Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

L-55533 July 31, 1984 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE COURT OF APPEALS* (Third Division), JOSE V. PEREZ, AMADEA C. PEREZ, CIPRIANO LADINES and FLAVIA C. VALDENOR, respondents.

TEEHANKEE, J.: This is a petition for review on certiorari filed by petitioner People of the Philippines to set aside the decision of the then Court of Appeals, now Intermediate Appellate Court, 1 which affirmed the order issued by the then City Court of Lucena, Branch II, denying the prosecution's motion for the exclusion of Miguel Roncesvalles (co-accused of the private respondents herein named) from the information in Criminal Case No. 0399 so that he may testify therein as a state witness. The amended information for violation of Section 22 of Republic Act No. 720, as amended, charged that Miguel Roncesvalles, together with herein private respondents Jose V. Perez, Amadea Consul Perez, Cipriano Ladines and Flavia C. Valdenor, "with intent to deceive, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and illegally make false statements and misrepresentation of material facts in the application for agricultural loan signed by FLAVIA C. VALDENOR and in the other supporting papers, calculated to produce semblance of compliance with the legal requirements, making it appear that accused FLAVIA C. VALDENOR is an eligible borrower which misrepresentation or false statements of facts were considered as the credit factors in the approval and the granting of the loan to accused FLAVIA C. VALDENOR in the amount of P30,000.00, by the Rural Bank of Lucena, Inc., ..." All the accused pleaded not guilty when arraigned. After the prosecution had already presented seven witnesses, the state prosecutors filed a motion with the court, asking that accused Roncesvalles be discharged from the information in order that he may be used as a state witness against his co-defendants, alleging that Roncesvalles had not at any time been convicted of any offense involving moral turpitude; that he did not appear to be the most guilty; that there was absolute necessity for his testimony; that there was no other direct evidence available for the proper prosecution of the offense committed and that his testimony could be substantially corroborated in its material points. The motion was set for hearing and after the parties were heard, the trial court, issued the questioned order denying the motion on the ground that, ". . . Miguel Roncesvalles

cannot be said to be the least guilty. He would be a principal by direct participation, or a co-principal if he acted upon instruction of another as the prosecution alleges," and that, "the prosecution having presented all its witnesses, the Court, after going over their testimony, cannot see how Roncesvalles' testimony, if ever he is discharged, would be corroborated." 2 Reconsideration having been denied by the trial court, the prosecution filed a petition for certiorari with respondent appellate court praying for the annulment and setting aside of the trial court's questioned orders. Respondent court sustained the trial court's ruling in its decision, subject of the petition at bar and denied reconsideration thereof. Hence, the People's petition, which complains that "the respondent court acted with grave abuse of discretion or in excess of its jurisdiction in sustaining the Order dated September 15, 1978 issued by the City Court of Lucena and in holding that the petitioner failed to show that there is absolute necessity for the testimony of Miguel Roncesvalles whose discharge is requested. " The Court finds merit in this petition and dispenses with the firing of memoranda or briefs in the light of the facts and pleadings of record. Section 9, Rule 119 of the Rules of Court prescribes the conditions in order that one or several accused may be used as witnesses against their co-accused, to wit: "(a) there is absolute necessity for the testimony of the defendant whose discharge is requested; (b) there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant; (c) the testimony of said defendant can be substantially corroborated in its material points; (d) said defendant does not appear to be the most guilty; and (e) said defendant has not at any time been convicted of any offense involving moral turpitude." While it is true that the court has the exclusive responsibility to see that the conditions prescribed by the rule exists, 3 this grant of discretion is not a grant of arbitrary discretion, but rather a sound judicial discretion to be exercised with due regard to the proper and correct administration of justice. 4 The trial curt manifestly erred in denying the prosecution's motion to discharge accused Roncesvalles or, the ground that he "cannot be said to be the least guilty." All that the law requires, in order to discharge an accused and to use him as a state witness is that the defendant whose exclusion is requested does not appear to be the most guilty, not necessarily that he is the least guilty. 5 The trial court's order itself shows that Roncesvalles does not appear to be the most guilty since it acknowledged that "he would be a principal by direct participation or a co-principal if he acted upon instruction of another as the prosecution alleges." The Rules do not disqualify an accused sought to be discharged as witness for the state merely on the ground that he has committed a falsification himself, or that he had actually committed the crime charged. The Rules say that it is necessary that the "said

defendant does not appear to be the most guilty from which the conclusion follows that the guilt of an accused of the crime charged is no reason why he may not be excluded as witness for the State. As a matter of fact, the candid admission of an accused, of his participation in a crime, is a guaranty that if he will testify in court he will testify truthfully; so that even if an accused actually participated in the offense charged in the information, he may still be made a witness. Individuals who are candid enough to admit their guilt are expected to testify truthfully and it is from that circumstance that all the facts involved shall be expected to be truthfully disclosed by him. 6 The ground underlying the rule is not to let a crime that has been committed go unpunished; so an accused who is not the most guilty is allowed to testify against the most guilty in order to achieve the greater purpose of securing the conviction of the more or most guilty and the greatest number among the accused permitted to be convicted for the offense they have committed. 7 Experience, under English and American procedural methods, has shown that without the aid of informers testifying against their co-participants in crime, many guilty parties would escape, where the facts which would sustain a conviction are known to the guilty parties themselves alone. 8 Respondent appellate court itself sustained the People's contention on this score, simply stating that "respondent Court erred when it ruled that it could not grant the motion for the discharge of Roncesvalles because it does not appear that he is the least guilty of the accused. What Section 9, Rule 119 requires as one of the conditions for the discharge of one of the accused to testify as a witness for the Government is that said 'defendant does not appear to be the most guilty.' " But respondent appellate court nevertheless sustained the questioned orders "since the petition failed to show that there was absolute necessity for the testimony of Roncesvalles". The trial court had denied discharge on the ground that "the prosecution having presented all its witnesses, the Court, after going over their testimony, can not see how Roncesvalles testimony, if ever he is discharged, would be corroborated." This conjecture of the trial court has no sound basis, as is readily shown by respondent appellate court's contrary evaluation that "the most that petitioner could say was that the testimony of Roncesvalles would be corroborative of the testimony of the witnesses already presented by the Government as well as the documentary evidence presented during the hearing, among them, the Rural Bank Examiner and NBI agents." Sufficient corroborative evidence exists of record. The Court therefore overrules respondent court's finding that there is no absolute necessity for the testimony of Roncesvalles. A careful examination of the records of the case supports the prosecution's stand to discharge Roncesvalles in order that he may testify for the government. The testimony of Roncesvalles is absolutely necessary to prove conspiracy among the accused who are charged of conspiring and confederating with each other in defrauding the Lucena Rural Bank in the amount of P30,000.00 under the pretext of an agricultural loan granted to accused Flavia N. Valdenor. Roncesvalles was the Assistant Chief Inspector of the Lucena Rural Bank and he was the one who signed the investigation report which contained false information as to the credit

