SECOND DIVISION

G.R. No. 171565

July 13, 2010

Substituted by his Surviving Heirs, namely, MA.

MARGARITA A. RAMOS, ANTONIO A. RAMOS, MA. REGINA
RAMOS DE DIOS, JOSE VICENTE A. RAMOS, MA. POMONA
RAMOS KO TEH and OSCAR EMERITO A. RAMOS,
ANTONIO B. RAMOS (Deceased), Petitioners, vs.
PEOPLE OF THE PHILIPPINES and ROGERIO H. ESCOBAL,
Respondents.
DECISION
MENDOZA, J.:
This is a Petition for Review under Rule 45 of the Rules of
Court challenging: (1) the July 29, 2005 Resolution1 of the
Court of Appeals, in CA-G.R. SP No. 90344,2 dismissing
outright the petition for review (under Rule 42) filed by
petitioner Antonio B. Ramos; and (2) the February 14, 2006
Resolution3 of the same court denying his Motion for
Reconsideration.
On January 15, 1999, the petitioner filed an AffidavitComplaint,4 pertinent portions of which allege:
1. I am the lawful assignee of shares of stock covered by the
following stock certificates: (a) Travellers Life Assurance of the
Philippines, Inc. (TLAP) Stock Certificate Nos. 313 and 314,
and (b) Travellers Insurance & Surety Corporation (TRISCO)
Stock Certificate Nos. 173 and 174, by virtue of a Deed of
Assignment executed by the respondent Emerito M. Ramos, Sr.
and his wife (my mother) Susana B. Ramos in my favor in
August 1994.
xxx

xxx

xxx

2. Sometime in August 13, 1996, Gloria Ramos Lagdameo,

EVP/Treasurer of Travellers Insurance & Surety Corporation
(TRISCO), and having been entrusted by Antonio B. Ramos
with the safekeeping of the aforesaid stock certificates turned
over the same to Emerito Ramos, Sr. at his insistence, and as

such knew that they were actually indorsed in my name in

1994, as shown in her affidavit, x x x.5
3. After receiving the said stock certificates,
3.1 the respondents, Emerito M. Ramos, Sr. and Rogerio H.
Escobal, conspiring and conniving with one another altered the
four (4) aforementioned stock certificates by the erasure of the
entry "ANTONIO B. RAMOS" and the superimposition of the
type-written entry "E.M. Ramos & Sons, Inc." on the dorsal
side of each of the four questioned stock certificates, as
supported by the Questioned Documents Report No. 652-998
of the National Bureau of Investigation, and
3.2 The respondent Escobal upon the prodding of and with the
criminal assent of the respondent Ramos, and in his own
handwriting, altered the true date when Susana B. Ramos
endorsed both TRISCO and TLAP Stock Certificate Nos. 174
and 314 making it falsely appear that Susana B. Ramos
indorsed both Stock Certificates with intent to assign the same
on "January 19, 1998" when in truth Travelers Insurance &
Surety Corporation (TRISCO) Stock Certificate Nos. 173 and
174, by virtue of a Deed of Assignment, was indorsed in my
favor, as early as in August 1994.
xxx

xxx

xxx

4. The alteration made on the aforementioned genuine

documents by the respondents has changed the meaning of the
same, for their own personal use and benefit, by:
4.1. Making it falsely appear that the assignee of the
questioned stock certificates is "E.M. Ramos & Sons" instead of
"Antonio B. Ramos," as the lawful and legal assignee of the
shares of stock covered by the aforesaid stock certificates.
4.2. Making it falsely appear that Susana B. Ramos indorsed
both Stock Certificates with intent to assign the same on
January 19, 1998 when she could not have done so because
as early as September 1996, Susana B. Ramos was already
physically incapable of signing any documents as supported by
the statement of Alberto Alcancia, Ricardo Deliza and Analia
Ogario, and Maria Cecilia Santiago, and a Medical Summary

made on her medical condition by Martesio C. Perez, M.D.,

affecting therefore the veracity of the above document
purporting an assignment made by her in favor of "E.M.
RAMOS & SONS, INC." on the said date.
After the preliminary investigation, the Investigating Prosecutor
issued a Resolution, dated April 20, 1999,6 finding probable
cause and recommending that both respondents Emerito M.
Ramos, Sr. and Rogerio H. Escobal be indicted for violation of
paragraph 1 of Article 172 in relation to paragraph 6 of Article
171 of the Revised Penal Code (RPC).7 Specifically, Assistant
City Prosecutor Arthur O. Malabaguio pointed out that:
The first issue to be resolved is whether or not probable cause
exists for falsification of document.
A thorough and careful examination of the evidence presented
would show that there is probable cause for falsification of
documents.
Respondent Emerito Ramos admitted in his sworn statement
that he caused the erasure of the name of the complainant as
the assignee in the dorsal portion of the subject certificates of
stock and superimposed therein the name E.M. Ramos & Sons,
Inc. as the new assignee.
Respondents tried to justify such action by stating that
complainant failed to comply with the prestation required of
him in the Deed of Assignment executed on 17 August 1994. In
the exercise of [their] right of dominion, as Emerito Ramos Sr.
and Susana Ramos were still the registered owners of subject
shares of stocks, complainants name was erased and
substituted by another in all four stock certificates.
The defense invoked by the respondents is untenable. In the
absence of any evidence to the contrary, the deed of
assignment executed on 17 August 1994 between complainant
and spouses Ramos should be treated as valid and subsisting.
By virtue of the execution of this document, the name of
complainant as assignee appeared on subject certificates of
stock.

There is no showing that this deed of assignment was later

nullified or declared void by failure of the complainant to fulfill
his undertaking as declared in the deed of assignment. On the
other hand, respondent Emerito Ramos Sr. by his own
unilateral action, rescinded the contract and subsequently
decided to assign subject shares of stocks to EMRASON.
Complainant questioned this action of Emerito Ramos Sr. and
even filed with Securities and Exchange Commission an action
for nullity of assignment of shares and other reliefs (SEC Case
No. 03-98-5955).
In the absence of proof that there was [a] valid rescission of the
first Deed of Assignment, [the] validity of the execution of the
Second Deed of Assignment is now placed in question.
Respondent Emerito Ramos Sr. could not now invoke defense
that substitution of Antonio Ramos to E.M. Ramos and Sons,
Inc. was made to speak the truth.
In any case, it was established that respondents made the
alterations as borne out by their sworn statements making
them liable for falsification of documents.
Anent the date "January 19, 1998" in the subject stock
certificates, there appears to be a conflict in relation to the
allegations of the opposing parties. Complainant claims that
respondents erased the original date and superimposed the
same with the date January 19, 1998 making them liable
under paragraph (5) (altering true dates) of Article 171 in
relation to Article 172 of the Revised Penal Code. Respondents
maintain that prior to the filling up of the date, there was
already a blank space and respondent Rogerio Escobal was
required to fill it up with the date January 19, 1998 to conform
with the date the second deed of assignment was made.
Complainant failed to have this part of the document examined
by the NBI unlike in the case of the name of the assignee
wherein the NBI made its findings. In the absence of this, it is
safe to assume, as admitted by the respondents themselves,
that the date January 19, 1998 was placed by Rogerio Escobal
in a blank space appearing on said documents. Therefore,
violation of paragraph 6 and not paragraph 5 of Article 171 in

relation to Article 172 of the Revised Penal Code was

committed.
The second issue to be resolved is whether or not respondents
conspired to commit the offense of falsification of document.
It should be noted that respondent Rogerio Escobal occupies
[a] high position in EMRASON (Senior Vice-President thereof).
As such, he could have known of the details of the special
meeting of the Board of Directors of EMRASON held on
January 14, 1998 concerning the assignment of shares of
stock of spouses Emerito Ramos and Susana Ramos the very
same shares of stock subject matter of this complaint. He
could have known that the Board of Directors of EMRASON
accepted the offer of payment by spouses Ramos by way of
assignment of subject shares of stock to EMRASON.
At the time respondent Rogerio Escobal assigned the different
certificates of stock on April 19, 1998[,] it should be assumed
that [, as witness] he read the contents of the documents
before affixing his signature. Perusal of the documents would
remind him of the subject of [the] special meeting held on
January 14, 1998.
Moreover, it was shown by the complainant that it was not true
that it was only [on] 19 January 1998 that respondent Rogerio
Escobal saw [the] subject certificates[,] as he was present along
with Col. Nicolas, Mr. & Mrs. Lagdameo and Mr. Romeo Isidro
when the deed of assignment, together with the indorsement of
subject stocks certificates[,] were executed in complainants
favor in August 1994.
In fine, complainant was able to establish by sufficient
evidence that respondents conspired with one another in
erasing his name as assignee in subject stock certificates and
substituted it with E.M. RAMOS & SONS, INC.[,] and placing
the date January 19, 1998 as the date of execution of the first
deed of assignment[,] in violation of paragraph 1 of Article 172
in relation to paragraph 6 of Article 172 of the Revised Penal
Code.

WHEREFORE, premises considered, it is respectfully

recommended that both respondents be indicted for violation of
above-mentioned provisions of law.
Corollarily, four (4) separate Informations,8 charging private
respondents Emerito Ramos, Sr. and Rogerio H. Escobal with
the crime of Falsification of Commercial Document under
paragraph 1 of Article 172 in relation to paragraph 6 of Article
171 of the RPC, were filed. Those were docketed as Criminal
Case Nos. 94961-94964, and raffled to the Metropolitan Trial
Court (MeTC) of Quezon City, Branch 43.
When these cases were called for arraignment and pre-trial,
counsel for the accused manifested that an Omnibus Motion to
Dismiss the cases against Ramos, Sr. had been filed on the
ground that he already passed away. Counsel also moved for
the deferment of the arraignment of the other accused, Rogerio
Escobal (Escobal), considering that there was, before the Office
of the Assistant City Prosecutor, a pending Motion for
Reconsideration9 of the Resolution (dated April 20, 1999)
recommending the filing of these cases. The MeTC denied the
latter motion and ordered the entry of a plea of NOT guilty
because private respondent refused to enter a plea.10
The Motion for Reconsideration presented two (2) issues, to wit:
(1) whether or not probable cause exists for falsification of
document; and (2) whether or not respondents conspired to
commit the offense of falsification of document.11
Anent the first issue, private respondent Escobal argued that
Article 119112 of the Civil Code finds application. He explained
that on the basis of the said provision, private respondent
Ramos, Sr. cannot be held criminally liable for the
consequences of the performance of a lawful act, i.e., the
rescission of the Deed of Assignment executed earlier in favor
of complainant (petitioner Ramos), who failed to comply with
the prestations required of him under the Deed, which
rescission necessarily resulted in the cancellation or erasure of
the name of complainant as assignee in the subject stock
certificates.

As regards the second issue, private respondent Escobal

averred that conspiracy was NOT proved as the crime itself
through clear and convincing evidence.

On January 7, 2000, Assistant City Prosecutor Antonio R. Lim,

Jr. filed with the MeTC of Quezon City, Branch 43 a Motion
with Leave of Court to Withdraw Information.14

On November 23, 1999, the Office of the City Prosecutor issued

a Resolution13 granting the Motion for Reconsideration and
recommending that the Informations against both accused be
withdrawn. The Office of the City Prosecutor made the
following explanations:

Petitioner appealed before the Department of Justice (DOJ) and

on February 15, 2002, the DOJ sustained the November 23,
1999 Resolution of the Office of the City Prosecutor of Quezon
City.15 Petitioners Motion for Reconsideration was likewise
denied.16

(1) The Deed of Assignment executed on August 17, 1994

clearly indicated the obligation of complainant (petitioner
Ramos) to transfer his one-tenth (1/10) share in the real
properties located in North Susana and North Olympus
subdivisions and one-tenth (1/10) portion in the undivided
one-hectare, all in Quezon City. Apparently, the stock
certificates were purposely placed in the custody of TRISCO
Executive Vice President Gloria R. Lagdameo. No evidence
showing that the assignment has been recorded in the
companys stock and transfer book. Respondent E. Ramos,
therefore, has the authority to rescind the contract unilaterally
in the exercise of a right granted under Article 1191 of the New
Civil Code.

On March 14, 2003, the MeTC of Quezon City, Branch 43

dismissed Criminal Case Nos. 94961-64. The trial court was
convinced with the finding of the City Prosecutor, which was
sustained by the DOJ, that probable cause for the falsification
of commercial documents against the remaining accused,
Escobal, did not exist.17

(2) Respondent E. Ramos, having acted in good faith, never

denied authorship of the cancellation or erasure. He even
placed his signatures to indicate that he was the one who
caused the erasures. Hence, in so doing he acted without
malice. Generally, the word alteration has inherent in it the
idea of deception of making the instrument speak something
which the parties did not intend to speak. To be an alteration
in violation of the law, it must be one "which causes the
instrument to speak a language different in legal effect from
that which it originally spoke." In this case, complainant
ceased to be the assignee of the certificates of stock, the
corrections made by respondent speaks only of the truth.
(3) As it appears that the liability of respondent Rogerio
Escobal only depends on the criminal liability of Ernesto
Ramos, there is no reason for further prosecution.

The MeTC enumerated the elements of falsification of

commercial documents under paragraph 6 of Article 171 of the
RPC. Thus:
1. That there be an alteration (change) or intercalation
(insertion) on a document;
2. That it was made on a genuine document;
3. That the alteration or intercalation has changed the
meaning of the document; and
4. That the change made the document speak something false.
The MeTC ruled that the referred alterations committed by
accused E. Ramos in changing the name of the indorsee of the
stock certificates from that of the complainant Antonio Ramos
to E.M. RAMOS & SONS, INC., could not be considered as the
falsification contemplated by the law as the change did not
make the document speak something false. The commercial
documents subject of these cases were admittedly altered by
the accused Ramos, Sr., purposely to correct the inequity
brought about by the failure of petitioner Ramos to comply
with what was incumbent upon him under their agreement.
The private prosecutors filed a Motion for Reconsideration.18

Private respondent Escobal filed his Comment/Opposition.19

Private prosecutors, thereafter, filed their Reply.20
On August 15, 2003, the MeTC finally resolved to DENY the
Motion for Reconsideration of the private prosecutors.21
On November 3, 2003, petitioner Ramos (complainant in the
criminal cases) filed a Petition for Certiorari, Prohibition and
Mandamus with the Regional Trial Court of Quezon City (RTC).
The same was docketed as Civil Case No. Q03-51042.22
Petitioner presented the following grounds:
(a)
THE RESPONDENT JUDGE GRAVELY ABUSED HER
DISCRETION WHEN SHE ORDERED THE DISMISSAL OF THE
INSTANT CASE FOR LACK OF PROBABLE CAUSE DESPITE
HER PREVIOUS DETERMINATION OF THE EXISTENCE
THEREOF WHEN SHE ISSUED A WARRANT OF ARREST.
(b)
THE RESPONDENT JUDGE GRAVELY ABUSED HER
DISCRETION BY ALLOWING THE UNDUE INTERFERENCE OF
THE DEPARTMENT OF JUSTICE WITH THE INSTANT CASE
AFTER HAVING ALREADY MADE A PERSONAL EXAMINATION
OF PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT
OF ARREST
(c)
THE RESPONDENT JUDGES BASELESS DISMISSAL OF THE
INSTANT CASE GROSSLY VIOLATED THE PROSECUTIONS
RIGHT TO DUE PROCESS, IN GRAVE ABUSE OF
DISCRETION."23
On January 3, 2005, the RTC of Quezon City, Branch 215
dismissed the petition for lack of merit.24 The RTC explained
that once an Information or complaint was filed in court, the
matter of the disposition of the case would be left to the sound
discretion of the court. When the trial court in this case
reconsidered or reversed its previous finding of probable cause
and granted the motion to dismiss of the public prosecutor, it

was acting within its prerogative since the matter rested upon
its sound discretion. The ruling made by the MeTC in
dismissing the cases before it, was not simply derived from its
own whims and caprices but after a judicious reassessment of
the records of the case. The RTC also cited the case of Crespo
v. Mogul25 where it was held 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."
On June 8, 2005, the RTC denied the Motion for
Reconsideration of the petitioner.26
Petitioner then sought relief from the Court of Appeals via a
Petition for Review under Rule 42 of the Rules of Court.
Petitioner assailed the January 3, 2005 Decision and the June
8, 2005 Resolution of the RTC.
In its challenged July 29, 2005 Resolution,27 the Court of
Appeals dismissed outright the petition filed by petitioner.
Specifically, the Court of Appeals pointed out that:
"x x x a petition for review under Rule 42 of the Revised Rules
on Civil Procedure may be availed of only if the assailed
decision of the Regional Trial Court was rendered in the
exercise of the latters appellate jurisdiction, such as when a
plaintiff files an action for ejectment or sum of money, etc.
before the Municipal or Metropolitan Trial Court against a
defendant and said court renders judgment thereon. If the
losing party appeals the decision of the Municipal or
Metropolitan Trial Court to the Regional Trial Court and the
latter exercising its appellate court, affirms or reverses the
decision, then a petition for review filed by the losing party
before this Court under Rule 42 of the revised Rules on Civil
Procedure is in order.
However, in the case at bench, it clearly appears that the
Regional Trial Court of Quezon City that renders the assailed
Decision of January 3, 2005 and Order of June 8, 2005
rendered the same pursuant to its original jurisdiction to
assume to hear and resolve petitions for certiorari under Rule
65 of the Revised Rules on Civil Procedure. Because the

Regional Trial Court of Quezon City herein had assumed

jurisdiction and decided the petition for certiorari filed by
herein petitioner pursuant to its original jurisdiction as
provided by law, the proper mode for petitioner to assail the
subject Decision and Order of the Regional Trial Court of
Quezon City is by ordinary appeal under Rule 41 of the revised
Rules on Civil Procedure by filing a notice of appeal with the
Regional Trial Court of Quezon City within the reglementary
period as provided under Sec. 3 of Rule 41 of the revised rules
on Civil Procedure and when the appeal is perfected, the Court
a quo will elevate the entire record of this case to this Court,
and thereafter, instead of briefs, the parties will be required to
file their respective memorandum pursuant to Section 10 Rule
44 of the revised Rules on Procedure."
In the other challenged Resolution dated February 14, 2006,28
the Court of Appeals denied the Motion for Reconsideration of
petitioner.
Hence, this petition under Rule 45 challenging the above
Resolutions of the Court of Appeals anchored on the following
grounds:29
(A)
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE
PETITION FOR REVIEW FILED UNDER RULE 42 OF THE 1997
REVISED RULES OF CIVIL PROCEDURE DESPITE THE FACT
THAT THE SAME IS A PROPER MODE TO QUESTION THE
REGIONAL TRIAL COURTS ORDERS.
(B)
THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING
THE PETITION FOR REVIEW FILED UNDER RULE 42 OF THE
1997 RULES OF CIVIL PROCEDURE AS IT DENIED THE
PETITIONER OF THE FULL OPPORTUNITY TO ESTABLISH
THE MERITS OF HIS CAUSE, RELYING SOLELY ON
TECHNICALITY AT THE EXPENSE [OF] THE PETITIONERS
SUBSTANTIVE RIGHTS.
(C)

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO

RESOLVE THE PETITION FOR REVIEW ON THE MERITS
DESPITE THE CLEAR REVERSIBLE ERROR COMMITTED BY
THE REGIONAL TRIAL COURT WHEN IT AFFIRMED THE
METROPOLITAN TRIAL COURTS ORDERS DISMISSING
CRIMINAL CASE NOS. 94961 TO 94964 WITHOUT TRIAL ON
THE MERITS, THEREBY SANCTIONING A DENIAL OF DUE
PROCESS OF LAW.
(D)
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO
RESOLVE THE PETITION FOR REVIEW ON THE MERITS
NOTWITHSTANDING THE PATENT ERROR COMMITTED BY
THE REGIONAL TRIAL COURT WHEN IT AFFIRMED THE
METROPOLITAN TRIAL COURTS ORDERS DISMISSING
CRIMINAL CASE NOS. 94961 TO 94964 ON THE SOLE BASIS
OF THE RESOLUTION OF THE DEPARTMENT OF JUSTICE,
THEREBY SANCTIONING AN ABDICATION OF JUDICIAL
DUTY AND JURISDICTION.
(E)
THE COURT OF APPEALS GRAVELY ERRED IN DENYING DUE
COURSE TO THE PETITION FOR REVIEW DESPITE THE
PALPABLE ERROR COMMITTED BY THE REGIONAL TRIAL
COURT IN UPHOLDING THE METROPOLITAN TRIAL COURTS
ORDERS DISMISSING CRIMINAL CASE NOS. 94961 TO 94964
FOR LACK OF PROBABLE CAUSE DESPITE OVERWHELMING
EVIDENCE SHOWING ITS EXISTENCE.30
The grounds raised by the petitioner boil down to one basic
issue whether or not the Court of Appeals erred in
dismissing the petition under Rule 42 filed by herein petitioner
before it.
We resolve the issue in the negative.
The Court of Appeals was correct in dismissing the petition
outright. Under the Rules, appeals to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review under Rule

42.31 What was filed by the petitioner before the RTC was a
petition for certiorari under Rule 65.
It has long been settled that certiorari, as a special civil action,
is an original action invoking the original jurisdiction of a court
to annul or modify the proceedings of a tribunal, board or
officer exercising judicial or quasi-judicial functions. It is an
original and independent action that is not part of the trial
or the proceedings of the complaint filed before the trial
court.32 The petition for certiorari, therefore, before the RTC is a
separate and distinct action from the criminal cases resolved
by the MeTC.
It is true that litigation is not a game of technicalities and that
the rules of procedure should not be strictly followed in the
interest of substantial justice. However, it does not mean that
the Rules of Court may be ignored at will. It bears emphasizing
that procedural rules should not be belittled or dismissed
simply because their non-observance may have resulted in
prejudice to a partys substantial rights. Like all rules, they are
required to be followed except only for the most persuasive of
reasons.33 In this case, there was nary a cogent reason to
depart from the general rule.
http://sc.judiciary.gov.ph/jurisprudence/2001/jun2001/1382
70.htm - _edn13
Indeed, the ground alone that petitioner resorted to an
improper remedy, makes the petition dismissible and
undeserving of the Courts attention.
Even if the Court glosses over such infirmity, the petition
should nonetheless be dismissed for lack of substantive merit.
Once a criminal action has been instituted by the filing of the
Information with the court, the latter acquires jurisdiction and
has the authority to determine whether to dismiss the case or
convict or acquit the accused. Where the prosecution is
convinced that the evidence is insufficient to establish the guilt
of an accused, it cannot be faulted for moving for the
withdrawal of the Information. However, in granting or denying
the motion to withdraw, the court must judiciously evaluate
the evidence in the hands of the prosecution. The court must

itself be convinced that there is indeed no satisfactory evidence

against the accused and this conclusion can only be reached
after an assessment of the evidence in the possession of the
prosecution.34 In this case, the trial court had sufficiently
explained the reasons for granting the motion for the
withdrawal of the Information. The Court agrees with the
dispositions made by the trial court. Corollarily, the RTC did
not err in dismissing the petition (under Rule 65) filed by
petitioner challenging the ruling of the MeTC.
It bears emphasizing that when the trial court grants a motion
of the public prosecutor to withdraw the Information in
compliance with the directive of the Secretary of Justice, or to
deny the said motion, it does so not out of compliance to or
defiance of the directive of the Secretary of Justice, but in
sound and faithful exercise of its judicial prerogative. The trial
court is the best and sole judge on what to do with the case
before it. The rule applies to a motion to withdraw the
Information or to dismiss the case even before or after the
arraignment of the accused.35 The prior determination of
probable cause by the trial court does not in any way bar a
contrary finding upon reassessment of the evidence presented
before it.
WHEREFORE, the petition is DENIED. The Resolutions dated
July 29, 2005 and February 14, 2006 of the Court of Appeals
are AFFIRMED.
SO ORDERED.

SECOND DIVISION
G.R. No. 180109

July 26, 2010

PEOPLE OF THE PHILIPPINES, Petitioner, vs.

