G.R. No.

139465

January 18, 2000

SECRETARY OF JUSTICE, vs. HON. RALPH C. LANTION, Presiding Judge,

Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ,
The individual citizen is but a speck of particle or molecule vis--vis the
vast and overwhelming powers of government. His only guarantee against
oppression and tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now called to decide
whether to uphold a citizen's basic due process rights, or the
government's ironclad duties under a treaty. The bugle sounds and this
Court must once again act as the faithful guardian of the fundamental
writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign Country".
The Decree is founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime both in the
state where it was committed and the state where the criminal may have
escaped; the extradition treaty with the Republic of Indonesia and the
intention of the Philippines to enter into similar treaties with other
interested countries; and the need for rules to guide the executive
department and the courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed in
Manila the "Extradition Treaty Between the Government of the Republic
of the Philippines and the Government of the United States of America"
(hereinafter referred to as the RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the ratification of
said treaty. It also expressed its concurrence in the Diplomatic Notes
correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the
documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in
the Requesting State).

On June 18, 1999, the Department of Justice received from the

Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a
request for the extradition of private respondent Mark Jimenez to the
United States. Attached to the Note Verbale were the Grand Jury
Indictment, the warrant of arrest issued by the U.S. District Court,
Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears
to be charged in the United States with violation of the following
provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United
States; two [2] counts; Maximum Penalty 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;
Maximum Penalty 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum
Penalty 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33]
counts; Maximum Penalty less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating
and authorizing a panel of attorneys to take charge of and to handle the
case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly,
the panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel
found that the "official English translation of some documents in Spanish
were not attached to the request and that there are some other matters
that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private
respondent, through counsel, wrote a letter dated July 1, 1999 addressed
to petitioner requesting copies of the official extradition request from the

U.S. Government, as well as all documents and papers submitted

therewith; and that he be given ample time to comment on the request
after he shall have received copies of the requested papers. Private
respondent also requested that the proceedings on the matter be held in
abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least
a copy of, or access to, the request of the United States Government, and
after receiving a copy of the Diplomatic Note, a period of time to amplify
on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a
reply-letter dated July 13, 1999 (but received by private respondent only
on August 4, 1999), denied the foregoing requests for the following
reasons:
1. We find it premature to furnish you with copies of the extradition
request and supporting documents from the United States Government,
pending evaluation by this Department of the sufficiency of the extradition
documents submitted in accordance with the provisions of the extradition
treaty and our extradition law. Article 7 of the Extradition Treaty between
the Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary
requirements under our domestic law are also set forth in Section 4 of P.D.
No. 1069.
Evaluation by this Department of the aforementioned documents is not a
preliminary investigation nor akin to preliminary investigation of criminal
cases. We merely determine whether the procedures and requirements
under the relevant law and treaty have been complied with by the
Requesting Government. The constitutionally guaranteed rights of the
accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person
sought to be extradited will be furnished by the court with copies of the
petition, request and extradition documents and this Department will not

pose any objection to a request for ample time to evaluate said

documents.
2. The formal request for extradition of the United States contains grand
jury information and documents obtained through grand jury process
covered by strict secrecy rules under United States law. The United States
had to secure orders from the concerned District Courts authorizing the
United States to disclose certain grand jury information to Philippine
government and law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of the said information
is not authorized by the United States District Courts. In this particular
extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject
information. This Department's denial of your request is consistent with
Article 7 of the RP-US Extradition Treaty which provides that the Philippine
Government must represent the interests of the United States in any
proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all
extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in
connection with an extradition request. Article 26 of the Vienna
Convention on the Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it and must be
performed by them in good faith". Extradition is a tool of criminal law
enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent
filed with the Regional Trial Court of the National Capital Judicial Region a
petition against the Secretary of Justice, the Secretary of Foreign Affairs,
and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent
the extradition documents, to give him access thereto, and to afford him
an opportunity to comment on, or oppose, the extradition request, and
thereafter to evaluate the request impartially, fairly and

objectively); certiorari (to set aside herein petitioner's letter dated July 13,
1999); and prohibition (to restrain petitioner from considering the
extradition request and from filing an extradition petition in court; and to
enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to
the United States), with an application for the issuance of a temporary
restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

(pp. 110-111, Rollo.)

The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in
Manila which is presided over by the Honorable Ralph C. Lantion.

I.

After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given ample
time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous
day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the
Secretary of Justice, the Secretary of Foreign Affairs and the Director of
the National Bureau of Investigation, their agents and/or representatives
to maintain the status quo by refraining from committing the acts
complained of; from conducting further proceedings in connection with
the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial
court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty (20) days from
service on respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set on
August 17, 1999 at 9:00 o'clock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the
issuance of a Preliminary Injunction on or before said date.
SO ORDERED.

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE

ACTS COMPLAINED OF,I.E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OFMANDAMUS IN THE PETITION
FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT,
GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL
DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON
ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION
AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining order
(TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further
orders from this Court, You, Respondent Judge Ralph C. Lantion, your
agents, representatives or any person or persons acting in your place or
stead are hereby ORDERED to CEASE and DESIST from enforcing the
assailed order dated August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme
Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and
substantive issues are patent. However, a review of these issues as well as
the extensive arguments of both parties, compel us to delineate the focal
point raised by the pleadings: During the evaluation stage of the
extradition proceedings, is private respondent entitled to the two basic
due process rights of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and academic
(the issues of which are substantially the same as those before us now),
while a negative resolution would call for the immediate lifting of the TRO
issued by this Court dated August 24, 1999, thus allowing petitioner to
fast-track the process leading to the filing of the extradition petition with
the proper regional trial court. Corollarily, in the event that private
respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement
constitute a breach of the legal commitments and obligations of the
Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between
private respondent's basic due process rights and the provisions of the RPUS Extradition Treaty?

The issues having transcendental importance, the Court has elected to go

directly into the substantive merits of the case, brushing aside peripheral
procedural matters which concern the proceedings in Civil Case No. 9994684, particularly the propriety of the filing of the petition therein, and of
the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The
RP-US Extradition Treaty which was executed only on November 13, 1994,
ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to
enable the requesting state or government to hold him in connection with
any criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the requesting
state or government." The portions of the Decree relevant to the instant
case which involves a charged and not convicted individual, are abstracted
as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State,
addressed to the Secretary of Foreign Affairs, and shall be accompanied
by:
1. The original or an authentic copy of the criminal charge and the warrant
of arrest issued by the authority of the Requesting State having jurisdiction
over the matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in
the Philippines, if known, the acts or omissions complained of, and the
time and place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said
law, and the designation or description of the offense by the law,
sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the
Secretary of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant treaty
or convention, he shall forward the request together with the related
documents to the Secretary of Justice, who shall immediately designate
and authorize an attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority
given the task of evaluating the sufficiency of the request and the
supporting documents is the Secretary of Foreign Affairs. What then is the
coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition
Treaty, the executive authority must ascertain whether or not the request
is supported by:
1. Documents, statements, or other types of information which describe
the identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the
case;
3. A statement of the provisions of the law describing the essential
elements of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the
offense;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would
provide probable cause for his arrest and committal for trial if the offense
had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other
competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it
that the accompanying documents received in support of the request had
been certified by the principal diplomatic or consular officer of the
Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of
Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that
"[e]xtradition shall not be granted if the executive authority of the
Requested State determines that the request is politically motivated, or
that the offense is a military offense which is not punishable under nonmilitary penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the
extradition request and its supporting documents are sufficient and
complete in form and substance, he shall deliver the same to the Secretary
of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P.D. No.
1069). The lawyer designated shall then file a written petition with the
proper regional trial court of the province or city, with a prayer that the
court take the extradition request under consideration (Paragraph
[2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition
for extradition, shall, as soon as practicable, issue an order summoning the
prospective extraditee to appear and to answer the petition on the day

and hour fixed in the order. The judge may issue a warrant of arrest if it
appears that the immediate arrest and temporary detention of the
accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.),
particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless,
Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as
practicable and not inconsistent with the summary nature of the
proceedings, shall apply. During the hearing, Section 8 of the Decree
provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the
proceedings.
Upon conclusion of the hearing, the court shall render a decision granting
the extradition and giving the reasons therefor upon a showing of the
existence of a prima facie case, or dismiss the petition (Section 10, ibid.).
Said decision is appealable to the Court of Appeals, whose decision shall
be final and immediately executory (Section 12, ibid.). The provisions of
the Rules of Court governing appeal in criminal cases in the Court of
Appeals shall apply in the aforementioned appeal, except for the required
15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality rule
and other conditions mentioned in Article 2 of the RP-US Extradition
Treaty. The trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph [1], Article 3,
RP-US Extradition Treaty).1wphi1.nt
With the foregoing abstract of the extradition proceedings as backdrop,
the following query presents itself: What is the nature of the role of the
Department of Justice at the evaluation stage of the extradition
proceedings?

A strict observance of the Extradition Law indicates that the only duty of
the Secretary of Justice is to file the extradition petition after the request
and all the supporting papers are forwarded to him by the Secretary of
Foreign Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under Paragraph [3],
Article 3 of the Treaty, to determine whether or not the request is
politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation.Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary
of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would
appear that there was failure to abide by the provisions of Presidential
Decree No. 1069. For while it is true that the extradition request was
delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice
received the request, apparently without the Department of Foreign
Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this regard, is
merely acting as a post office, for which reason he simply forwarded the
request to the Department of Justice, indicates the magnitude of the error
of the Department of Foreign Affairs in taking lightly its responsibilities.
Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out
whether they comply with the requirements laid down in the Extradition
Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this
connection that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31,
1999, pp. 24-25). Notably, it was also at this stage where private
respondent insisted on the following; (1) the right to be furnished the
request and the supporting papers; (2) the right to be heard which consists
in having a reasonable period of time to oppose the request, and to
present evidence in support of the opposition; and (3) that the evaluation

proceedings be held in abeyance pending the filing of private respondent's

opposition to the request.
The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its
commission. The Department of Foreign Affairs, moreover, has, through
the Solicitor General, filed a manifestation that it is adopting the instant
petition as its own, indirectly conveying the message that if it were to
evaluate the extradition request, it would not allow private respondent to
participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that
the Department of Foreign Affairs thoroughly reviewed the extradition
request and supporting documents and that it arrived at a well-founded
judgment that the request and its annexed documents satisfy the
requirements of law. The Secretary of Justice, eminent as he is in the field
of law, could not privately review the papers all by himself. He had to
officially constitute a panel of attorneys. How then could the DFA
Secretary or his undersecretary, in less than one day, make the more
authoritative determination?
The evaluation process, just like the extradition proceedings proper,
belongs to a class by itself. It is sui generis. It is not a criminal investigation,
but it is also erroneous to say that it is purely an exercise of ministerial
functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its face and on
the face of the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not the request
is politically motivated, or that the offense is a military one which is not
punishable under non-military penal legislation (tsn, August 31, 1999, pp.
28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty).
Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the exercise
of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and
evaluation of evidence; (b) determining facts based upon the evidence

presented; and (c) rendering an order or decision supported by the facts

proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is
also known as examining or investigatory power, is one or the
determinative powers of an administrative body which better enables it to
exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996
ed., p. 26). This power allows the administrative body to inspect the
records and premises, and investigate the activities, of persons or entities
coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
information by means or accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit., p.
64).
The power of investigation consists in gathering, organizing, and analyzing
evidence, which is a useful aid or tool in an administrative agency's
performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had
occasion to rule on the functions of an investigatory body with the sole
power of investigation. It does not exercise judicial functions and its power
is limited to investigating the facts and making findings in respect thereto.
The Court laid down the test of determining whether an administrative
body is exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to adjudicate
upon the rights and obligations of the parties before it. Hence, if the only
purpose for investigation is to evaluate evidence submitted before it
based on the facts and circumstances presented to it, and if the agency is
not authorized to make a final pronouncement affecting the parties, then
there is an absence of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no power to
adjudicate in regard to the rights and obligations of both the Requesting
State and the prospective extraditee. Its only power is to determine
whether the papers comply with the requirements of the law and the
treaty and, therefore, sufficient to be the basis of an extradition petition.

Such finding is thus merely initial and not final. The body has no power to
determine whether or not the extradition should be effected. That is the
role of the court. The body's power is limited to an initial finding of
whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the
evaluation procedure is characterized by certain peculiarities. Primarily, it
sets into motion the wheels of the extradition process. Ultimately, it may
result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of
the prospective extraditee pending the submission of the request. This is
so because the Treaty provides that in case of urgency, a contracting party
may request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US Extradition
Treaty), but he shall be automatically discharged after 60 days if no
request is submitted (Paragraph 4). Presidential Decree No. 1069 provides
for a shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent
on this respect, the provisions only mean that once a request is forwarded
to the Requested State, the prospective extraditee may be continuously
detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RPUS Extradition Treaty), for he will only be discharged if no request is
submitted. Practically, the purpose of this detention is to prevent his
possible flight from the Requested State. Second, the temporary arrest of
the prospective extraditee during the pendency of the extradition petition
in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty
as early as during the evaluation stage. It is not only an imagined threat to
his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation
process is akin to an administrative agency conducting an investigative
proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As
described by petitioner himself, this is a "tool" for criminal law

enforcement (p. 78,Rollo). In essence, therefore, the evaluation process

partakes of the nature of a criminal investigation. In a number of cases, we
had occasion to make available to a respondent in an administrative case
or investigation certain constitutional rights that are ordinarily available
only in criminal prosecutions. Further, as pointed out by Mr. Justice
Mendoza during the oral arguments, there are rights formerly available
only at the trial stage that had been advanced to an earlier stage in the
proceedings, such as the right to counsel and the right against selfincrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S.
478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S.
436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held
that the right against self-incrimination under Section 17, Article III of the
1987 Constitution which is ordinarily available only in criminal
prosecutions, extends to administrative proceedings which possess a
criminal or penal aspect, such as an administrative investigation of a
licensed physician who is charged with immorality, which could result in
his loss of the privilege to practice medicine if found guilty. The Court,
citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed
out that the revocation of one's license as a medical practitioner, is an
even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of
unexplained wealth against a respondent which was filed under Republic
Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the
investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes
the nature of a penalty. There is also the earlier case of Almeda,
Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American
jurisprudence, laid down the test to determine whether a proceeding is
civil or criminal: If the proceeding is under a statute such that if an
indictment is presented the forfeiture can be included in the criminal case,
such proceeding is criminal in nature, although it may be civil in form; and
where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the

proceeding does not involve the conviction of the wrongdoer for the
offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of
one's property or property right. No less is this true, but even more so in
the case before us, involving as it does the possible deprivation of liberty,
which, based on the hierarchy of constitutionally protected rights, is
placed second only to life itself and enjoys precedence over property, for
while forfeited property can be returned or replaced, the time spent in
incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a
person to eventual extradition to a foreign country, thus saliently
exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result the arrest and imprisonment of
the respondent or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result in
the filing of an information against the respondent, can possibly lead to his
arrest, and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992])
(p. 8, petitioner's Memorandum) that the extradition treaty is neither a
piece of criminal legislation nor a criminal procedural statute is not welltaken.Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The
characterization of a treaty in Wright was in reference to the applicability
of the prohibition against an ex post facto law. It had nothing to do with
the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or
custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty
commitments.

The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At
the same time, both States accord common due process protection to
their respective citizens.
The due process clauses in the American and Philippine Constitutions are
not only worded in exactly identical language and terminology, but more
importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem,
and their having been designed from earliest time to the present to meet
the exigencies of an undefined and expanding future. The requirements of
due process are interpreted in both the United States and the Philippines
as not denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal straitjacket,
the courts instead prefer to have the meaning of the due process clause
"gradually ascertained by the process of inclusion and exclusion in the
course of the decisions of cases as they arise" (Twining vs. New Jersey, 211
U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of
fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City
Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable
principles of justice which inhere in the very idea of free government
(Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process
which requires the intrinsic validity of the law in interfering with the rights
of the person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice
and hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may claim the

right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondent's basic due process rights, granting him the right to be
furnished a copy of the complaint, the affidavits, and other supporting
documents, and the right to submit counter-affidavits and other
supporting documents within ten days from receipt thereof. Moreover,
the respondent shall have the right to examine all other evidence
submitted by the complainant.
These twin rights may, however, be considered dispensable in certain
instances, such as:
1. In proceeding where there is an urgent need for immediate action, like
the summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges
(Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments
which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the
respondent is not precluded from enjoying the right to notice and hearing
at a later time without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent taxpayer, and
the replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked:
Does the evaluation stage of the extradition proceedings fall under any of
the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings
which are quite noteworthy considering that the subject treaty involves
the U.S. Government.

American jurisprudence distinguishes between interstate rendition or

extradition which is based on the Extradition Clause in the U.S.
Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In
interstate rendition or extradition, the governor of the asylum state has
the duty to deliver the fugitive to the demanding state. The Extradition
Clause and the implementing statute are given a liberal construction to
carry out their manifest purpose, which is to effect the return as swiftly as
possible of persons for trial to the state in which they have been charged
with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an
alleged fugitive, the requisition papers or the demand must be in proper
form, and all the elements or jurisdictional facts essential to the
extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the
offense charged was committed, and that the person demanded is
charged with the commission of the crime or that prosecution has been
begun in the demanding state before some court or magistrate (35 C.J.S.
406-407). The extradition documents are then filed with the governor of
the asylum state, and must contain such papers and documents prescribed
by statute, which essentially include a copy of the instrument charging the
person demanded with a crime, such as an indictment or an affidavit made
before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in
order to confer jurisdiction on the government of the asylum state to
effect extradition (35 C.J.S. 408-410). A statutory provision requiring
duplicate copies of the indictment, information, affidavit, or judgment of
conviction or sentence and other instruments accompanying the demand
or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a
right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W.
2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a
requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached

thereto a letter dated September 13, 1999 from the Criminal Division of
the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a combination
of treaties (with special reference to the RP-US Extradition Treaty), federal
statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic
channel. In urgent cases, requests for the provincial arrest of an individual
may be made directly by the Philippine Department of Justice to the U.S.
Department of Justice, and vice-versa. In the event of a provisional arrest,
a formal request for extradition is transmitted subsequently through the
diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition
request to the Department of Justice. Before doing so, the Department of
State prepares a declaration confirming that a formal request has been
made, that the treaty is in full force and effect, that under Article 17
thereof the parties provide reciprocal legal representation in extradition
proceedings, that the offenses are covered as extraditable offenses under
Article 2 thereof, and that the documents have been authenticated in
accordance with the federal statute that ensures admissibility at any
subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the
arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or
magistrate is authorized to hold a hearing to consider the evidence offered
in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested
is extraditable to the foreign country. The court must also determine that
(a) it has jurisdiction over the defendant and jurisdiction to conduct the
hearing; (b) the defendant is being sought for offenses for which the
applicable treaty permits extradition; and (c) there is probable cause to
believe that the defendant is the person sought and that he committed
the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify

extraditability after having received a "complaint made under oath,
charging any person found within his jurisdiction" with having committed
any of the crimes provided for by the governing treaty in the country
requesting extradition (Ibid.) [In this regard, it is noted that a long line of
American decisions pronounce that international extradition proceedings
partake of the character of a preliminary examination before a committing
magistrate, rather than a trial of the guilt or innocence of the alleged
fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and
conclusions of law and certifies the person's extraditability. The court then
forwards this certification of extraditability to the Department of State for
disposition by the Secretary of State. The ultimate decision whether to
surrender an individual rests with the Secretary of State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions
concerning the motives of the requesting government in seeking his
extradition. However, a person facing extradition may present whatever
information he deems relevant to the Secretary of State, who makes the
final determination whether to surrender an individual to the foreign
government concerned.
From the foregoing, it may be observed that in the United States,
extradition begins and ends with one entity the Department of State
which has the power to evaluate the request and the extradition
documents in the beginning, and, in the person of the Secretary of State,
the power to act or not to act on the court's determination of
extraditability. In the Philippine setting, it is the Department of Foreign
Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then
forwards the request to the Department of Justice for the preparation and
filing of the petition for extradition. Sadly, however, the Department of
Foreign Affairs, in the instant case, perfunctorily turned over the request
to the Department of Justice which has taken over the task of evaluating

the request as well as thereafter, if so warranted, preparing, filing, and

prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S.
Government should the person sought to be extradited be given due
process rights by the Philippines in the evaluation stage. He emphasizes
that petitioner's primary concern is the possible delay in the evaluation
process.
We agree with private respondent's citation of an American Supreme
Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate
state ends is a proper state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights in general, and
the Due Process Clause, in particular, that they were designed to protect
the fragile values of a vulnerable citizenry from the overbearing concern
for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills
of Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the means.
It is not enough that there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the Constitution. Mere
expediency will not excuse constitutional shortcuts. There is no question
that not even the strongest moral conviction or the most urgent public
need, subject only to a few notable exceptions, will excuse the bypassing

of an individual's rights. It is no exaggeration to say that a person invoking

a right guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that right
(Association of Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a
tool of criminal law enforcement. To be effective, requests for extradition
or the surrender of accused or convicted persons must be processed
expeditiously. Nevertheless, accelerated or fast-tracked proceedings and
adherence to fair procedures are, however, not always incompatible. They
do not always clash in discord. Summary does not mean precipitous haste.
It does not carry a disregard of the basic principles inherent in "ordered
liberty."
Is there really an urgent need for immediate action at the evaluation
stage? At that point, there is no extraditee yet in the strict sense of the
word. Extradition may or may not occur. In interstate extradition, the
governor of the asylum state may not, in the absence of mandatory
statute, be compelled to act favorably (37 C.J.S. 387) since after a close
evaluation of the extradition papers, he may hold that federal and
statutory requirements, which are significantly jurisdictional, have not
been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the
executive authority of the requested state has the power to deny the
behest from the requesting state. Accordingly, if after a careful
examination of the extradition documents the Secretary of Foreign Affairs
finds that the request fails to meet the requirements of the law and the
treaty, he shall not forward the request to the Department of Justice for
the filing of the extradition petition since non-compliance with the
aforesaid requirements will not vest our government with jurisdiction to
effect the extradition.
In this light, it should be observed that the Department of Justice exerted
notable efforts in assuring compliance with the requirements of the law
and the treaty since it even informed the U.S. Government of certain
problems in the extradition papers (such as those that are in Spanish and
without the official English translation, and those that are not properly

authenticated). In fact, petitioner even admits that consultation meetings

are still supposed to take place between the lawyers in his Department
and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated
period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action
where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the
right to notice and hearing at a later time without prejudice to him? Here
lies the peculiarity and deviant characteristic of the evaluation procedure.
On one hand there is yet no extraditee, but ironically on the other, it
results in an administrative if adverse to the person involved, may cause
his immediate incarceration. The grant of the request shall lead to the
filing of the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest allowed
under the treaty and the implementing law. The prejudice to the
"accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process
cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to
citizens of the Philippines, namely: (1) the right to information on matters
of public concern, and (2) the corollary right of access to official records
documents. The general right guaranteed by said provision is the right to

information on matters of public concern. In its implementation, the right

of access to official records is likewise conferred. These cognate or related
rights are "subject to limitations as may be provided by law" (Bernas, The
1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on
the premise that ultimately it is an informed and critical public opinion
which alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letterrequest dated July 1, 1999 do not fall under the guarantee of the
foregoing provision since the matters contained in the documents
requested are not of public concern. On the other hand, private
respondent argues that the distinction between matters vested with
public interest and matters which are of purely private interest only
becomes material when a third person, who is not directly affected by the
matters requested, invokes the right to information. However, if the
person invoking the right is the one directly affected thereby, his right to
information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental
process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters
arouse the interest of an ordinary citizen (Legaspi v. Civil Service
Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the
people and any citizen has "standing".
When the individual himself is involved in official government action
because said action has a direct bearing on his life, and may either cause
him some kind of deprivation or injury, he actually invokes the basic right
to be notified under Section 1 of the Bill of Rights and not exactly the right
to information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of
the nature and cause of the accusation against him.
The right to information is implemented by the right of access to
information within the control of the government (Bernas, The 1987

Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such

information may be contained in official records, and in documents and
papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to
official government action from the U.S. Government. No official action
from our country has yet been taken. Moreover, the papers have some
relation to matters of foreign relations with the U.S. Government.
Consequently, if a third party invokes this constitutional provision, stating
that the extradition papers are matters of public concern since they may
result in the extradition of a Filipino, we are afraid that the balance must
be tilted, at such particular time, in favor of the interests necessary for the
proper functioning of the government. During the evaluation procedure,
no official governmental action of our own government has as yet been
done; hence the invocation of the right is premature. Later, and in
contrast, records of the extradition hearing would already fall under
matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The
extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent's entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach
of the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time
to pass upon the constitutionality of the provisions of the RP-US
Extradition Treaty nor the Extradition Law implementing the same. We
limit ourselves only to the effect of the grant of the basic rights of notice
and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal
duties under a treaty is also compelled by Section 2, Article II of the
Constitution which provides that "[t]he Philippines renounces war as an

instrument of national policy, adopts the generally accepted principles of

international law as part of the law of the land, and adheres to the policy
of peace, equality, justice, freedom, cooperation and amity with nations."
Under the doctrine of incorporation, rules of international law form part
of the law of the and land no further legislative action is needed to make
such rules applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or
local courts) are confronted with situations in which there appears to be a
conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed
that municipal law was enacted with proper regard for the generally
accepted principles of international law in observance of the observance
of the Incorporation Clause in the above-cited constitutional provision
(Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however,
where the conflict is irreconcilable and a choice has to be made between a
rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts (Ichong vs.
Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts
are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international
law has been made part of the law of the land does not pertain to or imply
the primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing
with, but are not superior to, national legislative enactments. Accordingly,
the principle lex posterior derogat priori takes effect a treaty may
repeal a statute and a statute may repeal a treaty. In states where the
constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in
conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law

of the land are not pined against each other. There is no occasion to
choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential
Decree No. 1069, as regards the basic due process rights of a prospective
extraditee at the evaluation stage of extradition proceedings. From the
procedures earlier abstracted, after the filing of the extradition petition
and during the judicial determination of the propriety of extradition, the
rights of notice and hearing are clearly granted to the prospective
extraditee. However, prior thereto, the law is silent as to these rights.
Reference to the U.S. extradition procedures also manifests this silence.

confidential, the veil of secrecy cannot be lifted at any stage of the

extradition proceedings. Not even during trial.

Petitioner interprets this silence as unavailability of these rights.

Consequently, he describes the evaluation procedure as an "ex
parte technical assessment" of the sufficiency of the extradition request
and the supporting documents.

Earlier, we stated that there are similarities between the evaluation

process and a preliminary investigation since both procedures may result
in the arrest of the respondent or the prospective extraditee. In the
evaluation process, a provisional arrest is even allowed by the Treaty and
the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20,
Presidential Decree No. 1069). Following petitioner's theory, because
there is no provision of its availability, does this imply that for a period of
time, the privilege of the writ of habeas corpus is suspended, despite
Section 15, Article III of the Constitution which states that "[t]he privilege
of the writ or habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it"? Petitioner's
theory would also infer that bail is not available during the arrest of the
prospective extraditee when the extradition petition has already been
filed in court since Presidential Decree No. 1069 does not provide
therefor, notwithstanding Section 13, Article III of the Constitution which
provides that "[a]ll 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. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign
relations, the aforestated guarantees in the Bill of Rights could thus be
subservient thereto?

We disagree.
In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and
hearing will not go against the treaty or the implementing law. Neither the
Treaty nor the Extradition Law precludes these rights from a prospective
extraditee. Similarly, American jurisprudence and procedures on
extradition pose no proscription. In fact, in interstate extradition
proceedings as explained above, the prospective extraditee may even
request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine
Government to prevent unauthorized disclosure of confidential
information. Hence, the secrecy surrounding the action of the Department
of Justice Panel of Attorneys. The confidentiality argument is, however,
overturned by petitioner's revelation that everything it refuses to make
available at this stage would be obtainable during trial. The Department of
Justice states that the U.S. District Court concerned has authorized the
disclosure of certain grand jury information. If the information is truly

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law,
as well as American jurisprudence and procedures on extradition, for any
prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an
application by analogy.

The basic principles of administrative law instruct us that "the essence of

due process in administrative proceeding is an opportunity to explain
one's side or an opportunity to seek reconsideration of the actions or
ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs.
NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate,
Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA
602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural
due process refers to the method or manner by which the law is enforced
(Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional
guarantees in the enforcement of a law or treaty. Petitioner's fears that
the Requesting State may have valid objections to the Requested State's
non-performance of its commitments under the Extradition Treaty are
insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit
ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance
System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National
Police Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions
of the Constitution, Prescribing its Powers and Functions and for Other
Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged for
Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other
purposes), as amended by Presidential Decree No. 1707, although
summary dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still operate. As
held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying
is that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an
employee must be informed of the charges preferred against him, and

that the normal way by which the employee is so informed is by furnishing

him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain
consistent with the constitutional provision on due process. The second
minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to
present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his
defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet
we upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and
present danger of loss of property or employment, but of liberty itself,
which may eventually lead to his forcible banishment to a foreign land.
The convergence of petitioner's favorable action on the extradition
request and the deprivation of private respondent's liberty is easily
comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is
aptly described as "justice outside legality," may be availed of only in the
absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; DavidChan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue
in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by
statute or by treaty, are protected by constitutional guarantees. We would
not be true to the organic law of the land if we choose strict construction
over guarantees against the deprivation of liberty. That would not be in
keeping with the principles of democracy on which our Constitution is
premised.
Verily, as one traverses treacherous waters of conflicting and opposing
currents of liberty and government authority, he must ever hold the oar of
freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is

hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers,
and to grant him a reasonable period within which to file his comment
with supporting evidence. The incidents in Civil Case No. 99-94684 having
been rendered moot and academic by this decision, the same is hereby
ordered dismissed.
SO ORDERED.
G.R. No. 139465

October 17, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION,

Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.
RESOLUTION
On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and
ordered the petitioner to furnish private respondent copies of the
extradition request and its supporting papers and to grant him a
reasonable period within which to file his comment with supporting
evidence.1
On February 3, 2000, the petitioner timely filed an Urgent Motion for
Reconsideration. He assails the decision on the following grounds:
"The majority decision failed to appreciate the following facts and points
of substance and of value which, if considered, would alter the result of
the case, thus:
I. There is a substantial difference between an evaluation process
antecedent to the filing of an extradition petition in court and a
preliminary investigation.
II. Absence of notice and hearing during the evaluation process will not
result in a denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing requirement
satisfies no higher objective.

IV. The deliberate omission of the notice and hearing requirement in the
Philippine Extradition Law is intended to prevent flight.
V. There is a need to balance the interest between the discretionary
powers of government and the rights of an individual.
VI. The instances cited in the assailed majority decision when the twin
rights of notice and hearing may be dispensed with in this case results in
a non sequitur conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the Executive
Branch necessitating notice and hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the
Supreme Court has encroached upon the constitutional boundaries
separating it from the other two co-equal branches of government.
IX. Bail is not a matter of right in proceedings leading to extradition or in
extradition proceedings."2
On March 28, 2000, a 58-page Comment was filed by the private
respondent Mark B. Jimenez, opposing petitioners Urgent Motion for
Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation
and Maintenance of Action and Filing of Reply. Thereafter, petitioner filed
on June 7, 2000 a Manifestation with the attached Note 327/00 from the
Embassy of Canada and Note No. 34 from the Security Bureau of the
Hongkong SAR Government Secretariat. On August 15, 2000, private
respondent filed a Manifestation and Motion for Leave to File Rejoinder in
the event that petitioner's April 5, 2000 Motion would be granted. Private
respondent also filed on August 18, 2000, a Motion to Expunge from the
records petitioner's June 7, 2000 Manifestation with its attached note
verbales. Except for the Motion to Allow Continuation and Maintenance of
Action, the Court denies these pending motions and hereby resolves
petitioner's Urgent Motion for Reconsideration.

The jugular issue is whether or not the private respondent is entitled to

the due process right to notice and hearing during the evaluation stage of
the extradition process.
We now hold that private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.
First. P.D. No. 10693 which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished a copy of
the petition for extradition as well as its supporting papers, i.e., after the
filing of the petition for extradition in the extradition court, viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of
Notices. - (1) Immediately upon receipt of the petition, the presiding judge
of the court shall, as soon as practicable, summon the accused to appear
and to answer the petition on the day and hour fixed in the order . . . Upon
receipt of the answer, or should the accused after having received the
summons fail to answer within the time fixed, the presiding judge shall
hear the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if
issued, shall be promptly served each upon the accused and the attorney
having charge of the case."
It is of judicial notice that the summons includes the petition for
extradition which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069
which gives an extraditee the right to demand from the petitioner
Secretary of Justice copies of the extradition request from the US
government and its supporting documents and to comment thereon while
the request is still undergoing evaluation. We cannot write a provision in
the treaty giving private respondent that right where there is none. It is
well-settled that a "court cannot alter, amend, or add to a treaty by the
insertion of any clause, small or great, or dispense with any of its
conditions and requirements or take away any qualification, or integral
part of any stipulation, upon any motion of equity, or general
convenience, or substantial justice."4

Second. All treaties, including the RP-US Extradition Treaty, should be

interpreted in light of their intent. Nothing less than the Vienna
Convention on the Law of Treaties to which the Philippines is a signatory
provides that "a treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose."5 (emphasis supplied) The
preambular paragraphs of P.D. No. 1069 define its intent, viz:
"WHEREAS, under the Constitution[,] the Philippines adopts the generally
accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state
where it is committed but also of any other state to which the criminal
may have escaped, because it saps the foundation of social life and is an
outrage upon humanity at large, and it is in the interest of civilized
communities that crimes should not go unpunished;
WHEREAS, in recognition of this principle the Philippines recently
concluded an extradition treaty with the Republic of Indonesia, and
intends to conclude similar treaties with other interested countries;
x x x." (emphasis supplied)
It cannot be gainsaid that today, countries like the Philippines forge
extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of these crimes will
not be frustrated by the frontiers of territorial sovereignty. Implicit in the
treaties should be the unbending commitment that the perpetrators of
these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an
interpretation that will minimize if not prevent the escape of extraditees
from the long arm of the law and expedite their trial. The submission of
the private respondent, that as a probable extraditee under the RP-US
Extradition Treaty he should be furnished a copy of the US government
request for his extradition and its supporting documents even while they

are still under evaluation by petitioner Secretary of Justice, does not meet
this desideratum. The fear of the petitioner Secretary of Justice that the
demanded notice is equivalent to a notice to flee must be deeply rooted
on the experience of the executive branch of our government. As it comes
from the branch of our government in charge of the faithful execution of
our laws, it deserves the careful consideration of this Court. In addition, it
cannot be gainsaid that private respondents demand for advance
notice can delay the summary process of executive evaluation of the
extradition request and its accompanying papers. The foresight of Justice
Oliver Wendell Holmes did not miss this danger. In 1911, he held:
"It is common in extradition cases to attempt to bring to bear all the
factitious niceties of a criminal trial at common law. But it is a waste of
time . . . if there is presented, even in somewhat untechnical form
according to our ideas, such reasonable ground to suppose him guilty as to
make it proper that he should be tried, good faith to the demanding
government requires his surrender."6 (emphasis supplied)
We erode no right of an extraditee when we do not allow time to stand
still on his prosecution. Justice is best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the
parties themselves to the RP-US Extradition Treaty as well as the general
interpretation of the issue in question by other countries with similar
treaties with the Philippines. The rule is recognized that while courts have
the power to interpret treaties, the meaning given them by the
departments of government particularly charged with their negotiation
and enforcement is accorded great weight.7 The reason for the rule is laid
down in Santos III v. Northwest Orient Airlines, et al.,8 where we stressed
that a treaty is a joint executive-legislative act which enjoys the
presumption that "it was first carefully studied and determined to be
constitutional before it was adopted and given the force of law in the
country."
Our executive department of government, thru the Department of Foreign
Affairs (DFA) and the Department of Justice (DOJ), has steadfastly
maintained that the RP-US Extradition Treaty and P.D. No. 1069 do not
grant the private respondent a right to notice and hearing during the

evaluation stage of an extradition process.9 This understanding of the

treaty is shared by the US government, the other party to the
treaty.10 This interpretation by the two governments cannot be given
scant significance. It will be presumptuous for the Court to assume that
both governments did not understand the terms of the treaty they
concluded.
Yet, this is not all. Other countries with similar extradition treaties with
the Philippines have expressed the same interpretation adopted by the
Philippine and US governments. Canadian11 and Hongkong12authorities,
thru appropriate note verbales communicated to our Department of
Foreign Affairs, stated in unequivocal language that it is not an
international practice to afford a potential extraditee with a copy of the
extradition papers during the evaluation stage of the extradition process.
We cannot disregard such a convergence of views unless it is manifestly
erroneous.
Fourth. Private respondent, however, peddles the postulate that he must
be afforded the right to notice and hearing as required by our
Constitution. He buttresses his position by likening an extradition
proceeding to a criminal proceeding and the evaluation stage to a
preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights of an
accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence
of an accused.13 His guilt or innocence will be adjudged in the court of the
state where he will be extradited. Hence, as a rule, constitutional rights
that are only relevant to determine the guilt or innocence of an accused
cannot be invoked by an extraditee especially by one whose extradition
papers are still undergoing evaluation.14 As held by the US Supreme Court
inUnited States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to a valid treaty."15

There are other differences between an extradition proceeding and a

criminal proceeding. An extradition proceeding is summary in nature while
criminal proceedings involve a full-blown trial.16 In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding
allow admission of evidence under less stringent standards.17 In terms of
the quantum of evidence to be satisfied, a criminal case requires proof
beyond reasonable doubt for conviction18 while a fugitive may be ordered
extradited "upon showing of the existence of a prima facie case."19 Finally,
unlike in a criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may adjudge an
individual extraditable but the President has the final discretion to
extradite him.20 The United States adheres to a similar practice whereby
the Secretary of State exercises wide discretion in balancing the equities of
the case and the demands of the nation's foreign relations before making
the ultimate decision to extradite.21
As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter do not necessarily
apply to the former. This we hold for the procedural due process required
by a given set of circumstances "must begin with a determination of
the precise nature of the government function involved as well as the
private interest that has been affected by governmental action."22 The
concept of due process is flexible for "not all situations calling for
procedural safeguards call for the same kind of procedure."23
Fifth. Private respondent would also impress upon the Court the urgency
of his right to notice and hearing considering the alleged threat to his
liberty "which may be more priceless than life."24 The supposed threat to
private respondents liberty is perceived to come from several provisions
of the RP-US Extradition Treaty and P.D. No. 1069 which allow provisional
arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition Treaty
provides as follows:
"PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional

arrest of the person sought pending presentation of the request for
extradition. A request for provisional arrest may be transmitted through
the diplomatic channel or directly between the Philippine Department of
Justice and the United States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if possible, the time
and location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding of guilt or
judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will
follow.
3. The Requesting State shall be notified without delay of the disposition
of its application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody
upon the expiration of sixty (60) days from the date of arrest pursuant to
this Treaty if the executive authority of the Requested State has not
received the formal request for extradition and the supporting documents
required in Article 7." (emphasis supplied)
In relation to the above, Section 20 of P.D. No. 1069 provides:
"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state
may, pursuant to the relevant treaty or convention and while the same
remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.

(2) The order and notice as well as a copy of the warrant of arrest, if
issued, shall be promptly served each upon the accused and the attorney
having charge of the case." (emphasis supplied)

(c) The Director of the National Bureau of Investigation or any official

acting on his behalf shall upon receipt of the request immediately secure a
warrant for the provisional arrest of the accused from the presiding judge
of the Court of First Instance of the province or city having jurisdiction of
the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the
Secretary of Foreign Affairs shall inform the requesting state of the result
of its request.

It is evident from the above provision that a warrant of arrest for the
temporary detention of the accused pending the extradition hearing may
only be issued by the presiding judge of the extradition court upon filing
of the petition for extradition. As the extradition process is still in the
evaluation stage of pertinent documents and there is no certainty that a
petition for extradition will be filed in the appropriate extradition
court, the threat to private respondents liberty is merely hypothetical.

(d) If within a period of 20 days after the provisional arrest the Secretary
of Foreign Affairs has not received the request for extradition and the
documents mentioned in Section 4 of this Decree, the accused shall be
released from custody." (emphasis supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide
that private respondent may be provisionally arrested only pending
receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to the
DOJ. It is undisputed that until today, the United States has not requested
for private respondents provisional arrest. Therefore, the threat to private
respondents liberty has passed. It is more imagined than real.
Nor can the threat to private respondents liberty come from Section 6 of
P.D. No. 1069, which provides:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of
Notices.- (1) Immediately upon receipt of the petition, the presiding judge
of the court shall, as soon as practicable, summon the accused to appear
and to answer the petition on the day and hour fixed in the order. [H]e
may issue a warrant for the immediate arrest of the accused which may
be served anywhere within the Philippines if it appears to the presiding
judge that theimmediate arrest and temporary detention of the accused
will best serve the ends of justice. . .

Sixth. To be sure, private respondents plea for due process deserves

serious consideration involving as it does his primordial right to liberty. His
plea to due process, however, collides with important state interests
which cannot also be ignored for they serve the interest of the greater
majority. The clash of rights demands a delicate balancing of interests
approach which is a "fundamental postulate of constitutional law."25The
approach requires that we "take conscious and detailed consideration of
the interplay of interests observable in a given situation or type of
situation."26 These interests usually consist in the exercise by an individual
of his basic freedoms on the one hand, and the governments promotion
of fundamental public interest or policy objectives on the other.27
In the case at bar, on one end of the balancing pole is the private
respondents claim to due process predicated on Section 1, Article III of
the Constitution, which provides that "No person shall be deprived of life,
liberty, or property without due process of law . . ." Without a bubble of
doubt, procedural due process of law lies at the foundation of a civilized
society which accords paramount importance to justice and fairness. It has
to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that
the Court should give more weight to our national commitment under the
RP-US Extradition Treaty to expedite the extradition to the United States
of persons charged with violation of some of its laws. Petitioner also
emphasizes the need to defer to the judgment of the Executive on matters

relating to foreign affairs in order not to weaken if not violate the principle
of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at
its evaluation stage, the nature of the right being claimed by the private
respondent is nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greater weight to the interests espoused by the
government thru the petitioner Secretary of Justice. In Angara v.
Electoral Commission, we held that the "Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government."28 Under our
constitutional scheme, executive power is vested in the President of the
Philippines.29 Executive power includes, among others, the power to
contract or guarantee foreign loans and the power to enter into
treaties or international agreements.30 The task of safeguarding that these
treaties are duly honored devolves upon the executive department which
has the competence and authority to so act in the international arena.31 It
is traditionally held that the President has power and even supremacy
over the countrys foreign relations.32 The executive department is aptly
accorded deference on matters of foreign relations considering the
Presidents most comprehensive and most confidential information about
the international scene of which he is regularly briefed by our diplomatic
and consular officials. His access to ultra-sensitive military intelligence
data is also unlimited.33 The deference we give to the executive
department is dictated by the principle of separation of powers. This
principle is one of the cornerstones of our democratic government. It
cannot be eroded without endangering our government.
The Philippines also has a national interest to help in suppressing crimes
and one way to do it is to facilitate the extradition of persons covered by
treaties duly entered by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime
prevention are undergoing universalization. One manifest purpose of this
trend towards globalization is to deny easy refuge to a criminal whose
activities threaten the peace and progress of civilized countries. It is to the
great interest of the Philippines to be part of this irreversible movement in
light of its vulnerability to crimes, especially transnational crimes.