standing of accused Flavia N. Valdenor. Nobody is in a better position to testify and prove the existence of conspiracy than accused Roncesvalles, because he is an officer of the bank. There is ample basis for the Solicitor General's submittal that "considering the foregoing circumstances and inasmuch as the other accused cannot be compelled to testify, certain facts necessary for the conviction of the accused would not be revealed unless accused Roncesvalles is allowed to testify for the State"; "unless accused Roncesvalles is allowed to testify for the government, there is no other direct evidence available for the proper prosecution of the offense charged, i.e., the role or participation of his co-accused in the preparation and accomplishment of the falsified loan application and its supporting papers. The testimony of accused Roncesvalles will prove conspiracy among the perpetrators of the crime charged"; and "unless this petition is given due course and granted, the accused in Criminal Case No. 0399 may be acquitted and the State irretrievably prejudiced. Because of the Rule on double jeopardy, the State has no other remedy except the instant petition." 9 It is noteworthy that these assertions appear to be based on solid ground for the prosecutors presented their motion for discharge of Roncesvalles as a state witness only after they had presented seven witnesses and could then show the absolute necessity for his testimony in consonance with what was to be held by the Court in Flores vs Sandiganbayan that the trial court should act on said discharge motion when the prosecution has presented all its other evidence and it could then "fully determine whether the requisites prescribed in Section 9, Rule 119 of the New Rules of Court, are fully complied with." 10 A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible, there would be little need for the formality of a trial. In coming to his conclusion as to the 'necessity for the testimony of the accused whose discharge is re. requested'; as to the 'availability or non-availability of other direct or corroborative evidence'; as to which of the accused is the 'most guilty'; and the like, the judge must rely in a large part upon the suggestions and information furnished by the state prosecutors. 11 ACCORDINGLY, respondent appellate court's decision affirming the trial court's questioned orders denying the discharge of Miguel Roncesvalles as a state witness is hereby SET ASIDE. As prayed for, the trial court is ORDERED to allow the discharge of said accused Miguel Roncesvalles from the information before it in Criminal Case No. 0399 so that he may testify therein as a state witness. This decision is immediately executory. Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

Footnotes Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 115439-41 July 16, 1997 PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, respondents.

REGALADO, J.: Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioner's motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its preceding disposition. 1 The records show that during the dates material to this case, respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing attorney who served as counsel for Paredes in several instances pertinent to the criminal charges involved in the present recourse. The same records also represent that sometime in 1976, respondent Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for that lot which is situated in the poblacion of San Francisco, Agusan del Sur. However, in 1985, the Director of Lands filed an action 2 for the cancellation of respondent Paredes' patent and certificate of title since the land had been designated and reserved as a school site in the aforementioned subdivision survey. The trial court rendered judgment 3 nullifying said patent and title after finding that respondent Paredes had obtained the same through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet served as counsel of Paredes in that civil case. 4

Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the Sangguniang Bayan and the preliminary investigation conducted thereon, an information for perjury 5 was filed against respondent Paredes in the Municipal Circuit Trial Court. 6 On November 27, 1985, the Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the proceedings were terminated. 7 In this criminal case, respondent Paredes was likewise represented by respondent Sansaet as counsel. Nonetheless, respondent Sansaet was thereafter haled before the Tanodbayan for preliminary investigation on the charge that, by using his former position as Provincial Attorney to influence and induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes' counsel of record therein. On August 29, 1988, the Tanodbayan, issued a resolution 8 recommending the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed corespondent, moved for reconsideration and, because of its legal significance in this case, we quote some of his allegations in that motion:
. . . respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the same evidence . . . but said case after arraignment, was ordered dismissed by the court upon recommendation of the Department of Justice. Copy of the dismissal order, certificate of arraignment and the recommendation of the Department of Justice are hereto attached for ready reference; thus the filing of this case will be a case of double jeopardy for respondent herein . . . 9 (Emphasis supplied.)