JOSEPH "JOJO" V. GREY, FRANCIS B. GREY, and COURT
OF APPEALS-CEBU CITY, EIGHTEENTH DIVISION,
Respondents.
DECISION
NACHURA, J.:
Before this Court is a Petition for Review under Rule 45 of the
Rules of Court filed by the People of the Philippines, through
the Office of the Solicitor General (OSG), seeking the
nullification of the Court of Appeals (CA) (Cebu City-Eighteenth
Division) Resolution1 dated March 13, 2007, Decision2 dated
May 8, 2007, and Resolution3 dated October 8, 2007, in CAG.R. SP No. 02558, entitled "Mayor Joseph Jojo V. Grey and
Francis B. Grey v. Hon. Roberto A. Navidad, Presiding Judge of
the Regional Trial Court of Calbayog City, Branch 32, and the
People of the Philippines."
On December 11, 2006, an Information for Murder was filed
against respondent Joseph Grey, former Mayor of San Jorge,
Samar; his son, respondent Francis Grey; and two others for
the death of Rolando Diocton, an employee of the San Jorge
municipal government, before the Regional Trial Court (RTC),
Branch 41, Gandara, Samar. The Information was
accompanied by other supporting documents and a motion for
the issuance of a warrant of arrest.4
Respondents filed a petition for review with the Secretary of
Justice. Meanwhile, RTC Branch 41 Presiding Judge Rosario
Bandal denied the motion for the issuance of a warrant of
arrest. Judge Bandal found the prosecutions evidence to be
insufficient to link respondents to the crime charged. She
directed the prosecution to present, within five days, additional
evidence that would show that accused were the assailants or
that they conspired, confederated, or helped in the commission
of the crime charged.5

The prosecution then filed an Omnibus Motion for

Reconsideration and a motion for the inhibition of Judge
Bandal.6 The judge inhibited herself but denied the motion for
reconsideration.7
Thereafter, the provincial prosecutor filed a petition for change
of venue before this Court, attaching thereto a letter from the
victims wife expressing fear for her life and that of the other
witnesses.8
The Secretary of Justice, in a Resolution dated January 4,
2007, dismissed the petition for review and respondents
counter charge of perjury. He found no error to warrant the
modification or reversal of the prosecutors resolution. The
Secretary of Justice ruled that the evidence adduced against
respondents was sufficient to establish probable cause for the
offense charged. Respondents motion for reconsideration was
denied on January 30, 2007.9
Subsequently, the prosecution withdrew their motion for
change of venue before this Court, citing financial difficulties in
bringing witnesses to Manila.10 Respondents opposed the
motion and prayed that all proceedings be suspended until
after the May 14, 2007 elections.11
However, on February 19, 2007, respondents filed their own
petition for change of venue before this Court, alleging that the
presiding judge who took over the case, Judge Roberto
Navidad, was a pawn in the political persecution being staged
against them.12 In its August 22, 2007 Resolution, this Court
denied the petition for lack of merit and directed Judge
Navidad to hear the case with dispatch.13
Accordingly, Judge Navidad proceeded with the preliminary
inquiry on the existence of probable cause, and, in an Order
dated February 20, 2007, ruled that the finding of probable
cause was supported by the evidence on record. He then
issued warrants of arrest against respondents and all but one
of their co-accused.14
Respondents filed a Petition15 for Certiorari and Prohibition
before the CA, alleging that Judge Navidad gravely abused his
discretion in issuing the February 20, 2007 Order, and seeking

a temporary restraining order (TRO) and/or a writ of

preliminary injunction. They alleged that the filing of the
murder charges against them on the basis of perjured
statements coming from their political opponents supporters
"smacks of political harassment at its foulest form."16
Respondents pointed out that the criminal complaint was filed
barely two months after Joseph Grey declared his intentions to
challenge incumbent Congressman Reynaldo S. Uy, a former
ally, in the May 2007 congressional elections. Likewise,
respondents claimed that one of the witnesses, Urien
Moloboco, who executed an affidavit before the Provincial
Prosecutor, was the subject of an Alias Warrant of Arrest for
murder issued by the RTC of Gandara, Samar on June 26,
2006, and, hence, was a fugitive from the law at the time of the
filing of the criminal complaint against respondents.
Respondents maintain that the fact that Moloboco was not
arrested when he executed his affidavit before the prosecutor,
spoke of the power and clout of the witness protectors.17
The CA Eighteenth Division issued a TRO on March 13, 2007.18
After oral arguments, the CA issued a Decision19 dated May 8,
2007, making the TRO permanent, ordering that warrants of
arrest be set aside, and dismissing the criminal case without
prejudice.

principals by direct participation, but the complaint-affidavit

and supporting affidavits uniformly alleged that respondents
were not at the scene of the shooting.23 The CA further found
that the allegations in the complaint-affidavit and supporting
affidavits were insufficient to establish probable cause. It said
that there was nothing in the affidavits to show acts that would
support the prosecutions theory that respondents were also
charged as principals by conspiracy.24
Petitioners motion for reconsideration of the CAs May 8, 2007
Decision was denied in a Resolution dated October 8, 2007.25
Hence, this petition for review.
Petitioner argues that respondents committed forum shopping,
which would warrant the outright dismissal of their petition
below. Petitioner alleges that respondents petition for change
of venue before this Court and their petition for prohibition
before the CA actually involve the same subject matter, parties,
and issues that of enjoining Judge Navidad from proceeding
with the trial of the criminal case against them.26 Moreover,
these two proceedings have resulted in conflicting decisions,
with this Court resolving to proceed with the case and with the
CA enjoining the same.27

The CA held that Judge Navidad failed to abide by the

constitutional mandate for him to personally determine the
existence of probable cause.20 According to the CA, nowhere in
the assailed Order did Judge Navidad state his personal
assessment of the evidence before him and the personal
justification for his finding of probable cause. It found that the
judge extensively quoted from the Joint Resolution of the
Provincial Prosecutor and the Resolution of the Secretary of
Justice, and then adopted these to conclude that there was
sufficient evidence to support the finding of probable cause.
The CA held that the Constitution commands the judge to
personally determine the existence of probable cause before
issuing warrants of arrest.21

Petitioner also argues against the CAs ruling that Judge

Navidad failed to personally determine the existence of
probable cause. It said that although the judge adopted the
findings of the prosecutors as to the sufficiency of evidence
constituting probable cause, the language of the Order clearly
reflects that the judge himself personally examined the records
and found that there was probable cause for the issuance of
warrants of arrest.28 Moreover, the judge was correct in finding
probable cause based on the sworn statements of the
witnesses submitted to the court.29 Petitioner avers that the CA
disregarded the fact that the Information alleged conspiracy.30
In any case, petitioner asserts that a perceived defect in the
Information is not jurisdictional as the same may be amended
anytime before arraignment or with leave of court after
arraignment.31

Moreover, the CA also ruled that the Information was not

supported by the allegations in the submitted affidavits.22 It
pointed out that the Information charged respondents as

Petitioner also claims that respondents had not shown any

clear and unmistakable right to the relief they sought. It said

that there are more than enough plain, speedy, and adequate
remedies available to respondents. Their constitutional rights
are amply protected in the enforcement of the warrants of
arrest. They can likewise apply for bail or move to quash the
allegedly defective Information.32

other than by appeal or special civil action for certiorari. It may

also involve the institution of two or more actions or
proceedings grounded on the same cause on the supposition
that one or the other court would make a favorable
disposition.39

Petitioner also argues that this Court has laid down the rule
that criminal prosecution cannot be enjoined, and any
exception to this rule must be convincingly established.33 On
the other hand, the comparative injury to the People in
permanently enjoining a criminal case is beyond any of
respondents speculative claim of injury.

Forum shopping exists where the elements of litis pendentia

are present, and where a final judgment in one case will
amount to res judicata in the other. The elements of forum
shopping are: (a) identity of parties, or at least such parties as
would represent the same interest in both actions; (b) identity
of rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) identity of the two preceding
particulars such that any judgment rendered in the other
action will, regardless of which party is successful, amount to
res judicata in the action under consideration.40

Thus, petitioner is praying that the CAs May 8, 2007 Decision

and October 8, 2007 Resolution be reversed and set aside, and
the writ of injunction be dissolved.34
In their Comment, respondents assert that the trial court
issued its February 20, 2007 Order in gross violation of the
Constitution and prevailing jurisprudence on the matter.35
Respondents claim that the trial courts violation is evident in
the "indecent haste" with which it issued the Order and
Warrants of Arrest, and in its own admission in the Order
itself.36 Respondents also maintain that the trial court acted
whimsically, capriciously, and with grave abuse of discretion
when it concluded that there was probable cause to issue
warrants of arrest against respondents.37 Respondents likewise
assert that the trial court committed grave abuse of discretion
when it reversed the finding of Judge Bandal, who first heard
the case.38
The petition is impressed with merit.
Initially, we decide the issue of forum shopping raised by
petitioner.
Petitioner maintains that respondents committed forum
shopping when it filed a petition for change of venue before this
Court and a petition for prohibition before the CA.
Forum shopping is an act of a party, against whom an adverse
judgment or order has been rendered in one forum, of seeking
and possibly getting a favorable opinion in another forum,

The elements of res judicita are: (a) the former judgment must
be final; (b) the court which rendered judgment had
jurisdiction over the parties and the subject matter; (c) it must
be a judgment on the merits; and (d) there must be, between
the first and second actions, identity of parties, subject matter,
and cause of action.41
A reexamination of the two actions in this case, in light of the
foregoing jurisprudence, is in order.
In the petition for change of venue filed on February 19, 2007,
respondents prayed for the transfer of the criminal case to any
court in Metro Manila,42 alleging that the prosecution was
politically motivated and designed to hamper the plan of
respondent Joseph Grey to run for a congressional seat in the
May 2007 elections.43 They contended that "it would be
extremely pernicious to the interest of justice if trial of this
case and (of) the other two cases are held in Samar, especially
in the City of Calbayog, where the said (Congressman)
Reynaldo Uy is a resident and absolutely wields power."44 They
also asked the Court to hold the proceedings in abeyance until
after the May 14, 2007 elections.

In its August 22, 2007 Resolution, the Court denied the

petition for transfer of venue for lack of merit. It also directed
Judge Navidad to hear the case with dispatch.45
On March 5, 2007, while their petition for change of venue was
pending before this Court, respondents filed a petition for
certiorari before the CA. They prayed, first, for the issuance of
a TRO and/or a writ of preliminary injunction to prohibit
Judge Navidad from proceeding with Criminal Case No. 4916
and from causing the implementation of the warrants of arrest
against respondents; and second, for the Court to set aside
Judge Navidads February 20, 2007 Order and the
corresponding warrants he issued.46 The TRO was granted on
March 13, 2007, and the CA Decision making the same
injunction permanent and setting aside the warrants of arrest
was promulgated on May 8, 2007, a few days before the May
14, 2007 elections.
The CA correctly ruled that respondents were not guilty of
forum shopping when they filed the two actions. Respondents
raised different issues and sought different reliefs in the two
actions, although both were grounded on the same set of facts.
The issue in the petition for change of venue is whether the
trial of the case was to be moved to another court in light of
respondents allegations that the same was being used as a
tool for their political persecution. On the other hand, the issue
in the petition for certiorari before the CA was whether Judge
Navidad gravely abused his discretion in issuing the February
20, 2007 Order and the warrants for respondents arrest.
Thus, this Courts Resolution would not have amounted to res
judicata that would bar the petition for certiorari before the
CA.
We now resolve the substantive issues.
Respondents, in their petition before the CA, questioned the
alleged lack of personal determination of probable cause by
Judge Navidad in issuing the warrants for their arrest.
Judge Navidads Order reads:

In this separate, independent constitutionally-mandated

Inquiry conducted for the purpose of determining the
sufficiency of the evidence constituting probable cause to
justify the issuance of a Warrant of Arrest, the Court perforce,
made a very careful and meticulous and (sic) review not only of
the records but also the evidence adduced by the prosecution,
particularly the sworn statements/affidavits of Mario Abella,
Uriendo Moloboco and Edgar Pellina.47
The language of the Order clearly shows that the judge made
his own personal determination of the existence of probable
cause by examining not only the prosecutors report but also
his supporting evidence, consisting mainly of the sworn
statements of the prosecutions witnesses.
It is well to remember that there is a distinction between the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest and the preliminary
investigation proper which ascertains whether the offender
should be held for trial or be released. The determination of
probable cause for purposes of issuing 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 is the function of the
investigating prosecutor.48
The duty of the judge to determine probable cause to issue a
warrant of arrest is mandated by Article III, Section 2 of the
Philippine Constitution:
Section 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
In Soliven v. Makasiar,49 the Court explained that this
constitutional provision does not mandatorily require the judge

to personally examine the complainant and her witnesses.

Instead, he may opt to personally evaluate the report and
supporting documents submitted by the prosecutor or he may
disregard the prosecutors report and require the submission of
supporting affidavits of witnesses. Thus, in Soliven, we said:

of the investigating prosecutor, provided that he likewise

evaluates the documentary evidence in support thereof.

What the Constitution underscores is the exclusive and

personal responsibility of the issuing judge to satisfy himself of
the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and
the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscals report and
require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of
probable cause.

A perusal of the assailed Order bears out this fact.

Sound policy dictates this procedure, otherwise judges would

by unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.50
What the law requires as personal determination on the part of
a judge is that he should not rely solely on the report of the
investigating prosecutor.51 This means that the judge should
consider not only the report of the investigating prosecutor but
also the affidavit and the documentary evidence of the parties,
the counter-affidavit of the accused and his witnesses, as well
as the transcript of stenographic notes taken during the
preliminary investigation, if any, submitted to the court by the
investigating prosecutor upon the filing of the Information.52
The Court has also ruled that the personal examination of the
complainant and his witnesses is not mandatory and
indispensable in the determination of probable cause for the
issuance of a warrant of arrest. The necessity arises only when
there is an utter failure of the evidence to show the existence of
probable cause.53 Otherwise, the judge may rely on the report

Contrary to respondents claim, Judge Navidad did not gravely

abuse his discretion in issuing the same.

It was only through a review of the proceedings before the

prosecutor that could have led Judge Navidad to determine
that "the accused were given the widest latitude and ample
opportunity to challenge the charge of Murder which resulted,
among others, (in) a filing of a counter-charge of Perjury."54
Likewise, his personal determination revealed no improper
motive on the part of the prosecution and no circumstance
which would overwhelm the presumption of regularity in the
performance of official functions.55 Thus, he concluded that the
previous Order, denying the motion for the issuance of
warrants of arrest, was not correct.56
These statements sufficiently establish the fact that Judge
Navidad complied with the constitutional mandate for personal
determination of probable cause before issuing the warrants of
arrest.
The CA likewise overlooked a fundamental rule we follow in
this jurisdiction. It is an established doctrine that injunction
will not lie to enjoin a criminal prosecution because public
interest requires that criminal acts be immediately investigated
and prosecuted for the protection of society.57
However, it is also true that various decisions of this Court
have laid down exceptions to this rule, among which are:
a. To afford adequate protection to the constitutional rights of
the accused (Hernandez v. 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.
v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra;
Fortun v. 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 v. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of
authority (Planas v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or
regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v.
Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v.
People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez
v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where there is a case of persecution rather than prosecution
(Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the
lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in
Raoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); x x x
j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied
(Salonga v. Pao, et al., L-59524, February 18, 1985, 134
SCRA 438)[; and]
[k.] Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of petitioners
(Rodriguez v. Castelo, L-6374, August 1, 1953).58
Respondents insisted that political persecution by their
political rivals was the underlying reason for the filing of
criminal charges against them, and used this as basis for
asking the appellate court to stop the proceedings in the trial
court.
Indeed, this Court has recognized that, in certain instances,
political persecution or political motives may have impelled the
filing of criminal charges against certain political rivals. But
this Court has also ruled that any allegation that the filing of

the charges is politically motivated cannot justify the

prohibition of a criminal prosecution if there is otherwise
evidence to support the charges.59
In this case, the judge, upon his personal examination of the
complaint and evidence before him, determined that there was
probable cause to issue the warrants of arrest after the
provincial prosecution, based on the affidavits presented by
complainant and her witnesses, found probable cause to file
the criminal Information. This finding of the Provincial
Prosecutor was affirmed by the Secretary of Justice.
To establish political harassment, respondents must prove that
the public prosecutor, not just the private complainant, acted
in bad faith in prosecuting the case or has lent himself to a
scheme that could have no other purpose than to place
respondents in contempt and disrepute.60 It must be shown
that the complainant possesses the power and the influence to
control the prosecution of cases.61
Likewise, the allegation that the filing of the complaint was
politically motivated does not serve to justify the nullification of
the informations where the existence of such motive has not
been sufficiently established nor substantial evidence
presented in support thereof.62
Other than their own self-serving claims, respondents have
adduced absolutely no proof of the perceived political
persecution being waged by their rivals. Respondents have not
shown any evidence of such a grand design. They have not
alleged, much less proved, any ill motive or malice that could
have impelled the provincial prosecutor, the judge, and even
the Secretary of Justice to have respectively ruled in the way
each of them did. In short, respondents are holding tenuously
only on the hope that this Court will take them at their word
and grant the relief they pray for. This Court, however, cannot
anchor its ruling on mere allegations.
Needless to say, a full-blown trial is to be preferred to ferret out
the truth.63 If, as respondents claim, there is no evidence of
their culpability, then their petition for bail would easily be
granted. Thereafter, the credibility of the prosecutions and the

accuseds respective evidence may be tested during the trial. It

is only then that the guilt or innocence of respondents will be
determined. Whether the criminal prosecution was merely a
tool for harassment or whether the prosecutions evidence can
pass the strict standards set by the law and withstand the
exacting scrutiny of the court will all be resolved at the trial of
the case.
The criminal Information in this case was filed four years ago
and trial has yet to begin. The victims kin, indeed, all the
parties, are awaiting its resolution. Any further delay will
amount to an injustice.
WHEREFORE, the foregoing premises considered, the Court of
Appeals Decision dated May 8, 2007 and Resolution dated
October 8, 2007 in CA-G.R. SP No. 02558 are hereby
REVERSED and SET ASIDE, and the Permanent Injunction is
hereby DISSOLVED. The Order of the Regional Trial Court of
Calbayog City, Samar, dated February 20, 2007, is hereby
REINSTATED. The Regional Trial Court of Calbayog City,
Samar, is DIRECTED to proceed with hearing, and to decide
Criminal Case No. 4916 with dispatch.
SO ORDERED.

FIRST DIVISION
G.R. No. 168380

February 8, 2007

MANUEL V. BAVIERA, Petitioner, vs.

ESPERANZA PAGLINAWAN, in her capacity as Department
of Justice State Prosecutor; LEAH C. TANODRAARMAMENTO, In her capacity as Assistant Chief State
Prosecutor and Chairwoman of Task Force on Business
Scam; JOVENCITO R. ZUNO, in his capacity as Department
of Justice Chief State Prosecutor; STANDARD CHARTERED
BANK, PAUL SIMON MORRIS, AJAY KANWAL, SRIDHAR
RAMAN, MARIVEL GONZALES, CHONA REYES, MARIA
ELLEN VICTOR, and ZENAIDA IGLESIAS, Respondents.
x-----------------------------x
G.R. No. 170602

February 8, 2007

MANUEL V. BAVIERA, Petitioner,

vs.
STANDARD CHARTERED BANK, BRYAN K. SANDERSON,
THE RIGHT HONORABLE LORD STEWARTBY, EVAN
MERVYN DAVIES, MICHAEL BERNARD DENOMA,
CHRISTOPHER AVEDIS KELJIK, RICHARD HENRY
MEDDINGS, KAI NARGOLWALA, PETER ALEXANDER
SANDS, RONNIE CHI CHUNG CHAN, SIR CK CHOW, BARRY
CLARE, HO KWON PING, RUDOLPH HAROLD PETER
ARKHAM, DAVID GEORGE MOIR, HIGH EDWARD NORTON,
SIR RALPH HARRY ROBINS, ANTHONY WILLIAM PAUL
STENHAM (Standard Chartered Bank Chairman, Deputy
Chairman, and Members of the Board), SHERAZAM MAZARI
(Group Regional Head for Consumer Banking), PAUL SIMON
MORRIS, AJAY KANWAL, SRIDHAR RAMAN, MARIVEL
GONZALES, CHONA REYES, ELLEN VICTOR, RAMONA H.
BERNAD, DOMINGO CARBONELL, JR., and ZENAIDA
IGLESIAS (Standard Chartered Bank-Philippines Branch
Heads/Officers), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:

Before us are two consolidated Petitions for Review on

Certiorari assailing the Decisions of the Court of Appeals in
CA-G.R. SP No. 873281 and in CA-G.R. SP No. 85078.2
The common factual antecedents of these cases as shown by
the records are:
Manuel Baviera, petitioner in these cases, was the former head
of the HR Service Delivery and Industrial Relations of Standard
Chartered Bank-Philippines (SCB), one of herein respondents.
SCB is a foreign banking corporation duly licensed to engage in
banking, trust, and other fiduciary business in the Philippines.
Pursuant to Resolution No. 1142 dated December 3, 1992 of
the Monetary Board of the Bangko Sentral ng Pilipinas (BSP),
the conduct of SCBs business in this jurisdiction is subject to
the following conditions:
1. At the end of a one-year period from the date the SCB starts
its trust functions, at least 25% of its trust accounts must be
for the account of non-residents of the Philippines and that
actual foreign exchange had been remitted into the Philippines
to fund such accounts or that the establishment of such
accounts had reduced the indebtedness of residents
(individuals or corporations or government agencies) of the
Philippines to non-residents. At the end of the second year, the
above ratio shall be 50%, which ratio must be observed
continuously thereafter;
2. The trust operations of SCB shall be subject to all existing
laws, rules and regulations applicable to trust services,
particularly the creation of a Trust Committee; and
3. The bank shall inform the appropriate supervising and
examining department of the BSP at the start of its operations.
Apparently, SCB did not comply with the above conditions.
Instead, as early as 1996, it acted as a stock broker, soliciting
from local residents foreign securities called "GLOBAL THIRD
PARTY MUTUAL FUNDS" (GTPMF), denominated in US dollars.
These securities were not registered with the Securities and
Exchange Commission (SEC). These were then remitted
outwardly to SCB-Hong Kong and SCB-Singapore.

SCBs counsel, Romulo Mabanta Buenaventura Sayoc and

Delos Angeles Law Office, advised the bank to proceed with the
selling of the foreign securities although unregistered with the
SEC, under the guise of a "custodianship agreement;" and
should it be questioned, it shall invoke Section 723 of the
General Banking Act (Republic Act No.337).4 In sum, SCB was
able to sell GTPMF securities worth around P6 billion to some
645 investors.
However, SCBs operations did not remain unchallenged. On
July 18, 1997, the Investment Capital Association of the
Philippines (ICAP) filed with the SEC a complaint alleging that
SCB violated the Revised Securities Act,5 particularly the
provision prohibiting the selling of securities without prior
registration with the SEC; and that its actions are potentially
damaging to the local mutual fund industry.
In its answer, SCB denied offering and selling securities,
contending that it has been performing a "purely informational
function" without solicitations for any of its investment outlets
abroad; that it has a trust license and the services it renders
under the "Custodianship Agreement" for offshore investments
are authorized by Section 726 of the General Banking Act; that
its clients were the ones who took the initiative to invest in
securities; and it has been acting merely as an agent or
"passive order taker" for them.
On September 2, 1997, the SEC issued a Cease and Desist
Order against SCB, holding that its services violated Sections
4(a)7 and 198 of the Revised Securities Act.
Meantime, the SEC indorsed ICAPs complaint and its
supporting documents to the BSP.
On October 31, 1997, the SEC informed the Secretary of
Finance that it withdrew GTPMF securities from the market
and that it will not sell the same without the necessary
clearances from the regulatory authorities.
Meanwhile, on August 17, 1998, the BSP directed SCB not to
include investments in global mutual funds issued abroad in
its trust investments portfolio without prior registration with
the SEC.

On August 31, 1998, SCB sent a letter to the BSP confirming

that it will withdraw third-party fund products which could be
directly purchased by investors.
However, notwithstanding its commitment and the BSP
directive, SCB continued to offer and sell GTPMF securities in
this country. This prompted petitioner to enter into an
Investment Trust Agreement with SCB wherein he purchased
US$8,000.00 worth of securities upon the banks promise of
40% return on his investment and a guarantee that his money
is safe. After six (6) months, however, petitioner learned that
the value of his investment went down to US$7,000.00. He
tried to withdraw his investment but was persuaded by
Antonette de los Reyes of SCB to hold on to it for another six
(6) months in view of the possibility that the market would pick
up.
Meanwhile, on November 27, 2000, the BSP found that SCB
failed to comply with its directive of August 17, 1998.
Consequently, it was fined in the amount of P30,000.00.
The trend in the securities market, however, was bearish and
the worth of petitioners investment went down further to only
US$3,000.00.
On October 26, 2001, petitioner learned from Marivel
Gonzales, head of the SCB Legal and Compliance Department,
that the latter had been prohibited by the BSP to sell GPTMF
securities. Petitioner then filed with the BSP a letter-complaint
demanding compensation for his lost investment. But SCB
denied his demand on the ground that his investment is
"regular."
On July 15, 2003, petitioner filed with the Department of
Justice (DOJ), represented herein by its prosecutors, public
respondents, a complaint charging the above-named officers
and members of the SCB Board of Directors and other SCB
officials, private respondents, with syndicated estafa, docketed
as I.S. No. 2003-1059.
For their part, private respondents filed the following as
counter-charges against petitioner: (1) blackmail and extortion,

docketed as I.S. No. 2003-1059-A; and blackmail and perjury,

docketed as I.S. No. 2003-1278.

lack or excess of jurisdiction in dismissing his complaint for

syndicated estafa.

On September 29, 2003, petitioner also filed a complaint for

perjury against private respondents Paul Simon Morris and
Marivel Gonzales, docketed as I.S. No. 2003-1278-A.