In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right to
due process at all throughout the length and breadth of the extrajudicial
proceedings. Procedural due process requires a determination of what
process is due, when it is due, and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be "condemned
to suffer grievous loss."34 We have explained why an extraditee has no
right to notice and hearing during the evaluation stage of the extradition
process. As aforesaid, P.D. No. 1069 which implements the RP-US
Extradition Treaty affords an extraditee sufficient opportunity to meet the
evidence against him once the petition is filed in court. The time for the
extraditee to know the basis of the request for his extradition is merely
moved to the filing in court of the formal petition for extradition. The
extraditee's right to know is momentarily withheld during the evaluation
stage of the extradition process to accommodate the more compelling
interest of the State to prevent escape of potential extraditees which can
be precipitated by premature information of the basis of the request for
his extradition. No less compelling at that stage of the extradition
proceedings is the need to be more deferential to the judgment of a coequal branch of the government, the Executive, which has been endowed
by our Constitution with greater power over matters involving our foreign
relations. Needless to state, this balance of interests is not a static but a
moving balancewhich can be adjusted as the extradition process moves
from the administrative stage to the judicial stage and to the execution
stage depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondent's privilege of notice and
hearing is a soft restraint on his right to due process which will not deprive
him of fundamental fairness should he decide to resist the request for his
extradition to the United States. There is no denial of due process as long
as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the due process
clause would not suffice to resolve the conflicting rights in the case at bar.
With the global village shrinking at a rapid pace, propelled as it is by

technological leaps in transportation and communication, we need to

push further back our horizons and work with the rest of the civilized
nations and move closer to the universal goals of "peace, equality, justice,
freedom, cooperation and amity with all nations."35 In the end, it is the
individual who will reap the harvest of peace and prosperity from these
efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The
Decision in the case at bar promulgated on January18, 2000 is REVERSED.
The assailed Order issued by the public respondent judge on August 9,
1999 is SET ASIDE. The temporary restraining order issued by this Court on
August 17, 1999 is made PERMANENT. The Regional Trial Court of Manila,
Branch 25 is enjoined from conducting further proceedings in Civil Case
No. 99-94684. SO ORDERED
G.R. No. 45815 May 18, 1990
PEOPLE OF THE PHILIPPINES, vs. LIBERTAD LAGON and HON. JUDGE
ISIDRO O. BARRIOS, AS PRESIDING JUDGE OF THE CITY COURT OF ROXAS
CITY,
On 7 July 1976, a criminal information was filed with the City Court of
Roxas City and docketed as Criminal Case No. 7362, charging private
respondent Libertad Lagon with the crime of estafa under paragraph 2(d)
of Article 315 of the Revised Penal Code. The information charged that the
accused had allegedly issued a check in the amount of P4,232.80 as
payment for goods or merchandise purchased, knowing that she did not
have sufficient funds to cover the check, which check therefore
subsequently bounced.
The case proceeded to trial and the prosecution commenced the
presentation of its evidence. However, in an Order dated 2 December
1976, the City Court dismissed the information upon the ground that the
penalty prescribed by law for the offense charged was beyond the court's
authority to impose. The judge held that the jurisdiction of a court to try a
criminal action is determined by the law in force at the time of the
institution of the action, and not by the law in force at the time of the
commission of the crime. At the time of the alleged commission of the

crime in April 1975, jurisdiction over the offense was vested by law in the
City Court. However, by the time the criminal information was filed,
paragraph 2(d) of Article 315 of the Revised Penal Code had already been
amended and the penalty imposable upon a person accused thereunder
increased, which penalty was beyond the City Court's authority to impose.
Accordingly, the court dismissed the information without prejudice to its
being refiled in the proper court.
Hence this Petition for Review brought by the People, arguing that the City
Court of Roxas City had jurisdiction over Criminal Case No. 7362 and that it
had erred in issuing its Order dismissing the case. Because the Petition for
Review was signed by the City Fiscal and Assistant City Fiscal of Roxas City
as counsel for the People, the Court referred the petition to the Office of
the Solicitor General for comment. Responding to the Court's resolution,
the then acting Solicitor General Vicente Mendoza stated that the Office
of the Solicitor General, having been previously consulted by the Assistant
City Fiscal of Roxas City, agreed with the position taken by the latter that
the City Court had jurisdiction over the criminal case involved, and asked
that the petition be given due course.
After deliberation on the instant Petition for Review, the Court considers
that petitioner has failed to show that the City Court had committed
reversible error in dismissing the criminal information in Criminal Case No.
7362 without prejudice to its refiling in the proper court.
Under the penultimate paragraph of Section 87 of the Judiciary Act of
1948, as amended, the law governing the subject matter jurisdiction of
municipal and city courts in criminal cases in 1975 and 1976, "[municipal
judges in the capitals of provinces and sub-provinces and judges of city
courts shall have like jurisdiction as the Court of First Instance to try
parties charged with an offense within their respective jurisdictions, in
which the penalty provided by law does not exceed prision correccional or
imprisonment for not more than six (6) years or fine not exceeding
P6,000.00 or both . . . ." It appears that at the time of the commission of
the offense charged on 5 April 1975, the penalty imposable for the offense
charged under paragraph 2(d) in relation to the third sub-paragraph of the
first paragraph, Article 315 of the Revised Penal Code, was arresto mayor

in its maximum period to prision correccional in its minimum period; at

that time therefore, the offense clearly fell within the jurisdiction of the
City Court of Roxas City.
At the time of the institution of the criminal prosecution on 7 July 1976,
the penalty imposable for the offense charged in Criminal Case No. 7362
had been increased by P.D. No. 818 (effective 22 October 1975) to prision
mayor in its medium period.
It is firmly settled doctrine that the subject matter jurisdiction of a court in
criminal law matters is properly measured by the law in effect at the time
of the commencement of a criminal action, rather than by the law in effect
at the time of the commission of the offense charged. 1 Thus, in
accordance with the above rule, jurisdiction over the instant case
pertained to the then Court of First Instance of Roxas City considering that
P.D. No. 818 had increased the imposable penalty for the offense charged
in Criminal Case No. 7362 to a level-in excess of the minimum penalty
which a city court could impose.
The real question raised by the petitioner is: would application of the
above-settled doctrine to the instant case not result in also applying
Presidential Decree No. 818 to the present case, in disregard of the rule
against retroactivity of penal laws? Article 22 of the Revised Penal Code
permits penal laws to have retroactive effect only "insofar as they favor
the person guilty of a felony, who is not a habitual criminal, . . . " We do
not believe so.
In the first place, subject-matter jurisdiction in criminal cases is
determined by the authority of the court to impose the penalty imposable
under the applicable statute given the allegations of a criminal
information. In People v.Purisima, 2 the Court stressed that:
xxx xxx xxx
. . . The issue here is one of jurisdiction, of a court's legal competence to
try a case ab origine. In criminal prosecutions, it is settled that the
jurisdiction of the court is not determined by what may be meted out to
the offender after trial, or even by the result of the evidence that would be
presented at the trial, but by the extent of the penalty which the law

imposes for the misdemeanor, crime or violation charged in the complaint.

If the facts recited in the complaint and the punishment provided for by
law are sufficient to show that the court in which the complaint is
presented has jurisdiction, that court must assume jurisdiction. 3 (Citations
omitted; Emphasis supplied.)
The same rule was set forth and amplified in People v. Buissan, 4 in the
following terms:
xxx xxx xxx
. . . in criminal prosecutions, jurisdiction of the court is not determined by
what may be meted out to the offender after trial (People v. Cuello, 1 SCRA
814) or even by the result of the evidence that would be presented during
the trial (People v. Co Hick 62 Phil. 503) but by the extent of the penalty
which the law imposes, together with other legal obligations, on the basis
of the facts as recited in the complaint or information (People v. Purisima,
69 SCRA 347) constitutive of the offense charged, for once jurisdiction is
acquired by the court in which the information is filed, it is retained
regardless whether the evidence proves a lesser offense than that charged
in the information (People v. Mision, 48 O.G. 1330) 5 (Emphasis supplied.)
Thus, it may be that after trial, a penalty lesser than the maximum
imposable under the statute is proper under the specific facts and
circumstances proven at the trial. In such a case, that lesser penalty may
be imposed by the trial court (provided it had subject-matter jurisdiction
under the rule above referred to) even if the reduced penalty otherwise
falls within the exclusive jurisdiction of an inferior court.
In People v. Buissan, 6 the Court also said:
xxx xxx xxx
. . . It is unquestionable that the Court of First Instance, taking cognizance
of a criminal case coming under its jurisdiction, may, after trial, impose a
penalty that is proper for a crime within the exclusive competence of a
municipal or city court as the evidence would warrant. It may not be said,
therefore, that the Court of First Instance would be acting without
jurisdiction if in a simple seduction case, it would impose penalty of not

more than six months of imprisonment, if said case, for the reason already
adverted to, be held to fall under the jurisdiction of the Court of First
Instance, not a city or municipal court. 7 (Emphasis supplied.)

cause the obstruction of the administration of justice. Hence, a

clarification and a restatement of some of the principles therein involved
are in order.

In the case at bar, the increased penalty provided for the offense charged
in Criminal Case No. 7362 by P.D. No. 818 (prison mayor in its medium
period) is obviously heavier than the penalty provided for the same
offense originally imposed by paragraph 2(d) of Article 315 of the Revised
Penal Code (up to prision correccional in its minimum period).

In this case, which involved a prosecution in the Court of First Instance,

the Court ruled, inter alia, that the fiscal's duty to direct and control the
prosecution of criminal cases requires that he must be present during the
proceedings; and that evidence presented by the private prosecutor at a
hearing, at which neither the fiscal nor his assistant or duly authorized
special counsel was officially present, cannot be considered as evidence
for the People of the Philippines. This pronouncement, as can be clearly
deduced therefrom, applies to the trial and prosecution of criminal cases
before the Courts of First Instance, Criminal Circuit Courts, and City Courts
(which are provided by law with their own City Fiscals) only, and not to the
municipal courts.

Should the criminal information be refiled in the proper court, that is, the
proper Regional Trial Court, that court may not impose that more onerous
penalty upon private respondent Libertad Lagon (assuming the evidence
shows that the offense was committed before 22 October 1975). But the
Regional Trial Court would remain vested with subject-matter jurisdiction
to try and decide the (refiled) case even though the penalty properly
imposable, given the date of the commission of the offense charged,
should be the lower penalty originally provided for in paragraph 2(d) of
Article 315 of the Revised Penal Code which is otherwise within the
exclusive jurisdiction of the City Court of Roxas City. In other words, the
circumstance that P.D. No. 818 would be inapplicable to the refiled case
would not result in the Regional Trial Court losing subject-matter
jurisdiction, nor in the case falling back into the City Court's exclusive
jurisdiction.
WHEREFORE, the Court Resolved to DENY the Petition for Review for lack
of merit. The Order dated 2 December 1976 of the public respondent
Presiding Judge of the City Court of Roxas City is hereby AFFIRMED. No
costs.
G.R. No. L-39962 March 3, 1977
THE PEOPLE OF THE PHILIPPINES, vs. RICARDO BERIALES, BENEDICTO
CUSTODIO and PABLITO CUSTODIO,
RESOLUTION
The Court's attention has been called to the fact that the decision in this
case has been interpreted in prosecution circles in such manner as may

The procedure in the trial of criminal cases before the municipal courts
and City Courts which do not have their own City Fiscals has not in any
way been altered or modified by the pronouncement in this case. Under
Sec. 2, Rule 110 1 of the Revised Rules of Court, and in the light of the
ruling in the cases of P.P.I. vs. Alvarez and P.P.I. vs. Perez, et al., 2 police,
constabulary, and other peace or law enforcement officers and private
prosecutors may prosecute criminal cases in the said courts, but this
authority ceases upon actual intervention of the provincial or City Fiscal or
their assistants, or upon the elevation of the case to the Court of First
Instance.
G.R. No. L-38634 June 20, 1988
REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE PHILIPPINES), vs.HON.
DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I, Camarines Sur,
ARISTON ANADILLA, RAFAEL ANADILLA and JOSE ANADILLA,
This is a petition for review on certiorari of the order * of the Court of First
Instance of Camarines Sur, 10th Judicial District, Branch I, dated 20 March
1974, dismissing motu proprio Criminal Case No. L-244, entitled "People of
the Philippines, Complainant versus Ariston Anadilla, Rafael Anadilla and

Jose Anadilla, Accused," as well as of the order dated 22 April 1974 of the
same court denying the motion for reconsideration of said earlier order.
The facts are not disputed.
On 10 August 1964, an information for Attempted Homicide was filed by
the Provincial Fiscal of Camarines Sur against accused-private respondents
Rafael Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was set
on 11 and 12 March 1974. The hearing set on 11 March 1974 was,
however, postponed in view of the absence of one of the accused,
respondent Rafael Anadilla who had not yet been arrested by the police
authorities. On the same date, the court a quo issued an order for the
arrest of said accused, and at the same time set the trial of the case for 29
and 30 July 1974.
On 20 March 1974, the court a quo issued the now assailed order which
reads:
Considering that the offended party, Jose Dadis is no longer interested in
the further prosecution of this case and there being no objection on the
part of the accused Ariston Anadilla, Rafael Anadilla and Jose Anadilla, this
case is hereby DISMISSED with costs de oficio.
Consequently, the order of arrest issued by this Court against the accused
Rafael Anadilla dated March 11, 1974, is hereby ordered lifted and has no
force and effect.
The bail bond posted for the provisional liberty of the accused is hereby
ordered cancelled.
In the case of Ariston Anadilla and Jose Anadilla, the Provincial Warden is
hereby ordered to release said accused from their detention immediately
upon receipt of this order.
SO ORDERED. 1
The affidavit of desistance, relied upon by the aforequoted order, was
executed by the offended party on 20 March 1974 and subscribed and
sworn to before the branch Clerk of Court Atty. R.B. Torrecampo. It
alleged, among others, that:

That he was the complainant in Criminal Case No. L-244, entitled, People
vs. Ariston Anadilla, et al., for Attempted Homicide, which case is pending
before the first branch of this Court; that he is no longer interested in the
further prosecution of this case and that he has already forgiven the
accused for their acts; that his material witnesses could no longer be
contacted and that without their testimonies, the guilt of the accused
cannot be proven beyond reasonable doubt, and that in view of these
circumstances, he requests the Prosecuting Fiscal for the dismissal of the
said case. 2
The Provincial Fiscal moved to reconsider the order of dismissal. This was
denied by the court a quo in an order dated 22 April 1974. 3 This petition
was thereupon filed before this Court.
The issue in this petition is whether the courta a quo may dismiss a
criminal case on the basis of an affidavit of desistance executed by the
offended party, but without a motion to dismiss filed by the prosecuting
fiscal.
The issue presented is not novel. In Crespo v. Mogul, 4 promulgated on 30
June 1987, the Court had occasion to state the rule in regard to the
respective powers of the prosecuting fiscal and the court, after the
complaint or information has been filed in court. In said case, the issue
raised was whether the trial court, acting on a motion to dismiss a criminal
case filed by the Provincial Fiscal upon instructions of the Secretary of
Justice to whom the case was elevated for review, may refuse to grant the
motion and insist on the arraignment and trial of the case on the merits.
In the Crespo case, an information for Estafa had already been filed by the
Assistant Fiscal before the Circuit Criminal Court of Lucena City.
Arraignment of the accused and trial of the case were, however, deferred
because of a pending appeal by the accused/respondent to the Secretary
of Justice. Reversing the resolution of the Office of the Provincial Fiscal,
the Undersecretary of Justice directed the fiscal to move for immediate
dismissal of the information filed against the accused. Upon such
instructions, the Provincial Fiscal filed a motion to dismiss for insufficiency
of evidence. The Judge denied the motion and set the arraignment. On a
certiorari recourse to the Court of Appeals, the petition was dismissed.

Review of the Court of Appeals decision was then sought by the accused
with this Court, raising the issue previously stated herein, Resolving, the
Court held:
xxx xxx xxx
The filing of a complaint or information in Court initiates a criminal action.
The Court thereby acquires jurisdiction over the case, which is the
authority to hear and determine the case. When after the filing of the
complaint or information a warrant for the arrest of the accused is issued
by the trial court and the accused either voluntarily submitted himself to
the Court or was duly arrested, the Court thereby acquired jurisdiction
over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be
filed in court or not [sic], once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the Court. 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.
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 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." (Emphasis supplied). 5
In the case at bar, the Court has taken note that before the case was set
for trial, almost ten (10) years had elapsed from the date of filing of the
information. It was not, therefore, unusual that the complainant-offended
party, in his affidavit of desistance manifested that his material witnesses
could no longer be contacted, but, without their testimony, the guilt of the
accused could not be proved beyond reasonable doubt.
The prosecuting fiscal in his motion for reconsideration of the order
dismissing the case, obviously believed that despite such manifestation of
the complainant, he (fiscal) could prove the prosecution's case.
To avoid similar situations, the Court takes the view that, while
the Crespo doctrine has settled that the trial court is the sole judge on
whether a criminal case should be dismissed (after the complaint or
information has been filed in court), still, any move on the part of the
complainant or offended party to dismiss the criminal case, even if
without objection of the accused, should first be referred to the
prosecuting fiscal for his own view on the matter. He is, after all, in control
of the prosecution of the case and he may have his own reasons why the
case should not be dismissed. It is only after hearing the prosecuting
fiscal's view that the Court should exercise its exclusive authority to
continue or dismiss the case.
WHEREFORE, the petition is hereby DISMISSED. Without costs. SO
ORDERED.
G.R.

No.

78492.

May

PEOPLE OF THE PHILIPPINES, v. DICK OCAPAN,

29,

1987.]

Accused-appellant Dick Ocapan and Joselyn Ocapan, the woman who lived
with him in an ostensible marital relationship, were charged on March 11,
1985 before the Regional Trial Court of Lanao del Norte at Iligan City with
the complex crime of rape with serious illegal detention.

Yupo, a minor and who was working as househelper, of the said accused;
that thereafter, in order to prevent the said Arlene Yupo from reporting to
the proper authorities, detained and deprived her of her liberty for more
than five (5) days.

The case against Joselyn Ocapan was dismissed while Dick Ocapan was
convicted and sentenced accordingly for the crime of serious illegal
detention. The decision of the trial court was appealed to the Court of
Appeals which elevated its decision to this Court for final determination in
accordance with Section 13 of Rule 124 of the Rules of Court which
provides:

"Later, on motion of the City Fiscal, the trial court dismissed the case
against Joselyn Ocapan on May 23, 1985 on the ground that there was no
prima facie case against her. The case proceeded with respect to Dick
Ocapan who pleaded not guilty to the charge. Trial was thereafter held.
The prosecution versions is as follows:
"The offended party, Arlene Yupo, was househelper of the accusedappellant, Dick Ocapan, and the latters common-law wife, Joselyn
Ocapan. In the evening of January 17, 1985, Joselyn Ocapan made Arlene
drink half a glass of Tanduay Rhum, as a result of which she felt drowsy.
She therefore went to bed, but as she was about to fall asleep, somebody
knocked on the door. When she opened it, she saw the accused-appellant
Dick Ocapan. Dick Ocapan had a knife and threatened to kill her if she
shouted. He pushed her to the floor, placed himself on top of her, tore her
blouse and fondled her breasts. He then pulled up her skirt, kissed her,
and pulled down her underwear and inserted his finger into her vagina.
Arlene said she lost consciousness and when she came to, she felt some
pain and found her blanket stained with blood. The accused, who was still
in the room, gave her money and warned her not to tell anybody about
the incident, or he would kill her.

"Whenever a Criminal Cases Division should be of the opinion that the

penalty of death or life imprisonment should be imposed in a case, the
said Division after discussion of the evidence and the law involved, shall
render judgment imposing the penalty of either death or reclusion
perpetua as the circumstances warrant, refrain from entering judgment
and forthwith certify the case and elevate the entire record thereof to the
Supreme Court for review."
and with the ruling in People v. Daniel (86 SCRA 511).
The decision of the Court of Appeals penned by Associate Justice Vicente
Mendoza and concurred in by Associate Justices Josue N. Bellosillo and
Hector C. Fule reads as follows:
"The accused-appellant, Dick Ocapan, and his common-law wife, Joselyn
Ocapan, were accused of rape with serious illegal detention in the
Regional Trial Court of Lanao Del Norte. The information, dated March 11,
1985, alleged:
That on or about January 17, 1985, in the City of Iligan, Philippines, and
within the jurisdiction of this Honorable Court, Accused Dick Ocapan
conspiring and confederating with his common-law wife, Joselyn O.
Ocapan, did then and there wilfully, unlawfully and feloniously and by
means of force and intimidation have carnal knowledge with one Arlene

"The next day, Arlene told Joselyn about the incident. Joselyn told her not
to tell anybody and asked her to stay, but as she insisted on going home,
Joselyn slapped her. Joselyn locked her inside a room whose only window
was closed. According to Arlene, the ground below was muddy and there
were many broken glasses, making it dangerous for her to jump to the
ground. Besides, the accused and Joselyn guarded her. Arlene said she was
not allowed to go out, except to go to the toilet. However, as she refused
to eat, she became weak and so, on January 23, 1985, after five days of
detention, the accused-appellant finally released her. According to Arlene,
she stayed at the Cristan Commercial until January 29, 1985, when she
saw her aunt, Saturnina Dagting, passing by and called her to tell her what

had happened to her. At 7:00 in the evening of that day, she was taken by
her mother and her aunt to the police station where she reported the
incident. Later she was examined by Dr. Carmina Barte, who found that
the hymen had healed lacerations at 1.4 and 6 oclock positions, and that
such lacerations could have been caused from one week to one year
before.
"On the other hand, the defense presented evidence to show that Arlene
Yupo and the accused-appellant were lovers and that Arlene complained
to the police only because her relationship with the accused-appellant had
been discovered by the latters common-law wife, Joselyn Ocapan, and
that it is not true that Arlene Yupo bad been detained. According to the
accused-appellant, Arlene and he became lovers in September, 1984 and
that they first had sexual intercourse on September 20, 1984, after which
he said he found that Arlene was no longer a virgin. The accused-appellant
said he wanted to go to bed with Arlene on January 17, 1985 but it was
Arlenes menstrual period. According to him, in the evening of January 19,
1985, as they were about to have sex, his common-law wife, Joselyn,
suddenly came home from the Molave Disco House, where she was an
entertainer and noticed that Dick was perspiring. This prompted her to go
to the room of Arlene, where she found her completely naked under the
blanket.
"Arlene denied having an affair with the accused-appellant but the latter
admitted that he and Arlene were lovers. On January 20, 1985, Joselyn
drove the accused-appellant out of the house, but kept Arlene because
she needed her to look after their children. Joselyn finally dismissed
Arlene on January 23, 1985.
"The defense also presented Juliet Pasco, who said that twice, on January
19, 1985 and January 20, 1985, she and Arlene and a certain Caloy went to
a place called Abuno to gather young coconuts and, on January 21, they
went to the Big Dipper Restaurant where they had beer, with Arlene
paying the bill. Obviously, the purpose of her testimony was to show that
Arlene was under no restraint at a time when she claimed she was
detained. This witness said that on January 22, 1985 she accompanied

Arlene to Kanaway to see a herb doctor who found her to be pregnant and
prescribed a drink (camias) which made Arlene menstruate. On January
23, 1985 she said, Arlene transferred to the Cristan Commercial.
"On October 7, 1985 the trial court rendered judgment dismissing the rape
charge on the ground that the offended party had not filed a complaint,
but finding the accused-appellant guilty of serious illegal detention. The
dispositive portion of the trial courts decision states:
In view of the foregoing, considering that the prosecution failed to
present a signed complaint of the offended party the case of rape against
the accused is hereby dismissed. However, with regards to the crime of
serious illegal detention, the accused is hereby sentenced after
considering the indetermine sentence law and there being no mitigating
nor aggravating circumstance, to suffer a penalty of from 12 years and 1
day of reclusion temporal as minimum to reclusion perpetua as maximum
and to indemnify the offended party the sum of P20,000.00 in moral and
exemplary damages.
"Hence, this appeal. The accused-appellant contends:
"(1) That the information against him was filed by the City Fiscal without
giving him the right to be heard in a preliminary investigation and that his
motion for reinvestigation was summarily denied by the trial court.
"(2) That the evidence does not support the finding that he detained the
offended party Arlene Yupo from January 17 to January 23, 1985.
"(3) That since the information was for the complex crime of rape with
serious illegal detention, it was error for the trial court to split the crime
into two separate offenses of rape and serious illegal detention.
"We shall deal with these contentions in their order.
"First. The record shows that on March 6, 1985 the accused-appellant,
with the assistance of counsel, filed a written waiver of the right to the

Second Stage of Preliminary Investigation with the Municipal Trial Court.

Accordingly, the case was remanded to the Fiscals Office for the filing of
the corresponding information in the Regional Trial Court. (Rec. pp. 11-12)
Nonetheless, a reinvestigation was conducted by the City Fiscal which on
April 25, 1985 recommended the dismissal of the case with respect to
Joselyn Ocapan. On the basis of this recommendation, the trial court
ordered the case against Joselyn Ocapan, dismissed. There is, therefore,
no basis for the accused-appellants claim that he was denied the right to a
preliminary investigation.

"COURT What did she do to you, if any?

"Moreover, it appears that on May 24, 1985, the accused-appellant

pleaded to the charge and took no further step to raise the question of
denial of the right to preliminary investigation either to this Court or to the
Supreme Court. Instead, he entered into trial. He thus waived whatever
right he might have to preliminary investigation. (People v. Lambino, 103
Phil. 504 (1958); People v. Magpalo, 70 Phil. 176 (1940); People v. Oliveria,
67 Phil. 427 (1939))

"A: Five days

"A: She slapped me.

"COURT: After slapping you, what else did she do to you?
"A: I was detained by her inside the room.
"COURT: How many days were you locked inside the room?

"RECORD: Witness is on the brink of tears.

"COURT: From Jan. 18 when you were locked inside the room, did you
notice the accused Dick Ocapan?
"A: He was there.

"Second. The accused-appellant cites the testimony of the offended party,

Arlene Yupo, to the effect that (she) was detained by her (Joselyn Ocapan)
inside the room (TSN, p. 10, Aug. 15, 1985). The accused-appellant argues
that, therefore, it was not he who detained Arlene. The accused-appellant
also cites the testimony of Arlene that He (the accused-appellant) usually
went out during the evening (Id. p. 13) to show that he could not have
kept watch over her during her detention.
"The testimony of Arlene Yupo is taken out of context. What Arlene said
was this:jgc:chanrobles.com.ph
"COURT
When you insisted that you will go home, what was the reply of Joselyn
Ocapan?
"A: She refused.

"COURT: What was Dick Ocapan doing, if any?

"A: They were watching outside.
(TSN, p. 10, Aug. 15, 1985)
"On the other hand, when Arlene said that Dick Ocapan, the accusedappellant, usually went out during the evening, she was answering the
question of the trial court as to the work of the Accused-Appellant. She
was not referring to the period of her detention. (TSN, p. 13, Aug. 15,
1985)
"The accused-appellant also contends: Since the accused was no longer at
his residence where Arlene Yupo claimed to have been detained, how
could he be held liable for illegal detention? That the accused-appellant
was allegedly driven out of his house on January 20, 1985 was his own
testimony (TSN, p. 6, September 19, 1985) and that of his wife, Joselyn

(TSN, p. 21), Aug. 16, 1985). As far as the prosecution is concerned, Dick
Ocapan was not driven out of their house. On the contrary, the offended
party testified that she could not leave the house of the accused-appellant
because the latter and his wife were guarding her.
"Nor is there merit in the claim of the accused-appellant that the trial
court relied on the weakness and supposed inconsistencies of the defense
evidence rather than the strength of the prosecution evidence. In finding
the accused-appellant guilty, the trial court stated:
The prosecution presented sufficient proof showing that Arlene Yupo was
raped by the accused Dick Ocapan on January 17, 1985 and detained up to
January 23, 1985 but had to allow her to leave the house because by then
Arlene Yupo was not eating anymore and was becoming weak presumably
because of shock suffered by her. The accused denied having raped Arlene
Yupo and claimed that he did not even have sexual intercourse with her
on January 17, 1985 because Arlene Yupo was menstruating and had
sexual intercourse only on January 19, 1985 and that was the date when
they were discovered by his common law wife. He also claims that Arlene
Yupo had been his sweetheart since September 15, 1984 and they had
sexual intercourse for several times. However, the court finds that the
testimonies of the witnesses for the accused to be incredible and
contradictory. The accused claims that he did not have sexual intercourse
with Arlene Yupo on January 17, 1985 because the latter was
menstruating but the witness for the accused Juliet Pasco testified that on
January 22, 1985 they went to see a quack doctor because of the delayed
menstruation of Arlene Yupo and it was only after Arlene Yupo drank
camias on January 22, 1985 that her menstruation came. According to
Joselyn Ocapan, the common law wife of Dick Ocapan, she discovered
Arlene Yupo and the accused had sexual intercourse on January 19, 1985
when she went home from her work as a hostess in the Molave Disco
House and she confronted Arlene Yupo at 9:00 oclock in the morning and
that she did not dismiss Arlene Yupo until January 23, 1985 because there
was no one who could take care of her children in the house if she would
drive her away. Yet the witness Juliet Pasco testified that on January 19,
1985 they went on an excursion to Abuno to eat young coconuts, going

back there again on January 20 to get coconuts which were eaten by Dick
Ocapan; that on January 21, 1985 they went drinking beer at the Big
Dipper at 7:00 oclock in the evening and stayed for two hours; that on
January 22, 1985 they went to Kanaway to consult a quack doctor about
the condition of Arlene Yupo. Certainly this is in conflict with the
testimony of Joselyn Ocapan who claimed that she confronted Arlene
Yupo regarding her relationship with Dick Ocapan on January 20, 1985 and
would not dismiss Arlene Yupo because she needed her to watch her
children. If it is true that Arlene Yupo was confronted regarding her illicit
relationship with Dick Ocapan on January 19, 1985 she would not have
gone gallivanting to Abuno with the witness Juliet Pasco going back there
again on January 20, 1985 and then on January 21, going out to drink. If
the claim of Joselyn Ocapan that she did not dismiss immediately Arlene
Yupo because she needed her to watch her children were true, then
Arlene Yupo could not have gone to Abuno on January 19 and 20 and go
out again in the evening of January 21 and 22 with Juliet Pasco as she
would be watching the children. Not only did the testimonies of Juliet
Pasco and Joselyn Ocapan contradict each other but their testimonies
were so full of inconsistencies that it could not merit credence. Juliet
Pasco even admitted that she had made several mistakes during the
questioning by the court, mistakes that could not have been made by a
truthful witness. The same thing can be said of Joselyn Ocapan. She stated
that she testified because she loves Dick Ocapan (p. 19, TSN August 16,
1985) but later she also testified that she does not love him anymore (p.
21, TSN, August 16, 1985).chanrobles.com.ph : virtual law library
The accused himself also admitted that there was no motive at all for
Arlene Yupo to charge him for rape because according to him he never
had any quarrel with Arlene Yupo at the time he last saw her up to the
filing of this case against him is so flimsy that it could not merit credence.
According to him Arlene Yupo filed this case against him in order to save
her honor and in order that she would not be put to shame and
embarrassment because their relationship was already known. A woman
would not file a case for rape in order to just save her honor if she was not
really raped because by doing so she would be further exposed to public
ridicule.

jurisdictional.
"Third. The accused-appellant argues that the crime charged in the
information is the complex crime of rape with serious illegal detention and
that since the offended party did not file a complaint for this crime, the
trial court did not acquire jurisdiction. He further claims that, in holding
that the information charged two separate offenses, the trial court
violated his constitutional right to be informed of the nature and cause of
the accusation against him.
"On the other hand, the prosecution argues that the trial court erred in
dismissing the charge for rape because the requirement in Art. 344 of the
Revised Penal Code that the crime of rape must be prosecuted by
complaint of the offended party is not a jurisdictional requirement as held
in Valdepanas v. People, 16 SCRA 871 (1966).
"Neither contention, we believe, is correct. While the information is
indeed entitled For Rape with Serious Illegal Detention, it clearly charges
two separate offenses, namely, rape and serious illegal detention. The
accused-appellant could have objected on the ground of duplicity (Rule
110, sec. 13), but since he did not file a motion to quash on this ground in
accordance with Rule 117, sec. 3(e), he must be deemed to have waived
the objection. (People v. Policher, 60 Phil. 770 [1934]).
"On the other hand, we do not think that the Supreme Court intended to
reverse a uniform course of decisions holding that, with respect to crimes
against chastity, the filing of a complaint by the offended party is
jurisdictional. Valdepenas v. People, supra, which the prosecution cites in
support of its contention that such complaint is not jurisdictional, simply
holds that if the offended party files a complaint for forcible abduction,
the accused can be found guilty under such complaint of abduction with
consent. The fact is that, in that case, both the offended party and her
mother gave their assent to the complaint. Indeed, as the prosecution
acknowledges, in People v. Zurbano, 37 SCRA 565 (1971), decided after
Valdepenas v. People, the Court reiterated the rule that The filing of a
complaint for rape or for any other offense enumerated in Art. 344 of the
Revised Penal Code by the person or persons mentioned therein is

"We hold that the trial court correctly dismissed the rape charge for lack
of complaint by the offended party. (3 Aquino, The Revised Penal Code
1771 [1976]).
"Fourth. The trial court sentenced the accused-appellant to an
indeterminate sentence of 12 years and 1 day of reclusion temporal as
minimum, to reclusion perpetua, as maximum. Because of this and
contending that the evidence against him is insufficient, the accusedappellant petitions to be released on bail.
"The Solicitor General opposes the bail petition and points out that this
case falls under Art. 267, par. 4, of the Revised Penal Code, which
prescribes the penalty of reclusion perpetua to death If the person
kidnapped or detained shall be a minor, female, or a public officer.
Accordingly, the Indeterminate Sentence Law does not apply. In
accordance with Art. 63, par. 2, as there are neither mitigating nor
aggravating circumstances, the penalty to be imposed must be reclusion
perpetua as the lesser penalty.
"This contention is well taken. Since there is no question that Arlene Yupo
was at the time of her illegal detention 18 years old and the guilt of the
accused-appellant has been established beyond reasonable doubt, the
accused-appellant is not entitled to bail.
"WHEREFORE, the decision appealed from is MODIFIED by sentencing the
accused-appellant toreclusion perpetua. In all other respects the decision
is AFFIRMED. Costs against the Accused-Appellant.
"The petition for bail of the accused-appellant is DENIED.
"In accordance with the ruling in People v. Daniel 86 SCRA 511 (1979), let
this case be forthwith elevated to the Supreme Court for final
determination." (Rollo, pp. 70-78).

A careful review of the original records of this case and of the briefs and
various pleadings submitted on appeal shows that the findings of facts and
conclusions of law of the Court of Appeals are correct. We adopt its
decision as our own.
Considering the foregoing, the accused-appellant is sentenced to reclusion
perpetua. The decision of the trial court is affirmed in all other respects
with costs against the accused Appellant. SO ORDERED.
G.R. No. L-58595 October 10, 1983
PEOPLE OF THE PHILIPPINES, vs. HON. RICARDO M. ILARDE, in his
capacity as Presiding Judge, CFI of Iloilo, Br. V, CECILE SANTIBANEZ and
AVELINO T. JAVELLANA,
Petition for review on certiorari of the order of the then Court of First
Instance (now Regional Trial Court) of Iloilo, Branch V, presided by the
respondent Judge Ricardo M. Ilarde, granting the motion to quash the
information in Criminal Case No. 13086, entitled, "People of the
Philippines, plaintiff versus Cecile Santibaez and Avelino T. Javellana
accused."

CONTRARY TO LAW. 1
Annex "A" referred to in the information is the sworn complaint for
adultery filed by Efraim Santibaez against herein private respondents,
Cecile Santibanez and Avelino T. Javellana, with the Integrated National
Police, Iloilo Metro Police District, Iloilo City, on November 4, 1980, which
complaint was immediately forwarded to the Office of the City Fiscal for
preliminary investigation. Said complaint reads:
COMPLAINT
The undersigned accuses ATTY. AVELINO JAVELLANA, a resident of CPU
Compound, Jaro, Iloilo City, and Cecile Santibaez. a resident of Candido
Subdivision, Iloilo City, for the crime of adultery ...
xxx xxx xxx
(Sgd.)
(Signature of complainant)

EFRAIM

SANTIBAEZ

SUBSCRIBED AND SWORN to before me this 4th day of November, 1980 in

the City of Iloilo:

The information in Criminal Case No. 13086 was filed on March 4, 1981 by
City Fiscal Ricardo P. Galvez. It reads:

(Sgd.)
City Fiscal

The undersigned City Fiscal upon sworn complaint originally filed by the
offended party Efraim Santibaez, copies of which are thereto attached as
Annexes "A" and "B" hereby accused CECILE SANTIBAEZ and AVELINO T.
JAVELLANA of the crime of adultery, committed as follows:

Annex "B" of the information is the affidavit-complaint dated November 6,

1980 executed by Efraim Santibaez, sworn to and filed before City Fiscal
Galvez on November 7, 1980, wherein Santibaez recounted in detail the
antecedents which brought about the apprehension in flagrante of
privaterespondents. The same is quoted as follows:

That on or about the 3rd day of November, 1980, in the City of Iloilo,
Philippines, and within the jurisdiction of this Court, said accused Cecile
Santibaez being lawfully married to Efraim Santibaez, which marriage at
that time has not been legally dissolved, with deliberate intent, did then
and there wilfully, maliciously and criminally have sexual intercourse with
her coaccused Avelino T. Javellana, a man not his husband and who in turn
knowing fully well that his co-accused was then lawfully married to Efraim
Santibaez, did then and there wilfully, maliciously and criminally have
sexual intercourse with her.

RICARDO

P.

GALVEZ

I, EFRAIM SANTIBAEZ, of age, married, and a resident of Fundidor Molo,

Iloilo City, after having been duly sworn to according to law depose and
say:
That I am legally married to Cecile Soriano in a Civil Marriage solemnized
by Judge Vicente Santos, City Court of Pasay City on March 22, 1974 but
subsequently remarried in a religious ceremony before Rev. Panfilo T.
Brasil at the Parish Church of La Paz, iloilo City on July 18, 1974, xerox

copies of the aforesaid marriage contracts are hereto attached as Annexes

"A" and "B", forming integral parts of this affidavit;
After our marriage, I built a house for our permanent residence and as our
conjugal home in Fundidor, Molo, Iloilo City and furnished it with all the
comforts well within my means;
At the start of our marriage, I was led to believe by my wife of her total
concern, love and devotion to me valid in turn I lavished her with all the
material comfort at my command and even tried to build up her social
status by sending her as a delegate to the Zonta World Conference at
Washington, D.C. last July, 1980 without any company. As a token of my
love and unfailing trust we went sightseeing and on second honeymoon to
Hongkong only last month.
Sometime during the last week of October, 1980, while I went on my
normal work routine to Passi Sugar Millsite in Passi Iloilo, my son Edmund
took me aside in confidence and told me that he has some very delicate
matters to take up with which may be misinterpreted by me or may be
taken by her in a wrong light; however, he said hat the his valid dignity of
the family is at mistake and I have to know it whatever be the
consequence. After I gave him the go signal, he narrated to her that my
wife Cecile Sorianosos has been unfaithful to me and has been. having
illicit relationship with another man. Of curse, I was taken aback and
stunned so I asked him for the source of his information. He informed me
that our maid Elsa Barios and our driver Loreto Reales had beeen aware of
the relationship and the man usually went to my house and even slept
there whenever I was in Manila. I got angry and blamed our maid and the
driver for not telling me but Edmund told me that they were afraid to tell
because they were threatened. After I have calmed down, I commended
that if I confront my wife about her illicit relationship, she will surely deny
it. So I thought that the best way was to catch her red-handed in the act of
infidelity so that she could not deny it. anymore. I suggested to Edmund to
think of a plan so we can catch his wife red-handed.
After several days of planning we agreed to put our plan of action in
operation on November 3, 1980 since I will be leaving for Manila in the
morning of that day. Our problem was how to catch my wife in the very

act of having sexual intercourse with her lover considering the fact that
our master's room was air-conditioned with all windows framed by glass
jalousies closed and covered by curtains. At first we thought of breaking
down the main door with a sledge hammer so we could take them by
surprise, later we abandoned the Idea because of legal complications,
Finally, I thought of removing a glass of the jalousy so the inside of the
bedroom can be seen from the outside once the curtain can be brushed
aside by means of a thin wire and the persons on bed could be seen clearly
since the bed is on the same level as the opening of the window. After
several experiments whenever my wife was out, I found out that my wife
cannot notice the removal of the glass jalousy since our windows are
screened from the inside of our room.
As pre-arranged, I removed one jalousy glass of the window of our master
room so that the people inside our room could be seen actually from the
outside and the moment my wife and her lover is seen in the act of sexual
intercourse.
Having completed all the plans to effect our plan of operation, I told my
wife that I Qfor Manila on that day. I instructed my son Edmund to inform
me immediately of the result of the plan of action as soon as possible.
Almost midnight of November 3, 1980, I was informed by my daughter-inlaw Rebecca that the operation was successful and resulted in the arrest
of my wife and Atty. Bob Javellana inside our bedroom.
I know Atty. Bob Javellana for quite a time and we have been close friends.
As a friend he has come to our house at Molo Iloilo City oftentimes to
discuss matters about the court case between the Iloilo City Government
and St. Therese Memorial Chapel which is a business which I have given to
my wife Cecile. Atty. Javellana knew that Cecile Sorianosos is my legally
married wife.
When I returned to Iloilo City from Manila on November 4, 1980, I was
shown the photographs taken inside our master bedroom and I am
attaching hereto the photographs which are marked as Annexes "C", "D",
"E", "F", "G", "H", "I" and "J".

That I am formally charging my wife, Cecile Sorianosos and Atty. Bob

Javellana of Qcomplaint against them (pp. 4-5, Original Records).
Sometime in January 1981, i.e., before the conclusion of the preliminary
investigation then being conducted by the Fiscal's Office, Efraim
Santibaez learned that he was sick of cancer and decided to leave for the
United States for medical treatment. Before his departure, he executed a
holographic Will, dated January 10, 1981, a portion of which provided:
I do hereby disinherit my second wife Cecilia Sorianosos of any and all
inheritance she is entitled under the law as my wife on the ground that
she had given cause for legal separation by committing acts of adultery
with Atty. Bob Javellana in the evening of November 3, 1980 in my
conjugal abode at Candido Subdivision and as a result of which I charged
her and Atty. Bob Javellana for adultery with the Fiscal's Office and I filed a
case of legal separation against her in Civil Case No. SP- 11-309 of the
Juvenile and Domestic Relations Court in Iloilo City for which act of
infidelity, I can never forgive her. 2
On January 15, 1981, after several requests for postponement, private
respondents submitted their memorandum to the Fiscal's Office; and on
February 19, 1981, Fiscal Galvez issued a resolution finding the existence
of a prima facie case for adultery against private respondents.
On February 26, 1981, Fiscal Galvez was informed by relatives of Efraim
Santibaez that the latter had died in the United States on February 16,
1981. This notwithstanding, he prepared the information in question on
March 3, 1981, and on the following and filed the same with the Court of
First Instance of Iloilo.
Private respondents filed a motion to quash the information on the
ground that the court did not acquire jurisdiction over the offense
charged, as the offended party had not filed the required complaint
pursuant to the provisions of Article 344 of the Revised Penal Code and
Section 4, Rule 110 of the Rules of Court to the effect that "the crimes of
adultery and concubinage shall not be prosecuted except upon a
complaint filed and the offended spouse,"

Finding merit in the position taken by private respondents, respondent

judge granted the motion and dismissed the case. The city fiscal moved for
a reconsideration, but the same was denied. Hence, the present recourse.
The sole issue to be resolved is whether or not there has been compliance
with the requirement of Article 344 of the Revised Penal Code, reiterated
in Section 4, Rule 110 of the Rules of Court, that "the crimes of adultery
and concubinage shall not be prosecuted except upon a complaint filed by
the offended party "
We rule in the affirmative,
We are aware that in a long line of decisions, 3 this Court has maintained
strict adherence to the requirement imposed by Article 344 of the Revised
Penal Code.
It must be borne in mind, however, that this legal requirement was
imposed "out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public
trial." 4 Thus, the law leaves it to the option of the aggrieved spouse to
seek judicial redress for the affront committed by the erring spouse. And
this, to Our mind, should be the overriding consideration in determining
the issue of whether or not the condition precedent prescribed by said
Article 344 has been complied with. For needless to state, this Court
should be guided by the spirit, rather than the letter, of the law.
In the case at bar, the desire of the offended party, Efraim Santibaez, to
bring his wife and her alleged paramour to justice is only too evident. Such
determination of purpose on his part is amply demonstrated in the
dispatch by which he filed his complaint with the police [annex "A", supra];
the strong and unequivocal statement contained in the affidavit filed with
the Fiscal's Office that "I am formally charging my wife Cecile Sorianosos
and Atty. Bob Javellana of the crime of adultery and would request that
this affidavit be considered as a formal complaint against them" [Annex
"B", supra]; his filing of a complaint for legal separation against Cecile
Santibaez with the local Juvenile and Domestic Relations Court; and
finally, in disinheriting his wife in his Last Will and Testament dated
January 10, 1981.