A criminal case was subsequently filed with the Sandiganbayan 10 charging respondent Paredes with a violation of Section 3 (a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the defense was later granted in respondent court's resolution of August 1, 1991 11 and the case was dismissed on the ground of prescription. On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents. 12 He claimed that respondent Honrada, in conspiracy with his herein co-respondents, simulated and certified as true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge. 13 These falsified documents were annexed to respondent Paredes' motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention that the same would constitute double jeopardy. In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury case; and a certification of Presiding Judge Ciriaco Ario

that said perjury case in his court did not reach the arraignment stage since action thereon was suspended pending the review of the case by the Department of Justice. 14 Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. In a socalled Affidavit of Explanations and Rectifications, 15 respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed by the trial court after he had been arraigned therein. For that purpose, the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon the instigation and inducement of respondent Paredes. This was intended to pave the way for his discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to their agreement. Withal, in a resolution 16 dated February 24, 1992, the Ombudsman approved the filing of falsification charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position:
. . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution 17 and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the herein respondents. Thus, three criminal cases, 18 each of which named one of the three private respondents here as the accused therein, were filed in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan. As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes. Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two

other private respondents in their opposition to the prosecution's motion, resolved to deny the desired discharge on this ratiocination:
From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged. 19

Reconsideration of said resolution having been likewise denied, 20 the controversy was elevated to this Court by the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent Sandiganbayan. The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis. As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which existed between herein respondents Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found "no reason to discuss it further since Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the latter's consent." 21 The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the facts thereof and actuations of both respondents therein constitute an exception to the rule. For a clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these cases. 1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. 22 In the American jurisdiction from which our present evidential rule was taken, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. 23

Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated. The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 25 (Emphases supplied.) 3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the

documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present co-respondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. 4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." 27 It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. II On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring preludial clarification. 1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding it to the trial court. 28 2. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. It will be recalled that in its resolution of

February 24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy, one information was filed against each of the three respondents here, resulting in three informations for the same acts of falsification. This technicality was, however, sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaet's discharge as state witness, he can, nevertheless, be discharged even if indicted under a separate information. I suppose the three cases were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of cases arising from the same incident or series of incidents, or involving common questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged as state witness. It is of no moment that he was charged separately from his co-accused. While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the old provision, the consolidated and joint trial has the effect of making the three accused co-accused or joint defendants, especially considering that they are charged for the same offense. In criminal law, persons indicted for the same offense and tried together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a consolidation of the three cases, the several actions lost their separate identities and became a single action in which a single judgment is rendered, the same as if the different causes of action involved had originally been joined in a single action.
29

Indeed, the former provision of the Rules referring to the situation "(w)hen two or more persons are charged with the commission of a certain offense" was too broad and indefinite; hence the word "joint" was added to indicate the identity of the charge and the fact that the accused are all together charged therewith substantially in the same manner in point of commission and time. The word "joint" means "common to two or more," as "involving the united activity of two or more," or "done or produced by two or more working together," or "shared by or affecting two or more. 30 Had it been intended that all the accused should always be indicted in one and the same information, the Rules could have said so with facility, but it did not so require in consideration of the circumstances obtaining in the present case and the problems that may arise from amending the information. After all, the purpose of the Rule can be achieved by consolidation of the cases as an alternative mode. 2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of the conspiracy. Now, one of the requirements for a state witness is that he "does not appear to be the most guilty." 31 not that he must be the least guilty 32 as is so often erroneously framed or submitted. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness.

To be sure, in People vs. Ramirez, et al. 33 we find this obiter:

It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state witness. All the perpetrators of the offense, including him, were bound in a conspiracy that made them equally guilty.

However, prior thereto, in People vs. Roxas, et al., 34 two conspirators charged with five others in three separate informations for multiple murder were discharged and used as state witnesses against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the co-conspirators was discharged from the information charging him and two others with the crime of estafa. The trial court found that he was not the most guilty as, being a poor and ignorant man, he was easily convinced by his two co-accused to open the account with the bank and which led to the commission of the crime. On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as his co-accused, and should not be discharged as he did not appear to be not the most guilty, is untenable. In other words, the Court took into account the gravity or nature of the acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them. Eventually, what was just somehow assumed but not explicity articulated found expression in People vs. Ocimar, et al., 36 which we quote in extenso: Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is equally guilty as the others. We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused who

are less guilty will be sent to jail. And by "most guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude.
xxx xxx xxx Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. (Emphasis ours.)

The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. Also, this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy. III The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan. Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases pending before respondent court, and the prosecution is faced with the formidable task of establishing the guilt of the two other corespondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of the case, hence there is absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that purpose. Said respondent has indicated his conformity thereto and has, for the

purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanation and Rectifications. His testimony can be substantially corroborated on its material points by reputable witnesses, identified in the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the criminal cases through his letter-complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking their Provincial Governor to file the appropriate case against respondent Paredes, and Francisco Macalit, who obtained the certification of non-arraignment from Judge Ario. On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been convicted of any offense involving moral turpitude. Thus, with the confluence of all the requirements for the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and propose that he be allowed to testify as a state witness. This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the proposal and make the corresponding disposition. It must be emphasized, however, that such discretion should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein discussed, and not merely on the sole issue of the applicability of the attorney-client privilege. This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement of two members of its Second Division 37 and the reconstitution thereof. In an inversely anticlimactic Manifestation and Comment 38 dated June 14, 1995, as required by this Court in its resolution on December 5, 1994, the chairman and new members thereof 39 declared:
4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M. Amores; 5) That while the legal issues involved had been already discussed and passed upon by the Second Division in the aforesaid Resolution, however, after going over the arguments submitted by the Solicitor-General and re-assessing Our position on the matter, We respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to grant the prosecution's motion to discharge accused Generoso Sansaet as state witness, upon authority of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15) days from notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impunged resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and given due course by respondent Sandiganbayan. SO ORDERED. Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur. Hermosisima, Jr. and Torres, Jr., JJ., are on leave. Now on the civil aspect of the case. We find the awards made by the trial court to be supported by the evidence on record. At any rate, they are not disputed. However, as regards the indemnity to the heirs of Capt. Cirilo Caeba, Jr., which the court a quo fixed at P30,000.00, the same should be increased to P50,000.00, in accordance with prevailing jurisprudence. 19 PREMISES CONSIDERED, the judgment of the court a quo convicting the accusedappellants EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA for violation of P.D. 532 ("Anti-Piracy and Highway Robbery Law of 1974") and imposing upon each of them a prison term of reclusion perpetua, together with the award for funeral expenses, moral damages, and loss of expected support of the heirs of the late Capt. Cirilo Caeba, Jr., in the amounts of P45,000.00, P25,000.00 and P720,000.00, respectively, are AFFIRMED. The indemnity to his heirs for his death is increased from P30,000.00 to P50,000.00. Costs against accused-appellants. SO ORDERED. Cruz, Grio-Aquino and Medialdea, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 131377 February 11, 2003