He also filed with the Court of Appeals a separate petition for

certiorari assailing the DOJ Resolution dismissing I.S. No.
2004-229 for violation of the Securities Regulation Code. This
petition was docketed as CA-G.R. SP No. 87328. Petitioner
claimed that the DOJ acted with grave abuse of discretion
tantamount to lack or excess of jurisdiction in holding that the
complaint should have been filed with the SEC.

On December 4, 2003, the SEC issued a Cease and Desist

Order against SCB restraining it from further offering,
soliciting, or otherwise selling its securities to the public until
these have been registered with the SEC.
Subsequently, the SEC and SCB reached an amicable
settlement.
On January 20, 2004, the SEC lifted its Cease and Desist
Order and approved the P7 million settlement offered by SCB.
Thereupon, SCB made a commitment not to offer or sell
securities without prior compliance with the requirements of
the SEC.
On February 7, 2004, petitioner filed with the DOJ a complaint
for violation of Section 8.19 of the Securities Regulation Code
against private respondents, docketed as I.S. No. 2004-229.
On February 23, 2004, the DOJ rendered its Joint Resolution10
dismissing petitioners complaint for syndicated estafa in I.S.
No. 2003-1059; private respondents complaint for blackmail
and extortion in I.S. No. 2003-1059-A; private respondents
complaint for blackmail and perjury in I.S. No. 2003-1278; and
petitioners complaint for perjury against private respondents
Morris and Gonzales in I.S. No. 2003-1278-A.
Meanwhile, in a Resolution11 dated April 4, 2004, the DOJ
dismissed petitioners complaint in I.S. No. 2004-229 (violation
of Securities Regulation Code), holding that it should have
been filed with the SEC.
Petitioners motions to dismiss his complaints were denied by
the DOJ. Thus, he filed with the Court of Appeals a petition for
certiorari, docketed as CA-G.R. SP No. 85078. He alleged that
the DOJ acted with grave abuse of discretion amounting to

On January 7, 2005, the Court of Appeals promulgated its

Decision dismissing the petition. It sustained the ruling of the
DOJ that the case should have been filed initially with the
SEC.
Petitioner filed a motion for reconsideration but it was denied
in a Resolution dated May 27, 2005.
Meanwhile, on February 21, 2005, the Court of Appeals
rendered its Decision in CA-G.R. SP No. 85078 (involving
petitioners charges and respondents counter charges)
dismissing the petition on the ground that the purpose of a
petition for certiorari is not to evaluate and weigh the parties
evidence but to determine whether the assailed Resolution of
the DOJ was issued with grave abuse of discretion tantamount
to lack of jurisdiction. Again, petitioner moved for a
reconsideration but it was denied in a Resolution of November
22, 2005.
Hence, the instant petitions for review on certiorari.
For our resolution is the fundamental issue of whether the
Court of Appeals erred in concluding that the DOJ did not
commit grave abuse of discretion in dismissing petitioners
complaint in I.S. 2004-229 for violation of Securities
Regulation Code and his complaint in I.S. No. 2003-1059 for
syndicated estafa.
G.R. No 168380
Re: I.S. No. 2004-229

For violation of the Securities Regulation Code

Section 53.1 of the Securities Regulation Code provides:
SEC. 53. Investigations, Injunctions and Prosecution of
Offenses.
53. 1. The Commission may, in its discretion, make such
investigation as it deems necessary to determine whether any
person has violated or is about to violate any provision of this
Code, any rule, regulation or order thereunder, or any rule of
an Exchange, registered securities association, clearing agency,
other self-regulatory organization, and may require or permit
any person to file with it a statement in writing, under oath or
otherwise, as the Commission shall determine, as to all facts
and circumstances concerning the matter to be investigated.
The Commission may publish information concerning any such
violations and to investigate any fact, condition, practice or
matter which it may deem necessary or proper to aid in the
enforcement of the provisions of this Code, in the prescribing of
rules and regulations thereunder, or in securing information to
serve as a basis for recommending further legislation
concerning the matters to which this Code relates: Provided,
however, That any person requested or subpoenaed to produce
documents or testify in any investigation shall simultaneously
be notified in writing of the purpose of such investigation:
Provided, further, That all criminal complaints for violations
of this Code and the implementing rules and regulations
enforced or administered by the Commission shall be
referred to the Department of Justice for preliminary
investigation and prosecution before the proper court:
Provided, furthermore, That in instances where the law allows
independent civil or criminal proceedings of violations arising
from the act, the Commission shall take appropriate action to
implement the same: Provided, finally; That the investigation,
prosecution, and trial of such cases shall be given priority.
The Court of Appeals held that under the above provision, a
criminal complaint for violation of any law or rule administered
by the SEC must first be filed with the latter. If the
Commission finds that there is probable cause, then it should
refer the case to the DOJ. Since petitioner failed to comply with

the foregoing procedural requirement, the DOJ did not gravely

abuse its discretion in dismissing his complaint in I.S. No.
2004-229.
A criminal charge for violation of the Securities Regulation
Code is a specialized dispute. Hence, it must first be referred to
an administrative agency of special competence, i.e., the SEC.
Under the doctrine of primary jurisdiction, courts will not
determine a controversy involving a question within the
jurisdiction of the administrative tribunal, where the question
demands the exercise of sound administrative discretion
requiring the specialized knowledge and expertise of said
administrative tribunal to determine technical and intricate
matters of fact.12 The Securities Regulation Code is a special
law. Its enforcement is particularly vested in the SEC. Hence,
all complaints for any violation of the Code and its
implementing rules and regulations should be filed with the
SEC. Where the complaint is criminal in nature, the SEC shall
indorse the complaint to the DOJ for preliminary investigation
and prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner
committed a fatal procedural lapse when he filed his criminal
complaint directly with the DOJ. Verily, no grave abuse of
discretion can be ascribed to the DOJ in dismissing petitioners
complaint.
G.R. No. 170602
Re: I.S. No. 2003-1059 for
Syndicated Estafa
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure,
as amended, provides that all criminal actions, commenced by
either a complaint or an information, shall be prosecuted
under the direction and control of a public prosecutor. This
mandate is founded on the theory that a crime is a breach of
the security and peace of the people at large, an outrage
against the very sovereignty of the State. It follows that a
representative of the State shall direct and control the
prosecution of the offense.13 This representative of the State is

the public prosecutor, whom this Court described in the old

case of Suarez v. Platon,14 as:
[T]he representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense a servant of the law, the
twofold aim of which is that guilt shall not escape or innocence
suffers.
Concomitant with his authority and power to control the
prosecution of criminal offenses, the public prosecutor is
vested with the discretionary power to determine whether a
prima facie case exists or not.15 This is done through a
preliminary investigation designed to secure the respondent
from hasty, malicious and oppressive prosecution. A
preliminary investigation is essentially an inquiry to determine
whether (a) a crime has been committed; and (b) whether there
is probable cause that the accused is guilty thereof.16 In
Pontejos v. Office of the Ombudsman,17 probable cause is
defined as such facts and circumstances that would engender
a well-founded belief that a crime has been committed and that
the respondent is probably guilty thereof and should be held
for trial. It is the public prosecutor who determines during the
preliminary investigation whether probable cause exists. Thus,
the decision whether or not to dismiss the criminal complaint
against the accused depends on the sound discretion of the
prosecutor.
Given this latitude and authority granted by law to the
investigating prosecutor, the rule in this jurisdiction is that
courts will not interfere with the conduct of preliminary
investigations or reinvestigations or in the determination
of what constitutes sufficient probable cause for the filing
of the corresponding information against an offender.18
Courts are not empowered to substitute their own judgment for
that of the executive branch.19 Differently stated, as the matter
of whether to prosecute or not is purely discretionary on his
part, courts cannot compel a public prosecutor to file the
corresponding information, upon a complaint, where he finds

the evidence before him insufficient to warrant the filing of an

action in court. In sum, the prosecutors findings on the
existence of probable cause are not subject to review by
the courts, unless these are patently shown to have been
made with grave abuse of discretion.20
Grave abuse of discretion is such capricious and whimsical
exercise of judgment on the part of the public officer concerned
which is equivalent to an excess or lack of jurisdiction. The
abuse of discretion must be as patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.21
In determining whether the DOJ committed grave abuse of
discretion, it is expedient to know if the findings of fact of
herein public prosecutors were reached in an arbitrary or
despotic manner.
The Court of Appeals held that petitioners evidence is
insufficient to establish probable cause for syndicated estafa.
There is no showing from the record that private respondents
herein did induce petitioner by false representations to invest
in the GTPMF securities. Nor did they act as a syndicate to
misappropriate his money for their own benefit. Rather, they
invested it in accordance with his written instructions. That he
lost his investment is not their fault since it was highly
speculative.
Records show that public respondents examined petitioners
evidence with care, well aware of their duty to prevent material
damage to his constitutional right to liberty and fair play. In
Suarez previously cited, this Court made it clear that a public
prosecutors duty is two-fold. On one hand, he is bound by his
oath of office to prosecute persons where the complainants
evidence is ample and sufficient to show prima facie guilt of a
crime. Yet, on the other hand, he is likewise duty-bound to
protect innocent persons from groundless, false, or malicious
prosecution.22

Hence, we hold that the Court of Appeals was correct in

dismissing the petition for review against private respondents
and in concluding that the DOJ did not act with grave abuse of
discretion tantamount to lack or excess of jurisdiction.
On petitioners complaint for violation of the Securities
Regulation Code, suffice it to state that, as aptly declared by
the Court of Appeals, he should have filed it with the SEC, not
the DOJ. Again, there is no indication here that in dismissing
petitioners complaint, the DOJ acted capriciously or
arbitrarily.
WHEREFORE, we DENY the petitions and AFFIRM the
assailed Decisions of the Court of Appeals in CA-G.R. SP No.
87328 and in CA-G.R. SP No. 85078.
Costs against petitioner.
SO ORDERED.

SECOND DIVISION
G.R. No. 140772

December 10, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JOEL PEREZ Y ADORNADO, appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the September 27, 1999 Decision1 of the
Regional Trial Court of Pasig City, Branch 156, in Criminal
Case No. 110511-H, finding appellant Joel Perez y Adornado
guilty beyond reasonable doubt of murder for killing Agapito
Saballero. The trial court imposed upon him the penalty of
reclusion perpetua and ordered him to pay the heirs of the said
victim the amount of P50,000 as civil indemnity.
The accusatory portion of the Amended Information reads as
follows:
On or about April 25, 1996 in Pasig City and within the
jurisdiction of this Honorable Court, the accused, with intent
to kill and with treachery, did then and there willfully,
unlawfully and feloniously attack, assault and stab one
Agapito Saballero on the chest and abdomen, thereby inflicting
the latter mortal stab wounds which directly caused his death.

and ended up drinking with the three.4 By the time they had
consumed about two-and-a-half round bottles of gin, Joel
started singing on top of his lungs the song "Si Aida, Si Lorna,
o Si Fe." He was immediately cautioned by Agapito to lower his
voice as the singing might disturb the neighborhood. Peeved,
Joel confronted Agapito.5 An altercation ensued. Joel warned
Agapito "Babalikan kita. Makita mo," (Ill get back at you. Youll
see.)6 then left in a huff. The group decided to end their
drinking spree.7 By then, it was past 9:00 p.m.
Isidro advised Agapito to get inside their house. However,
Agapito was still upset about his argument with Joel and
lingered outside his house. Meanwhile, Isidro went inside their
rented apartment at the second floor of the house, while his
wife prepared his dinner. At around 10:00 p.m. while he was
taking his supper, Isidro heard somebody shouting "Huwag,
Joel! Saklolo, may tama ako!" Isidro then peeped outside and
saw Joel pulling out from Agapitos chest a bladed weapon.8
Shocked, Isidro and his wife went down to help Agapito. By
then, Joel had already fled from the scene. The couple woke up
some of their neighbors to help them carry Agapito and bring
him to the hospital. Some neighbors arrived and brought
Agapito to the hospital. On the way, Agapito expired.9
With the consent of John Saballero, the son of Agapito,10 Dr.
Emmanuel Aranas, the Medico-Legal Officer of the PNP,
performed an autopsy on the cadaver of Agapito and
incorporated his findings in his report, thus:

Contrary to law.2

FINDINGS:

The Case for the Prosecution

Fairly nourished, fairly developed male cadaver, in rigor mortis,

with postmortem lividity at the dependent portions of the body.
Conjunctiva, lips, and nailbeds are pale.

Isidro Donoga eked out a living as a shoemaker and repairer,

and resided with his wife, his daughter and his son-in-law in a
rented apartment in No. 112 Adia Compound, Dr. Sixto
Antonio St., Rosario, Pasig City.
On April 25, 1996 at around 8:00 p.m., Isidro was on his way
home from Mariwasa when he passed by a group, including his
neighbor Agapito Saballero,3 Joel Perez and Aurelio Ariete,
having a drinking spree near their rented apartment. Agapito
invited Isidro to join the group. Isidro acceded to the invitation

TRUNK AND UPPER EXTREMITIES:

(1) Multiple abrasions, right deltoid, measuring 2 by 2 cms, 16
cms from the anterior midline.
(2) Stab wound, left mammary region, measuring 2.4 by 0.6
cm, 5 cms from the anterior midline, 12 cms deep, directed
posteriorwards, downwards, and to the right, thru the 4th left

intercostal space, piercing the paricardial (sic) sac and right

ventricle.
(3) Stab wound, umbilical region, measuring 5 by 1.5 cm,
bisected by the anterior midline, directed posteriorwards,
piercing the mesentery and jejunal segment of the small
intestines.
(4) Multiple abrasions, left scapular region, measuring 5 by 2
cms, 11 cms from the posterior midline.
(5) Multiple abrasions, right antecubital region, measuring 6 by
3 cms, 5 cms from its midline.
(6) Abrasion, middle 3rd of the right forearm, measuring 2.5
cms by 0.2 cm, 3 cms lateral to its anterior midline.
(7) Abrasion, left elbow, measuring 5 by 3 cms, 4 cms lateral to
its midline.
About 1000 ml of fluid and clotted blood recovered from the
thoracic cavity.
Stomach contains a glassful of partially digested food particles
and mixed with bloody fluid.
CONCLUSION:
Cause of death is stab wounds of the chest and abdomen.11
Dr. Aranas signed the Certificate of Death of Agapito.12
When apprised of the stabbing incident, the police
investigators, led by SPO1 Mario B. Garcia, learned that the
victim was Agapito and the suspect was Joel who fled from the
scene after stabbing Agapito three times with an improvised
dagger at 10:00 p.m. on April 25, 1996. The police
investigation was placed in the police blotter.13
Isidro helped out during the burial of Agapito and failed to give
his statement to the police but on May 3, 1996, Isidro gave his
sworn statement to SPO1 Mario B. Garcia of the Pasig Police
Station.14

Shortly thereafter, an Amended Information15 was filed on

September 15, 1997. The amendment consisted in the
inclusion of the allegation of treachery as a qualifying
circumstance.16
Assisted by his counsel during arraignment, Joel entered a
plea of not guilty.17 Trial thereafter ensued.
The Case for the Accused
Joel put up the defense of denial and alibi. He testified that he
was a regular employee of Hydro Resources Contractor
Corporation as a heavy equipment mechanic for four (4)
years.18
On April 25, 1996 at around 3:00 p.m., his sister, Imelda Perez
de Venecia, called him from work and requested him to travel
to Bicol the following day to make a delivery of a package to
which he agreed. The siblings also agreed that Joel will go to
her place at No. 749 Old Balara, Quezon City, after office hours
to get the package the following day because of his trip to
Bicol.19
From his place of employment, he proceeded to Adia
Compound in Rosario, Pasig City, where he saw the victim
Agapito and Aurelio, one of his co-workers at Hydro Resources
Contractor Corporation, drinking gin.20 He then joined the
group and, in the process, inquired from Aurelio about the
status of his application for a job.21 Thereafter, Isidro arrived
and joined the drinking spree upon the invitation of Agapito.
While they were drinking, an argument ensued between
Agapito and Isidro regarding rentals, as the latter was a tenant
of Agapitos sister.22 Joel tried to pacify the two by singing
aloud the song "Si Aida, Si Lorna, o Si Fe." Isidro and Agapito
stopped arguing with each other but Agapito told Joel to stop
singing. At around 9:00 p.m., Joel bade the group goodbye and
proceeded to his sisters house in Old Balara, Quezon City. He
boarded four jeeps one after the other and one tricycle. It took
him an hour before he arrived at his sisters.
The following day, April 26, 1996, Joel, together with his sister
Imelda, went to the Peafrancia Bus Station, confirmed the
ticket bought in advance by Imelda, and changed Imeldas

name to that of his name to enable him to use the ticket.23

Upon his arrival in Bicol, his wife gave him a letter from a
company he had applied for work earlier in January, asking
him to report for work. Instead of returning to Manila, Joel
decided to accept the offer for employment, and stayed in Bicol.
Moreover, he tendered his resignation from his work in Manila
by sending a telegram to his former employer. It was only when
he was arrested on June 7, 1997 that Joel learned about
Agapitos demise, and that he was the suspect for his violent
death.24
Imelda, the sister of Joel, corroborated his alibi that he went to
her house on the night of April 25, 1996 arriving thereat at
around 9:30 p.m. to 10:30 p.m.25 She confirmed that she,
together with her brother, left the house at around 5:00 a.m. of
April 26, 1996 and went to the Peafrancia Bus Station as his
brother will travel to Bicol to deliver a package; and that her
brother left for Bicol at around 7:30 a.m.
Joel also presented Aurelio who corroborated his testimony.26
Aurelio testified that he only reported for work for a half-day
from 8:00 a.m. to 12:00 noon on April 25, 1996. Thereafter,
Aurelio proceeded to Adia Compound located in Rosario, Pasig
City, where he met a certain Roberto Rocabo. Thereafter, they
proceeded to the office of one Mr. Dela Cruz located at the back
of Mariwasa and inquired about a machine which they were
trying to contract. They stayed there until 5:30 p.m., after
which, Aurelio and Roberto went back at the latters house.
Aurelio hung about infront of Robertos house, and there met
Agapito who invited Roberto for a drink which the latter
accepted.27 They were later joined by Joel and Isidro. At around
9:00 p.m., Joel bade them goodbye and left the group. Aurelio
also left the drinking spree a moment later, and slept at
Robertos house. At around 6:00 a.m. the following day, April
26, 1996, Aurelio was awakened by a commotion outside, in
the street, and when he checked the cause, he saw Agapito
lying on the ground. A policeman arrived at around 7:00 a.m.
and investigated the crime scene.28
After trial, the trial court rendered a decision finding Joel guilty
beyond reasonable doubt of murder, and imposed upon him

the penalty of reclusion perpetua. The decretal portion of the

decision reads:
Wherefore, the Court finds accused GUILTY beyond reasonable
doubt of the crime of murder, and hereby sentences him to
suffer the penalty of reclusion perpetua, to indemnify the heirs
of Agapito Aballero (sic) in the amount of P50,000.00
conformably with existing jurisprudence. Costs against the
accused.
SO ORDERED.29
Joel appealed from the decision and alleges that:
B.1. The trial court erred in giving credence to the supposed
lone prosecution eyewitness, Isidro Donoga.
B.2. The trial court erred in not acquitting the accused because
his guilt was not proven beyond reasonable doubt.30
Anent the first assigned error, he asserts that the trial court
erred in giving weight to the testimony of Isidro, the
prosecutions lone eyewitness, despite the inconsistencies in
his statement to the police investigators31 and his testimony
during trial. First, in his sworn statement, Isidro declared that
the appellant used an "itak" in stabbing Agapito whereas when
he testified before the court, he declared that the appellant
used a "kutsilyo." Second, when Isidro was asked during the
trial if he voluntarily gave his sworn statement to the police, he
answered in the affirmative; but during the preliminary
investigation of the case, he declared that he gave his sworn
statement regarding the case when the policemen arrived in
their place.32 Third, Isidro declared in his sworn statement that
he saw the appellant stab the victim, but during clarificatory
questioning by the public prosecutor during trial, he declared
that he only saw the extraction by the appellant of the knife
from the chest of the victim. Moreover, the appellant avers that
there is no allegation in the Information that the appellant
used any bladed weapon to stab the victim. Isidros testimony
that he heard shouts for help from Agapito at around 10:00
p.m. of April 25, 1996 was merely a fragment of his
imagination because the stabbing occurred on April 26, 1996
at around 6:00 a.m. as testified to by Aurelio.

The appeal is without merit.

The inconsistencies catalogued by the appellant referred only
to peripheral or minor details which do not destroy or weaken
the credibility of the witness of the prosecution.33 Such
inconsistencies are even indicia of honest and unrehearsed
declarations and responses of witnesses and thus enhanced
their credibility.34 We note that Isidro sufficiently explained his
use of "itak" and "kutsilyo" when he was cross-examined by the
appellants counsel:
Q In your statement marked as Exhibit F, I am referring to the
statement given to the police, there is a question and which I
quote: "Nasabi mo nakita si Joel Perez ang siyang sumaksak
kay Agapito, nakita mo rin ba naman kung anong klaseng
patalim ang ginamit niya?" and your answer was: "Isa pong
matulis na itak po ang pinangsaksak niya kay Agapito." Do
you remember having given this statement?
A Yes, sir.
Q A while ago during the direct examination you were asked
what kind of weapon was used and you said, at first "kutsilyo"
then later on a pointed weapon. Which is which now?
A Because in our place a knife is called "Dipang." The "dipang,
hindi itak na gaano yon." Dipang, this is the smallest "itak" in
our place, sir.
Q Did I get it from you that "itak" and "kutsilyo" are one and
the same in your place?
A Yes, sir. They are one and the same.35
Case law has it that an affidavit given to the police investigator
at the police station is generally not prepared by the affiant
himself but by another person invariably by the police
investigator who uses his own language. Omissions and
misunderstandings by the writer usually result. And in case of
discrepancy between the sworn statement and those made by
the affiant on the witness stand, the latter deserves full faith
and credit.36

On the apparent inconsistency of Isidros testimony during the

preliminary investigation that his sworn statement to the police
investigators on May 3, 1996 was voluntary is not enfeebled by
the fact that it was given eight days after the crime was
committed when Isidro arrived at the police station to give his
statement. Isidro testified that he was then busy helping the
family in the burial of the victim.37 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. Witnesses are not expected to remember every single
detail of an incident with perfect or total recall.38
Isidros testimony that he saw the appellant pull out the bladed
weapon from the chest of the victim is not inconsistent with his
sworn statement to the police that it was the appellant who
stabbed the victim. Even if Isidro did not see the appellant stab
the victim, there can be no other conclusion that it was the
appellant who stabbed the victim given the fact that it was the
appellant who pulled out the knife from the chest of the victim
and fled from the scene thereafter. Isidro saw no other person
at the crime scene. He categorically and positively identified
the appellant as the assailant of Agapito. He had known the
appellant for about two years before the latter stabbed the
victim. He often saw the appellant at his place of work where
Isidro made some deliveries of shoes thereat.39 He and the
appellant never had any misunderstanding, thus no ill motive
can be attributed to Isidro for him to testify against the
appellant. This Court has held that absent evidence showing
any reason for the prosecution witness to perjure, the logical
conclusion is that no such improper motive exists, and his
testimony is thus worthy of full faith and credit.40 With the
positive and straightforward identification by Isidro of the
appellant as the perpetrator, the latters defense of alibi must
fall.41
That the Information does not describe the weapon used by the
appellant either an "itak" or "kutsilyo" in stabbing the victim is
inconsequential. The kind or nature of the weapon used in the
commission of the crime need not be alleged in the complaint
or Information. What must be alleged in the Information or
complaint are those enumerated in Section 6, Rule 110 of the
Revised Rules of Criminal Procedure, viz.:

SEC. 6. Sufficiency of complaint or information. A complaint

or information is sufficient if it states the name of the accused;
the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name
of the offended party; the approximate date of the commission
of the offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of
them shall be included in the complaint or information.
Aurelios testimony that the stabbing occurred on April 26,
1996 at 6:00 a.m. is belied by (a) the testimony of Isidro; (b)
the request for medico-legal examination42 in which it is stated
that the stabbing incident occurred at around "9:45 p.m. of
April 25, 1996 infront of House No. 112-G Dr. Sixto Antonio,
Rosario, Pasig City;" (c) the spot investigation report43 of SPO1
Mario Garcia that the crime was committed "on or about 10:00
p.m. of 25 April 1996." The police investigator and the chief of
police who prepared the request and the spot investigation
report, respectively, are disinterested witnesses. Moreover, the
entries therein were made by the police investigator and the
chief of police in their official capacities; thus, such entries
have in their favor the presumption of regularity and are prima
facie evidence of the facts therein stated.44 It bears stressing
that the appellants witness Aurelio was a close friend of his;
hence, his testimony must be considered by the court with
extreme caution.
We agree with the appellant that the prosecution failed to prove
treachery. It behooved the prosecution to prove that the
appellant deliberately and consciously adopted such means,
method or manner of attack as would deprive the victim of an
opportunity for self-defense or retaliation.45 In this case, Isidro,
the prosecutions lone eyewitness, testified as follows:
Q More or less, what time was that when you had that dinner
at that time?
A Passed (sic) 10:00 oclock, sir.
Q What time was that when you took your supper?
A My wife, sir.

