should have acted as representative of his Municipality in [sic] which he leads as the Mayor. This job demands utmost good faith, fidelity, candor and fairness. The New Civil Code imposes upon the agent the absolute obligation to make a full disclosure or complete account to his principal of all his transactions and other material fact [sic] relative to the agency. So much so that the law does not countenance any stipulation exempting the agent from such obligation and considers such exemption as void (Domingo vs. Domingo, 42 SCRA 131). Respondent could not place good faith as his defense inasmuch [sic] there is good faith only when there is an honest intention to abstain from taking as [sic] unconscientious advantage from [sic] another. Respondent should have acted with delicadeza by not having personally purchased the lot for himself. The nature of the relationship between him as the Mayor and agent with the principal which is the municipality is fiduciary in nature which demands the agent from placing oneself in a position which ordinarily excites conflicts between self interest and integrity.
Deputy Special Prosecutor Robert E. Kallos recommended the approval of Ines resolution. Special Prosecutor Leonardo P. Tamayo concurred with Ines recommendation, while Ombudsman Aniano Desierto approved the resolution on 26 April 1996. On 26 April 1996, Ombudsman Desierto likewise approved the Information[13] charging petitioner with having violated Section 3(e) of R.A. No. 3019, as amended, with the accusatory portion reading as follows:

That sometime during the period from September to October 1988, and for sometime prior or subsequent thereto, in the Municipality of New Washington, Philippines, and within the jurisdiction of this Honorable Court, accused ERIBERTO L. VENUS, a public officer, being then the Municipal Mayor of New Washington, Aklan, while in the performance of his official functions, taking advantage of his position, and committing the offense in relation to his office, through evident bad faith, did then and there wilfully, unlawfully and criminally cause undue injury to the government, particularly to the Municipality of New Washington, Aklan and to public interest, as follows: that accused Mayor Venus after having been previously authorized by the Sangguniang Bayan of New Washington, Aklan to negotiate and/or enter into a contract in behalf of said Municipality with the Board of Liquidators of the Office of the President for the purchase/acquisition of the latters Garcia-Diapo Lot No. 2, situated in front of the New Washington Town Hall, and which was scheduled for public bidding on September 19, 1988, and that said accused after having withdrawn money from the Municipality Treasury the amount of P1,401.00 as travelling expense in going to Manila to negotiate said transaction, did then and there maneuver said sales deal and enter into a Contract of Sale with the said Board of Liquidators in his own name instead, and purchased the aforementioned lot for and in his own behalf despite the fact that he knew that said lot is badly needed by the Municipality which is proposed to be the site of the Fire Fighting Station of the Municipality; to the damage and prejudice of the Municipality of New Washington, Aklan and public interest. CONTRARY TO LAW.
The Information was filed with the Sandiganbayan on 2 May 1996 and docketed therein as Criminal Case No. 23332. On 7 March 1997, petitioner personally surrendered to the Sandiganbayan (Third Division).[14] His arraignment[15] was set on 10 March 1997. On 10 March 1997, the Sandiganbayan issued an order[16] noting that a copy of the resolution directing the filing of the information was sent by registered mail to petitioner only on 3 May 1996, or a day after the filing of the information, thereby effectively depriving accused of his statutory right to file a motion for reconsideration. Respondent court then granted petitioners motion for leave to file a motion for reconsideration, which was not objected to by the prosecution. Petitioner was thus allowed to file a motion for reconsideration directly with the Office of the Special Prosecutor within ten (10) days from 10 March 1997, and the prosecution was given thirty (30) days from receipt of the motion to re-evaluate its findings and conclusions in this case. As a consequence, the Sandiganbayan held in abeyance petitioners arraignment pending consideration by the Ombudsman of said motion for reconsideration. On 20 March 1997, petitioner filed his motion for reconsideration[17] with the Office of the Special Prosecutor. The motion was referred to Victor A. Pascual, Special Prosecution Officer III, the prosecuting officer of the case. Only private respondents herein opposed[18] the motion.

In his Order[19] of 15 July 1997, Pascual recommended that the Resolution of 22 February 1996 of Ines is, as it is hereby reconsidered and set aside and the instant case is hereby dismissed for lack of probable cause. Pascual further recommended that the proper Manifestation be prepared and filed with the Honorable Sandiganbayan informing the latter of the result of the Motion for Reconsideration in this case for its consideration. Deputy Special Prosecutor Robert E. Kallos disapproved the recommendation; but Special Prosecutor Leonardo P. Tamayo concurred therewith. On 1 August 1997, Ombudsman Aniano Desierto disapproved the recommendation with the following marginal note:

Allow the court to find absence of bad faith.

Probable cause exists.[20] To justify his recommendation, Pascual stated:

A thorough review of the record of the case together with the new documentary evidence submitted by the parties, undersigned find[s] no probable cause to warrant further prosecution of this case. While it is an admitted fact, that accused/respondent Venus went to Manila on September 6, 1988 on [an] official trip to purposely convince the Board of Liquidators to enter into a negotiated contract of sale of the said property at a nominal amount, however, this part of [the] negotiation which did not materialize does not necessarily mean that accused is liable for [a] [v]iolation of Sec. 3(e) of R.A. 3019. Records disclosed [sic] that the accused did really perform all the necessary acts mandated in Resolution 19, S-1988. It likewise appears that on September 7, 1988 or immediately upon arrival in Manila respondent Mayor Venus went directly to the Office of the Board of Liquidators in San Miguel [sic] Manila submitting thereto, the letter dated September 7, 1988 of the Municipality of New Washington, pertinent portion of which states: xxx offering to buy for our municipality at a price mutually agreeable to us, on a government to government basis xxx. On September 8, 1988, the Board of Liquidators in its Resolution No. 420 Series of 1988 rejected the said offer by stating: RESOLVED, to reject the offer of the Sangguniang Bayan of New Washington, Province of Aklan, and Mr. Tomas Manalang to purchase the parcel of land covered by TCT No. 3278 located in New Washington, Aklan, and instead, the AD [sic] Hoc

Committee on Bids shall conduct a public bidding over the said land on 19 September 1988. On September 9, 1988, respondent/accused returned back [sic] to New Washington with a negative result. However, he did not stop from [sic] there but instead, asked for the opinion/advice of the Provincial Auditor, Atty. Antonio Tabang, and in the latters affidavit submitted to this office it is stated therein, specifically that, xxx in order that a municipal government can participate in a public bidding it has to get a Sangguniang Bayan Resolution authorizing him [sic] to participate in a public bidding and to appropriate an amount needed for the bidding representing the Municipality, although I mentioned that this is a rare case where a Municipality will participate in a public bidding; that said resolution have [sic] to be reviewed and approved by the Sangguniang Panlalawigan in accordance with the existing law and regulation; and I further told Mayor Venus that for him to draw a cash advance needed for the purpose, the Resolution must be approved by the authority concerned and the cash advance must be pre-audited by my office before the Municipal Treasurer released [sic] the payment, and that this procedure/requirements [sic] will take time, not less than two (2) weeks at most [sic], and cannot meet the scheduled date of the bidding set on 19 September 1988. All the above facts were disclosed by the accused to the Sangguniang Bayan and therefore, it cannot be said that he had a hidden motive to personally acquire the lot for himself. This fact disputed the Comment/Opposition of complainants interpretation of the Resolution No. 19 Series of 1988 by the Sangguniang Bayan of New Washington, Aklan. Subsequently, on the 19th of September 1988 accused decided to participate in the public bidding only after finding the impossibility of the Municipality to participate because of budgetary constraints; lack of material time to appropriate funds; secure the approval of the Sangguniang Panlalawigan, and drawing of [a] cash advance from the Municipal Treasurer for [the] bid price upon prior approval of the auditor. Hence, accuseds subsequent act of participating in the public bidding on September 19, 1988, did not constitute evident bad faith as there was no intention to cause damage to the Municipality. He did not use the money of the Municipality for his personal interest nor did he use his office as a Mayor in order to participate in the said bidding. Earnest efforts were exerted to facilitate the buying of the said lot for the Municipality. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. This is absent in this case.[21]