In quashing the information, respondent judge relied upon Our decision in

People vs. Santos 5 to the effect that a "salaysay" or sworn statement of
the offended party, which prompted the fiscal to conduct a preliminary
investigation and then to file an information in court, was not the
complaint required by Article 344 of the Revised Penal Code.
The ruling in Santos is not applicable to the case at bar. In that case, the
"salaysay" executed by complainant Bansuelo was not considered the
complaint contemplated by Article 344 of the Revised Penal Code because
it was a mere narration of how the crime of rape was committed against
her. However, in the affidavit-complainant submitted by Efraim
Santibaez, the latter not only narrated the facts and circumstances
constituting the crime of adultery, but he also explicitly and categorically
charged private respondents with the said offense. Thus
That I am formally charging my wife Cecile Sorianosos and Atty. Bob
Javellana of the crime of adultery and would request that this affidavit be
considered as a formal complaint against them.
Moreover, in Santos, this Court noted that the information filed by Rizal
Provincial Fiscal Nicanor P. Nicolas "commenced with the statement "the
undersigned fiscal accuses Engracio Santos with the crime of rape," the
offended party not having been mentioned at all as one of the accusers."
In the instant case, however, the information filed by the city fiscal of Iloilo
reads as follows:
The undersigned city fiscal upon sworn statement originally filed by the
offended party Efraim Santibaez, xerox copies of which are hereto
attached as Annexes "A" and "B" ...
Undoubtedly, the complaint-affidavit filed by Santibaez contains all the
elements of a valid complaint, as "it states the names of the defendants,
the designation of the offense by the statute, the acts or omission
complained of as constituting the offense; the name of the offended party,
the approximate time of the commission of the offense, and the place
wherein the offense was committed. 6
What is more, said complaint-affidavit was attached to the information as
an integral part thereof, and duly filed with the court. As held in Fernandez

vs. Lantin, 7 the filing in court of which affidavit or sworn statement of the
offended party, if it contains all the allegations required of a criminal
complaint under Section 5, Rule 110 of the Rules of Court, constitutes
sufficient compliance of the law. Thus:
... in a case where the Fiscal filed an Information charging the accused with
"telling some people ill the neighborhood that said Fausta Bravo (a
married woman) was a paramour of one Sangalang, a man not her
husband", and Fausta Bravo did not subscribe to the complaint this Court
held that the trial court had no jurisdiction over the case. It ruled that
since the accused imputed to Fausta Bravo the commission of adultery, a
crime which cannot be prosecuted cle oficio, the Information filed by the
Fiscal cannot confer jurisdiction upon the court of origin.
lt must be noted, however, that this error could be corrected without
sustaining the motion to quash and dismissing the case. Pursuant to
section I of paragraph (a) of Presidential Decree No. 77, under which the
Assistant City Fiscal conducted the preliminary investigation the statement
of the complainant was sworn to before the aforesaid Investigating Fiscal.
Assuming that the recitals in said worn statement contain all those
required of a complaint under the rules i copy of said verified - statement
of the complainant should be filed With respondent Court in order to
comply with the requirements of Article 360 of the Revised Penal Code;
otherwise, the respondent Fiscal should file with said court a verified
complaint of the offended party
Upon these premises, We cannot but conclude that the adultery charge
against private respondents is being prosecuted "upon complaint filed by
the offended party."
WHEREFORE, the petition is hereby granted. The orders of the Court of
First Instance of Iloilo, Branch V, in Criminal Case No. 13086, dated May 21
and September 14, 1981, are hereby set aside, and respondent judge is
directed to proceed with the trial of the case on the merits. No costs.
SO ORDERED.
G.R. No. 126050

January 16, 2001

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
SPO2 ELEAZAR M. MADALI, SPO2 EUSTAQUIO V. ROGERO, and SPO1
RANDY M. RUBIO, accused-appellants.
MENDOZA, J.:
This is an appeal from the decision1 of the Regional Trial Court, Branch 81,
Romblon, Romblon finding accused-appellants Eleazar M. Madali,
Eustaquio V. Rogero, and Randy M. Rubio, all members of the Philippine
National Police, guilty of the murder of Reynaldo M. Abrenica and
sentencing each of them to reclusion perpetua. Accused-appellants were
also ordered jointly and severally to pay the heirs of the
deceased P50,000.00 as death indemnity, P124,800.00 for loss of earning
capacity, P150,000.00 as moral damages, P150,000.00 as exemplary
damages, P70,000.00 as attorney's fees, P50,000.00 as expenses of
litigation, and P60,000.00 as actual damages, and to pay the costs, without
subsidiary imprisonment in case of insolvency. In accordance with Art. 29
of the Revised Penal Code, accused-appellants' preventive imprisonment
was ordered credited in their favor.1wphi1.nt
The following facts are undisputed:
On February 4, 1992, at around 11 p.m. , Reynaldo Abrenica and his wife
Helen came home at the house of Harry Mindo in Romblon, Romblon
where Reynaldo had some drinks. Helen went to bed ahead of her
husband in their bedroom on the second floor of their house. When Helen
woke up at around 1 a.m., she found that her husband was not beside her.
She looked for him in the bathroom but could not find him there either.
She turned on the light and went to the stairs and there, on the landing of
the stairs, she found her husband lying with his head towards the wall, his
left hand placed on his back and his right arm pinned under his body.2 He
was wearing a white sleeveless undershirt (sando) with a towel over his
bare buttocks. There were feces hanging from his anus. Helen did not find
any trace of blood on the body of her husband nor in the place where it
lay.3 When she touched her husband she found he was dead. Helen
became hysterical and went outside the house for help, crying that her
husband had accidentally fallen from the stairs.4

After it was dressed, Reynaldo's body was loaded in a jeep by neighbors

Joey Salgado, Romeo Ibal, Eduardo Galang, and Landoy Galang so that it
could be taken to the hospital. Segundo Orola, also a neighbor of the
Abrenicas, was going to drive the jeep but found that its headlights were
not functioning. So his wife Orlene Orola and Leonilo Mangua went to the
municipal building to look for another vehicle. They found a tricycle they
could use to guide the jeep. Accused-appellant Eleazar M. Madali, who
was on duty at that time, drove the tricycle. With the tricycle ahead, the
way was lighted for the jeep bearing Reynaldo. However, Reynaldo was
declared dead on arrival in the hospital. An autopsy conducted on
Reynaldo's cadaver by Dr. Vladimir Villaseor of the Philippine National
Police Crime Laboratory showed the following:
FINDINGS:
Body belongs to a fairly nourished, fairly developed previously embalmed
male cadaver.
TRUNK AND EXTREMITIES:
1) Swelling, fronto-parietal region, measuring 9 x 7 cm., along the anterior
midline, superimposed lacerated wound, measuring 1.3 x 0.5 cm.
2) Scalp hematoma, frontal region, measuring 8 x 6 cm., along the
midsagittal line.
3) Scalp hematoma, parietal region, measuring 5 x 4.5 cm. along the
midsagittal line.
4) Area of multiple abrasions, left clavicular region, measuring 7 x 5 cm.,
17 cm. from the anterior midline.
5) Abrasion, proximal 3rd of the left arm, measuring 1.5 x 0.5 cm., 3.5 cm.,
lateral to its posterior midline.
6) Abrasion, proximal 3rd of the right arm, measuring 6 x 1 com., 5 cm.
lateral to its anterior midline.
7) Contusion, middle 3rd of the left thigh, measuring 6 x 3 cm., 2 cm. lateral
to its posterior midline.

8) Contusion, middle 3rd of the left thigh, measuring 6 x 6 cm., 2 cm. lateral
to its anterior midline.

Microsection shows varying degrees of neuronal degeneration and focal

dilated blood vessels, lumen of which are filled by blood fluid.

9) Contusion, proximal 3rd of the left leg, measuring 6 x 4 cm., along its
anterior midline.

Assessment: Cerebral edema and congestion.

10)Contusion, middle 3rd of the right thigh, measuring 3 x 2.5 cm, 6 cm.
medial to its anterior midline.
11)Abrasion, middle 3rd of the right leg, measuring 2 x 0.8 cm., 1 cm.
medial to its anterior midline.
12)Contusion, distal 3rd of the left leg, measuring 2 x 1.5 cm, 2 cm. medial
to its anterior midline.
13)Contusion, distal 3rd of the left leg, measuring 5 x 3 cm., 4 cm. medial to
its anterior midline.
14)Contusion, distal 3rd of the left leg, measuring 2 x 1.5 cm., 2 cm. medial
to its posterior midline.
15)Contusion, distal 3rd of the left leg, measuring 5 x 3 cm., 4 cm. medial to
its posterior midline.
16)Sore, right clavicular region, measuring 7 x 1 cm., 11 cm. from the
anterior midline.
17)Swelling, middle 3rd of the left arm, measuring 13 x 4 cm., 6 cm. medial
to its anterior midline.
PLEURAL, PERICARDIAL AND PERITONEAL CAVITIES:
The pleural, pericardial and peritoneal cavities are free from adhesions
and fluid accumulations.
BRAIN:
The brain is pale white in appearance with shallow sulci and gyri. There are
subdural hemorrhage noted at the anterior lobes of both cerebral
hemispheres. Circle of Willis shows minimal amount of atheromatous
deposits but otherwise patent. Cut section reveals widening of the white
matter and congestion.

LUNGS:
Both lungs are dark gray in color with areas of anthracosis. More
pronounced at the right upper lobe. There is crepitancy on pressure. The
primary and secondary bronchi contain minimal amount of dark reddish
fluid. Serial section shows areas of focal congestion.
Microsection shows severe congestion at the alveolar capillaries and the
pulmonary alveoli are filled with eosinophilic fluid. Focal emphysema
noted. Bronchial smooth muscle wall is slightly thickened and mildly
infiltrated with round cell infiltrates.
Assessment: Pulmonary edema and congestion, moderate to severe
Chronic Bronchitis.
HEART:
The heart is pale reddish brown in color, enveloped in moderate amount
of epicardial fats, with multiple petechial hemorrhages noted in the
surface. Cut section reveals clotted blood embedded on both chambers.
The left ventricular wall measures 1.3 cm. thick while the right ventricular
wall measures 0.5 cm. thick. Valvular leaflets are soft and pliable. Coronary
artery shows minimal amount of atheromatous deposits.
Microsection shows separation of the myocardial muscle fiber by edema
and is mildly infiltrated by round cells. Coronary arteries patent with slight
thickening of its vascular wall.
Assessment: Dilatation, ventricle
Atherosclerosis - 30 40%
LIVER:
The liver is yellowish brown in color, doughy to firm in consistency. A nutmeg liver pattern on section with focal areas of congestion.

Microsection shows focal areas of vacuolation of the hepatic cells. The

sinusodial spaces are filled with red blood cells, mildly infiltrated with
mononuclear cell infiltrates.
Assessment: Fatty changes, liver, moderate
Congestion, liver
KIDNEYS:
Both kidneys are reddish brown in color. Capsules are stripped-off with
difficulty, leaving a fine granular cortical surface. Cut section reveals a
well-defined cortico-medulary junction.
Microsection shows moderate to extensive acute tubular necrosis with
tubular degenerations and focal thickening of its vascular wall.

There are subdural hemorrhages noted on both cerebral hemispheres.

Stomach is full of partially digested food particles consisting mostly of
rice.
CONCLUSION:
Cause of death is Intracranial hemorrhage as a result of traumatic head
injury.5
On December 1, 1995, three years after the death of Reynaldo Abrenica,
this case was filed, after an alleged eyewitness, Mercy Villamor, surfaced
and implicated accused-appellants in the death of Reynaldo. The
information against accused-appellants alleged

SPLEEN:

That in or about the early morning of February 5, 1992, in Romblon,

Romblon, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating with each other, with intent
to kill, and with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously inflict mortal wounds upon the person
of one Reynaldo M. Abrenica thereby causing the latter's death.6

The spleen is dark gray in color, firm and slightly wrinkled. Cut section
reveals congestion.

Accused-appellants pleaded not guilty to the charge, whereupon they

were tried.

Microsection shows congestion and hemorrhage on both the red and

white pulp. Scanty germinal follicles are noted.

Mercy Villamor was a former bar girl at the Boulevard Music Lounge in
Bagacay, Romblon, Romblon. She worked there from June 2, 1990 to April
1992 and met accused-appellants who became her customers. She
testified that accused-appellant Madali courted her in September 1990
and became her boyfriend in November of that year. She claimed that she
had a son by Madali. The boy, named Mark Anthony, was born on
November 10, 1992. Mercy claimed that Reynaldo M. Abrenica was also
her customer at the night club. Reynaldo allegedly courted her in October
1991 and became her boyfriend on December 22, 1991, although she was
still having an affair with Madali at that time.

Assessment: Acute tubular necrosis

Tubular degeneration

Assessment: Congestion and hemorrhage, spleen

PANCREAS:
The pancreas is pale yellowish brown in color, doughy in consistency,
lobulated with petechial hemorrhages noted at the head and tail of the
pancreas.
Microsection shows focal hemorrhages within the parenchyma and areas
of dilated, slightly thickened ducta filled with impessated secretions. Other
areas show focus of pseudocyst formation.
Assessment: Acute hemorrhagic Pancreatitis

According to Mercy, one evening in December 1991, the two men in her
life met. Mercy was at Reynaldo's table at the Boulevard Music Lounge
when Madali entered through the back door. Mercy asked Madali why he

was there when his wife was supposed to be in town. Madali told her that
he wanted to sleep at the music lounge and proceeded to the second
floor. Mercy then rejoined Reynaldo. When Reynaldo asked whether
Madali was her boyfriend, Mercy said Madali was the brother of the
boyfriend of the owner of the night club, Hilda Yap. According to Mercy,
before Reynaldo left, they agreed to go swimming on February 4, 1992.
Mercy said she then went upstairs and lay beside Madali. When Madali
asked whether Reynaldo was her boyfriend, Mercy answered in the
affirmative. Mercy told him that she was going swimming with Reynaldo
on February 4, 1992. Madali tried to dissuade her but she was adamant.
Mercy testified that while she was walking around town on February 4,
1992, at around 9 p.m., she met Reynaldo who was on a motorcycle. She
said Reynaldo apologized to her for not going swimming with her on that
day because his wife had arrived from Manila. He gave her an envelope
and told her to meet him that same night at 11:30 p.m. in his jeep then
parked outside his house. After Reynaldo left, Mercy opened the envelope
and found a P500.00 bill inside with a note saying, "I love you, Mercy."
Mercy claimed that she and a friend, Mayet Espinosa (a.k.a. Leonora
Orboc), who was then pregnant, went to meet Reynaldo at 11 p.m. on that
date. On their way, they met Madali, who was in uniform and riding his
motor tricycle. He asked where they were going. Mercy said they were
going home, but Madali did not believe her.
Mercy said she and Mayet then proceeded to Reynaldo's house. Reynaldo
was inside his jeep. The two women then joined him inside the jeep.
Mercy said that while she and Reynaldo were talking, Mayet saw, on the
jeep's side mirror, someone walking towards them. It was accusedappellant Madali, and the two hurriedly got off the jeep and hid behind a
pile of boxes nearby. According to Mercy, Madali approached Reynaldo
and asked, "Pare, kausap mo yata si Mercy." ("Pal, you seem to have been
talking with Mercy"), to which Reynaldo replied, "Eh, ano ngayon?" ("So,
what?"). Madali then pulled his gun and hit Reynaldo on the head with it.
Madali hit Reynaldo on the head three times with his gun, as a result of
which Reynaldo fell on the ground. Mercy said accused-appellants Rogero
and Rubio, who were also in uniform, came and helped Madali carry

Reynaldo's body inside the latter's house. Thereafter, accused-appellants

closed the door. According to Mercy, after witnessing the incident, she
and Mayet returned to the Boulevard Music Lounge.
At around 1 a.m., Madali arrived at the Boulevard Music Lounge. Mercy
noticed that his uniform was stained with blood. When she asked him why
there was blood on his uniform, he said he had run over a dog. Mercy
retorted,"Nakasagasa ka ng aso o pumatay ka ng tao?" ("You ran over a
dog or you killed someone?") In fact, according to Mercy, when she
washed Madali's clothes, she noticed that his shoes were also stained with
blood.
She said she did not report what she had seen because she was afraid for
her life as Madali had threatened her. She said that she only implicated
accused-appellants in her sworn statement on December 14, 19947 before
the Commission on Human Rights, after she had been informed about the
Witness Protection Program of the Department of Justice. Mercy was
entered in the program only on April 15, 1995.8
Accused-appellants denied liability for the death of Reynaldo Abrenica.
Accused-appellant Madali testified that, at about 11 p.m. of February 4,
1992, he was in his house asleep. He set his alarm clock to 11:40 p.m.
because he was on duty at the police station from 12 midnight to 8 a.m. of
the next day. He said he arrived at the station at around 11:50 p.m. and
stayed for awhile with accused-appellant Rogero in the latter's jeep.
Rogero had the same schedule as Madali. According to Madali, when
Orlene Orola and Leonilo Mangua came for assistance in bringing
Reynaldo Abrenica to the hospital, he took the police motor tricycle and
went with the two to the Abrenica residence. Then, with him leading the
way because the jeep's headlights would not function, they took Reynaldo
Abrenica to the hospital.
Madali said he had the chance to talk to Reynaldo's wife Helen in the
hospital, and she said that she heard the sound of something falling and
thought that it was their plastic container which fell.
Madali denied having an affair with Mercy Villamor. He stated that he only
came to know her sometime in December 1991 when he and the other

accused-appellants, Rogero and Rubio, and other policemen were

introduced to her by Hilda Yap at the Boulevard Music Lounge. Madali
denied having a child by Mercy. In fact, he said, when his wife heard about
the rumor that Mercy bore him a child, his wife summoned Mercy to their
house, but Mercy said she did not spread any rumor about her having a
child by Madali.
Madali likewise denied he bore the Abrenicas ill will. He said that he and
his wife in fact attended the nine-day prayers (pasiyam) for the soul of
Reynaldo and, at the end of the ninth day, they were invited by Helen to
dinner together with others who had condoled with her.
Accused-appellant Rogero testified that on February 4, 1992, his tour of
duty as foot patrol and vigilante was from 12 midnight to 8 a.m. He arrived
at the police station at about 11:40 p.m. in his jeep. He saw accusedappellant Rubio, whose duty as station guard and desk officer was from 8
p.m. to 12 midnight, standing outside the station. Rogero said he stayed in
his jeep for sometime until it was time to begin his duty. He was joined by
Madali who had the same schedule of duty. When Orlene Orola and
Leonilo Mangua arrived, Madali attended to them. He was later asked by
Madali to follow him to the Abrenica residence. Madali left with Orlene
Orola and Leonilo Mangua aboard the police tricycle. According to Rogero,
he woke accused-appellant Randy Rubio up and the two of them
proceeded to the Abrenica residence. Rogero said he and Rubio were told
by Susan Ybaez that Reynaldo fell from the stairs and was taken to the
hospital. Rogero said he and Rubio then proceeded to the hospital where
they were told by Madali that Reynaldo fell from the stairs. They stayed at
the hospital's lobby for about two hours and then returned to their
station. Madali later followed them to the police station. According to
Rogero, he took Rubio to their headquarters and then went to the front of
the post office, where he stayed until 6 a.m. before going home.9
Leonora Orboc, also known as Mayet Espinosa, testified for the defense.
She denied being with Mercy Villamor when the latter met Reynaldo M.
Abrenica near the latter's house on February 4, 1992. She stated that she
worked from 10 p.m. of February 4, 1992 at the cash register at the
Boulevard Music Lounge. She was then nine months pregnant. She said

that she knew that Mercy was at the Boulevard Music Lounge that night
because she tried to rouse her from her sleep as many customers were
looking for her, but Mercy refused to get up. Mayet likewise denied that
she witnessed the murder described by Mercy in court.10
On May 25, 1996, the trial court rendered its decision, the dispositive
portion of which reads:
WHEREFORE, this Court finds the accused (1) SR. POLICE OFFICER II
ELEAZAR M. MADALI, (2) SR. POLICE OFFICER II EUSTAQUIO V. ROGERO
and (3) SR. POLICE OFFICER I RANDY M. RUBIO GUILTY beyond reasonable
doubt of the crime of Murder under the Information, dated December 1,
1995, and sentences each of them to suffer the penalty
of reclusion perpetua, with the accessory penalties of the law.
These three (3) accused, jointly and severally, are ORDERED to pay the
heirs of the deceased Reynaldo M. Abrenica the following sums, namely,
(1) P50,000.00 as death indemnity; (2) P124,800.00 for loss of earning
capacity of the deceased; (3) P150,000.00 as moral damages;
(4) P150,000.00 as exemplary damages; (5) P70,000.00 for attorney's fees
and appearance fees; (6) P50,000.00 for expenses of litigation; and
(7) P60,000.00 as actual damages, without subsidiary imprisonment in
case of insolvency, and to pay the costs.
The period of preventive imprisonment the accused had undergone shall
be credited in their favor to its full extent pursuant to Article 29 of the
Revised Penal Code.
SO ORDERED.11
Hence, this appeal. Accused-appellants assign the following errors as
having been allegedly committed by the trial court:
I. THE COURT A QUO ERRED IN FAILING TO RESOLVE DOUBTS AND
DISCREPANCIES IN ITS FINDINGS OF FACT IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN FINDING CREDIBLE THE TESTIMONIES OF TWO
PIVOTAL WITNESSES, MERCY VILLAMOR AND DR. VLADIMIR VILLASENOR.12

On June 2, 1997, Atty. Reynaldo Z. Calabio filed a Notice of

Appearance13 as counsel for complainant Helen M. Abrenica, widow of the
deceased Reynaldo M. Abrenica. His request to be allowed to appear on
behalf of the complainant was denied for lack of merit.14
On July 16, 1997, complainant filed a Motion for Time to File Brief,
separate from that which the Office of the Solicitor General would file, by
way of answer to the brief of accused-appellants.15 This was likewise
denied for lack of merit.16
On November 20, 1997, the Office of the Solicitor General filed a
Manifestation and Motion In Lieu of Appellee's Brief recommending the
acquittal of accused-appellants.17 In view of the position taken by the
Office of the Solicitor General, complainant filed on December 8, 1997 a
Manifestation and Motion to be Allowed to File Brief.18 On February 13,
1998, she filed a Memorandum for the Private Complainant,19 which was
noted in the Court's resolution of March 25, 1998.
When required to comment on complainant's motion for leave to file a
separate brief, the Solicitor General stated that since complainant had
already filed a memorandum, there was no further need for a brief
sustaining the decision on appeal. On the other hand, complainant stated
that her memorandum had already been noted by the Court and, in the
interest of a balanced presentation of facts and the issues, the same
should be considered in the resolution of this appeal.
Rule 122, 1 of the Revised Rules on Criminal Procedure provides that
"(a)ny party may appeal from a judgment or final order, unless the
accused will be placed in double jeopardy." It has been held that the word
"party" in the provision in question includes not only the government and
the accused but other persons as well, such as the complainant who may
be affected by the judgment rendered in the criminal proceedings. The
complainant has an interest in the civil liability arising from the crime,
unless of course he has reserved to bring a separate civil action to recover
the civil liability.20 Hence, in the prosecution of the offense, the
complainant's role is that of a witness for the prosecution.21 Ordinarily, the
appeal of criminal cases involves as parties only the accused, as appellants,
and the State, represented by the Office of the Solicitor General, as the

appellee. The participation of the private offended party would be a mere

surplusage, if the State were simply to seek the affirmation of a judgment
of conviction. However, where the Office of the Solicitor General takes a
contrary position and recommends, as in this case, the acquittal of the
accused, the complainant's right to be heard on the question of award of
indemnity and damages arises. In the interest of justice and equity and to
provide perspective for this appeal, therefore, the Court hereby allows in
this case the memorandum filed by complainant which is hereby admitted
as part of the records of this appeal.
Nevertheless, after considering the records of this case, we agree with the
Solicitor General that the evidence is insufficient to sustain accusedappellants' conviction and, therefore, the decision of the trial court should
be reversed and accused-appellants should be acquitted.
First. The trial court erred in giving credence to the testimony of the
supposed eyewitness, Mercy Villamor, despite its many improbabilities
and inconsistencies which renders it doubtful.
(1) Mercy testified that, on February 4, 1992, Reynaldo Abrenica asked
that, as they could not go out because his wife had arrived from Manila,
they meet instead at 11:30 p.m. in his jeep which was parked in front of
the Abrenica residence. This is incredible. If Reynaldo allegedly called off
their date because his wife was in town, why would he instead appoint a
place for their tryst right in front of his house where it was more likely
they would be seen by his wife?
(2) Mercy testified that she saw accused-appellants, who were in their
uniforms, bringing Reynaldo inside his house, Madali holding him by the
nape, Rogero by the right arm, and Rubio holding the two legs. It is
inconceivable, however, that accused-appellants would do this because
they were in their uniforms and they could easily be noticed. The sight of
uniformed policemen carrying a body would attract attention.
(3) Mercy claimed that at around 1 a.m. of February 5, 1992, accusedappellant Madali arrived at the Boulevard Music Lounge and she noticed
that he had blood on his uniform and his boots. But Helen Abrenica,
another prosecution witness, testified that there was no blood on her

husband's body or on the floor or on the wall when she found him on the
landing of their staircase. Indeed, Reynaldo Abrenica never suffered any
stab or incised wound, and the theory of the prosecution was simply that
he was clubbed to death.

out that night because Madali's wife was around. This is contrary to Helen
Abrenica's testimony that at that time Reynaldo was having drinks in the
house of his friend, Harry Mindo, and that they left that place at around
10:30 p.m.22

(4) Mercy said that Reynaldo's jeep was parked along Republica Street in
front of his house. The jeep was facing the pier. In the opposite direction
are the market and the post office. According to Mercy, while they were
seated inside the jeep, her companion, Mayet Espinosa, saw accusedappellant Madali on the side mirror of the vehicle. Accused-appellant was
allegedly coming from the direction of the market and the post office.

(6) Mercy claimed that Reynaldo was wearing shorts and was half naked
when they met inside his jeep. This is not what he had on when he was
found. When he was found, Reynaldo was wearing a white sleeveless
undershirt and was naked from the waist down with only a towel placed
over his buttocks.

This is contrary to the testimonies of the other prosecution witnesses,

Helen Abrenica and the spouses Segundo and Orlene Orola, who said that
the jeepney was facing the direction of the market and the post office. In
fact Helen Abrenica said that when they arrived home on February 4,
1992, they passed through the pier so that when Reynaldo M. Abrenica
parked the vehicle it was facing in the direction of the market and the post
office. This was also the position of the vehicle when Segundo and Orlene
Oroloa arrived at the Abrenica in response to the cry for help of Helen. It
was, therefore, not possible for Mayet Espinosa to have seen accusedappellant on the side mirror of the vehicle.
At any rate, Mayet Espinosa denied that she and Mercy went to meet
Reynaldo M. Abrenica in front of his house on the night of February 4,
1992. Mayet testified for the defense. She said that at the time and on the
date in question, she was at the Boulevard Music Lounge while Mercy was
upstairs sleeping, refusing to get up despite the fact that customers of the
night club wanted to have her.
Mayet's testimony is more credible. At the time of the incident she was
heavy with a child. Why should she go with Mercy who had a date with
her lover? It is more probable that she worked at the cash register in the
Boulevard Music Lounge than that, as Mercy claimed, she went with her to
see the latter 's lover.
(5) Mercy said that at around 9 p.m. of February 4, 1992, she saw
Reynaldo riding on his motorcycle and she was told that they could not go

(7) Mercy said she saw Reynaldo being carried by accused-appellants into
his house. Reynaldo was found lying in a prone position with knees bent
toward his chest and his head facing the wall. The space in which his body
was found was only 25 inches by 41 inches.23 It was so small that if three
men carried his body and dumped it there, they would have made noise
and would have been detected by the occupants of the house. So small
indeed was the space constituting the landing of the stairs that Reynaldo's
body had to be crumpled so that his knees were bent toward his chest
while his left hand had to be placed on his back and his right arm pinned
under his body. If accused-appellants killed Reynaldo, they could just have
left him on the street or placed him inside his jeepney. The risk of being
seen carrying the body inside the house up to the first flight of stairs to the
landing where it was found was too great.
In addition to the inconsistencies and improbabilities in her testimony,
Mercy's testimony shows hedging and trimming as is clear from the
following portion of the transcript of stenographic notes:
Q - You alighted from the jeep when you saw Madali coming because you
were afraid and you wanted to hide from him, is that correct?
A - We were not afraid, if he would see us because we told him we are
going home.
Q - Why did you hide?
A - Because Bebot might see us, we told him before that we are going
home.

Q - That is why you hid so that you will not be seen by Madali, is that not
right?
A - Yes, sir.
Q - You did not want that any portion of your body could be seen by
Madali at that time?
A - I don't want because we told him we are going home.24
This is not the only instance where Mercy gave confused and unsure
statements. Testifying concerning the distance between the place where
she and Mayet were hiding and the place where they saw Madali allegedly
hitting Reynaldo several times on the head, Mercy said:
Q - And you were how many meters away while watching and hiding
behind the kamada of kahon?

....
ATTY. ARIAS Continuing:
Q - I am showing to you Exhibit A-2, No. 15, line 18, and I will let you
refresh your memory, at paglapit ni Bebot Madali sa kinauupoan ni Rey sa
loob ng jeep (harapan ng manibela) ay binati pa ni Bebot si Rey ng "kausap
mo yata si Mercy", dinig na dinig namin ito ni Mayet sapagkat ang
kinaroroonan namin ay dalawang (2) metro lamang, do you remember
having given that answer?
A - Yes, sir.
Q - And you stated in the affidavit two (2) meters, dalawang (2) metro
lamang?
A - Yes, sir.

A - It is near, from here to there.

Q - You know that a meter is shorter than one (1) dipa?

....

A - The same.

Q - During the direct you answered apat (4) na dipa, 4 arms length, do you
remember that?

Q - So, when you said, two (2) meters that should be dalawang (2) dipa,
according to you?

A - Yes, sir.

A - Two (2) arms length.

Q - As a matter of fact the Court measured the distance you pointed

earlier, do you remember that?

Q - And you know that two (2) arms length is shorter than apat (4) na
dipa?

A - Yes, sir.

A - Yes, sir.

ATTY. ARIAS Continuing:

Q - And you now discover that what you told earlier that Madali was four
(4) arms length is not correct but only dalawang (2) metros or according to
you pareho lang dalawang (2) dipa, is that correct?

Q - And that was the distance you said apat (4) na dipa, four (4) arms
length, do you remember having stated that?
A - Yes, sir.
Q - Madam Witness, you stated that in your affidavit that you are four (4)
arms length away from where the pokpoking occurred?
A - I do not know, I cannot remember.

A - No, sir.25
....
ATTY. ARIAS continuing:
Q - All right. You saw Madali struck the victim, how far were you?

ATTY. CALABIO:
From where?
ATTY. ARIAS:
Doon sa pinagpukpukan.
A - This distance, about two (2) arm's length.
ATTY. ARIAS:
I want to make of record that the witness had shown to us the distance by
stretching her two (2) arms and pointing a little bit near and later on when
she looked at the private prosecutor she changed her answer and said . . .
.26
The inconsistencies, improbabilities, and uncertainties in Mercy's
testimony are many, and they relate to material points. The suspicion
cannot be helped that she was a rehearsed witness.27 It cannot be too
often repeated that for evidence to be believed, it must not only proceed
from the mouth of a credible witness but must itself be credible. The
evidence must be what the common experience and observation of
mankind would approve of as probable under the circumstances.28 We
cannot help noticing that, in order to go through her direct examination,
Mercy had to be asked leading questions by the private prosecutor.
Contrary to the observation of the trial court, she was not consistent on
cross-examination. In fact, she had to be cued by the prosecutor by timely
manifestations. There were several instances when she did not make
sense when confronted with her conflicting statements. In her dire
attempt to explain away the irreconcilable statements in her affidavits and
in her testimony in court, she used lame and shallow excuses.
Second. This case was not filed until three years after the death of
Reynaldo M. Abrenica, and that was because Mercy Villamor came out
with a claim that she saw accused-appellants kill Reynaldo. She claimed
that she could not reveal earlier what she knew about the crime because
of threats made by accused-appellant Madali. However, Mercy never
explained the circumstances under which she was threatened. In fact, she

admitted she only entertained the fear that Madali would harm her if she
talked about what she allegedly knew. When asked when she was
allegedly threatened, she stated that it was at 9 a.m. of February 4, 1992.
At that time, however, the incident had not yet occurred.29
Third. On the other hand, the testimony of Dr. Villaseor that the head
injuries sustained by Reynaldo were caused by a blunt instrument is
contrary to the statement he gave before the Office of the Ombudsman
that the cause of Reynaldo's death could not have been a blunt
instrument.30 Although this statement was prepared by the investigator in
the Office of the Ombudsman, it was signed by Dr. Villaseor. Dr.
Villaseor tried to explain the prior inconsistent statement by means of
the lame excuse that he failed to include some matters in his statement
because he did not then have his files with him.1wphi1.nt
Fourth. The trial court erred in appreciating the aggravating circumstance
of treachery. The essence of treachery is the sudden and unexpected
attack without the slightest provocation on the part of the person
attacked.31 In this case, Reynaldo allegedly said "Eh, ano ngayon? to
Madali when the latter demanded to know whether he (Reynaldo) was
talking to Mercy. The remark was certainly provocative and Reynaldo
knew that his reply would invite a retaliation. Thus, Reynaldo could not
have been surprised by Madali's alleged attack.
In sum, the prosecution failed to prove beyond doubt that the death of
Reynaldo M. Abrenica was not accidental but intentional and that
accused-appellants were guilty of killing him.
WHEREFORE, the decision of the Regional Trial Court, Branch 81,
Municipality of Romblon, Romblon is REVERSED and accused-appellants
Eleazar M. Madali, Eustaquio V. Rogero, and Randy M. Rubio are
ACQUITTED on the ground of reasonable doubt. Consequently, they are
ordered forthwith released from custody unless they are being lawfully
held for another cause.
The Director of the Bureau of Corrections is directed to implement this
Decision and to report to this Court the action taken hereon within five
(5)days from receipt hereof. SO ORDERED.

G.R. No. L-53373 June 30, 1987

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

in the case until the Department of Justice shall have finally resolved the
petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig,
Jr., resolving the petition for review reversed the resolution of the Office
of the Provincial Fiscal and directed the fiscal to move for immediate
dismissal of the information filed against the accused. 8 A motion to
dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated
April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter
of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition thereto. 10 On November
24, 1978 the Judge denied the motion and set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the procuting fiscal
premised on insufficiency of evidence, as suggested by the Undersecretary
of Justice, evident from Annex "A" of the motion wherein, among other
things, the Fiscal is urged to move for dismissal for the reason that the
check involved having been issued for the payment of a pre-existing
obligation the Hability of the drawer can only be civil and not criminal.
The motion's thrust being to induce this Court to resolve the innocence of
the accused on evidence not before it but on that adduced before the
Undersecretary of Justice, a matter that not only disregards the
requirements of due process but also erodes the Court's independence
and integrity, the motion is considered as without merit and therefore
hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18,
1978 at 9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the Court of Appeals that was docketed as
CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was
issued by the Court of Appeals against the threatened act of arraignment

of the accused until further orders from the Court. 13 In a decision of

October 25, 1979 the Court of Appeals dismissed the petition and lifted
the restraining order of January 23, 1979. 14 A motion for reconsideration
of said decision filed by the accused was denied in a resolution of February
19, 1980. 15
Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set aside,
respondent judge be perpetually enjoined from enforcing his threat to
proceed with the arraignment and trial of petitioner in said criminal case,
declaring the information filed not valid and of no legal force and effect,
ordering respondent Judge to dismiss the said case, and declaring the
obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from
notice. In the comment filed by the Solicitor General he recommends that
the petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent
to the petition asking that the petition be dismissed. In the resolution of
February 5, 1981, the Second Division of this Court resolved to transfer
this case to the Court En Banc. In the resolution of February 26, 1981, the
Court En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon
the sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. 18 The reason
for placing the criminal prosecution under the direction and control of the

fiscal is to prevent malicious or unfounded prosecution by private

persons. 19 It cannot be controlled by the complainant. 20Prosecuting
officers under the power vested in them by law, not only have the
authority but also the duty of prosecuting persons who, according to the
evidence received from the complainant, are shown to be guilty of a crime
committed within the jurisdiction of their office. 21 They have equally the
legal duty not to prosecute when after an investigation they become
convinced that the evidence adduced is not sufficient to establish a prima
facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal
determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's
discretion and control of the criminal prosecution. It is not prudent or
even permissible for a Court to compel the fiscal to prosecute a
proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24Neither has
the Court any power to order the fiscal to prosecute or file an information
within a certain period of time, since this would interfere with the fiscal's
discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks
for the dismissal of the case for insufficiency of evidence has authority to
do so, and Courts that grant the same commit no error.26 The fiscal may
re-investigate a case and subsequently move for the dismissal should the
re-investigation show either that the defendant is innocent or that his guilt
may not be established beyond reasonable doubt. 27 In a clash of views
between the judge who did not investigate and the fiscal who did, or
between the fiscal and the offended party or the defendant, those of the
Fiscal's should normally prevail. 28 On the other hand, neither an
injunction, preliminary or final nor a writ of prohibition may be issued by
the courts to restrain a criminal prosecution 29 except in the extreme case
where it is necessary for the Courts to do so for the orderly administration
of justice or to prevent the use of the strong arm of the law in an op
pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any
limitation or control. The same is subject to the approval of the provincial
or city fiscal or the chief state prosecutor as the case maybe and it maybe

elevated for review to the Secretary of Justice who has the power to
affirm, modify or reverse the action or opinion of the fiscal. Consequently
the Secretary of Justice may direct that a motion to dismiss the rase be
filed in Court or otherwise, that an information be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal action.
The Court thereby acquires jurisdiction over the case, which is the
authority to hear and determine the case. 32 When after the filing of the
complaint or information a warrant for the arrest of the accused is issued
by the trial court and the accused either voluntarily submited himself to
the Court or was duly arrested, the Court thereby acquired jurisdiction
over the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution
of the accused is terminated upon the filing of the information in the
proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. 34 While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the rase
thereafter should be addressed for the consideration of the Court, 35 The
only qualification is that the action of the Court must not impair the
substantial rights of the accused. 36or the right of the People to due
process of law. 36a
Whether the accused had been arraigned or not and whether it was due
to a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will

there not be a vacuum in the prosecution? A state prosecutor to handle

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

disregarded by the trial court, the Secretary of Justice should, as far as

practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs. SO ORDERED.
G.R. No. 113930 March 5, 1996
PAUL G. ROBERTS, JR., ET AL vs. THE COURT OF APPEALS, THE HON.
MAXIMIANO ASUNCION, in his capacity as the Presiding Judge of the
Regional Trial Court, Quezon City, Branch 104, ET AL
We are urged in this petition to set aside (a) the decision of the Court of
Appeals of 28 September 1993 in CA-G.R. SP No. 31226, 1 which dismissed
the petition therein on the ground that it has been "mooted with the
release by the Department of Justice of its decision . . . dismissing
petitioners' petition for review"; (b) the resolution of the said court of 9
February 1994 2 denying the petitioners' motion to reconsider the
decision; (c) the order of 17 May 1993 3 of respondent Judge Maximiano C.
Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon City in
Criminal Case No. Q-93-43198 denying petitioners' motion to suspend
proceedings and to hold in abeyance the issuance of the warrants of arrest
and the public prosecutor's motion to defer arraignment; and (d) the
resolutions of 23 July 1993 and 3 February 1994 4 of the Department of
Justice (DOJ) dismissing petitioners' petition for the review of the Joint
Resolution of the Assistant City Prosecutor of Quezon City and denying the
motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs
prayed for in this petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered
the arrest of the petitioners without examining the record of the

preliminary investigation and in determining for himself on the basis

thereof the existence of probable cause.
II
The Department of Justice "349" Committee acted with grave abuse of
discretion when it refused to review the City Prosecutor's Joint Resolution
and dismissed petitioner's appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld
the subject order directing the issuance of the warrants of arrest without
assessing for itself whether based on such records there is probable cause
against petitioners.
IV
The facts on record do not establish prima facie probable cause and
Criminal Case No. Q-93-43198 should have been dismissed. 5
The antecedents of this petition are not disputed.
Several thousand holders 6 of "349" Pepsi crowns in connection with the
Pepsi Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed
with the Office of the City Prosecutor of Quezon City complaints against
the petitioner's in their respective capacities as Presidents or Chief
Executive Officers, Chairman of the Board, Vice-Chairman of the Board,
and Directors of PEPSI, and also against other officials of PEPSI. The
complaints respectively accuse the petitioners and the other PEPSI officials
of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise
known as the Consumer Act of the Philippines; (c) violation of E.O. No.
913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to Untrue,
Deceptive and Misleading Advertisements," as amended by Act No. 3740. 9
After appropriate proceedings, the investigating prosecutor, Ramon M.
Gerona, released on 23 March 1993 a Joint Resolution 10 where he
recommended the filing of an information against the petitioners and
others for the violation of Article 318 of the Revised Penal Code and the
dismissal of the complaints for the violation of Article 315, 2(d) of the

Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No.
3740; and E.O. No. 913. The dispositive portion thereof reads as follows:

the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case
No. Q-93-43198. 13 The information reads as follows:

In view of all the foregoing, it is recommended that:

The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS,

JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE
YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the
crime of ESTAFA, committed as follows:

1. The attached information be filed against respondents Paul G. Roberts,

Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P.
Lorenzo, Jr., J. Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose
Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr.
and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code,
while the complaint for violation of Article 315, 2(d), Revised Penal Code
against same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P.
Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas,
Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang,
Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex O.
Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de
Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan,
Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil,
Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed;

That in the month of February, 1992, in Quezon City, Philippines and for
sometime prior and subsequent thereto, the above-named
accused
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar ) and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman
of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice

2. The complaints against all respondents for violation of R.A. 7394

otherwise known as the Consumer Act of the Philippines and violation of
Act 2333 as amended by Act 3740 and E.O. 913 be also dismissed for
insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173;
401; and 117, 425, 703 and 373, respectively, alleged to be likewise
winning ones be further investigated to afford respondents a chance to
submit their counter-evidence. 11
On 6 April 1993, City Prosecutor Candido V. Rivera approved the
recommendation with the modification that Rosemarie Vera, Quintin
Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground
of insufficiency of evidence. 12
The information for estafa attached to the Joint Resolution was approved
(on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division,
upon authority of the City Prosecutor of Quezon City, and was filed with

Chairman of the Board

J. Roberto Delgado )
Amaury R. Gutierrez ) being then Members of
Bayani N. Fabic ) the Board
Jose Yulo, Jr. )
Esteban B. Pacannuayan, )
Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one
another, with intent of gain, by means of deceit, fraudulent acts or false
pretenses, executed prior to or simultaneously with the commission of the
fraud, did then and there willfully, unlawfully and feloniously defraud the

private complainants whose names with their prizes claimed appear in the
attached lists marked as Annexes "A" to "A-46"; "B" to "-33"; "C" to "C281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in the following
manner: on the date and in the place aforementioned, said accused
pursuant to their conspiracy, launched the Pepsi Cola Products Philippines,
Inc. "Number Fever Promotion" from February 17 to May 8, 1992 later
extended to May 11-June 12, 1992 and announced and advertised in the
media that "all holders of crowns and/or caps of Pepsi, Mirinda, Mountain
Dew and Seven-up bearing the winning 3-digit number will win the full
amount of the prize printed on the crowns/caps which are marked with a
seven-digit security code as a measure against tampering or faking of
crowns and each and every number has its own unique matching security
code", enticing the public to buy Pepsi softdrinks with aforestated alluring
and attractive advertisements to become millionaires, and by virtue of
such representations made by the accused, the said complainants bought
Pepsi softdrinks, but, the said accused after their TV announcement on
May 25, 1992 that the winning number for the next day was "349", in
violation of their aforecited mechanics, refused as they still refuse to
redeem/pay the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi softdrinks with
crowns/caps bearing number "349" with security codes L-2560-FQ and L3560-FQ, despite repeated demands made by the complainants, to their
damage and prejudice to the extent of the amount of the prizes
respectively due them from their winning "349" crowns/caps, together
with such amounts they spent in going to and from the Office of Pepsi to
claim their prizes and such other amounts used in buying Pepsi softdrinks
which the complainants normally would not have done were it not for the
false, fraudulent and deceitful posters of Pepsi Cola Products Philippines,
Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City
Prosecutor a motion for the reconsideration of the Joint
Resolution 14 alleging therein that (a) there was neither fraud in the
Number Fever Promotion nor deviation from or modification of the
promotional rules approved by the Department of Trade and Industry

(DTI), for from the start of the promotion, it had always been clearly
explained to the public that for one to be entitled to the cash prize his
crown must bear both the winning number and the correct security code
as they appear in the DTI list; (b) the complainants failed to allege, much
less prove with prima facie evidence, the specific overt criminal acts or
omissions purportedly committed by each of the petitioners; (c) the
compromise agreement entered into by PEPSI is not an admission of guilt;
and (d) the evidence establishes that the promo was carried out with
utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for
Review 15 wherein, for the same grounds adduced in the aforementioned
motion for reconsideration, they prayed that the Joint Resolution be
reversed and the complaints dismissed. They further stated that the
approval of the Joint Resolution by the City Prosecutor was not the result
of a careful scrutiny and independent evaluation of the relevant facts and
the applicable law but of the grave threats, intimidation, and actual
violence which the complainants had inflicted on him and his assistant
prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest on the ground that they had filed the aforesaid Petition
for Review. 16
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor
Zenon L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor
of Quezon City to inform the DOJ whether the petitioners have already
been arraigned, and if not, to move in court for the deferment of further
proceedings in the case and to elevate to the DOJ the entire records of the
case, for the case is being treated as an exception pursuant to Section 4 of
Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104
of the RTC of Quezon City. 18
In the morning of 27 April 1993, private prosecutor Julio Contreras filed
an Ex-Parte Motion for Issuance of Warrants of Arrest. 19

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to Hold in Abeyance Issuance of Warrant of
Arrest and to Suspend Proceedings. 20 He stressed that the DOJ had taken
cognizance of the Petition for Review by directing the City Prosecutor to
elevate the records of I.S. No. P-4401 and its related cases and asserted
that the petition for review was an essential part of the petitioners' right
to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104
of the RTC of Quezon City, issued an order advising the parties that his
court would "be guided by the doctrine laid down by the Supreme Court in
the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of
the Department of Justice on the petition for review undertaken by the
accused." 21

Abeyance Issuance of Warrants of Arrest and the public prosecutor's

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

On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the
trial court a Motion to Defer Arraignment wherein he also prayed that
"further proceedings be held in abeyance pending final disposition by the
Department of Justice." 22

4. Pepsi nor the accused herein made no admission of guilt before the
Department of Trade and Industry;

On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by

a corresponding motion 24 to admit it. The amendments merely consist in
the statement that the complainants therein were only "among others"
who were defrauded by the accused and that the damage or prejudice
caused amounted "to several billions of pesos, representing the amounts
due them from their winning '349' crowns/caps." The trial court admitted
the amended information on the same date. 25

Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment

averred that there is a pending petition for review with the Department of
Justice filed by the accused and the Office of the City Prosecutor was
directed, among other things, to cause for the deferment of further
proceedings pending final disposition of said Petition by the Department
of Justice.

Later, the attorneys for the different private complainants filed,

respectively, an Opposition to Motion to Defer Arraignment, 26 and
Objection and Opposition to Motion to Suspend Proceedings and to Hold
in Abeyance the Issuance of Warrants of Arrest. 27
On 14 May 1993, the petitioners filed a Memorandum in Support of their
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of
the Warrants of Arrest. 28
On 17 May 1993, respondent Judge Asuncion issued the challenged order
(1) denying the petitioners' Motion to Suspend Proceedings and to Hold in

5. The evidence presented clearly showed no malicious intent on the part

of the accused.