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE NAZAR U. CHAVES, Judge, RTC-Cagayan de Oro City, Br. 18 and MIGUEL P. PADERANGA, respondents. DECISION YNARES-SANTIAGO, J.:

This is a petition for review of the decision dated November 7, 1997 of the Court of Appeals,1 which dismissed the petition for certiorari assailing the Orders dated June 3, 1993; July 15, 1993; and September 23, 1993 of the Regional Trial Court of Cagayan de Oro City, Branch 18 in Criminal Case No. 86-39. Sometime in October 1986, Informations for Multiple Murder for the killing of members of the Bucag family in Gingoog City were filed against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe, with the Regional Trial Court of Gingoog City.2 Venue of the case was moved to Cagayan de Oro City by virtue of Administrative Order No. 87-2-244. Thus, Criminal Case No. 86-39 was transferred to the Regional Trial Court of Cagayan de Oro City, Branch 18, presided by respondent Judge Nazar U. Chaves. Only Felipe Galarion was tried and convicted. All the other accused were at large. Two years later, in October 1988, Felizardo Roxas, also known as "Ely Roxas", "Fely Roxas" and "Lolong Roxas," was identified as another member of the group who was responsible for the slaying of the Bucag family. An amended information was filed on October 6, 1988 to implead Roxas as a co-accused. He engaged the services of private respondent Miguel Paderanga as his counsel. In order to give Roxas the opportunity to adduce evidence in support of his defense, a preliminary investigation was conducted. In his counter-affidavit, Roxas implicated Atty. Paderanga as the mastermind of the killings. Consequently, the amended information was again amended to include private respondent Paderanga as one of the accused in Criminal Case No. 8639. Trial of the case ensued. At the hearing on May 18, 1993, the prosecution called Felizardo Roxas as its first witness. Private respondent objected to the presentation of Roxas testimony. The trial court took the matter under advisement. The following day, May 19, 1993, it sustained private respondents objection on the ground that the presentation of Roxas testimony will violate his right against self-incrimination. The trial court ruled further that before Roxas can be presented as a witness for the prosecution, he must first be discharged as a state witness. Otherwise put, the prosecution cannot present Roxas as a hostile witness. The prosecution filed a motion for reconsideration or, in the alternative, to discharge Roxas as a state witness. It also manifested its intention to present Julito Ampo as another state witness or ordinary prosecution witness. On June 3, 1993, the trial court issued an Order denying the prosecutions motion for reconsideration but setting the motion for the discharge of Roxas as state witness for hearing, to wit: The Court believes that it has amply heard the matter at bar referring to whether the Order of 19 May 1993 on the contention, perception and interpretation of what the prosecution refers to as "hostile witness." After both sides or both panels for that matter extensively argued their respective sides, it is the considered view of the Court, considering all points raised by both sides, that the ruling of the Court should stand and is in fact reiterated with particular reference

on the matter on hostile witness. However, with respect to the alternative prayer in the Omnibus Motion for reconsideration, the Court would like to be satisfied as to which contending side is correct on the issue whether the proposed witness-accused Felizardo "Ely" Roxas would satisfy the requirements embodied in Section 9, Rule 119, regarding a proposed state witness.31a\^/phi1.net On June 29, 1993, the trial court issued an Order4 allowing the presentation of the testimony of Felizardo Roxas for purposes of proving the conditions of Rule 119, Section 9 of the Rules of Court on the discharge of a state witness.5 Private respondent interposed an objection, which the trial court overruled. The next day, June 30, 1993, he filed a motion for reconsideration, arguing that the presentation of Roxas testimony will be tantamount to allowing him to testify as a state witness even before his discharge as such; that the qualification of a proposed state witness must be proved by evidence other than his own testimony; and that at the hearing for the discharge of a proposed state witness, only his sworn statement can be presented and not his oral testimony. On July 15, 1993, the trial court issued an Omnibus Order granting private respondents motion for reconsideration, thus: xxx xxx xxx, it is the considered view of this Court that, at this stage and insofar as the proposed state witness is concerned, only his sworn statement may be admitted and considered by the Court. The "evidence" contemplated in the above-quoted last portion of the first paragraph of Rule 119, Sec. 9, is any evidence other than his testimony. Precisely, the rule speaks of "and the sworn statement of such proposed state witness," thus categorizing and removing such statement from the other kind or class of evidence mentioned therein. (underscoring copied) xxx xxx xxx. PREMISES CONSIDERED, this Court is left with no other legally plausible alternative but to grant the subject Motion for Reconsideration of accused Miguel Paderanga filed on 30 June 1993. The questioned Order issued on 29 June 1993 is hereby reconsidered and/or set aside, without prejudice to the prosecutions presenting any other evidence in support of the discharge. On the other Motion for Reconsideration simultaneously filed by the prosecution, it appearing that the same does not point to or specify any particular Order on record that has to be reconsidered, no ruling or action thereon is necessary. Whatever matters that have been treated therein are deemed resolved hereinabove. Considering the manifestation of the prosecution to the effect that it is adopting the same move and stand with respect to the proposed discharge of accused Julito Ampo, the ruling herein made likewise applies to accused Ampo.6 On August 9, 1993, the prosecution filed a motion for reconsideration. In an Order dated September 23, 1993, the trial court denied the motion for lack of merit.7 On November 17, 1993, the prosecution, through the Office of the Solicitor General, filed a petition for certiorari, prohibition and mandamus with the Court of Appeals, docketed as CA-