On 22 August 1997, Victor A. Pascual filed a Manifestation,[22] to which was attached a copy of his Order of 15 July 1997, informing the Sandiganbayan of the disapproval of the Ombudsman of his recommendation to dismiss the case. On 8 September 1997, the Sandiganbayan noted the Manifestation and set petitioners arraignment on 20 October 1997.[23] On 11 September 1997, petitioner filed this petition. On 17 October 1997, petitioner filed an urgent motion to defer arraignment[24] with the Sandiganbayan. Acting thereon and in light of the conformity of Prosecution Officer Pascual, the Sandiganbayan, in its Order[25]of 20 October 1997, reset arraignment to 30 January 1998. On 12 January 1998, we issued a temporary restraining order. After due deliberation on the issues and arguments adduced in the pleadings, we grant the petition. By allowing petitioner to file a motion for reconsideration and directing Special Prosecution Officer Victor Pascual to resolve the same, public respondent Sandiganbayan agreed that the Ombudsman reinvestigate the case or, at the very least, further re-assess or re-examine the facts. In the language of Marcelo v. Court of Appeals,[26] the Sandiganbayan here deferred to the authority of the prosecution arm to resolve, once and for all, the issue of whether or not sufficient ground existed to file the information. Respondent court must have been guided by the general statement in Crespo v. Mogul[27] that courts cannot interfere with the prosecutors discretion as to and control over criminal prosecutions. Conformably with the general rule that criminal prosecutions may not be restrained either through a preliminary or final injunction or a writ of prohibition, this Court ordinarily does not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[28] There are, however, settled exceptions to this rule, such as those enumerated in Brocka v. Enrile,[29] to wit:
a. To afford protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795. October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. (1953), cited in Raoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); j. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438); and k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953) (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)[30]

Ocampo[31] provided the basis for the general rule insofar as the Ombudsman is concerned, thus:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they would be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.
In Young v. Office of the Ombudsman,[32] however, we held that this Court may interfere with the discretion of the Ombudsman in case of clear abuse of discretion. The issue here is whether petitioner may validly invoke any of the foregoing exceptions. In the main, he submits that the facts here do not make out even a prima facie case for violation of Section 3(e) of R.A. No. 3019, as amended. We agree. As shown by the procedural antecedents, the Office of the Ombudsman has not been at all certain in its position. Initially, no less than the Deputy Ombudsman for the Visayas, Hon. Arturo C. Mojica, found no ground to believe that petitioner had violated Sec. 3(h) of R.A. No. 3019, as amended. However, then Ombudsman Vasquez disagreed, in view of the possibility of a violation of Section 3(e) thereof, because of the pervading showing of bad faith on the part of the [petitioner] in maneuvering to acquire for himself a piece of property which he himself knew to be badly needed by the Municipality. Subsequently, and conformably with this observation of Ombudsman Vasquez, the case was remanded to the Office of the Deputy Ombudsman for the Visayas and re-assigned to Graft Investigation Officer Tanco who thereafter found a prima facie case for violation of Sec. 3(e) of R.A. No. 3019, as amended. This time, the Deputy Ombudsman for the Visayas concurred with such finding. Upon review thereof, Special Prosecution Officer III Orlando Ines agreed with this finding and recommended the filing of the

corresponding information. The Special Prosecutor and the Ombudsman, in turn, agreed with Ines and the information was forthwith filed. Upon a subsequent re-assessment of the evidence as a consequence of petitioners motion for reconsideration, another Special Prosecution Officer, Victor Pascual, found that petitioner had not violated Sec. 3(e) of R.A. No. 3019, as amended. He thus recommended dismissal of the case for want of probable cause and the filing of the corresponding manifestation to inform the Sandiganbayan of the result of the motion for reconsideration. In this instance, the Special Prosecutor himself concurred with the finding. However, the Ombudsman disapproved the recommendation as he found that probable cause existed, but opted to allow the court to find absence of bad faith. This marginal note of the Ombudsman simply meant that he believed that petitioner was in bad faith. However, good faith is always presumed[33] and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which, according to the Commission, springs from the fountain of good conscience.[34] Therefore, he who charges another with bad faith must prove it. In this sense, the Ombudsman should have first determined the facts indicative of bad faith. On the basis alone of the finding and conclusion of Special Prosecution Officer III Victor Pascual, with which the Special Prosecutor concurred, there was no showing of bad faith on the part of petitioner. It was, therefore, error for the Ombudsman to pass the buck, so to speak, to the Sandiganbayan to find absence of bad faith. The question of good faith or want of it here revolves around the proper application or interpretation of Resolution No. 19, S. of 1988 of the Sangguniang Bayan of New Washington. The only relevant question that arises is whether the SB authorized petitioner to submit a bid on behalf of the municipality of New Washington at the public bidding on 19 September 1988. This, however, is not a question of fact. It is clear from said Resolution that petitioner was authorized to negotiate with the Board of Liquidators for the purchase of the property under a negotiated contract scheme or without public bidding. The municipality did not intend to participate in the public bidding scheduled on 19 September 1988, as indisputably evidenced by the lack of prior resolutions of the SB resolving to so participate, appropriating a specific sum for the purpose and authorizing petitioner to submit a bid for and in behalf of the municipality. As discussed in Pascuals order, the Provincial Auditor explicitly outlined the procedure as to how the municipality could have validly participated in the bidding. As such, petitioner faithfully performed his duty under Resolution No. 19 by going to Manila and presenting the Resolution to the General Manager of the Board of Liquidators, together with his letter-proposal wherein, on behalf of his municipality, he offered to buy the property on a government-to-government basis at a price mutually acceptable to the parties. However, the offer was formally rejected by the Board on 8 September 1988, with the public bidding scheduled for 19 September 1988. Petitioner forthwith informed the SB of New Washington of the Board of Liquidators denial of his request and of the fact that the public bidding would proceed on 19 September 1988. Totally unprepared to participate in the scheduled bidding, the SB had then only one available option, i.e., to buy time by trying to secure a postponement of the bidding, which petitioner requested on behalf of the municipality. Unfortunately, the Board of Liquidators did not accede to the request.