The motions filed by the accused and the Trial Prosecutor are hereby
DENIED.
This case is already pending in this Court for trial. To follow whatever
opinion the Secretary of Justice may have on the matter would undermine
the independence and integrity of this Court. This Court is still capable of
administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471472) stated as follows:

In order therefor to avoid such a situation whereby the opinion of the

Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and
arraignment be set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special
civil action for certiorari and prohibition with application for a temporary
restraining order, 30 which was docketed as CA-G.R. SP No. 31226. They
contended therein that respondent Judge Asuncion had acted without or
in excess of jurisdiction or with grave abuse of discretion in issuing the
aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY
INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY
LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT
THE SECRETARY OF JUSTICE'S RESOLUTION OF PETITIONERS' APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining
order to maintain the status quo. 31 In view thereof; respondent Judge
Asuncion issued an order on 28 June 1993 32 postponing indefinitely the
arraignment of the petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners' application
for a writ of preliminary injunction, granted the motion for leave to
intervene filed by J. Roberto Delgado, and directed the Branch Clerk of

Court of the RTC of Quezon City to elevate the original records of Criminal
Case No. 4-93-43198. 33
Upon receipt of the original records of the criminal case, the Court of
Appeals found that a copy of the Joint Resolution had in fact been
forwarded to, and received by, the trial court on 22 April 1993, which fact
belied the petitioners' claim that the respondent Judge had not the
slightest basis at all for determining probable cause when he ordered the
issuance of warrants of arrest. It ruled that the Joint Resolution "was
sufficient in itself to have been relied upon by respondent Judge in
convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest"; and that the "mere silence
of the records or the absence of any express declaration" in the
questioned order as to the basis of such finding does not give rise to an
adverse inference, for the respondent Judge enjoys in his favor the
presumption of regularity in the performance of his official duty. The Court
of Appeals then issued a resolution 34 denying the application for a writ of
preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider 35 the
aforesaid resolution. The Court of Appeals required the respondents
therein to comment on the said motion. 36
On 3 August 1993, the counsel for the private complainants filed in CAG.R. SP No. 31226 a Manifestation 37informing the court that the
petitioners' petition for review filed with the DOJ was dismissed in a
resolution dated 23 July 1993. A copy 38 of the resolution was attached to
the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No.
31226 a motion to dismiss the petition 39on the ground that it has become
moot and academic in view of the dismissal by the DOJ of the petitioners'
petition to review the Joint Resolution. The dismissal by the DOJ is
founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and
prayed for the issuance of a writ of preliminary injunction to restrain the
Trial Judge from issuing any warrant of arrest and from proceeding with

the arraignment of the accused. The appellate court in a resolution dated

July 1, 1993, denied your petition.

suspended by the courts to await the outcome of the appeal pending with
this Department." 43

In view of the said developments, it would be an exercise in futility to

continue reviewing the instant cases for any further action on the part of
the Department would depend on the sound discretion of the Trial Court.
The denial by the said court of the motion to defer arraignment filed at
our instance was clearly an exercise of its discretion. With the issuance of
the order dated May 17, 1993, Trial Court was in effect sending a signal to
this Department that "the determination of the case is within its exclusive
jurisdiction and competence." The rule is that ". . . once a complaint or
information is filed in Court, any disposition of the case as to dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court, he
cannot impose his opinion on the trial court. The court is the best and sole
judge on what to do with the case before it. . . ." (Crespo vs. Mogul, 151
SCRA 462). 40

The petitioners likewise filed a motion to reconsider 44 the aforesaid Court

of Appeals' decision, which the said court denied in its resolution 45 of 9
February 1994. Hence, the instant petition.

On 28 September 1993, the Court of Appeals promulgated a

decision 41 dismissing the petition because it had been "mooted with the
release by the Department of Justice of its decision . . . dismissing
petitioners' petition for review by inerrantly upholding the criminal court's
exclusive and unsupplantable authority to control the entire course of the
case brought against petitioners, reiterating with approval the dictum laid
down in the 'Crespo' case."

In the resolution of 24 November 1994, the Court en banc accepted the

referral.

The petitioners filed a motion to reconsider the DOJ's dismissal of the

petition citing therein its resolutions in other similar cases which were
favorable to the petitioners and adverse to other "349" Pepsi crowns
holders.
In its resolution of 3 February 1994, the DOJ, through its "349" Committee,
denied the motion and stated: "The instant petition is different from the
other petitions resolved by this Department in similar cases from
the provinces. In the latter petitions, the complaints against herein
respondents [sic] 42 were dismissed inasmuch as the informations have not
yet been filed or even if already filed in court, the proceedings have been

The First Division of this Court denied due course to this petition in its
resolution of 19 September 1994. 46
On 7 October 1994, the petitioners filed a motion for the
reconsideration 47 of the aforesaid resolution. Acting thereon, the First
Division required the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for
reconsideration 48 and a motion to refer this case to the Court en
banc. 49 In its resolution of 14 November 1994, 50 the First Division granted
the latter motion and required the respondents to comment on the
supplemental motion for reconsideration.

On 10 October 1995, after deliberating on the motion for reconsideration

and the subsequent pleadings in relation thereto, the Court en
banc granted the motion for reconsideration; reconsidered and set aside
the resolution of 19 September 1994; and reinstated the petition. It then
considered the case submitted for decision, "since the parties have
exhaustively discussed the issues in their pleadings, the original records of
Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been
elevated to this Court, and both the petitioners and the Office of the
Solicitor General pray, in effect, that this Court resolve the issue of
probable cause on the basis thereof."
The pleadings of the parties suggest for this Court's resolution the
following key issues:
1. Whether public respondent Judge Asuncion committed grave abuse of
discretion in denying, on the basis of Crespo vs. Mogul, the motions to

suspend proceedings and hold in abeyance the issuance of warrants of

arrest and to defer arraignment until after the petition for review filed
with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of
discretion in ordering the issuance of warrants of arrest without examining
the records of the preliminary investigation.
3. Whether the DOJ, through its "349" Committee, gravely abused its
discretion in dismissing the petition for review on the following bases: (a)
the resolution of public respondent Court of Appeals denying the
application for a writ of preliminary injunction and (b) of public
respondent Asuncion's denial of the abovementioned motions.
4. Whether public respondent Court of Appeals committed grave abuse of
discretion (a) in denying the motion for a writ of preliminary injunction
solely on the ground that public respondent Asuncion had already before
him the Joint Resolution of the investigating prosecutor when he ordered
the issuance of the warrants of arrest, and (b) in ultimately dismissing the
petition on the ground of mootness since the DOJ had dismissed the
petition for review.
5. Whether this Court may determine in this proceedings the existence of
probable cause either for the issuance of warrants of arrest against the
petitioners or for their prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the
negative.
I.
There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking
cognizance of an appeal, by way 'of a petition for review, by an accused in
a criminal case from an unfavorable ruling of the investigating prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in Court." More
specifically, it stated:

In order therefore to avoid such a situation whereby the opinion of the

Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from
the action of the fiscal, when the complaint or information has already
been filed in Court. The matter should, be left entirely for the
determination of the Court. 52
In Marcelo vs. Court of Appeals, 53 this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in criminal
cases. The Secretary of Justice is only enjoined to refrain as far as
practicable from entertaining a petition for review or appeal from the
action of the prosecutor once a complaint or information is filed in court.
In any case, the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court.
Crespo could not have intended otherwise without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of
Court 54 which recognizes the authority of the Secretary of Justice to
reverse the resolution of the provincial or city prosecutor or chief state
prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated
the rules on appeals from resolutions in preliminary investigation. At the
time the petitioners filed their petition for the review of the Joint
Resolution of the investigating prosecutor, the governing rule was Circular
No. 7, dated 25 January 1990. Section 2 thereof provided that only
resolutions dismissing a criminal complaint may be appealed to the
Secretary of Justice. Its Section 4, 55 however, provided an exception, thus
allowing, upon a showing of manifest error or grave abuse of discretion,
appeals from resolutions finding probable cause, provided that the
accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an
exception pursuant to Section 4 of Circular No. 7.

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.

223 56 which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4
on the non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a
recall of the previous action of the DOJ giving due course to the
petitioners' petition for review. But whether the DOJ would affirm or
reverse the challenged Joint Resolution is still a matter of guesswork.
Accordingly, it was premature for respondent Judge Asuncion to deny the
motions to suspend proceedings and to defer arraignment on the
following grounds:

a reinvestigation or upon instructions of the Secretary of Justice who

reviewed the records of the investigation. 57
However, once a motion to dismiss or withdraw the information is filed
the trial judge may grant or deny it, not out of subservience to the
Secretary of Justice, but in faithful exercise of judicial prerogative. This
Court pertinently stated so in Martinez vs. Court of Appeals: 58

This case is already pending in this Court for trial. To follow whatever
opinion the Secretary of Justice may have on the matter would undermine
the independence and integrity of this Court. This Court is still capable of
administering justice.

Whether to approve or disapprove the stand taken by the prosecution is

not the exercise of discretion required in cases like this. The trial judge
must himself be convinced that there was indeed no sufficient evidence
against the accused, and this conclusion can be arrived at only after an
assessment of the evidence in the possession of the prosecution. What
was imperatively required was the trial judge's own assessment of such
evidence, it not being sufficient for the valid and proper exercise of judicial
discretion merely to accept the prosecution's word for its supposed
insufficiency.

The real and ultimate test of the independence and integrity of his court is
not the filing of the aforementioned motions at that stage of the
proceedings but the filing of a motion to dismiss or to withdraw the
information on the basis of a resolution of the petition for review
reversing the Joint Resolution of the investigating prosecutor. Before that
time, the following pronouncement in Crespo did not yet truly become
relevant or applicable:

As aptly observed the Office of the Solicitor General, in failing to make an

independent finding of the merits of the case and merely anchoring the
dismissal on the revised position of the prosecution, the trial judge
relinquished the discretion he was duty bound to exercise. In effect, it was
the prosecution, through the Department of Justice which decided what to
do and not the court which was reduced to a mere rubber stamp in
violation of the ruling in Crespo vs. Mogul.

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of
the court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in court he
cannot impose his opinion on the trial court. The court is the best and sole
judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after

II.
Section 2, Article III of the present Constitution provides that no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the
Metropolitan Trial Courts (MeTCs) except those in the National Capital
Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts
(MCTCs) in cases falling within their exclusive original jurisdiction; 59 in
cases covered by the rule on summary procedure where the accused fails
to appear when required; 60 and in cases filed with them which are

cognizable by the Regional Trial Courts (RTCs); 61 and (2) by the

Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and
the RTCs in cases filed with them after appropriate preliminary
investigations conducted by officers authorized to do so other than judges
of MeTCs, MTCs and MCTCs. 62
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the
witnesses, in the form of searching questions and answers, that a probable
cause exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is
not required to personally examine the complainant and the witnesses,
but
[f]ollowing established doctrine and procedure, he shall: (1) personally
evaluate the report and supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof; issue
a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as
to the existence of probable cause. 64
Sound policy supports this procedure, "otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts." It must be emphasized that judges must not rely
solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting document. In this sense, the
aforementioned requirement has modified paragraph 4(a) of Circular No.
12 issued by this Court on 30 June 1987 prescribing the Guidelines on
Issuance of Warrants of Arrest under Section 2, Article III of the 1987
Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the
issuance of a warrant of arrest, the judge, following established doctrine
and procedure, may either:

(a) Rely upon the fiscal's certification of the existence of probable cause
whether or not the case is cognizable only by the Regional Trial Court and
on the basis thereof, issue a warrant of arrest. . . .
This requirement of evaluation not only of the report or certification of
the fiscal but also of the supporting documents was further explained
in People vs. Inting, 65 where this Court specified what the documents may
consist of, viz., "the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor's
certification which are material in assisting the Judge to make his
determination" of probable cause. Thus:
We emphasize the important features of the constitutional mandate that
". . . no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge . . ." (Article III,
Section 2, Constitution).
First, the determination of probable cause is a function of the Judge. It is
not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable cause.
The Judge does not have to follow what the Prosecutor presents to him.
By itself, the Prosecutor's certification of probable cause is ineffectual. It is
the report, the affidavits, the transcripts of stenographic notes (if any),
and all other supporting documents behind the Prosecutor's certification
which are material in assisting the Judge to make hisdetermination.
In adverting to a statement in People vs. Delgado 66 that the judge may rely
on the resolution of the Commission on Elections (COMELEC) to file the
information by the same token that it may rely on the certification made
by the prosecutor who conducted the preliminary investigation in the
issuance of the warrant of arrest, this Court stressed in Lim vs. Felix 67that
Reliance on the COMELEC resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC or the Prosecutor
have been submitted to the Judge and he relies on the certification or
resolution because the records of the investigation sustain the

recommendation. The warrant issues not on the strength of the

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

In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of
the petitioners of absence of probable cause and sustained the
investigating panel's and the respondent Judge's findings of probable
cause. After quoting extensively from Soliven vs. Makasiar, 70 this Court
explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law
repudiate the submission of petitioners that respondent judges should
have conducted "searching examination of witnesses" before issuing
warrants of arrest against them. They also reject petitioners' contention
that a judge must first issue an order of arrest before issuing a warrant of
arrest. There is no law or rule requiring the issuance of an Order of Arrest
prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements
of Carlos Cristobal and Lolita Birrer as well as the counter-affidavits of the
petitioners. Apparently, the painstaking recital and analysis of the parties'
evidence made in the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely determine
personally the probability, not the certainty of the guilt of an accused. In
doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial
determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence. The sufficiency of the review process
cannot be measured by merely counting minutes and hours. The fact that
it took the respondent judges a few hours to review and affirm the
probable cause determination of the DOJ Panel does not mean they made
no personal evaluation of the evidence attached to the records of the case.
(emphasis supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutor's certification in an
information or his resolution which is made the basis for the filing of the
information, or both, would suffice in the judicial determination of
probable cause for the issuance of a warrant of arrest. In Webb, this Court

assumed that since the respondent Judges had before them not only the
26-page resolution of the investigating panel but also the affidavits of the
prosecution witnesses and even the counter-affidavits of the respondents,
they (judges) made personal evaluation of the evidence attached to the
records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found
by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint
Resolution was forwarded to, and received by, the trial court only on 22
April 1993. And as revealed by the certification 71 of Branch Clerk of Court
Gibson Araula, Jr., no affidavits of the witnesses, transcripts of
stenographic notes of the proceedings during the preliminary
investigation, or other documents submitted in the course thereof were
found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993.
Clearly, when respondent Judge Asuncion issued the assailed order of 17
May 1993 directing, among other things, the issuance of warrants of
arrest, he had only the information, amended information, and Joint
Resolution as bases thereof. He did not have the records or evidence
supporting the prosecutor's finding of probable cause. And strangely
enough, he made no specific finding of probable cause; he merely directed
the issuance of warrants of arrest "after June 21, 1993." It may, however,
be argued that the directive presupposes a finding of probable cause. But
then compliance with a constitutional requirement for the protection of
individual liberty cannot be left to presupposition, conjecture, or even
convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave
due course to the petitioners' petition for review pursuant to the
exception provided for in Section 4 of Circular No. 7, and directed the
Office of the City Prosecutor of Quezon City to forward to the Department
the records of the cases and to file in court a motion for the deferment of
the proceedings. At the time it issued the indorsement, the DOJ already
knew that the information had been filed in court, for which reason it
directed the City Prosecutor to inform the Department whether the

accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings. It must have been fully aware that, pursuant
to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution
either as a consequence of a reinvestigation or upon instructions of the
Secretary of Justice after a review of the records of the investigation is
addressed to the trial court, which has the option to grant or to deny it.
Also, it must have been still fresh in its mind that a few months back it had
dismissed for lack of probable cause other similar complaints of holders of
"349" Pepsi crowns. 72 Thus, its decision to give due course to the petition
must have been prompted by nothing less than an honest conviction that
a review of the Joint Resolution was necessary in the highest interest of
justice in the light of the special circumstances of the case. That decision
was permissible within the "as far as practicable" criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on
23 July 1993 a unilateral volte-face, which was even unprovoked by a
formal pleading to accomplish the same end, by dismissing the petition for
review. It dismissed the petition simply because it thought that a review of
the Joint Resolution would be an exercise in futility in that any further
action on the part of the Department would depend on the sound
discretion of the trial court, and that the latter's denial of the motion to
defer arraignment filed at the instance of the DOJ was clearly an exercise
of that discretion or was, in effect, a signal to the Department that the
determination of the case is within the court's exclusive jurisdiction and
competence. This infirmity becomes more pronounced because the
reason adduced by the respondent Judge for his denial of the motions to
suspend proceedings and hold in abeyance issuance of warrants of arrest
and to defer arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the
petitioners' Motion to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest and the public prosecutor's Motion to
Defer Arraignment, which were both based on the pendency before the
DOJ of the petition for the review of the Joint Resolution, the dismissal of
CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the

petition for review might have been correct. However, the petition
likewise involved the issue of whether respondent Judge Asuncion gravely
abused his discretion in ordering the issuance of warrants of arrest despite
want of basis. The DOJ's dismissal of the petition for review did not render
moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners' application for a
writ of preliminary injunction to restrain respondent Judge Asuncion from
issuing warrants of arrest, the Court of Appeals justified its action in this
wise:
The Joint Resolution was sufficient in itself to have been relied upon by
respondent judge in convincing himself that probable cause indeed exists
for the purpose of issuing the corresponding warrants of arrest. The mere
silence of the records or the absence of any express declaration in the
questioned Order of May 17, 1993 as to where the respondent Judge
based his finding of probable cause does not give rise to any adverse
inference on his part. The fact remains that the Joint Resolution was at
respondent Judge's disposal at the time he issued the Order for the
issuance of the warrants of arrest. After all, respondent Judge enjoys in his
favor the presumption of regularity in the performance of official
actuations. And this presumption prevails until it is overcome by clear and
convincing evidence to the contrary. Every reasonable intendment will be
made in support of the presumption, and in case of doubt as to an officer's
act being lawful or unlawful it should be construed to be lawful. (31 C.J.S.,
808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482;
People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36
Phil. 338).
We are unable to agree with this disquisition, for it merely assumes at
least two things: (1) that respondent Judge Asuncion had read and relied
on the Joint Resolution and (2) he was convinced that probable cause
exists for the issuance of the warrants of arrest against the petitioners.
Nothing in the records provides reasonable basis for these assumptions. In
his assailed order, the respondent Judge made no mention of the Joint
Resolution, which was attached to the records of Criminal Case No. Q-9343198 on 22 April 1993. Neither did he state that he found probable cause

for the issuance of warrants of arrest. And, for an undivinable reason, he

directed the issuance of warrants of arrest only "after June 21, 1993." If he
did read the Joint Resolution and, in so reading, found probable cause,
there was absolutely no reason at all to delay for more than one month
the issuance of warrants of arrest. The most probable explanation for such
delay could be that the respondent Judge had actually wanted to wait for
a little while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice
Reynato S. Puno that whatever doubts may have lingered on the issue of
probable cause was dissolved when no less than the Court of Appeals
sustained the finding of probable cause made by the respondent Judge
after an evaluation of the Joint Resolution. We are not persuaded with
that opinion. It is anchored on erroneous premises. In its 1 July 1993
resolution, the Court of Appeals does not at all state that it either
sustained respondent Judge Asuncion's finding of probable cause, or
found by itself probable cause. As discussed above, it merely presumed
that Judge Asuncion might have read the Joint Resolution and found
probable cause from a reading thereof. Then too, that statement in the
dissenting opinion erroneously assumes that the Joint Resolution can
validly serve as sufficient basis for determining probable cause. As stated
above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either
be an executive or a judicial prerogative. In People vs. Inting, 73 this Court
aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from a preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there should
be no confusion about the objectives. The determination of probable
cause for the warrant of arrest is made by the Judge. The preliminary
investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore,

whether or not he should be subjected to the expense, rigors and

embarrassment
of
trial is the function of the Prosecutor.

e. Where the prosecution is under an invalid law, ordinance or regulation

(Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385,
389);

....

f. When double jeopardy is clearly apparent (Sangalang vs. People and

Avendia, 109 Phil. 1140);

We reiterate that preliminary investigation should be distinguished as to

whether it is an investigation for the determination of a sufficient ground
for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature. It is part
of the prosecution's job. The second kind of preliminary investigation
which is more properly called preliminary examination is judicial in nature
and is lodged with the judge. . . .
Ordinarily, the determination of probable cause is not lodged with this
Court. Its duty in an appropriate case is confined to the issue of whether
the executive or judicial determination, as the case may be, of probable
cause was done without or in excess of jurisdiction or with grave abuse of
discretion amounting to want of jurisdiction. This is consistent with the
general rule that criminal prosecutions may not be restrained or stayed by
injunction, preliminary or final. There are, however, exceptions to this
rule. Among the exceptions are enumerated in Brocka vs. Enrile 74 as
follows:
a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA
95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43
Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383,
May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs. Oil, 67 Phil. 62);

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, L60033, April 4, 1984, 128 SCRA 577); and
j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Salonga vs. Pao, et al.,
L- 59524, February 18, 1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to prevent
to threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L6374, August 1, 1953). (cited in Regalado, Remedial Law Compendium, p.
188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence
or non-existence of probable cause by examining the records of the
preliminary investigation, as it did in Salonga vs. Pao, 75 Allado, andWebb.
There can be no doubt that, in light of the several thousand private
complainants in Criminal Case No. Q-93-43198 and several thousands
more in different parts of the country who are similarly situated as the
former for being holders of "349" Pepsi crowns, any affirmative holding of
probable cause in the said case may cause or provoke, as justly feared by
the petitioners, the filing of several thousand cases in various courts
throughout the country. Inevitably, the petitioners would be exposed to
the harassments of warrants of arrest issued by such courts and to huge

expenditures for premiums on bailbonds and for travels from one court to
another throughout the length and breadth of the archipelago for their
arraignments and trials in such cases. Worse, the filing of these staggering
number of cases would necessarily affect the trial calendar of our
overburdened judges and take much of their attention, time, and energy,
which they could devote to other equally, if not more, important cases.
Such a frightful scenario would seriously affect the orderly administration
of justice, or cause oppression or multiplicity of actions a situation
already long conceded by this Court to be an exception to the general rule
that criminal prosecutions may not be restrained or stayed by injunction. 76
We shall not, however, reevaluate the evidence to determine if indeed
there is probable cause for the issuance of warrants of arrest in Criminal
Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not,
in fact, find that probable cause exists, and if he did he did not have the
basis therefor as mandated by Soliven, Inting,Lim, Allado, and even Webb.
Moreover, the records of the preliminary investigation in Criminal Case
No. Q-93-43198 are not with this Court. They were forwarded by the
Office of the City Prosecutor of Quezon City to the DOJ in compliance with
the latter's 1st Indorsement of 21 April 1993. The trial court and the DOJ
must be required to perform their duty.
WHEREFORE, the instant petition is GRANTED and the following are
hereby SET ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of
respondent Court of Appeals in CA-G.R. SP No. 31226;
(b) The Resolutions of the "349" Committee of the Department of Justice
of 23 July 1993 dismissing the petitioners' petition for review and of 3
February 1994 denying the motion to reconsider the dismissal; and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993
in Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within
sixty (60) days from notice of this decision, the petitioners' petition for the
review of the Joint Resolution of Investigating Prosecutor Ramon Gerona
and thereafter to file the appropriate motion or pleading in Criminal Case

No. Q-93-43198, which respondent Judge Asuncion shall then resolve in

light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim
vs.Felix, Allado vs. Diokno, and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and
desist from further proceeding with Criminal Case No. Q-93-43198 and to
defer the issuances of warrants of arrest against the petitioners. No
pronouncement as to costs. SO ORDERED
G.R. Nos. 140961-63

January 14, 2003

PEOPLE OF THE PHILIPPINES, vs. BOBBY GALIGAO,

A womans cherished chastity is hers alone to surrender of her own free
will, and whoever violates that will descends to the level of an odious
beast. The act becomes twice repulsive when the outrage is perpetrated
on ones own flesh and blood for the culprit is reduced to a level lower
than an animal, which yields only to biological impulses, unfettered by
social inhibitions when it mates with its own kin. On the other hand, the
man who rapes his daughter violates not only her purity and her trust but
also the mores of society which he has scornfully defied. By inflicting his
bestial instincts on her in a disgusting coercion of incestuous lust, he
forfeits all respect as a human being and is justly spurned, not the least by
the fruit of his own loins whose progeny he has forever stained with his
shameful and shameless lechery.1
In the case at bar, the sexual depravity of the accused-appellant plumbs
into hitherto unreached depths of the revolting for he satiated his lust not
on one but three of his daughters. This case is their sordid story.
For ravishing his three daughters, Dorivie Galigao y Calderon, aged ten,
Deborrah Galigao y Calderon, aged eight, and Daisy Galigao y Calderon,
aged thirteen, Bobby Galigao was charged with Rape in three
Informations,2similarly worded except for names and ages of the victims
and the dates of commission of the crimes, filed before the Regional Trial
Court of Calapan City, Oriental Mindoro, Branch 40, as Criminal Cases Nos.
C-4974, C-4975 and C-4976. The indictments similarly aver

That on or about and sometime during the month of February 1996, in the
evening, in Sitio Paho, Barangay Canubing 1, Municipality of Calapan,
Province of Oriental Mindoro, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, motivated by lust and lewd
desire, and by means of force and intimidation, willfully, unlawfully and
feloniously did lie, and succeeded in having carnal knowledge of his own
daughter DORIVIE GALIGAO y CALDERON, an eight-year old girl against the
latters will and consent, and in full view of the victims brother and
sisters.

Before us on automatic review, pursuant to Article 47 of the Revised Penal

Code, as amended, accused-appellant argues that the trial court erred

Contrary to law.

II

Deborrah was allegedly raped on March 17, 1996; while Daisy was
allegedly raped on March 19, 1996.

IN NOT BELIEVING THE TESTIMONY OF THE ACCUSED-APPELLANT.

Upon arraignment on July 24, 1996, accused-appellant pleaded not guilty

to the charges.3 Thereafter, the three cases were jointly tried on the
merits.
On October 13, 1999, the court a quo found accused guilty beyond
reasonable doubt of Rape on three counts and was sentenced as follows:
ACCORDINGLY, finding herein accused Bobby Galigao y Marcelino guilty
beyond reasonable doubt, as principal, of the crimes of Rape (3 counts)
with the qualifying circumstance that in all these cases, the victims were
all under 18 years of age, and that the offender is the parent of the
victims, the Court hereby sentences said accused to suffer THREE (3)
DEATH PENALTIES together with all the accessory penalties imposed by
law and to indemnify the victims: Dorivie Galigao y Calderon in Criminal
Case No. C-4974, the amount of P75,000.00 as civil indemnity; P50,000.00
as moral damages and P50,000.00 as exemplary damages; Deborrah
Galigao y Calderon in Criminal Case No. C-4975, the amount of P75,000.00,
as civil indemnity, P50,000.00 as moral damages and P50,000.00 as
exemplary damages; and Daisy Galigao y Calderon in Criminal Case No. C4976, the amount of P75,000.00 as civil indemnity, P50,000.00 as moral
damages and P50,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs.
SO ORDERED.4

I
IN BASING ITS DECISION ON THE UNCORROBORATED TESTIMONIES OF
THE ALLEGED VICTIMS WITHOUT CONSIDERING THAT THE SAME WERE
MERELY FORCED ON THEM BY THEIR MOTHER WITH THE EVIL INTENTION
TO DECAPITATE (sic) THE DEFENDANT-APPELLANT WHO IS A HINDRANCE
TO HER ILLICIT RELATIONSHIP WITH HER PARAMOUR.

III
IN FAILING TO CONSIDER THAT ACCUSED-APPELLANT IS UNLETTERED AND
LACKS EVEN THE INSTINCTIVE DECENCY AND UPRIGHT MANNER
TANTAMOUNT TO INSANITY SUFFICIENT TO EXEMPT HIM FROM ANY
CRIMINAL LIABILITY.
IV
IN SENTENCING THE ACCUSED-APPELLANT WITH DEATH PENALTY EACH
(sic) FOR THE THREE (3) RAPES WHEN IN FACT RAPE AS A HEINOUS CRIME
WAS NOT YET PUNISHABLE BY DEATH WHEN THE SAME WERE
COMMITTED BY HIM SOMETIME IN FEBRUARY 1996, ON 17 MARCH 1996
AND ON 19 MARCH 1996 AGAINST DIFFERENT VICTIMS.5
The details of their ravishment is graphically narrated by the victims
themselves.
Dorivie Galigao, who was twelve years old when she took the witness
stand, testified that sometime in the night of February 1996, her sisters
Deborrah and Daisy, together with their brother Dexter, were sleeping in
their house at Canubing 1, Calapan, Oriental Mindoro. They slept in the
living room because it was hot. Their mother, Lourdes Calderon-Galigao,
had left for Manila. Dorivie was roused from her sleep when she felt
someone taking off her panties. She woke up and saw that it was her

father, accused-appellant Bobby Galigao. Accused-appellant took off his

briefs and lay on top of her. He inserted his penis into Dorivies vagina. She
felt pain but could not do anything because accused-appellant threatened
her with bodily harm if she reported the incident to anybody.6
After satisfying his lust, accused-appellant went to the bathroom to wash
himself. Then, he put on his briefs and told Dorivie to wash herself, which
she did. She put on her panties and went back to sleep. Meanwhile,
accused-appellant went to his room. Dorivie revealed that prior to the
incident, her father had raped her several times beginning when she was
nine years old.7
Dorivie also narrated how Deborrah and Daisy were ravished by her
father. At one time, she saw accused-appellant crawling towards Deborrah
and lay under the blanket beside her. Dorivie, who was only one meter
away, noticed that there was movement underneath the covers. Dorivie
further testified that she saw her father rape Daisy, her eldest sister.
However, she did not do anything for fear that accused-appellant will kill
her. As in Deborahs case, Dorivie was only a meter away when she
witnessed Daisys sexual abuse in the hands of their father.8
Deborrah Galigao was ten years old when she took the witness stand. She
corroborated Dorivies testimony that accused-appellant raped Dorivie
and Daisy several times at night in the living room of their house.9 More
importantly, she testified that in the evening of March 17, 1996, while she
was sleeping with her siblings in the living room of their house, accusedappellant removed her panties and his briefs, inserted his penis into her
private parts, and made thrusting motions. After a while, he went to the
comfort room to wash. Deborrah also washed herself.10
In his defense, accused-appellant admitted having raped Daisy, but
claimed he did so to get back at her mother who left him for a man with
whom she already had a child. He denied having raped Dorivie and
Deborrah and argued that the charges against him were filed at the
instigation of his wife. When asked why he did not file the appropriate
charges against his wife for her alleged infidelity, accused-appellant
claimed that nobody was willing to help him because she had a brother
who was a policeman.11

On cross-examination, accused-appellant admitted that he raped his three

daughters because he suspected that his wife was carrying an illicit affair
with another man:
COURT:
Q
Do you still confirm your testimony during your direct examination
that the reason you raped Daisy Galigao was because it was a revenge
against your wife who according to you went away with her paramour?
A

Yes, Your Honor.

Q
So that is the only reason why you committed the crime of rape
against your daughter?
A
Yes. But I have already asked for forgiveness for the acts that I have
committed and I have already repented for what I have done, Your Honor.
Q
How about the charges against you by Deborrah and Dorivie, what
can you say about that?
A
They are the only ones who can tell the truth of the matter, Your
Honor.
Q
Is it not a fact that it is sad to say that you might have done what
you did to Daisy Galigao with respect to Deborrah and Dorivie because of
your revenge with your wife who according to you went away with her
paramour?
A

No, Your Honor.

Q
So it is clear now that you are admitting the rape charges to Daisy
Galigao and so with Deborrah and Dorivie Galigao?
A

Yes, Your Honor.12

Daisy was presented as a defense witness however, she only made

matters worse for accused-appellant because, while she admitted to her
ravishment and her plans to forgive him, she later turned hostile upon
learning that she was raped out of revenge:
DIRECT EXAMINATION

ATTY. GARING:

With the kind permission of this Honorable Court.

Q
What I want to emphasize is to forgive your father and let the law
take its course.

Q
Your father admitted the rape charges against your person, what
can you say about that?
A

What he said is true that he raped me, sir.

When you take the witness stand, what is your purpose?

A
A while ago when my father sat down on the witness stand my
sister and I were planning to forgive him. But when I heard that the reason
he raped me was because he wanted to take revenge because my mother
left us with her paramour, I would like to say that my mother did not leave
us because she left with her paramour, but she left us in order to work.
Q
It was our understanding. Actually I advised your sister before the
hearing of this case that you will pardon your father for the crime of rape,
but is seems that your testimony is going to [be] different now and that
you are now pursuing with the case against your father. Was there
anybody who coerced to tell the contrary in this case?

What you mean is you want me to forgive him?

PROS. SEOREN:
To prevent any complications later, may we suggest that the line of
questioning be changed, Your Honor.
COURT:
Reform. Do not ask leading questions.
ATTY. GARING:
We believe we are withdrawing this witness, Your Honor.
COURT:
You are not yet through with your direct examination.
ATTY. GARING:
We are withdrawing the witness from further testifying, Your Honor.

A
Nobody threatened me, sir. I only changed my mind because of what
he testified this morning, I also witnessed what he did to my sister. If he
only admitted to me what he did to my sister, I can forgive him, but he did
not admit it to me, sir.

COURT:

Objection, Your Honor.

Q
You stated that you and your other sisters Deborrah and Dorivie
came to an agreement that you will already pardon your father for what
he had done to all of you. But upon hearing the testimony of your father
during the cross examination that the reason why your father abused you
is because your mother went away with her paramour and that your
father made that as a revenge against your mother. Did you say that?

COURT:

Dont ask leading questions.

Q
And you stated also during the direct examination that you were
present and a witness during the time that you[r] father was abusing your
two sisters Dorivie and Deborrah, is that correct?

Why did you tell it to me this morning?

PROS. SEOREN:

ATTY. GARING:
Q
Considering that he is your father, can you not possibly reconsider
your statement that you are continuing with the prosecution of this case?

Yes, Your Honor.

Yes, Your Honor.

Q
And so you confirmed the testimony given by your two sisters
Deborah and Dorivie that they were really abused by your father?
A

Yes, Your Honor.

Q
During the presentation of the evidence for the prosecution, why
did you not testify with respect to these cases when according to you you
were present and a witness when your sisters Dorivie and Deborrah were
abused by your father and also with respect to the rape case filed by you
against your father?
A
Because my uncle told me not to testify anymore because I am
already grown up, Your Honor.
COURT (to Atty. Garing)
So you are asking to defer the testimony of this witness?
ATTY. GARING:
The total withdrawal of the testimony of this witness, Your Honor.
COURT:
She has already testified and the Court will not allow that anymore. Any
more questions Fiscal?
PROS. SEOREN:
On the basis of the testimony during the direct examination and also on
the basis of the follow-up questions, we have no cross-examination.13

minor, says she has been raped, she says, in effect, all that is necessary to
prove that rape was committed.16 Youth and immaturity are generally
badges of truth.17Courts usually give greater weight to the testimony of a
girl who is a victim of sexual assault, especially a minor, particularly in
cases of incestuous rape, because no woman would be willing to undergo
a public trial and put up with the shame, humiliation and dishonor of
exposing her own degradation were it not to condemn an injustice and to
have the offender apprehended and punished.18
The embarrassment and stigma of allowing an examination of their private
parts and testifying in open court on the painfully intimate details of their
ravishment effectively rule out the possibility of false accusations of
rape19 by the private complainants. Indeed, it would be most unnatural for
young and immature girls to fabricate a story of rape by their father; allow
a medical examination of their genitalia, subject themselves to a public
trial and expose themselves to public ridicule at the instigation of their
mother in order that the mother can carry on an alleged illicit relation with
a paramour.20 Verily
Ill motive is never an essential element of a crime. It becomes
inconsequential where there are affirmative, nay, categorical declarations
towards the accused-appellants accountability for the felony.21
In stark contrast to the clear and categorical declarations of the private
complainants, accused-appellant interposes the defense of mental
incapacity and argues that at the time of the commission of the offenses,
he was bordering on insanity.

Suffice it to state that the testimonies of the victims bear the hallmarks of
truth. They are consistent in their material points. When a victims
testimony is straightforward, candid, unshaken by rigid cross-examination
and unflawed by inconsistencies or contradictions in its material points,
the same must be given full faith and credit.14

While this issue is being raised for the first time in this appeal, the same
will be addressed consistent with the dictum that an appeal in a criminal
case throws the whole case open for review and the reviewing tribunal
may correct such errors it may find in the appealed judgment even if they
have not been specifically assigned 22 if their consideration, as in this case,
is necessary in arriving at a just resolution thereof.23

Established is the rule that testimonies of rape victims, especially child

victims, are given full weight and credit.15In the case at bar, the victims
were barely eight, ten and thirteen years old when they were raped. In a
litany of cases, we have ruled that when a woman, more so if she is a

The defense of insanity is in the nature of confession and avoidance. Like

the justifying circumstance of self-defense, the burden is on the defense
to prove beyond reasonable doubt that accused-appellant was insane

immediately before the commission of the crime or at the very moment of

its execution.24 In other words, a defendant in a criminal case who
interposes the defense of mental incapacity has the burden of establishing
the fact that he was insane at the very moment when the crime
committed.25 There must be complete deprivation of reason in the
commission of the act, or that the accused acted without
discernment,26 which must be proven by clear and positive evidence.27 The
mere abnormality of his mental faculties does not preclude
imputability.28Indeed, a man may act crazy but it does not necessarily and
conclusively prove that he is legally so.29 The non-medical opinion of
defense counsel that accused-appellant was bordering on insanity hardly
measures up to the foregoing yardsticks. In the light of the positive
testimony of the victim proving accused-appellants criminal
accountability, this bare and unsubstantiated defense must perforce fail.
The evaluation of the credibility of witnesses and their testimonies is a
matter that is best undertaken by the trial court because of its unique
opportunity to observe the witnesses and their demeanor, conduct and
attitude, especially under cross-examination. Appellate courts are bound
by the findings of the trial court in this respect, unless it is shown that it
has overlooked, misunderstood or misappreciated certain facts and
circumstances which if considered would have altered the outcome of the
case.30 We find no reason to disturb the factual findings of the trial court
in this case.
Indeed, the revelation of young innocent girls, aged barely eight, ten and
thirteen, deserves full credit. The willingness of complainants to face
police investigation and to undergo the trouble and humiliation of a public
trial is eloquent testimony of the truth of their complaints.31 In short, it is
most improbable for innocent and guileless girls such as complainants to
brazenly impute a crime so serious as rape to any man, let alone their
father, if it were not true.32
Nevertheless, while accused-appellants guilt was proved beyond
reasonable doubt, we find the imposition of the three death penalties
against him excessive and unwarranted.

In imposing upon accused-appellant the supreme penalty of death, the

trial court erroneously cited Article 266-A (formerly Article 335), as well as
Article 266-B, (1),33 of the Revised Penal Code, as amended by Republic Act
No. 8353. Considering that the crimes were committed prior to the
effectivity of R.A. No. 8353 on October 22, 1997,34the provisions of R.A.
No. 7659,35 which was the law in effect at the time the rapes were
committed should have been applied.
The pertinent provisions of Article 335 of the Revised Penal Code, as
amended by Section 11 of R.A. No. 7659, read as follows:
ART. 335. When and how rape is committed. Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
xxx

xxx

xxx

The death penalty shall also be imposed if the crime 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. x x x.
However, the fact that rape was committed with the foregoing attendant
circumstance does not automatically merit the imposition of the death
penalty. As held in People v. Echegaray:36
xxx. The elements that call for the imposition of the supreme penalty of
death in these crimes would only be relevant when the trial court, given
the prerogative to impose reclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the evidence proffered
before it, found the attendance of certain circumstances in the manner by
which the crime was committed, or in the person of the accused on his
own or in relation to the victim, or in any other matter of significance to
the commission of the crime or its effects on the victim or in society,
which circumstances characterize the criminal act as grievous, odious or
hateful or inherently or manifestly wicked, vicious, atrocious or perverse

as to be repugnant and outrageous to the common standards and norms

of decency and morality in a just and civilized and ordered society.
We pointed out in the Echegaray case that the imposition of the death
penalty in those cases where the law provides for a penalty ranging
from reclusion perpetua to death does not give the trial court an
unfettered but, rather, a guided discretion in the imposition of capital
punishment. Particularly enlightening on how such discretion is to be
exercised is the recent case of People v. Antonio Roque,37 where the
accused was likewise sentenced by the trial court to death for raping his
two daughters aged nine and eleven. In the said case, we reduced the
penalties from death to reclusion perpetua, to wit:
The death penalty could thus be decreed; nevertheless, Section 22 of
Republic Act No. 7659, amending Article 47 of the Revised Penal Code,
recognizes that in death penalty cases the High Tribunal puts to a vote not
only the issue of guilt of an appellant but also the question on the
imposition of the death penalty itself. The law provides thusly:
Sec. 22. Article 47 of the same Code is hereby amended to read as follows:
ART. 47. In what cases the death penalty shall not be imposed; Automatic
review of Death Penalty Cases. The death penalty shall be imposed in all
cases in which it must be imposed under existing laws, except when the
guilty person is below eighteen (18) years of age at the time of the
commission of the crime or is more than seventy years of age or when
upon appeal or automatic review of the case by the Supreme Court, the
required majority vote is not obtained for the imposition of the death
penalty, in which cases, the penalty shall be reclusion perpetua.
The Court heretofore acknowledged that circumstances could exist to
warrant an exercise of such forbearance. InPeople v. Santos,38 the Court
considered the acts of the deceased victim, a former municipal mayor, in
clearing and working on the land claimed by the Ilongots which could have
been seen by the accused as an act of oppression and abuse of authority
which he felt morally bound to forestall, as well as the limited schooling of
the accused, as justification to reduce the penalty of death to reclusion
perpetua. In People v. De la Cruz,39 the Court took into account in lowering

the penalty to reclusion perpetua on the accused most of whom were

already death row convicts, the deplorable sub-human conditions of the
National Penitentiary where the crime was committed. In People v.
Marcos,40 the failure of appellant to realize the gravity of his offense was
held to justify the reduction of the penalty to reclusion perpetua. (italics
ours)
Where, as in the above-mentioned Santos case, accusedappellants limited schooling was taken into consideration to reduce his
penalty to reclusion perpetua, we can do no less herein considering that
accused-appellant is an unlettered fisherman.41
Finally, the conviction of accused-appellant in Criminal Case No. 4976, as
to the alleged rape of Daisy Galigao should be struck down. Although the
Information in Criminal Case No. 4976 speaks of a "criminal complaint,"
none was ever presented.42 Indeed, SPO4 Calderon, uncle of Daisy Galigao,
testified that Daisy herself insisted in not pursuing the case against
accused-appellant as she was already grown up and did not want to be the
subject of gossip in the school where she was enrolled.43
Apparently, the trial court convicted accused-appellant of three counts of
rape on the belief that he was being tried under the provisions of R.A. No.
8353. However, the crimes for which he was convicted were committed in
1996, before R.A. No. 8353 took effect in 1997. The said statute can not be
made to apply retroactively for reasons earlier stated. Prior to its
amendment by R.A. No. 8535, Article 335 of the Revised Penal Code
required a criminal complaint before an Information is filed. There being
no such complaint in Criminal Case No. C-4976, it was palpable error for
the lower court to convict accused-appellant for the crime of rape on
Daisy Galigao. Moreover, as earlier stated, no trial was ever conducted in
the said case.
All told, we are convinced of the guilt beyond reasonable doubt of
accused-appellant for two counts of rape committed against his
daughters, Dorivie and Deborrah. But given the circumstances attendant
to this case, there is sufficient justification in imposing on accusedappellant the reduced penalty of reclusion perpetua for each count of
rape.

In view of the foregoing considerations, the indemnity ex delicto awarded

is hereby reduced to P50,000.00 consistent with controlling jurisprudence
on the matter.44 The amount of moral damages will not be disturbed as
they are in accord with case law thereon.45 However, the award of
exemplary damages must be reduced to P25,000.00.46
WHEREFORE, the judgment of the Regional Trial Court of Calapan City,
Oriental Mindoro, Branch 40, in Criminal Cases Nos. C-4974 and C-4975,
finding accused-appellant guilty beyond reasonable doubt of the crime of
rape, is AFFIRMED with the following MODIFICATIONS: accused-appellant
is sentenced to suffer the penalty ofReclusion Perpetua for each count of
rape; he is ordered to pay each of the offended parties the amount of
P50,000.00 as indemnity ex delicto; P50,000.00 as moral damages and
P25,000.00 as exemplary damages.
Accused-appellant is ACQUITTED in Criminal Case No. C-4976. SO
ORDERED
G.R. No. 66437 December 4, 1989
PEOPLE OF THE PHILIPPINES, vs. JAIME GUEVARRA Y ARCEGA, ET AL
In an Amended Information, docketed as Criminal Case No. 1425 of the
Regional Trial Court of Nueva Ecija, Jaime Guevarra y Arcega, Poncing
Abergas, Dan Tolentino, Baldo de Jesus, Roming Longhair, Boy Tae, Boy
Pogi, Vergel Bustamante alias "Dan Saksak", and Chotse Doe alias Bernabe
Sulaybar y Hernandez were accused of the crime of Kidnapping committed
as follows:
That on or about the 8th day of April, 1980, in the Municipality of Gapan,
Province of Nueva Ecija, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of gain,
conspiring and confederating together and mutually aiding, helping and
abetting one another, with aggravating circumstances of nocturnity, with
the use of assorted firearms and hand grenade, did then and there,
wilfully, unlawfully and feloniously enter the house of one PRISCILLA P.
CRUZ and once inside, kidnapped, abducted and seriously detained and
deceived (sic) her of her liberty for a period of not more than five (5) days,
to her damage and prejudice.