Q You mean to tell us that your wife was also with you while
you were taking your supper?
A No, sir. She was just with me in the table.
Q While eating on that said evening of April 25, 1996 which
you came around passed (sic) 10:00 oclock in the evening, do
you recall of any unusual incident that happened in the
vicinity of your house?
A Yes, sir.
Q And what was that unusual incident that took place while
you were taking your supper?
A I heard somebody shouted: "Huwag, Joel. Saklolo, may tama
ako."
Q When you heard this shout of a person, what was your
reaction then?
A When I heard that, "dumungaw po ako."
Q And what did you find out, if any, after taking that gesture
"dungaw?"
A I saw Joel Perez pulling out from the chest a bladed weapon
("isang patalim"), sir.
Q And were there other persons aside from Joel Perez there at
that time?
A None, sir.
Q You claimed that you actually saw Joel Perez pulling out a
knife, as if as you were claiming that he had just stabbed
somebody?

A Upon peeping, I saw Joel Perez still pulling out a knife, a

pointed weapon, sir.

Q By claiming you actually observed this particular incident,

from where was Joel Perez pulling out this pointed or bladed
weapon?

reclusion temporal in its medium period, as maximum, and to

pay the heirs of Agapito Saballero the amount of P50,000 as
civil indemnity. Costs de oficio.

A From Agapito, sir.46

SO ORDERED.

Irrefragably, Isidro failed to see how the attack started.1wphi1

When he looked out through the window, he saw Joel pulling
out his knife from the chest of the victim. Isidro did not see the
initial stage of the stabbing and the particulars of the attack on
the victim.47 Treachery cannot thus be appreciated.48
The mere fact that Agapito was unarmed when he was stabbed
is not sufficient to prove treachery.1wphi1 The settled rule is
that treachery cannot be presumed. It must be proved by clear
and convincing evidence, as the crime itself.49 Hence, the
appellant is guilty only of homicide and not murder.
The penalty for homicide is reclusion temporal which has a
range of twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, the maximum of the
imposable penalty shall be taken from the medium period of
reclusion temporal, the range of which is fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and
four (4) months, while the minimum of the said penalty shall
be taken from the penalty next lower in degree which is prision
mayor, the range of which is six (6) years and one (1) day to
twelve (12) years, in any of its periods. There being no
modifying circumstance in the commission of the crime, the
appellant may be sentenced to an indeterminate penalty of
from ten (10) years and one (1) day of prision mayor to fourteen
(14) years, eight (8) months and one (1) day of reclusion
temporal in its medium period as maximum.
IN LIGHT OF ALL THE FOREGOING, the judgment appealed
from is AFFIRMED WITH MODIFICATION. The appellant Joel
Perez y Adornado is found guilty of homicide under Article 249
of the Revised Penal Code, as amended, and there being no
mitigating nor aggravating circumstance in the commission of
the crime, is sentenced to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of

EN BANC
G.R. No. 138364

October 15, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ROGELIO VILLANUEVA, appellant.
DECISION
BELLOSILLO, J.:
On automatic review by law is the Decision of the court a quo
in its Crim. Case No. 150 (97) finding appellant ROGELIO
VILLANUEVA guilty of raping his fifteen (15)-year old daughter
and accordingly sentencing him to death. 1
Reseilleta Villanueva is the eldest of the daughters in a brood
of nine (9) children. Her parents, the spouses Rogelio
Villanueva, appellant herein, and Estelita Villanueva, could
hardly afford to send their children to school due to extreme
poverty. As a fisherman, appellants meager income was
insufficient to even provide for the basic necessities of life. To
help support the family, Estelita left the family home in
Talisay, Malusing, Sta. Cruz, Davao del Sur, to work as a
laundrywoman-househelper in Camp Catitipan, Davao City.
On 12 December 1996, after taking lunch, appellant Rogelio
Villanueva sent his daughters to do laundry in a nearby water
pump. Reseilleta, then fifteen (15) years old, although prepared
to help her younger sisters in their assigned task, was told to
stay behind by appellant saying that her sisters could already
take care of themselves.2
As soon as her sisters left, Reseilleta was dragged by her father
from the kitchen to the living room. Gripped in fear, she asked
him what he was going to do to her. Without answering,
appellant told her simply to remove her panty. When she
refused, he poked a knife at her and forced her to lie down.3
Reseilleta resisted and tried to free herself from her fathers
hold, but he grabbed an iron bar and struck her at the back
twice, then punched her in the abdomen. As a result of the
blows, she fainted.4

When Reseilleta regained her consciousness, she felt pains on

her bleeding genitalia.5 Fearing that it would not be the last of
her fathers sexual assault, he having molested her several
times in the past,6 she fled to her maternal uncles house in
Jade Valley, Buhangin, Davao City.
Meanwhile, appellant vented his satiric desires on another
daughter Mary Joy, younger sister of Reseilleta. After he
attempted to sexually abuse her twice,7 Mary Joy ran away
from home and went to her Aunt Adela Benzillo where she
sought refuge. Mary Joy recounted her ordeal to Aunt Adela
who immediately accompanied her to her mother Estelita in
Davao City.
Mary Joy narrated to Estelita how appellant almost ravished
her. She told her mother about her fathers remarks that
"youre not like your sister, if I tell her to bend over she would
bend over, or lie down if I told her to lie down."8 This made
Estelita suspicious that something must have happened to
Reseilleta too. So Estelita lost no time in going to Jade Valley
bringing Mary Joy along with her. Estelitas suspicions were
confirmed when Reseilleta told her that her father raped her.
On 17 February 1997, accompanied by her mother Estelita
and sister Mary Joy, Reseilleta went to the Sta. Cruz Municipal
Police Station in Davao del Sur and reported the sexual assault
on her by her father. Reseilleta and Estelita likewise executed
sworn statements at the police station.9 They then proceeded
to the Municipal Trial Court of Sta. Cruz, Davao del Sur, where
Reseilleta formally lodged her complaint for rape against
appellant.10 Complainant was physically examined on the same
day by Dr. Johannelda J. Diaz, Medical Health Officer IV,
Municipal Health Office of Sta. Cruz. Dr. Diazs findings were
Extra-genital injuries present: (+) healed scar, (L) anterior iliac
region (+) burn scar, healed, (R) thigh antero-lateral aspect,
upper third
Genital exam: Pubic hair coarse, centrally distributed
Labia majora: coaptated

Hymen: thick, with old, healed laceration at 5 & 6 oclock

positions.11
Appellant denied the accusations against him. He claimed that
on the alleged date of the rape he was in a farm from 6:00
oclock in the morning until sundown and that when he arrived
home his daughters told him that Reseilleta, as usual, went
out with her friends. He further alleged that he could not have
raped Reseilleta considering that many children in the
neighborhood used to play in their house. Appellant likewise
accused his wife Estelita of instigating the rape charge to
thwart his plan of filing criminal charges of abandonment
against her.
On 12 January 1999 the trial court convicted appellant Rogelio
Villanueva of rape qualified by the minority of the victim and
her relationship with appellant as father and daughter, and
sentenced him to death under Sec. 11, RA 7659, amending Art.
335, of The Revised Penal Code.
In this automatic review mandated by law, appellant imputes
grave error to the trial court (a) in finding him guilty beyond
reasonable doubt of rape defined and penalized under Art. 335
of The Revised Penal Code, as amended by RA 7659; and, (b) in
imposing upon him the extreme penalty of death.
We affirm the conviction of appellant Rogelio Villanueva of
raping his own daughter Reseilleta Villanueva, a minor of
fifteen (15) years when the crime was committed. Well settled is
the rule that assessment of credibility of witnesses is a
function that is best discharged by trial judge whose
conclusion thereon are accorded much weight and respect, and
will not be disturbed on appeal unless a material or
substantial fact has been overlooked or misappreciated which
if properly taken into account could alter the outcome of the
case.12 We are convinced that the trial judge prudently fulfilled
his obligation as a trier and factual assessor of facts.
Appellant capitalizes much on Reseilletas testimony that she
was unconscious during the rape
Q: And after you were boxed in the abdomen, you felt (sic)
unconscious?

A: Yes, then he removed my clothings.

Q: He removed your clothings after you felt (sic) unconscious?
A: Yes, I was already unconscious.
Q: You were already unconscious when you clothings and
panty were already taken off?
A: Yes.
Q: When you regained consciousness, you said, your panty
were (sic) bloodied, is that correct?
A: Yes.
Q: And it was still intact in your private parts, is that correct?
A: (no answer).
Q: It was you who removed your panty?
A: No, sir.
Q: Who removed your panty?
A: My father, sir.
Q: Your father removed it when you were unconscious is that
what you mean?
A: Yes, sir.13
Appellant contends that if Reseilleta was unconscious she
would be incapable of knowing or remembering what
transpired. Hence, her assertion that he removed her clothes
and thereafter had sexual intercourse with her is highly
suspect.
We disagree. Primarily, it bears nothing that Reseilleta was
only a little over sixteen (16)-year old barrio lass at the time
she testified on 10 September 1997, uneducated and
unaccustomed to court proceedings. As aptly observed by the
trial court

In assessing the probative value of the testimonies of the victim

Reseilleta and her sister, 10-year old Mary Joy, we took note of
their cultural and educational and social background and
experiences. The two girls come from a family of simple folks in
a remote barangay of a remote municipality. By their testimony
and that of their father, the accused, they were not able to go
to school because of adverse situations that beset the family.
As a matter of fact, Reseilleta, at 18 years of age, does not even
know how to write her name.14
Nave and unsophisticated as she was, Reseilleta could not be
expected to give flawless answers to all the questions
propounded to her. More importantly, it must be stressed that
the above-quoted testimony must be taken as the logical
conclusion of Reseilleta that it was appellant who removed her
clothes. Before she lost consciousness following her fathers
brutal assault on her with an iron bar after she refused to
remove her panty, she was still wearing her clothes and panty
and appellant was the only one who was with her at that time.
At any rate, direct evidence of the commission of the crime is
not the only matrix by which courts may draw their
conclusions and findings of guilt. Where, as in this case, the
victim could not testify on the actual commission of the rape
because she was rendered unconscious at the time the crime
was perpetrated, the court is allowed to rule on the bases of
circumstantial evidence provided that (a) there is more than
one (1) circumstance; (b) the facts from which the inferences
are derived are proved; and, (c) the combination of all the
circumstances is such as to produce a conviction beyond
reasonable doubt.15 The corollary rule is that the totality or the
unbroken chain of the circumstances proved leads to no other
logical conclusion than appellants guilt.16
We find that the evidence for the prosecution sufficiently
establish the following: first, appellant and Reseilleta were the
only persons in the house at the time of the rape on 12
December 1996; second, he forcibly dragged Reseilleta from the
kitchen to the living room; third, he commanded her to remove
her panty although she refused; fourth, he poked a knife at her
and forced her to lie down; fifth, he clubbed Reseilleta with an
iron bar when she resisted and struggled to extricate herself

from him; sixth, he punched Reseilleta in the stomach which

rendered her unconscious; seventh, when she regained
consciousness, she felt pain in her vagina which was already
bleeding; and eighth, the medical examination conducted on
Reseilleta two (2) months after the incident revealed lacerations
in her vagina at 5 and 6 oclock positions.
The combination of these circumstances establishes beyond
moral certainty that Reseilleta was raped while she was in a
state of unconsciousness and that appellant was the one
responsible for defiling her. These circumstances constitute an
unbroken chain of events which inevitably points to appellant,
to the exclusion of all others, as the guilty person, i.e., they are
consistent with each other, consistent with the hypothesis that
appellant is guilty and at the same time inconsistent with any
other hypothesis except that appellant is guilty.17
Appellant insists however that he could not have raped
Reseilleta because children from their neighborhood usually
converged at their residence to play.
We are not persuaded. It is not at all impossible, nay, not even
improbable, that such brutish act of a depraved man as
appellant was actually committed in his residence. Lust, we
have repeatedly noted, has no regard for time nor place. The
fact that children gather at appellants residence to play is no
guarantee that rape cannot be perpetrated there. Indeed, there
is no law or rule that rape can be committed only in seclusion.
Rapes have been committed in many and different kinds of
places, including those which most people would consider as
inappropriate or as presenting a high risk of discovery.18
Appellants suggestion that Reseilleta concocted the rape
charge against him upon the instigation of her mother Estelita
deserves scant consideration. No mother would instigate her
daughter to file a complaint for rape out of sheer malice
knowing that it would expose her own daughter to shame,
humiliation and stigma concomitant to a rape, and could send
the father of her children to the gallows.19 As we view it,
Estelita was simply motivated by a desire to have the person
responsible for the defloration of her daughter apprehended
and punished.

In the face of the positive testimony of Reseilleta who had no

improper motive to testify falsely against him, appellants alibi
crumbles like a fortress of sand. For the defense of alibi to
prosper, the accused must not only show that he was not
present at the locus criminis at the time of the commission of
the crime, but also that it was physically impossible for him to
have been present at the scene of the crime at the time of its
commission.20 Appellant testified that on 12 December 1996 he
was working in a farm from six oclock in the morning until
sunset. However, he miserably failed to prove that the nature
of his work at the farm, and the distance between the farm and
his house, effectively prevented him from going home at lunch
time to feast on his daughters purity and innocence.

named accused with lewd designs armed with an iron bar,

struck for several times and boxed Reseilleta C. Villanueva,
hitting her at the back portion of her body and abdomen
causing her to lose her consciousness did then and there
willfully, unlawfully and feloniously have carnal knowledge of
the offended party, a minor, against her will, and to her
damage and prejudice (underscoring supplied).

Appellant posits that in the event he is found guilty he should

be convicted only of simple rape, and not qualified rape. He
argues that the Information against him failed to allege the
qualifying circumstance of relationship between him and
Reseilleta.

Sec. 6. Sufficiency of complaint of information. A complaint

or information is sufficient if it states the name of the accused;
the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name
of the offended party; the approximate date of the commission
of the offense; and the place where the offense was committed.

We disagree. The qualifying circumstance of relationship of the

accused to the victim being father and daughter is so alleged in
the Information. The cases of People v. Bali-balita21 and People
v. Rodriguez,22 are no longer controlling. The time has come for
us to revisit and reexamine the wisdom of these rulings lest
blind acquiescence, persistent application and the passage of
time may validate what appears to us now as an unsound
procedural doctrine that cannot be justified even under the
hallowed ground of stare decisis.
For a better perspective, we reproduce the Information subject
of the instant case
The Undersigned Prosecutor, at the instance of the offended
party, Reseilleta C. Villanueva, accuses Rogelio Villanueva, her
father, of the crime of Rape under Article 335 of the Revised
Penal Code, in relation to Republic Act No. 7659, committed as
follows:
That on or about the 12th day of December 1996 at Sitio
Malusing Talisay, Barangay Zone I, Sta. Cruz, Davao del Sur
and within the jurisdiction of this Honorable Court, the above-

There is no law or rule prescribing a specific location in the

Information where the qualifying circumstances must
"exclusively" be alleged before they could be appreciated
against the accused. Section 6, Rule 110, of the 2000 Revised
Rules of Criminal Procedure requires, without more

When the offense is committed by more than one person, all of

them shall be included in the complaint or information.
While Sec. 8, Rule 110, of the same Rule states
Sec. 8. Designation of the offense. The complaint or
information shall state the designation of the offense given by
the statute, aver the facts of 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
(underscoring supplied).
Nothing in Secs. 6 and 8 of Rule 110 mandates the material
allegations should be stated in the body and not in the
preamble or caption of the Information. Instead, both sections
state that as long as the pertinent and significant allegations
are enumerated in the Information it would be deemed
sufficient in form and substance. We hold that it is irrelevant
and immaterial whether the qualifying circumstance of
relationship is mentioned in the opening paragraph of the
Information or in the second paragraph which alleges the acts

constituting the crime charged since either paragraph is an

integral part of the Information.
The preamble or opening paragraph should not be treated as a
mere aggroupment of descriptive words and phrases. It is as
much an essential part of the Information as the accusatory
paragraph itself. The preamble in fact complements the
accusatory paragraph which draws its strength from the
preamble. It lays down the predicate for the charge in general
terms; while the accusatory portion only provides the
necessary details. The preamble and the accusatory paragraph,
together, form a complete whole that gives sense and meaning
to the indictment. Thus, any circumstance stated in the
preamble (i.e., minority, relationship) should also be
considered as an allegation of such fact.
Significantly, the name of the accused is set forth, not in the
body of the Information, but only in the opening paragraph.
The name of the accused is a fundamental element of every
Information and is crucial to its validity. If the preamble can
validly contain such an essential element as the name of the
accused, there appears to be no logical reason why it cannot
likewise contain the equally essential allegations on the
qualifying circumstances.
Moreover, the opening paragraph bears the operative word
"accuses," which sets in motion the constitutional process of
notification, and formally makes the person being charged with
the commission of the offense an accused. Verily, without the
opening paragraph, the accusatory portion would be nothing
but a useless and miserably incomplete narration of facts, and
the entire Information would be a functionally sterile charge
sheet; thus, making it impossible for the state to prove its case.
The information sheet must be considered, not by sections or
parts, but as one whole document serving one purpose, i.e., to
inform the accused why the full panoply of state authority is
being marshalled against him. Our task is not to determine
whether allegations in an indictment could have been more
artfully and exactly written, but solely to ensure that the
constitutional requirement of notice has been fulfilled.
Accordingly, the sufficiency of the allegations of qualifying

circumstances therein must be judged objectively, and

measured by practical considerations. Allegations of qualifying
circumstances should not be declared insufficient merely by
virtue of a perceived formal defect in their locations, which do
not otherwise prejudice the substantial rights of the accused.
As long as they are adequately pleaded within the four corners
of the charge sheet, as in the instant case, they could not be
invalidated by the fact that they are found only in the
introductory paragraph.
We fail to see how the relative positioning of the qualifying
circumstances in an Information could possibly transgress the
constitutional right of an accused to be informed of the nature
and cause of accusation against him. All that this fundamental
right signifies is that the accused should be given the
necessary data as to why he is being prosecuted against. This
is to enable him to intelligently prepare for his defense, and
prevent surprises during the trial.
Parenthetically, can it be tenably argued that simply because a
qualifying circumstance was averred in the opening paragraph
of the Information, the accused was not informed of this vital
information which could aid him in his defense? Certainly not.
It must be emphasized that in a typical Information, the
preamble always precedes the accusatory portion. As such, it
would be incongruous if not absurd to assume that the
accused in reading the Information would limit himself to the
accusatory portion and totally disregard the rest of the charge
sheet.
A cursory reading of the Information hereto fore recited readily
reveals more than satisfactory compliance with the Rules,
specifically Sec. 8, Rule 110, of the 2000 Revised Rules of
Criminal Procedure. Unquestionably, there is concurrence in
the allegations of relationship and minority in the Information.
Since the preamble or caption, in the case at bar, states that
Rogelio Villanueva is "her father" (referring to Reseilleta), then
it adequately informed the accused that his daughter was
charging him of the acts contained in the succeeding
paragraph. The qualifying circumstance of relationship must
accordingly be appreciated against the appellant herein. No
constitutional right of the appellant has been invaded or

infringed, for he was properly apprised of the existence of this

circumstance.
Finally, were we to persist in the mistaken belief on the
necessity of stating the qualifying circumstances strictly and
exclusively in the accusatory paragraph of an Information, we
would be placing premium on a highly technical and artificial
rule of form, and completely sacrificing the substance, purpose
and reason for the indictment. We believe that this
requirement is without any corresponding benefit to the
interest of justice. On the contrary, it is only bound to unduly
burden our prosecutorial agencies and, worse, provide
criminals with a convenient avenue to elude the punishment
they truly deserve.
In light of the foregoing, our rulings in People v. Bali-balita,
People v. Rodriguez and companion cases, insofar as they are
inconsistent with this pronouncement, are modified or
overturned for obvious reasons. At any rate, the crime in the
instant case was committed before the Bali-balita and
Rodriguez cases were promulgated.
Under Art. 335 of The Revised Penal Code, as amended by RA
7659, the death penalty is imposed for the crime of rape if "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."
Fortunately for appellant, he would be spared this extreme
punishment. The minority of the victim and her relationship to
the offender constitute special qualifying circumstances, which
must both be sufficiently alleged and proved. While the
relationship between appellant and Reseilleta was adequately
established during the trial by the admission of no less than
appellant himself, the prosecution evidence is quite anemic to
prove the minority of the victim.
A careful reading of the records would show a perceivable
variance as to age, i.e., whether the victim was fourteen (14),
fifteen (15), sixteen (16) or seventeen (17) years of age at the
time of the commission of the offense. First, the victim testified

that she was born on 15 March 1981, yet at the time she was
raped on 12 December 1996 she claimed that she was only
fourteen (14) years old, instead of fifteen (15) years old;23
second, Estelita Villanueva, mother of the victim, confirmed on
the witness stand that Reseilleta was eighteen (18) years old at
the time she testified on 6 January 1998 or a little over one (1)
year after the rape, which means that Reseilleta was seventeen
(17) years old, not fourteen (14), nor fifteen (15), nor sixteen
(16) years of age, at the time of the rape;24 third, the trial court
held that the victim was "fourteen (14) years old at the time of
the incident;"25 and fourth, the medical report of Dr. Diaz on
Reseilleta Villanueva, Exh. "B," shows an entry that the victim
was born on 15 March 1979, which makes her seventeen (17)
years old when she was raped on 12 December 1996.
Verily, we find no independent evidence on record that could
accurately show the age of the victim. In the absence of
adequate proof as to her exact age, the Court will consider only
the qualifying circumstance of relationship between appellant
and his victim. We have held that the minority of the victim
must be proved with equal certainty and clearness as the crime
itself. Failure to sufficiently establish the victims age will bar
any finding of rape in its qualified form. While it may be argued
that the victim herein, in any case, was below eighteen (18) of
age, nevertheless we give the benefit of the doubt to the
appellant in view of the confusion as to the precise age of
Reseilleta. Accordingly, the Court resolves to impose on
appellant the lower penalty of reclusion perpetua.26
In accordance with prevailing jurisprudence, the award of
P50,000.00 as civil indemnity in favor of the victim is in
order.27 In addition, the award of P50,000.00 as moral
damages is justified, conformably with our pronouncement in
People v. Pagsanhan.28
WHEREFORE, the Decision appealed from is AFFIRMED,
subject to the MODIFICATION that appellant ROGELIO
VILLANUEVA is found guilty of simple rape and is sentences to
reclusion perpetua. He is further ordered to pay his victim
Reseilleta Villanueva the amount of P50,000.00 as civil
indemnity, and another P50,000.00 as moral damages, with
costs against appellant. SO ORDERED.