In no way then may petitioner be deemed to have acted with bad faith in not submitting a bid for and in behalf of the municipality of New Washington since, it bears repeating, Resolution No. 19, S. 1988 did not authorize him to do so and the municipality was in no position to submit a bid and only wanted to enter into a negotiated contract of sale. It must likewise be underscored that bad faith alone on the part of petitioner is not enough to make him liable for a violation of Section 3(e) of R.A. No. 3019, as amended. Said Section provides:

SEC. 3. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence
Where bad faith is involved, it is obvious that for one to be liable therefor, the bad faith must be evident. It necessarily follows that since petitioner was not guilty of bad faith in the first place, the issue then of whether such was evident fails to emerge. Indisputably, Special Prosecution Officer Victor Pascual was correct that there existed no reasonable ground to believe that petitioner violated Section 3(e) of R.A. No. 3019, as amended. Any further prosecution then of petitioner was pure harassment. That private respondents merely intended to vex petitioner is evidenced by the unrebutted claim of petitioner that the complaint was filed in retaliation for an election protest he had filed earlier. Indeed, the unreasonably belated filing of the complaint, i.e., nearly four (4) years after the alleged commission of the offense, although still within the prescriptive period, necessarily placed private respondents motives under suspicion, as they had by then become opponents of petitioner in the local political arena. Moreover, private respondents attempt to justify the belated filing of their complaint,i.e., that they came to know of petitioners purchase of the lot in his name only after petitioner lost in the 1992 elections and ejected the Municipal Firetruck, simply goes against the ordinary course of things and thus leaves this Court incredulous. Agencies tasked with the preliminary investigation and prosecution of crimes must always be wary of undertones of political harassment. They should never forget that the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect one from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials. It is, therefore, imperative upon such agencies to relieve any person from the trauma of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima faciecase or that no probable cause exists to form a sufficient belief as to the guilt of the accused.[35] Having thus arrived at the foregoing conclusion, the remaining collateral issue left to resolve is whether public respondent Sandiganbayan can be directed to dismiss Criminal Case No. 23332. We stated earlier that by allowing petitioner to file a motion to reconsider the adverse resolution of Special Prosecution Officer Ines, approved by the Special Prosecutor and the

Ombudsman, and directing Special Prosecution Officer III Pascual to resolve the motion within thirty days from receipt thereof, the Sandiganbayan thus deferred to the authority of the Ombudsman to reinvestigate the case or further re-assess or re-examine the facts. In short, the Sandiganbayan was willing to accept and adopt the final resolution of the Office of the Special Prosecutor and the Ombudsman on the issue of whether or not the offense charged was in fact committed by petitioner. Of course, applying by analogy Crespo v. Mogul,[36] Marcelo v. Court of Appeals,[37] Roberts v. Court of Appeals[38] and Martinez v. Court of Appeals,[39] the Sandiganbayan was not bound by such quasi-judicial findings. In fact, under the principles governing criminal procedure, the Sandiganbayan, or any trial court for that matter, is mandated to independently evaluate or assess the merits of the case,[40] and may either agree or disagree with the recommendation of the prosecutor. Hence, the logical thing for us to do would be to remand this case to the Sandiganbayan. Nevertheless, where the innocence of an accused is manifest from the evidence, as here, we find neither reason nor logic to merely remand the case. In Fernando v. Sandiganbayan,[41] we directly ordered the dropping of petitioners from the information of a case before the Sandiganbayan for want of probable cause, justifying such action in this wise:

We emphasize at this point that the Court has a policy of non-interference in the Ombudsmans exercise of his constitutionally mandated powers. The overwhelming number of petitions brought to us questioning the filing by the Ombudsman of charges against them are invariably denied due course. Occasionally, however, there are rare cases when, for various reasons there has been a misapprehension of facts, we step in with our review power. This is one such case. It may also be stressed at this point that the approach of the Courts to the quashing of criminal charges necessarily differs from the way a prosecutor would handle exactly the same question. A court faced with a fifty-fifty proposition of guilt or innocence always decides in favor of innocence. A prosecutor, conscious that he represents the offended party, may decide to leave the problem to the discretion of the court. In the habeas corpus case of Juan Ponce Enrile v. Judge Salazar, et al., (186 SCRA 217 [1990]), the situation was more clear-cut, thus prompting the undersigned ponente to state: All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. (at p. 244)

In like manner, in Allado v. Diokno,[42] we enjoined, inter alia, respondent trial judge from proceeding any further against petitioners in Criminal Case No. 94-1757 for want of probable cause against them. WHEREFORE, the instant petition is GRANTED. For want of reasonable ground to believe that petitioner violated Section 3(e) of R.A. No. 3019, as amended, or for absence of probable cause therefor, the Sandiganbayan is hereby ORDERED to forthwith DISMISS Criminal Case No. 23332, entitled People of the Philippines versus Eriberto L. Venus, and to SUBMIT to this Court a report of its compliance within ten (10) days from such dismissal. The temporary restraining order issued on 12 January 1998 is hereby made permanent. No pronouncement as to costs. SO ORDERED.
G.R. No. 85215 July 7, 1989 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents. Nelson Lidua for private respondent.

NARVASA, J.: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2 On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as follows: 2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. ( s ) F e l i p e R a m

o s ( P r i n t e d ) F . R a m o s At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) .. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. . On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo,149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it. At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely: 1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and 2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13 Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. witness against himself"
14

The right is NOT to "be compelled to be a

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17 The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18 Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an offense"--

1) he shall have the right to remain silent and to counsel, and to be informed of such right,
21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; and
22

3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence.

23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24 He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25 The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court." 28 .. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime. It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation." But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30 Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35 If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith . 36 He may not on crossexamination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT 37 a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify in his own behalf, subject to cross-examination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur

P/INSP. ARIEL S. ARTILLERO, Petitioner,

G.R. No. 190569

Present: - versus CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ.

ORLANDO C. CASIMIRO, Overall Deputy Ombudsman, Office of the Deputy Ombudsman; BERNABE D. DUSABAN, Provincial Prosecutor, Office of the Provincial Prosecutor of Iloilo; EDITO AGUILLON, Brgy. Capt., Brgy. Lanjagan, Ajuy, Iloilo, Respondents.

Promulgated: APRIL 25, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION SERENO, J.:

This case pertains to the criminal charge filed by Private Inspector Ariel S. Artillero (petitioner) against Barangay Captain Edito Aguillon (Aguillon) for violation of Presidential Decree No. (P.D.) 1866[1] as amended by Republic Act No. (R.A.) 8249.