G.R. SP No. 32616, assailing the trial courts Orders of June 3, 1993; July 15, 1993; and September 23, 1993. On November 7, 1997, the Court of Appeals dismissed the petition for lack of merit.8 Hence, this petition for review raising the following issues: I. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CHALLENGED ORDER OF THE TRIAL COURT DATED 3 JUNE 1993 (WHICH DENIED PROSECUTIONS MOTION FOR FELIZARDO "ELY" ROXAS TO BE PRESENTED AS AN ORDINARY WITNESS) HAS ALREADY BECOME FINAL SINCE NO APPEAL HAS BEEN PERFECTED WITHIN THE REGLEMENTARY PERIOD, BY LOOSELY CITING THE CASE OF AMARANTE v. COURT OF APPEALS, 232 SCRA 104. II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN LIMITING THE EVIDENCE THAT NEEDS TO BE PRESENTED BY THE PROSECUTION IN ITS MOTION TO DISCHARGE TO THE RESPECTIVE SWORN STATEMENT EXECUTED BY ITS PROPOSED WITNESSES AND IN UPHOLDING THE TRIAL COURTS DENIAL OF THE PRESENTATION OF OTHER EVIDENCE.9 The Court of Appeals, in passing upon the issue of whether or not the prosecution may present the testimony of Felizardo Roxas as a hostile witness, held that the trial courts Order of June 3, 1993 disallowing the said presentation had already become final due to the prosecutions failure to appeal the same. This is error. Clearly, the Order dated June 3, 1993 was interlocutory; it did not finally dispose of the case on its merits. As such, the Order cannot be the proper subject of appeal. It may, however, be assailed in a special civil action for certiorari. Under the Rules of Court then governing, the petition for certiorari may be filed within a reasonable period.10 While there is no showing in the record that the prosecution moved for a reconsideration of the June 3, 1993 Order, it nevertheless appears that it filed a Motion for Reconsideration of the Omnibus Order dated July 15, 1993, wherein it raised the matter of presenting Roxas as an ordinary witness, as distinguished from a state witness.11 This Motion was denied by the trial court on September 23, 1993. Thereafter, on November 17, 1993, the prosecution instituted a petition for certiorari, prohibition and mandamus before the Court of Appeals. The petition, clearly, was filed well within the reasonable period contemplated by the Rules. It was even filed within sixty days, the reglementary period prescribed in the present 1997 Rules of Civil Procedure. The prosecution, petitioner herein, also argues that Ely Roxas and Julito Ampo have voluntarily expressed their consent to testify as prosecution witnesses. Hence, there is no need to first discharge them as state witnesses before they can be presented on the stand. The petition has merit. It is true that an accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself. However, he may testify against a co-defendant where he has agreed to do so, with full knowledge of his right and the consequences of his acts.12 It is not necessary that the court discharges him first as state witness. There is nothing in the rules that says so. There is a difference between testifying as

state witness and testifying as a co-accused. In the first, the proposed state witness has to qualify as a witness for the state, after which he is discharged as an accused and exempted from prosecution.13 In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense. However, we cannot simply rely on petitioners representation that Roxas and Ampo have volunteered to testify for the prosecution. This is a matter that the trial court must determine with certainty, lest their right against self-incrimination be violated. Petitioner also maintains that it can validly present the testimony of Ely Roxas and Julito Ampo at the hearing for their discharge as state witnesses. We agree. Rule 119, Section 17 of the Revised Rules of Criminal Procedure (formerly Rule 119, Section 9), provides that the trial court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state "after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge" (underscoring ours). The provision does not make any distinction as to the kind of evidence the prosecution may present. What it simply requires, in addition to the presentation of the sworn statement of the accused concerned, is the presentation of such evidence as are necessary to determine if the conditions exist for the discharge, so as to meet the object of the law, which is to prevent unnecessary or arbitrary exclusion from the complaint of persons guilty of the crime charged.14 No exemption from the term evidence is provided by the law as to exclude the testimony of the accused. When the law does not distinguish, we should not distinguish.15 There is no other evidence more competent than the testimony of the proposed witness himself to prove the conditions that his testimony is absolutely necessary in the case; that there is no other direct evidence available for the proper prosecution of the offense; that his testimony can be corroborated in its material points; that he does not appear to be the most guilty; and that he has not been convicted of any offense involving moral turpitude. Further, the trial judge will not be able to clarify matters found in the sworn statements of the proposed witnesses if they are not allowed to testify. Private respondent counters Roxas and Ampo cannot be allowed to testify because their testimony will effectively constitute an admission by a conspirator which, under Rule 130, Section 30 of the Rules of Court,16 is inadmissible as evidence against a co-conspirator until the conspiracy is established by evidence other than said declaration. In this regard, suffice it to state that private respondent can interpose the proper objection during the direct examination of these witnesses, when the prosecution propounds questions which may touch on the matter of conspiracy. Indeed, it is still premature for private respondent to raise this objection in the instant petition. WHEREFORE, in view of the foregoing, the petition is GRANTED. The assailed decision of the Court of Appeals dated November 7, 1997 is REVERSED. The Regional Trial Court of Cagayan de Oro City, in Criminal Case No. 86-39, is directed to determine the voluntariness of Felizardo Roxas and Julito Ampos decision to testify as prosecution witnesses and, thereafter, to allow the prosecution to present said witnesses. In the alternative, the trial court is directed to allow

Felizardo Roxas and Julito Ampo to testify at the hearing on the motion for their discharge as state witnesses. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Carpio and Azcuna, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 161330 February 20, 2007