EN BANC
G.R. No. 148468

January 28, 2003

ATTY. EDWARD SERAPIO, petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE
PHILIPPINES, and PHILIPPINE NATIONAL POLICE
DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.
x---------------------------------------------------------x
G.R. No. 148769

January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
x---------------------------------------------------------x
G.R. No. 149116

January 28, 2003

EDWARD SERAPIO, petitioner,

vs.
HONORABLE SANDIGANBAYAN (THIRD DIVISION) and
PEOPLE OF THE PHILIPPINES, respondents.
CALLEJO, SR., J.:
Before the Court are two petitions for certiorari filed by
petitioner Edward Serapio, assailing the resolutions of the
Third Division of the Sandiganbayan denying his petition for
bail, motion for a reinvestigation and motion to quash, and a
petition for habeas corpus, all in relation to Criminal Case No.
26558 for plunder wherein petitioner is one of the accused
together with former President Joseph E. Estrada, Jose
"Jinggoy" P. Estrada and several others.
The records show that petitioner was a member of the Board of
Trustees and the Legal Counsel of the Erap Muslim Youth
Foundation, a non-stock, non-profit foundation established in
February 2000 ostensibly for the purpose of providing
educational opportunities for the poor and underprivileged but

deserving Muslim youth and students, and support to research

and advance studies of young Muslim educators and
scientists.
Sometime in April 2000, petitioner, as trustee of the
Foundation, received on its behalf a donation in the amount of
Two Hundred Million Pesos (P200 Million) from Ilocos Sur
Governor Luis "Chavit" Singson through the latter's assistant
Mrs. Yolanda Ricaforte. Petitioner received the donation and
turned over the said amount to the Foundation's treasurer who
later deposited it in the Foundation's account with the
Equitable PCI Bank.
In the latter part of the year 2000, Gov. Singson publicly
accused then President Joseph E. Estrada and his cohorts of
engaging in several illegal activities, including its operation on
the illegal numbers game known as jueteng. This triggered the
filing with the Office of the Ombudsman of several criminal
complaints against Joseph Estrada, Jinggoy Estrada and
petitioner, together with other persons. Among such
complaints were: Volunteers Against Crime and Corruption,
versus Joseph Ejercito Estrada, Edward Serapio, et al.,
docketed as OMB Crim. Case No. 0-00-1754; Graft Free
Philippines Foundation, Inc., versus Joseph Ejercito Estrada,
Edward Serapio, et al., docketed as OMB Crim. Case No. 0-001755; and Leonardo De Vera, Romeo T. Capulong and Dennis B.
Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward
Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma,
docketed as OMB Crim. Case No. 0-00-1757.
Subsequently, petitioner filed his Counter-Affidavit dated
February 21, 2001. The other respondents likewise filed their
respective counter-affidavits. The Office of the Ombudsman
conducted a preliminary investigation of the complaints and on
April 4, 2001, issued a joint resolution recommending, inter
alia, that Joseph Estrada, petitioner and several others be
charged with the criminal offense of plunder.
On April 4, 2001, the Ombudsman filed with the
Sandiganbayan several Informations against former President
Estrada, who earlier had resigned from his post as President of
the Republic of the Philippines. One of these Informations,

docketed as Criminal Case No. 26558, charged Joseph Estrada

with plunder. On April 18, 2001, the Ombudsman filed an
amended Information in said case charging Estrada and
several co-accused, including petitioner, with said crime. No
bail was recommended for the provisional release of all the
accused, including petitioner. The case was raffled to a special
division which was subsequently created by the Supreme
Court. The amended Information reads:
"That during the period from June, 1998 to January, 2001, in
the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, THEN A PUBLIC
OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by himself AND/OR in
CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE
OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE
AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A
combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on
SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT
OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE
'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND JANE DOES in

consideration OF TOLERATION OR PROTECTION OF ILLEGAL

GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting
OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more
or less, representing a portion of the TWO HUNDRED MILLION
PESOS [P200,000,000.00]) tobacco excise tax share allocated
for the Province of Ilocos Sur under R.A. No. 7171, BY
HIMSELF AND/OR in CONNIVANCE with co-accused Charlie
'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance
System (GSIS) TO PURCHASE, 351,878,000 SHARES OF
STOCKS, MORE OR LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF
THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN
PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION
SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED
FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING,
DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS [189,700,000.00]
MORE OR LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI
BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS,
GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM

OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN

DOES AND JANE DOES, the amount of MORE OR LESS
THREE BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE SAME UNDER
HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLEPCI BANK.

The Sandiganbayan set the arraignment of the accused,

including petitioner, in Criminal Case No. 26558 on June 27,
2001. In the meantime, on April 27, 2001, petitioner filed with
the Sandiganbayan an Urgent Petition for Bail which was set
for hearing on May 4, 2001.6 For his part, petitioner's coaccused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very
Urgent Omnibus Motion alleging that he was entitled to bail as
a matter of right.

CONTRARY TO LAW."1

During the hearing on May 4, 2001 on petitioner's Urgent

Petition for Bail, the prosecution moved for the resetting of the
arraignment of the accused earlier than the June 27, 2001
schedule. However, the Sandiganbayan denied the motion of
the prosecution and issued an order declaring that the petition
for bail can and should be heard before petitioner's
arraignment on June 27, 2001 and even before the other
accused in Criminal Case No. 26558 filed their respective
petitions for bail. Accordingly, the Sandiganbayan set the
hearing for the reception of evidence on petitioner's petition for
bail on May 21 to 25, 2001.

On April 5, 2001, petitioner obtained a copy of the

Ombudsman's Joint Resolution finding probable cause against
him for plunder. The next day, April 6, 2001, he filed with the
Office of the Ombudsman a Motion for Reconsideration and/or
Reinvestigation.2 Petitioner likewise filed on said date, this time
with the Sandiganbayan, an Urgent Omnibus Motion: (a) To
Hold in Abeyance the Issuance of Warrant of Arrest and
Further Proceedings; (b) To Conduct a Determination of
Probable Cause; (c) For Leave to File Accused's Motion for
Reconsideration and/or Reinvestigation; and (d) To Direct the
Ombudsman to Conduct a Reinvestigation of the Charges
against accused Edward Serapio.3
On April 10, 2001, the Ombudsman issued an order denying
petitioner's motion for reconsideration and/or reinvestigation
on the ground of lack of jurisdiction since the amended
Information charging petitioner with plunder had already been
filed with the Sandiganbayan.4
In a parallel development, the Sandiganbayan issued a
Resolution on April 25, 2001 in Criminal Case No. 26558
finding probable cause to justify the issuance of warrants of
arrest for the accused, including petitioner. Accordingly, the
Sandiganbayan issued an Order on the same date for the
arrest of petitioner.5 When apprised of said order, petitioner
voluntarily surrendered at 9:45 p.m. on the same day to
Philippine National Police Chief Gen. Leandro Mendoza.
Petitioner has since been detained at Camp Crame for said
charge.

On May 17, 2001, four days before the hearing on petitioner's

petition for bail, the Ombudsman filed an urgent motion for
early arraignment of Joseph Estrada, Jinggoy Estrada and
petitioner and a motion for joint bail hearings of Joseph
Estrada, Jinggoy Estrada and petitioner. The following day,
petitioner filed a manifestation questioning the propriety of
including Joseph Estrada and Jinggoy Estrada in the hearing
on his (petitioner's) petition for bail.
The Sandiganbayan issued a Resolution on May 18, 2001
resetting the hearings on petitioner's petition for bail to June
18 to 28, 2001 to enable the court to resolve the prosecution's
pending motions as well as petitioner's motion that his petition
for bail be heard as early as possible, which motion the
prosecution opposed.
On May 31, 2001, the Sandiganbayan issued a Resolution
denying petitioner's April 6, 2001 Urgent Omnibus Motion. The
court ruled that the issues posed by petitioner had already
been resolved in its April 25, 2001 Resolution finding probable
cause to hold petitioner and his co-accused for trial.7 Petitioner

filed a motion for reconsideration of the said May 31, 2001

Resolution.
On June 1, 2001, the Sandiganbayan issued a resolution
requiring the attendance of petitioner as well as all the other
accused in Criminal Case No. 26558 during the hearings on
the petitions for bail under pain of waiver of crossexamination. The Sandiganbayan, citing its inherent powers to
proceed with the trial of the case in the manner it determines
best conducive to orderly proceedings and speedy termination
of the case, directed the other accused to participate in the
said bail hearing considering that under Section 8, Rule 114 of
the Revised Rules of Court, whatever evidence is adduced
during the bail hearing shall be considered automatically
reproduced at the trial.8
However, instead of proceeding with the bail hearing set by it
on June 18, 2001, the Sandiganbayan issued an Order on
June 15, 2001 canceling the said bail hearing due to pending
incidents yet to be resolved and reset anew the hearing to June
26, 2001.9
On the eve of said hearing, the Sandiganbayan issued a
resolution denying petitioner's motion for reconsideration of its
May 31, 2001 Resolution. The bail hearing on June 26, 2001
did not again proceed because on said date petitioner filed with
the Sandiganbayan a motion to quash the amended
Information on the grounds that as against him, the amended
Information does not allege a combination or series of overt or
criminal acts constitutive of plunder; as against him, the
amended Information does not allege a pattern of criminal acts
indicative of an overall unlawful scheme or conspiracy; the
money alleged in paragraph (a) of the amended Information to
have been illegally received or collected does not constitute "illgotten wealth" as defined in Section 1(d) of Republic Act No.
7080; and the amended Information charges him of bribery
and illegal gambling.10 By way of riposte, the prosecution
objected to the holding of bail hearing until petitioner agreed to
withdraw his motion to quash. The prosecution contended that
petitioner's motion to quash the amended Information was
antithetical to his petition for bail.

The Sandiganbayan reset the arraignment of accused and the

hearing on the petition for bail of petitioner in Criminal Case
No. 26558 for July 10, 2001 to enable it to resolve the pending
incidents and the motion to quash of petitioner. However, even
before the Sandiganbayan could resolve the pending motions of
petitioner and the prosecution, petitioner filed with this Court
on June 29, 2001 a Petition for Habeas Corpus and Certiorari,
docketed as G.R. No. 148468, praying that the Court declare
void the questioned orders, resolutions and actions of the
Sandiganbayan on his claim that he was thereby effectively
denied of his right to due process. Petitioner likewise prayed for
the issuance of a writ of habeas corpus; that the People be
declared to have waived their right to present evidence in
opposition to his petition for bail; and, premised on the failure
of the People to adduce strong evidence of petitioner's guilt of
plunder, that he be granted provisional liberty on bail after due
proceedings.11
Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed
with the Sandiganbayan a motion praying that said court
resolve his motion to fix his bail.
On July 9, 2001, the Sandiganbayan issued a Resolution
denying petitioner's motion to quash the amended Information.
Petitioner, through counsel, received on said date a copy of
said resolution.12 The motion to fix bail filed by Jose "Jinggoy"
Estrada was also resolved by the Sandiganbayan.
On July 10, 2001, just before his arraignment in Criminal
Case No. 26558, petitioner manifested to the Sandiganbayan
that he was going to file a motion for reconsideration of the
July 9, 2001 Resolution denying his motion to quash and for
the deferment of his arraignment. The Sandiganbayan,
however, declared that there was no provision in the Rules of
Court or in the Sandiganbayan's rules granting the right to
petitioner to file a motion for the reconsideration of an
interlocutory order issued by it and ordered petitioner to orally
argue his motion for reconsideration. When petitioner refused,
the Sandiganbayan proceeded with his arraignment. Petitioner
refused to plead, impelling the court to enter a plea of not
guilty for him.

On July 20, 2001, petitioner filed with the Court a Petition for
Certiorari, docketed as G.R. No. 148769, alleging that the
Sandiganbayan acted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its July 9, 2001 Resolution denying his
motion to quash, notwithstanding the fact that material
inculpatory allegations of the amended Information against
him do not constitute the crime of plunder; and that he is
charged, under the said amended Information, for more than
one offense. Jose "Jinggoy" Estrada likewise filed petition for
certiorari with the Court docketed as G.R. No. 148965 for the
nullification of a resolution of the Sandiganbayan denying his
motion to fix bail.
On August 9, 2001, petitioner filed with the Court another
Petition for Certiorari, docketed as G.R. No. 149116, assailing
the Sandiganbayan's Resolution dated 31 May 2001 which
denied his April 6, 2001 Urgent Omnibus Motion and its June
25, 2001 Resolution denying his motion for reconsideration of
its May 31, 2001 Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN
DENYING PETITIONER SERAPIO'S MOTION TO QUASH
NOTWITHSTANDING THAT
I
THE FACTS ALLEGED IN THE AMENDED INFORMATION AS
AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE
CRIME OF PLUNDER.
A The Amended Information, as against petitioner Serapio, does
not allege a combination or series of overt or criminal acts
constitutive of plunder.

B The Amended Information, as against petitioner Serapio, does

not allege a pattern of criminal acts indicative of an overall
unlawful scheme or conspiracy.
C The money described in paragraph (a) of the Amended
Information and alleged to have been illegally received or
collected does not constitute 'ill-gotten wealth' as defined in
Section 1(d), Republic Act No. 7080, as amended.
II
THE AMENDED INFORMATION CHARGES MORE THAN ONE
OFFENSE."13
Petitioner asserts that, on the face of the amended Information,
he is charged with plunder only in paragraph (a) which reads:
"(a) by receiving OR collecting, directly or indirectly, on
SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT
OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with co-accused CHARLIE
'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;"14
Petitioner asserts that there is no allegation in paragraph (a) of
the amended Information of a "combination or series of overt or
criminal acts" constituting plunder as described in Section 1(d)
of R.A. 7080 as amended. Neither does the amended
Information allege "a pattern of criminal acts." He avers that
his single act of toleration or protection of illegal gambling
impelled by a single criminal resolution does not constitute the
requisite "combination or series of acts" for plunder. He further
claims that the consideration consisting of gifts, percentages or
kickbacks in furtherance of said resolution turned over to and
received by former President Joseph E. Estrada "on several
occasions" does not cure the defect in the amended
information. Petitioner insists that on the face of the amended

Information he is charged only with bribery or illegal gambling

and not of plunder.
Petitioner argues that the P540 million which forms part of the
P4,097,804,173.17 amassed by former President Joseph E.
Estrada in confabulation with his co-accused is not ill-gotten
wealth as defined in Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6, Rule 110 of the
Revised Rules of Criminal Procedure provides that:
"Sec. 6 Sufficiency of complaint or information. A complaint
or information is sufficient if it states the name of the accused,
the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of
the offense; and the place where the offense was committed.
When the offense was committed by more than one person, all
of them shall be included in the complaint or information."15
The acts or omissions complained or must be alleged in such
form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged
and enable the court to know the proper judgment. The
Information must allege clearly and accurately the elements of
the crime charged. What facts and circumstances are
necessary to be included therein must be determined by
reference to the definition and elements of the specific crimes.
The purpose of the requirement of alleging all the elements of
the crime in the Information is to inform an accused of the
nature of the accusation against him so as to enable him to
suitably prepare for his defense.16 Another purpose is to enable
accused, if found guilty, to plead his conviction in a
subsequent prosecution for the same offense.17 The use of
derivatives or synonyms or allegations of basic facts
constituting the offense charged is sufficient.18
In this case, the amended Information specifically alleges that
all the accused, including petitioner, connived and conspired
with former President Joseph E. Estrada to commit plunder
"through any or a combination or a series of overt or criminal
acts or similar schemes or means." And in paragraph (a) of the

amended Information, petitioner and his co-accused are

charged with receiving or collecting, directly or indirectly, on
several instances money in the aggregate amount of
P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan
(Third Division), et al.,19 we held that the word "series" is
synonymous with the clause "on several instances"; it refers to
a repetition of the same predicate act in any of the items in
Section 1(d) of the law. We further held that the word
"combination" contemplates the commission of at least any two
different predicate acts in any of the said items. We ruled that
"plainly, subparagraph (a) of the amended information charges
accused therein, including petitioner, with plunder committed
by a series of the same predicate act under Section 1(d)(2) of
the law" and that:
"x x x Sub-paragraph (a) alleged the predicate act of receiving,
on several instances, money from illegal gambling, in
consideration of toleration or protection of illegal gambling, and
expressly names petitioner as one of those who conspired with
former President Estrada in committing the offense. This
predicate act corresponds with the offense described in item [2]
of the enumeration in Section 1(d) of R.A. No. 7080. x x x."20
It is not necessary to allege in the amended Information a
pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy because as Section 3 of R.A.
7080 specifically provides, the same is evidentiary and the
general rule is that matters of evidence need not be alleged in
the Information.21
The Court also ruled in Jose "Jinggoy" Estrada vs.
Sandiganbayan22 that the aggregate amount of
P4,097,804,173.17 inclusive of the P545 million alleged in
paragraph (a) of the amended information is ill-gotten wealth
as contemplated in Section 1, paragraph 1(d) of Republic Act
7080, as amended, and that all the accused in paragraph (a) to
(d) of the amended information conspired and confederated
with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate
amount of P4,097,804,173.17.

Under the amended Information, all the accused, including

petitioner, are charged of having conspired and confabulated
together in committing plunder. When two or more persons
conspire to commit a crime, each is responsible for all the acts
of others. In contemplation of law, the act of the conspirator is
the act of each of them.23 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 declarations of each,
while in the pursuit of the common design, are the acts, words
and declarations of all.24
Petitioner asserts that he is charged under the amended
information of bribery and illegal gambling and others. The
Sandiganbayan, for its part, held that petitioner is not charged
with the predicate acts of bribery and illegal gambling but is
charged only with one crime that of plunder:
"THE ISSUE OF WHETHER OR NOT THE INFORMATION
CHARGES MORE THAN ONE OFFENSE
According to the accused Estradas and Edward Serapio the
information charges more than one offense, namely, bribery
(Article 210 of the Revised Penal Code), malversation of public
funds or property (Article 217, Revised Penal Code) and
violations of Sec. 3(e) of Republic Act (RA No. 3019) and
Section 7(d) of RA 6713.
This contention is patently unmeritorious. The acts alleged in
the information are not charged as separate offenses but as
predicate acts of the crime of plunder.
It should be stressed that the Anti-Plunder law specifically
Section 1(d) thereof does not make any express reference to
any specific provision of laws, other than R.A. No. 7080, as
amended, which coincidentally may penalize as a separate
crime any of the overt or criminal acts enumerated therein. The
said acts which form part of the combination or series of act
are described in their generic sense. Thus, aside from
'malversation' of public funds, the law also uses the generic
terms 'misappropriation', 'conversion' or 'misuse' of said fund.
The fact that the acts involved may likewise be penalized under
other laws is incidental. The said acts are mentioned only as

predicate acts of the crime of plunder and the allegations

relative thereto are not to be taken or to be understood as
allegations charging separate criminal offenses punished under
the Revised Penal Code, the Anti-Graft and Corrupt Practices
Act and Code of Conduct and Ethical Standards for Public
Officials and Employees."25
This Court agrees with the Sandiganbayan. It is clear on the
face of the amended Information that petitioner and his coaccused are charged only with one crime of plunder and not
with the predicate acts or crimes of plunder. It bears stressing
that the predicate acts merely constitute acts of plunder and
are not crimes separate and independent of the crime of
plunder. Resultantly then, the petition is dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint Resolution of the
Sandiganbayan denying his April 4, 2001 Urgent Omnibus
Motion contending that:
"GROUNDS FOR THE PETITION
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
SUMMARILY DENYING PETITIONER SERAPIO'S URGENT
OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE:
RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING
THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED
EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND
MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO
THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO,
AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN
INDICTMENT FOR PLUNDER AS AGAINST PETITIONER
SERAPIO."26
Petitioner claims that the Sandiganbayan committed grave
abuse of discretion in denying his omnibus motion to hold in
abeyance the issuance of a warrant for his arrest as well as the
proceedings in Criminal Case No. 26558; to conduct a
determination of probable cause; and to direct the
Ombudsman to conduct a reinvestigation of the charges him.

Petitioner asseverates that the Ombudsman had totally

disregarded exculpatory evidence and committed grave abuse
of discretion in charging him with plunder. He further argues
that there exists no probable cause to support an indictment
for plunder as against him.27
Petitioner points out that the joint resolution of the
Ombudsman does not even mention him in relation to the
collection and receipt of jueteng money which started in 199828
and that the Ombudsman inexplicably arrived at the
conclusion that the Erap Muslim Youth Foundation was a
money laundering front organization put up by Joseph
Estrada, assisted by petitioner, even though the latter
presented evidence that said Foundation is a bona fide and
legitimate private foundation.29 More importantly, he claims,
said joint resolution does not indicate that he knew that the
P200 million he received for the Foundation came from
jueteng.30
Petitioner insists that he cannot be charged with plunder
since: (1) the P200 million he received does not constitute "illgotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2)
there is no evidence linking him to the collection and receipt of
jueteng money;32 (3) there was no showing that petitioner
participated in a pattern of criminal acts indicative of an
overall unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth, or that his act of receiving the
P200 million constitutes an overt criminal act of plunder.33
Petitioner argues further that his motion for reinvestigation is
premised on the absolute lack of evidence to support a finding
of probable cause for plunder as against him,34 and hence he
should be spared from the inconvenience, burden and expense
of a public trial.35
Petitioner also avers that the discretion of government
prosecutors is not beyond judicial scrutiny. He asserts that
while this Court does not ordinarily look into the existence of
probable cause to charge a person for an offense in a given
case, it may do so in exceptional circumstances, which are
present in this case: (1) to afford adequate protection to the
constitutional rights of the accused; (2) for the orderly

administration of justice or to avoid oppression; (3) when the

acts of the officer are without or in excess of authority; and (4)
where the charges are manifestly false and motivated by the
lust for vengeance.36 Petitioner claims that he raised proper
grounds for a reinvestigation by asserting that in issuing the
questioned joint resolution, the Ombudsman disregarded
evidence exculpating petitioner from the charge of plunder and
committed errors of law or irregularities which have been
prejudicial to his interest.37 He also states that during the joint
preliminary investigations for the various charges against
Joseph Estrada and his associates, of which the plunder
charge was only one of the eight charges against Estrada et al.,
he was not furnished with copies of the other complaints nor
given the opportunity to refute the evidence presented in
relation to the other seven cases, even though the evidence
presented therein were also used against him, although he was
only charged in the plunder case.38
The People maintain that the Sandiganbayan committed no
grave abuse of discretion in denying petitioner's omnibus
motion. They assert that since the Ombudsman found
probable cause to charge petitioner with the crime of plunder,
the Sandiganbayan is bound to assume jurisdiction over the
case and to proceed to try the same. They further argue that "a
finding of probable cause is merely preliminary and prefatory
of the eventual determination of guilt or innocence of the
accused," and that petitioner still has the chance to interpose
his defenses in a full blown trial where his guilt or innocence
may finally be determined.39
The People also point out that the Sandiganbayan did not
commit grave abuse of discretion in denying petitioner's
omnibus motion asking for, among others, a reinvestigation by
the Ombudsman, because his motion for reconsideration of the
Ombudsman's joint resolution did not raise the grounds of
either newly discovered evidence, or errors of law or
irregularities, which under Republic Act No. 6770 are the only
grounds upon which a motion for reconsideration may be
filed.40

The People likewise insist that there exists probable cause to

charge petitioner with plunder as a co-conspirator of Joseph
Estrada.41
This Court does not agree with petitioner.
Case law has it that the Court does not interfere with the
Ombudsman's discretion in the conduct of preliminary
investigations. Thus, in Raro vs. Sandiganbayan42 , the Court
ruled:
"x x x. In the performance of his task to determine probable
cause, the Ombudsman's discretion is paramount. Thus, in
Camanag vs. Guerrero, this Court said:
'x x x. (S)uffice it to state that this Court has adopted a policy
of non-interference in the conduct of preliminary
investigations, and leaves to the investigating prosecutor
sufficient latitude of discretion in the exercise of determination
of what constitutes sufficient evidence as will establish
'probable cause' for filing of information against the supposed
offender."
In Cruz, Jr. vs. People,43 the Court ruled thus:
"Furthermore, the Ombudsman's findings are essentially
factual in nature. Accordingly, in assailing said findings on the
contention that the Ombudsman committed a grave abuse of
discretion in holding that petitioner is liable for estafa through
falsification of public documents, petitioner is clearly raising
questions of fact here. His arguments are anchored on the
propriety or error in the Ombudsman's appreciation of facts.
Petitioner cannot be unaware that the Supreme Court is not a
trier of facts, more so in the consideration of the extraordinary
writ of certiorari where neither question of fact nor even of law
are entertained, but only questions of lack or excess of
jurisdiction or grave abuse of discretion. Insofar as the third
issue is concerned, we find that no grave abuse of discretion
has been committed by respondents which would warrant the
granting of the writ of certiorari."
Petitioner is burdened to allege and establish that the
Sandiganbayan and the Ombudsman for that matter

committed grave abuse of discretion in issuing their resolution

and joint resolution, respectively. Petitioner failed to discharge
his burden. Indeed, the Court finds no grave abuse of
discretion on the part of the Sandiganbayan and the
Ombudsman in finding probable cause against petitioner for
plunder. Neither did the Sandiganbayan abuse its discretion in
denying petitioner's motion for reinvestigation of the charges
against him in the amended Information. In its Resolution of
April 25, 2001, the Sandiganbayan affirmed the finding of the
Ombudsman that probable cause exists against petitioner and
his co-accused for the crime of plunder, thus:
"In the light of the foregoing and considering the allegations of
the Amended Information dated 18 April 2001 charging the
accused with the offense of PLUNDER and examining carefully
the evidence submitted in support thereof consisting of the
affidavits and sworn statements and testimonies of prosecution
witnesses and several other pieces of documentary evidence, as
well as the respective counter-affidavits of accused former
President Joseph Estrada dated March 20, 2001, Jose
"Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda
T. Ricaforte dated January 21, 2001 and Edward S. Serapio
dated February 21, 2001, the Court finds and so holds that
probable cause for the offense of PLUNDER exists to justify
issuance of warrants of arrest of accused former President
Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie
"Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan
or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44
Likewise, in its Resolution dated May 31, 2001 of petitioner's
omnibus motion, the Sandiganbayan noted that a preliminary
investigation was fully conducted in accordance with Rule II,
Administrative Order No. 7 of the Office of the Ombudsman,
pursuant to Sections 18, 23 and 27 of Republic Act No. 6770
(The Ombudsman Act of 1989); and that all the basic
complaints and evidence in support thereof were served upon
all the accused.45 It was in light of such findings that the
Sandiganbayan held that there was no basis for the allegation
that accused therein (including petitioner) were deprived of the
right to seek a reconsideration of the Ombudsman's Resolution
dated April 4, 2001 finding probable cause to charge them with

plunder after the conduct of preliminary investigation in

connection therewith. In addition, the Sandiganbayan pointed
out that petitioner filed a motion for reconsideration of the
Ombudsman's resolution, but failed to show in his motion that
there were newly discovered evidence, or that the preliminary
investigation was tainted by errors of law or irregularities,
which are the only grounds for which a reconsideration of the
Ombudsman's resolution may be granted.46
It bears stressing that the right to a preliminary investigation is
not a constitutional right, but is merely a right conferred by
statute.47 The absence of a preliminary investigation does not
impair the validity of the Information or otherwise render the
same defective and neither does it affect the jurisdiction of the
court over the case or constitute a ground for quashing the
Information.48 If the lack of a preliminary investigation does
not render the Information invalid nor affect the jurisdiction of
the court over the case, with more reason can it be said that
the denial of a motion for reinvestigation cannot invalidate the
Information or oust the court of its jurisdiction over the case.
Neither can it be said that petitioner had been deprived of due
process. He was afforded the opportunity to refute the charges
against him during the preliminary investigation.
The purpose of a preliminary investigation is merely to
determine whether a crime has been committed and whether
there is probable cause to believe that the person accused of
the crime is probably guilty thereof and should be held for
trial.49 As the Court held in Webb vs. De Leon, "[a] finding of
probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was
committed by the suspect. Probable cause need not be based
on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not
on evidence establishing absolute certainty of guilt.''50
Absent any showing of arbitrariness on the part of the
prosecutor or any other officer authorized to conduct
preliminary investigation, courts as a rule must defer to said
officer's finding and determination of probable cause, since the
determination of the existence of probable cause is the
function of the prosecutor.51 The Court agrees with the