Petitioner is the Chief of Police of the Municipal Station of the Philippine National Police (PNP) in Ajuy, Iloilo.[2] According to him, on 6 August 2008, at about 6:45 in the evening, the municipal station received information that successive gun fires had been heard in Barangay Lanjagan, Ajuy Iloilo. Thus, petitioner, together with Police Inspector Idel Hermoso (Hermoso), and Senior Police Officer (SPO1) Arial Lanaque (Lanaque), immediately went to the area to investigate.[3] Upon arriving, they saw Paquito Panisales, Jr. (Paquito)[4] standing beside the road, wearing a black sweat shirt with a Barangay Tanod print. [5] They asked Paquito if he had heard the alleged gunshots, but he answered in the negative. Petitioner, Hermoso, and Lanaque decided to investigate further, but before they could proceed, they saw that Paquito had turned his back from us that seems like bragging his firearm to us flagrantly displayed/tucked in his waist whom we observed to be under the influence of intoxicating odor. [6] Then, they frisked him to verify the firearm and its supporting documents.[7] Paquito then presented his Firearm License Card and a Permit to Carry Firearm Outside Residence (PTCFOR). Thereafter, they spotted two persons walking towards them, wobbling and visibly drunk. They further noticed that one of them, Aguillon, was openly carrying a rifle, and that its barrel touched the concrete road at times. [8] Petitioner and Hermoso disarmed Aguillon. The rifle was a Caliber 5.56 M16 rifle with Serial Number 101365 and with 20 live ammunitions in its magazine. According to petitioner and Hermoso, although Aguillon was able to present his Firearm License Card, he was not able to present a PTCFOR. Petitioner arrested Paquito, Aguillon and his companion Aldan Padilla, and brought them to the Ajuy Municipal Police Station.[9] Paquito was released on the same night, because he was deemed to have been able to comply with the requirements to possess and carry firearm.[10] Thereafter, Aguillon was detained at the police station, but was released from custody the next day, 7 August 2008, after he posted a cash bond in the

amount of 80,000. The present Petition does not state under what circumstances or when Padilla was released. On 12 August 2008, petitioner and Hermoso executed a Joint Affidavit[11] alleging the foregoing facts in support of the filing of a case for illegal possession of firearm against Aguillon. Petitioner also endorsed the filing of a Complaint against Aguillon through a letter[12] sent to the Provincial Prosecutor on 12 August 2008. For his part, Aguillon executed an Affidavit swearing that petitioner had unlawfully arrested and detained him for illegal possession of firearm, even though the former had every right to carry the rifle as evidenced by the license he had surrendered to petitioner. Aguillon further claims that he was duly authorized by law to carry his firearm within hisbarangay. [13] According to petitioner, he never received a copy of the Counter-Affidavit Aguillon had filed and was thus unable to give the necessary reply.[14] In a Resolution[15] dated 10 September 2008, the Office of the Provincial Prosecutor of Iloilo City recommended the dismissal of the case for insufficiency of evidence. Assistant Provincial Prosecutor Rodrigo P. Camacho (Asst. Prosecutor) found that there was no sufficient ground to engender a well-founded belief that Aguillon was probably guilty of the offense charged. The Asst. Prosecutor also recommended that the rifle, which was then under the custody of the PNP Crime Laboratory, be returned to Aguillon. Petitioner claims that he never received a copy of this Resolution. Thereafter, Provincial Prosecutor Bernabe D. Dusaban (Provincial Prosectuor Dusaban) forwarded to the Office of the Deputy Ombudsman the 10 September 2008 Resolution recommending the approval thereof.[16] In a Resolution[17] dated 17 February 2009, the Office of the Ombudsman, through Overall Deputy Ombudsman Orlando C. Casimiro (Deputy Ombudsman Casimiro), approved the recommendation of Provincial Prosectuor Dusaban to dismiss the case. It ruled that the evidence on record proved that Aguillon did not commit the crime of illegal possession of firearm since he has a license for his rifle. Petitioner claims that he never received a copy of this Resolution either.[18]

On 13 April 2009, Provincial Prosectuor Dusaban received a letter from petitioner requesting a copy of the following documents:
1. Copy of the Referral letter and the resolution if there is any which was the subject of the said referral to the Office of the Ombudsman, Iloilo City; and Copy of the counter affidavit of respondent, Edito Aguillon and/or his witnesses considering that I was not furnished a copy of the pleadings filed by said respondent.[19]

2.

On 22 June 2009, petitioner filed a Motion for Reconsideration (MR) [20] of the 17 February 2009 Resolution, but it was denied through an Order dated 23 July 2009.[21]Thus, on 8 December 2009, he filed the present Petition for Certiorari[22] via Rule 65 of the Rules of Court. According to petitioner, he was denied his right to due process when he was not given a copy of Aguillons Counter-affidavit, the Asst. Prosecutors 10 September 2008 Resolution, and the 17 February 2009 Resolution of the Office of the Ombudsman. Petitioner also argues that public respondents act of dismissing the criminal Complaint against Aguillon, based solely on insufficiency of evidence, was contrary to the provisions of P.D. 1866 and its Implementing Rules and Regulations (IRR).[23] He thus claims that the assailed Resolutions were issued contrary to law, and/or jurisprudence and with grave abuse of discretion amounting to lack or excess of jurisdiction.[24] The present Petition contains the following prayer:
WHEREFORE, premises considered petitioner most respectfully prays: 1. 2. following: That this Petition for Certiorari be given due course; That a Decision be rendered granting the petition by issuing the

a. Writ of Certiorari nullifying and setting aside the Order dated July 23, 2009 and dated February 17, 2009 both of the Office of the Ombudsman in OMB V-08-0406-J and the Resolution dated September 10, 2008 of the Office of the

Provincial Prosecutor of Iloilo in I.S. No. 2008-1281 (Annexes A, C and D, respectively); b. To reverse and set aside said Orders and Resolution (Annexes A, C and D, respectively) finding PROBABLE CAUSE of the crime of Violation of Presidential Decree No. 1866 as amended by R.A. 8294 and other applicable laws and to direct the immediate filing of the information in Court against private respondent EDITO AGUILLON. Such other relief just and equitable are likewise prayed for.[25] (Emphasis in the original.)

In his Comment,[26] Aguillon submits that the present Petition should not be given due course based on the following grounds: a. The Deputy Ombudsman found that there was no sufficient evidence to warrant the prosecution for violation of P.D. No. 1866 as amended; b. The present Petition is frivolous and manifestly prosecuted for delay;[27] c. The allegations raised are too unsubstantial to merit consideration, because Petitioner failed to specifically allege the manner in which the alleged Grave Abuse was committed by Respondent Deputy Ombudsman;[28] and d. The Deputy Ombudsmans findings are supported by substantial evidence. Petitioner claims that Provincial Prosecutor Dusaban should have given him a copy of Aguillons Counter-affidavit. In support of this claim, petitioner cites Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, which reads:
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