After a separate trial for Poncing Abergas and Vergel Bustamante alias
"Dan Saksak," inasmuch as Dan Tolentino, who had previously entered of
plea of "not guilty" could not be served with subpoenas, and the other
accused were reported to have died, judgment was rendered ** finding
the accused Vergel Bustamante alias "Dan Saksak" guilty of the crime of
Kidnapping and Serious Illegal Detention and sentenced to suffer
the death penalty, and to indemnify the offended party, Mrs. Priscilla Cruz,
in the amount of P5,000.00. The accused Poncing Abergas, upon the other
hand, was acquitted of the charge.
In view of the death penalty imposed, the record of the case was elevated
to the Court for review. However, with the adoption of the 1987
Constitution which does not allow the imposition of the death penalty and
reduces death penalties already imposed to reclusion perpetua, the case,
upon election of the accused Vergel Bustamante, ***was continued as an
appealed case.
The prosecution's version of the facts of the case, as related by the
People's counsel, are as follows:
It appears from the evidence of the prosecution that in the evening of
April 8, 1980, armed men entered the house of the spouses Luisito Cruz
and Priscilla Cruz located at San Lorenzo, Gapan, Nueva Ecija, and robbed
said spouses of P3,000.00 and jewelry (tsn, May 4, 1983, p. 42; tsn, June 8,
1983, p. 7). Thereafter, these men threatened Luisito Cruz to give the key
to his car (tsn, June 8, 1983, p. 6). Luisito was forced to give the key to one
of the men, Vergel Bustamante (id., p. 5). Luisito and his companions in
the house were then ordered to enter a room and were tied there (id., p.
12).
After the crime of robbery was committed by the armed men, Priscilla
Cruz was forcibly boarded inside her own car by her kidnappers i tsn, June
8, 1983, p. 4; tsn, May 4, 1983, p. 43). Vergel Bustamante drove the car
(tsn, May 4, 1983, p. 48) towards the direction of Manila (id., p. 43). There
were five men in the car. She was the only female. She was made to sit at
the back seat of the car between two men. One of them poked his gun at
her, while the other pointed a knife at her side. Three of the men sat on
the front seat (id., pp. 44-45).

The men then told Priscilla Cruz that they were holding her for ransom of
P50,000.00 (id., p. 461). They first stopped somewhere in Capihan, San
Rafael, Bulacan because the engine of the car broke down (tsn, May 17,
1983, p. 9). The men hired a truck in order for them to continue their
travel. Upon reaching Paxton Hotel at Valenzuela, Bulacan, the men left
her and the truck driver there. Priscilla Cruz heard one of the men say that
she should be left there because they believed that the kidnapping' did
not materialize'. (tsn, May 4, 1983, p. 48) The five men then boarded a taxi
(id., p. 49).
After regaining her composure, Priscilla Cruz requested the truck driver to
bring her home. The truck driver agreed and brought her to Gapan, Nueva
Ecija (id., pp. 50-51).
That same evening of April 8, 1980, Luisito Cruz reported to the police
authorities about the robbery and the kidnapping that occurred in his
house. The action on the paint of the police authorities led to the
detention and investigation of Vergel Bustamante at the Western Police
Headquarters in Manila. Vergel Bustamante was later Identified there by
Priscilla Cruz as one of her kidnappers, (tsn, May 4, 1983, p. 7; pp. 9-10;
and pp. 54-55). 1
The defendant-appellant, Vergel Bustamante, upon the other hand,
denied having participated in the commission of the crime charged and
interposed the defense of alibi. According to him, he was in Caloocan City
in the evening of 8 April 1980, at the time the crime complained of was
being committed in Gapan, Nueva Ecija. 2
The trial court, however, rejected the appellant's defense, as the said
appellant had been positively identified by witnesses, and that it was not
impossible for him to be at the scene of the crime at the time it was
committed in view of the proximity of Gapan, Nueva Ecija to Caloocan City
and the distance could be traversed by a motor vehicle in less than ninety
(90) minutes.
1. Counsel for the defendant-appellant, in this appeal, contends that the
trial court erred in ordering the amendment of the information to include,
as party defendant, Vergel Bustamante alias "Dan Saksak" despite lack of

proof that Vergel Bustamante and "Dan Saksak" are one and the same
person.
We find the contention devoid of merit. The questioned order of the trial
court to amend the information to include the correct name of one of the
accused, "Dan Saksak", which is Vergel Bustamante, 3 is not without basis,
The following circumstances, evident in the record of the criminal case
forwarded by the Municipal Trial Court of Gapan, Nueva Ecija to the
Regional Trial Court of Nueva Ecija, obviously led the judge of the latter
court to believe that Vergel Bustamante and "Dan Saksak" are one and the
same person:
(1) A subpoena issued by the Municipal Court of Gapan, Nueva Ecija in
Criminal Case Nos. 186-80 and 192-80 was directed to one "Vergel
Bustamante alias 'Dan Saksak. 4
(2) In a Return of Service of one subpoena, the Warden of the City Jail of
Manila informed the Clerk of Court of the Municipal Court of Gapan,
Nueva Ecija that "VERGEL BUSTAMANTE @ 'Dan Saksak' said to be one of
the accused in the above- mentioned Criminal Cases is not included in the
list of present Inmates of this Jail as of 7:30 a.m. this date. 5
(3) The order issued by the Municipal Court of Gapan, Nueva Ecija on 25
September 1980, finding a prima facie case against the accused therein
also stated that one of the accused is Vergel Bustamante alias Dan Saksak.
The order reads, in part, as follows:
When these cases are (sic) called for hearing today, 2nd stage preliminary
investigation, the accused namely, JAIME GUEVARRA Y ARCEGA, BERNABE
ZULAYBAR @ CHOTSE and VERGEL BUSTAMANTE @ DAN SAKSAK filed a
written waiver of their rights to present evidence during the 2nd stage
preliminary investigation. With respect with (sic) the two other accused
namely, DAN TOLENTINO and PONCING ABERGAS, they both failed to
appear, hence this Court considered the same as a waiver of the 2nd stage
preliminary investigation. 6
(4) The letter of transmittal of the records of the cases to the Regional
Trial Court of Nueva Ecija stated that one of the accused therein, Vergel
Bustamante @ Dan Saksak is detained at the Manila City Jail. 7

In any event, the issue cannot be raised for the first time on appeal. The
issue is one affecting jurisdiction over the person and should have been
raised before the trial court in a motion to quash the information. Since
the defendant-appellant failed to do so, he is deemed to have waived his
objection to the information. 8
It is well to note that before the case was tried in the court a quo, Atty.
Romano, counsel for the defendant-appellant, told the court that he was
filing a motion to quash the information for kidnapping. 9 But, he failed to
file such motion. Obviously, he was satisfied with the legality of the
information filed.
2. Counsel for the defendant-appellant also contends that there was no
reinvestigation conducted after 14 March 1983 to justify the filingellant
failed to do so, he is deemed to have waived his objection to the
information. of the amended information on 15 March 1983. As ground
therefor, counsel claims that Atty. Romano, counsel for the defendantappellant in the court below, did not know of any such investigation.
This contention is also devoid of merit. That a reinvestigation had been
conducted in this case is shown by the certification of the Fiscal to the
following effect:
I hereby certify that I have conducted a reinvestigation in this case
pursuant to Republic Act No. 5180, as amended by Presidential Decree No.
77, and as further amended by Presidential Decree No. 911, and that on
the basis of the sworn statements and other evidence submitted before
me, there is a reasonable ground to believe that a crime has been
committed and that the accused are probably guilty thereof, that the
accused were informed of the complaint against them and that they were
given an opportunity to submit controverting evidence. 10
The lack of knowledge on the part of Atty. Romano that a reinvestigation
had been conducted by the Fiscal, is a poor excuse for claiming that no reinvestigation whatsoever had been conducted. Atty. Romano may not
have learned of the re-investigation conducted by the Fiscal inasmuch as
his appointment as counsel de oficio for the defendant-appellant was
made only after the arraignment of the accused-appellant, where

appellant was assisted by Atty. Joventino Cornista. 11 According to Atty.

Romano, he entered his appearance in the case only on 3 May 1983. At
the hearing of the case on 4 May 1983, the following incident transpired:
Atty. Romano:
May we be given three (3) days within which to file our motion for
reconsideration in denying our motion, your honor.
COURT:
That is delaying the administration of justice. This court is going to cite
counsel from the CLAO to explain why he should not be cited for
contempt.
Atty. Romano:
Yes, your honor, but I entered only my appearance yesterday and I was
not able to study the case. 12
3. Counsel for the defendant-appellant further contends that the trial
court erred in convicting said appellant upon the testimonies of the
prosecution witnesses, which he claims to be improbable, contradictory
and full of inconsistencies, and the appellant's extra- judicial
confession, 13 supposedly given during custodial investigation.
The contention is without merit. The flaws or discrepancies in the
testimonies of the witnesses for the prosecution, pointed out by counsel
for the defendant-appellant, refer to minor details which cannot destroy
the substance of such testimonies. On the contrary, these discrepancies
and contradictions show that the said witnesses were not rehearsed.
Besides, the issue raised involves the credibility of witnesses and we have
repeatedly upheld the well-established rule that the highest degree of
respect is accorded to the findings of the trial court, the latter being in the
best position to observe the demeanor and manner of testifying of the
witnesses.
With respect to the extra-judicial confession which the defendantappellant denied having executed, suffice it to state that the evidence

presented by the prosecution is sufficient to support a finding of guilt even

without the said extra-judicial confession. Priscilla Cruz, the kidnap victim,
positively Identified the defendant-appellant as the person who drove the
car from Gapan, Nueva Ecija to San Rafael, Bulacan, where the said car
broke down. Her testimony reads as follows:
Q You said that your car was taken from your garage and then it reach (sic)
San Rafael, Bulacan. Who were with you in your car when you left your
residence?
Atty. Romano:
No basis, your honor.
COURT:

Q There are so many persons inside the court room, will you please look
around carefully and if any of those five men were present will you point
him out?
A I can see one of the accused, sir.
Q Can you step down and point him if you can see that accused?
A At this juncture said witness step (sic) down and went to the accused
where he was seated. The witness went straight to the place of the
accused Vergel Bustamante the witness stated that this is the one I
recognize, sir who was seated at the farthest bench inside the court room.
Fiscal Garcia:

Witness may answer.

Q As of this moment, do you know the name of the person you pointed
out?

A They are (sic) five males and I am (sic) only the female, sir.

A Now, sir, I know him.

Q And where were you seated inside the car?

Q Will you tell the court by what name he is known to you?

A They placed me at the back seat of the car. I was placed between the
two of them, one poked his gun at me and the other, with a knife pointed
at my side, sir.

A He is Vergel Bustamante, sir. 14

Q How many men were with you at the back seat?

A There were two, sir.
Q And so they were three (3) infront of the car?

xxx xxx xxx

Q While you were still in the car before you reached San Rafael, Bulacan,
where was this Vergel Bustamante placed inside the car?
A He was the driver, sir. 15

A Yes, sir.

Luisito Cruz, husband of Priscilla, also recognized the defendant-appellant

as the person who took the car key from him. He said:

Q Before this robbery you have not seen any of them by face?

Q Do you know who took that key from you?

A Yes, sir.

A I do not know him at that time but I was only able to recognize him
during the time I confronted him, sir.

Q Considering that you rode in your car with five men from your residence
and then to Valenzuela, will you be able to tell the court if you will
recognize, if any, of this five men who brought you?
A Yes, sir.

Q Do you know the name of that person?

A I came to know his name only during the investigation of this case that
he was Vergel Bustamante, sir.

COURT:
Q Where was the key of your car at that time?
A There is a place where we kept our keys in the house and it is where I
took the key from, sir.
Q Who took the key from you?
A I was the one who got the key from the place where I kept it and gave it
to them because they demanded it from me so that they could use the
car, sir.
Q Do you know who is that person who demanded to ge the key from you,
if you know him will you please point him out if he is inside the court room
now?
A There, sir, witness pointing to a person in red T-shirt inside the court
room.
COURT:
Q What is your name?
A The said person stood up who when asked responded by the name of
Vergel Bustamante., 16
There can be no doubt, therefore, as to the participation of the defendantappellant in the commission of the crime complained of.
The defendant-appellant, however, cannot be convicted of the graver
offense of kidnapping for the purpose of extorting a ransom, as found by
the trial court. Mrs. Pricilla Cruz merely testified that while she was inside
the car, she heard one of the robbers say that she will be held for ransom.
Her testimony reads as follows:
Q You said that you were taken and that they are (sic) asking for ransom of
P50,000.00. How do you know that you were held for ransom of
P50,000.00?
A They told me, sir, that they will hold me for ransom of P50,000.00.

Q When did you hear that statement for the first time or when did you
first learn about this?
A From one of the robbers who were inside the car, sir. 17
But, the element of demand for ransom does not exist. No ransom note
was presented in court, much less is there a showing that a demand for
money was made upon the family of the victim for her safe return. Luisito
Cruz, the husband of the kidnap victim, learned of the supposed ransom
from Priscilla only upon the latter's return to Gapan, Nueva Ecija in the
morning of 19 April 1983. 18 The absence of a demand for ransom negates
the allegation of kidnapping for ransom. 19
Besides, the Amended Information filed in this case merely alleges that
the accused therein had kidnapped Mrs. Priscilla Cruz. But, there is no
allegation that said kidnapping was for the purpose of extorting a ransom.
The settled rule is "that an accused person cannot be convicted of a higher
offense than that with which he is charged in the complaint or information
on which he is tried. It matters not how conclusive and convincing the
evidence of guilt may be, an accused person cannot be convicted in the
Courts of these Islands of any offense, unless it is charged in the complaint
or information on which he is tried, or necessarily included therein. He has
a right to be informed of the nature of the offense with which he is
charged before he is put on trial, and to convict him of a higher offense
than that charged in the complaint or information on which he is tried
would be an authorized denial of that right. 20
Hence, the defendant-appellant can only be convicted of the crime of
kidnapping of a female, as provided for in Art. 267, No. 4 of the Revised
Penal Code. Considering that the commission of the offense was attended
by the aggravating circumstances of (1) use of motor vehicle, and (2) with
the aid of armed men, with no mitigating circumstance to offset the same,
the maximum of the penalty provided for was correctly imposed. But,
since Art. III, Sec. 19(l) of the 1987 Constitution mandates that any death
penalty already imposed shall be reduced toreclusion perpetua, the death
penalty imposed upon the defendant-appellant is commuted to reclusion
perpetua.

WHEREFORE, the judgment appealed from is hereby AFFIRMED with the

modification that the defendant-appellant Vergel Bustamante alias "Dan
Saksak" is sentenced to suffer the penalty of reclusion perpetua. Without
costs. SO ORDERED.

A The Information filed by the People

1. In L-42050-66, one typical Information filed with the Court presided by
Judge Purisima follows:

G.R. No. L-42050-66 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS

Y DURAN, accused.

THE PEOPLE OF THE PHILIPPINES, vs. HONORABLE JUDGE AMANTE P.

PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII, ET AL

Crim. Case No. 19639

These twenty-six (26) Petitions for Review filed by the People of the
Philippines represented, respectively, by the Office of the City Fiscal of
Manila, the Office of the Provincial Fiscal of Samar, and joined by the
Solicitor General, are consolidated in this one Decision as they involve one
basic question of law.
These Petitions or appeals involve three Courts of First Instance, namely:
the Court of First Instance of Manila, Branch VII, presided by Hon. Amante
P. Purisima (17 Petitions), the Court of First Instance of Manila, Branch
XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of
First Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1
Petition).
Before those courts, Informations were filed charging the respective
accused with "illegal possession of deadly weapon" in violation of
Presidential Decree No. 9. On a motion to quash filed by the accused, the
three Judges mentioned above issued in the respective cases filed before
them the details of which will be recounted below an Order quashing
or dismissing the Informations, on a common ground, viz, that the
Information did not allege facts which constitute the offense penalized by
Presidential Decree No. 9 because it failed to state one essential element
of the crime.
Thus, are the Informations filed by the People sufficient in form and
substance to constitute the offense of "illegal possession of deadly
weapon" penalized under Presidential Decree (PD for short) No. 9? This is
the central issue which we shall resolve and dispose of, all other corollary
matters not being indispensable for the moment.

VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081

INFORMATION
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation
of paragraph 3, Presidential Decree No. 9 of Proclamation 1081,
committed as follows:
That on or about the 14 th day of December, 1974, in the City of Manila,
Philippines, the said accused did then and there wilfully, unlawfully,
feloniously and knowingly have in his possession and under his custody
and control one (1) carving knife with a blade of 6- inches and a wooden
handle of 5-1/4 inches, or an overall length of 11- inches, which the said
accused carried outside of his residence, the said weapon not being used
as a tool or implement necessary to earn his livelihood nor being used in
connection therewith.
Contrary to law. (p. 32, rollo of L-42050-66)
The other Informations are similarly worded except for the name of the
accused, the date and place of the commission of the crime, and the kind
of weapon involved.
2. In L-46229-32 and L-46313-16, the Information filed with the Court
presided by Judge Maceren follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y
AQUINO, accused.
CRIM. CASE NO. 29677
VIOL. OF PAR. 3,

PD 9 IN REL. TO LOI
No. 266 of the Chief
Executive dated April 1, 1975
INFORMATION
The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF
PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of
Instruction No. 266 of the Chief Executive dated April 1, 1975, committed
as follows:
That on or about the 28 th day of January, 1977, in the City of Manila,
Philippines, the said accused did then and there wilfully, unlawfully and
knowingly carry outside of his residence a bladed and pointed weapon, to
wit: an ice pick with an overall length of about 8 inches, the same not
being used as a necessary tool or implement to earn his livelihood nor
being used in connection therewith.
Contrary to law. (p. 14, rollo of L-46229-32)
The other Informations are likewise similarly worded except for the name
of the accused, the date and place of the commission of the crime, and the
kind of weapon involved.
3. In L-46997, the Information before the Court of First Instance of Samar
is quoted hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION,
accused.
CRIM. CASE NO. 933
For:
ILLEGAL POSSESSION OF
DEADLY WEAPON
(VIOLATION OF PD NO. 9)
INFORMATION

The undersigned First Assistant Provincial Fiscal of Samar, accuses

PANCHITO REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY
WEAPON or VIOLATION OF PD NO. 9 issued by the President of the
Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated
Sept. 21 and 23, 1972, committed as follows:
That on or about the 6th day of October, 1976, in the evening at Barangay
Barruz, Municipality of Matuginao, Province of Samar Philippines, and
within the jurisdiction of this Honorabe Court, the abovenamed accused,
knowingly, wilfully, unlawfully and feloniously carried with him outside of
his residence a deadly weapon called socyatan, an instrument which from
its very nature is no such as could be used as a necessary tool or
instrument to earn a livelihood, which act committed by the accused is a
Violation of Presidential Decree No. 9.
CONTRARY TO LAW. (p. 8, rollo of L-46997)
B. The Orders of dismissal
In dismissing or quashing the Informations the trial courts concurred with
the submittal of the defense that one essential element of the offense
charged is missing from the Information, viz: that the carrying outside of
the accused's residence of a bladed, pointed or blunt weapon is in
furtherance or on the occasion of, connected with or related to
subversion, insurrection, or rebellion, organized lawlessness or public
disorder.
1. Judge Purisima reasoned out, inter alia, in this manner:
... the Court is of the opinion that in order that possession of bladed
weapon or the like outside residence may be prosecuted and tried under
P.D. No. 9, the information must specifically allege that the possession of
bladed weapon charged was for the purpose of abetting, or in furtherance
of the conditions of rampant criminality, organized lawlessness, public
disorder, etc. as are contemplated and recited in Proclamation No. 1081,
as justification therefor. Devoid of this specific allegation, not necessarily
in the same words, the information is not complete, as it does not allege
sufficient facts to constitute the offense contemplated in P.D. No. 9. The
information in these cases under consideration suffer from this defect.

xxx xxx xxx

And while there is no proof of it before the Court, it is not difficult to
believe the murmurings of detained persons brought to Court upon a
charge of possession of bladed weapons under P.D. No. 9, that more than
ever before, policemen - of course not all can be so heartless now have
in their hands P.D. No. 9 as a most convenient tool for extortion, what
with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows
where it came from. Whereas before martial law an extortion-minded
peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything
that has the semblance of a sharp edge or pointed object, available even
in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely
applied, its necessity can never be assailed. But it seems it is back-firing,
because it is too hot in the hands of policemen who are inclined to
backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of
the Fiscal and the conscience of the Court, and hence this resolution, let
alone technical legal basis, is prompted by the desire of this Court to apply
said checkvalves. (pp. 55-57, rollo of L-42050-66)
2. Judge Maceren in turn gave his grounds for dismissing the charges as
follows:
xxx xxx xxx
As earlier noted the "desired result" sought to be attained by
Proclamation No. 1081 is the maintenance of law and order throughout
the Philippines and the prevention and suppression of all forms of lawless
violence as well as any act of insurrection or rebellion. It is therefore
reasonable to conclude from the foregoing premises that the carrying of
bladed, pointed or blunt weapons outside of one's residence which is
made unlawful and punishable by said par. 3 of P.D. No. 9 is one
thatabets subversion, insurrection or rebellion, lawless violence,

criminality, chaos and public disorder or is intended to bring about these

conditions. This conclusion is further strengthened by the fact that all
previously existing laws that also made the carrying of similar weapons
punishable have not been repealed, whether expressly or impliedly. It is
noteworthy that Presidential Decree No. 9 does not contain any repealing
clause or provisions.
xxx xxx xxx
The mere carrying outside of one's residence of these deadly weapons if
not concealed in one's person and if not carried in any of the aforesaid
specified places, would appear to be not unlawful and punishable by law.
With the promulgation of Presidential Decree No. 9, however, the
prosecution, through Assistant Fiscal Hilario H. Laqui, contends in his
opposition to the motion to quash, that this act is now made unlawful and
punishable, particularly by paragraph 3 thereof, regardless of the intention
of the person carrying such weapon because the law makes it "mala
prohibita". If the contention of the prosecution is correct, then if a person
happens to be caught while on his way home by law enforcement officers
carrying a kitchen knife that said person had just bought from a store in
order that the same may be used by one's cook for preparing the meals in
one's home, such person will be liable for punishment with such a severe
penalty as imprisonment from five to ten years under the decree. Such
person cannot claim that said knife is going to be used by him to earn a
livelihood because he intended it merely for use by his cook in preparing
his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to
be interpreted and applied in the manner that that the prosecution wants
it to be done. The good intentions of the President in promulgating this
decree may thus be perverted by some unscrupulous law enforcement
officers. It may be used as a tool of oppression and tyranny or of extortion.
xxx xxx xxx
It is therefore the considered and humble view of this Court that the act
which the President intended to make unlawful and punishable by
Presidential Decree No. 9, particularly by paragraph 3 thereof, is one

that abets or is intended to abet subversion, rebellion, insurrection,

lawless violence, criminality, chaos and public disorder. (pp. 28-30, rollo of
L-46229-32)
3. Judge Polo of the Court of First Instance of Samar expounded his order
dismissing the Information filed before him, thus:
... We believe that to constitute an offense under the aforcited
Presidential decree, the same should be or there should be an allegation
that a felony was committed in connection or in furtherance of
subversion, rebellion, insurrection, lawless violence and public disorder.
Precisely Proclamation No. 1081 declaring a state of martial law
throughout the country was issued because of wanton destruction to lives
and properties widespread lawlessness and anarchy. And in order to
restore the tranquility and stability of the country and to secure the
people from violence anti loss of lives in the quickest possible manner and
time, carrying firearms, explosives and deadly weapons without a permit
unless the same would fall under the exception is prohibited. This
conclusion becomes more compelling when we consider the penalty
imposable, which is from five years to ten years. A strict enforcement of
the provision of the said law would mean the imposition of the Draconian
penalty upon the accused.
xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial
law, as a matter of status symbol, carrying deadly weapons is very
common, not necessarily for committing a crime nor as their farm
implement but for self-preservation or self-defense if necessity would
arise specially in going to and from their farm. (pp. 18-19, rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before
arraignment of the accused. In the criminal case before the Court of (First
Instance of Samar the accused was arraigned but at the same time moved
to quash the Information. In all the cases where the accused were under
arrest, the three Judges ordered their immediate release unless held on
other charges.

C. The law under which the Informations in question were filed by the
People.
As seen from the Informations quoted above, the accused are charged
with illegal possession of deadly weapon in violation of Presidential
Decree No. 9, Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED
SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE
UNLAWFUL AND PROVIDING PENALTIES THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972,
the Philippines has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6
dated September 22, 1972 and General Order No. 7 dated September 23,
1972, have been promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence,
criminality, chaos and public disorder mentioned in the aforesaid
Proclamation No. 1081 are committed and abetted by the use of firearms,
explosives and other deadly weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all
the Armed Forces of the Philippines, in older to attain the desired result of
the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do
hereby order and decree that:
1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful
and the violator shall, upon conviction suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a
Military, Court/Tribunal/Commission may direct, it the firearm involved in
the violation is unlicensed and is attended by assault upon, or resistance
to persons in authority or their agents in the performance of their official
functions resulting in death to said persons in authority or their agent; or if

such unlicensed firearm is used in the commission of crimes against

persons, property or chastity causing the death of the victim used in
violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:
(b) The penalty of imprisonment ranging from twenty years to life
imprisonment as a Military Court/Tribunal/commission may direct, when
the violation is not attended by any of the circumstances enumerated
under the preceding paragraph;
(c) The penalty provided for in the preceding paragraphs shall be imposed
upon the owner, president, manager, members of the board of directors
or other responsible officers of any public or private firms, companies,
corporations or entities who shall willfully or knowingly allow any of the
firearms owned by such firm, company, corporation or entity concerned to
be used in violation of said General Orders Nos. 6 and 7.
2. It is unlawful to posses deadly weapons, including hand grenades, rifle
grenades and other explosives, including, but not limited to, "pill box
bombs," "molotov cocktail bombs," "fire bombs," or other incendiary
device consisting of any chemical, chemical compound, or detonating
agents containing combustible units or other ingredients in such
proportion, quantity, packing, or bottling that ignites by fire, by friction, by
concussion, by percussion, or by detonation of all or part of the compound
or mixture which may cause such a sudden generation of highly heated
gases that the resultant gaseous pressures are capable of producing
destructive effects on continguous objects or of causing injury or death of
a person; and any person convicted thereof shall be punished by
imprisonment ranging from ten to fifteen years as a Military
Court/Tribunal/Commission may direct.
3. It is unlawful to carry outside of residence any bladed, pointed or blunt
weapon such as "fan knife," "spear," "dagger," "bolo," "balisong,"
"barong," "kris," or club, except where such articles are being used as
necessary tools or implements to earn a livelihood and while being used in
connection therewith; and any person found guilty thereof shall suffer the
penalty of imprisonment ranging from five to ten years as a Military
Court/Tribunal/Commission may direct.

4. When the violation penalized in the preceding paragraphs 2 and 3 is

committed during the commission of or for the purpose of committing,
any other crime, the penalty shall be imposed upon the offender in its
maximum extent, in addition to the penalty provided for the particular
offenses committed or intended to be committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord,
nineteen hundred and seventy-two.
(SGD) FERDINAND E. MARCOS
President
Republic of the Philippines
D. The arguments of the People
In the Comment filed in these cases by the Solicitor General who as stated
earlier joins the City Fiscal of Manila and the Provincial Fiscal of Samar in
seeking the setting aside of the questioned orders of dismissal, the main
argument advanced on the issue now under consideration is that a perusal
of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be
related to subversive activities; that the act proscribed is essentially
a malum prohibitum penalized for reasons of public policy. 1
The City Fiscal of Manila in his brief adds further that in statutory offenses
the intention of the accused who commits the act is immaterial; that it is
enough if the prohibited act is voluntarily perpetuated; that P.D. 9
provides and condemns not only the carrying of said weapon in
connection with the commission of the crime of subversion or the like, but
also that of criminality in general, that is, to eradicate lawless violence
which characterized pre-martial law days. It is also argued that 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
law alleged to have been violated but by the actual recital of facts in the
complaint or information. 2
E. Our Ruling on the matter

1. It is a constitutional right of any person who stands charged in a criminal

prosecution to be informed of the nature and cause of the accusation
against him. 3
Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly
requires that for a complaint or information to be sufficient it must, inter
alia state the designation of the offense by the statute, and the acts or
omissions complained of as constituting the offense. This is essential to
avoid surprise on the accused and to afford him the opportunity to
prepare his defense accordingly. 4
To comply with these fundamental requirements of the Constitution and
the Rules on Criminal Procedure, it is imperative for the specific statute
violated to be designated or mentioned 4 in the charge. In fact, another
compelling reason exists why a specification of the statute violated is
essential in these cases. As stated in the order of respondent Judge
Maceren the carrying of so-called "deadly weapons" is the subject of
another penal statute and a Manila city ordinance. Thus, Section 26 of Act
No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about
his person any bowie knife, dirk dagger, kris, or other deadly weapon: ...
Any person violating the provisions of this section shall, upon conviction in
a court of competent jurisdiction, be punished by a fine not exceeding five
hundred pesos, or by imprisonment for a period not exceeding six months,
or both such fine and imprisonment, in the discretion of the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No.
3928 which took effect on December 4, 1957, in turn penalizes with a fine
of not more than P200.00 or imprisonment for not more than one months,
or both, at the discretion of the court, anyone who shall carry concealed in
his person in any manner that would disguise its deadly character any kind
of firearm, bowie knife, or other deadly weapon ... in any public
place.Consequently, it is necessary that the particular law violated be
specified as there exists a substantial difference between the statute and
city ordinance on the one hand and P.D. 9 (3) on the other regarding the
circumstances of the commission of the crime and the penalty imposed for
the offense.

We do not agree with petitioner that the above-mentioned statute and

the city ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not
contain any repealing clause or provision, and repeal by implication is not
favored. 6 This principle holds true with greater force with regards to penal
statutes which as a rule are to be construed strictly against the state and
liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code
provides that laws are repealed only by subsequent ones and their
violation or non- observance shall not be excused by disuse, or custom or
practice to the contrary.
Thus we are faced with the situation where a particular act may be made
to fall, at the discretion of a police officer or a prosecuting fiscal, under the
statute, or the city ordinance, or the presidential decree. That being the
case, the right becomes more compelling for an accused to be confronted
with the facts constituting the essential elements of the offense charged
against him, if he is not to become an easy pawn of oppression and
harassment, or of negligent or misguided official action a fear
understandably shared by respondent Judges who by the nature of their
judicial functions are daily exposed to such dangers.
2. In all the Informations filed by petitioner the accused are charged in the
caption as well as in the body of the Information with a violation of
paragraph 3, P.D. 9. What then are the elements of the offense treated in
the presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside
one's residence of any bladed, blunt, or pointed weapon, etc. not used as
a necessary tool or implement for a livelihood; and second, that the act of
carrying the weapon was either in furtherance of, or to abet, or in
connection with subversion, rebellion, insurrection, lawless violence,
criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly
weapon, if concealed, outside of the scope of the statute or the city
ordinance mentioned above. In other words, a simple act of carrying any
of the weapons described in the presidential decree is not a criminal
offense in itself. What makes the act criminal or punishable under the
decree is the motivation behind it. Without that motivation, the act falls

within the purview of the city ordinance or some statute when the
circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably,
logical, and valid construction given to P.D. 9(3).
3. The position taken by petitioner that P.D. 9(3) covers one and all
situations where a person carries outside his residence any of the
weapons mentioned or described in the decree irrespective of motivation,
intent, or purpose, converts these cases into one of "statutory
construction." That there is ambiguity in the presidential decree is
manifest from the conflicting views which arise from its implementation.
When ambiguity exists, it becomes a judicial task to construe and interpret
the true meaning and scope of the measure, guided by the basic principle
that penal statutes are to be construed and applied liberally in favor of the
accused and strictly against the state.
4. In the construction or interpretation of a legislative measure a
presidential decree in these cases the primary rule is to search for and
determine the intent and spirit of the law. Legislative intent is the
controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per
Mr. Justice Claudio Teehankee, whatever is within the spirit of a statute is
within the statute, and this has to be so if strict adherence to the letter
would result in absurdity, injustice and contradictions. 8
There are certain aids available to Us to ascertain the intent or reason for
P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of
P.D. 9. These events are clearly spelled out in the "Whereas" clauses of the
presidential decree, thus: (1) the state of martial law in the country
pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired
result of Proclamation 1081 as well as General Orders Nos. 6 and 7 which
are particularly mentioned in P.D. 9; and (3) the alleged fact that
subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid
public disorder mentioned in Proclamation 1081 are committed and
abetted by the use of firearms and explosives and other deadly weapons.

The Solicitor General however contends that a preamble of a

statute usually introduced by the word "whereas", is not an essential part
of an act and cannot enlarge or confer powers, or cure inherent defects in
the statute (p. 120, rollo of L-42050-66); that the explanatory note or
enacting clause of the decree, if it indeed limits the violation of the
decree, cannot prevail over the text itself inasmuch as such explanatory
note merely states or explains the reason which prompted the issuance of
the decree. (pp. 114-115, rollo of 46997)
We disagree with these contentions. Because of the problem of
determining what acts fall within the purview of P.D. 9, it becomes
necessary to inquire into the intent and spirit of the decree and this can be
found among others in the preamble or, whereas" clauses which
enumerate the facts or events which justify the promulgation of the
decree and the stiff sanctions stated therein.
A "preamble" is the key of the statute, to open the minds of the makers as
to the mischiefs which are to be remedied, and objects which are to be
accomplished, by the provisions of the statute." (West Norman Timber v.
State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble";
emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when
the statute is in itself ambiguous and difficult of interpretation, be
resorted to, but not to create a doubt or uncertainty which otherwise does
not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and
Phrases, "Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court
had occasion to state that '(L)egislative intent must be ascertained from a
consideration of the statute as a whole, and not of an isolated part or a
particular provision alone. This is a cardinal rule of statutory construction.
For taken in the abstract, a word or phrase might easily convey a meaning
quite different from the one actually intended and evident when the word
or phrase is considered with those with which it is associated. Thus, an
apparently general provision may have a limited application if read
together with other provisions. 9

Second, the result or effects of the presidential decree must be within its
reason or intent.
In the paragraph immediately following the last "Whereas" clause, the
presidential decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an
the Armed Forces of the Philippines, in order to attain the desired result of
the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do
hereby order and decree that:
xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those
related to the desired result of Proclamation 1081 and General Orders
Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and therefore
have no relevance to P.D. 9(3) which refers to blunt or bladed weapons.
With respect to Proclamation 1081 some of the underlying reasons for its
issuance are quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed
and are still committing acts of armed insurrection and rebellion consisting
of armed raids, forays, sorties, ambushes, wanton acts of murders,
spoilage, plunder, looting, arsons, destruction of public and private
buildings, and attacks against innocent and defenseless civilian lives and
property, all of which activities have seriously endangered and continue to
endanger public order and safety and the security of the nation, ...
xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy
and lawlessness, chaos and disorder, turmoil and destruction of a
magnitude equivalent to an actual war between the forces of our duly
constituted government and the New People's Army and their satellite
organizations because of the unmitigated forays, raids, ambuscades,
assaults, violence, murders, assassinations, acts of terror, deceits,
coercions, threats, intimidations, treachery, machinations, arsons,
plunders and depredations committed and being committed by the

aforesaid lawless elements who have pledged to the whole nation that
they will not stop their dastardly effort and scheme until and unless they
have fully attained their primary and ultimate purpose of forcibly seizing
political and state power in this country by overthrowing our present duly
constituted government, ... (See Book I, Vital Documents on the
Declaration of Martial Law in the Philippines by the Supreme Court of the
Philippines, pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with
a motivation connected with or related to the afore-quoted desired result
of Proclamation 1081 that is within the intent of P.D. 9(3), and nothing
else.
Statutes are to be construed in the light of purposes to be
achieved and the evils sought to be remedied. (U.S. v. American Tracking
Association, 310 U.S. 534, cited in LVN Pictures v. Philippine Musicians
Guild, 110 Phil. 725, 731; emphasis supplied)
When construing a statute, the reason for its enactment should be kept in
mind, and the statute should be construed with reference to its intended
scope and purpose. (Statutory Construction by E.T. Crawford, pp. 604-605,
cited in Commissioner of Internal Revenue v. Filipinas Compania de
Seguros, 107 Phil. 1055, 1060; emphasis supplied)
5. In the construction of P.D. 9(3) it becomes relevant to inquire into the
consequences of the measure if a strict adherence to the letter of the
paragraph is followed.
It is a salutary principle in statutory construction that there exists a valid
presumption that undesirable consequences were never intended by a
legislative measure, and that a construction of which the statute is fairly
susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences. 9-a
It is to be presumed that when P.D. 9 was promulgated by the President of
the Republic there was no intent to work a hardship or an oppressive
result, a possible abuse of authority or act of oppression, arming one
person with a weapon to impose hardship on another, and so on. 10

At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to
believe the murmurings of detained persons brought to Court upon a
charge of possession of bladed weapons under P.D. No. 9, that more than
ever before, policemen - of course not all can be so heartless now have
in their hands P.D. No. 9 as a most convenient tool for extortion, what
with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows
where it came from. Whereas before martial law an extortion-minded
peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything
that has the semblance of a sharp edge or pointed object, available even
in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik. (pp. 72-73, rollo L42050-66)
And as respondent Judge Maceren points out, the people's interpretation
of P.D. 9(3) results in absurdity at times. To his example We may add a
situation where a law-abiding citizen, a lawyer by profession, after
gardening in his house remembers to return the bolo used by him to his
neighbor who lives about 30 meters or so away and while crossing the
street meets a policeman. The latter upon seeing the bolo being carried by
that citizen places him under arrest and books him for a violation of P.D.
9(3). Could the presidential decree have been conceived to produce such
absurd, unreasonable, and insensible results?
6. Penal statutes are to be construed strictly against the state and liberally
in favor of an accused.
American jurisprudence sets down the reason for this rule to be "the
tenderness of the law of the rights of individuals; the object is to establish
a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited." 11 The purpose is not to enable a guilty
person to escape punishment through a technicality but to provide a
precise definition of forbidden acts. 12
Our own decisions have set down the same guidelines in this manner, viz:

Criminal statutes are to be construed strictly. No person should be

brought within their terms who is not clearly within them, nor should any
act be pronounced criminal which is not made clearly so by the statute.
(U.S. v. Abad Santos, 36 Phil. 243, 246)
The rule that penal statutes are given a strict construction is not the only
factor controlling the interpretation of such laws, instead, the rule merely
serves as an additional, single factor to be considered as an aid in
determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684,
692)
F. The Informations filed by petitioner are fatally defective.
The two elements of the offense covered by P.D. 9(3) must be alleged in
the Information in order that the latter may constitute a sufficiently valid
charged. The sufficiency of an Information is determined solely by the
facts alleged therein. 13 Where the facts are incomplete and do not convey
the elements of the crime, the quashing of the accusation is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant
may move to quash the complaint or information when the facts charged
do not constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with
knowingly rendering an unjust judgment under Article 204 of the Revised
Penal Code, failure to allege in the Information that the judgment was
rendered knowing it to be unjust, is fatal. 14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon
who later became Chief Justice of the Court affirmed an order of the trial
court which quashed an Information wherein the facts recited did not
constitute a public offense as defined in Section 1, Republic Act 145. 15
G. The filing of these Petitions was unnecessary because the People could
have availed itself of other available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. If the
motion to quash is sustained the court may order that another

information be filed. If such order is made the defendant, if in custody,

shall remain so unless he shall be admitted to bail. If such order is not
made or if having been made another information is not filed withuntime
to be specified in the order, or within such further time as the court may
allow for good cause shown, the defendant, if in custody, shall be
discharged therefrom, unless he is in custody on some other charge.
Rule 110, Section 13. Amendment. 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
Two courses of action were open to Petitioner upon the quashing of the
Informations in these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an
amended Information to include the second element of the offense as
defined in the disputed orders of respondent Judges. We have ruled that if
the facts alleged in the Information do not constitute a punishable
offense, the case should not be dismissed but the prosecution should be
given an opportunity to amend the Information. 16
Second, if the facts so justified, the People could have filed a complaint
either under Section 26 of Act No. 1780, quoted earlier, or Manila City
Ordinance No. 3820, as amended by Ordinance No. 3928, especially since
in most if not all of the cases, the dismissal was made prior to arraignment
of the accused and on a motion to quash.
Section 8. Rule 117 states 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, subsections (f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is
barred only when the criminal action or liability had been extinguished

(Section 2[f]) or when the motion to quash was granted for reasons of
double jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully
invoked by the accused in all these cases should new complaints be filed
against them, is a matter We need not resolve for the present.
H. We conclude with high expectations that police authorities and the
prosecuting arm of the government true to the oath of office they have
taken will exercise utmost circumspection and good faith in evaluating the
particular circumstances of a case so as to reach a fair and just conclusion
if a situation falls within the purview of P.D. 9(3) and the prosecution
under said decree is warranted and justified. This obligation becomes a
sacred duty in the face of the severe penalty imposed for the offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon
on his letter to the City Fiscal of Manila on October 15, 1975, written for
the Secretary, now Minister of Justice, where he stated the following:
In any case, please study well each and every case of this nature so that
persons accused of carrying bladed weapons, specially those whose
purpose is not to subvert the duly constituted authorities, may not be
unduly indicted for the serious offenses falling under P.D. No. 9. 17
Yes, while it is not within the power of courts of justice to inquire into the
wisdom of a law, it is however a judicial task and prerogative to determine
if official action is within the spirit and letter of the law and if basic
fundamental rights of an individual guaranteed by the Constitution are not
violated in the process of its implementation. We have to face the fact
that it is an unwise and unjust application of a law, necessary and justified
under prevailing circumstances, which renders the measure an instrument
of oppression and evil and leads the citizenry to lose their faith in their
government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the
Orders of respondent Judges dismissing or quashing the Information
concerned, subject however to Our observations made in the preceding
pages 23 to 25 of this Decision regarding the right of the State or
Petitioner herein to file either an amended Information under Presidential

Decree No. 9, paragraph 3, or a new one under other existing statute or

city ordinance as the facts may warrant. Without costs. SO ORDERED.
G.R. No. 112459

March 28, 2003

Upon arraignment on January 17, 1991, accused Pedro Tumulak, Paulino

Buayaban and Larry Betache pleaded not guilty to the offense
charged.4 Their co-accused, Marciano Toacao and Yoyong Buayaban,
remain at large.

PEOPLE OF THE PHILIPPINES, vs. PAULINO BUAYABAN, LARRY BETACHE,

MARCIANO TOACAO (at large), YOYONG BUAYABAN (at large) and
PEDRO TUMULAK, accused. PEDRO TUMULAK, appellant.

After arraignment, trial on the merits ensued. On August 11, 1993, the
trial court rendered its decision, the dispositive portion of which states:

This is an appeal from the decision1 of the Regional Trial Court of

Cataingan, Masbate, Branch 49, in Criminal Case No. 471, finding the
appellant Pedro Tumulak, together with his co-accused, Paulino Buayaban
and Larry Betache, guilty beyond reasonable doubt of the crime of robbery
with homicide and sentencing the appellant Pedro Tumulak and his coaccused Paulino Buayaban to suffer the penalty of reclusion perpetua and
their co-accused, Larry Betache,2 the indeterminate penalty of 6 years and
1 day of prision mayor, as minimum, to 12 years and 1 day of reclusion
temporal, as maximum.

ACCORDINGLY, the court finds the accused guilty beyond reasonable

doubt of the crime of robbery with homicide, and hereby sentences
Paulino Buayaban and Pedro Tumulak each to suffer imprisonment
ofreclusion perpetua and Larry Betache to suffer an indeterminate penalty
of 6 yrs. and 1 day of prision mayor, as minimum, to 12 yrs and 1 day
of reclusion temporal, as maximum, shall return the sum of P30,000.00 to
the legal heirs of Dioscoro Abonales and P10,000.00 to Rolando Verdida
and shall indemnify the said legal heirs the sum of P50,000.00 for the
death of Dioscoro Abonales, P20,000.00 as moral damages and P20,000 as
exemplary damages.

The information, dated May 7, 1990, charged the appellant Pedro Tumulak
and his co-accused Paulino Buayaban, Larry Betache, Marciano Toacao
and Yoyong Buayaban, of the crime of "robbery in band with homicide," as
follows:
That on or about January 2, 1990, in the evening thereof, at Barangay
Maihao, Municipality of Cawayan, Province of Masbate, Philippines, within
the jurisdiction of this Court, the said accused confederating together,
conspiring and helping one another, with intent of gain and by means of
violence and intimidation upon persons, and to ensure the commission of
the crime of robbery, with intent to kill did then and there willfully,
unlawfully and feloniously attack, assault and shot with a gun Dioscoro
Abonales, on the neck thereby inflicting wound which directly caused his
death, willfully, unlawfully and feloniously take, steal, rob and carry away
cash amount of P30,000.00 from Dioscoro Abonales wife, Josefa Abonales
and P10,000.00 cash from Rolando Verdida to the damage and prejudice
of said Josefa Abonales and Rolando Verdida in the amount of P30,000.00
and P10,000.00 respectively.
CONTRARY TO LAW.3

With costs de oficio.