RENE CABARLES, Petitioner, vs. HON. JUDGE BONIFACIO SANZ MACEDA AND PEOPLE OF THE PHILIPPINES, Respondents. DECISION QUISUMBING, J.: In an original action filed under Rule 65 of the 1997 Rules of Civil Procedure, petitioner Rene Cabarles seeks to annul the Order1 issued by respondent Judge Bonifacio Sanz Maceda in Criminal Case No. 99-0878, entitled People of the Philippines v. Rene "Nonoy" Cabarles y Adizas, for murder, filed with the Regional Trial Court of Las Pias City, Branch 275. The questioned Order dated April 1, 2003 cancelled the scheduled promulgation of judgment and reopened the case for reception of evidence from two prosecution witnesses who were not presented during trial. The facts of the case are as follows: On June 18, 1999, Cabarles was charged with murder under the following information: The undersigned Prosecutor II accuses RENE "NONOY" CABARLES Y ADIZAS of the crime of Murder, committed as follows: That on or about the 25th day of April, 1999, in the City of Las Pias, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without justifiable motive with intent to kill and by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and stab with a deadly weapon (fan knife) one Antonio Callosa, which directly caused his death. CONTRARY TO LAW.2

Cabarles pleaded not guilty. The trial court scheduled the case for hearing on the following dates, to wit: pre-trial on November 22, 2000; presentation of prosecutions evidence on April 18, May 4, 11, 18, and 23, 2001; and presentation of defense evidence on June 20 and 27, July 4 and 18, and August 1, 2001.3 The prosecution had subpoenas issued to its witnesses: Flocerfina Callosa, the mother of the deceased; Imelda Pedrosa, the alleged eyewitness; Carlos Callosa, brother of the deceased; and Dr. Romeo T. Salen, Police Senior Inspector of the Southern Police District (SPD) Crime Laboratory to testify on the contents of the death certificate of Antonio Callosa. Through no fault of its own, the prosecution was unable to present its evidence on the first four hearing dates. Instead, trial on the merits began only on May 23, 2001 when the prosecution called Carlos Callosa to the witness stand. Since defense counsel agreed to stipulate that Carlos would testify on matters in his May 13, 1999 Sinumpaang Salaysay, his testimony was dispensed with. The second prosecution witness, Police Inspector Prudencio Parejos, was presented in court during the June 20, 2001 hearing. His testimony was likewise dispensed with after defense counsel agreed to stipulate that Police Inspector Parejos would testify on what was in the spot report of the stabbing incident. In the June 20, 2001 hearing, the prosecution said it would offer its evidence and rest its case should the People fail to present a witness at the next scheduled hearing.4 When the case was called on June 27, 2001, the prosecution failed to present a witness. Neither Pedrosa nor Dr. Salen appeared during the said hearing. Records show that four subpoenas were issued to Pedrosa informing her that she had to appear on November 22, 2000,5 April 116 and 18,7 May 11 and June 20,8 and August 1, 2001.9 The first subpoena was personally received by her; the second subpoena by her husband, Salvador Pedrosa; and the third and fourth subpoenas had no proofs of service. Meanwhile, the three subpoenas issued to Dr. Salen requiring his attendance on May 1110 and 23,11 June 20,12 and August 1, 2001,13 were all returned with the notation "addressee moved." There was no evidence, however, that subpoenas were issued to these two witnesses requiring their attendance for the June 27, 2001 hearing, which would explain why they were absent. Taking into consideration the absence of a subpoena issued to Pedrosa and Dr. Salen and notwithstanding the vehement objection registered by Cabarles, Judge Maceda gave the prosecution a last chance but warned: It is however understood whether the subpoena is actually issued and served or not upon the prosecution witnesses and service of such subpoena or notice will not relieved (sic) the prosecution to make a formal offer of evidence should the prosecution failed (sic) to present any witness in the next scheduled hearing.14 With no witness for the August 1, 2001 hearing, the prosecution rested its case and formally offered its evidence.15

Thereafter, Cabarles, with leave of court, filed a demurrer to evidence but it was denied by Judge Maceda.16 Two witnesses were called for the defense, accused Cabarles and Luisito Javier, a fisherman. A day before the scheduled promulgation of judgment on April 2, 2003, Judge Maceda motu proprio issued the questioned order reopening the case. In it, he observed that the prosecution may not have been given its day in court resulting in a miscarriage of justice. He explained that because there was a mix-up in the dates specified in the subpoena and the hearing dates of when the case was actually heard, the prosecution was unable to present its evidence on the first four of the five hearing dates: April 18, May 4, 11 and 18, 2001 assigned to it. Judge Maceda found that there was no hearing conducted on April 18, 2001. Thereafter, the subpoena issued to Pedrosa required her to appear on April 11, 2001, which was not a date assigned for the prosecution but May 11, 2001. Also, Judge Maceda noted that another subpoena was issued to Pedrosa and Dr. Salen requiring them to appear on May 11 and June 20, 2001. But, the May 11, 2001 hearing was reset to May 25, 2001 because the judge was indisposed, and insofar as the June 20, 2001 setting was concerned, it was not one of the days set by the court for the prosecution. Judge Maceda further observed that the May 18, 2001 hearing was never scheduled and May 25, 2001 was likewise not a hearing date set by the court. According to Judge Maceda, since the prosecution was not able to present its evidence on the first four hearing dates and there was either no return on the subpoenas subsequently issued or there was no subpoena issued at all to Pedrosa and Dr. Salen, the prosecution should have been given a last chance to present the alleged eyewitness and the doctor. His order in part read: As a consequence[,] the promulgation set tomorrow, April 2, is canceled. Set the reception of the testimony of the eye witness and the doctor on May 1, 2003 at 2:00 [p.]m. to enable the prosecution to avail [of] the last chance granted by this Court. Issue the corresponding subpoena to Imelda Pedrosa and Dr. Romeo T. Salen directing them to appear on the aforesaid date and time, to be served by the Branch Sheriff who is required to make a prompt return thereof. SO ORDERED.17 Judge Maceda denied Cabarless motion for reconsideration in an Order dated April 25, 2003 and set the case for hearing on May 8, 2003 to hear the testimonies of Pedrosa and Dr. Salen. The subpoena issued to Pedrosa for that hearing was duly served,18 but service upon Dr. Salen failed since the doctor was no longer assigned to the SPD Crime Laboratory. Notwithstanding the service upon Pedrosa, the prosecution still failed to present a witness during the May 8, 2003 hearing. Nonetheless, Judge Maceda, upon motion, again decided to extend to the prosecution another chance, giving the People June 19 and July 3, 2003 as additional hearing dates.19 Finally, on June 19, 2003, Pedrosa took the witness stand and completed her direct examination. A few days thereafter, Cabarles filed the present petition questioning Judge Macedas order, alleging that it was issued with grave abuse of discretion. Since trial in the lower court continued, on July 3, 2003, the Public Attorneys Office conducted its cross-examination of Pedrosa.