Petitioner faults the Asst. Prosecutor and the Office of the Ombudsman for supposedly committing grave abuse of discretion when they failed to send him a copy of the 10 September 2008 and 17 February 2009 Resolutions. A perusal of the records reveal that in both the 10 September 2008 and 17 February 2009 Resolutions, the PNP Crime Laboratory and petitioner were included in the list of those who were furnished copies of the foregoing Resolutions.[29] Even though his name was listed in the copy furnished section, petitioner never signed to signify receipt thereof. Thus, none of herein respondents raise this fact as a defense. In fact, they do not even deny the allegation of petitioner that he never received a copy of these documents. Aguillon does not deny that he never sent a copy of his counter-affidavit to petitioner. For his part, Provincial Prosecutor Dusaban explained in his Comment,[30] that he was not able to give petitioner a copy of Aguillons Counteraffidavit and the 10 September 2008 Resolution, because when petitioner was asking for them, the record of the case, including the subject Resolution, was sent to the Office of the Ombudsman for the required approval.[31] As further proof that petitioner was not sent a copy of the 10 September 2008 Resolution, it can be seen from the document itself that one Atty. Jehiel Cosa signed in a care of capacity to signify his receipt thereof on behalf of petitioner, only on 23 June 2009 or after the latters 12 April 2009 letter-request to Provincial Prosecutor Dusaban. Nevertheless, the provincial prosecutor is of the opinion that petitioner was never deprived of his due process rights, to wit:
8. Even granting that private respondent Edito Aguillion failed to furnish the petitioner with a copy of his counter-affidavit as required of him by the Rules, petitioner was never deprived of anything. As aptly said by the Office of the Overall Deputy Ombudsman in its Order dated 23 July 2009, Complainant added that he was never furnished copies of the Counter-Affidavit of respondent nor of the Resolution of the Office of the Provincial Posecutor, Iloilo City. Anent the claim of the complainant that he was not furnished with a copy of the Resolution dated 10 September 2008 of the Office of the Provincial Prosecutor, Iloilo City, said Resolution did not attain finality until approved by the Office of the Ombudsman. Nevertheless, complainant was not deprived of due

process, he can still avail to file a Motion for Reconsideration, which he did, to refute respondents defense.[32]

We agree. Petitioner insists that Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, was created in order not to deprive party litigants of their basic constitutional right to be informed of the nature and cause of accusation against them.[33] Deputy Ombudsman Casimiro contradicts the claim of petitioner and argues that the latter was not deprived of due process, just because he was not able to file his Reply to the Counter-affidavit. The constitutional right to due process according to the Deputy Ombudsman, is guaranteed to the accused, and not to the complainant.[34] Article III, Section 14 of the 1987 Constitution, mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.[35] This is a right that cannot be invoked by petitioner, because he is not the accused in this case. The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a criminal case, even they cannot claim unbridled rights in Preliminary Investigations. In Lozada v. Hernandez,[36] we explained the nature of a Preliminary Investigation in relation to the rights of an accused, to wit:
It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil. 209; People vs. Badilla, 48 Phil. 716). The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. (II Moran, Rules of Court, 1952 ed., p. 673). And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law". (U.S. vs. Grant and Kennedy, 18 Phil., 122).[37]

It is therefore clear that because a preliminary investigation is not a proper trial, the rights of parties therein depend on the rights granted to them by law and these cannot be based on whatever rights they believe they are entitled to or those that may be derived from the phrase due process of law. A complainant in a preliminary investigation does not have a vested right to file a Replythis right should be granted to him by law. There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accuseds counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz:
(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.[38] Furthermore, we agree with Provincial Prosecutor Dusaban that there was no need to send a copy of the 10 September 2008 Resolution to petitioner, since it did not attain finality until it was approved by the Office of the Ombudsman. It must be noted that the rules do not state that petitioner, as complainant, was entitled to a copy of this recommendation. The only obligation of the prosecutor, as detailed in Section 4 of Rule 112, was to forward the record of the case to the proper officer within five days from the issuance of his Resolution, to wit:
SEC. 4. Resolution of investigating prosecutor and its review.If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or

his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Even though petitioner was indeed entitled to receive a copy of the Counteraffidavit filed by Aguillon, whatever procedural defects this case suffered from in its initial stages were cured when the former filed an MR. In fact, all of the supposed defenses of petitioner in this case have already been raised in his MR and adequately considered and acted on by the Office of the Ombudsman. The essence of due process is simply an opportunity to be heard. What the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of opportunity to be heard.[39] We have said that where a party has been given a chance to be heard with respect to the latters motion for reconsideration there is sufficient compliance with the requirements of due process.[40] At this point, this Court finds it important to stress that even though the filing of the MR cured whatever procedural defect may have been present in this case, this does not change the fact that Provincial Prosecutor Dusaban had the duty to send petitioner a copy of Aguillons Counter-affidavit. Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, grants a complainant this right, and the Provincial Prosecutor has the duty to observe the fundamental and essential requirements of due process in the cases presented before it. That the requirements of due process are deemed complied with in the present case because of the filing of an MR by Complainant was simply a fortunate turn of events for the Office of the Provincial Prosecutor. It is submitted by petitioner that in dismissing Aguillons Complaint, public respondents committed grave abuse of discretion by failing to consider Memorandum Circular No. 2000-016, which was supposedly the IRR issued by the PNP for P.D. 1866.[41] Petitioner fails to persuade this Court. The original IRR[42] of P.D. 1866 was issued by then Lieutenant General of the Armed Forces of the Philippines (AFP) Fidel V. Ramos on 28 October 1983.

The IRR provides that, except when specifically authorized by the Chief of Constabulary, lawful holders of firearms are prohibited from carrying them outside their residences, to wit:
SECTION 3. Authority of Private Individuals to Carry Firearms Outside of Residence. a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence. b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence. c. Except as otherwise provided in Secs. 4 and 5 hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have the prior approval of the Chief of Constabulary.

By virtue of R.A. 6975,[43] the PNP absorbed the Philippine Constabulary. Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latters licensing authority.[44] On 31 January 2003, PNP Chief Hermogenes Ebdane issued Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence (Guidelines). In these Guidelines, the PNP Chief revoked all PTCFOR previously issued, thereby prohibiting holders of licensed firearms from carrying these outside their residences, to wit:
4. Specific Instructions on the Ban on the Carrying of Firearms: a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5,

b.

IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees.

Section 4 of the IRR lists the following persons as those authorized to carry their duty-issued firearms outside their residences, even without a PTCFOR, whenever they are on duty:
SECTION 4. Authority of Personnel of Certain Civilian Government Entities and Guards of Private Security Agencies, Company Guard Forces and Government Guard Forces to Carry Firearms. The personnel of the following civilian agencies commanding guards of private security agencies, company guard forces and government guard forces are authorized to carry their duty issued firearms whenever they are on duty detail subject to the specific guidelines provided in Sec. 6 hereof: a. Guards of the National Bureau of Prisons, Provincial and City Jails; b. Members of the Bureau of Customs Police, Philippine Ports Authority Security Force, and Export Processing Zones Authority Police Force; and x c. Guards of private security agencies, company guard forces, and government guard forces.

Section 5 of the guidelines, on the other hand, enumerates persons who have the authority to carry firearms outside their residences, viz:
5. The following persons may be authorized to carry firearms outside of residence. a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days.

b.

c.

All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person. Authorized members of the Diplomatic Corps.

d.

e.

It is true therefore, that, as petitioner claims, a barangay captain is not one of those authorized to carry firearms outside their residences unless armed with the appropriate PTCFOR under the Guidelines.[45] However, we find merit in respondents contention that the authority of Aguillon to carry his firearm outside his residence was not based on the IRR or the guidelines of P.D. 1866 but, rather, was rooted in the authority given to him by Local Government Code (LGC). In People v. Monton,[46] the house of Mariano Montonthe Barrio Captain of Bacao, General Trias, Cavitewas raided, and an automatic carbine with one long magazine containing several rounds of ammunition was found hidden under a pillow covered with a mat. He was charged with the crime of illegal possession of firearm, but this Court acquitted him on the basis of Section 88(3) of Batas Pambansa Bilang 337(B.P. 337), the LGC of 1983, which reads:
In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearms within his territorial jurisdiction subject to existing rules and regulations on the possession and carrying of firearms.