SO ORDERED.5
Aggrieved, Pedro Tumulak, Paulino Buayaban and Larry Betache appealed
the decision to us. Pedro Tumulak and Paulino Buayaban jointly filed their
Appellant's Brief dated May 19, 1994.6 Larry Betache adopted in toto their
Appellant's Brief on November 2, 19947 but thereafter filed an Urgent
Motion to Withdraw Appeal on November 29, 1996.8 On September 20,
2002, Paulino Buayaban also filed an Urgent Motion to Withdraw
Appeal.9 Hence, the instant appeal leaves only Pedro Tumulak as the lone
appellant.
The facts of the case, as culled from the testimonies of eyewitnesses,
follow.
At about 7:00 p.m. on January 2, 1990, at Barangay Maihao, Cawayan,
Masbate, accused Paulino Buayaban, Larry Betache, Marciano Toacao,
Yoyong Buayaban and Pedro Tumulak, all armed, entered the house of
Dioscoro Abonales. Pedro Tumulak and Paulino Buayaban immediately

poked their guns at Rolando Verdida who was sitting near the balcony
with his fiancee Elizabeth Abonales, the daughter of Dioscoro. They were
ordered to lie flat on the floor. Marciano Toacao and Yoyong Buayaban
then proceeded to the room where Dioscoro was sleeping. Yoyong kicked
Dioscoro in the face and when the latter stood up, Marciano shot him in
the neck. Dioscoro died instantly.10
Meanwhile, Larry Betache went outside the house and stood guard at the
door holding a knife. Pedro then went to the kitchen, grabbed the right
arm of Josefa Abonales, wife of Dioscoro, and asked her where the money
was. Frightened, Josefa quickly went to the room, followed by Marciano
while Pedro returned to where Elizabeth and Rolando were lying down in
order to watch over them. Marciano threatened Josefa with death if she
refused to surrender the money. Josefa took the money amounting to
P30,000 from the wooden chest, placed it inside a pillow case and she
handed it to Marciano. The money was the familys capital in the business
of buying and selling pigs.11
In the meantime, somebody forcibly took the wallet of Rolando while he
was lying face down on the floor. The wallet contained P10,000 to be used
for Rolandos wedding to Elizabeth and which Rolando brought to
Elizabeths house that night because they were preparing for the
wedding.12
After the perpetrators forcibly took the money from Josefa Abonales and
Rolando Verdida, they hurriedly went down the house. While escaping,
however, and not far from the scene of the crime, the malefactors
bumped into Artemio Abonales, the father of the victim, Dioscoro
Abonales. Artemio was on his way to Dioscoros house to investigate the
gunshots he heard. He recognized the malefactors as they stopped
momentarily. Paulino pointed the gun at Artemio and pulled the trigger
but the gun did not fire. The malefactors then continued to run away. Not
long thereafter, Artemio arrived at Dioscoros house.13 Neighbors started
converging there. Without losing time, Rolando, together with his fiancee,
reported the incident to the barangay captain who, together with three
councilmen, responded and arrived at the scene of the crime at about 8:30
p.m.14

Appellant Pedro Tumulak put up the defense of alibi and denial. He

testified that, on January 2, 1990, at around 7:00 p.m., he was talking with
Barangay Captain Silverio Cortes in the latters house in Barangay Pen-as,
Cawayan, Masbate. At 9:30 p.m., he went to sleep in the house of Cortes.
He was staying in the house of Cortes because the latter hired him to work
in his fishpond. He worked for Cortes from November 4, 1989 up to
January 4, 1990 when he was arrested by Alfredo Colambot in the house
of Cortes. Prior to his arrest, he already knew that there was a robbery at
the house of Dioscoro Abonales and that the latter was killed. He denied
any involvement in the crime. He knew his co-accused Paulino Buayaban,
Larry Betache, Marciano Toacao and Yoyong Buayaban as well as the
victim Artemio Abonales and his family (Rolando Verdida, Josefa Abonales
and Elizabeth Verdida) but he did not see any of them on January 2, 1990
at around 7:00 p.m.15
On cross-examination, he testified that the house of Cortes where he was
allegedly staying was about six kilometers from the house of the victim,
Dioscoro Abonales. His own house was about one kilometer from the
house of the victim. In 1987, he was allegedly mauled by Rolando Verdida,
the victim's perspective son-in-law, in Barangay Maihao but he did not ask
why he was mauled nor did he report the incident to the police.16
The trial court, however, found the evidence of the prosecution more
convincing and rejected the defense of alibi set up by appellant and his coaccused. Appellant Pedro Tumulak and his companions were positively
identified as the perpetrators of the crime by eyewitnesses Rolando
Verdida, Josefa Abonales and Artemio Abonales. Alibi, the trial court ruled,
is a weak defense and is easy to fabricate. It cannot prevail over the
positive identification of eyewitnesses unless clear and satisfactory
evidence to the contrary exists. The crime committed was robbery with
homicide inasmuch as there was a direct relation between the robbery
and the killing, that is, the victim, Dioscoro Abonales, was killed by the
malefactors for the purpose of consummating the robbery. Conspiracy
existed as there was unity of purpose and design in the commission of the
crime. Appellant Pedro Tumulak and his co-accused Paulino Buayaban and
Larry Betache, being principals by direct participation in the killing of

Artemio Abonales and in robbing his family, were accordingly convicted by

the trial court of the crime of robbery with homicide.17
Appellant Pedro Tumulak assigns the following errors for our
consideration:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDIT TO
THE TESTIMONIES OF THE PROSECUTION WITNESSES AND TOTALLY
DISREGARDING THAT OF THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH
HOMICIDE.18
The appeal has no merit.
The main argument of the appellant is that Judge Henry B. Basilla, the
judge who wrote the decision, was not the judge who observed firsthand
the testimonies of the witnesses.19 Thus, Judge Basilla, not having had the
opportunity to observe the witnesses demeanor and deportment on the
witness stand, could not have discerned and gauged if said witnesses were
telling the truth.20
The contention of the appellant has no merit. The fact that the judge who
penned the decision was not the judge who heard the testimonies of the
witnesses was not enough reason to overturn the findings of fact of the
trial court on the credibility of the witnesses. Though ideally a judge
should hear all the testimonies personally, at times the reality is that a
different judge might pen the decision because the predecessor judge has
retired, died or has been reassigned. In this situation, it cannot be
assumed that the findings of fact of the judge who took over the case are
not reliable and do not deserve the respect of the appellate courts. The
judge who did not hear the testimonies personally can always rely on the
transcripts of stenographic notes taken during the trial.21 Such
dependence does not violate substantive and procedural due

process.22 Indeed, the correctness of a decision is not impaired by the fact

alone that the writer only took over from a colleague who had earlier
presided at trial, unless there is a showing of grave abuse of discretion in
the appreciation of factual findings reached by him.23The only reason for
disregarding the findings of fact of the trial court (which are ordinarily
given great respect by the appellate courts) is when there is a manifest
indication that the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance which could have
altered the conviction of the accused.24 In this case, no such reason exists
for us to set aside the trial courts findings of fact.
The testimonies of the prosecution witnesses prove clearly and in no
uncertain terms, how the appellant and his companions carried out the
execution of the crime. Paulino Buayaban, Pedro Tumulak, Marciano
Toacao, Yoyong Buayaban and Larry Betache, all armed, entered the
house of Dioscoro Abonales, killed the latter by shooting him in the neck
then forcibly took the sum of P30,000 from the victims wife. They also got
the wallet of Rolando Verdida, the future son-in-law of the victim,
containing P10,000 which was the money prepared by Rolando for his
wedding to the victims daughter. After the robbery, they all fled. But,
while escaping, they encountered Artemio Abonales, the father of the
victim, who was responding to investigate the gunshots he heard. They all
stopped momentarily and Paulino in fact tried but failed to shoot Artemio.
Thereafter, all the accused continued their escape.
The appellant argues that, between the testimonies of Artemio Abonales
and Larry Betache, the trial court erred in giving weight to the testimony
of Artemio for the reason that he was not a credible witness. Artemios
eyesight was allegedly defective due to old age and his testimony was
inconsistent. Appellant claims that Larry Betache, on the other hand, was
a credible witness because, according to the report of the Department of
Social Welfare and Development (DSWD), Larry Betache was a "good
boy."25
We cannot accept the contention of the appellant. There is no reason to
belittle the testimony of Artemio Abonales just because defense witness
Larry Betache gave a different version. It must be noted that the positive

identification of the appellant and his companions was made not only by
Artemio Abonales but also by Rolando Verdida and Josefa Abonales whose
testimonies were straightforward and categorical. Artemio Abonales told
Judge Manuel C. Genova26 that he could still see clearly and that he knew
all the accused since their childhood. Thus he had no difficulty recognizing
them when he bumped into them on his way to the house of the victim.
He also clarified to Judge Genova that the distance between him and the
malefactors when he met them was only about two meters.27 In fact, his
testimony shows that the malefactors halted briefly at which juncture
Paulino Buayaban even tried to shot him but the gun did not fire.
Thereafter, the five accused continued to run away.28
Appellant pointed out that it was absurd for Artemio Abonales to find
Rolando Verdida and Elizabeth Abonales still lying face down on the floor
inside the victims house, since he testified that his wife and daughter,
who went before him to investigate the gunshots, were already at the
scene of the crime when he arrived.29 Surely, the presence of his
(Artemio's) wife and daughter at the place of the crime would have alerted
the victims that the robbery was over and that they could already stand
up. This inconsistency, however, is a minor one and does not in any way
affect the credibility of Artemio Abonales. Minor inconsistencies in the
testimonies of witnesses do not detract from their credibility; on the
contrary, they serve to strengthen their credibility and are taken as badges
of truth rather than as indicia of falsehood as they erase the suspicion of
rehearsed testimony.30
The argument of the appellant that Larry Betache was a credible witness
because he was a "good boy," according to the DSWD report, is totally
devoid of merit. It does not follow that just because the DSWD said that
Larry Betache was a "good boy," his testimony was credible. His testimony
should be taken with caution as he was a defense witness and a youthful
offender (co-accused of appellant Pedro Tumulak in the present case)
entitled to suspended sentence. He had nothing to lose by freeing
appellant from criminal responsibility. His uncorroborated testimony that
appellant Pedro Tumulak and Paulino Buayaban were not part of the
group that robbed and killed Dioscoro Abonales wilts under the positive
identification of Rolando Verdida, Josefa Abonales and Artemio Abonales.

In an effort to destroy the testimonies of Rolando Verdida and Josefa

Abonales, the appellant argues that: (1) Rolando Verdida could not have
identified him and his companions, and could not have seen what was
going on during the incident because he was lying face down on the floor,
and (2) Josefa Abonales did not really know him and his companions
because she admitted she only got to know them when her father-in-law
told her their names.31
The argument of the appellant does not hold water. Even if eyewitness
Rolando Verdida was made to lie face down on the floor by the
malefactors, he was not prevented from getting a glimpse of the
malefactors as they moved inside the house. It must be noted that the
house was a small nipa hut where one could see without obstruction what
was going on in another part of the house.32 In addition, the house was
well-illuminated because there were three lamps, one in the balcony,
another at the door of the bedroom and a third in the kitchen.33 The
testimony of Rolando Verdida, showing that he knew what was going on
during the incident even if he was lying face down on the floor, was:
Q:
Now you testified during the direct examination that you saw
Marciano Toacao but in the cross examination you said you were
ordering (sic) to lay flat on the floor, when did you see him, after your
father was shot or before?
A:

Before the shooting.

Q:

How were you able to see this shooting?

A:
I was near with my (sic) my father-in-law (witness is pointing from
where he is seated to the place where the lawyers seated (sic) which is
about around 2 meters).
Q:
What was the condition of the place where the fatal shooting was
made?
A:

No obstruction. He was sleeping at the door.

Q:
What about the place where you are situated to the kitchen where
your mother is preparing the table?

A:

No obstruction from my place to the kitchen.

Q:

Did you see them get the money?

A:

Yes, sir.

Q:

How was it taken?

A:
Yoyong Buayaban and Marciano Toacao get (sic) the money inside
the wooden chest.

only obtained the names of the malefactors from her father-in-law,

Artemio Abonales. There is no such admission in her testimony. What she
said in direct examination was that her father-in-law met five persons:
Paulino Buayaban, Pedro Tumulak, Larry Betache, Yoyong Buayaban and
Marciano Toacao. She never said that it was only then that she got to
know the names of the malefactors. Her direct testimony which the
defense erroneously interpreted as an admission went as follows:

Q:

From the wooden chest were (sic) was it placed?

Q:
So what did you do when you discovered that your husband was
already dead?

A:

I did not see.

A:

I cried.

Q:
So you see the bundele (sic) of money being handed to the
robbers?

Q:

You cried and what happened after that?

A:

My father-in-law arrived.

A:

It was placed inside the pillow.

Q:

When your father-in-law arrived what happened?

Q:

It was placed in the pillow when it was get (sic) by the robber?

A:

He told us he met five (5) persons.

A:

Yes, sir.

xxx

xxx

Q:
met?

xxx

Did your father-in-law tell you who were those five (5) persons he

Q:

These robbers did not use any mask when they went there?

A:

Yes, sir.

A:

No, sir.

Q:

What did your father-in-law tell you about these five (5) persons?

Q:
That is why you were able to identify them because you were from
that place?
A:

Yes, sir. 34

Moreover, before Rolando was ordered to lie flat on the floor, he had a
good look at the accused when they entered the house as he was seated
near the balcony. In fact, two of the accused, herein appellant Pedro
Tumulak and Paulino Buayaban, pointed their guns at him the moment
they entered the house.35
We find as baseless the argument of the appellant that the testimony of
Josefa Abonales was not credible because she allegedly admitted that she

A:
He met Paulino Buayaban, Larry Betache, Pedro Tumulak, Marciano
Toacao and Yoyong Buayaban.
Q:
any?
A:

So who else arrived after your father-in-law arrived if there were

Our neighbors. 36

In fact, it was clear from Josefas direct testimony that she knew the
accused. Her testimony was:
Q:

What did they do inside your house?

A:

They went up our house and shot my husband.

Q:

Who shot your husband?

A:

Marciano Toacao.

Q:
Were you able to know these five (5) persons who went inside your
house?
A:

Yes, sir.

Q:

Why were you able to identify these five (5) persons?

A:

Because we have a light inside our house.37

And on cross-examination, she categorically stated that she really knew

the accused because they lived in the same place and they were
neighbors. 38
Against the positive identification of the prosecution witnesses, appellant
Pedro Tumulak set up the defense of alibi. Appellant claimed that, at the
time the crime occurred, he was talking with Barangay Captain Silverio
Cortes in the latters house in Barangay Pen-as, Cawayan, Masbate. At
9:30 p.m., he went to sleep in the house of Cortes. He claimed he was
staying there because Barangay Captain Cortes hired him to work in his
fishpond. The barangay captain, however, did not testify despite several
subpoenas sent to him.39 The defense instead presented Laurencio Villegas
who claimed to be the co-worker of appellant in Cortes fishpond.
Laurencio Villegas testified that he and appellant Pedro Tumulak ate
together on the date and at the time of the crime and that they slept in
one mat. He said Pedro went to sleep ahead of him.40
To properly appreciate the defense of alibi, the requirements of place and
time must be strictly met.41 The accused must prove not only that he was
somewhere else when the crime was committed but also that it was
physically impossible for him to be at the scene of the crime at the time of
its commission.42 Here, we find no physical impossibility for the appellant
to have been at the place of the commission of the crime and to have
actually participated in it.
The alleged place where the appellant claimed he was at the time of the
crime (house of Barangay Captain Silverio Cortes) was not that far from

the scene of the crime as it is situated only in an adjacent barangay.

Appellant could reach the house of the victim after only an hours walk.
We rule that there was conspiracy between the appellant and his coaccused. Conspiracy can be inferred from the acts of the perpetrators
before, during and after the crime, which indicate a common design,
concerted action and concurrence of sentiments.43 From the testimonies
of eyewitnesses, the acts of the appellant and his co-accused showed
unity of purpose and design in the execution of the offense. The
malefactors, all armed, entered the house of Dioscoro Abonales. Paulino
Buayaban and Pedro Tumulak stood guard over Rolando Verdida and
Elizabeth Abonales as they lay flat on the floor. Meanwhile, Yoyong
Buayaban and Marciano Toacao woke up the victim by kicking him in the
face and when the victim tried to get up, Marciano shot him in the neck,
killing him instantly. Larry Betache, on the other hand, stayed at the door
to act as a look-out. After the perpetrators forcibly seized the money from
the wife of the victim and from Rolando Verdida, they all ran away from
the place of the crime.
The five accused clearly conspired in committing the crime; the unity of
purpose and design was evident. When conspiracy is shown, the act of one
is the act of all.44 Thus, appellant Pedro Tumulak, though he was not
personally the one who killed the victim and forcibly took the money from
the victim's wife, is liable as principal by direct participation for Dioscoros
death as an incident to or as a result of the robbery.
In the information, the People erroneously charged the accused with
"robbery in band with homicide." There is no such crime in the Revised
Penal Code. The felony is properly called robbery with homicide. In the
landmark case of People vs. Apduhan, Jr.,45 we ruled that if robbery with
homicide is committed by a band, the indictable offense would still be
denominated as "robbery with homicide" under Article 294(1) of the
Revised Penal Code, but the circumstance that it was committed by a band
would be appreciated as an ordinary aggravating circumstance.
However, in the present case, we cannot treat the ordinary aggravating
circumstance of band because it was not alleged in the body of the
information. Though it is an ordinary aggravating circumstance, the 2000

Rules on Criminal Procedure46 require that even generic aggravating

circumstances must be alleged in the Information.47Thus, Sections 8 and 9,
Rule 110, of the said Rules provide:
Section 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 accusation.- 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. (Emphasis ours)
Section 8 simply provides that the information or complaint must state the
designation of the offense given by the statute and specify its qualifying
and generic aggravating circumstances. With regard to Section 9, we held
inPeople vs. Nerio Suela 48 that the use of the word must" in said section 9
indicates that the requirement is mandatory and therefore, the failure to
comply with Sec. 9, Rule 110, means that generic aggravating
circumstances, although proven at the trial, cannot be appreciated against
the accused if such circumstances are not stated in the information. It is a
cardinal rule that rules of criminal procedure are given retroactive
application insofar as they benefit the accused.49
In this case, we cannot properly appreciate the ordinary aggravating
circumstance of band in the commission of the crime since there was no
allegation in the information that "more than three armed malefactors
acted together in the commission of the crime."50
All things considered, we find Pedro Tumulak guilty beyond reasonable
doubt of the crime of robbery with homicide as defined and penalized
under Article 294 of the Revised Penal Code by reclusion perpetua to

death. But since there was no appreciable aggravating circumstance, the

penalty of reclusion perpetua should be the proper penalty.
As to the civil liability of the appellant, we affirm the award of damages by
the trial court except the grant of exemplary damages in the amount of
P20,000 which we hereby delete and the amount of moral damages which
we hereby increase from P20,000 to P50,000.
The award of exemplary damages is deleted because the crime was not
committed with any aggravating circumstance. Under Article 2230 of the
Civil Code, exemplary damages can only be awarded in criminal actions if
the crime was committed with aggravating circumstances.
As to the award of moral damages which the trial court properly awarded
to the wife and family of Dioscoro Abonales for the pain and anguish they
suffered,51 we increase it to P50,000 in conformity with existing
jurisprudence.52
The trial court did not award actual damages for the funeral and burial of
the victim because no receipts were presented by the prosecution. This is
correct. However, we recently ruled in the case People vs. Abrazaldo, G.R.
No. 124392, February 4, 2003, that temperate damages in the amount of
P25,000 shall be awarded where no documentary evidence of actual
damages (e.g. receipts of funeral and burial expenses) were presented in
the trial court because it is reasonable to presume that, when death
occurs, the family of the victim necessarily incurred expenses for his wake
and funeral. Accordingly, in the present case, in addition to the damages
already awarded by the trial court, we add temperate damages in the
amount of P25,000.
WHEREFORE, the decision of the Regional Trial Court of Cataingan,
Masbate, Branch 49, in Criminal Case No. 471, convicting appellant Pedro
Tumulak of the crime of robbery with homicide and sentencing him to
suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATION
in the award of damages. Moral damages in favor of the heirs of the
victim, Dioscoro Abonales, are hereby increased from P20,000 to P50,000;
exemplary damages in the amount of P20,000 are hereby deleted for lack

of basis while temperate damages in the amount of P25,000 are hereby

awarded in conformity with current jurisprudence.

CONTRARY to Article 248 of the Revised Penal Code, as amended by

Republic Act No. 7659."2

The award of civil indemnity in favor of the heirs of the victim in the
amount of P50,000 and the restitution of the sum of money forcibly taken
by the appellant and his co-accused from the victim and his family in the
total amount of P40,000 (P30,000 to be returned to the heirs of the
Dioscoro Abonales and P10,000 to Rolando Verdida) is hereby affirmed.
No costs. SO ORDERED

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all

surnamed Delim, were apprehended. Accused Robert and Manuel remain
at-large.

G.R. No. 142773

January 28, 2003

PEOPLE OF THE PHILIPPINES, vs. MARLON DELIM, LEON DELIM, MANUEL

DELIM alias "BONG" (At Large), ROBERT DELIM (At Large), and RONALD
DELIM alias "BONG",
Before the Court on automatic review is the Decision,1 dated January 14,
2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding
accused appellants Marlon Delim, Leon Delim and Ronald Delim guilty
beyond reasonable doubt of the crime of murder and sentencing them to
suffer the supreme penalty of death. The court also ordered accusedappellants to pay, jointly and severally, the heirs of the victim the sums of
P75,000.00 as moral damages and P25,000.00 as exemplary damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias
"Bong" and Robert, all surnamed Delim, were indicted for murder under
an Information dated May 4, 1999 which reads:
"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
Pangasinan, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with short firearms barged-in and entered the
house of Modesto Delim and once inside with intent to kill, treachery,
evident premedidation (sic), conspiring with one another, did then and
there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a
piece of cloth, brought out and abduct Modesto Delim, accused Leon
Delim and Manuel Delim stayed in the house guarded and prevented the
wife and son of Modesto Delim from helping the latter, thereafter with
abuse of superior strength stabbed and killed said Modesto Delim, to the
damage and prejudice of his heirs.

At their arraignment, Marlon, Ronald and Leon, with the assistance of

their counsel, pleaded not guilty to the charge.
At the trial, the prosecution established the following relevant facts3
Marlon, Manuel and Robert Delim are brothers. They are the uncles of
Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an
Igorot and a carpenter. He took the surname Delim after he was
"adopted" by the father of Marlon, Manuel and Robert. However,
Modesto's wife, Rita, an illiterate, and their 16-year old son, Randy,
continued using Manalo Bantas as their surname. Modesto, Rita and
Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon,
Robert and Ronald used to visit Modesto and his family. Modesto and his
family and the Delim kins resided in Barangay Bila, Sison, Pangasinan.
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and
Randy were preparing to have their supper in their home. Joining them
were Modesto and Rita's two young grandchildren, aged 5 and 7 years old.
They were about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of the three
intruders was armed with a short handgun. Marlon poked his gun at
Modesto while Robert and Ronald simultaneously grabbed and hog-tied
the victim. A piece of cloth was placed in the mouth of Modesto.4 Marlon,
Robert and Ronald herded Modesto out of the house on their way towards
the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by
the intruders not to leave the house. Leon and Manuel, who were also
armed with short handguns, stayed put by the door to the house of
Modesto and ordered Rita and Randy to stay where they were. Leon and
Manuel left the house of Modesto only at around 7:00 a.m. the following
day, January 24, 1999.

As soon as Leon and Manuel had left, Randy rushed to the house of his
uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident
the night before and sought his help for the retrieval of Modesto. Randy
was advised to report the matter to the police authorities. However,
Randy opted to first look for his father. He and his other relatives scoured
the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison,
Pangasinan, around 200 meters away from Modesto's house, to locate
Modesto but failed to find him there. On January 25, 1999, Randy and his
relatives returned to the housing project in Paldit, Sison, Pangasinan to
locate Modesto but again failed to find him there. On January 26, 1999,
Randy reported the incident to the police authorities.

"SIGNIFICANT EXTERNAL FINDINGS:

10 x 10 ml. GSW, pre-auricular area, right

At around 3:00 in the afternoon of January 27, 1999, Randy, in the

company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and
Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan
and this time they found Modesto under thick bushes in a grassy area. He
was already dead. The cadaver was bloated and in the state of
decomposition. It exuded a bad odor. Tiny white worms swarmed over
and feasted on the cadaver. Randy and his relatives immediately rushed to
the police station to report the incident and to seek assistance.

20 x 20 ml. GSW, mandibular areas, right

10 x 10 ml. GSW, maxillary area, right

10 x 10 ml. GSW, below middle nose, directed upward (POE)

30 x 40 ml. GSW, mid parieto occipital area (POEx)

2 x 1 cms. lacerated wound, right cheek

1 x 1 cm. stabbed wound, axillary area, left

1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm

1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm

1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm

1 x 1 cm. stabbed wound medial aspect D/3rd, left arm

#3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M
forearm

1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm

When informed of the discovery of Modesto's cadaver, the local chief of

police and SPO2 Jovencio Fajarito and other policemen rushed to the
scene and saw the cadaver under the thick bushes. Pictures were taken of
the cadaver.5 Rita and Randy divulged to the police investigators the
names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom
they claimed were responsible for the death of Modesto. Rita and Randy
were at a loss why the five malefactors seized Modesto and killed him.
Rita and Randy gave their respective sworn statements to the police
investigators.6 Police authorities proceeded to arrest Marlon, Ronald,
Robert, Manuel and Leon but failed to find them in their respective
houses. The police officers scoured the mountainous parts of Barangays
Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared
her autopsy report, which reads:

Body

both upper extremities are flexed

both lower extremities are flexed

(+) body decomposition

(+) worms coming out from injuries

10 x 6 cms. Inflamed scrotum

penis inflamed

SIGNIFICANT INTERNAL FINDINGS:

-

no significant internal findings

CAUSE OF DEATH:
-

GUN SHOT WOUND, HEAD."7

The stab wounds sustained by Modesto on his left arm and forearm were
defensive wounds. The police investigators were able to confirm that
Marlon, Ronald, Robert, Leon and Manuel had no licenses for their
firearms.8
Records of the PNP Criminal Investigation and Detection Group in Baguio
City show that Marlon had pending cases for robbery in the Regional Trial
Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band
in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial
Court in Urdaneta, Pangasinan.9
To exculpate themselves, Marlon, Ronald and Leon interposed denial and
alibi.10
Ronald claimed that on January 23, 1999, he, his wife and children, his
mother, his brothers and sisters were in their house at Asan Norte, Sison,
Pangasinan about two kilometers away from Modesto's house.
He denied having been in the house of Modesto on January 23, 1999 and
of abducting and killing him. He theorized that Rita and Randy falsely
implicated him upon the coaching of Melchor Javier who allegedly had a
quarrel with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house of
his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte
where he had been living since 1997 after leaving Asan Norte, Sison,

Pangasinan. Since then, he had been working for Sally Asuncion at a

hollow-block factory in that city where he was a stay-in worker.
Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim
never went home to his hometown in Pangasinan during his employment.
His sister, Hermelita Estabillo, likewise averred that on January 23, 1999,
his brother was at her house to give her his laundry. She claimed that the
distance between Laoag City and Bila, Sison, Pangasinan can be traversed
in six hours by bus. Leon presented a Barangay Certificate to prove that he
was a resident of Laoag City from January 1998 up to February 1999.11
Marlon asserted that he was on vacation in Dumaguete City from
December 26, 1998 up to January 29, 1999. During his stay there, he lived
with his sister, Francisca Delim. Upon his return to Manila on January 29,
1999, he immediately proceeded to Baguio to visit his cousin. Marlon
denied setting foot in Bila, Sison, Pangasinan after his sojourn in
Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of
murder. The dispositive portion of the trial court's decision reads:
"WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is
hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for)
the commission of Aggravated Murder, an offense defined and penalized
under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and
the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer
the penalty of DEATH, to be implemented in the manner as provided for
by law; the Court likewise orders the accused, jointly and solidarily, to
indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral
damages, plus the amount of P25,000.00 as exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the entire records
of this case to the Honorable Supreme Court, and to prepare the mittimus
fifteen (15) days from date of promulgation.
The Jail Warden, Bureau of Jail Management and Penology, Urdaneta
District Jail, Urdaneta City is hereby ordered to transmit the persons of
Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons,
Muntinlupa City, fifteen days from receipt of this decision.

SO ORDERED."12
The trial court appreciated treachery as a qualifying circumstance and of
taking advantage of superior strength, nighttime and use of unlicensed
firearms as separate of aggravating circumstances in the commission of
the crime. Marlon, Ronald and Leon, in their appeal brief, assail the
decision alleging that:
"I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY
EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13
Before resolving the merits of the case at bar, we first resolve the matter
of whether the crime charged in the Information is murder or kidnapping.
During the deliberation, some distinguished members of the Court opined
that under the Information, Marlon, Ronald and Leon are charged with
kidnapping under Article 267 of the Revised Penal Code and not with
murder in its aggravated form in light of the allegation therein that the
accused "willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d),
gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim
(while) Leon Delim and Manuel Delim stayed in the house (and) guarded
and prevented the wife and son of Modesto Delim from helping the latter."
They submit that the foregoing allegation constitutes the act of
deprivation of liberty of the victim, the gravamen in the crime of
kidnapping. They contend that the fact that the Information went further
to charge accused with the killing of the victim should be of no moment,
the real nature of the criminal charge being determined not from the

caption or the preamble of the Information nor from the specification of

the law alleged to have been violated these being conclusions of law
but by the actual recital of facts in the complaint or information. They
further submit that since the prosecution failed to prove motive on the
part of Marlon, Ronald and Leon to kill Modesto, they are not criminally
liable for the death of the victim but only for kidnapping the victim.
It bears stressing that in determining what crime is charged in an
information, the material inculpatory facts recited therein describing the
crime charged in relation to the penal law violated are controlling. Where
the specific intent of the malefactor is determinative of the crime charged
such specific intent must be alleged in the information and proved by the
prosecution. A decade ago, this Court held in People v. Isabelo Puno, et
al.,14 that for kidnapping to exist, there must be indubitable proof that the
actual specific intent of the malefactor is to deprive the offended party of
his liberty and not where such restraint of his freedom of action is merely
an incident in the commission of another offense primarily intended by
the malefactor. This Court further held:
"x x x Hence, as early as United States vs. Ancheta, and consistently
reiterated thereafter, it has been held that the detention and/or forcible
taking away of the victims by the accused, even for an appreciable period
of time but for the primary and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such other offenses they
committed in relation thereto, but the incidental deprivation of the
victims' liberty does not constitute kidnapping or serious illegal
detention."15
If the primary and ultimate purpose of the accused is to kill the victim, the
incidental deprivation of the victim's liberty does not constitute the felony
of kidnapping but is merely a preparatory act to the killing, and hence, is
merged into, or absorbed by, the killing of the victim.16 The crime
committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as
disclosed in the information or criminal complaint that is determinative of
what crime the accused is charged with that of murder or kidnapping.

Philippine and American penal laws have a common thread on the concept
of specific intent as an essential element of specific intent crimes. Specific
intent is used to describe a state of mind which exists where
circumstances indicate that an offender actively desired certain criminal
consequences or objectively desired a specific result to follow his act or
failure to act.17 Specific intent involves a state of the mind. It is the
particular purpose or specific intention in doing the prohibited act. Specific
intent must be alleged in the Information and proved by the state in a
prosecution for a crime requiring specific intent.18 Kidnapping and murder
are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial
evidence. It may be inferred from the circumstances of the actions of the
accused as established by the evidence on record.19
Specific intent is not synonymous with motive. Motive generally is
referred to as the reason which prompts the accused to engage in a
particular criminal activity. Motive is not an essential element of a crime
and hence the prosecution need not prove the same. As a general rule,
proof of motive for the commission of the offense charged does not show
guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder.20 The history
of crimes shows that murders are generally committed from motives
comparatively trivial.21 Crime is rarely rational. In murder, the specific
intent is to kill the victim. In kidnapping, the specific intent is to deprive
the victim of his/her liberty. If there is no motive for the crime, the
accused cannot be convicted for kidnapping.22 In kidnapping for ransom,
the motive is ransom. Where accused kills the victim to avenge the death
of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific
intent of the malefactors in barging into the house of Modesto was to kill
him and that he was seized precisely to kill him with the attendant
modifying circumstances. The act of the malefactors of abducting Modesto
was merely incidental to their primary purpose of killing him. Moreover,
there is no specific allegation in the information that the primary intent of
the malefactors was to deprive Modesto of his freedom or liberty and that

killing him was merely incidental to kidnapping.23Irrefragably then, the

crime charged in the Information is Murder under Article 248 of the
Revised Penal Code and not Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the
prosecution mustered the requisite quantum of evidence to prove that
Marlon, Ronald and Leon are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of
the accused beyond cavil of doubt. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence of
the accused. The proof against the accused must survive the test of
reason; the strongest suspicion must not be permitted to sway
judgment.24
In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second,
defendant's agency in the commission of the act.25 Wharton says
that corpus delictiincludes two things: first, the objective; second, the
subjective element of crimes.26 In homicide (by dolo) and in murder cases,
the prosecution is burdened to prove: (a) the death of the party alleged to
be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause
or suicide; and (c) that defendant committed the criminal act or was in
some way criminally responsible for the act which produced the
death.27 To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice); in other words, that there was intent to
kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the victim dies because of a
deliberate act of the malefactor, intent to kill is conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable
doubt either by direct evidence or by circumstantial or presumptive
evidence.28

In the case at bar, the prosecution adduced the requisite quantum of

proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He
also sustained seven (7) stab wounds,29 defensive in nature. The use by
the malefactors of deadly weapons, more specifically handguns and
knives, in the killing of the victim as well as the nature, number and
location of the wounds sustained by said victim are evidence of the intent
by the malefactors to kill the victim with all the consequences flowing
therefrom.30 As the State Supreme Court of Wisconsin held inCupps v.
State:31
"This rule, that every person is presumed to contemplate the ordinary and
natural consequences of his own acts, is applied even in capital cases.
Because men generally act deliberately and by the determination of their
own will, and not from the impulse of blind passion, the law presumes that
every man always thus acts, until the contrary appears. Therefore, when
one man is found to have killed another, if the circumstances of the
homicide do not of themselves show that it was not intended, but was
accidental, it is presumed that the death of the deceased was designed by
the slayer; and the burden of proof is on him to show that it was
otherwise."
The prosecution did not present direct evidence to prove the authors of
the killing of Modesto. It relied on circumstantial evidence to discharge its
burden of proving the guilt of accused-appellants of murder.
Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience.32 What was once a rule of
account respectability is now entombed in Section 4, Rule 133 of the
Revised Rules of Evidence which states that circumstantial evidence,
sometimes referred to as indirect or presumptive evidence, is sufficient as
anchor for a judgment of conviction if the following requisites concur:
"x x x if (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; and (c) the combination
of all the circumstances is such as to warrant a finding of guilt beyond
reasonable doubt."33

The prosecution is burdened to prove the essential events which

constitute a compact mass of circumstantial evidence, and the proof of
each being confirmed by the proof of the other, and all without exception
leading by mutual support to but one conclusion: the guilt of accused for
the offense charged.34 For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each
other, consistent with the hypothesis that accused is guilty and at the
same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt.35 If the prosecution
adduced the requisite circumstantial evidence to prove the guilt of
accused beyond reasonable doubt, the burden of evidence shifts to the
accused to controvert the evidence of the prosecution.
In the present case, the prosecution mustered the requisite quantum of
circumstantial evidence to prove that accused-appellants, in confabulation
with their co-accused, conspired to kill and did kill Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house of
Modesto, each armed with a handgun. Marlon poked his gun on Modesto
while Ronald hog-tied Modesto. They then seized Modesto and herded
him out of his house:
"FISCAL TOMBOC: What were you doing then at that time in your house?
A

We were eating, sir.

You said we, who were your companions eating then at that time?

My father, my mother and the two children and myself, sir.

Q
While taking your supper that time, do you recall if there was
anything unusual that happened at that time?
A
When we were about to start to eat three armed men entered our
house.
Q

Do you know these three armed men who entered your house?

Yes, sir.

Who are they, name them one by one?

Marlon Delim, Robert Delim and Ronald Delim.

Again, Mr. Witness, will you point to the person who poked a gun?

Are these three persons inside the courtroom now?

(Witness is pointing to Malon (sic) Delim, one of the accused).

Two of them, sir.

Who are these two who are inside the courtroom?

Q
next?

Marlon and Ronald, sir.

Will you please stand up and point to them?

A
(Witness is pointing to a person seated on the bench inside the
courtroom, who, when his name was asked answered Marlon Delim.
Likewise, witness is pointing unto a person seated on the bench inside the
courtroom, who, when his name was asked he answered Ronald Delim).
Q
You said that these two armed persons entered your house, what
kind of arm were they carrying at that time?
A

Short handgun, sir.

Q
When these three armed persons whom you have mentioned,
armed with short firearms, what did they do then when they entered your
house?

After bringing your father out from your house, what transpired

A
Manuel Delim and Leon Delim said, 'Stay in your house,' and
guarded us.
COURT: You said your father was taken out, who?
A

Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father?
A

I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside?

A

Inside our house, sir.

You said that Marlon poked a gun at your father, is that correct?

Yes, sir.

They took my father, sir.

Q
What did Ronald and Robert do while Marlon was poking his gun to
your father?

Who took your father?

Marlon Delim, Robert Delim and Ronald Delim, sir.

When these three persons took your father, what did you do then?

Randy's account of the incident was corroborated by his mother, Rita, who
testified:

None, sir.

COURT: How did they get your father?

A

They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun?

A

Marlon Delim, sir.

Ronald and Robert were the ones who pulled my father out, sir."36

"PROSECUTION TOMBOC: You said during the last hearing that on January
23, 1999 at around 6:30 in the evening while preparing for your supper
three (3) armed men entered inside your house, who were these three (3)
men who entered your house?
A

I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her
time to answer, Your Honor.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and
Bongbong entered your house, are these three (3) persons who entered
your house in Court now?
A

They are here except the other one, sir.

Q
Will you please step down and point to the persons who entered
your house?
A
Witness is pointing to Marlon Delim, Robert Delim is not in Court
and Bongbong is Ronald Delim.
Q
After these three (3) armed men entered your house, what
happened then?
A

My husband was brought out, sir.

What is the name of your husband?

Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon,
armed with a handgun, acted as a lookout when he stood guard by the
door of the house of Modesto and remained thereat until 7:00 a.m. of the
next day:
"FISCAL TOMBOC: When your father was pulled out from your house by
these three persons, what did you and your mother do while these three
persons were taking out of your house?
A
us.

We did not do anything because Manuel and Leon Delim guarded

COURT: Where, in your house?

A

Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by
these three persons Marlon, Robert and Ronal (sic), where were Leon and
Manuel then?
A

They were at the door, sir.

COURT: Why do you know that they were guarding you?

A

Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two
persons were guarding you, these Leon and Manuel?
A

They were armed, sir.

What do you mean by armed?

They have gun, sir.

What kind of firearm?

Short firearm, sir.

By the way, where are these Leon and Manuel now, if you know?

Leon is here, sir.

About Manuel?

None, sir.

Will you please stand up and point at Leon, Mr. Witness?

A
(Witness pointed to a person seated on the bench inside the
courtroom, who when his name was asked, answered, Leon Delim)."38
3. Rita and Randy were ordered by Leon not to leave the house as Ronald
and Marlon left the house with Modesto in tow. Rita and Randy were
detained in their house up to 7:00 a.m. of January 24, 1999 to prevent
them from seeking help from their relatives and police authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m.,
the cadaver of Modesto was found under the thick bushes in a grassy area
in the housing project located about 200 meters away from the house of
Modesto. The cadaver exuded bad odor and was already in the state of
decomposition:
"Q
So what did you do then on January 27, where did you look for
your father?

A
The same place and at 3:00 o'clock P.M., we were able to find my
father.
COURT: Where?
A

At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were
able to look for your father on January 27, 1999 at 3:00 o'clock P.M.?

WITNESS:
A
First finding: Upon seeing the cadaver, this is the position of the
body, both upper extremities are flexed and both lower extremities are
flexed (Nakakukot).
Q
How many days had already elapsed when you autopsied the
cadaver of the victim, Doctora?
A

Four (4) days upon the recovery of the body, sir.

And what was your findings Doctora?

Yes, sir.

Who?

My Aunt, sir.

What is the name of your Aunt?

A
The body was already under the state of decomposition, sir, with
foul odor and there were so many worms coming out from the injuries,
there were tiny white worms, sir.

Nida Pucal, sir.

Who else?

Pepito Pucal, Bernard Osias and Daniel Delim, sir.

A
Upon seeing the cadaver I asked the relative to refer it to the NBI
sir. Actually the victim was an igorot (sic) and they have tradition that they
will bury immediately. Whether they like it or not I should do it, sir.

What else did you observe Doctora?

COURT: When you found your father, what was his condition?

A
And the penis was inflammed (sic), the scrotum was also inflammed
(sic), sir.

He was dead, sir.

COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his
appearance then when you saw him dead?
A

He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified

that the cadaver of Modesto was in a state of decomposition, with tiny
white worms crawling from his wounds, and that his penis and scrotum
were inflamed. The victim sustained five gunshot wounds and defensive
wounds on the left arm and forearm:

What else Doctora?

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot
also determine the exit.
Q

So there were two (2) gunshot wounds (GSW) Doctora?

Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also
10 x 10 ml. GSW, below middle nose, directed upward (POE); and there
was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).

"PROS. TOMBOC:

How many all in all are the gunshot wound?

Five (5) sir.

Will you please tell the Honorable Court your findings, Doctora?

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm.
stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect
M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1
x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed
wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each
other, stabbed wound, medial aspect, M/3rd, left forearm.

5. When police authorities went to the residences of all the malefactors,

the latter had flown the coop and were nowhere to be found:

How many stabbed wound are there Doctora?

There were seven (7) stabbed wounds, sir.

Q
In the course of the investigation did you come to know who were
the suspects?

Those stabbed wounds were defensive wounds, Doctora?

Yes sir."40

The state of decomposition of the cadaver, with tiny white worms

swarming and feasting on it and the distention of his scrotum and penis
are evidence that the cadaver was in the stage of putrefaction and that
the victim had been dead for a period ranging from three to six
days.41 Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:

"COURT: In connection with this case, you investigated the wife and son of
Modesto Delim?
A

Yes, sir.

A
Yes, sir, she elaborated that the suspects were their neighbors,
Marlon Delim and his brothers, sir.
Q

What are the names of the brothers?

Manuel Delim, Leon Delim I cannot remember the others, sir.

Q
By reason of that information were you able to apprehend any of
them for investigation?
A

No, sir.

Q
Why?
"Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:
A
Because when we were dispatched by the Chief of Police no Delim
Time Since Death Condition of the Body
brothers could be found, they all left the place, sir.
48 hours

72 hours

Q
In what place did you look for the brothers Delim?
Ova of flies seen. Trunk bloated. Face discolored and swollen.
Blisters present. Moving maggots seen
A
Within the vicinity, sir.

Whole body grossly swollen and disfigured. Hair and

Q nails
In what place?
42
loose. Tissues soft and discolored."
A
Brgy. Bila and the place where the crime was committed in Brgy.
Bila and the place where the cadaver was found in Paldit, sir.
The lapse of two or three to four days from the seizure of the victim in the
evening of January 23, 1999 to the discovery of his cadaver which was
Q
Where did you look for the Delim brothers?
already in the state of putrefaction in the afternoon of January 27, 1999,
about 200 meters away from his house, is consistent with and
A
Nearby barangays, Immalog, sir.
confirmatory of the contention of the prosecution that the victim was
Q
Wherelse (sic)?
killed precisely by the very malefactors who seized him on January 23,
1999.
A
Labayog, Sison, sir.

Wherelse?

In mountainous part of Immalog, part of Tuba Benguet, sir.

What was the result?

Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald
used to go to the house of Modesto and Rita:
"COURT: These Leon and Manuel Delim are they known to you prior to
that day, January 23, 1999?
A

Yes, sir, I know them.

Why do you know Manuel and Leon prior to January 23, 1999?

They are my neighbors, sir.

Q
How about Marlon, Robert and Bongbong do you know them
before January 23, 1999?
A

I know them, sir.

Why do you know them?

They used to go to our house, sir.

Q
I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
Delims and your husband's name is Modesto Delim are they related with
each other?
A

Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses
in Barangay Bila, Sison is strong circumstantial evidence of their guilt for
the death of Modesto. Although flight after the commission of an offense
does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in a
manner consistent with their innocence, will tend to show that they, in
fact, killed Modesto.45

It is true that the prosecution failed to prove motive on the part of the
malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified
that they were not aware of any misunderstanding or grudge between
Modesto on the one hand and Marlon, Ronald and Leon and their coaccused on the other before the incident, or any motivation on the part of
the three malefactors to cause harm to Modesto. Nonetheless, it cannot
thereby be concluded that a person or persons other than Marlon, Ronald
and Leon were criminally responsible for the death of the victim. It is a
matter of judicial notice that nowadays persons have killed or committed
serious crimes for no reason at all.46 In this case, the inscrutable facts are
that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hog-tied, put a
piece of cloth in his mouth and after Ronald and Marlon had left the house
with Modesto in tow, Rita heard three gunshots or so and the cadaver of
Modesto was found concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto sustained
several gunshot wounds and died because of a gunshot wound on the
head. The criminal acts and the connection of Marlon, Ronald and Leon
with said acts having been proved by the prosecution beyond reasonable
doubt, the act itself furnishes the evidence, that to its perpetration there
was some causes or influences moving the mind.47 The remarkable
tapestry intricately woven by the prosecution should not be trashed
simply because the malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence
shifted on Marlon, Ronald and Leon to rebut the same and explain what
happened to the victim after taking him from his house in the evening of
January 23, 1999. They may have freed the victim shortly after taking him,
or the victim may have been able to escape and that thereafter a person
or some other persons may have killed him. However, Marlon, Ronald and
Leon failed to give any explanation. Instead, they merely denied having
seized and killed the victim and interposed alibi as their defense.
Leon is equally guilty for the death of Modesto because the evidence on
record shows that he conspired with accused-appellants Marlon and
Ronald and accused Robert and Manuel in killing the victim.