Sandiganbayan that petitioner failed to establish that the

preliminary investigation conducted by the Ombudsman was
tainted with irregularity or that its findings stated in the joint
resolution dated April 4, 2001 are not supported by the facts,
and that a reinvestigation was necessary.
Certiorari will not lie to invalidate the Sandiganbayan's
resolution denying petitioner's motion for reinvestigation since
there is nothing to substantiate petitioner's claim that it
gravely abused its discretion in ruling that there was no need
to conduct a reinvestigation of the case.52
The ruling in Rolito Go vs. Court of Appeals53 that an accused
shall not be deemed to have waived his right to ask for a
preliminary investigation after he had been arraigned over his
objection and despite his insistence on the conduct of said
investigation prior to trial on the merits does not apply in the
instant case because petitioner merely prayed for a
reinvestigation on the ground of a newly-discovered evidence.
Irrefragably, a preliminary investigation had been conducted by
the Ombudsman prior to the filing of the amended Information,
and that petitioner had participated therein by filing his
counter-affidavit. Furthermore, the Sandiganbayan had
already denied his motion for reinvestigation as well as his
motion for reconsideration thereon prior to his arraignment.54
In sum then, the petition is dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the petition and the
pleadings of the parties, the issues for resolution are: (1)
Whether or not petitioner should first be arraigned before
hearings of his petition for bail may be conducted; (2) Whether
petitioner may file a motion to quash the amended Information
during the pendency of his petition for bail; (3) Whether a joint
hearing of the petition for bail of petitioner and those of the
other accused in Criminal Case No. 26558 is mandatory; (4)
Whether the People waived their right to adduce evidence in
opposition to the petition for bail of petitioner and failed to
adduce strong evidence of guilt of petitioner for the crime
charged; and (5) Whether petitioner was deprived of his right to

due process in Criminal Case No. 26558 and should thus be

released from detention via a writ of habeas corpus.
On the first issue, petitioner contends that the Sandiganbayan
committed a grave abuse of its discretion amounting to excess
or lack of jurisdiction when it deferred the hearing of his
petition for bail to July 10, 2001, arraigned him on said date
and entered a plea of not guilty for him when he refused to be
arraigned. He insists that the Rules on Criminal Procedure, as
amended, does not require that he be arraigned first prior to
the conduct of bail hearings since the latter can stand alone
and must, of necessity, be heard immediately.55 Petitioner
maintains that his arraignment before the bail hearings are set
is not necessary since he would not plead guilty to the offense
charged, as is evident in his earlier statements insisting on his
innocence during the Senate investigation of the jueteng
scandal and the preliminary investigation before the
Ombudsman.56 Neither would the prosecution be prejudiced
even if it would present all its evidence before his arraignment
because, under the Revised Penal Code, a voluntary confession
of guilt is mitigating only if made prior to the presentation of
evidence for the prosecution,57 and petitioner admitted that he
cannot repudiate the evidence or proceedings taken during the
bail hearings because Rule 114, Section 8 of the Revised Rules
of Court expressly provides that evidence present during bail
hearings are automatically reproduced during the trial.58
Petitioner likewise assures the prosecution that he is willing to
be arraigned prior to the posting of a bail bond should he be
granted bail.59
The People insist that arraignment is necessary before bail
hearings may be commenced, because it is only upon
arraignment that the issues are joined. The People stress that
it is only when an accused pleads not guilty may he file a
petition for bail and if he pleads guilty to the charge, there
would be no more need for him to file said petition. Moreover,
since it is during arraignment that the accused is first
informed of the precise charge against him, he must be
arraigned prior to the bail hearings to prevent him from later
assailing the validity of the bail hearings on the ground that he
was not properly informed of the charge against him, especially
considering that, under Section 8, Rule 114 of the Revised

Rules of Court, evidence presented during such proceedings

are considered automatically reproduced at the trial.60
Likewise, the arraignment of accused prior to bail hearings
diminishes the possibility of an accused's flight from the
jurisdiction of the Sandiganbayan because trial in absentia
may be had only if an accused escapes after he has been
arraigned.61 The People also contend that the conduct of bail
hearings prior to arraignment would extend to an accused the
undeserved privilege of being appraised of the prosecution's
evidence before he pleads guilty for purposes of penalty
reduction.62
Although petitioner had already been arraigned on July 10,
2001 and a plea of not guilty had been entered by the
Sandiganbayan on his behalf, thereby rendering the issue as to
whether an arraignment is necessary before the conduct of bail
hearings in petitioner's case moot, the Court takes this
opportunity to discuss the controlling precepts thereon
pursuant to its symbolic function of educating the bench and
bar.63
The contention of petitioner is well-taken. The arraignment of
an accused is not a prerequisite to the conduct of hearings on
his petition for bail. A person is allowed to petition for bail as
soon as he is deprived of his liberty by virtue of his arrest or
voluntary surrender.64 An accused need not wait for his
arraignment before filing a petition for bail.
In Lavides vs. Court of Appeals,65 this Court ruled on the issue
of whether an accused must first be arraigned before he may
be granted bail. Lavides involved an accused charged with
violation of Section 5(b) Republic Act No. 7610 (The Special
Protection of Children Against Abuse, Exploitation and
Discrimination Act), an offense punishable by reclusion
temporal in its medium period to reclusion perpetua. The
accused therein assailed, inter alia, the trial court's imposition
of the condition that he should first be arraigned before he is
allowed to post bail. We held therein that "in cases where it is
authorized, bail should be granted before arraignment,
otherwise the accused may be precluded from filing a motion to
quash."66

However, the foregoing pronouncement should not be taken to

mean that the hearing on a petition for bail should at all times
precede arraignment, because the rule is that a person
deprived of his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is deprived of his
liberty, even before a complaint or information is filed against
him.67 The Court's pronouncement in Lavides should be
understood in light of the fact that the accused in said case
filed a petition for bail as well as a motion to quash the
informations filed against him. Hence, we explained therein
that to condition the grant of bail to an accused on his
arraignment would be to place him in a position where he has
to choose between (1) filing a motion to quash and thus delay
his release on bail because until his motion to quash can be
resolved, his arraignment cannot be held, and (2) foregoing the
filing of a motion to quash so that he can be arraigned at once
and thereafter be released on bail. This would undermine his
constitutional right not to be put on trial except upon a valid
complaint or Information sufficient to charge him with a crime
and his right to bail.68
It is therefore not necessary that an accused be first arraigned
before the conduct of hearings on his application for bail. For
when bail is a matter of right, an accused may apply for and be
granted bail even prior to arraignment. The ruling in Lavides
also implies that an application for bail in a case involving an
offense punishable by reclusion perpetua to death may also be
heard even before an accused is arraigned. Further, if the court
finds in such case that the accused is entitled to bail because
the evidence against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in such a
situation, bail would be "authorized" under the circumstances.
In fine, the Sandiganbayan committed a grave abuse of its
discretion amounting to excess of jurisdiction in ordering the
arraignment of petitioner before proceeding with the hearing of
his petition for bail.
With respect to the second issue of whether petitioner may file
a motion to quash during the pendency of his petition for bail,
petitioner maintains that a motion to quash and a petition for
bail are not inconsistent, and may proceed independently of
each other. While he agrees with the prosecution that a motion

to quash may in some instances result in the termination of

the criminal proceedings and in the release of the accused
therein, thus rendering the petition for bail moot and
academic, he opines that such is not always the case; hence,
an accused in detention cannot be forced to speculate on the
outcome of a motion to quash and decide whether or not to file
a petition for bail or to withdraw one that has been filed.69 He
also insists that the grant of a motion to quash does not
automatically result in the discharge of an accused from
detention nor render moot an application for bail under Rule
117, Section 5 of the Revised Rules of Court.70
The Court finds that no such inconsistency exists between an
application of an accused for bail and his filing of a motion to
quash. Bail is the security given for the release of a person in
the custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required under
the conditions set forth under the Rules of Court.71 Its purpose
is to obtain the provisional liberty of a person charged with an
offense until his conviction while at the same time securing his
appearance at the trial.72 As stated earlier, a person may apply
for bail from the moment that he is deprived of his liberty by
virtue of his arrest or voluntary surrender.73
On the other hand, a motion to quash an Information is the
mode by which an accused assails the validity of a criminal
complaint or Information filed against him for insufficiency on
its face in point of law, or for defects which are apparent in the
face of the Information.74 An accused may file a motion to
quash the Information, as a general rule, before arraignment.75
These two reliefs have objectives which are not necessarily
antithetical to each other. Certainly, the right of an accused
right to seek provisional liberty when charged with an offense
not punishable by death, reclusion perpetua or life
imprisonment, or when charged with an offense punishable by
such penalties but after due hearing, evidence of his guilt is
found not to be strong, does not preclude his right to assail the
validity of the Information charging him with such offense. It
must be conceded, however, that if a motion to quash a
criminal complaint or Information on the ground that the same
does not charge any offense is granted and the case is

dismissed and the accused is ordered released, the petition for

bail of an accused may become moot and academic.
We now resolve the issue of whether or not it is mandatory that
the hearings on the petitions for bail of petitioner and accused
Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the
trial of the said case as against former President Joseph E.
Estrada be heard jointly.
Petitioner argues that the conduct of joint bail hearings would
negate his right to have his petition for bail resolved in a
summary proceeding since said hearings might be converted
into a full blown trial on the merits by the prosecution.76
For their part, the People claim that joint bail hearings will
save the court from having to hear the same witnesses and the
parties from presenting the same evidence where it would allow
separate bail hearings for the accused who are charged as coconspirators in the crime of plunder.77
In issuing its June 1, 2001 Order directing all accused in
Criminal Case No. 26558 to participate in the bail hearings,
the Sandiganbayan explained that the directive was made was
in the interest of the speedy disposition of the case. It stated:
" x x x The obvious fact is, if the rest of the accused other than
the accused Serapio were to be excused from participating in
the hearing on the motion for bail of accused Serapio, under
the pretext that the same does not concern them and that they
will participate in any hearing where evidence is presented by
the prosecution only if and when they will already have filed
their petitions for bail, or should they decide not to file any,
that they will participate only during the trial proper itself,
then everybody will be faced with the daunting prospects of
having to go through the process of introducing the same
witness and pieces of evidence two times, three times or four
times, as many times as there are petitions for bail filed.
Obviously, such procedure is not conducive to the speedy
termination of a case. Neither can such procedure be
characterized as an orderly proceeding."78
There is no provision in the Revised Rules of Criminal
Procedure or the Rules of Procedure of the Sandiganbayan

governing the hearings of two or more petitions for bail filed by

different accused or that a petition for bail of an accused be
heard simultaneously with the trial of the case against the
other accused. The matter of whether or not to conduct a joint
hearing of two or more petitions for bail filed by two different
accused or to conduct a hearing of said petition jointly with the
trial against another accused is addressed to the sound
discretion of the trial court. Unless grave abuse of discretion
amounting to excess or lack of jurisdiction is shown, the Court
will not interfere with the exercise by the Sandiganbayan of its
discretion.
It may be underscored that in the exercise of its discretion, the
Sandiganbayan must take into account not only the
convenience of the State, including the prosecution, but also
that of the accused and the witnesses of both the prosecution
and the accused and the right of accused to a speedy trial. The
Sandiganbayan must also consider the complexities of the
cases and of the factual and legal issues involving petitioner
and the other accused. After all, if this Court may echo the
observation of the United States Supreme Court, the State has
a stake, with every citizen, in his being afforded our historic
individual protections, including those surrounding criminal
prosecutions. About them, this Court dares not become
careless or complacent when that fashion has become rampant
over the earth.79
It must be borne in mind that in Ocampo vs. Bernabe,80 this
Court held that in a petition for bail hearing, the court is to
conduct only a summary hearing, meaning such brief and
speedy method of receiving and considering the evidence of
guilt as is practicable and consistent with the purpose of the
hearing which is merely to determine the weight of evidence for
purposes of bail. The court does not try the merits or enter into
any inquiry as to the weight that ought to be given to the
evidence against the accused, nor will it speculate on the
outcome of the trial or on what further evidence may be offered
therein. It may confine itself to receiving such evidence as has
reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross-examination of
witnesses, and reducing to a reasonable minimum the amount

of corroboration particularly on details that are not essential to

the purpose of the hearing.
A joint hearing of two separate petitions for bail by two accused
will of course avoid duplication of time and effort of both the
prosecution and the courts and minimizes the prejudice to the
accused, especially so if both movants for bail are charged of
having conspired in the commission of the same crime and the
prosecution adduces essentially the same evident against
them. However, in the cases at bar, the joinder of the hearings
of the petition for bail of petitioner with the trial of the case
against former President Joseph E. Estrada is an entirely
different matter. For, with the participation of the former
president in the hearing of petitioner's petition for bail, the
proceeding assumes a completely different dimension. The
proceedings will no longer be summary. As against former
President Joseph E. Estrada, the proceedings will be a fullblown trial which is antithetical to the nature of a bail hearing.
Moreover, following our ruling in Jose Estrada vs.
Sandiganbayan, supra where we stated that Jose "Jinggoy"
Estrada can only be charged with conspiracy to commit the
acts alleged in sub-paragraph (a) of the amended Information
since it is not clear from the latter if the accused in subparagraphs (a) to (d) thereof conspired with each other to assist
Joseph Estrada to amass ill-gotten wealth, we hold that
petitioner can only be charged with having conspired with the
other co-accused named in sub-paragraph (a) by "receiving or
collecting, directly or indirectly, on several instances, money x
x x from illegal gambling, x x x in consideration of toleration or
protection of illegal gambling.81 Thus, with respect to
petitioner, all that the prosecution needs to adduce to prove
that the evidence against him for the charge of plunder is
strong are those related to the alleged receipt or collection of
money from illegal gambling as described in sub-paragraph (a)
of the amended Information. With the joinder of the hearing of
petitioner's petition for bail and the trial of the former
President, the latter will have the right to cross-examine
intensively and extensively the witnesses for the prosecution in
opposition to the petition for bail of petitioner. If petitioner will
adduce evidence in support of his petition after the prosecution
shall have concluded its evidence, the former President may
insist on cross-examining petitioner and his witnesses. The

joinder of the hearing of petitioner's bail petition with the trial

of former President Joseph E. Estrada will be prejudicial to
petitioner as it will unduly delay the determination of the issue
of the right of petitioner to obtain provisional liberty and seek
relief from this Court if his petition is denied by the respondent
court. The indispensability of the speedy resolution of an
application for bail was succinctly explained by Cooley in his
treatise Constitutional Limitations, thus:
"For, if there were any mode short of confinement which would
with reasonable certainty insure the attendance of the accused
to answer the accusation, it would not be justifiable to inflict
upon him that indignity, when the effect is to subject him in a
greater or lesser degree, to the punishment of a guilty person,
while as yet it is not determined that he has not committed any
crime."82
While the Sandiganbayan, as the court trying Criminal Case
No. 26558, is empowered "to proceed with the trial of the case
in the manner it determines best conducive to orderly
proceedings and speedy termination of the case,"83 the Court
finds that it gravely abused its discretion in ordering that the
petition for bail of petitioner and the trial of former President
Joseph E. Estrada be held jointly. It bears stressing that the
Sandiganbayan itself acknowledged in its May 4, 2001 Order
the "pre-eminent position and superiority of the rights of
[petitioner] to have the matter of his provisional liberty resolved
. . . without unnecessary delay,"84 only to make a volte face and
declare that after all the hearing of petition for bail of petitioner
and Jose "Jinggoy" Estrada and the trial as against former
President Joseph E. Estrada should be held simultaneously. In
ordering that petitioner's petition for bail to be heard jointly
with the trial of the case against his co-accused former
President Joseph E. Estrada, the Sandiganbayan in effect
allowed further and unnecessary delay in the resolution thereof
to the prejudice of petitioner. In fine then, the Sandiganbayan
committed a grave abuse of its discretion in ordering a
simultaneous hearing of petitioner's petition for bail with the
trial of the case against former President Joseph E. Estrada on
its merits.

With respect to petitioner's allegations that the prosecution

tried to delay the bail hearings by filing dilatory motions, the
People aver that it is petitioner and his co-accused who caused
the delay in the trial of Criminal Case No. 26558 by their filing
of numerous manifestations and pleadings with the
Sandiganbayan.85 They assert that they filed the motion for
joint bail hearing and motion for earlier arraignment around
the original schedule for the bail hearings which was on May
2125, 2001.86
They argue further that bail is not a matter of right in capital
offenses.87 In support thereof, they cite Article III, Sec 13 of the
Constitution, which states that
"All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall before
conviction be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required."88
The People also cited Rule 114, Secs. 7 and 4 of the Revised
Rules of Court which provide:
"Sec. 7 Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. No person
charged with a capital offense, or an offense punishable by
reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of
the criminal prosecution.
Sec. 4 Bail, a matter of right, exception. All persons in
custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognizance as prescribed
by law or this Rule x x x (b) and before conviction by the
Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment."89
Irrefragably, a person charged with a capital offense is not
absolutely denied the opportunity to obtain provisional liberty
on bail pending the judgment of his case. However, as to such
person, bail is not a matter of right but is discretionary upon
the court.90 Had the rule been otherwise, the Rules would not

have provided for an application for bail by a person charged

with a capital offense under Rule 114, Section 8 which states:
"Sec. 8 Burden of proof in bail application. At the hearing of
an application for bail filed by a person who is in custody for
the commission of an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution has the burden
of showing that the evidence of guilt is strong. The evidence
presented during the bail hearing shall be considered
automatically reproduced at the trial but, upon motion of
either party, the court may recall any witness for additional
examination unless the latter is dead, outside the Philippines,
or otherwise unable to testify."91
Under the foregoing provision, there must be a showing that
the evidence of guilt against a person charged with a capital
offense is not strong for the court to grant him bail. Thus,
upon an application for bail by the person charged with a
capital offense, a hearing thereon must be conducted, where
the prosecution must be accorded an opportunity to discharge
its burden of proving that the evidence of guilt against an
accused is strong.92 The prosecution shall be accorded the
opportunity to present all the evidence it may deem necessary
for this purpose.93 When it is satisfactorily demonstrated that
the evidence of guilt is strong, it is the court's duty to deny the
application for bail. However, when the evidence of guilt is not
strong, bail becomes a matter of right.94
In this case, petitioner is not entitled to bail as a matter of
right at this stage of the proceedings. Petitioner's claim that the
prosecution had refused to present evidence to prove his guilt
for purposes of his bail application and that the
Sandiganbayan has refused to grant a hearing thereon is not
borne by the records. The prosecution did not waive, expressly
or even impliedly, its right to adduce evidence in opposition to
the petition for bail of petitioner. It must be noted that the
Sandiganbayan had already scheduled the hearing dates for
petitioner's application for bail but the same were reset due to
pending incidents raised in several motions filed by the parties,
which incidents had to be resolved by the court prior to the
bail hearings. The bail hearing was eventually scheduled by the

Sandiganbayan on July 10, 2001 but the hearing did not push
through due to the filing of this petition on June 29, 2001.
The delay in the conduct of hearings on petitioner's application
for bail is therefore not imputable solely to the Sandiganbayan
or to the prosecution. Petitioner is also partly to blame
therefor, as is evident from the following list of motions filed by
him and by the prosecution:
Motions filed by petitioner:

Motion for Joint Bail Hearings of Accused Joseph

Estrada, Jose "Jinggoy" Estrada and Edward Serapio, dated
May 8, 2001;97

Opposition to the Urgent Motion for Reconsideration and

Omnibus Motion to Adjust Earlier Arraignment, dated May 25,
2001;98 and

Omnibus Motion for Examination, Testimony and

Transcription in Filipino, dated June 19, 2001.99

Urgent Omnibus Motion, dated April 6, 2001, for (1) leave

to file motion for reconsideration/reinvestigation and to direct
ombudsman to conduct reinvestigation; (2) conduct a
determination of probable cause as would suggest the issuance
of house arrest; (3) hold in abeyance the issuance of warrant of
arrest and other proceedings pending determination of
probable cause;

The other accused in Criminal Case No. 26558 also

contributed to the aforesaid delay by their filing of the following
motions:

Very Urgent Omnibus Motion, dated April 30, 2001, filed

by Jinggoy Estrada, praying that he be (1)excluded from the
Amended Information for lack of probable cause; (2) released
from custody; or in the alternative, (3) be allowed to post bail;

Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or

Service of Warrant of Arrest for Immediate Grant of bail or For
Release on Recognizance, dated April 25, 2001;

Urgent Motion to allow Accused Serapio to Vote at

Obando, Bulacan, dated May 11, 2001;

Urgent Motion for Reconsideration, dated May 22, 2001,

praying for Resolution of May 18, 2001 be set aside and bail
hearings be set at the earliest possible time;

Motion to Quash or Suspend, dated April 24, 2001, filed

by Jinggoy Estrada, assailing the constitutionality of R.A. No.
7080 and praying that the Amended Information be quashed;

Urgent Ex-Parte Motion to Place on House Arrest, dated

April 25, 2001, filed by Joseph and Jinggoy Estrada, praying
that they be placed on house arrest during the pendency of the
case;

Position Paper [re: House Arrest], dated May 2, 2001,

filed by Joseph and Jinggoy Estrada;

Urgent Motion for Immediate Release on Bail or

Recognizance, dated May 27, 2001;

Supplemental Position Paper [re: House Arrest], dated

May 2, 2001, filed by Joseph and Jinggoy Estrada;

Motion for Reconsideration of denial of Urgent Omnibus

Motion, dated June 13, 2001, praying that he be allowed to file
a Motion for Reinvestigation; and

Omnibus Motion, dated May 7, 2001, filed by Joseph

Estrada, praying by reinvestigation of the case by the
Ombudsman or the outright dismissal of the case;

Urgent Ex-Parte Motion for Extension, dated May 2, 2001,

filed by Jinggoy Estrada, requesting for five (5) days within
which to respond to the Opposition to Motion to Quash in view
of the holidays and election-related distractions;

Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution:

Motion for Earlier Arraignment, dated May 8, 2001;96


Opposition to Urgent Motion for Earlier Arraignment,
dated May 10, 2001, filed by Joseph Estrada;

Omnibus Manifestation on voting and custodial

arrangement, dated May 11, 2001, filed by Joseph and Jinggoy
Estrada, praying that they be placed on house arrest;

Manifestation, dated June 15, 2001, filed by Joseph and

Jinggoy Estrada, waiving their right to be present at the June
18 and 21, 2001 bail hearings and reserving their right to trial
with assessors;

Manifestation regarding house arrest, dated May 6,

2001, filed by Joseph and Jinggoy Estrada;

Omnibus Motion for Instructions: 30-Day House Arrest;

Production, Inspection and Copying of Documents; and
Possible Trial with Assessors, dated June 19, 2001, filed by
Joseph and Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001,

filed by Joseph and Jinggoy Estrada;

Urgent Motion for Additional Time to Wind Up Affairs,

dated June 20, 2001, filed by Jinggoy Estrada;

Urgent Manifestation & Motion, dated May 6, 2001 filed

by Jinggoy Estrada;

Manifestation, dated June 22, 2001, filed by Jinggoy

Estrada, asking for free dates for parties, claiming that denial
of bail is cruel and inhuman, reiterating request for gag order
of prosecution witnesses, availing of production, inspection
and copying of documents, requesting for status of alias case;
and

Manifestation, dated May 28, 2001, filed by Joseph and

Jinggoy Estrada, praying that they be allowed to be confined in
Tanay;

Motion to charge as Accused Luis "Chavit" Singson, filed

by Joseph Estrada;

Omnibus Motion, dated June 11, 2001, filed by Joseph

and Jinggoy Estrada, seeking reconsideration of denial of
requests for house arrest, for detention in Tanay or Camp
Crame; motion for inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear His Desk as

Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by
Jinggoy Estrada;

Motion for Reconsideration, dated June 9, 2001, filed by

Joseph and Jinggoy Estrada, praying that the resolution
compelling them to be present at petitioner Serapio's hearing
for bail be reconsidered;

Motion to Quash, dated June 7, 2001, filed by Joseph

Estrada;

Still Another Manifestation, dated June 14, 2001, filed by

Joseph and Jinggoy Estrada stating that Bishop Teodoro
Bacani favors their house arrest;

Compliance, dated June 25, 2001, filed by Jinggoy

Estrada, requesting for permission to attend some municipal
affairs in San Juan, Metro Manila.100
Furthermore, the Court has previously ruled that even in cases
where the prosecution refuses to adduce evidence in opposition
to an application for bail by an accused charged with a capital
offense, the trial court is still under duty to conduct a hearing
on said application.101 The rationale for such requirement was
explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco
vs. Rapatalo:102
"When the grant of bail is discretionary, the prosecution has
the burden of showing that the evidence of guilt against the
accused is strong. However, the determination of whether or not
the evidence of guilt is strong, being a matter of judicial
discretion, remains with the judge. This discretion by the very
nature of things, may rightly be exercised only after the evidence
is submitted to the court at the hearing. Since the discretion is
directed to the weight of the evidence and since evidence cannot
properly be weighed if not duly exhibited or produced before the
court, it is obvious that a proper exercise of judicial discretion
requires that the evidence of guilt be submitted to the court, the

petitioner having the right of cross-examination and to

introduce his own evidence in rebuttal."103
Accordingly, petitioner cannot be released from detention until
the Sandiganbayan conducts a hearing of his application for
bail and resolve the same in his favor. Even then, there must
first be a finding that the evidence against petitioner is not
strong before he may be granted bail.
Anent the issue of the propriety of the issuance of a writ of
habeas corpus for petitioner, he contends that he is entitled to
the issuance of said writ because the State, through the
prosecution's refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing, has failed to
discharge its burden of proving that as against him, evidence
of guilt for the capital offense of plunder is strong. Petitioner
contends that the prosecution launched "a seemingly endless
barrage of obstructive and dilatory moves" to prevent the
conduct of bail hearings. Specifically, the prosecution moved
for petitioner's arraignment before the commencement of bail
hearings and insisted on joint bail hearings for petitioner,
Joseph Estrada and Jinggoy Estrada despite the fact that it
was only petitioner who asked for a bail hearing; manifested
that it would present its evidence as if it is the presentation of
the evidence in chief, meaning that the bail hearings would be
concluded only after the prosecution presented its entire case
upon the accused; and argued that petitioner's motion to
quash and his petition for bail are inconsistent, and therefore,
petitioner should choose to pursue only one of these two
remedies.104 He further claims that the Sandiganbayan,
through its questioned orders and resolutions postponing the
bail hearings effectively denied him of his right to bail and to
due process of law.105
Petitioner also maintains that the issuance by the
Sandiganbayan of new orders canceling the bail hearings
which it had earlier set did not render moot and academic the
petition for issuance of a writ of habeas corpus, since said
orders have resulted in a continuing deprivation of petitioner's
right to bail.106 He argues further that the fact that he was
arrested and is detained pursuant to valid process does not by
itself negate the efficacy of the remedy of habeas corpus. In

support of his contention, petitioner cites Moncupa vs.