Republic Act No. 7160, the LGC of 1991, repealed B.P. 337. It retained the foregoing provision as reflected in its Section 389 (b), viz:
CHAPTER 3 - THE PUNONG BARANGAY SEC. 389. Chief Executive: Powers, Duties, and Functions. xxx xxx xxx

(b) In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearm within his territorial jurisdiction, subject to appropriate rules and regulations.

Provincial Prosecutor Dusabans standpoint on this matter is correct. All the guidelines and rules cited in the instant Petition refers to civilian agents, private security guards, company guard forces and government guard forces. These rules and guidelines should not be applied to Aguillon, as he is neither an agent nor a guard. As barangay captain, he is the head of a local government unit; as such, his powers and responsibilities are properly outlined in the LGC. This law specifically gives him, by virtue of his position, the authority to carry the necessary firearm within his territorial jurisdiction. Petitioner does not deny that when he found Aguillon openly carrying a rifle, the latter was within his territorial jurisdiction as the captain of the barangay. In the absence of a clear showing of arbitrariness, this Court will give credence to the finding and determination of probable cause by prosecutors in a preliminary investigation.[47] This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman's investigatory powers.[48] It is incumbent upon petitioner to prove that such discretion was gravely abused in order to warrant this Courts reversal of the Ombudsmans findings.[49] This, petitioner has failed to do. The Court hereby rules that respondent Deputy Ombudsman Casimiro did not commit grave abuse of discretion in finding that there was no probable cause to hold respondent Aguillon for trial. The Dissent contends that probable cause was already established by facts of this case, which show that Aguillon was found carrying a licensed firearm outside his residence without a PTCFOR. Thus, Deputy Ombudsman Casimiro committed grave abuse of discretion in dismissing the criminal Complaint. However, even though Aguillon did not possess a PTCFOR, he had the legal authority to carry his firearm outside his residence, as required by P.D. 1866 as amended by R.A. 8294. This authority was granted to him by Section 389 (b) of the LGC of 1991, which specifically carved out an exception to P.D. 1866.

Following the suggestion of the Dissent, prosecutors have the authority to disregard existing exemptions, as long as the requirements of the general rule apply. This should not be the case. Although the Dissent correctly declared that the prosecutor cannot peremptorily apply a statutory exception without weighing it against the facts and evidence before him, we find that the facts of the case prove that there is no probable cause to charge Aguillon with the crime of illegal possession of firearm. In interpreting Section 389 (b) of the LGC of 1991, the Dissent found that the factual circumstances of the present case show that the conditions set forth in the law have not been met. Thus, the exemption should not apply. Contrary to the allegation of the dissent, there is no question as to the fact that Aguillon was within his territorial jurisdiction when he was found in possession of his rifle. The authority of punong barangays to possess the necessary firearm within their territorial jurisdiction is necessary to enforce their duty to maintain peace and order within the barangays. Owing to the similar functions, that is, to keep peace and order, this Court deems that, like police officers, punong barangays have a duty as a peace officer that must be discharged 24 hours a day. As a peace officer, a barangay captain may be called by his constituents, at any time, to assist in maintaining the peace and security of hisbarangay.[50] As long as Aguillon is within his barangay, he cannot be separated from his duty as a punong barangayto maintain peace and order. As to the last phrase in Section 389 (b) of the LGC of 1991, stating that the exception it carved out is subject to appropriate rules and regulations, suffice it to say that although P.D. 1866 was not repealed, it was modified by the LGC by specifically adding to the exceptions found in the former. Even the IRR of P.D. 1866 was modified by Section 389 (b) of the LGC as the latter provision already existed when Congress enacted the LGC. Thus, Section 389 (b) of the LGC of 1991 added to the list found in Section 3 of the IRR of P.D. 1866, which enumerated the persons given the authority to carry firearms outside of residence without an issued permit. The phrase subject to appropriate rules and regulations found in the LGC refers to those found in the IRR of the LGC itself or a later IRR of P.D. 1866 and not those that it has already amended.

Indeed, petitioners mere allegation does not establish the fact that Aguillon was drunk at the time of his arrest. This Court, however, is alarmed at the idea that government officials, who are not only particularly charged with the responsibility to maintain peace and order within their barangays but are also given the authority to carry any form of firearm necessary to perform their duty, could be the very same person who would put their barangays in danger by carelessly carrying high-powered firearms especially when they are not in full control of their senses. While this Court does not condone the acts of Aguillon, it cannot order the prosecutor to file a case against him since there is no law that penalizes a local chief executive for imbibing liquor while carrying his firearm. Neither is there any law that restricts the kind of firearms that punong barangays may carry in the performance of their peace and order functions. Unfortunately, it also appears that the term peace and order function has not been adequately defined by law or appropriate regulations. WHEREFORE, we DISMISS the Petition. We AFFIRM the Resolution of the Office of the Provincial Prosecutor dated 10 September 2008, as well as the Resolution and the Order of the Office of the Ombudsman dated 17 February 2009 and 23 July 2009, respectively. Let a copy of this Decision be served on the President of the Senate and the Speaker of the House of Representatives for whatever appropriate action they may deem warranted by the statements in this Decision regarding the adequacy of laws governing the carrying of firearms by local chief executives. No costs.

SO ORDERED.
G.R. No. 94595 February 26, 1991 ROMAN CRUZ, JR., petitioner, vs. THE HONORABLE SANDIGANBAYAN and the HONORABLE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, respondents. Siguion Reyna, Montecillo & Ongsiangko for petitioner.

GANCAYCO, J.:p The issue in this petition is whether or not the respondent Presidential Commission on Good Government (PCGG) has the authority to conduct a preliminary investigation and file the information with the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act by alleged cronies or associates of former President Ferdinand E. Marcos. On January 10, 1989, an information was filed by the PCGG Chairman, Mateo Caparas, with the Sandiganbayan charging petitioner Roman Cruz, Jr. and certain other individuals as follows:

That on or about May 16, 1983, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the President and General Manager and the Vice President and Treasurer, respectively of the Government Service Insurance System (GSIS), a government financial institution, conspiring and confederating together and with others who will be charged separately, did then and there, in the discharge of their official administrative functions, willfully, knowingly and unlawfully and contrary to Central Bank Rules and Regulations, enter into a contract with Cor-Asia, a private corporation, whereby GSIS, under the terms and conditions manifestly and grossly disadvantageous to the GSIS, sold, transferred and conveyed to said Cor-Asia seven percent (7%) 20-year Cultural Center of the Philippines (CCP) bonds with a total face value of ELEVEN MILLION FOUR HUNDRED FORTY THOUSAND TWO HUNDRED SIXTY-SIX and 20/100 P11,440,266.20) PESOS at about forty (40%) percent discount or at a lower price of only about SEVEN MILLION TWO HUNDRED THREE (sic) (P7,203,000.00) PESOS, when said bonds could then be easily sold, and was in fact eventually sold to COMBANK, a few days thereafter, at about twelve (12%) percent discount only or at a much higher price of TEN MILLION FOUR HUNDRED FIFTEEN THOUSAND ONE HUNDRED (P10,415,100.00) PESOS, thereby giving Cor-Asia unwarranted benefits and advantages, to the damage and prejudice of the Philippine Government in the sum of about THREE MILLION TWO HUNDRED TWELVE THOUSAND (P3,212,000.00) PESOS, Philippine Currency.
1