There is conspiracy when two or more persons agree to commit a felony

and decide to commit it.48 Conspiracy must be proven with the same
quantum of evidence as the felony itself, more specifically by proof
beyond reasonable doubt. Conspiracy is not presumed. It may be proved
by direct evidence or by circumstantial evidence. Conspiracy is deducible
from the acts of the malefactors before, during and after the commission
of the crime which are indicative of a joint purpose, concerted action and
concurrence of sentiment.49 To establish conspiracy, it is not essential that
there be proof as to the existence of a previous agreement to commit a
crime.50It is sufficient if, at the time of the commission of the crime, the
accused had the same purpose and were united in its execution. If
conspiracy is established, the act of one is deemed the act of all. It matters
not who among the accused actually shot and killed the victim.51 This is
based on the theory of a joint or mutual agency ad hoc for the prosecution
of the common plan:
"x x x The acts and declarations of an agent, within the scope of his
authority, are considered and treated as the acts and declarations of his
principal. 'What is so done by an agent, is done by the principal, through
him, as his mere instrument.' Franklin Bank of Baltimore v. Pennsylvania D.
& M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its
existence, the acts of one in furtherance of the common design are the
acts of all; and whatever one does in furtherance of the common design,
he does as the agent of the co-conspirators.' R. v. O'Connell, 5 St.Tr. (N.S.)
1, 710."52
In the eyes of the law, conspirators are one man, they breathe one breath,
they speak one voice, they wield one arm and the law says that the acts,
words and declaration of each, while in the pursuit of the common design,
are the acts, words and declarations of all.53
In the case at bar, Marlon, Ronald and Leon arrived together in the house
of Modesto, each armed with a handgun. Marlon and Ronald barged into
said house while Leon stood guard by the door thereof. After Marlon and
Ronald had left with Modesto in tow, Leon stood by the door and warned
Randy and Rita not to leave the house. Leon stood guard by the door of

the house until 7:00 a.m. of January 24, 1999 when he left the house. The
overt acts of all the malefactors were so synchronized and executed with
precision evincing a preconceived plan or design of all the malefactors to
achieve a common purpose, namely the killing of Modesto. Irrefragably,
the tasks assigned to Leon in the commission of the crime were (a) to
act as a lookout; (b) to ensure that Rita and Randy remain in their house to
prevent them from seeking assistance from police authorities and their
relatives before their mission to kill Modesto shall have been a fait
accompli as well as the escape of Marlon and Ronald.54 Patently, Leon, a
lookout for the group, is guilty of the killing of Modesto.55 Leon may not
have been at the situs criminis when Modesto was killed by Marlon and
Ronald nevertheless he is a principal by direct participation.56 If part of a
crime has been committed in one place and part in another, each person
concerned in the commission of either part is liable as principal. No matter
how wide may be the separation of the conspirators, if they are all
engaged in a common plan for the execution of a felony and all take their
part in furtherance of the common design, all are liable as principals.
Actual presence is not necessary if there is a direct connection between
the actor and the crime.57
Ronald, Marlon and Leon, however, assail the testimonies of Randy and
Rita alleging that the same were marred by inconsistencies.
1. Randy initially stated that he did not know where the assailants brought
his father. Later however, Randy claimed that the malefactors proceeded
to the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those who
barged into their house. She later changed her testimony and declared
that it was Robert, together with Marlon and Ronald who barged into the
house;
3. Rita likewise testified that two men stood outside the house guarding
them. Later, she testified that after the three men brought out the victim,
the two other accused entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day, or
on January 25, 1999, and she was accompanied by her son Randy.

However, Randy testified that he was alone when he looked for his father
from January 24 to 26, 1999.58

consideration of all the questions propounded to the witness and his

answers thereto.63

We do not agree with Marlon, Ronald and Leon. Case law has it that the
findings of facts of the trial court, its calibration of the collective
testimonies of witnesses and its assessment of the probative weight
thereof and its conclusions culled from its findings are accorded by the
appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor, deportment
and conduct of the witnesses as they give their testimonies before the
court.

Randy's testimony that he did know where the malefactors brought his
father is not inconsistent with his testimony that Ronald and Marlon
brought his father towards the direction of Paldit, Sison, Pangasinan.
Randy may not have known the destination of accused-appellants but he
saw the direction to which they went. While it may be true that when
asked to identify the three who barged into their house, Rita pointed to
Leon as one of them, however, Rita had been consistent throughout her
testimony that those who barged into their house were Ronald and
Marlon. Leon's counsel never cross-examined Rita and impeached her
testimony on her identification of Leon as one of those who barged into
their house to give her an opportunity to explain her perceived
inconsistency conformably with Rule 132, Section 13, of the Revised Rules
of Evidence which reads:

In the present case, the trial court gave credence and full probative weight
to the testimonies of the witnesses of the prosecution. Moreover, there is
no evidence on record that Randy and Rita were moved by any improper
or ill motive in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and probative
weight.59 The inconsistencies in the testimonies of Rita and Randy do not
render them incredible or their testimonies barren of probative weight. It
must be borne in mind that human memory is not as unerring as a
photograph and a person's sense of observation is impaired by many
factors including the shocking effect of a crime. A truth-telling witness is
not always expected to give an error-free testimony considering the lapse
of time and the treachery of human memory. What is primordial is that
the mass of testimony jibes on material points, the slight clashing of
statements dilute neither the witnesses' credibility nor the veracity of his
testimony.60 Variations on the testimony of witnesses on the same side
with respect to minor, collateral or incidental matters do not impair the
weight of their united testimony to the prominent facts.61 Inconsistencies
on minor and trivial matters only serve to strengthen rather than weaken
the credibility of witnesses for they erase the suspicion of rehearsed
testimony. 62
Moreover, the testimony of a witness should be construed in its entirety
and not in truncated terms and the true meaning of answers to isolated
questions propounded to a witness is to be ascertained by due

"Before a witness can be impeached by evidence that he has made at

other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he
made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any
question is put to him concerning them."64
Hence, the presentation of the inconsistent statements made by Rita is
insufficient for the desired impeachment of her.65 As to whether Rita and
Randy were together in looking for Modesto or Leon merely stood guard
by the door of the house or entered the house are inconsequential. The
fact is that Leon stood guard throughout the night to prevent Rita and
Randy from seeking assistance for the seizure and killing of Modesto.
This Court is convinced, as the trial court was, that the respective
testimonies of Randy and Rita bear the earmarks of truth and sincerity.
Despite intense and grueling cross-examination, they responded with
consistency upon material details that could only come from a firsthand
knowledge of the shocking events which unfolded before their eyes. The

Court thus finds no cogent reason to disregard the findings of the trial
court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a
reversible error in not giving credence and probative weight to their
evidence to prove their defense of alibi. They aver that their collective
evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the
weakest of defenses in criminal prosecution because the same is easy to
concoct between relatives, friends and even those not related to the
offender.66 It is hard for the prosecution to disprove. For alibi to merit
approbation by the trial court and this Court, Marlon, Ronald and Leon are
burdened to prove with clear and convincing evidence that they were in a
place other than the situs criminis at the time of the commission of the
crime; that it was physically impossible for them to have committed the
said crime.67 They failed to discharge their burden. Moreover, Rita and
Randy positively and spontaneously identified Marlon, Ronald and Leon as
the culprits. The house of Ronald, where he claimed he was when the
crime was committed, was only two kilometers away from the house of
Modesto and can be negotiated by a tricycle. Leon failed to adduce any
documentary evidence to prove his employment by Sally Asuncion. The
barefaced fact that he was a resident of Laoag City does not constitute
proof that he was in Laoag City on the day of the commission of the crime.
With respect to Marlon, he failed to adduce evidence aside from his selfserving testimony that he resided in, left Dumaguete City and arrived in
Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the
qualifying circumstance of treachery in the killing of Modesto. The trial
court likewise appreciated nighttime and abuse of superior strength and
the use of unlicensed firearms as separate aggravating circumstances. The
Office of the Solicitor General contends that indeed treachery was
attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are
guilty of murder defined in and penalized by Article 248 of the Revised
Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only of
homicide defined in and penalized by Article 248 of the Revised Penal
Code.
Qualifying circumstances such as treachery and abuse of superior strength
must be alleged and proved clearly and conclusively as the crime itself.
Mere conjectures, suppositions or presumptions are utterly insufficient
and cannot produce the effect of qualifying the crime.68 As this Court held:
"No matter how truthful these suppositions or presumptions may seem,
they must not and cannot produce the effect of aggravating the condition
of defendant."69 Article 14, paragraph 16 of the Revised Penal Code
provides that there is treachery when the offender commits any of the
crimes against the person, employing means, methods or forms in the
execution thereof which tend directly and especially to insure its
execution, without risk to himself arising from the defense which the
offended party might make. For treachery to be appreciated as a
qualifying circumstance, the prosecution is burdened to prove the
following elements: (a) the employment of means of execution which
gives the person attacked no opportunity to defend himself or retaliate;
(b) the means of execution is deliberately or consciously
adopted.70 Although the victim may have been defenseless at the time he
was seized but there is no evidence as to the particulars of how he was
assaulted and killed, treachery cannot be appreciated against the
accused.71 In this case, the victim was defenseless when seized by Marlon
and Ronald. However, the prosecution failed to present any witness or
conclusive evidence that Modesto was defenseless immediately before
and when he was attacked and killed. It cannot be presumed that although
he was defenseless when he was seized the victim was in the same
situation when he was attacked, shot and stabbed by the malefactors. To
take advantage of superior strength means to purposely use force that is
out of proportion to the means of defense available to the person
attacked.72 What is primordial, this Court held in People v. Rogelio
Francisco73 isthat the assailants deliberately took advantage of their
combined strength in order to consummate the crime. It is necessary to
show that the malefactors cooperated in such a way as to secure
advantage from their superiority in strength.74 In this case, the prosecution

failed to adduce evidence that Marlon and Ronald deliberately took

advantage of their numerical superiority when Modesto was killed. The
barefaced facts that the malefactors outnumbered Modesto and were
armed while Modesto was not does not constitute proof that the three
took advantage of their numerical superiority and their handguns when
Modesto was shot and stabbed.75
In sum then, we believe that Marlon, Ronald and Leon are guilty only of
Homicide defined in and penalized by Article 249 of the Revised Penal
Code with reclusion temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed
firearms was proven during the trial, there is no allegation in the
Information that Marlon, Ronald and Leon had no license to possess the
firearm. Lack of license to possess a firearm is an essential element of the
crime of violation of PD 1866 as amended by Republic Act No. 8294, or as
a special aggravating circumstance in the felony of homicide or
murder.76 Neither can dwelling, although proven, aggravate the crime
because said circumstance was not alleged in the Information as required
by Rule 110, Section 8, of the Revised Rules of Court.77 Although this rule
took effect on December 1, 2000, after the commission of the offense in
this case, nonetheless it had been given retroactive effect considering that
the rule is favorable to the accused.78
There being no modifying circumstances in the commission of homicide,
Marlon, Ronald and Leon should be meted an indeterminate penalty, the
minimum of which shall be taken from the entirety of prision mayor,
ranging from 6 years and one day to 12 years and the maximum period of
which shall be taken from the medium period ofreclusion temporal,
ranging from 14 years, 8 months and one day to 17 years and 4 months.
Consequently, the award for damages in favor of the heirs of the victim
should be modified. The sum of P75,000.00 awarded as moral damages
should be reduced to P50,000.00 in accordance with prevailing
jurisprudence.79 The amount of P25,000.00 as exemplary damages is in
order.80 In addition, civil indemnity in the amount of P50,000.00 should be
awarded without need of proof, likewise in consonance with prevailing
jurisprudence.81

IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is

AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim, Ronald
Delim and Leon Delim are hereby found guilty beyond reasonable doubt of
the felony of Homicide defined in and penalized by Article 249 of the
Revised Penal Code. There being no modifying circumstances in the
commission of the crime, each of accused-appellants is hereby meted an
indeterminate penalty of from ten (10) years and one (1) day of prision
mayor in its maximum period as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal in its medium period as
maximum. Accused-appellants are hereby ordered to pay, jointly and
severally, to the heirs of the victim the amount of P50,000.00 by way of
civil indemnity, the amount of P50,000.00 by way of moral damages and
the amount of P25,000.00 by way of exemplary damages. SO ORDERED.
G.R. No. 132788

October 23, 2003

PEOPLE OF THE PHILIPPINES, vs. ISAIAS FERNANDEZ y VERAS a.k.a.

"ISAIAH FERNANDEZ," ROBERT "BOBBY" KIWAS y BINAWE, JOHN DOE,
PETER
DOE
and
CHARLIE
DOE, accused,
ISAIAS FERNANDEZ y VERAS a.k.a. "ISAIAH FERNANDEZ," appellant.
For automatic review is the decision1 of the Regional Trial Court of Baguio
City, Branch 6, dated January 14, 1998, in Criminal Case No. 14390-R,
finding appellant Isaias Fernandez y Veras, guilty beyond reasonable doubt
of violating Republic Act No. 6539,2 as amended by Republic Act No. 7659,
and sentencing him to death.
In an Information dated June 18, 1996, the Office of the City Prosecutor of
Baguio City charged herein appellant, Robert "Bobby" Kiwas, and three
Does with violation of the Anti-Carnapping Act as amended by Rep. Act
No. 7659, allegedly committed as follows:
That on or about the 21st day of April 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent of gain and without the consent of the owner
thereof, conspiring, confederating and mutually aiding one another, did
then and there willfully, unlawfully and feloniously take, steal and drive
away a motor vehicle described as follows:

MAKE---------------------------TOYOTA
SERIES--------------------------TAMARAW FX
TYPE OF BODY---------------WAGON
PLATE NO.---------------------AVF-723
MOTOR NO.--------------------2C 3020507
SERIAL/CHASSIS NO. ------CF50 0016027
belonging to SPOUSES JEFFRED ACOP & JOSEPHINE ACOP and driven by
CLIFFORD GUINGUINO y GORIO and on the occasion and by reason of said
carnapping, with intent to kill and with treachery and evident
premeditation, the accused attacked, assaulted and shot the said Clifford
Guinguino y Gorio, thereby inflicting upon the latter: Cardio Respiratory
failure, Hypovolemic shock, Cardiac tamponade, Hemothorax Intra
Abdominal Hemorrhage Secondary to Gunshot Wound, Multiple, which
caused his death.
CONTRARY TO LAW.3
On May 21, 1997, appellant Fernandez, who was then at large, was
arrested by elements of the Philippine National Police Criminal
Investigation Group (PNP-CIG) in Baguio City, by virtue of a warrant of
arrest issued by the trial court.4
The following day, appellant was arraigned and with assistance of counsel,
pleaded not guilty to the indictment.5He waived pre-trial. Thereafter, the
case was set for continuous trial to terminate within sixty (60) days,
pursuant to Supreme Court Adm. Order No. 104-96.6 Appellant was tried
separately as his co-accused, Robert "Bobby" Kiwas, had been earlier tried
and convicted of the offense charged.
The facts of this case, as drawn from the records, are as follows:
Engineer Jeffred Acop, a resident of Baguio City was the owner and
operator of two Tamaraw FX taxis, registered as "RAMA."7 One of said
taxis was maroon in color and bore registry plate no. AVF 723. Its regular
driver was Clifford Guinguino.8

On the morning of April 21, 1996, Guinguino took out the maroon
Tamaraw FX taxi to ply his daily rounds in Baguio City.9 Later that day,
sometime between 6:00 to 7:00 p.m., prosecution witness Arcadio Awal,
Guinguinos brother-in-law10 and a taxi driver by occupation, encountered
the latter driving the "RAMA" taxi of Engr. Acop at Governor Pack Road,
Baguio City11 while Guinguino was driving the maroon Tamaraw FX
"RAMA" taxi towards Marcos Highway. Awal used to drive the "RAMA"
taxi that Guinguino was driving.12 Guinguino had four or five male
passengers on board.13 Awal, however, failed to recognize the faces of
Guinguinos passengers as it was already dark and the two vehicles were
moving at a fast clip.14 Awal and Guinguinos vehicles passed each other
quickly and they blew the horns of the vehicles they were driving as an
exchange of greetings. It was to be the last time that Guinguino was seen
alive. Eng. Acop waited that whole night for Guinguino to return the taxi
he was driving but in vain.15
At around 8:00 a.m. of April 22, 1996, Police Precinct No. 5 in Baguio City
received a call informing them that a dead body was to be found at
Interior Balacbac, Baguio City.16 Immediately, SPO4 Lucio Alvarado, who
took the call and his fellow law enforcer, SPO1 Wilfredo Cabayanan,
proceeded to the area. On seeing that there was indeed a male corpse in
the area, apparently the victim of foul play, SPO4 Alvarado immediately
left to call a medico-legal officer, leaving SPO1 Cabayanan to secure the
crime scene. The latter initially examined the cadaver and saw that it had
sustained several gunshot wounds.17
After some minutes, Dr. Arsenio B. Avenido, a medico-legal officer of the
Baguio City Health Department arrived. After his own preliminary
examination of the victims remains, Dr. Avenido surmised that the victim
had been killed either late in the evening of the previous day or very early
in the morning of April 22, 1996.18 The corpse was then removed from the
scene to enable Dr. Avenido to conduct a proper autopsy.
The post-mortem examination conducted by Dr. Avenido showed that the
victim had sustained the following injuries:
HEAD No evidence of external physical injury

NECK Gunshot wound 3 cm. x. 0.3 cm., 2.4 cm. in depth latero medial
neck right point of exit once
THORAX Wound gunshot 1.4 x 0.7 cm., 3 cm. in depth hypochondrium
left
ABDOMEN Gunshot wound 1.4 cm. x 1 cm., 4 cm. in depth anterior
lumbar right.19

Ducusin proceeded to the checkpoint and saw a maroon Tamaraw FX

driven by his brother-in-law, the appellant herein.25 He had four male
companions with him aboard the vehicle, one of whom was referred to as
"Kiwas."26Ducusin then got aboard the vehicle and they proceeded to his
house, with the appellant driving.

In the course of his examination, Dr. Avenido recovered a slug from the
body, which a ballistic examination showed had been fired from a .22
caliber firearm.20 He turned over the slug to the police for a ballistic
examination.21 Dr. Avenido found the cause of death to be:

On reaching his house, Ducusin exerted all efforts to be hospitable to his

visitors.27 The appellant then informed Ducusin that the vehicle he was
driving was owned by the appellants kumpare. Ducusin noticed, however,
that they were armed with firearms of various calibers,28 but gave no
further thought to it since he knew for a fact that the appellant was
working as a security officer for a Baguio-based security agency.29

Cardio respiratory failure, hypovolemic shock, cardiac tamponade,

hemothorax intra abdominal hemorrhage due to gunshot wound,
multiple.22

The appellant and his group stayed for two (2) days at the house of
Ducusin. They left the vehicle with him, saying that they would be back for
it.30

Meanwhile, on April 23, 1996, Engr. Acop accompanied by Awal and

Magdalena Guinguino, the victims mother, went to Baguio City Police
Precinct No. 5 to report that Acops Tamaraw FX taxi and its driver were
missing. When shown the corpse found by the police at Interior Balacbac,
Acop identified it to be the remains of his missing driver, Clifford
Guinguino. The Baguio City police force then conducted a series of search
and recovery operations to find and get back the missing motor vehicle,
but to no avail. Having come up empty through their efforts, the Baguio
City police then spread the word about the missing vehicle to the police
units in the nearby provinces and requested their assistance in locating
it.23

Several days later, three of appellants companions, one of whom Ducusin

recognized as Kiwas, returned to Ducusins place and took the vehicle with
them.31 After leaving for places unknown, they returned and stayed with
Ducusin for another two days. When they departed, they left the vehicle
with Ducusin, on the pretext that it had a defect.32

While the Baguio City police were still busy with what proved to be
fruitless efforts to locate the "RAMA" Tamaraw FX taxi, which seemed to
have vanished from the face of the earth, late one evening in the last week
of
April
1996,
prosecution
witness
Laurencio
Ducusin,
the barangay captain of Casanfernandoan, Pozorrubio, Pangasinan, was
informed by some of the barangay tanods, that a Tamaraw FX had
stopped at one of their checkpoints. Ducusin and the tanods were at that
time doing the nightly ronda in the barangay.24

After several more days, Kiwas together with four companions returned
and like the last time, Kiwas drove away the vehicle only to return after
several hours.33 When Ducusin asked why they were using the vehicle
although it supposedly had a defect, Kiwas replied that they would have it
repaired.34 The group then left, leaving Ducusin again in possession of the
vehicle. They promised to return for the vehicle with the appellant whom
they referred to as "sir."35
After the lapse of several days, a mechanic arrived at Ducusins house
saying that the appellants group had sent him to effect repairs on the
vehicle.36 Meanwhile, Ducusin had parked the vehicle inside the camalig of
his mother, Catalina Ducusin, which was some two hundred (200) meters
away from his house.37
The mechanic worked for several days. He changed its chassis38 and then
repainted the vehicle, changing its color from maroon to gold.39

Ducusin was made suspicious by this turn of events and fearful that the
vehicle was not really owned by his brother-in-laws kumpare, he confided
his suspicions to SPO2 Maximiano Balelo of the Pozorrubio Police Station
on June 5, 1996.40 SPO2 Balelo recalled that on April 23, 1996, the Baguio
City Police Command advised them to be on the lookout for a carnapped
maroon Tamaraw FX taxi with the marking "RAMA," which had been taken
by unidentified men in Marcos Highway in the evening of April 21,
1996.41 The Pozorrubio police conducted surveillance operations to
determine if the vehicle was in their area of jurisdiction.
SPO2 Balelo then advised his superior officer, Chief Inspector Lorenzo
Pedro, Pozorrubio Chief of Police, about the information he received from
Ducusin. Elements of the Pozorrubio police immediately conducted
surveillance operations in barangay Casanfernandoan to verify Ducusins
report.42
On June 5, 1996, the police confirmed the information given by Ducusin
that a Tamaraw FX was indeed to be found in Casanfernandoan. The next
day, the police recovered said vehicle at the camalig of Ducusins mother.
They called up Engr. Acop in Baguio City and asked him to go to
Pangasinan to see if the vehicle recovered was his missing Tamaraw FX
taxi.
Despite the change in its color, Engr. Acop was able to identify the vehicle
recovered by the Pozorrubio police as his missing RAMA taxi. His
identification was made through the stickers that he placed on the vehicle,
the floormats, the steering wheel cover, and the several dents on its
body.43 He also tried his spare key in the vehicles ignition to determine if
this would fit. It turned out to be a perfect fit.44 Engr. Acop could not
identify the vehicle through its engine number or chassis number, leading
him to believe that both the engine and the chassis had been changed, but
nonetheless, the vehicle recovered bore the same production number (JY
999-02) as his missing Tamaraw FX. The recovered vehicle was then
brought back to Baguio City.
In Baguio City, a macro-etching examination was conducted by Alma
Margarita D. Villaseor, the PNP Forensic Chemist at Camp Bado Dangwa,
La Trinidad.45 The examination showed that the engine number of the

recovered vehicle had not been tampered with, but the chassis number
(EVER 96-49729-C) was different from that in its certificate of registration
(CF-50-0016027).46 This led Villaseor to conclude that the chassis had
been replaced.47 Nonetheless, Villaseor observed that the vehicle could
still be identified through its production number (JY 999-02), a secret
manufacturers number used to distinguish a particular vehicle from
others of the same make or model.48
One of the witnesses presented by the prosecution, Robert Reyes, a
marketing executive of Toyota Cubao, Inc., testified that there are three
(3) ways by which a Toyota vehicle may be identified: (1) by the engine
number; (2) by the chassis number; and (3) its production number. Reyes
categorically declared that no two (2) Toyota vehicles would have identical
engine, chassis, and production numbers.49 Reyes also identified the
production number of the Toyota (JY 999-02) as that indicated in the sales
invoice prepared by Toyota Cubao, Inc. when the said vehicle was sold by
them to NORCAR Allied Motors in Baguio City.50
Honorio Danganan, owner of NORCAR Allied Motors, an authorized Toyota
dealer in Baguio City declared on the witness stand that he sold a Toyota
Tamaraw FX to the spouses Acop with the following vehicle identification
markings: (1) Engine number: 2C-302507; (2) Chassis number CF-500016027; and (3) Production number JY 999-02.51 Danganan stated that
although the recovered vehicle now had a different chassis number, it still
bore the original production number JY 999-02, thus leading him to
conclude that there is a very big possibility that it was the same vehicle he
sold to the spouses Acop.52
To prove that appellants group is a syndicate organized for carnapping
activities, the prosecution adduced in evidence the information filed
against appellant, Kiwas, and four other men, before the RTC of La
Trinidad, Benguet for carnapping with violence of another Toyota
Tamaraw FX belonging to a certain James Advincula. 53
At the trial, herein appellant raised the defense of denial and alibi in his
bid to escape culpability. He claimed that on April 21, 1996, the date when
Clifford Guinguino was killed, he was working at the office of BISAI until
11:00 p.m.54 Among the things he did was to prepare his belongings as he

was scheduled to go to Balatoc, Antamok, Sangilo to deliver the pay of the

guards stationed there. After he was through with his preparations, he
went straight home to Brookside, Baguio City.55

Paraan, former Administrative Manager of BISAI and two accounting clerks

of said security agency, namely: Emma Ruth Alcantara and Evelyn
Madarang.1awphi1.nt

Appellant further claimed that on April 28, 1996, he went home to Bued,
Binalonan, Pangasinan, after office hours. He said his family was throwing
a thanksgiving party for his daughter Carla Joy Fernandez, who just
graduated from St. Louis University with a nursing degree.56 Carla Joy,
however, was not present at said affair as she was already attending board
review classes in Manila.57 He added that it was in the midst of the family
party that at about 11 p.m. Kiwas arrived. He said Kiwas was one of the
security personnel of BISAI. Together with five (5) male companions, Kiwas
came on board a Toyota Tamaraw FX with "RAMA" markings on the
sides.58

Alcantara and Madarang corroborated appellants alibi that he worked

from 7:00 a.m. to 7:00 p.m. on April 21, 1996.64 Appellants defense
presented the payroll of BISAI and his daily time record. But on crossexamination, none of the defense witnesses could state with certainty
where appellant was from the time he reported to work in the morning to
the time he left in the evening.65 As appellants own testimony showed, his
work as security operations officer was mainly in the field, supervising and
inspecting the security guards deployed in various places in Baguio
City.66 Neither Alcantara nor Madarang could categorically state whether
appellant had in fact returned to the office from his rounds of the security
postings to log out at 7:00 p.m. since both ladies left the BISAI offices at
5:00 p.m.

According to appellant, Kiwas introduced to him one of his companions,

"Benny," as a kumpare. "Benny" was supposedly in need of money and
willing to mortgage the vehicle to the appellant.59 As the latter had no
money with him, Kiwas asked if they could go to the appellants sister in
Pozorrubio, Pangasinan, to mortgage the vehicle.60
Appellant stated that he accompanied Kiwas and his group to his sisters
residence in Pozorrubio. They arrived in town at around 11:00 p.m. There
they ran into a checkpoint manned by the barangay police. Appellant
informed them that he was looking for the barangay captain, Laurencio
Ducusin, who happened to be his brother-in-law.61
When Ducusin arrived, the appellant claimed that he informed him about
the offer of "Benny" to mortgage the vehicle. As Ducusin was agreeable,
appellant then asked Kiwas to take him back to Binalonan as it was already
late and he had to report for work the following day in Baguio City.62 He
denied staying at the Ducusin residence for two days. He said Ducusin and
two of the companions of Kiwas brought him back to Binalonan right
away, arriving there at around two oclock in the morning.63
To buttress his alibi that he was at work in BISAI the night of April 21,
1996, when Clifford Guinguino was killed and the Toyota Tamaraw FX
vehicle he was driving disappeared, the appellant presented Rolanda

On January 14, 1998, the trial court promulgated its judgment as follows:
WHEREFORE, the Court finds the accused ISAIAH FERNANDEZ Y VERAS,
also known as Isaias Fernandez, guilty beyond reasonable doubt of
violation of Section 14 of Republic Act 6539, as amended by Section 20 of
Republic Act 7659 (Qualified Carnapping where the driver of the
carnapped vehicle, Clifford Guinguino, was killed in the course of the
commission of the carnapping or on the occasion thereof) as charged in
the Information in conspiracy with Robert Kiwas (who was already
convicted after a separate trial earlier) and others whose identities and
whereabouts are yet unknown, and hereby sentences him to suffer the
supreme penalty of DEATH to be implemented in accordance with law; to
indemnify jointly and severally with his confederates, the heirs of Clifford
Guinguino the sum of P50,000.00 for his death, P74,945.00 as actual
damages, P200,000.00 as moral damages, and P1,590,000.00 as unearned
income; and to likewise indemnify jointly and severally with his
confederates, the spouses Jeffred Acop and Josephine Acop, the owners of
the carnapped subject taxi, the amount of P373,500.00 as value of the
carnapped vehicle, all indemnifications are without subsidiary
imprisonment in case of insolvency; and to pay the proportionate costs.

SO ORDERED.67
In view of the imposition of the death penalty, the records of Criminal
Case No. 14390-R were elevated to this Court for automatic review.
Before us, the appellant assigns the following errors:
I
THE TRIAL COURT ERRED IN FINDING THAT FERNANDEZ IS GUILTY BEYOND
REASONABLE DOUBT OF QUALIFIED CARNAPPING.
A. THE TRIAL COURT ERRED IN HOLDING THAT THERE IS SUFFICIENT
CIRCUMSTANTIAL EVIDENCE ON RECORD TO PROVE THAT FERNANDEZ
COMMITTED QUALIFIED CARNAPPING.
B. THE TRIAL COURT ERRED IN LENDING UNDUE CREDENCE TO WITNESS
LAURENCIO DUCUSINS PATENTLY UNRELIABLE TESTIMONY.
C. THE TRIAL COURT ERRED IN HOLDING THAT THERE IS SUFFICIENT
CIRCUMSTANTIAL EVIDENCE ON RECORD TO PROVE THAT FERNANDEZ
CONSPIRED WITH ROBERT KIWAS AND THREE (3) JOHN DOES TO COMMIT
QUALIFIED CARNAPPING.
D. THE TRIAL COURT ERRED IN RELYING ON PATENTLY INADMISSIBLE
EVIDENCE TO SUPPORT ITS FINDING OF GUILT AGAINST FERNANDEZ.
E. THE TRIAL COURT ERRED IN REFUSING TO LEND CREDENCE TO
FERNANDEZ VERSION OF THE EVENTS.1a\^/phi1.net
F. THE TRIAL COURT VIOLATED FERNANDEZ CONSTITUTIONAL RIGHT TO
BE PRESUMED INNOCENT UNTIL PROVEN GUILTY.
II
THE TRIAL COURT ERRED IN IMPOSING ON FERNANDEZ THE SUPREME
PENALTY OF DEATH.
A. THE TRIAL COURT ERRED IN HOLDING THAT FERNANDEZ IS A MEMBER
OF AN ORGANIZED GROUP OR SYNDICATE ENGAGED IN AN ILLEGAL
CARNAPPING SCHEME.68

Briefly stated, the issues for our resolution are: (1) the sufficiency of the
evidence to sustain appellants conviction; and (2) the propriety of the
penalty imposed.
On the first issue, appellant argues that the prosecution failed to prove the
essential elements of carnapping as defined in Section 14 of the AntiCarnapping Act of 1972, as amended. He contends that,
assuming arguendothere is on record circumstantial evidence against
appellant, nonetheless such evidence could not be relied upon by the trial
court to constitute proof beyond reasonable doubt that he participated in
the unlawful taking of the vehicle and fatal shooting of its driver. Instead,
according to appellant, the most that could be attributed to him is that he
accompanied the group of Kiwas in bringing the stolen vehicle to
Laurencio Ducusin in Pangasinan.
For the appellee, the Office of the Solicitor General (OSG) counters that
the undisputed factual circumstances established by the prosecution
constitute an unbroken chain of events which lead fairly and reasonably to
but one conclusion, namely: that the appellant is guilty of the offense
charged.
For circumstantial evidence to be a sufficient basis for a conviction, the
following requisites must be satisfied: (1) there must be more than one
circumstance; (2) the facts from which the inferences are derived are
proven; and (3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.69
Considering the evidence on record, with the submission of the parties, we
find the prosecution evidence sufficient to sustain appellants conviction
beyond reasonable doubt. Thus, we find no reason to deviate from the
trial courts assessment as to appellants culpability for carnapping with
homicide.
The trial court found appellant and his companions were in control and
possession of the subject vehicle soon after the shooting of the driver,
Clifford Guinguino. Witness Laurencio Ducusin testified that when the
group of appellant arrived in Pozzorubio, Pangasinan, appellant who was
addressed as "Sir" by his companions, was the one driving the vehicle.

Appellant himself admitted that the taxi he rode in going to the Ducusins
had the marking "RAMA" on it.70
In the absence of an explanation of how one has come into the possession
of stolen effects belonging to a person shot, wounded and treacherously
killed, he must necessarily be considered the author of the aggression, the
death of the person, as well as the robbery committed.71 This presumption
is consonant with Rule 131 (3) (j) of the Rules of Court72 and validly applies
to a case of carnapping for, indeed, the concept of unlawful taking in theft,
robbery and carnapping is the same and, had it not been for the
enactment of the Anti-Carnapping Act, the unlawful taking of the motor
vehicle would certainly fall within the purview of either theft or robbery.
This presumption extends to cases where such possession is either
unexplained or that the proffered explanation is rendered implausible in
view of independent evidence inconsistent thereto.73 Appellant having
failed to give a plausible explanation for his possession of the stolen
Tamaraw FX, perforce, he is presumed to have taken the vehicle away
from the rightful owner or possessor thereof.
We have no reason to doubt Ducusins credibility as a witness. Ducusin is
appellants own brother-in-law, but he is also a Barangay Captain. Despite
his relationship with appellant, his sense of justice proved unerring. He
bared his suspicion to the police that the vehicle left in his care was a hot
item. Appellant tried to ascribe ill-motive on Ducusin for testifying against
him, but appellant failed in this regard. Absent a showing that the witness
was actuated by an improper motive, the presumption is that he was not
so actuated and his testimony is entitled to full faith and credit.74 This rule
has a more compelling application when the witness testifies against a
relative, for no person would implicate in a crime his own kin, disregarding
the unspeakable social stigma it may cause against his entire family, unless
that person seeks only the truth, for justice to prevail.
We find that sufficient circumstantial evidence exists, consistent with
appellants guilt, and inconsistent with his innocence. 75 Against appellant
are the following circumstances: (1) He and his group were in possession
of the stolen Tamaraw FX after its driver was shot to death. (2) The victim,
Clifford Guinguino, was last seen between 6 to 7 p.m. that night, with five

men aboard the FX dovetailing with the testimony of Ducusin that

appellants party of five men were on board the vehicle when they arrived
in Pangasinan before midnight sometime in the latter part of April. (3)
Appellant who was addressed as "Sir" by the group, was the one driving
the vehicle when he, Kiwas, and three John Does arrived in Pangasinan
hours after the Guinguinos fatal shooting. (4) On arrival in Pangasinan,
appellant and Kiwas were armed with .22 caliber guns while the others
were carrying .38 caliber guns, which match the wounds of the victim,
some of which were characteristic of .22 caliber bullets while the others
were bigger, typical of a .38 caliber. (5) Appellant and his group left the
vehicle at the Ducusins at the pretext that it needed repairs, although it
was brand new and was able to run all the way from Baguio. (6) Instead of
just repairing it, a man sent by appellants group changed the engine and
chassis of the vehicle and repainted its body from maroon to gold. (7)
Appellant did a vanishing act from his work a day after the stolen car was
identified by its owner and placed in custodia legis. (8) He went into hiding
and was unheard of until his arrest.
The foregoing factual circumstances constitute evidence of weight and
probative force which may even surpass direct evidence in its effect upon
the Court.76 The peculiarity of circumstantial evidence under Sec. 4, Rule
133 of the Rules of Court 77 is that the guilt of the accused cannot be
deduced from scrutinizing just one particular piece of evidence.
Circumstantial evidence is like a rope composed of many strands and
cords. One strand might be insufficient, but five together may suffice to
give it strength.78 Here, strands of evidentiary facts weaved together
compels to conclude that the crime of carnapping with homicide has been
committed, and that the appellant cannot hide behind the veil of
presumed innocence.
Lastly, we find appellants defense of alibi inadequate to support his
exculpation.
According to appellant, on April 21, 1996, he was at work from 7:00 a.m.
to 11:00 p.m. and the next day, April 22, from 7:00 a.m. to 7:00 p.m. He
presented in this regard his payroll receipts as supporting evidence.
However, as found by the trial court, his claim that he worked on April 21,

1996 in BISAI from 7 a.m. to 11 p.m. is contradicted by his own daily time
record, which stated that he was at work from 7 a.m. to 7 p.m. only that
day. Also, the Accounting Clerk from BISAI who prepared the said payroll,
said there was no way of ascertaining whether appellant was in fact
present at his post of duty because, as roving supervisor, he checked
security guards in their posts located at various clientestablishments.1vvphi1.nt
Appellant claims that he went down to Binalonan to attend his daughters
graduation thanksgiving party on April 28, 1996. There at about 11 p.m.,
Kiwas and five companions whom he had not met before arrived on board
the subject "RAMA" taxi and spoke to him about their dire need of cash
and their willingness to mortgage the subject taxi, according to appellant.
Since he was cash-strapped himself, appellant said, he accompanied them
to the house of his sister and brother-in-law, Laurencio Ducusin, in
Pozorrubio, Pangasinan. They arrived in Pozorrubio at about midnight.
But, according to appellant, it was not he but only Kiwas and his group
who transacted business with his sister. Thereafter, at 2 a.m. the next day,
the group brought him back to Binalonan while Kiwas and others spent the
rest of the night in Pozorrubio with the Ducusins.
As the trial court observed, appellants version of events runs contrary to
ordinary human experience. His story taxes ones credulity too much.
Why would appellants family set the celebration of his daughters
graduation on a date when supposedly the celebrant was in Manila
already reviewing for the board exams? Whats the logic behind Kiwas
driving all the way from Baguio to Pangasinan in the middle of the night
just to borrow money from appellant? Why was Kiwas accompanied by
five men just to get the alleged loan? What prompted appellant to rush
with a group of strangers to his sisters house in Pozorrubio, Pangasinan, in
the middle of the night? Why borrow only P10,000, but leave a new FX taxi
worth P400,000 as collateral? All these questions beg to be answered, but
in vain, as we try to make sense of appellants tale.
As a supervisor of the security agency, appellant was not a novice in the
nuances of the law. Seeing the taxis "RAMA" markings boldly written on
it, appellant should have been more circumspect as to vehicles

ownership. Why didnt he inquire for the registration papers of the FX? For
someone of his stature and experience, it was rather odd that he did not
inquire into the basics of a rush transaction.
Even more puzzling, appellant did not present his sister to corroborate the
essentials of his story. The defense had no corroborating witnesses at all
to back appellants version. His denial and alibi have no leg to stand on.
In sum, we find no reason nor justification to reverse the findings and
conclusions of the trial court. In affirming convictions, the evidence
required remains, as always, one beyond reasonable doubt, though we do
not ask for proof that excludes all possibility of error.79 Only moral, not
absolute, certainty is what the fundamental law requires. In this case,
considering the circumstances of the case, we entertain no doubt on
appellants guilt.
As to the penalty, the trial court imposed the death sentence on appellant.
Pursuant to the last clause of Section 14 of the Anti-Carnapping Act,
amended by Section 20 of Republic Act 7659, the penalty of reclusion
perpetua to death is imposable when the owner or the driver of the
vehicle is killed in the course of the commission of the carnapping or on
the occasion thereof. 80 Considering as aggravating the commission of the
offense by a person belonging to an organized or syndicated crime group
under Article 62 of the Revised Penal Code, as amended by R.A.
7659,81 the trial court imposed the extreme penalty on appellant. But
appellants defense now questions the propriety of imposing on him the
death sentence.
Under Rule 110, Section 8 of the Revised Rules of Criminal Procedure, both
aggravating and qualifying circumstances must be alleged in the
information. Being favorable, to the appellant, this new rule can be given
retroactive effect as they are applicable to pending cases.82
In this case, the allegation of being part of a syndicate or that appellant
and companions had formed part of a group organized for the general
purpose of committing crimes for gain, which is the essence of a
syndicated or organized crime group,83 was neither alleged nor proved by
the prosecution. Hence, we agree that it was error for the trial court to

sentence appellant under Article 62 of the Revised Penal Code, as

amended by R.A. 7659.
No aggravating circumstance having been alleged or proved properly in
this case, the provisions of Article 63 (2) of the Revised Penal Code should
be applied. Without mitigating nor aggravating circumstance found in the
commission of the offense, the lesser penalty for the offense, which
is reclusion perpetua, should be imposed on appellant.
As to damages, the amount of the trial courts award for lost earnings
needs to be recomputed and modified accordingly.
The Court notes that the victim was 27 years old at the time of his death
and his wife testified that as a driver of the Tamaraw FX taxi, he was
earning at least P250.84 Hence, the damages payable for the loss of the
victims earning capacity following the formula85 used by the Court
in People v. Visperas, G.R. No. 147315, January 13, 2003, is computed
thus:
Gross Annual Earnings = P250 x 261 working days in a year
= P 65,250
Net Earning Capacity

= 2/3 x (80-27) x [P 65,250- P 32,625]

= 35.33 x P 32,625

Lost Earnings

= P 1,152,641

With respect to the award by the trial court of P200,000 in moral

damages, in line with prevailing jurisprudence, it should be deleted for
lack of needed proof. The award of P74,945 as burial and other expenses
is also deleted for lack of adequate proof, but the victims heirs are
entitled to temperate damages in the amount of P25,000 pursuant to case
law. The award of P373,500 to the Spouses Jeffred and Josephine Acop, as
restitution of the value of their FX taxi, should also be upheld because it is
supported by evidence on record. 86

WHEREFORE, the decision of the Regional Trial Court of Baguio City,

Branch 6, dated January 14, 1998, in Criminal Case No. 14390-R, finding
appellant ISAIAS FERNANDEZ y VERAS a.k.a. "ISAIAH FERNANDEZ" guilty
beyond reasonable doubt of violation of Republic Act No. 6539 is
AFFIRMED with MODIFICATIONS. Appellant is sentenced to suffer the
penalty of reclusion perpetua and to pay the heirs of the victim CLIFFORD
GUINGUINO the sum of P50,000 as civil indemnity, P1,152,641
representing lost earnings, and P25,000.00 as temperate damages.
Appellant is also ORDERED TO PAY the owners of the FX taxi, Spouses
Jeffred and Josephine Acop, the amount of P373,500, as restitution for the
stolen vehicle. Costs de oficio. SO ORDERED
G.R. No. 121997

December 10. 2003

PEOPLE OF THE PHILIPPINES, vs. ANDRES MASAPOL,

Before this Court on appeal is the Decision1 of by the Regional Trial Court
of Naga City, Branch 28, convicting the appellant Andres Masapol of the
crime of Rape, and sentencing him to suffer the penalty of reclusion
perpetua and to pay the victim Beatriz O. Pascuin the sum of P50,000.00
as damages.
The appellant was charged of rape in an Information, the accusatory
portion of which reads:
The undersigned 2nd Assistant Provincial Prosecutor, upon a sworn
complaint originally filed by the offended party, accuses ANDRES
MASAPOL y DOE of the crime of RAPE, defined and punished under Article
335 of the Revised Penal Code, committed as follows:
That on or about 7:00 oclock in the evening of July 17, 1992, at Barangay
Marangi, Municipality of San Fernando, Province of Camarines Sur,
Philippines and within the jurisdiction of this Honorable Court, the said
accused, with lewd designs, and by means of force and intimidation, did
then and there willfully, unlawfully and feloniously, have carnal knowledge
with one Beatriz O. Pascuin, against her will.
ACTS CONTRARY TO LAW.2

On his arraignment on November 5, 1993 the appellant, assisted by

counsel, entered a plea of not guilty.3
The Case for the Prosecution
Manuel and his wife Beatriz Pascuin resided in a remote area in Barangay
Marangi, San Fernando, Camarines Sur. It was an area where the
community did not as yet have the luxury of electric light in their houses.
At around 7:00 p.m. of July 17, 1992, Beatriz dropped by the store of
Marcial Olitoquit to buy kerosene.1wphi1 The store was about 300
meters away from their house. She lighted the wick and used the kerosene
lamp to light her way back home. The road to their house was the path
usually taken by carabaos going to farm. The road sides were grassy and
strewn with coconut trees.
Suddenly, the appellant Andres Masapol appeared out of nowhere and
poked a knife at Beatriz. Before she could shout for help, the appellant
covered her mouth with his hand. He warned her not to shout; otherwise,
he would kill her. Beatriz boxed the appellant on the stomach, in an
attempt to remove the latters hand from her mouth. This enraged the
appellant. He forthwith slapped Beatriz and boxed her on the abdomen
and on her back. The appellant dragged her off from the trail to a grassy
area and forced her to lie down on the ground. Beatriz let go of the
kerosene. It was then when the wicks flame went off. The appellant
removed her short pants and her panties even as she kicked and struggled
to free herself. Undeterred, the appellant undressed himself and went on
top of her. While his right hand held a knife pressed on the base of her
neck, the appellant forced Beatriz to spread her legs. He then inserted his
penis with his left hand into her vagina and had carnal knowledge of her.
Satiated, the appellant dismounted. He threatened to kill her if she told
anyone what he had done. The appellant then left. Beatriz put on her
shorts and sped back towards her house.
At first, Beatriz balked at the thought of revealing her ordeal to her
husband. She, however, relented and told her husband that she was raped
by the appellant. Upon hearing this, Manuel was enraged; instead of
consoling his wife, he even mauled Beatriz. He ordered her not to report

the incident to the police authorities because he himself would confront

the appellant and avenge the travesty that had been committed against
her. Manuel saw that his wifes polo shirt was torn under the armpit and
that the buttons of her shorts were missing.
Since then, Manuel was on the lookout for the appellant. On August 29,
1992, Manuel armed himself with a bolo and waited for the appellant in
the latters house. Upon seeing the appellant, Manuel chased him and
tried to hack him on the head, but the appellant escaped. When apprised
of the incident, Nelia Masapol, the appellants wife, filed a criminal
complaint the following day against Manuel with Barangay Captain Ramon
Dimagante. A conference was held. Beatriz executed a statement where
she declared that she was raped by the appellant on July 17, 1992 and that
when she reported the incident to her husband, he was so
infuriated.4 Manuel informed the barangay captain that he chased the
appellant and wanted to stab him with his bolo because the appellant
sexually abused his wife. When questioned by the barangay captain, the
appellant admitted that he had sexual relations with Beatriz, but averred
that the same was consensual.5
Unable to settle the case, the barangay captain forwarded the same to the
San Fernando Police for investigation. On September 24, 1992, Beatriz
gave a sworn statement to SP04 Roger Atacador. She was examined by Dr.
Alcantara of the Rural Health Unit of San Fernando on September 14,
1992, who issued a medical certificate thereon. During the preliminary
investigation by the Presiding Judge of the MCTC, the appellant offered to
settle the case. The judge commented that if the appellant truly wanted to
settle, he should pay P33,000.00. The appellant made an offer
of P2,000.00, which Beatriz did not accept. Although the court required
him to submit a counter-affidavit, the appellant could not be located and
failed to file any. The court, thus, terminated the preliminary examination
and investigation of the case and proceeded with trial.
The Case for the Appellant
The appellant admitted having consensual sexual congress with Beatriz for
sometime, even before July 17, 1992. He, however, denied having had
carnal knowledge of her on July 17, 1992. He asserted that his daughter

Amelia celebrated her birthday that day, and on the said date, he was in
their house entertaining guests.
Macaria Mayores, the appellants first cousin, testified that she was the
biological mother of Amelia, and that she gave Amelia to the appellant
when the girl was still ten months old. She further testified that she did
not register Amelias live birth since she was busy at that time and that
Amelia would after all be adopted by the appellant.
Nelia Masapol, the appellants wife, testified that they had been
celebrating Amelias birthday on July 17 because it was on that date when
Amelia was given to them by Macaria Mayores.
Juana Chavez, a neighbor of the appellant, testified that on July 17, 1992,
she was at the appellants residence, and helped prepare the food and
serve the guests at Amelias birthday party. The appellant was in the
house the whole day, while Juana testified that she stayed there from 4:00
p.m. until around 8:00 a.m. the following day.
Teresita Canaco, a barriomate of both Beatriz and the appellant, testified
that she had a conversation with Beatriz in the courthouse during the trial.
Beatriz admitted to her that she only concocted the story of rape because
her husband Manuel had maltreated her while being asked to confess. To
stop the beating, Beatriz just told her husband that she was raped by the
appellant.
On rebuttal, the prosecution adduced in evidence the baptismal certificate
of Amelia Masapol, showing that she was born on September 19, and not
July 17.6
After the parties adduced their testimonial and documentary evidence,
the trial court rendered its Decision on November 21, 1994, finding the
appellant guilty beyond reasonable doubt of the crime charged,
sentencing him to suffer the penalty of reclusion perpetua. The decretal
portion of the decision reads:
WHEREFORE, in view of all the foregoing findings that the prosecution was
able to prove the guilt of accused ANDRES MASAPOL of the crime of rape
of which he is presently charged beyond reasonable doubt, judgment is

hereby rendered whereby the accused is sentenced to suffer the penalty

of reclusion perpetua and to pay the complainant damages in the amount
of FIFTY THOUSAND (P50,000.00) PESOS. With costs de oficio.
SO ORDERED.7
In his appeal brief, the appellant assails the decision of the trial court,
alleging that:
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED OF THE CRIME AS
CHARGED DESPITE INSUFFICIENCY OF EVIDENCE TO WARRANT SUCH
CONVICTION.8
The appellant asserts that the prosecution failed to prove that he forced
and intimidated Beatriz into having intercourse with him. He contends that
the testimony of Beatriz is inconsistent with her statement to the
barangay captain. The prosecution even failed to adduce any medical
certificate to corroborate her testimony. He contends that the fragility of
the evidence for the prosecution is highlighted by the following:
First. Beatriz testified that the kerosene lamp she was holding fell on the
side while she was being dragged by the appellant, and its light went out.
However, in her statement to the barangay captain, she declared that it
was the appellant who blew the light off.
Second. Beatriz testified that she was dragged for about 100 meters away
from the trail to a grassy place, and that the appellant had boxed and
slapped her. However, the prosecution never presented any medical
certificate showing that she sustained bruises or other injuries. The
prosecution likewise failed to adduce in evidence the panty and shorts
Beatriz was wearing to show that her clothings had been torn.
Third. Beatriz declared that she could not shout because the appellants
hand was covering her mouth, and even if she shouted, no one would hear
her as there were no houses nearby. However, she contradicted herself
when she declared in her statement to the barangay captain that she was
raped near the house of one Manuel Calinog.