Enrile,107 where the Court held that habeas corpus extends to
instances where the detention, while valid from its inception,
has later become arbitrary.108
However, the People insist that habeas corpus is not proper
because petitioner was arrested pursuant to the amended
information which was earlier filed in court,109 the warrant of
arrest issuant pursuant thereto was valid, and petitioner
voluntarily surrendered to the authorities.110
As a general rule, the writ of habeas corpus will not issue
where the person alleged to be restrained of his liberty in
custody of an officer under a process issued by the court which
jurisdiction to do so.111 In exceptional circumstances, habeas
corpus may be granted by the courts even when the person
concerned is detained pursuant to a valid arrest or his
voluntary surrender, for this writ of liberty is recognized as
"the fundamental instrument for safeguarding individual
freedom against arbitrary and lawless state action" due to "its
ability to cut through barriers of form and procedural
mazes."112 Thus, in previous cases, we issued the writ where
the deprivation of liberty, while initially valid under the law,
had later become invalid,113 and even though the persons
praying for its issuance were not completely deprived of their
liberty.114
The Court finds no basis for the issuance of a writ of habeas
corpus in favor of petitioner. The general rule that habeas
corpus does not lie where the person alleged to be restrained of
his liberty is in the custody of an officer under process issued
by a court which had jurisdiction to issue the same 115 applies,
because petitioner is under detention pursuant to the order of
arrest issued by the Sandiganbayan on April 25, 2001 after the
filing by the Ombudsman of the amended information for
plunder against petitioner and his co-accused. Petitioner had
in fact voluntarily surrendered himself to the authorities on
April 25, 2001 upon learning that a warrant for his arrest had
been issued.
The ruling in Moncupa vs. Enrile116 that habeas corpus will lie
where the deprivation of liberty which was initially valid has

become arbitrary in view of subsequent developments finds no

application in the present case because the hearing on
petitioner's application for bail has yet to commence. As stated
earlier, they delay in the hearing of petitioner's petition for bail
cannot be pinned solely on the Sandiganbayan or on the
prosecution for that matter. Petitioner himself is partly to be
blamed. Moreover, a petition for habeas corpus is not the
appropriate remedy for asserting one's right to bail.117 It cannot
be availed of where accused is entitled to bail not as a matter
of right but on the discretion of the court and the latter has not
abused such discretion in refusing to grant bail,118 or has not
even exercised said discretion. The proper recourse is to file an
application for bail with the court where the criminal case is
pending and to allow hearings thereon to proceed.
The issuance of a writ of habeas corpus would not only be
unjustified but would also preempt the Sandiganbayan's
resolution of the pending application for bail of petitioner. The
recourse of petitioner is to forthwith proceed with the hearing
on his application for bail.
IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby
rendered as follows:
1 In G.R. No. 148769 and G.R. No. 149116, the petitions are
DISMISSED. The resolutions of respondent Sandiganbayan
subject of said petitions are AFFIRMED; and
2 In G.R. No. 148468, the petition is PARTIALLY GRANTED.
The resolution of respondent Sandiganbayan, Annex "L" of the
petition, ordering a joint hearing of petitioner's petition for bail
and the trial of Criminal Case No. 26558 as against former
President Joseph E. Estrada is SET ASIDE; the arraignment of
petitioner on July 10, 2001 is also SET ASIDE.
No costs.
SO ORDERED.

SECOND DIVISION
G.R. No. 143375

July 6, 2001

RUTH D. BAUTISTA, petitioner,

vs.
COURT OF APPEALS, OFFICE OF THE REGIONAL STATE
PROSECUTOR, REGION IV, and SUSAN ALOA,
respondents.
BELLOSILLO, J.:
This petition for certiorari presents a new dimension in the
ever controversial Batas Pambansa Bilang 22 or The Bouncing
Checks Law. The question posed is whether the drawer of a
check which is dishonored due to lack of sufficient funds can
be prosecuted under BP 22 even if the check is presented for
payment after ninety (90) days from its due date. The
burgeoning jurisprudence on the matter appears silent on this
point.
Sometime in April 1998 petitioner Ruth D. Bautista issued to
private respondent Susan Aloa Metrobank Check No.
005014037 dated 8 May 1998 for P1,500,000.00 drawn on
Metrobank Cavite City Branch. According to private
respondent, petitioner assured her that the check would be
sufficiently funded on the maturity date.
On 20 October 1998 private respondent presented the check
for payment. The drawee bank dishonored the check because it
was drawn against insufficient funds (DAIF).
On 16 March 1999 private respondent filed a complaintaffidavit with the City Prosecutor of Cavite City.1 In addition to
the details of the issuance and the dishonor of the check, she
also alleged that she made repeated demands on petitioner to
make arrangements for the payment of the check within five (5)
working days after receipt of notice of dishonor from the bank,
but that petitioner failed to do so.
Petitioner then submitted her own counter-affidavit asserting
in her defense that presentment of the check within ninety (90)
days from due date thereof was an essential element of the

offense of violation of BP 22. Since the check was presented for

payment 166 days after its due date, it was no longer
punishable under BP 22 and therefore the complaint should be
dismissed for lack of merit. She also claimed that she already
assigned private respondent her condominium unit at Antel
Seaview Condominium, Roxas Boulevard, as full payment for
the bounced checks thus extinguishing her criminal liability.
On 22 April 1999, the investigating prosecutor issued a
resolution recommending the filing of an Information against
petitioner for violation of BP 22, which was approved by the
City Prosecutor.
On 13 May 1999 petitioner filed with the Office of the Regional
State Prosecutor (ORSP) for Region IV a petition for review of
the 22 April 1999 resolution. The ORSP denied the petition in a
one (1)-page resolution dated 25 June 1999. On 5 July 1999
petitioner filed a motion for reconsideration, which the ORSP
also denied on 31 August 1999. According to the ORSP, only
resolutions of prosecutors dismissing a criminal complaint
were cognizable for review by that office, citing Department
Order No. 223.
On 1 October 1999 petitioner filed with the Court of Appeals a
petition for review of the resolution of the ORSP, Region IV,
dated 22 April 1999 as well as the order dated 31 August 1999
denying reconsideration. The appellate court issued the
assailed Resolution dated 26 October 1999 denying due course
outright and dismissing the petition.2 According to respondent
appellate court A petition for review is appropriate under Rule 42 (1997 Rules of
Civil Procedure) from a decision of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction, filed in the
Court of Appeals. Rule 43 x x x provides for appeal, via a
petition for review x x x from judgment or final orders of the
Court of Tax Appeals and Quasi-Judicial Agencies to the Court of
Appeals. Petitioner's "Petition for Review" of the ORSP resolution
does not fall under any of the agencies mentioned in Rule 43 x x
x x It is worth to note that petitioner in her three (3) assigned
errors charged the ORSP of "serious error of law and grave
abuse of discretion." The grounds relied upon by petitioner are

proper in a petition for certiorari x x x x Even if We treat the

"Petition for Review" as a petition for certiorari, petitioner failed
to allege the essential requirements of a special civil action.
Besides, the remedy of petitioner is in the Regional Trial Court,
following the doctrine of hierarchy of courts x x x x (italics
supplied)

from an award of a voluntary arbitrator is a petition for review

to the Court of Appeals, following Revised Administrative
Circular No. 1-95, which provided for a uniform procedure for
appellate review of all adjudications of quasi-judicial entities,
which is now embodied in Rule 43 of the 1997 Rules of Civil
Procedure.

First, some ground rules. This case went to the Court of

Appeals by way of petition for review under Rule 43 of the 1997
Rules of Civil Procedure. Rule 43 applies to "appeals from
judgments or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or authorized
by any quasi-judicial agency in the exercise of quasi-judicial
functions."3

On the other hand, the prosecutor in a preliminary

investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and
is often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal to
prepare his complaint or information. It is not a trial of the
case on the merits and has no purpose except that of
determining whether a crime has been committed and whether
there is probable cause to believe that the accused is guilty
thereof.11 While the fiscal makes that determination, he cannot
be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.12

Petitioner submits that a prosecutor conducting a preliminary

investigation performs a quasi-judicial function, citing
Cojuangco v. PCGG,4 Koh v. Court of Appeals,5 Andaya v.
Provincial Fiscal of Surigao del Norte6 and Crespo v. Mogul.7 In
these cases this Court held that the power to conduct
preliminary investigation is quasi-judicial in nature. But this
statement holds true only in the sense that, like quasi-judicial
bodies, the prosecutor is an office in the executive department
exercising powers akin to those of a court. Here is where the
similarity ends.
A closer scrutiny will show that preliminary investigation is
very different from other quasi-judicial proceedings. A quasijudicial body has been defined as "an organ of government
other than a court and other than a legislature which affects
the rights of private parties through either adjudication or rulemaking."8
In Luzon Development Bank v. Luzon Development Bank
Employees,9 we held that a voluntary arbitrator, whether
acting solely or in a panel, enjoys in law the status of a quasijudicial agency, hence his decisions and awards are appealable
to the Court of Appeals. This is so because the awards of
voluntary arbitrators become final and executory upon the
lapse of the period to appeal;10 and since their awards
determine the rights of parties, their decisions have the same
effect as judgments of a court. Therefore, the proper remedy

Hence, the Office of the Prosecutor is not a quasi-judicial body;

necessarily, its decisions approving the filing of a criminal
complaint are not appealable to the Court of Appeals under
Rule 43. Since the ORSP has the power to resolve appeals with
finality only where the penalty prescribed for the offense does
not exceed prision correccional, regardless of the imposable
fine,13 the only remedy of petitioner, in the absence of grave
abuse of discretion, is to present her defense in the trial of the
case.
Besides, it is well-settled that the courts cannot interfere with
the discretion of the fiscal to determine the specificity and
adequacy of the offense charged. He may dismiss the complaint
forthwith if he finds it to be insufficient in form or substance or
if he finds no ground to continue with the inquiry; or, he may
otherwise proceed with the investigation if the complaint is, in
his view, in due and proper form.14
In the present recourse, notwithstanding the procedural
lapses, we give due course to the petition, in view of the novel
legal question involved, to prevent further delay of the

prosecution of the criminal case below, and more importantly,

to dispel any notion that procedural technicalities are being
used to defeat the substantive rights of petitioner.
Petitioner is accused of violation of BP 22 the substantive
portion of which reads Section 1. Checks without sufficient funds. - Any person who
makes or draws and issues any check to apply on account or for
value, knowing at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for the
payment of such in full upon presentment, which check is
subsequently dishonored by the drawee bank for insufficiency
of funds or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason, ordered
the bank to stop payment, shall be punished by imprisonment of
not less than thirty (30) days but not more than one (1) year or
by a fine of not less than but not more than double the amount
of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the
discretion of the court.
The same penalty shall be imposed upon any person who,
having sufficient funds in or credit with the drawee bank when
he makes or draws and issues a check, shall fail to keep
sufficient funds or to maintain a credit to cover the full amount of
the check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored by
the drawee bank x x x x (italics supplied).
An analysis of Sec. 1 shows that The Bouncing Checks Law
penalizes two (2) distinct acts: First, making or drawing and
issuing any check to apply on account or for value, knowing at
the time of issue that the drawer does not have sufficient funds
in or credit with the drawee bank; and, second, having
sufficient funds in or credit with the drawee bank shall fail to
keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of ninety (90)
days from the date appearing thereon, for which reason it is
dishonored by the drawee bank.15

In the first paragraph, the drawer knows that he does not have
sufficient funds to cover the check at the time of its issuance,
while in the second paragraph, the drawer has sufficient funds
at the time of issuance but fails to keep sufficient funds or
maintain credit within ninety (90) days from the date appearing
on the check. In both instances, the offense is consummated
by the dishonor of the check for insufficiency of funds or
credit.
The check involved in the first offense is worthless at the time
of issuance since the drawer had neither sufficient funds in
nor credit with the drawee bank at the time, while that
involved in the second offense is good when issued as drawer
had sufficient funds in or credit with the drawee bank when
issued.16 Under the first offense, the ninety (90)-day
presentment period is not expressly provided, while such
period is an express element of the second offense.17
From the allegations of the complaint, it is clear that petitioner
is being prosecuted for violation of the first paragraph of the
offense.
Petitioner asserts that she could not be prosecuted for violation
of BP 22 on the simple ground that the subject check was
presented 166 days after the date stated thereon. She cites
Sec. 2 of BP 22 which reads Sec. 2. Evidence of knowledge of insufficient funds. - The
making, drawing and issuance of a check payment which is
refused by the drawee because of insufficient funds in or credit
with such bank, when presented within ninety (90) days from
the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the
drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the
drawee (italics supplied).
Petitioner interprets this provision to mean that the ninety
(90)-day presentment period is an element of the offenses
punished in BP 22. She asseverates that "for a maker or issuer

of a check to be covered by B.P. 22, the check issued by

him/her is one that is dishonored when presented for payment
within ninety (90) days from date of the check. If the dishonor
occurred after presentment for payment beyond the ninety
(90)-day period, no criminal liability attaches; only a civil case
for collection of sum of money may be filed, if warranted." To
bolster this argument, she relies on the view espoused by
Judge David G. Nitafan in his treatise - 18
Although evidentiary in nature, section 2 of the law must be
taken as furnishing an additional element of the offense defined
in the first paragraph of section 1 because it provides for the
evidentiary fact of "knowledge of insufficiency of funds or credit"
which is an element of the offense defined in said paragraph;
otherwise said provision of section 2 would be rendered without
meaning and nugatory. The rule of statutory construction is that
the parts of a statute must be read together in such a manner as
to give effect to all of them and that such parts shall not be
construed as contradicting each other. The same section cannot
be deemed to supply an additional element for the offense under
the second paragraph of section 1 because the 90-day
presentment period is already a built-in element in the definition
of said offense (italics supplied).
We are not convinced. It is fundamental that every element of
the offense must be alleged in the complaint or information,
and must be proved beyond reasonable doubt by the
prosecution. What facts and circumstances are necessary to be
stated must be determined by reference to the definitions and
the essentials of the specific crimes.19
The elements of the offense under BP 22 are (a) the making,
drawing and issuance of any check to apply to account or for
value; (b) the maker, drawer or issuer knows at the time of
issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its
presentment; and, (c) the check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would
have been dishonored for the same reason had not the drawer,
without any valid reason, ordered the bank to stop payment.20

The ninety (90)-day period is not among these elements.

Section 2 of BP 22 is clear that a dishonored check presented
within the ninety (90)-day period creates a prima facie
presumption of knowledge of insufficiency of funds, which is
an essential element of the offense. Since knowledge involves a
state of mind difficult to establish, the statute itself creates a
prima facie presumption of the existence of this element from
the fact of drawing, issuing or making a check, the payment of
which was subsequently refused for insufficiency of funds.21
The term prima facie evidence denotes evidence which, if
unexplained or uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts, or to
counterbalance the presumption of innocence to warrant a
conviction.22
The presumption in Sec. 2 is not a conclusive presumption
that forecloses or precludes the presentation of evidence to the
contrary.23 Neither does the term prima facie evidence preclude
the presentation of other evidence that may sufficiently prove
the existence or knowledge of insufficiency of funds or lack of
credit. Surely, the law is not so circumscribed as to limit proof
of knowledge exclusively to the dishonor of the subject check
when presented within the prescribed ninety (90) day period.
The deliberations on the passage of BP 22 (then known as
Cabinet Bill No. 9) between the author, former Solicitor
General Estelito P. Mendoza, and Bataan Assemblyman Pablo
Roman prove insightful MR. ROMAN: x x x x Under Section 1, who is the person who
may be liable under this Section? Would it be the maker or the
drawer? How about the endorser, Mr. Speaker?
MR. MENDOZA: Liable.
MR. ROMAN: The endorser, therefore, under Section 1 is
charged with the duty of knowing at the time he endorses and
delivers a check . . . .
MR. MENDOZA: If the endorser is charged for violation of the Act
then the fact of knowledge must be proven by positive evidence
because the presumption of knowledge arises only against the

maker or the drawer. It does not arise as against endorser

under the following section (italics supplied).
MR. ROMAN: But under Section 1, it says here: "Any person
who shall make or draw or utter or deliver any check." The
preposition is disjunctive, so that any person who delivers any
check knowing at the time of such making or such delivery
that the maker or drawer has no sufficient funds would be
liable under Section 1.
MR. MENDOZA: That is correct Mr. Speaker. But, as I said,
while there is liability even as against endorser, for example,
the presumption of knowledge of insufficient funds arises only
against the maker or drawer under Section 2.
MR. ROMAN: Yes, Mr. Speaker. It is true; however, under
Section 1, endorsers of checks or bills of exchange would find
it necessary since they may be charged with the knowledge at
the time they negotiate bills of exchange they have no sufficient
funds in the bank or depository.
MR. MENDOZA: In order that an endorser may be held liable,
there must be evidence showing that at the time he endorsed the
check he was aware that the drawer would not have sufficient
funds to cover the check upon presentation. That evidence must
be presented by the prosecution. However, if the one changed is
the drawer, then that evidence need not be presented by the
prosecution because that fact would be established by
presumption under Section 2 (italics supplied).24
An endorser who passes a bad check may be held liable under
BP 22, even though the presumption of knowledge does not
apply to him, if there is evidence that at the time of
endorsement, he was aware of the insufficiency of funds. It is
evident from the foregoing deliberations that the presumption
in Sec. 2 was intended to facilitate proof of knowledge and not
to foreclose admissibility of other evidence that may also prove
such knowledge. Thus, the only consequence of the failure to
present the check for payment within ninety (90) days from the
date stated is that there arises no prima facie presumption of
knowledge of insufficiency of funds. But the prosecution may
still prove such knowledge through other evidence. Whether

such evidence is sufficient to sustain probable cause to file the

information is addressed to the sound discretion of the City
Prosecutor and is a matter not controllable by certiorari.
Certainly, petitioner is not left in a lurch as the prosecution
must prove knowledge without the benefit of the presumption,
and she may present whatever defenses are available to her in
the course of the trial.
The distinction between the elements of the offense and the
evidence of these elements is analogous or akin to the
difference between ultimate facts and evidentiary facts in civil
cases. Ultimate facts are the essential and substantial facts
which either form the basis of the primary right and duty or
which directly make up the wrongful acts or omissions of the
defendant, while evidentiary facts are those which tend to
prove or establish said ultimate facts.25 Applying this analogy to
the case at bar, knowledge of insufficiency of funds is the
ultimate fact, or element of the offense that needs to be proved,
while dishonor of the check presented within ninety (90) days
is merely the evidentiary fact of such knowledge.
It is worth reiterating that courts will not normally interfere
with the prosecutor's discretion to file a criminal case when
there is probable cause to do so. Probable cause has been
defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.26
The prosecutor has ruled that there is probable cause in this
case, and we see no reason to disturb the finding.
WHEREFORE, the assailed Resolution of the Court of Appeals
dated 26 October 1999 which dismissed the petition for review
questioning the resolution of the Office of the Regional State
Prosecutor, Region IV, dated 22 April 1999, and its order dated
31 August 1999 denying reconsideration is AFFIRMED. Costs
against petitioner.
SO ORDERED.

EN BANC
G.R. No. 180122

March 13, 2009

FELICISIMO F. LAZARTE, JR., Petitioner,

vs.
SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
TINGA, J.:
This is a Petition for Certiorari1 under Rule 65 of the 1997
Rules of Civil Procedure assailing the Resolution2 dated 2
March 2007 of the First Division of the Sandiganbayan in
Criminal Case No. 26583 entitled, "People of the Philippines v.
Robert P. Balao, et al.," which denied petitioner Felicisimo F.
Lazarte, Jr.s Motion to Quash. The Resolution3 dated 18
October 2007 of said court denying petitioners motion for
reconsideration is likewise challenged in this petition.
The antecedents follow.
In June 1990, the National Housing Authority (NHA) awarded
the original contract for the infrastructure works on the
Pahanocoy Sites and Services Project, Phase 1 in Bacolod City
to A.C. Cruz Construction. The project, with a contract cost of
P7,666,507.55, was funded by the World Bank under the
Project Loan Agreement forged on 10 June 1983 between the
Philippine Government and the IBRD-World Bank.4
A.C. Cruz Construction commenced the infrastructure works
on 1 August 1990.5 In April 1991, the complainant Candido M.
Fajutag, Jr.(Fajutag, Jr.) was designated Project Engineer of
the project.
A Variation/Extra Work Order No. 1 was approved for the
excavation of unsuitable materials and road filling works. As a
consequence, Arceo Cruz of A.C. Cruz Construction submitted
the fourth billing and Report of Physical Accomplishments on 6
May 1991. Fajutag, Jr., however, discovered certain
deficiencies. As a result, he issued Work Instruction No. 1

requiring some supporting documents, such as: (1) copy of

approved concrete pouring; (2) survey results of original
ground and finished leaks; (3) volume calculation of earth fill
actually rendered on site; (4) test results as to the quality of
materials and compaction; and (5) copy of work instructions
attesting to the demolished concrete structures.61avvphi1.zw+
The contractor failed to comply with the work instruction.
Upon Fajutag, Jr.s further verification, it was established that
there was no actual excavation and road filling works
undertaken by A.C. Cruz Construction. Fajutag, Jr.s findings
are summarized as follows:
1. No topographic map was appended, even if the same is
necessary in land development works; a discarded drawing
sheet: "Spot Elevations and Existing Gradelines" of the project
site was found, but this contrasted significantly with the
alleged joint-survey results in support of the Variation/Extra
Work Order No. 1;
2. No laboratory tests were conducted to ascertain
unsuitability of materials, even if the same should have been
required as essential basis thereof;
3. There were no records of the excavation and disposal of
unsuitable materials and of road filling works having been
made by the previous engineers, Rodolfo de los Santos and
Noel Lobrido at the time said activities were allegedly executed;
4. The excavation of unsuitable materials and road filling
works were overestimated to the prejudice of the government:
a. in a 10.00 meter right-of-way (ROW) road, the entire width of
10.00 meters was used in calculating the volume of cut of
unsuitable materials when the undisturbed natural grounds
on both sides of the road was only 6.00 meters;
b. the mathematical calculation in determining the volume of
cut of unsuitable materials are contrary to the contracts
technical specifications which provides for cut measurements,
i.e.[,] by end-area method;

c. in a 10.00 ROW road, an effective width of 8.70 meters was

used in calculating the volume of road fill when the
undisturbed natural grounds on both sides of the road was
only 6.00 meters apart;
d. the mathematical calculations in determining the volume of
roadfill are contrary to the contracts technical specifications,
specifically Section 3.11 thereof, i.e., by end-area method.
5. No laboratory test was made to ascertain the quality of
imported road fill materials.7
In a Memorandum dated 27 June 1991, the Project Office
recommended the termination of the infrastructure contract
with A.C. Construction.8
In its Report dated 12 August 1991, the Inventory and
Acceptance Committee determined the total accomplishment of
the contractor at 40.89%, representing P3,433,713.10 out of
the total revised contract amount of P8,397,225.09 inclusive of
Variation Order No. 1 in the amount of P710,717.54.
Thereafter, said Committee recommended that the temporary
project suspension imposed by the contractor, which incurred
delays in the project completion, be referred to the Legal
Department for appropriate action.9
On 19 August 1991, the Manager of the Legal Department
issued a Memorandum addressed to the General Manager of
NHA endorsing approval of the Regional Projects Departments
(RPDs) recommendation. The NHA General Manager through a
letter dated 29 August 1991 informed the contractor of the
rescission of his contract for the development of the said
project upon his receipt thereof without prejudice to NHAs
enforcing its right under the contract in view of the contractors
unilateral and unauthorized suspension of the contract works
amounting to abandonment of the project. Despite the
rescission notice issued by the NHA per letter dated 29 August
1991, the contractor continued working intermittently with
very minimal workforce until such time as the award of
remaining infrastructure works is effected by NHA to another
contractor.10

In March 1992, the NHA Board of Directors, per Resolution No.