Said information was filed after a preliminary investigation was conducted by Fiscal Freddie A. Gomez of the respondent PCGG, based on a complaint, various affidavits and counter-affidavits and exhibits submitted to him. On February 2, 1989, petitioner filed a motion to quash the information to which an opposition was filed by the respondent PCGG and a reply was filed by petitioner. At the hearing of the motion to quash on March 22, 1989, respondent PCGG informed the court that it will file an amended information. On May 29, 1989 respondent PCGG filed an amended information which reads as follows:

That on or about May 16, 1983, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused ROMAN A. CRUZ, a subordinate and close associate of former President Ferdinand E.Marcos, being then the President and General Manager of the Government Service Insurance System (GSIS), a government financial institution and a high ranking officer of various government corporations by taking undue advantage of his public office and by using his powers, authority, influence, connections,

or relationship to said former President Ferdinand E. Marcos and MANUEL S. RODRIGUEZ, Vice President and Treasurer also of GSIS, conspiring and confederating together and with others who will be charged separately, did then and there, in the discharge of their official administrative functions, willfully, knowingly, and unlawfully, and contrary to Central Bank rules and regulations, enter into a contract with Cor-Asia, a private corporation, whereby GSIS, under terms and conditions manifestly and grossly disadvantageous to the GSIS, sold, transferred and conveyed unto said CorAsia seven percent (7%)-20 year Cultural Center of the Philippines (CCP) bonds with total face value of ELEVEN MILLION FOUR HUNDRED FORTY THOUSAND TWO HUNDRED SIXTY-SIX and 20/100 (P11,440,266.20) PESOS at about forty (40%) percent discount or at a low price of only about SEVEN MILLION TWO HUNDRED THREE THOUSAND (P7,203,000.00) PESOS, when said bonds could then be easily sold, and was in fact eventually sold to COMBANK, a few days thereafter, at about twelve (12%) percent discount only or at a much higher price of TEN MILLION FOUR HUNDRED FIFTEEN THOUSAND ONE HUNDRED (P10,415,100.00) PESOS, thereby giving Cor-Asia unwarranted benefits and advantages, to the damage and prejudice of the Philippine Government in the sum of about THREE MILLION TWO HUNDRED TWELVE THOUSAND P3,212,000.00) PESOS.
2

Petitioner filed his comment and opposition to the amended information and a supplementary motion to quash. After a hearing on the matter, on June 16, 1989 the respondent court issued an order that reads as follows:

A preliminary discussion, between the parties, however, indicated that the position of the accused Cruz is that, on the face of the complaint and of the information filed with the PCGG to support that complaint, the "crony related crime" alleged thereon did not exist and for which reason from the very first instance, the PCGG did not have the "literal" justification to even entertain the matter under its enabling enactments. The parties agree that the issue, therefore, to be presented before the Court is whether or not the complaint, and the affidavits in support of that complaint, would sustain the proposition, assuming that these affidavits are duly substantiated, that the crime charged in the present Information is "crony related crime" for which the PCGG has adequate authority to investigate and to file an Information on the very first instance. The Court will not look into the correctness of the determination of probable cause, that matter being which the exclusive realm of the investigating office and jurisdiction is conceded to it.
3

An opposition to petitioner's motion was filed by respondent PCGG to which petitioner filed a reply. On August 7, 1990 respondent court issued a resolution denying the motion to quash. A motion for reconsideration filed by petitioner was denied by the respondent court on May 15, 1990. Hence, this petition which is predicated on the following grounds: A WITH THE EFFECTIVITY OF THE 1987 CONSTITUTION, RESPONDENT PCGG NO LONGER HAD ANY AUTHORITY TO PROSECUTE CASES, SUCH JURISDICTION BEING SOLELY VESTED IN THE OFFICE OF THE OMBUDSMAN; THE PROSECUTING OFFICER BEING WITHOUT AUTHORITY TO PROSECUTE, ALL PROCEEDINGS THEREAFTER WERE NULL AND VOID. B ASSUMING, ARGUENDO, RESPONDENT PCGG STILL HAD AUTHORITY TO PROSECUTE THE CASES ENUMERATED IN SECTION 2(A) OF EXECUTIVE ORDER NO. 1, THE RESPONDENT SANDIGANBAYAN HAD NO JURISDICTION OVER HEREIN PETITIONER BY REASON OF A JURISDICTIONALLY DEFECTIVE INFORMATION AND CONSEQUENTLY THE AMENDED INFORMATION WHICH ADDED THE JURISDICTIONAL MATTERS COULD NOT BE ADMITTED WITHOUT PRELIMINARY INVESTIGATION ON SUCH MATTERS, EXCEPT IN VIOLATION OF PETITIONER'S SUBSTANTIVE RIGHTS AND RIGHT TO DUE PROCESS. C

ASSUMING, ARGUENDO, THAT RESPONDENT PCGG HAD JURISDICTION TO FILE INFORMATIONS FOR ACTS FALLING UNDER SECTION 2(A) OF E.O. NO. 1, THE RESPONDENT SANDIGANBAYAN ACTED IN GRAVE ABUSE OF DISCRETION IN NOT RULING THAT UPON THE EVIDENCE IT REQUIRED TO BE PLACED BEFORE IT, THERE WAS NO PRIMA FACIE CASE FOR THE FILING OF THE AMENDED INFORMATION, THE AVERMENTS WHICH PURPORT TO MAKE A CRONY CASE BEING FALSE, THAN (sic) AND NOT ESTABLISHED BY THE RECORD OF THE PRELIMINARY INVESTIGATION.
4

The question raised in this petition has been resolved by this Court in Eduardo M. Cojuangco, Jr. vs. Presidential Commission on Good Government, et al., 5 where the Court made the following disquisition: However, this exclusive jurisdiction of the Tanodbayan to conduct preliminary investigation of said cases was modified by Executive Order No. 1 signed by President Corazon C. Aquino on February 28, 1986 creating the PCGG and constituting its membership to assist the President in the recovery of ill gotten wealth accumulated by the former President, his relatives and cronies. Therein it is provided, among others: Sec. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters: (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. (b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time to time. (c) The adoption of safeguards to ensure that the above practices shall not be repeated in any manner under the new government, and the institution of adequate measures to prevent the occurrence of corruption. Sec. 3. The Commission shall have the power and authority: (a) To conduct investigations as may be necessary in order to accomplish and carry out the purposes of this order. (Emphasis supplied.) Under Executive Order No. 14 signed by President Aquino on May 7, 1 986, it is also provided: Sec. 1. Any provision of the law to the contrary notwithstanding, the Presidential Commission on Good Government with the assistance of the Office of the Solicitor General and other government agencies, is hereby empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986 and Executive Order No. 2, dated March 12, 1986, as may be warranted by its findings. Sec. 2. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which Shall have exclusive and original jurisdiction thereof. Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. I dated February 28, 1 986 and Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by preponderance of evidence. (Emphasis supplied.)