Fourth. Beatriz testified that after she was raped by the appellant, she put
on her panty and shorts and walked home crying and upon arriving home
immediately told her husband, Manuel, about the incident. However, in
her statement to the barangay captain, she declared that it was only three
days after she was raped by the appellant that she told her husband
Manuel about it.
The appeal has no merit.
For a discrepancy or inconsistency in the testimony of a witness to serve
as basis for acquittal, it must refer to the significant facts vital to the guilt
or innocence of the accused for the crime charged. An inconsistency which
has nothing to do with the elements of the crime cannot be a ground for
the acquittal of the accused.9 Even if the offended party may have erred in
some aspects of her testimony, the same does not necessarily impair her
testimony nor corrode her credibility. The modern trend of jurisprudence
is that the testimony of a witness may be believed in part and disbelieved
in part, depending upon the corroborative evidence and the probabilities
and improbabilities of the case. The doctrine of FALSUS IN UNO FALSUS IN
OMNIBUS deals only with the weight of evidence and is not a positive rule
of law, and the same is not an inflexible one of universal
application.10 What is vital is that the act of copulation be proven under
any of the conditions enumerated in Article 335 of the Revised Penal
Code, as amended by Republic Act No. 7659.11
The general rule is that contradictions and discrepancies between the
testimony of a witness in contrast with what was stated in an affidavit do
not necessarily discredit her.12 Affidavits given to police and barangay
officers are ex parte. Such affidavits are often incomplete or inaccurate for
lack of or absence of searching inquiries by the investigating officer.13 The
discrepancies in Beatriz affidavit (Exhibit "B") and her testimony do not
impair her testimony and her credibility. Also, victims of rape are not
expected to have an accurate or errorless recollection of the traumatic
experience that was so humiliating and painful, that she might, in fact, be
trying to obliterate it from her memory.14 Whether the appellant himself
put off the light from the kerosene lamp with his left hand or the light was

extinguished by itself when Beatriz dropped it as the appellant dragged

her to the grassy area and raped her, is inconsequential.
The failure of the prosecution to adduce in evidence a medical certificate
to prove that the appellant had carnal knowledge of her and that she
sustained injuries when she resisted the appellant did not enfeeble the
case for the prosecution. A medical examination and a medical certificate
are merely corroborative and are not indispensable to the prosecution of a
rape case.15 It is absurd for the appellant to claim a medical certificate
because Beatriz is married and has children.16 Beatriz could not be faulted
for the decision of the prosecution not to adduce in evidence the medical
certificate issued to her which she turned over to the prosecutor. The fact
that the house of Manuel Calinog was near where she was raped by the
appellant is likewise of minimal importance because even if she wanted
to, she could not have shouted for help as the appellant had covered her
mouth with his hand.
The fact of the matter is that Beatriz reported to her husband immediately
upon arriving home that the appellant had just raped her. Manuel
corroborated his wifes testimony, thus:
Q Do you remember where you were on the evening of July 17, 1992 at
around 8:00 oclock in the evening?
A I was in my house in Marangi, San Fernando, Camarines Sur, sir.
Q What were you doing there at that time?
A I was cooking rice, sir.
Q That evening, do you remember any unusual incident that happened?
A Yes, sir, my wife arrived home.
Q What happened when your wife arrived?
A She was crying, sir.
Q Did you inquire why she was crying?
A My wife informed me that she was raped by Andres Masapol, sir.

Q And what was your reaction?

A As if she was shock, sir.

A She informed me of what happened and that my wife and I will be killed,
sir.

Q Is it not that she was in that stage because you confronted her that
night about her relation with the accused?

Q What did you do?

PROS. LEAO:

COURT:

No basis .

Before that.

COURT:

Q Who threatened your wife?

Objection sustained, that is your defense and you present your defense
but not with this witness.

A It was Andres Masapol, sir.

ATTY. TAYER:

COURT

Q What was she wearing when she arrived for the first time in your
house?

Proceed.
PROS. LEAO:

A She was wearing a polo and short pants which length is up to the knee.

Q What did you tell your wife?

A I told my wife that I will not file a case because if he would kill us we
better kill each other.
Q Did you have any occasion to see Andres Masapol thereafter?
A I was waiting for him in Balugo but he was evading me, sir.
Q Why do you know Andres Masapol in the first place?
A Because he is my barriomate, sir.

Q And if I am not mistaken that was properly worn by your wife as she
arrived?
PROS. LEAO:
Your Honor properly worn. . .
COURT:
What do you mean by that, you reform.

17

...
ATTY. TAYER:
Q Will you describe to the Honorable Court what is the appearance of your
wife when she arrived for the first time?
A She was crying, sir.
Q Besides she was crying what did you observe from her?

ATTY. TAYER:
Q Was the clothes with buttons, the upper clothes?
A Yes, sir.
Q And when she arrived that upper portion were buttoned?
A There was a tear below the right armpit, sir.
Q That was the only tear am I right?
A The button was detached, sir.

Q How many buttons were detached?

A Three (3) sir.
Q And about the short pants was it worn, tucked with her waist?
PROS. LEAO:
I think the question is vague.

was not alleged in the Information as required by Section 8, Rule 110 of

the Revised Rules of Criminal Procedure.20 Although the said rules took
effect only on December 1, 2000, long after the commission of the crime
on July 17, 1992, the same should be applied retroactively because it is
favorable to the appellant. Hence, such circumstance should not be
appreciated against the appellant.21 In the absence of any modifying
circumstance, the appellant should be sentenced to reclusion perpetua,
conformably to Article 63 of the Revised Penal Code.

COURT:
You reform.
ATTY. TAYER:
Q When your wife arrived was she wearing the short pants?
A Yes, sir.
Q And you said your wife reported that she was threatened by his
assailant, am I right?
A Yes, sir.
Q And what was the exact words that she uttered to you when she
reported that she was being threatened?

The trial court failed to award moral and exemplary damages in favor of
Beatriz. According to current jurisprudence, victims of rape are entitled
to P50,000.00 as moral damages,22 P25,000.00 as exemplary damages.23
IN THE LIGHT OF ALL THE FOREGOING, the appealed decision of the
Regional Trial Court of Naga City, Branch 28, is AFFIRMED WITH
MODIFICATION. The appellant Andres Masapol is found GUILTY of simple
rape under Article 335 of the Revised Penal Code and is hereby sentenced
to reclusion perpetua. He is also ordered to pay to the private complainant
Beatriz O. Pascuin P50,000.00, as civil indemnity; P50,000.00 as moral
damages; andP25,000.00, as exemplary damages. Costs against the
appellant. SO ORDERED.
G.R. No. 121211

April 30, 2003

A My wife told me that if she would report the incident that she was
raped, to me, she and I will be killed by the accused.

PEOPLE
OF
vs. RONETO DEGAMO alias "Roy",

Q And what was your reaction?

Before us for automatic review is a decision rendered by the Regional Trial

Court (Branch 12) of Ormoc City imposing the supreme penalty of death
on appellant Roneto Degamo alias "Roy" for the crime of rape with the use
of a deadly weapon and the aggravating circumstances of dwelling and
nighttime.

A I answered my wife that we will not file a case.

Q And when you said that what was your intention?
A I watched for him in Balugo, sir.18
The prosecutor proved that the appellant used a knife, a deadly weapon,
in forcing Beatriz to submit to his lustful desires. Under Article 335 of the
Revised Penal Code, the use of a deadly weapon such as a knife to commit
a crime is a special aggravating circumstance which requires the
imposition of reclusion perpetua to death.19However, such circumstance

THE

PHILIPPINES,

On October 4, 1994, a complaint was filed before the trial court charging
appellant with the crime of rape to which, upon arraignment, pleaded not
guilty.

On January 17, 1995, before the start of the trial proper, the court a
quo allowed the complaint to be amended to include the allegation that
by reason of the incident of rape, the victim has become insane, 1 to wit:
The undersigned Prosecutor accuses RONETO DEGAMO alias Roy of the
crime of RAPE committed as follows:
That on or about the 1st day of October 1994 at around 1:00 o'clock in the
early morning, in Brgy. Punta, Ormoc City, and within the jurisdiction of
this Honorable Court, the above-named accused RONETO DEGAMO alias
Roy, being then armed with a bladed weapon, by means of violence and
intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge of the complainant herein ELLEN VERTUDAZO, against
her will and in her own house.
All contrary to law and with the aggravating circumstances that the said
offense was committed in the dwelling of the offended party, the latter
not having given provocation for the offense; and that by reason of the
incident of rape, the victim become insane.
In violation of Article 335, Revised Penal Code.
Upon re-arraignment, appellant pleaded not guilty to the charge.2
Trial ensued.
As borne out by its evidence, the following is the version of the
prosecution:
Complainant Ellen Vertudazo and her children were living in a rented
apartment at Barangay Punta, Ormoc City. She and her family just moved
into the neighborhood on July 15, 1994.3 She was not personally
acquainted with appellant although she knew him to be one of their
neighbors. On August 2, 1994, her brother-in-law, Venancio, came from
the province for a visit and stayed in her house. It was during this time
that appellant became acquainted with Venancio. On September 30, 1994,
appellant invited Venancio for a night out. Venancio left complainant's
house immediately after supper, telling her that he would return to the
house. Later that night, or on October 1, 1994, at around 1:00 in the

morning, complainant heard someone calling her name. She unwittingly

opened the door thinking that Venancio had returned.4 Thereupon,
appellant forced his way inside the house and poked a knife at
complainant's neck. She tried to move away from appellant but he
grabbed her and told her that he would kill her if she will not accede to his
demands. Appellant then told her to put off the light, strip off her clothes
and not make any noise. Overwhelmed with fear, complainant meekly
followed the orders of appellant who proceeded to kiss her lips, breasts
and all parts of her body. He laid her on the concrete floor and succeeded
in having carnal knowledge of her. Appellant was holding the knife while
having sexual intercourse with complainant. He warned her not to tell
anyone about the incident, then he left. Complainant went upstairs and
just cried. In the morning of the same day, complainant reported the
incident to the Barangay Captain and to the police. She submitted herself
for medical examination at the health center on October 3, 1994. Upon
learning of the incident, her husband, who was working in Saudi Arabia,
immediately came home.5
Due to her traumatic experience at the hands of appellant, complainant
underwent psychiatric treatment in Tacloban City.6 She was first brought
to Dr. Gemelina Cerro-Go7 for treatment on November 8, 1994. Dr. Go
found her case of psychosis already acute and chronic. Complainant was
talking to herself and each time Dr. Go would ask her a question, she
repeatedly said, "Gi padlock ang akong hunahuna." Dr. Go also observed
that complainant talked irrelevantly, had lost association and had severe
destructive inclinations. She did not listen to anybody and just kept staring
outside the window. Dr. Go concluded that complainant was suffering
from psychosis, a form of mental disorder, induced by an overwhelming
trauma secondary to rape. Complainant visited Dr. Go again on December
15, 1994 and on January 3, 1995. Dr. Go prescribed anti-psychotic drugs to
complainant who, after three weeks of treatment, showed signs of
improvement. Complainant could already sleep although she has not yet
regained her normal or regular sleeping pattern. Her delusions and
hallucinations were not as serious anymore, but she was still out of
contact. She could not function normally as a wife and as a mother. Since
complainant still suffered from psychosis, Dr. Go administered to her a

dose of low acting tranquilizer injections, anti-depressants and short

acting oral tablets.8

On May 22, 1995, the trial court rendered a decision, the dispositive
portion of which reads as follows:

Dr. Go clarified that psychosis is usually the technical term for

insanity.9 She declared that complainant has not fully recovered from
psychosis and that without continuous treatment, complainant would
regress and she would completely lose all aspects of functioning.10

WHEREFORE, decision is hereby rendered finding the accused RONETO

DEGAMO, a.k.a. Roy, guilty beyond reasonable doubt of rape defined and
penalized under paragraphs 2 and 3 of Article 335 of the Revised Penal
Code, as amended by Republic Act 7659. Appreciating the aggravating
circumstances of dwelling and nighttime with no mitigating circumstance
to offset any of the two and pursuant to Article 63 of the Revised Penal
Code, this court imposes upon the same Roneto Degamo, a.k.a. Roy, the
extreme penalty of DEATH. Further, the same Roneto Degamo, a.k.a. Roy,
is directed to indemnify Ellen Vertudazo the sum of THIRTY THOUSAND
PESOS (P30,000.00) and to pay the costs.

Appellant's version is based on his lone testimony. He admits that he and

complainant were neighbors but claims that they were lovers. He further
testified that he met complainant for the first time during the last week of
August 1994 at a neighborhood store. Complainant readily agreed when
he asked her if it would be possible for them to get to know each other
better. Later, at around 8:00 o'clock in the evening, he and complainant
had a conversation in front of the gate of her apartment. He learned from
her that her husband was working abroad. When he told the complainant
that he wanted to court her, complainant said, "It's up to you."
Encouraged by complainant's reply, he returned at midnight and knocked
at the gate of her apartment. Complainant peeped through the jalousies
and went down to the first floor. She opened the gate and let him in. Upon
having entered the house, he sat at the sofa, placed his hands on the
shoulder of complainant, who by then had already sat beside him, and
touched her ears. She did nothing to repel appellant's advances but just
looked up. When asked to remove her shirt, complainant willingly obliged.
He proceeded to kiss complainant all over. She removed her short pants
when appellant asked her to do so. He then removed his shirt and
continued to kiss complainant's breasts, chest and thighs. He wanted that
they move upstairs but she demurred saying that her children were
upstairs. Complainant instead suggested that they move to the cement
floor since the sofa was noisy. He got aroused after transferring to the
floor, so he removed his short pants and briefs. Complainant likewise
removed her underwear. They had sexual intercourse without him having
to use force on complainant. Thereafter, they dressed up. He left the place
at 1:00 in the morning. They repeated the same act on four more
occasions usually at 12:00 midnight. He did not have to use force, much
less threaten complainant with a knife when they had sexual intercourse
on October 1, 1994.11

As the sentence imposed is death, the jail warden of Ormoc City is

directed to immediately commit the person of Roneto Degamo, a.k.a. Roy,
to the National Bilibid Prisons at Muntinlupa, Metro Manila while awaiting
the review of this decision by the Supreme Court.
SO ORDERED.12
Hence, this automatic review.
A discussion of certain procedural rules is in order before going into the
merits of the case. It has not escaped our notice that the complaint for
rape with use of a deadly weapon was amended after arraignment of
appellant to include the allegation that the victim has become insane by
reason or on the occasion of the rape. Although the penalty for rape with
the use of a deadly weapon under the original Information is reclusion
perpetua to death, the mandatory penalty of death is imposed where the
victim has become insane by reason or on the occasion of rape as alleged
in the Amended Information.
Under Section 14, Rule 110 of the Rules of Court, an amendment after the
plea of the accused is permitted only as to matters of form, provided: (i)
leave of court is obtained; and (ii) such amendment is not prejudicial to
the rights of the accused. A substantial amendment is not permitted after
the accused had already been arraigned.

In Teehankee, Jr. vs. Madayag,13 we had occasion to state that a

substantial amendment consists of recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other
matters are merely of form. The following were held to be merely formal
amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct
from that charged in the original one; (3) additional allegations which do
not alter the prosecution's theory of the case so as to cause surprise to the
accused and affect the form of defense he has or will assume; and (4)
amendment, which does not adversely affect any substantial right of the
accused, such as his right to invoke prescription.
We further elucidated in the Teehankee case that the test as to whether
an amendment is only of form and an accused is not prejudiced by such
amendment is whether or not a defense under the information as it
originally stood would be equally available after the amendment is made,
and whether or not any evidence which the accused might have would be
equally applicable to the information in one form as in the other; if the
answer is in the affirmative, the amendment is one of form and not of
substance.14
Tested against the foregoing guidelines, the subject amendment is clearly
not one of substance as it falls under all of the formal amendments
enumerated in the Teehankee case. The insertion of the phrase that the
victim has become insane by reason or on occasion of the rape in the
Information merely raised the penalty that may be imposed in case of
conviction and does not charge another offense different from that
charged in the original Information. Whatever defense appellant may have
raised under the original information for rape committed with a deadly
weapon equally applies to rape committed with a deadly weapon where
the victim has become insane by reason or on occasion of the rape. The
amendment did not adversely affect any substantial right of appellant.
Therefore, the trial court correctly allowed the amendment.
Furthermore, it is also settled that amendment of an information to
charge a more serious offense is permissible and does not constitute

double jeopardy even where the accused was already arraigned and
pleaded not guilty to the charge, where the basis of the more serious
charge did not exist, but comes as a subsequent event.15 In this case the
basis for the amendment was the psychosis of complainant which was
determined after the filing of the information.
Unlike other qualifying circumstances, insanity of the victim by reason or
on occasion of the rape may not be readily discerned right after the
commission of the crime. The resultant insanity of the victim could be
easily mistaken as a mere initial reaction, such as shock, to the incident. In
other cases, it may take some weeks or even months for the insanity of
the victim to manifest. Consequently, a psychiatrist would need some time
with the victim before concluding that she is indeed suffering from
insanity as a result of rape. Under these circumstances, the subsequent
diagnosis of insanity by reason or on occasion of the rape is akin to a
supervening event; in which case, the corresponding amendment of the
information may be allowed, as correctly done by the trial court.
Besides, the trial proper started only after appellant had been rearraigned
and appellant never objected to the amendment at any stage of the
proceedings. It is basic that objection to the amendment of an information
or complaint must be raised at the time the amendment is made,
otherwise, silence would be deemed a consent to said amendment. It is a
time-honored doctrine that objection to the amendment must be
seasonably made, for when the trial was had upon an information
substituted for the complaint or information without any objection by the
defense, the defect is deemed waived. It cannot be raised for the first time
on appeal.16
We shall now proceed to the merits of the case.
The trial court gave credence to the testimony of victim Ellen Vertudazo
that appellant raped her with the use of a deadly weapon. It held that she
would not have agreed to endure the indignities of physical examination
of her private parts and the embarrassment of a public trial were it not for
a desire to seek justice for herself. Moreover, the trial court found that
other than the self-serving testimony of appellant, no evidence was
introduced to support his claim that he and complainant were having an

illicit love affair; and that there was no ill motive on the part of
complainant for imputing the serious charge of rape against appellant.
In his Appellant's Brief, appellant raises a single assignment of error, to
wit: "The trial court erred in finding the accused guilty beyond reasonable
doubt of the crime of rape", in support of which, he argues:
1. The fact that at first complainant said she opened the door for the
accused and later denied this, is not an inconsequential contradiction.
2. Complainant had not become insane by reason of the rape because she
gave intelligent answers on the witness stand.
We find the appeal without merit.
It is doctrinal that the evaluation of testimonial evidence by trial courts is
accorded great respect precisely because of its chance to observe firsthand the demeanor of the witnesses, a matter which is important in
determining whether what has been testified to may be taken to be the
truth or falsehood.17 Appellant failed to show any cogent reason for us to
disturb the findings of the trial court.
Complainant and her family had just moved in the neighborhood a little
more than two months before she was raped. Prior to the incident of rape,
she only knew appellant as one of her neighbors but did not personally
know him.18 Appellant would have us to believe that hours after a chance
meeting at a nearby sari-sari store, complainant, a married woman with
children, was so morally debased as to readily accede to his sexual
advances at her own apartment while her children were asleep. Like the
trial court, we find it unlikely for a married woman with children who had
just moved into the neighborhood to place herself on public trial for rape
where she would be subjected to suspicion, morbid curiosity, malicious
imputations and close scrutiny of her personal life and character, not to
speak of the humiliation and scandal she and her family would suffer, if
she were merely concocting her charge against appellant and would not
be able to prove it in court.
Appellant insists that the complaint was prompted by complainant's fear
that her husband's relatives might discover her infidelity. We are not

convinced. Aside from the bare assertion of appellant that he and

complainant were having an affair, he failed to present corroborative
evidence of any kind such as love notes, mementos or pictures19 or the
testimonies of neighbors, relatives or friends. There is no showing that the
relatives of complainant's husband even suspected that she was having an
illicit affair. Further, complainant not only filed the charges of rape
immediately after the incident, she also submitted herself for medical
examination and sought psychiatric treatment due to the trauma caused
by her ordeal. If she and appellant were indeed lovers, there would have
been no reason for her to be so traumatized by their sexual liaisons and
undergo psychiatric treatment.
Worth noting too is the fact that there is no evidence nor even an
indication that complainant was impelled by an improper motive in
making the accusation against appellant. The absence of any improper
motive of complainant to impute such a serious offense against appellant
persuades us that complainant filed the rape charge against appellant for
no other reason than to seek justice for the bestial deed committed
against her. Settled is the doctrine that when there is no evidence to show
any dubious reason or improper motive why a prosecution witness should
testify falsely against the accused or implicate him in a serious offense, the
testimony deserves full faith and credit.20
Appellant presses that the trial court should have taken note that
complainant gave contradicting testimonies as she had earlier testified
that she opened the door to appellant but later denied this on cross
examination; and that complainant must have perceived the serious
implications of her earlier testimony so she deliberately changed her
testimony.
After a review of the testimony of complainant, we find no such
contradictions. Complainant clearly testified that she opened the door
when she heard someone calling her name to open it because she thought
that her brother-in-law, Venancio, who left the house earlier at the
invitation of appellant, had already come home for the night. It was too
late when she realized that it was appellant alone who had called on her
to open the door.21

Appellant further argues that the qualifying circumstance of the use of a

deadly weapon in the commission of the crime should not be considered
since the weapon was never presented as evidence in court. We are not
persuaded.
It is settled that the non-presentation of the weapon used in the
commission of rape is not essential to the conviction of the accused.22 The
testimony of the rape victim that appellant was armed with a deadly
weapon when he committed the crime is sufficient to establish that fact
for so long as the victim is credible.23 It must be stressed that in rape, it is
usually only the victim who can attest to its occurrence and that is why
courts subject the testimony of the alleged victims to strict scrutiny before
relying on it for the conviction of the accused.24 In the present case,
complainant positively described how appellant, armed with a knife,
threatened and raped her. Appellant failed to show any compelling reason
for us to brush aside the probative weight given by the trial court to the
testimony of herein complainant. Absent any showing that certain facts of
substance and significance have been plainly overlooked or that the trial
court's findings are clearly arbitrary, the conclusions reached by the trial
court must be respected and the judgment rendered should be affirmed.25
We take note that Dr. Ernesto Calipayan conducted a physical examination
of the victim on October 3, 1994, and he issued a Medical Certificate
wherein it is stated that the "entire vulva and vestibule are normally
looking and showed no signs of traumatic injury" and that a microscopic
examination of the cervical and vaginal smear showed that it is negative
for sperm cells.26 Said findings however, do not demolish the positive
testimony of the victim that she had been raped by appellant. The absence
of traumatic injury on her vulva and vestibule is not a strong proof that
appellant did not use force on the victim who submitted to the dastardly
act of appellant because of the knife wielded by him. It is within the realm
of logic, reason and human experience that the victim, who had given
birth to two children, because of the fear for her life, may not have
exerted that degree of resistance that would have been needed to
produce traumatic injury on her private parts.

Moreover, the fact that no sperm was found in the cervical and vaginal
smear is satisfactorily explained by Dr. Calipayan that human spermatozoa
will not survive between forty-eight to seventy-two hours.27 In
complainant's case, she was examined on October 3, 1994, or more than
forty-eight hours after she was raped on October 1, 1994 between 12:00
midnight and 1:00 in the morning.
It is a settled rule that proof beyond reasonable doubt does not connote
absolute certainty, it means that degree of proof which, after an
investigation of the whole record, produces moral certainty in an
unprejudiced mind of the accused's culpability.28 It signifies such proof
that convinces and satisfies the reason and conscience of those who are to
act upon it that appellant is guilty of the crime charged.29
In the case at bar, there is no doubt that appellant had committed the
crime of rape. Appellant failed to show that the trial court committed any
reversible error in finding him guilty beyond reasonable doubt of raping
complainant with the use of a deadly weapon.
Under Article 335 of the Revised Penal Code, as amended, whenever the
crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death.
In meting out the penalty of death, the trial court considered dwelling and
nighttime as aggravating circumstances in the commission of the crime of
rape committed with a deadly weapon.
The trial court should not have considered the aggravating circumstance
of nighttime against appellant. Not only was it not alleged as an
aggravating circumstance in the Information, but also, there is no clear
proof that appellant deliberately took advantage of the cover of darkness
to facilitate the commission of the crime. Complainant herself even
testified that the flourescent light at the ground floor of the house was not
switched off until after appellant had already entered the house and told
her to turn it off.30
However, the trial court did not err in imposing the penalty of death on
appellant. It is established by the prosecution that the crime of rape with
the use of a deadly weapon was committed in the dwelling of

complainant. Dwelling is alleged in the Information and was unrefuted by

appellant. Under Article 63 of the Revised Penal Code, in cases where the
law provides a penalty composed of two indivisible penalties, the presence
of an aggravating circumstance warrants the imposition of the greater
penalty which is death.
We now turn to the issue as to whether or not the qualifying circumstance
of insanity of the victim by reason or on occasion of the rape, committed
against complainant should likewise be considered in the imposition of the
proper penalty.
Republic Act No. 765931 expressly provides that when by reason or on the
occasion of the rape, the victim has become insane, the penalty shall be
death.
The trial court observes:
There is no jurisprudence yet, however, which construed the provision
"has become insane." Though there is no doubt that the death penalty
shall be imposed if the victim becomes permanently insane, there is no
ruling yet whether temporary insanity by reason of rape (when the victim
responded to psychiatric treatment as in the present case) still falls within
the purview of the same provision.32
For the guidance of the Bench and the Bar, we deem it proper to resolve
what should be the correct construction of the provision "has become
insane" by reason or on occasion of the rape committed.
It is a hornbook doctrine in statutory construction that it is the duty of the
court in construing a law to determine legislative intention from its
language.33 The history of events that transpired during the process of
enacting a law, from its introduction in the legislature to its final validation
has generally been the first extrinsic aid to which courts turn to construe
an ambiguous act.34
Republic Act No. 263235 is the first law that introduced the qualifying
circumstance of insanity by reason or on occasion of rape, amending
Article 335 of the Revised Penal Code. An examination of the deliberation
of the lawmakers in enacting R.A. No. 2632, convinces us that the degree

of insanity, whether permanent or temporary, is not relevant in

considering the same as a qualifying circumstance for as long as the victim
has become insane by reason or on occasion of the rape.
Congressional records36 disclose that when Senator Pedro Sabido first
broached the possibility of regarding insanity as a qualifying circumstance
in rape, he described it as "perpetual incapacity or insanity". The
interpellations on Senate Bill No. 21 which later evolved into R.A. No. 2632
did not include the rationale for the inclusion of the victim's insanity by
reason or occasion of rape as a qualifying circumstance. Neither did the
legislators discuss the degree of insanity of the victim by reason or on
occasion of rape for it to be considered as a qualifying circumstance. After
the interpellations on the other proposed amendments to Senate Bill No.
21, the Senate session was suspended. Upon resumption of the session,
the legislators agreed, among other matters, that the provision, "when by
reason or on occasion of rape, the victim has become insane, the penalty
of reclusion perpetua shall be likewise reclusion perpetua", be
incorporated in the law.37 Thus, Article 335, as amended by R.A. No. 2632,
read as follows:
Art. 335. When and how rape is committed. Penalties. 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, even though neither of
the circumstances mentioned in the two next preceding paragraphs shall
be present.
The crime of rape shall be punished by reclusion temporal.
Whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be imposed in its
maximum period.

When by reason or on the occasion of rape, a homicide is committed the

penalty shall be reclusion perpetua to death.
When the rape is frustrated or attempted and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua.
When by reason or on the occasion of the rape the victim has become
insane, the penalty shall be likewise reclusion perpetua. [Emphasis
supplied]
Significantly, the words "perpetual" and "incapacity" were not retained by
the legislators. They merely used the word "insanity". It is well-established
in legal hermeneutics that in interpreting a statute, care should be taken
that every part or word thereof be given effect since the lawmaking body
is presumed to know the meaning of the words employed in the statute
and to have used them advisedly.38 Applied inversely, the courts should
not interject a condition, make a distinction, or impose any limitation
where the legislators did not opt to do so.
Thus, it is without any doubt that when the legislators included the
victim's resultant insanity as a qualifying circumstance in rape cases, it did
not intend or impose as a condition that the insanity must be of
permanent nature, or that it should have been manifested by the victim
before the filing of the complaint of information, before, during or after
trial. Otherwise, it would have been so expressly stated, especially so, that
Senator Sabido had initially suggested "perpetual incapacity or insanity."
As the Congressional records reveal, the legislators chose not to include
the word "perpetual" in the bill enacted into law.
Article 335 of the Revised Penal Code, as amended by R.A. No. 2632, was
further amended by Republic Act No. 4111 whereby the penalty is
increased to death "when by reason or on the occasion of rape, the victim
has become insane".
R.A. No. 7659 which took effect on December 31, 1993, merely reiterated
the imposition of death penalty "when by reason or on the occasion of the
rape, the victim has become insane."

In the enactment of both R.A. Nos. 4111 and 7659, the legislators merely
reiterated or reproduced the provision on insanity under R.A. No. 2632
except as to the imposable penalty, without making any distinction as to
the degree of insanity that may or may not be considered as a qualifying
circumstance.
Consequently, the fact that the victim during trial or while the case is
pending, has returned to normal behavior after undergoing treatment,
does not exculpate the appellant from the penalty of death.
It is inherently difficult for us to set the parameters or fix a hard and fast
rule as to when insanity may be considered a qualifying circumstance.
Whether the rape resulted in the insanity of the victim shall have to be
resolved by the courts on a case to case basis. Suffice it to be stated that
the resultant insanity of the victim in rape cases must at least be manifest
at the time of filing the complaint or information or at any time thereafter
before judgment is rendered, in which case, the information may
accordingly be amended.39 The reason for this is simple. Rape is always a
traumatic experience for the victim who necessarily suffers untold
psychological and emotional damage. Like victims of other crimes, rape
victims have different ways of coping with the trauma brought about by
the crime. While one may exhibit shock or depression immediately after
the crime and recover thereafter, another might require a longer period to
exhibit these same symptoms and not return to normalcy. Certainly, one
can never calculate or measure the depths of the psychological and
emotional damage that rape inflicts on the victim.
In the case at bar, Dr. Go had competently and convincingly testified that
victim Ellen Vertudazo suffered psychosis or insanity from which she
seems to have improved due to her treatment which treatment should be
continuous and may last from six months to five years so that the victim
may not suffer from regression; and that as of February 16, 1995, the date
Dr. Go testified, complainant has not fully recovered from her
psychosis.40 The qualifying circumstance of insanity had already attached
notwithstanding the recovery of the victim from her illness. The penalty of
death is imposable.

As to the damages awarded, the trial court erred in awarding the mere
sum of P30,000.00 to complainant as civil indemnity. Complainant is
entitled to P75,000.00 as civil indemnity in accordance with our
established rulings in cases where the crime of rape is committed,
qualified by any of the circumstances under which the death penalty is
authorized by law.41 In the present case, the victim became insane by
reason of the rape committed against her; and in the commission of rape
with the use of a deadly weapon, the aggravating circumstance of dwelling
is present. Actually, the trial court had two grounds for the imposition of
death penalty.
Complainant is likewise entitled to moral damages without need of further
proof in the sum of P50,000.00.42 The fact that complainant has suffered
the trauma of mental, physical and psychological sufferings which
constitute the basis for moral damages is too obvious to still require the
recital thereof at the trial by the victim since the court itself even assumes
and acknowledges such agony on her part as a gauge of her credibility.43
In addition, complainant is entitled to the amount of P25,000.00 as and for
exemplary damages44 considering the aggravating circumstance of
dwelling; and to the amount of P25,000.00 by way of temperate
damages45 in lieu of actual damages, considering that complainant had to
undergo psychiatric treatment but was not able to present proof of the
expenses she incurred in her treatment.
Three members of the Court maintain their position that R.A. No. 7659,
insofar as it prescribes the death penalty, is unconstitutional; however,
they submit to the ruling of the Court, by majority vote, that the law is
constitutional and that the death penalty should be imposed accordingly.
WHEREFORE, the judgment of the lower court convicting appellant Roneto
Degamo alias "Roy" of qualified rape and sentencing him to suffer the
penalty of DEATH is AFFIRMED with the MODIFICATION that appellant is
ordered to pay complainant Ellen Vertudazo the amounts of Seventy-Five
Thousand Pesos (P75,000.00), as civil indemnity; Fifty Thousand Pesos
(P50,000.00), as moral damages; Twenty-Five Thousand Pesos
(P25,000.00) as exemplary damages; and Twenty-Five Thousand Pesos
(P25,000.00) as temperate damages. Costs against appellant.

Upon the finality of this decision and pursuant to Section 25 of R.A. No.
7659, amending Article 83 of the Revised Penal Code, let the records of
this case be forthwith forwarded to the Office of the President of the
Philippines for possible exercise of the pardoning power. SO ORDERED.
G.R. No. 134744

January 16, 2001

GIAN PAULO VILLAFLOR, vs. DINDO VIVAR y GOZON,

The absence of a preliminary investigation does not impair the validity of
an information or render it defective. Neither does it affect the jurisdiction
of the court or constitute a ground for quashing the information. Instead
of dismissing the information, the court should hold the proceeding in
abeyance and order the public prosecutor to conduct a preliminary
investigation.1wphi1.nt
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to set aside the Orders issued by the Regional Trial Court (RTC) of
Muntinlupa City (Branch 276) in Civil Case No. 97-134.1 Dated January 20,
1998,2 the first Order granted the Motion to Quash the Informations and
ordered the Dismissal of the two criminal cases. The second Order dated
July 6, 1998, denied the Motion for Reconsideration.
The Facts
Culled from the records and the pleadings of the parties are the following
undisputed facts.
An Information3 for slight physical injuries, docketed as Criminal Case No.
23365, was filed against Respondent Dindo Vivar on February 7, 1997. The
case from the alleged mauling of Petitioner Gian Paulo Villaflor by
respondent around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday
Bar at the Ayala Alabang Town Center, Muntinlupa City. After the severe
beating he took from respondent, petition again met respondent who told
him, "Sa susunod gagamitin ko na itong baril ko"4 ("Next time, I will use my
gun on you").

When the injuries sustained by petitioner turned out to be more serious

than they had appeared at first, an Information5 for more serious physical
injuries, docketed as Criminal Case No. 23787, was filed against
respondent.6 The earlier charge of slight physical injuries was withdrawn.
At the same time, another Information7 for grave threats, docketed as
Criminal Case No. 237288, was filed against respondent on March 17,
1997.
On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal
Case No. 23787 (for serious physical injuries)9. Instead of filing a counteraffidavit as required by the trial court, he filed on April 21, 1997, a Motion
to Quash the Information in Criminal Case No. 23787 (for grave threats).
He contended that the latter should have absorbed the threat, having
been made in connection with the charge of serious physical injuries.
Thus, he concluded, Criminal Case No. 23728 should be dismissed, as the
trial court did not acquire jurisdiction over it.10
In an Order dated April 28, 1997 in Criminal Case No. 23728, the
Metropolitan Trial Court (MTC) denied the Motion to Quash, as follows:
"For consideration is a motion to quash filed by accused counsel.
Considering that jurisdiction is conferred by law and the case filed is grave
threats which is within the jurisdiction of this Court and considering
further that a motion to quash is a prohibited [pleading] under the rule on
summary procedure, the motion to quash filed by the accused counsel is
DENIED.
WHEREFORE, the motion to quash filed by accused counsel is hereby
DENIED and let the arraignment of the accused be set on June 25, 1997 at
2:00 0'clock in the afternoon."11
The Motion for Reconsideration filed by Respondent was denied by the
MTC on June 17, 1997.12 Thus, he was duly arraigned in Criminal Case No.
23728 (for grave threats), and he pleaded not guilty.
On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of
Muntinlupa City. This was docketed as Civil Case No. 97-134. On July 20,

1998, after the parties submitted their respective Memoranda, the RTC
issued the assailed Order, which reads as follows:
"The Judicial Officer appears to have acted with grave abuse of discretion
amounting to lack of jurisdiction in declaring and denying the MOTION TO
QUASH as a prohibitive motion. The same should have been treated and
[should have] proceeded under the regular rules of procedure. The
MOTION TO QUASH THE INFORMATION filed without preliminary
investigation is therefore granted and these cases should have been
dismissed.
Let this Petition be turned to the Metropolitan Trial Court, Branch 80Muntinlupa City for appropriate action."13
The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for
Reconsideration, as follows:
"Submitted for resolution is the unopposed Motion for Reconsideration
filed by Private Respondent.
The Court agrees with the contention of private respondent that the
Motion quash filed by petitioner in the interior court is a prohibited
pleading under Rules on Summary Procedure so that its denial is tenable.
However, it would appear that the criminal charges were filed without the
preliminary investigation having been conducted by the Prosecutor's
Office. Although preliminary investigation in cases triable by interior
courts is not a matter of right, the provision of Sec. 51 par 3(a) of Republic
Act 7926 entitled "An Act Converting the Municipality of Muntinlupa Into
Highly Urbanized City To Be Known as the City of Muntinlupa" provides
that the city prosecutor shall conduct preliminary investigations of ALL
crimes, even violations of city ordinances. This Act amended the Rules on
Criminal Procedure. Since this procedure was not taken against accused,
the Order dated January 20, 1998 stands.
The Motion for Reconsideration is therefore denied."14
Hence, this Petitioner.15
The Issues

Petitioner submitted the following issues for our consideration:16

"I
Can the court motu propio order the dismissal of two (2) criminal cases for
serious physical injuries and grave threats on the ground that the public
prosecutor failed to conduct a preliminary investigation?
"II
Should the failure of the public prosecutor to conduct a preliminary
investigation be considered a ground to quash the criminal Informations
for serious physical injuries and grave threats filed against the accusedrespondent?
"III
Should respondent's entry of plea in the [grave] threats case and posting
of cash bond waiver of this right, if any, to preliminary investigation?"
The Court Ruling
The Petitioner is meritorious.
First Issue:
Lack of Preliminary Investigation
Preliminary investigation is "an inquiry or proceeding to determine
whether sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and
should be held for trial."17 A component part of due process in criminal
justice, preliminary investigation is a statutory and substantive right
accorded to the accused before trial. To deny their claim to a preliminary
investigation would be to deprive them of the full measure of their right to
due process.18
However, the absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective.19 Neither does
it affect the jurisdiction of the court or constitute a ground for quashing
the information.20 The trial court, instead of dismissing the information,

should hold in abeyance the proceedings and order the public prosecutor
to conduct a preliminary investigation.
Hence, the RTC in this case erred when it dismissed the two criminal cases
for serious physical injuries (Criminal case No. 23787) and grave threats
(Criminal Case No. 23728) on the ground that the public prosecutor had
failed to conduct a preliminary investigation.
Furthermore, we do not agree that a preliminary investigation was not
conducted. In fact, the assistant city prosecutor of Muntinlupa City made a
preliminary investigation for slight physical injuries. The said Information
was, however, amended when petitioner's injuries turned out to be more
serious and did not heal within the period specified in the Revised Penal
Code.21
We believe that a new preliminary investigation cannot be demanded by
respondent. This is because the charge made by the public prosecutor was
only a formal amendment.22
The filing of the Amended Information, without a new preliminary
investigation, did not violate the right of respondent to be protected from
a hasty, malicious and oppressive prosecution; an open and public
accusation of a crime; or from the trouble, the expenses and the anxiety of
a public trial. The Amended Information could not have come as a surprise
to him for the simple and obvious reason that it charged essentially the
same offense as that under the original Information. Moreover, if the
original charge was related to the amended one, such that an inquiry
would elicit substantially the same facts, then a new preliminary
investigation was not necessary.23
Second Issue:
Motion to Quash
As previously stated, the absence of a preliminary investigation does not
impair the validity of the information or otherwise render it defective.
Neither does it affect the jurisdiction of the court over the case
or constitute a ground for quashing the information.24

Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides

the grounds on which an accused can move to quash the complaint or
information. These are: (a) the facts charged do not constitute an offense;
(b) the court trying the case has no jurisdiction over the offense charged
(c) the court trying the case has no jurisdiction over the person of the
accused; (d) the officer who filed the information had no authority to do
so; (e) the information does not conform substantially to the prescribed
form; (f) more than one offense is charged, except in those cases in which
existing laws prescribe a single punishment for various offense; (g) the
criminal action or liability has been extinguished; (h) information contains
averments which, if true, would constitute a legal excuse or justification;
and (I) the accused has been previously convicted or is in jeopardy of being
convicted or acquitted of the offense charged.25
Nowhere in the above-mentioned section is there any mention of a lack of
a preliminary investigation as a ground for a motion to quash. Moreover,
such motion is a prohibited pleading under Section 19 of the Revised Rules
on Summary Procedure. In the present case, the RTC therefore erred in
granting herein respondent's Motion to Quash.
Furthermore, we stress that the failure of the accused to assert any
ground for a motion to quash before arraignment, either because he had
not filed the motion or had failed to allege the grounds therefor, shall be
deemed a waiver of such grounds.26 In this case, he waived his right to file
such motion when he pleaded not guilty to the charge of grave
threats.1wphi1.nt
In view of the foregoing, we find no more need to resolve the other points
raised by petitioner.
WHEREFORE, the petition is GRANTED, and the assailed Orders of the
Regional Trial Court of Muntinlupa City are REVERSED. No costs. SO
ORDERED.