On July 24, 2003, the defense counsel agreed on the facts contained in the death certificate of the victim, so the testimony of Dr. Salen was dispensed with. Thereafter, Judge Maceda set the date for the reception of evidence on the civil aspect of the criminal case on August 14, 2003, when Carlos, the deceaseds brother, was recalled to the witness stand.20 Cabarles was then given a chance to adduce further evidence on his behalf.1avvphi1.net On August 9, 2004, Judge Maceda deferred the promulgation of judgment and ordered the case archived pending this Courts resolution of the case.21 In his petition, Cabarles raises as issues the following: [1] WHETHER THE RESPONDENT HONORABLE JUDGE GRAVELY ABUSED HIS DISCRETION WHEN HE ISSUED THE QUESTIONED ORDER DESPITE THE ABSENCE OF A FINAL JUDGMENT OF CONVICTION. [2] WHETHER PETITIONERS RIGHT TO DUE PROCESS AND SPEEDY DISPOSITION OF HIS CASE WAS VIOLATED.22 1awphi1.net Did Judge Maceda act with grave abuse of discretion in issuing motu proprio the April 1, 2003 Order reopening the case, before judgment was rendered, to receive the testimonies of two prosecution witnesses after both parties had rested their case? Did the said order violate Cabarless right to due process and speedy disposition of his case? On the first issue, Cabarles insists that Judge Maceda gravely abused his discretion when he ordered the reopening of the case before promulgation of judgment although both parties had already rested their case. Cabarles argues that a case may only be reopened after a judgment of conviction has been made but before its finality, as provided in Section 24,23 Rule 119 of the Revised Rules of Criminal Procedure. Cabarles insists that the reopening of a case under Section 24 presupposes that judgment has already been promulgated, which is not the case here. According to petitioner, the cases cited by the People are not at all applicable in this case since they were tried and decided before the introduction of Section 24 under the Revised Rules of Criminal Procedure. For Judge Maceda, the Office of the Solicitor General (OSG) contends that Section 24 is a new provision which merely formalized the long accepted practice of judges of reopening a case to avoid a miscarriage of justice. This being the case, jurisprudence providing that a judge has the discretion to reopen a case even before promulgation of judgment still holds. After a thorough consideration of the submissions by the parties, we find that the petition is meritorious. A motion to reopen a case to receive further proofs was not in the old rules but it was nonetheless a recognized procedural recourse, deriving validity and acceptance from long, established usage.24 This lack of a specific provision covering motions to reopen was remedied by the Revised Rules of Criminal Procedure which took effect on December 1, 2000.

The April 1, 2003 Order was issued under the Revised Rules of Criminal Procedure. Section 24, Rule 119 and existing jurisprudence stress the following requirements for reopening a case: (1) the reopening must be before the finality of a judgment of conviction; (2) the order is issued by the judge on his own initiative or upon motion; (3) the order is issued only after a hearing is conducted; (4) the order intends to prevent a miscarriage of justice; and (5) the presentation of additional and/or further evidence should be terminated within thirty days from the issuance of the order. Generally, after the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only. However, the court, for good reasons, in the furtherance of justice, may allow new evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.25 A motion to reopen may thus properly be presented only after either or both parties had formally offered and closed their evidence, but before judgment is rendered,26 and even after promulgation but before finality of judgment27 and the only controlling guideline governing a motion to reopen is the paramount interest of justice.28 This remedy of reopening a case was meant to prevent a miscarriage of justice.29 However, while Judge Maceda is allowed to reopen the case before judgment is rendered, Section 24 requires that a hearing must first be conducted. Judge Maceda issued the April 1, 2003 Order without notice and hearing and without giving the prosecution and accused an opportunity to manifest their position on the matter. This failure, to our mind, constitutes grave abuse of discretion and goes against the due process clause of the Constitution which requires notice and opportunity to be heard.30 The issuance of the said order, without the benefit of a hearing, is contrary to the express language of Section 24, Rule 119. Although the defense counsel had cross-examined Pedrosa and had participated in the proceedings after the case was reopened by Judge Maceda, the same does not amount to a waiver of Cabarless objection to the April 1, 2003 Order. To be effective, a waiver must be certain and unequivocal.31 Here, Cabarles filed the present petition seeking for a writ of certiorari against Judge Maceda before Pedrosa was cross-examined. Also, when asked to comment on the prosecutions formal offer of evidence taken after the case was reopened, Cabarles objected to its admission on the ground that the same was inadmissible having been received by the court after Judge Maceda issued the questioned order. On the second issue, Cabarles maintains that contrary to Judge Macedas observation, the prosecution was given ample opportunity to present its case as seen by the issuance of several subpoenas to Pedrosa and Dr. Salen. Cabarles argues that he is presumed innocent until proven guilty and should not be made to wait indefinitely for prosecution witnesses to testify. To do so would violate his constitutional right to due process and a speedy disposition of his case. According to Cabarles, the reopening of the case is clearly detrimental to him since it meant another day in prison. The OSG counters that the reopening of the case was made in accordance with Section 24 since the prosecution is entitled to the reopening of the case to prevent a miscarriage of justice. Furthermore, Cabarless right to a speedy trial had not been violated since delays caused by the