From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, it is clear that the PCGG has the power to investigate and prosecute such ill-gotten wealth cases of the former President, his relatives and associates, and graft and corrupt practices cases that may be assigned by the President to the PCGG to be filed with the Sandiganbayan. No doubt, the authority to investigate extended to the PCGG includes the authority, to conduct a preliminary investigation.
6

In the same case We ruled that after the ratification of the 1987 Constitution whereby the office of the Ombudsman was created under Article XI, the said authority of respondent PCGG was maintained, to wit: This Court, in Zaldivar, interpreting the aforesaid provision of the Constitution, particularly Section 13(l) thereof vesting on the Ombudsman the right and the power to investigate on its own or on complaint, any act or omission of any public official, employee, office or agency which appears "to be illegal, unjust, improper, or inefficient," held that the general power of investigation covers the lesser power to conduct a preliminary investigation. Thus, as the power of investigation vested on the Ombudsman under the Constitution includes the power to conduct such a preliminary investigation, then the special prosecutor (former Tanodbayan) may no longer conduct such a preliminary investigation unless duly authorized by the Ombudsman.

A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive. Hence, the said provision of the Constitution did not repeal or remove the power to conduct an investigation, including the authority to conduct a preliminary investigation, vested on the PCGG by Executive Orders Nos. 1 and 14.
7

And even upon the passage of Republic Act No. 6770 known as the Ombudsman Act of 1989 whereby under Section 15(l) the Ombudsman has primary jurisdiction over the cases cognizable by the Sandiganbayan, this Court held in Cojuangco that this authority of the Ombudsman is "not exclusive but is concurrent with other similarly authorized agencies of the government." 8 Thus, this Court held "that the authority of the PCGG to conduct preliminary investigation of ill-gotten wealth and/or unexplained wealth amassed before February 25, 1986," is maintained. 9 From the foregoing what is clear is that the PCGG, at the time it conducted the investigation and filed the information against petitioner in this case, had the authority to investigate and prosecute such ill-gotten wealth cases of former President Ferdinand E. Marcos, members of his family, his relatives, subordinates, and close associates, and graft and corrupt practices cases that may be assigned from time to time by the President to the PCGG to be filed with the Sandiganbayan. A careful reading of Sections 2(a) and 3, of Executive Order No. 1, in relation with Sections 1, 2, and 3 of Executive Order No. 14, show that what the authority of the respondent PCGG to investigate and prosecute covers are: (a) The investigation and prosecution of the Civil action for the recovery of ill-gotten wealth under Republic Act No. 1379, accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through his nominees, by taking undue advantage of their public office and/or using their powers, authority and influence, connections or relationship; and (b) The investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No. 1. However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the foregoing categories, require a previous authority of the President for the respondent PCGG to investigate and prosecute the same in accordance with Section 2(b) of Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating agencies as the provincial and city prosecutors, their assistants, the Chief State Prosecutor and his assistants, and the state prosecutors. Thus for a penal violation to fall under the jurisdiction of the respondent PCGG under Section 2(a) of Executive Order No. 1, the following elements must concur: (1). It must relate to alleged ill-gotten wealth; (2). Of the late President Marcos, his immediate family relatives, subordinates and close associates; (3). Who took undue advantage of their public office and/or used their power, authority, influence, connections or relationship. A reading of the information and the amended information that was filed by the PCGG in this case shows that petitioner is charged with a violation of Republic Act No. 3019 as amended, the Anti-Graft and Corrupt Practices Act. It is alleged that petitioner, as president and general manager of the GSIS, allegedly entered into a contract of sale with Cor-Asia, a private corporation, manifestly and grossly disadvantageous to the GSIS, of seven percent (7%) of the 20-year Cultural Center of the Philippines (CCP) bonds with a total face value of ELEVEN MILLION FOUR HUNDRED FORTY THOUSAND TWO HUNDRED SIXTY PESOS and 20/100 (P11,440,226.20), at about forty percent (40%) discount, or at a lower price of about SEVEN MILLION TWO HUNDRED THREE THOUSAND PESOS (P7,203,000.00), when said bonds could then be easily sold and was in fact eventually sold to COMBANK a few days thereafter at twelve percent (12%) discount only, to the damage and prejudice of the Philippine government in the sum of THREE MILLION TWO HUNDRED TWELVE THOUSAND PESOS (P3,212,000.00). The amended information that was thereafter filed against petitioner contained substantially the same allegations with the only amendment that petitioner was identified as "a subordinate and crony/associate of former President Ferdinand E. Marcos," and with the additional allegation of "taking undue advantage of his public office and by using his relationship to said former President Ferdinand E. Marcos, . . . ." There is no allegation that, President Marcos, his immediate family, relatives, subordinate or close associate, as petitioner, thereby acquired ill-gotten wealth. In fact all that the information and its amendment allege is that damage was thereby caused to the Philippine government. From its allegation it also appears that it was Cor-Asia which gained or profited by this transaction not petitioner.

Consequently, the amended information that was filed against petitioner does not fall under the category of criminal actions for recovery of ill-gotten wealth filed against a member of the family of President Marcos, relatives, subordinates or close associates, who took undue advantage of their office or authority as contemplated under Section 2(a) of Executive Order No. 1. What the petitioner is actually charged with is for a violation of Republic Act No. 3019. Public respondent PCGG does not pretend that the President assigned to it this particular case against the petitioner for investigation and prosecution in accordance with Section 2(b) of Executive Order No. 1. Moreover, an examination of the complaint filed with respondent PCGG, as well as the affidavits, counter-affidavits and exhibits submitted at the preliminary investigation show that there is no evidence at all that this alleged violation is crony related, committed by petitioner by taking advantage of his public office, and was committed in relation with the ill-gotten wealth being sought to be recovered aforestated. 10 There is, therefore, no evidence in the hands of the respondent PCGG to justify the amendment of the information. Indeed, the said amendment appears to be an afterthought to make it fall under the type of offenses respondent PCGG may investigate and prosecute under the law. It is a fundamental principle that when on its face the information is null and void for lack of authority to file the same, it cannot be cured nor resurrected by an amendment. 11 Another preliminary investigation must be undertaken and thereafter, based on evidence adduced, a new information should be filed. 12 Consequently all the actions respondent PCGG had taken in this case including the filing of the information and amended information with the respondent court should be struck down. WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent court dated August 7, 1989 and May 15, 1990 are hereby REVERSED AND SET ASIDE, and another judgment is hereby rendered DISMISSING the case S.B. Criminal Case No. 13342 and permanently enjoining public respondents from further proceeding with the said case. The records of this case are hereby remanded and referred to the Honorable Ombudsman, who has primary jurisdiction over the same, for appropriate action. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Cruz, J., took no part.