2453, approved the mutual termination of the A.C. Cruz
Construction contract and awarded the remaining work to
Triad Construction and Development Corporation (Triad). The
contract amount for the remaining work was P9,554,837.32.11
Thereafter, representatives from A.C. Cruz Construction, Triad
and NHA-Bacolod conducted a joint measurement at the site to
determine the total accomplishment of A.C. Cruz Construction
inclusive of accomplishments after NHA inventory.
The Project Office was subsequently informed by the Central
Office that the accomplishments made by A.C. Cruz
Construction after the NHA inventory would be paid directly to
said contractor by Triad. As of 27 March 1992, Triad had
issued checks in favor of A.C. Cruz Construction amounting to
One Million Pesos (P1,000,000.00) which were received by
Arceo M. Cruz per Official Receipt No. 3003.12
In its Memorandum dated 22 June 1992, the Regional Projects
Department recommended to the General Manager that the
fund settlement to A.C. Cruz Construction be effected.13
Thereafter, Triad discovered that certain work items that had
been in under the inventory report as accomplished and
acceptable were in fact non-existent. Fajutag, Jr. brought these
irregularities to the attention of the Commission on Audit
(COA).
After its special audit investigation, the COA uncovered some
anomalies, among which, are ghost activities, specifically the
excavation of unsuitable materials and road filling works and
substandard, defective workmanship. Laboratory tests
confirmed the irregularities.14
Further, according to the COA, while it is true that the fourth
billing of A.C. Cruz Construction had not been paid its
accomplishments after the August 1991 inventory found
acceptable by NHA amounting to P896,177.08 were paid
directly by Triad. Effectively, A.C. Cruz Construction had been
overpaid by as much as P232,628.35, which amount is more
than the net payment due per the computation of the unpaid
fourth billing.15

Consequently, petitioner, as manager of the Regional Projects

Department and Chairman of the Inventory and Acceptance
Committee, and other NHA officials were charged in an
Information16 dated 5 March 2001, worded as follows:

their official functions had given unwarranted benefits,

advantage and preference to accused Arceo C. Cruz and A.C.
Construction and themselves to the damage and prejudice of
the government.

INFORMATION

CONTRARY TO LAW.17

The undersigned Ombudsman Prosecutor II of the Office of the

Ombudsman-Visayas, accuses ROBERT P. BALAO,
FELICISIMO F. LAZARTE, JR., VIRGILIO V. DACALOS,
JOSEPHINE O. ANGSICO, JOSEPHINE T. ESPINOSA, NOEL H.
LOBRIDO AND ARCEO C. CRUZ for VIOLATION OF SECTION
3 (e) of REPUBLIC ACT No. 3019, AS AMENDED (THE ANTIGRAFT AND CORRUPT PRACTICES ACT), committed as
follows:

On 2 October 2006, petitioner filed a motion to quash the

Information raising the following grounds: (1) the facts charged
in the information do not constitute an offense; (2) the
information does not conform substantially to the prescribed
form; (3) the constitutional rights of the accused to be informed
of the nature and cause of the accusations against them have
been violated by the inadequacy of the information; and (4) the
prosecution failed to determine the individual participation of
all the accused in the information in disobedience with the
Resolution dated 27 March 2005.18

That in or about the month of March, 1992 at Bacolod City,

Province of Negros Occidental, Philippines and within the
jurisdiction of this Honorable Court, above-named accused,
ROBERT P. BALAO, JOSEPHINE C. ANGSICO, VIRGILIO V.
DACALOS, FELICISIMO F. LAZARTE, JR., JOSEPHINE T.
ESPINOSA, and NOEL H. LOBRIDO, Public Officers, being the
General Manager, Team Head, Visayas Mgt. Office, Division
Manager (Visayas), Manager, RPD, Project Mgt. Officer A and
Supervising Engineer, Diliman, Quezon City, in such capacity
and committing the offense in relation to office and while in the
performance of their official functions, conniving, confederating
and mutually helping with each other and with accused
ARCEO C. CRUZ, a private individual and General Manager of
A.C. Cruz Construction with address at 7486 Bagtikan Street,
Makati City with deliberate intent, with manifest partiality and
evident bad faith, did then and there willfully, unlawfully and
feloniously cause to be paid to A.C. Construction public funds
in the amount of TWO HUNDRED THIRTY TWO THOUSAND
SIX HUNDRED TWENTY EIGHT PESOS and THIRTY FIVE
CENTAVOS (P232,628.35) PHILIPPINE CURRENCY,
supposedly for the excavation and roadfilling works on the
Pahanocoy Sites and Services Project in Bacolod City despite
the fact no such works were undertaken by A.C. Construction
as revealed by the Special Audit conducted by the Commission
on Audit, thus accused public officials in the performance of

On 2 March 2007, the Sandiganbayan issued the first assailed

resolution denying petitioners motion to quash. We quote the
said resolution in part:
Among the accused-movants, the public officer whose
participation in the alleged offense is specifically mentioned in
the May 30, 2006 Memorandum is accused Felicisimo Lazarte,
Jr., the Chairman of the Inventory and Acceptance Committee
(IAC), which undertook the inventory and final quantification of
the accomplishment of A.C. Cruz Construction. The allegations
of Lazarte that the IAC, due to certain constraints, allegedly
had to rely on the reports of the field engineers and/or the
Project Office as to which materials were actually installed; and
that he supposedly affixed his signature to the IAC Physical
Inventory Report and Memoranda dated August 12, 1991
despite his not being able to attend the actual inspection
because he allegedly saw that all the members of the
Committee had already signed are matters of defense which he
can address in the course of the trial. Hence, the quashal of
the information with respect to accused Lazarte is denied for
lack of merit.
WHEREFORE, in view of the foregoing, the Court hereby
resolves as follows:

(1) Accused Robert Balao, Josephine Angsico and Virgilio

Dacalos Motion to Admit Motion to Quash dated October 4,
2006 is GRANTED; the Motion to Quash dated October 4, 2006
attached thereto, is GRANTED. Accordingly, the case is hereby
DISMISSED insofar as the said accused-movants are
concerned.
(2) The Motion to Quash dated October 2, 2006 of accused
Engr. Felicisimo F. Lazarte, Jr. is hereby DENIED for lack of
merit. Let the arraignment of the accused proceed as
scheduled on March 13, 2007.
SO ORDERED.19
Subsequently, the Sandiganbayan issued the second assailed
resolution denying petitioners motion for reconsideration.
Pertinently, it held:
The Motion for Reconsideration of accused Lazarte, Jr. merely
reiterated the grounds and arguments which had been duly
considered and passed upon in the assailed Resolution.
Nonetheless, after a careful review of the same, the Court still
finds no cogent reason to disturb the finding of probable cause
of the Office of the Ombudsman to indict accused Lazarte, Jr.,
Espinosa, Lobrido and Cruz of the offense charged. In its
Memorandum dated July 27, 2004 and May 30, 2006, the
prosecution was able to show with sufficient particularity the
respective participation of the aforementioned accused in the
commission of the offense charged. The rest of the factual
issues by accused Lazarte, Jr. would require the presentation
of evidence in the course of the trial of this case.
The Court also maintains the validity and sufficiency of the
information against accused Lazarte, Jr., Espinosa, Lobrido
and Cruz. The information has particularly alleged the ultimate
facts constituting the essential elements of the offense charged
which are as follows:
1. that accused Lazarte, Jr., Espinosa, and Lobrido are public
officers being the Department Manager, Project Management
Officer A, and Supervising Engineer of the NHA during the time
material in the criminal information; and

2. that the said accused, in their respective official capacities

and in conspiracy with accused Cruz, a private individual and
the General manager of A.C. Cruz Construction, have acted
with manifest partiality or evident bad faith and have given
unwarranted benefits, preference, and advantage to Arceo C.
Cruz and A.C. Cruz Construction or have caused damage and
prejudice to the government, by "[causing] to be paid A.C. Cruz
Construction public funds in the amount of Two Hundred
Thirty Two Thousand Six Hundred Twenty Eight Pesos and
Thirty Five Centavos (P232,628.35) supposedly for the
excavation and roadfilling works on the Pahanocoy Sites and
Services Project in Bacolod City despite the fact that no such
works were undertaken by A.C. Cruz Construction as revealed
by the Special Audit conducted by the Commission on Audit."
The other factual details which accused Lazarte, Jr. cited are
matters of evidence best threshed out in the course of the
trial.20
Hence, the instant petition which is a reiteration of petitioners
submissions. Petitioner ascribes grave abuse of discretion
amounting to lack or excess of jurisdiction to the
Sandiganbayan in: (1) upholding the validity and sufficiency of
the Information despite its failure to make out an offense and
conform to the prescribed form; (2) denying his motion to
quash considering that the remaining averments in the
Information have been rendered unintelligible by the dismissal
of the charges against some of his co-accused; and (3) using as
bases the Prosecutions Memoranda dated 27 July 2004 and
30 May 2006 to supplement the inadequacies of the
Information. In addition, petitioner avers that his
constitutional right to be informed of the nature and cause of
the accusation against him had been violated for failure of the
Information to specify his participation in the commission of
the offense. Petitioner also argues that the facts charged in the
Information do not constitute an offense as no damage or
injury had been made or caused to any party or to the
government. Finally, petitioner maintains that the
Sandiganbayan lost its jurisdiction over him upon the
dismissal of the charges against his co-accused as the
remaining accused are public officers whose salary grade is
below 27.

In its Comment21 dated 21 December 2007, the Office of the

Ombudsman, through the Office of the Special Prosecutor,
counters that separate allegations of individual acts
perpetrated by the conspirators are not required in an
Information and neither should they be covered by evidence
submitted to establish the existence of probable cause.
Allegations regarding the nature and extent of petitioners
participation and justification for his acts which constitute the
offense charged are evidentiary matters which are more
properly addressed during trial. The Ombudsman reiterates
our ruling in Ingco v. Sandiganbayan22 that the fundamental
test in reflecting on the viability of a motion to quash is the
sufficiency of the averments in the information that is, whether
the facts asseverated, if hypothetically admitted, would
establish the essential elements of the crime defined by law.
And relying on the case of Domingo v. Sandiganbayan,23 the
Ombudsman states that informations need only state the
ultimate facts; the reasons therefor are to be proved during the
trial.24 The Ombudsman moreover maintains that the
Sandiganbayan has jurisdiction over petitioner. The
Ombudsman argues that it is of no moment that petitioners
position is classified as salary grade 26 as he is a manager
within the legal contemplation of paragraph 1(g), Section 4(a) of
Republic Act No. 8249.25
In his Reply26 dated 9 October 2008, petitioner strongly
asseverates that, according to the Constitution, in a conspiracy
indictment the participation of each accused in the so-called
conspiracy theory should be detailed in order to apprise the
accused of the nature of the accusation against them in
relation to the participation of the other accused. A general
statement that all the accused conspired with each other
without stating the participation of each runs afoul of the
Constitution.27 Petitioner adds that the ultimate facts intended
by law refer to determinate facts and circumstances which
should become the basis of the cause of action; statement of
facts which would be in complete accord with the
constitutional requirement of giving the accused sufficient
information about the nature and the cause of the accusation
against him.28 Petitioner also avers that the Ombudsmans
reliance on and citation of the cases of Ingco v.

Sandiganbayan29 and Domingo v. Sandiganbayan30 is

misplaced and misleading.
Petitioners main argument is that the Information filed before
the Sandiganbayan insufficiently averred the essential
elements of the crime charged as it failed to specify the
individual participation of all the accused.
The Court is not persuaded. The Court affirms the
resolutions of the Sandiganbayan.
At the outset, it should be stressed that the denial of a motion
to quash is not correctible by certiorari. Well-established is the
rule that when a motion to quash in a criminal case is denied,
the remedy is not a petition for certiorari but for petitioners to
go to trial without prejudice to reiterating the special defenses
invoked in their motion to quash. Remedial measures as
regards interlocutory orders, such as a motion to quash, are
frowned upon and often dismissed. The evident reason for this
rule is to avoid multiplicity of appeals in a single court.31
This general rule, however, is subject to certain exceptions. If
the court, in denying the motion to dismiss or motion to quash
acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies.32 And in the case
at bar, the Court does not find the Sandiganbayan to have
committed grave abuse of discretion.
The fundamental test in reflecting on the viability of a motion
to quash on the ground that the facts charged do not
constitute an offense is whether or not the facts asseverated, if
hypothetically admitted, would establish the essential elements
of the crime defined in law.33 Matters aliunde will not be
considered.34
Corollarily, Section 6 of Rule 110 of the Rules of Court states
that:
SEC. 6. Sufficiency of complaint or information.A complaint
or information is sufficient if it states the name of the accused,
the designation of the offense by the statute, the acts or
omissions complained of as constituting the offense; the name
of the offended party; the approximate time of the commission

of the offense, and the place wherein the offense was

committed.

The essential elements for violation of Section 3(e) of R.A. No.

3019 are as follows:

When an offense is committed by more than one person, all of

them shall be included in the complaint or information.

1. The accused is a public officer or private person charged in

conspiracy with him;

The acts or omissions complained of must be alleged in such

form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged
and enable the court to know the proper judgment. The
Information must allege clearly and accurately the elements of
the crime charged. What facts and circumstances are
necessary to be included therein must be determined by
reference to the definition and elements of the specific crimes.35

2. Said public officer commits the prohibited acts during the

performance of his official duties or in relation to his public
position;

The test is whether the crime is described in intelligible terms

with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged. The raison detre
of the rule is to enable the accused to suitably prepare his
defense.36 Another purpose is to enable accused, if found
guilty, to plead his conviction in a subsequent prosecution for
the same offense. The use of derivatives or synonyms or
allegations of basic facts constituting the offense charged is
sufficient.37
Pertinently, Section 3(e) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, reads:
SEC. 3. Corrupt practices of public officers.In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or
permits or other concessions.38

3. He causes undue injury to any party, whether the

government or private party;
4. Such undue injury is caused by giving unwarranted
benefits, advantage or preference to such parties; and
5. The public officer has acted with manifest partiality, evident
bad faith or gross inexcusable negligence.39
The Court finds that the Information in this case alleges the
essential elements of violation of Section 3(e) of R.A. No. 3019.
The Information specifically alleges that petitioner, Espinosa
and Lobrido are public officers being then the Department
Manager, Project Management Officer A and Supervising
Engineer of the NHA respectively; in such capacity and
committing the offense in relation to the office and while in the
performance of their official functions, connived, confederated
and mutually helped each other and with accused Arceo C.
Cruz, with deliberate intent through manifest partiality and
evident bad faith gave unwarranted benefits to the latter, A.C.
Cruz Construction and to themselves, to the damage and
prejudice of the government. The felonious act consisted of
causing to be paid to A.C. Cruz Construction public funds in
the amount of P232,628.35 supposedly for excavation and road
filling works on the Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such works were
undertaken by said construction company as revealed by the
Special Audit conducted by COA.
On the contention that the Information did not detail the
individual participation of the accused in the allegation of
conspiracy in the Information, the Court underscores the fact
that under Philippine law, conspiracy should be understood on

two levels. Conspiracy can be a mode of committing a crime or

it may be constitutive of the crime itself. Generally, conspiracy
is not a crime in our jurisdiction. It is punished as a crime only
when the law fixes a penalty for its commission such as in
conspiracy to commit treason, rebellion and sedition.40
When conspiracy is charged as a crime, the act of conspiring
and all the elements of said crime must be set forth in the
complaint or information. But when conspiracy is not charged
as a crime in itself but only as the mode of committing the
crime as in the case at bar, there is less necessity of reciting its
particularities in the Information because conspiracy is not the
gravamen of the offense charged. The conspiracy is significant
only because it changes the criminal liability of all the accused
in the conspiracy and makes them answerable as co-principals
regardless of the degree of their participation in the crime. The
liability of the conspirators is collective and each participant
will be equally responsible for the acts of others, for the act of
one is the act of all.41
Notably, in People v. Quitlong,42 as pointed out by respondent,
the Court ruled on how conspiracy as a mode of committing
the offense should be alleged in the Information, viz:
x x x Where conspiracy exists and can rightly be appreciated,
the individual acts done to perpetrate the felony becomes of
secondary importance, the act of one being imputable to all the
others. Verily, an accused must know from the information
whether he faces a criminal responsibility not only for his acts
but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the
components of conspiracy or allege all the details thereof, like
the part that each of the parties therein have performed, the
evidence proving the common design or the facts connecting all
the accused with one another in the web of the conspiracy.
Neither is it necessary to describe conspiracy with the same
degree of particularity required in describing a substantive
offense. It is enough that the indictment contains a statement
of facts relied upon to be constitutive of the offense in ordinary
and concise language, with as much certainty as the nature of
the case will admit, in a manner that can enable a person of

common understanding to know what is intended, and with

such precision that the accused may plead his acquittal or
conviction to a subsequent indictment based on the same
facts. It is said, generally, that an indictment may be held
sufficient "if it follows the words of the statute and reasonably
informs the accused of the character of the offense he is
charged with conspiring to commit, or, following the language
of the statute, contains a sufficient statement of an overt act to
effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the
respective statutes defining them (15A C.J.S. 842-844).
x x x Conspiracy arises when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. Conspiracy comes to life at the very instant the
plotters agree, expressly or impliedly, to commit the felony and
forthwith to actually pursue it. Verily, the information must
state that the accused have confederated to commit the crime
or that there has been a community of design, a unity of
purpose or an agreement to commit the felony among the
accused. Such an allegation, in the absence of the usual usage
of the words "conspired" or "confederated" or the phrase "acting
in conspiracy," must aptly appear in the information in the
form of definitive acts constituting conspiracy. In fine, the
agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed
such as either by the use of the term "conspire" or its
derivatives and synonyms or by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged, not
just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or
likened to the adequacy of evidence that may be required to
prove it. In establishing conspiracy when properly alleged, the
evidence to support it need not necessarily be shown by direct
proof but may be inferred from shown acts and conduct of the
accused.43
In addition, the allegation of conspiracy in the Information
should not be confused with the adequacy of evidence that
may be required to prove it. A conspiracy is proved by evidence
of actual cooperation; of acts indicative of an agreement, a
common purpose or design, a concerted action or concurrence

of sentiments to commit the felony and actually pursue it. A

statement of the evidence on the conspiracy is not necessary in
the Information.44
The other details cited by petitioner, such as the absence of
any damage or injury caused to any party or the government,
likewise are matters of evidence best raised during trial.
As to the contention that the residual averments in the
Information have been rendered unintelligible by the dismissal
of the charges against some of his co-accused, the Court finds
that the Information sufficiently makes out a case against
petitioner and the remaining accused.
With regard to the alleged irregular use by the Sandiganbayan
of the Prosecutions Memoranda dated 27 July 2004 and 30
May 2006 to supplement the inadequacies of the Information,
the Court finds adequate its explanation in the first assailed
resolution, to wit:
It may be recalled that a reinvestigation of the case was
ordered by this Court because the prosecution failed to
satisfactorily comply with an earlier directive of the former
Chairperson and Members of the First Division, after noting
the inadequacy of the information, to clarify the participation
of each of the accused. In ordering the reinvestigation, the
Court noted that the prosecutions July 27, 2004
Memorandum did not address the apprehensions of the former
Chairperson and Members of the First Division as to the
inadequacy of the allegations in the information.
This time, despite a reinvestigation, the prosecutions
Memorandum dated May 30, 2006 still failed to specify the
participation of accused-movants Balao, Angsico and Dacalos.
The most recent findings of the prosecution still do not address
the deficiency found by the Court in the information. The
prosecution avers that pursuant to Section 3, Rule 117 of the
Rules of Court, in determining the viability of a motion to
quash based on the ground of "facts charged in the information
do not constitute an offense," the test must be whether or not
the facts asseverated, if hypothetically admitted, would
establish the essential elements of the crime as defined by law.

The prosecution contends that matter aliunde should not be

considered. However, in the instant case, the Court has found
the information itself to be inadequate, as it does not satisfy
the requirements of particularly alleging the acts or omissions
of the said accused-movants, which served as the basis of the
allegation of conspiracy between the aforementioned accusedmovants and the other accused, in the commission of the
offense charged in the information.45
Finally, the Court sustains the Sandiganbayans jurisdiction to
hear the case. As correctly pointed out by the Sandiganbayan,
it is of no moment that petitioner does not occupy a position
with Salary Grade 27 as he was a department manager of the
NHA, a government-owned or controlled corporation, at the
time of the commission of the offense, which position falls
within the ambit of its jurisdiction. Apropos, the Court held in
the case of Geduspan v. People46 which involved a regional
Manager/Director of Region VI of the Philippine Health
Insurance Corporation (Philhealth) with salary grade 26, to wit:
It is of no moment that the position of petitioner is merely
classified as salary grade 26. While the first part of the above
quoted provision covers only officials of the executive branch
with the salary grade 27 and higher, the second part thereof
"specifically includes" other executive officials whose positions
may not be of grade 27 and higher but who are by express
provision of law placed under the jurisdiction of the said court.
Hence, respondent court is vested with jurisdiction over
petitioner together with Farahmand, a private individual
charged together with her.
The position of manager in a government-owned or controlled
corporation, as in the case of Philhealth, is within the
jurisdiction of respondent court. It is the position that
petitioner holds, not her salary grade, that determines the
jurisdiction of the Sandiganbayan.
This Court in Lacson v. Executive Secretary, et al. ruled:
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that
to fall under the exclusive jurisdiction of the Sandiganbayan,
the following requisites must concur: (1) the offense committed

is a violation of (a) R.A. 3019, as amended (the Anti-Graft and

Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten
wealth), (c) Chapter II, Section 2, Title VII, book II of the
Revised Penal Code (the law on bribery), (d) Executive Order
Nos. 1,2, 14 and 14-A, issued in 1986 (sequestration cases), or
(e) other offenses or felonies whether simple or complexed with
other crimes; (2) the offender committing the offenses in items
(a), (b), (c) and (e) is a public official or employee holding any of
the positions enumerated in paragraph a of section 4; and (3)
the offense committed is in relation to the office.
To recapitulate, petitioner is a public officer, being a
department manager of Philhealth, a government-owned and
controlled corporation. The position of manager is one of those
mentioned in paragraph a, Section 4 of RA 8249 and the
offense for which she was charged was committed in relation to
her office as department manager of Philhealth. Accordingly,
the Sandiganbayan has jurisdiction over her person as well as
the subject matter of the case.47
WHEREFORE, premises considered, the instant petition is
DISMISSED. The Resolutions dated 2 March 2007 and 18
October 2007 of the First Division of the Sandiganbayan are
AFFIRMED.
SO ORDERED.