absence of a prosecution witness are excluded when computing the time within which trial should start under Section 3,32 Rule 119 of the Revised Rules of Criminal Procedure. Although the matter of reopening a case for reception of further evidence is largely a matter of discretion on the part of the trial court judge, this judicial action must not, however, be done whimsically, capriciously and/or unreasonably.33 In this particular case, the prosecution was given ample opportunity to present all its witnesses but it failed to do so. The failure of the prosecution to take full advantage of the opportunities given does not change the fact that it was accorded such opportunities. Contrary to the justification stated in the April 1, 2003 Order, the prosecution was not deprived of its day in court. While it may be true that due to some confusion with the trial courts calendar, some of the trial dates assigned to the prosecution did not push through and some of the subpoenas issued to Pedrosa and/or Dr. Salen pertained to hearing dates which were different from those assigned for reception of prosecutions evidence, still the prosecution had a total of four hearing dates when it was given the chance to prove its case: May 23, June 20 and 27, and August 1, 2001. The presence of prosecution witnesses in court is the responsibility of the public prosecutor and it is incumbent upon him to take the initiative of ensuring the attendance of his witnesses at the trial.34 Since Judge Maceda issued the questioned order without complying with the third requirement of Section 24, that there be a hearing conducted before the order to reopen is issued, then the assailed order must be annulled and set aside for having been issued contrary to law and consequently with grave abuse of discretion.35 On Cabarless right to a speedy disposition of his case, we agree that under the Constitution, all persons shall have the right to a speedy disposition of their cases. Nowhere is this guaranty more significant and meaningful than in criminal cases where not only the fortune, but the life and liberty of the accused as well, are at stake.36 Although a discussion on the right to speedy disposition of the case is mooted by our nullification of Judge Macedas April 1, 2003 Order as having been issued with grave abuse of discretion, we are constrained to reiterate that the concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case.37 The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.38 With regard to the OSGs allegation in its Comment and Memorandum, that Cabarles failed to observe the rule on hierarchy of courts since the petition for certiorari was filed directly with the Supreme Court, Cabarles insists that he is a detention prisoner needing immediate resolution of his case. He also argues that this case not only involves grave abuse of discretion but also a pure question of law involving the application of Section 24, which is a new provision.39 It is necessary to stress that a direct recourse to this Court is highly improper for it violates the established policy of strict observance of the hierarchy of courts. This Courts original

jurisdiction to issue a writ of certiorari is concurrent with the Court of Appeals and with the regional trial courts in proper cases within their respective regions. However, this concurrence of jurisdiction does not grant a party seeking any of the extraordinary writs the absolute freedom to file his petition with the court of his choice. This Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition. The hierarchy of courts determines the appropriate forum for such petitions. Thus, petitions for the issuance of such extraordinary writs against a regional trial court should be filed with the Court of Appeals. A direct invocation of this Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is the established policy. It is a policy that is necessary to prevent inordinate demands upon this Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of its docket.40 Under the present circumstances however, we are willing to take cognizance of this case as an exception to the principle of hierarchy of courts. Cabarles invokes the jurisdiction of this Court in the interest of speedy justice since the information against him was filed way back in June 1999,41 and almost eight years thereafter, no judgment has yet been rendered. Any further delay in the resolution of the instant petition will be prejudicial to Cabarles. Also, the Court has full discretionary power to take cognizance of the petition filed directly to it for compelling reasons or if warranted by the nature of the issues raised.42 Since Section 24 is a new provision, and considering the irregularities in the issuance of the April 1, 2003 Order, it is necessary to resolve the issues raised in this petition. As a final word, we find the Supreme Courts pronouncement in the case of People v. Monje instructive: A proposal has been expressed for the remand of this case to the trial court for further proceedings, apparently to enable the prosecution to prove again what it failed to prove in the first instance. We cannot agree because it will set a dangerous precedent. Aside from its being unprocedural, it would open the floodgates to endless litigations because whenever an accused is on the brink of acquittal after trial, and realizing its inadequacy, the prosecution would insist to be allowed to augment its evidence which should have been presented much earlier. This is a criminal prosecution, and to order the remand of this case to the court a quo to enable the prosecution to present additional evidence would violate the constitutional right of the accused to due process, and to speedy determination of his case. The lamentable failure of the prosecution to fill the vital gaps in its evidence, while prejudicial to the State and the private offended party, should not be treated by this Court with indulgence, to the extent of affording the prosecution a fresh opportunity to refurbish its evidence. In fine, we are not unmindful of the gravity of the crime charged; but justice must be dispensed with an even hand. Regardless of how much we want to punish the perpetrators of this ghastly crime and give justice to the victim and her family, the protection provided by the Bill of Rights is bestowed upon all individuals, without exception, regardless of race, color, creed, gender or political persuasion - whether privileged or less privileged - to be invoked without fear or favor.

Hence, the accused deserves no less than an acquittal; ergo, he is not called upon to disprove what the prosecution has not proved.43 WHEREFORE, the instant petition is GRANTED. We hold that the assailed Order dated April 1, 2003 was issued with grave abuse of discretion. Said Order is hereby ANNULLED and SET ASIDE. Accordingly, any evidence received and offered in this case as a result of the April 1, 2003 Order is hereby stricken off the record. Let the records of this case be REMANDED immediately to the trial court concerned for its appropriate action without further delay. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice WE CONCUR: